EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
James Flynn UD295/2015
Against
Se Quirk Limited
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. T. Ryan
Members: Mr D. Moore
Mr F. Keoghan
heard this claim at Dublin on 30th March 2016
Representation:
_______________
Claimant: In person
Respondent: Sean Costello & Company, Solicitors, Haliday House,
32 Arran Quay, Dublin 7
The determination of the Tribunal was as follows:-
The claimant, who worked as a carpet fitter claimed that his employment, which commenced in 1982, ended unfairly in December 2014 on the day of his 65th birthday. His gross weekly pay was €558.75. There was no terms and conditions in place.
Summary of Evidence:
The respondent BQ said that his business was one of flooring contractor. He employed 5 people. 2 carpet fitters, a sales person, an office administrator and himself. Around the second week of November he spoke with the claimant, it was no great secret that he was reaching his 65th birthday and a party was suggested. He told the Tribunal that the job was very physical, lifting heavy carpets and he was aware that the claimant had a spell in hospital and had taken sick leave and the job may be too arduous for him. He was to meet with the claimant on the day before his retirement but it didn’t happen, he had had conversations with him by phone and had suggested he may be able to offer casual days at some stage in the future.
On the morning in question the claimant came to his office and told him he didn’t want to retire as he had no ability to earn money after the retirement. BQ told the Tribunal that he had made contact with Social Welfare for the claimant and later spoke with his accountant to arrange a P45 and holiday pay. This was posted to the claimant on 8th December and he had no further contact.
Asked about company policy he said that one lady had left the company in 2009 at the age of 65 but there was no written documents that specified retirement age. BQ had taken over the business from his father who had employed the claimant.
The claimant told the Tribunal that he had no contract, no policy document and he was unaware of any discussions when a former employee left in 2009. He told the respondent BQ in November that retirement age was 66 and that he wished to remain in employment until then. The job was not as arduous as the respondent suggested and a large amount of carpet tiles were always fitted.
Asked about loss he said that he had not sought alternative employment as he felt at 65 nobody would want to employ him.
Determination:
The claimant did not have a written contact of employment and there was no written or verbal agreement or understanding between the parties as to retirement age. The Tribunal is satisfied that the claimant was Unfairly Dismissed but is also satisfied that the claimant did not make any effort to mitigate his loss as per his own direct evidence.
Allowing the claim, the Tribunal awards the claimant the sum of €2235.00 (four weeks wages) under the Unfair Dismissals Act 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)