Complainant

Respondent

Anonymised Parties

An Employee

A Meat Processing Plant

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00004942-001

31/05/2016

The Complainant was employed directly by the Respondent since 21 December 2012, at which point the business of his previous employer, for whom he had worked since 2004, had been taken over by the Respondent under a Transfer of Undertaking.

On 24 November 2015 a representative of the Respondent called the Complainant to a meeting where he was told that he would be finishing work on 27 November 2015 and would be paid his outstanding holidays to 24 December 2015, at which point he would be retired on reaching his 66th birthday. The Complainant informed the Respondent's representatives that he wasn't obliged to retire at 66, at which point the representative informed the Complainant that he would check the situation with the Managing Director.

For 4 December 2015 the Complainant was called to a meeting with the Managing Director of the Respondent, where he was informed that, pursuant to company policy, he would be retired once he reach the age of 66, on 24 December 2015. The Complainant reiterated his position that he was not obliged to retire at 66 and that he did not intend to do so.

The Complainant received a letter, by hand, on 22 December 2015 in which the decision by the Respondent was reiterated. This letter was accompanied by an excerpt from a document with headings of "3. Investigation" and "4. Outcome". The Complainant was not aware of what wider document this excerpt came from or what relevance the document had to his situation.

On 30 December 2015, the Complainant received a further copy of the letter of 22 December 2015. On this occasion, the letter was accompanied by another excerpt from a document, this time setting out a retirement policy. The Complainant contends that this excerpt was never previously received by him.

The Complainant's employment ceased on 24 December 2015, purportedly pursuant to the Respondent's policy to retire staff at 66 years of age.

In his submission at the hearing, the Complainant's legal representative claimed that there was no statutory retirement age fixed for the Complainant's former employment.

The Complainant makes his complaint pursuant to Section 6 (2) (ee) of the Unfair Dismissals Act (1970). The Complainant submitted that contrary to that subsection of the Act, he was dismissed from his employment on 24 December 2015, wholly on the grounds of his age.

The Complainant submitted that no complaint as regards his conduct, performance or competence was made by the Respondent. The Complainant submitted that at all times he remained competent to carry out the requirements of his job. In addition, the Complainant submitted that he had no health issues such as would have rendered him unable to perform his duties.

The Complainant further submitted that the Respondent has failed to produce any evidence to substantiate any claim that there were substantial grounds for the termination of his employment. It was claimed that the Respondent had failed to produce any evidence or failed to substantiate any claim that the termination of the Complainant's employment was made as a result of any of the grounds set out in Section 6 (4) of the Act. Therefore, it is claimed that the Respondent is in contravention of Section 6 (6) of the Act.

The Complainant submitted that he never received a retirement policy from the Respondent, or his previous employer, prior to the termination of his employment. The Complainant contends that the excerpt furnished with the letter of 22 December 2015 was never previously been provided to him. Therefore, the Complainant submits that neither the terms referred to therein nor any other terms of retirement, made up the terms of the Complainant's contract of employment.

It was further submitted that the Complainant was not aware of any policy of mandatory retirement at the age of 66 for his class of employees or generally in the Respondent’s company. In support of this, the Complainant submitted that two older employees had previously worked beyond the age of 66. It was submitted that both employees retired voluntarily, with one retiring at age 70.

Therefore, the Complainant submitted that in the absence of any express clause determining the retirement age or any company policy known or made known to him, he had no expectation or understanding that he would be forced to retire at age 66. The Complainant further submitted that even if the retirement policy was in effect, it has no application to his circumstances as he was not made aware of it and the Respondent did not afford him fair procedure in following its own purported policy.

The Respondent did not attend at the appointed time for the Hearing and no other formal submission was received.

The Respondent was not present at the appointed time for the commencement of the Hearing. Having delayed the commencement of the Hearing for a reasonable period of time, it was assumed that the Respondent was not attending, and matters proceeded with the taking of the Complainant's evidence.

Very shortly after the conclusion of the Hearing a representative for the Respondent presented himself, having purportedly misread the start time of the Hearing. While initial attempts were made to facilitate the Respondent providing a written submission which could be forwarded to the Complainant for comment, these were unsuccessful. Consequently, my deliberations and decision is based solely on the Complainant's uncontested evidence.

Having carefully considered all of the evidence adduced, I find the Complainant was unfairly dismissed by the application of a mandatory retirement age in a context where he was unaware of the existence of such a policy and in which he had no reasonable expectation of or understanding that he would be forced to retire at age 66.

Therefore, I find in the Complainant's favour and award compensation in the sum of €11,440. This amount is based on loss of earnings up to the end of June 2016, at which point the Respondent's business was closed down with the resultant redundancy of all staff. In that context, I find the Complainant should, therefore, also qualify for this redundancy and should now be paid the appropriate redundancy payment, as applied to his fellow employee's at the time and in line with his salary/service as determined by the Redundancy Payments Act 1967 - 2014.

Mandatory retirement