UD326/2015

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                           CASE NO.

George McGrath                                UD326/2015

-claimant                                  

against

Western Brand Group Limited

                             -respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Dr. A. Courell B.L.

Members:        Mr. D. Morrison

                        Mr T. Gill

heard this claim at Castlebar on 27th July 2016

                                      and 12th January 2017

                                      and 13th January 2017

Representation:

_______________

Claimant:         Mr. Evan O'Dwyer, O'Dwyer Solicitors, Ballyhaunis, County Mayo

Respondent:    Mr. Tom Mallon B.L. instructed by,

                        Benen Fahy Associates, Solicitors, 2 Bridge Street, Galway

Preliminary Applications

The first of the respondent’s applications is that at age 69 the claimant was past the normal retiring age and therefore Sec 2 of the Unfair Dismissals Acts does not apply. The normal retiring age within the respondent was 65 but it was agreed to raise it to 66 with the final year being on a 1 year fixed term contract. The claimant is the exception to the normal retirement age. As the claimant does not qualify for remedy under the Unfair Dismissals Acts the Tribunal does not have jurisdiction to hear this case.

The claimant accepts that he was above the normal retirement age but claims he is an exception as he was the production manager and there was no comparable employees.

The second of the respondent’s applications is that the claimant’s employment was terminated on expiry of a fixed term contract and therefore does not qualify for remedy under the Unfair Dismissals Acts. The claimant signed a one year fixed term contact on the 31^st of January 2014 and was given notice that it would not be renewed on the 12^th of January 2015, his employment would terminate on the 31^st of January 2015.

The claimant was informed on the 12^th of January 2015 that his employment was being terminated; this was not the expiry date of the contract.

The Tribunal want to hear evidence on the normal retirement age for a production manage and evidence of the number and duration of the fixed term contracts before making a decision. 

Ms W. for the respondent gave evidence. She is responsible for the HR function in the respondent and is the Financial Controller. A union represents the majority of the employees which are mostly general operatives (450). There are a few production managers and office staff also in the respondent. Any agreements reached with the Union i.e. pay increases etc. are applied to all staff not just those that are in the Union. When Social Welfare changed their retirement age from 65 to 66 an agreement was reached with the union to raise the respondent’s normal retirement age to 66 with the last year of employment to be on a one year fixed term contract.

The claimant was turning 70 in January 2015. His final contract was his fourth one year fixed term contract. Other production managers retired at 66. It was at the owner’s discretion if the retirement age was extended for individuals after 66. One of the office staff got 2 extra contracts and retired at 68. A driver has had 5 extra contacts and remains in the respondent’s employment. The claimant contacted Ms W and said he had been fired, she responded by informing him that he not been fired, his contract was expiring and would not be renewed. Ms W confirmed this with EL after speaking to the claimant. As a manager the claimant was familiar with the staff handbook and had carried out disciplinary procedures.

RH 12^th & 13^th of Feb 2017

The Tribunal heard evidence from EL the managing director of the respondent. He explained that the normal retirement age in the company was 65 years of age. Then after discussions the normal retirement age increased to 66 years of age.

He explained that the claimant asked for an extension and as he was physically fit and a friend of the family they extended his employment.

Eventually he decided not to extend the claimant contract. He explained that the claimant had been unwell so he decided not to renew the claimant’s contract. 

In cross examination it was put to the witness that he had not hired the claimant and that his father hired him, and he denied this in that he hired the claimant not his father.

Ms W was recalled to give evidence. She explained that she had not brought the claimant’s personnel file or a manual, or his contracts. She explained that the normal retirement age is not in the work manual. However the retirement age was agreed with the trade unions and is not sure but could be in the minutes of meetings with the unions.

The Tribunal heard evidence from AL who is the general manager. His brother is the managing director. He explained that he knew the claimant quite well and trusted him. He relied on the claimant. The claimant always tried his best. The claimant had never received warnings in work. He did not know if a personnel file existed for the claimant.

He explained that the claimant told him that he was going to see a specialist (medical doctor). He relayed this information to his brother the MD.   His brother thought about it and reverted to him and told him that it was time to end the claimant’s employment. He relayed this to the claimant.   The witness expanded that when he had spoken to the claimant in January of 2015 the claimant told him of a heart condition and of conflicting medications, and it was quite severe. He met with the claimant a week after that meeting and told the claimant that he had spoken to his brother and that “there is no easy way to say it … it is time to call it a day”.   The witness explained when asked that the claimant contract was finishing at the end of January and that they would not be renewing his contract; he told the claimant that his contract would not be renewed.

The Tribunal heard evidence from the claimant. He explained that he had worked for a company that supplied poultry to the respondent. He was offered a job by the respondent and he was told that his son would be employed as well.   As a person who was the factory/general manager was leaving the respondent at the time he commenced working for the respondent he assumed that he was taking on that role, i.e. as manager. The role was informal; there was no strict job definition. He worked a four and a half day initially. He undertook work beyond his duties. He worked with “live intake” and the “whole raison deter was customer orders, product” he was on a salary; he regularly worked “after hours”. Problems arose if their machinery broke down and if the customer did not get their order he/ they would be in trouble.

The witness was asked about his health and he replied, “I am a wreck”. He had been an in patient in hospital and was in his bedroom in his home when AL called to his house.   He spoke to AL from the upstairs window.

He did attend a meeting with AL when he called to tell him that he had been given the “all clear” by the doctor/s.   He explained that the situation arose when he spoke to AL and mentioned to him that he would be 70 yrs. on his next birthday. AL then told him that he had not realised that he was that age and that and that he would have to talk to his brother.

The next meeting that he had with AL was when he was on his way home after being given the all clear. AL told him that it was a good time to finish up. He asked AL where they would go from there and AL told him that he did not know but that he would phone the HR manager. AL told him that he would finish up now and that he would talk to the HR person to see how they would terminate things. The claimant explained “that it was all over it was finished”. The claimant further explained that AL told him that this would be a good time to call it a day.

The claimant phoned the HR person a few days later and she told him that she heard two conflicting arguments, one that AL had told him his employment ended and two that he had resigned. He told her that he certainly did not resign. She told him that AL was not there that day but she would speak with AL and then revert to him. She never got back to him and that was the last he heard, “that was the final conversation”. On 31^st January 2015 he received his form p45 with no covering letter.

The claimant was asked about his health and he explained that it is “fine I got a check up and I have no blood pressure problem, it is perfect, I don’t know where everyone says…”. He was asked if he had high blood pressure or pains in his heart and he replied “false”. Regarding uncertainty as to his fitness to return to work he replied, “false”.

Determination: 

The Tribunal determines that the claimant was employed by the respondent on a series of Fixed Term Contracts having reached the normal retirement age of 66 years, (in this case). On the expiration of the fourth Fixed Term Contract the respondent decided not to offer the claimant a further Fixed Term Contract.

The claimant is a person excluded from protection pursuant to Section 2 (1) (b), being a person who on or before the date of his dismissal had reached the normal retirement age. 

The respondent was entitled to end the claimant’s employment in those circumstances.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)