ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001482

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 18/10/2016

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The claimant was employed as a General Operative with the respondent from the 1^st.June 2004 to the 24^th.Aug. 2015 and submitted the respondent was in breach of the Act for failing to pay him redundancy.He was paid €11.50 per hour , worked 40 hours per week including an hours overtime on Fridays and 4 hours on a Saturday.

The claimant commenced sick leave for treatment in April 2014 and sought to return to work in March 2015 when his doctor deemed him fit for work. He attended the respondent’s doctor in March 2015 and was advised that he was fit to return to work. The claimant left the respondent’s doctor’s letter with his manager and presumed he could return to work a week later. The claimant was contacted by his manager by phone and asked to return to see the company doctor and was advised not to return to work pending the doctor’s appointment. The company doctor advised the claimant that he could only sign him off to return to work as a forklift driver but informed the claimant that the company did not require a forklift driver at this time .The company doctor advised the claimant that he was the ideal candidate for disability. The claimant submitted that prior to going off sick , 80% of his duties were forklift duties and he saw no reason why he should not resume that role. In July 2015 , the claimant returned to the company doctor with a letter from his own doctor confirming his fitness to resume work. The company doctor indicated to the claimant that he was fit to resume work but said it was a matter for the respondent. The claimant heard nothing further until late autumn when he received a phone call from one of the company’s managers to say that he was being retired as he had reached the age of 65 and nobody over 65 worked for the company. The claimant heard nothing further until the 26^th.Feb. 2016 when he was advised that his employment terminated and furnished him with his P45 dated the 24^th.Aug. 2015 – the date of his 65^th.birthday.

It was submitted that in 2012 , following a period of sick leave , the claimant was offered a lump sum of €16,000 to leave his employment by way of voluntary redundancy.The claimant wanted to continue in employment and declined the offer.

It was submitted that the respondent was in breach of the Terms of Employment(Information) Act 1994 for failing to furnish the claimant with written terms and conditions of employment .It was contended that the respondent could not therefore rely on the provisions of an express written contract in regard to a retirement age.It was submitted that the claimant was never made aware of a retirement age of 65 , that there was no occupational pension scheme in place and the claimant was not entitled to the State pension until he turned 66.It was advanced that the respondent had no retirement policy in place and there was no custom and practise in place in relation to retirement.O’Mara and Hynes v College Freight Limited t/a Target Express Ireland [2011 22 ELR 61} were invoked in support of this position. It was submitted that the question that then arises is whether the retirement age was a legitimate aim or purpose and were proportionate measures followed to achieve that purpose.An Equality Tribunal decision was invoked in support of this position.

It was contended that the respondent avoided a redundancy payment for the claimant by dismissing him on the grounds of a retirement age.It was submitted that the respondent should have made reasonable efforts and accommodation to facilitate the claimant’s return to work in March 2015.It was submitted that the claimant was not replaced after he was dismissed – the implication being that the respondent could carry on the business with fewer employees and consequently a redundancy under Section 7 arises .

Respondent’s Submission and Presentation:

The respondent submitted that a redundancy situation did not arise and advanced that the company sought to regularise the terms and conditions of employment of all staff in 2007 when standard contracts of employment were issued to everybody .A template contract was submitted at the hearing and while it was accepted that the company did not have a signed contract of employment from the claimant , it was contended that he had received a contract in 2007 and was well aware of the age 65 retirement provisions.

It was submitted that the claimant was never offered voluntary redundancy in 2012 – an offer of €16,000 was made equating to €500 a month for 32 months to the claimant’s retirement age of 65 years.It was submitted that the company had endeavoured to be as fair as possible ; that this was an exgratia payment and the claimant had been well aware at the time of the 65year retirement age.It was submitted that no redundancy arose as the company continued to employ the same number of employees since the claimant commenced sick leave in April 2014.The claimant had been replaced by a temporary worker following the commencement of his extended sick leave and a permanent replacement was appointed in October 2015.It was submitted that the claimant had ben requested to return to the company doctor for a second time as there had been confusion about the duties the claimant would be expected to undertake.

It was submitted that in order to succeed in a redundancy claim, there was a requirement to prove that a redundancy had arisen and there was a requirement for impersonality in determining whether or not a position was made redundant.It was advanced that the only complaint before the WRC was for redundancy and any other arguments would have to be dismissed.It was submitted that the respondent had four Mill Operators in 2012 and the situation remained the same today.

Decision:

I have reviewed the evidence presented at the hearing and noted the submissions made by the parties.While I acknowledge the claimant has made compelling arguments in relation to the respondent’s management of his extended sick leave and the termination of employment , I am obliged to accept the respondent’s contention that the only claim before me is under the Redundancy Payment Act.There is no other complaint before me under any other employment rights legislation .In the circumstances I have concluded that the respondent has demonstrated that a redundancy situation did not arise and accordingly , the claimant’s complaint must fail.

Dated:   30^th January 2017