Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00003698-001

06/04/2016

The Complainant was employed by the Respondent from the 1^st of July 1977 to the 17^th of October 2015. He alleges that the Respondent should have allowed him to work after his 58^th birthday as he is of the view that other colleagues were allowed to do so. He filed a complaint with the Workplace Relations Commission on the 6^th of April 2016 under Section 13 of the Industrial Relations Act, 1969.

The Complainant’s representative outlined the following submission;

In June 2015, the Complainant through his representative stated that he was advised on his appointment in 1977 that his retirement age would be at 65 years of age. Since 1985 there has been a number of Labour Court Recommendations pertaining to this matter resulting in an expert group being established. In June 2003, this group made binding recommendations. Subsequent to the report The Department of The Environment, Heritage and Local Government issued a circular dated the 24^th of November 2003 LG(P) 19/03.

In October 2012, the Complainant reached his 55^th birthday and he applied to the Respondent for an extension beyond the age of 55 and furthermore applied in 2013, 2014 for further extensions. The Respondent has cited that the Complainant’s applications for extensions and their subsequent approval was on the basis that he accepted that he would retire at the age of 58. The Complainant contends that this was unfair taking cognisance of the fact that a work colleague within the workplace was allowed to remain in his employment until he was 60 years of age.

The Complainant believes that he should be compensated for this loss following the Respondent’s decision to terminate his employment prematurely.

The following is a summary of the Respondent’s submission;

The issue of retirement age was first examined in 1970 when management introduced gratuities for retained employees subject to retirement at age 55. The level of gratuity was the subject of a Labour Court hearing in 1985 between LGSNB and the FWUI, ITGWU and ATGWU. In a submission to the court, the group of unions advised as follows;

‘The Unions are not objecting to Compulsory Retirement at 55 years of age for part-time employees. They recognised that the demands of this role have changed dramatically over the past two decades as the physical demands are greater than heretofore. It is in the interests of the community that the retirement age can be lowered. It further recognises that a transitional period is necessary to phase in the retirement of these employees.

The outcome of the Labour Court recommendation No 9605 was a subject of a letter from the Department of Environment dated 12^th of December 1985 EL22/85 advising that all retained employees should retire on reaching 55 years of age. The level of gratuity was the subject of a further Labour Court Hearing, LCR 12292. The outcome for that Labour Court Recommendation was the subject of a circular letter from the Department of the Environment dated 12^th of June 1989 EL5/89 confirming that retained employees should retire on reaching 55 years of age.

In 2002 the issues of both retirement age and gratuity were the subject of a referral to the Labour Court. In a submission to the court, the union sought an increase from the current retirement age to 60. In its recommendation LCR 17223 issued on the 12^th of August 2002, the Court recommended

‘That the need to maintain a blanket retirement age of 55 from a Health and Safety perspective should be objectively assessed by the parties with the assistance of suitable experts.’

This provided for the establishment of an expert group to carry out a review of the present retirement age for all grades of the retained employees. The agreement advised at Section 5 ‘that in the event of no agreement being reached in either group, the chairman of that group shall issue findings in respect of that group which will be binding on the parties and will have to be accepted and implemented by both the LGMSB and the trade unions.’

The expert group report provided that retained employees would have the option of either retiring at age 55 or subject to compulsory medical assessment of an annual extension to a maximum age of 58.

The reports of the expert groups on retirement age and gratuities were the subject of a circular letter from the Department of Environment, Heritage and Local Government dated the 24^th of November 2003 LG(P)19/03 confirming the outcome of the expert groups and advising that the findings of both reports are binding on all local authorities on retained employees.

The employer had introduced a retirement age of 55 in accordance with a National Agreement as set out above. At the time of his employment as a retained employee, the Complainant was provided with formal Terms and Conditions of Employment for retained employees which confirmed at Section 3 that retirement age for retained employees was 55. The report of the expert group further advised that ‘under no circumstances should any employee who does not have a written contract of employment with a higher retirement age be employed beyond 58.’

In 2002, SIPTU entered an agreement confirming that it accepted that the decision of the chairperson would be binding. The agreement advised at Section 7;

‘This agreement constituted a binding collective agreement between the parties.’ SIPTU have not at any time since that date advised that it would not accept that outcome nor has it sought to raise this matter at National Level which is the appropriate forum. It is not acceptable of SIPTU to pursue a claim in respect of an individual member in relation to a matter which it has accepted as being the subject of a national binding agreement.

The Complainant’s Terms and Conditions of Employment states that his contractual retirement age is 55. In April 2012, the Respondent wrote to him advising that he would reach the normal retirement age of 55 in October 2012 and he had the option of seeking an extension to age 56 and thereafter to a maximum age of 58 subject to satisfactory medical assessment. He has signed a number of subsequent forms seeking an extension of his employment beyond age 55 to 58 and accepted within each of these that he would retire on reaching 58. Each of these was freely entered into and the Complainant was fully aware of all times that he would be required to retire upon reaching the age of 58.

In 2012 and before his normal retirement age, the Complainant was made aware in writing of the provisions of the Expert Group. If he did not accept these or wished to object to same or indeed was aware of some alternative arrangement, it was at that time that he should and could have raised a grievance to the Workplace Relations Commission. He chose not to do so.

The Complainant has confirmed in signing each of these forms that he has read the 2003 report and that he is applying for an extension subject to the provisions of the report and has accepted that no extension can be provided beyond the age of 58. In signing this document he is confirming his agreement to the provisions of the report and this agreement is legally binding on him. He cannot therefore seek redress under the Industrial Relations Act claiming that a dispute exists between him and his employer.

The Complainant has on the basis of agreement entered into by his union and the LGMA on behalf of the sector being afforded an extension to age 58. The adjudicator can only find that the original agreement is either binding or not binding on the Complainant. If it is found it is not binding this would go on the fundamentals of the agreement and therefore it would have to be assumed that the agreement is void and the respective positions of both parties reverts to the status quo prior to its implementation which is a retirement age of 55. The Complainant should therefore have retired in accordance with the provisions of his Terms of Employment which was 55. The decision that the agreement is void would be subsequently applicable to all other employees as the Respondent is not aware of any specific circumstances which would differentiate between him and his colleagues and indeed other colleagues employed across the country.

The Complainant has cited specific individuals within his workplace who remained in employment beyond the age of 58. These two individuals accepted their retirement age was 58 but were requested to remain in employment for a short period of time to facilitate the filling of key management posts within the fire service. Both of these individuals were station officers. This was a discretion exercised by the Respondent to ensure that it was meeting its statutory responsibility in the delivery of its services. Such requirements did not arise in relation to the Complainant’s colleagues. The Complainant has chosen not to submit a claim under equality legislation, however the establishment of a specific retirement age for the Complainant’s role is objectively justified by reference to a legitimate aim and the means used were appropriate and reasonable and therefore not contrary to Section 34(4) of the Employment Equality Acts.

The Complainant was correctly required to retire on the 17^th of October 2015 in accordance with the normal retirement age in relation his role. There is therefore no substance to the reference of the dispute under the provisions of the Industrial Relations Acts.

There is a collective agreement between the employer and its employees in relation to their retirement age. This collective agreement was negotiated on behalf of the employees by their trade unions. The Complainant is part of that collective agreement and is bound by its terms in relation to retirement age.

The fact that the Respondent requested two station officers to stay in their roles after their 58^th birthday to facilitate the filling of key management posts within the service, does not nullify the comprehensive agreement that is in place in relation to retirement age of the Complainant.

Based on written and oral evidence presented at the hearing, I find that the Complainant is not well-founded and therefore fails. The Complainant is bound by the terms of a collective agreement that is in place between the employer and its employees. This collective agreement was negotiated on behalf of the Complainant and his colleagues by his trade union.