UD610/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                        CASE NO.

Keith Sullivan, - Claimant                                                                                      UD610/2014

Against

National University of Ireland Galway (NUIG)    - Respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. E. Kearney B.L.

Members:     Mr. W. O'Carroll

                    Ms H. Murphy

heard this claim at Galway on 3rd September 2015

                                         and 2nd June 2016 and 3rd June 2016

                                         and 13th September 2016

Representation:

Claimant:        Ms Denise Mulcahy B.L. instructed by:

                       Mr Kieran McCarthy, Kieran McCarthy & Co, Solicitors, 6 Lapps Quay, Cork

Respondent:    Mr David McCarroll, RDJ Glynn, Solicitors, Aengus House, Long Walk, Galway

The determination of the Tribunal was as follows:-

At the commencement of the hearing the respondent’s representative raised a preliminary issue regarding the normal retirement age submitting that the claimant’s contract of employment referred to age sixty five as retirement age. The claimant’s representative submitted that an extension had been sought by the respondent and granted to extend the claimant’s employment. The respondent submitted that a blanket extension for all staff was sought from the HEA which included the claimant however the president of the organisation had the final say regarding any extension of employment after age sixty five.

The Tribunal directed that in order to make an informed decision the full facts of the case must be heard.

Respondent’s Position:

The respondent’s HR Manager (CF) gave evidence of the statutes of the organisation governing how they carry out and conduct business. Normal retirement age for professors, lecturers and all other staff is sixty five. In order to extend the employment of any employee prior approval must be sought from the Higher Education Authority (HEA). To avoid delays in extending a contract blanket approval for all staff reaching retirement age in the following year is sought in advance. CF described this as a forward planning exercise and the claimant was included on the list. Then follows discussion with the registrar and the deputy president consults heads of departments as to whether an extension is recommended. In circumstances such as completing research programmes extensions can be sought. The claimant was not engaged in any teaching role and when his union sought an extension the registrar sought details of the claimant’s current research and achievements.

As the Registrar was unable to obtain any communication from the claimant CF emailed the claimant on the 23 September 2013 (opened to the Tribunal) informing him that it was not possible to extend his contract. CF got no response to the email. The first contact CF received was from the claimant’s solicitor dated the 10 March 2013.

The Registrar and Deputy President (NM) of the organisation gave evidence. The witness told the Tribunal that the claimant was not based in the heart of the organisation, was not leading or participating in any research programme and not involved in any teaching duties. The claimant was reporting directly to the witness and it was extremely difficult to get details of any written research or published material from the claimant. Based on the claimant’s lack of evidence he organisation had nothing to support an extension of the claimant’s contract. Between 1 August and the 23 September the witness failed to contact the claimant and was fed up trying.

It was alleged that JB (the respondent’s President) had had difficulty getting staff from abroad and had offered ten added years’ service. The claimant was the only candidate for a senior leadership role. His wife would have to give up a lucrative position. NM (the Registrar) said that he could not refute this.

It was put to him that the performance of the respondent’s education department had been reviewed in 2002 and had been seen as below par such that an expert candidate was brought in as a leader who would garner the support of colleagues.

NM himself worked in the Department of Irish which had interaction with the claimant’s education department. It was put to NM that there had been friction when the claimant took over the running of matters. NM said that he could not recall this and wanted to see something in writing rather than have any inference drawn.

It was put to NM that the claimant would say that NM had overstepped his role. NM denied having been close to JB. He said that he would be briefed generally on the claimant’s presence or absence. The claimant’s work and location on campus were looked at. The claimant had had sick leave. NM could not recall having heard the claimant was seeking an extension. NM himself was not kept on. There was no malice towards the claimant.

The Tribunal was told that most academics went on with research well beyond their 65th birthday. NM needed evidence of the claimant’s research. It had to be shown.

The claimant was an expert on bullying. NM told the Tribunal that the claimant had been refusing to give him work and NM asked what was he to think. It was alleged that NM had made regular phone-calls but NM said he rang five times in two years.

From end 2012 the claimant did not present information about what he was doing. There were no grounds for his employment continuing.

At this point in the Tribunal hearing the Tribunal was told that the redress sought by the claimant was financial compensation.

Giving sworn evidence, TL (pensions official with the respondent) took the Tribunal through pension provisions. She said that the claimant had bought stamps for pension purposes. She did not assess whether any individual was extended or not,

The Tribunal was referred to 2013 HEA correspondence and to e-mail about extension of employment beyond normal retirement years.

Under cross-examination TL said that the claimant had written to her that he was now qualified for the state pension.

Recalled for further cross-examination, NM said that he did not dispute that the education department had been flawed. He had not been involved in the claimant’s interviewing and appointment. He felt that the claimant had failed dismally but did not say the claimant himself was flawed.

NM explained the Review Group consisted of five persons who interviewed twenty people during 20-30 minute interviews. He felt the review was carried out fairly and was not biased towards the claimant.

When asked he said that he did not know if the Review Group were in receipt of the claimant’s report of 2008. When asked had he consulted with the Review Group he replied that he had at the exit meeting when he was informed they, the Group, felt the claimant did not have leadership skills but there was no question of his ability.

NM again explained that from 2011 the claimant was involved in research only, he was not teaching. The claimant had never challenged or appealed this decision for him to do research only and refuted the claimant had been prevented from teaching.

When asked why the claimant had been moved “off campus” NM explained that the claimant no longer held an executive position and therefore there was no rational for him to remain located in an executive office. He further stated that the claimant had not been relocated “off campus” but had moved to the north campus.

NM told the Tribunal that it was assumed the claimant was to retire on his 65th birthday.

Giving sworn testimony, JB (President of the respondent) said that he had been registrar and deputy president. He recalled meeting the claimant for dinner. He said that he should not enter into a “gentleman’s agreement” and had not done so. He said that he could not make such commitments. Decisions were taken by the president of that time.

Under cross-examination, JB said that it was normal for someone offered a post to then negotiate but that he himself did not enter into the process of negotiation. JB did not accept the allegation that he had supported a statement that the respondent had found it hard to retain staff.

JB said that the respondent had its own HR and that negotiations about salary were not in his authority. As registrar he could not go beyond his authority. He did not believe he had said the respondent had trouble retaining overseas staff.

The cross-examination was said to be probing the reality behind JB’s denial on the grounds that negotiations were normal and that very few people took up a post without negotiations.

JB said that he had not had authority regarding pension rights. The claimant could talk to HR.   JB assumed that the claimant had spoken to HR. He did not know about the claimant’s wife.

JB did say that he was a professional and had an interest in the claimant taking up his post.

Claimant’s Position:

Giving sworn testimony, the claimant said that his wife had been excellent at her managing editor job. He arrived in May 2013. He was “still up in the air”. He told the Tribunal that JB promised him ten added years and said that others were extended. The claimant was allegedly told that the department was dysfunctional and in dire straits.

The claimant had a dinner with JB. He entered at point 7 on the performance scale. He found the respondent very good to deal with. He was an external candidate. Not everyone supported him. He felt that NM did not like him much.

The claimant said that he was not afforded an opportunity regarding some minutes and that he was berated about a process and for not replying to a certain letter. Another academic had an axe to grind. A professor of history described something the claimant had written as a “pamphlet”.

The claimant’s marriage broke up. Kids went back to their home country. His son was in Ireland.

The claimant felt that he had done good at the department that had not been recognised. This was not good for his mental health. He had a problem with another academic. NM was taking charge of his department. The claimant had been hired to do a job. There was a flawed process but there was no meeting with him about it. Asked why he had taken no action, the claimant replied that he “was not in a good state”.

The claimant went to the respondent’s doctor about bullying. Not much was done. He met HR. His research students were taken from him. His union intimated that he would be taken off the payroll. The claimant’s area was bullying. He was told that, because of his age, this matter would take years.

Regarding NM, the claimant felt that NM was very aggressive and non-supportive. The claimant was told that bullying was the area of NM’s wife. NM had no sympathy.

Asked why he had wanted an extension, the claimant said that he was going to continue with his research. He wrote a book on bullying which was translated into many languages. (It was a recently published book on school bullying in different cultures.) Asked if he had been fearful of the atmosphere that might prevail, the claimant said that he had wanted an extension for work and personal reasons. He thought his work would be useful. He was phoned and told that JB (the respondent’s President) and the head of HR would talk to him. JB was saying that he would not support the claimant’s extension. The claimant told the Tribunal that the practice had changed and that he had not been aware of efforts by the respondent to contact him. The extension was denied to him. He confirmed to the Tribunal that he had been on a salary of some €145,000.00 per annum.

Under cross-examination, the claimant said that JB had been the respondent’s registrar and deputy president. JB had signed the contract as registrar. The claimant had come to Ireland (from New Zealand) to bring his wife. He was told that it was unlikely that she would get a job in Ireland.

When the claimant arrived there was afternoon tea. He and JB met. The claimant told the Tribunal that he had no documentation about the ten added years’ service he was to get. It was a gentleman’s agreement. One could apply for ten added years. The claimant told the Tribunal that it was “common practice” and that he recalled that he would get ten added years.

The claimant was asked if he was asking the Tribunal to set aside ten years of correspondence. The claimant said that “it was to get me to Ireland” and that an extension was offered to others. JB had said that the claimant would get an extra ten years because people got up to ten years.

The claimant accepted that he had correspondence before signing any contract. Asked why he had not asked another (HUT), he said that he had trusted JB and had been told that he would get an extension for one year. The claimant conceded that he “probably should have read more carefully”. Regarding eligibility for the state pension, he was short of contributions and paid for thirteen weeks himself.

The respondent’s position was that it was disputed that the respondent had said that it would extend the claimant’s employment by a year. The claimant replied that he should have been extended as promised and that he had assumed integrity in the promises he was made.

Reference was made to pension documentation. The claimant said that he had engaged with social welfare authorities around his time of retirement but had not gone to them on a previous occasion.

In summary, the claimant’s case was that he should have been given an extension and that he had been told that he would see out his 65th year. It was alleged that the claimant had asserted himself and had raised a grievance about his belief that NM was taking things over. He had sent a full report to the respondent.

However, with regard to “very severe criticism” of him, the claimant said that he had been advised to deal with it and should have raised a grievance but he “was not feeling very strong”.

The claimant accepted that he had advice from a teaching federation but did not invoke it. He had not been given an extension.

Asked about other people, the claimant said that his own mental health had been very unstable and that he was being told that he would be very unwell if he pursued this.

It was put to the claimant that he was the lead man. He replied that he had been disempowered, had been very fragile psychologically and that an edict had been put out that retired people should not be put teaching.

When it was put to the claimant that he had not made enough invocation of the respondent’s procedures the claimant replied: “My trust kind of evaporated.” He said that he had been medically treated for depression and had been on anti-depressants.

The claimant said that he felt excluded after he had done a report which a professor said seemed like a “pamphlet”. He felt that he should be part of any review. Asked if his department had been world-class, the claimant said that it had been “on the way to world-class”. However, his report was not considered. He felt that there was an attempt to side-line him.

The claimant was given time to read documentation. There was a full list of retirees.

The claimant accepted that he had had periods of sick leave. He was unsure of dates but said that he could get details. There was an allegation that the claimant’s department had been “floundering”

The claimant said that he gave his opinion when warranted but that a review which he had provided was rejected. Asked if there had been negligence by the respondent, the claimant said that all the programmes had been seen by him and that it had been a good department. It was put to him that the respondent’s view had been different from his. However, the claimant said that the school would not close because it was a “cash-cow” for the respondent. The claimant said that he had had occasion to cross swords with a colleague. It was alleged that there were staff “waiting in the long grass” for him. When it was put to him that “the long grass” did not stretch to Glasgow he queried this. The claimant said that an attempt to discipline him had been thrown out. Against his will, he was by then a researcher. He gave his opinion to the respondent when he could. He welcomed change at the respondent but was concerned that his own work had not been published.

The claimant said that he had given up in that he had realised that he would not be part of the process at the respondent. He did not get a copy of certain documentation if it was circulated. He did not recall it being circulated. He felt pushed out of the department.

The claimant said that he welcomed change and could accept a new regime but all that he had done before was not acknowledged and he felt “pushed to the side”. He was told that the respondent did not want him there. He was in an office at the far end of the campus. His contact with HR was not positive. He did not trust them. He did not feel comfortable or trusting.

The claimant was due to retire at sixty-five. Asked why he had not written to say that he had a right to another year, the claimant said that he had thought he would get the extension. He did not know what had happened about being thirteen weeks short of service for the state pension.

The claimant said that many people were extended beyond sixty-five. He was doing research for a book.

Asked what he had done to get a job after the respondent, the claimant replied that he had not looked for work but continued his research.

Asked why not look abroad, the claimant said that he had kept doing research with colleagues.

Questioned by the Tribunal, the claimant said that his research was about books and that he got no remuneration (apart from copies of the book).

(The Tribunal was told of a book published in 2016). The claimant said that he contributed by giving his opinion.

 Asked if he had thought a certain report biased, the claimant replied that he would not write it.

 A former colleague and Professor at the respondent (TH) gave evidence. He explained he had been part of the five person team on the Board of Assessors than had interviewed the claimant and hired him for his initial role.

TH told the Tribunal that his executive office was located beside the claimants and both he and the claimant were instrumental in setting up a program combining mathematics and education, a program that was recognised by the Teaching Council. TH said he felt the claimant had not been given the recognition he deserved for setting up this program.

When the claimant went on sabbatical in 2008 a Professor PE took over as Head of School of Education. TH said he did not have the same interaction with that department as when the claimant had been in the role.

When asked about the Review report of the School of Education in 2011 TH said he had not been asked to be interviewed and was not aware of anyone in the mathematics department who was interviewed by the review group. TH said the first time he had sight of the report was on the first day of this hearing.

When asked TH told the Tribunal it was “custom and practice” for an employee of 65 years of age to remain working for the respondent until the end of the academic year and not to retire on their birth date. He explained that he had remained teaching until the end of the academic year of his 65th birthday. He said that an employee would just speak to the President about the matter and the extension would be granted. TH told the Tribunal that he knew of four teaching Professors who remained in teaching until the end of the academic year of their respective 65th birthday. However, he was not aware of any non teaching Professors who had remained working beyond their 65th birthday.

Under cross-examination TH reiterated that he had no involvement in the Review report of 2011, no involvement in the claimant’s pension and was not involved in the respondent’s management or governing authority.

Determination:

This matter comes before the Tribunal pursuant to section 8 of the Unfair Dismissals Act 1977 on the premise that the Claimant alleges that he was entitled to stay on in employment after his 65th birthday in circumstances where a blanket extension had been approved by the Higher Educational Authority, and it was custom and practice for people to remain on in employment. The Claimant argues that since each and every Professor in the year coming up to retirement date a blanket application for extension is sought and granted and the claimant relied heavily on the fact that this is routinely done. Further the Claimant seeks to assert that the normal retirement age is not the 65th birthday but was in practice the end of the academic terms following and employees 65th birthday. Thereafter he Claimant relies on a verbal agreement he says he had with the University President at an informal meeting he had with the Professor at the Meryk Hotel in Galway prior to joining the University that his tenure would be extended past his 65th birthday.

The Claimant alleges further that the normal retirement age of same or similar employees cannot be 65, by virtue of the aforementioned blanket application for extension.

The Respondent in this case raises a jurisdictional issue that, the Tribunal has no Jurisdiction to hear this claim, as the normal retirement age for Professors is on the 65th birthday. The Respondent claims that it is clear that the Claimant has reached the normal retirement age at the date of dismissal and therefore section 2 (1) b of the 1977 Act provides for a clear exclusion.

Therefore it falls for consideration as to what the normal retirement age is, and consequentially whether the Tribunal have jurisdiction to hear the claim.

The position in relation to the retirement age for Professors is contained in the Claimants Contract of Employment which provides;

“ The holder shall subject to good conduct and the due fulfilment of his/her duties hold office until he/she has attained the age of sixty five years and may thereafter be continued in office of a five further years, provided that such continuance in office is recommended by the Governing Authority with the approval of the President”.

This clause (1) in the Claimants Contract of Employment applies and provides that the appointment of a Professor is in accordance with the Irish Universities Acts 1908 Statute CLXI section 7 which deals with tenure in office, and further the Statue for University College Galway Statute XVII section 11 which creates the role of a Professorship of Education. Both of these provisions state that the tenure shall continue until the age of 65 and thereafter same may be continued by the Senate provided that such continuance is recommended.

It is clear that the University operated the practice of applying of blanket initial extensions they claim for reasons of efficiency. The letter relied upon to prove this fact is dated 17th September 2013 confirming blanket authorisation from the HEA for persons reaching normal retirement age in 2013 which included the Claimant. The Respondent gave evidence that this was effectively a box ticking exercise, as this alone would not guarantee the extension, same having to be put before and authorised and approved by the President and the Udaras.

The Tribunal heard evidence that the reason for the blanket application for extension was to ensure that students would not where appropriate be left in the lurch due to the retirement of a Professor mid-year.

The Tribunal has considered carefully the correspondence and contentions made during the period coming up to the Claimants retirement. It is clear that the Claimants trade union wrote on the claimants instructions on the 1st August 2013 stating

“Professor (Claimant named) is due to retire on the 11th of October 2013 and as a consequence of his retirement he will be thirteen weeks short of that required weeks to qualify for the full state pension.

As there is a recognised precedent within the University to extend the retirement age Professor (Claimant named) is seeking an extension of his employment to his 66th birthday date as at 31st August 2014.”

The Tribunal consider that in this letter, that the Claimant himself accepts that the normal retirement age is 65 and claims that there is provision to seek an “extension”.

The University HR Manager replied by e mail dated 23rd September 2013;

“ I refer to your correspondence seeking an extension of Professor (Claimant named) retirement date to 31st August 2014. In order to consider the request fully the University tried to contact Professor (Claimant named) on a number of occasions in the interim period. Unfortunately we were not able to make contact. In the absence of this we have considered the request against the normal circumstances which exist in such cases. A request is normally granted in order to facilitate the continuation of teaching or to complete a project where it had been ongoing for a number of years. Neither of these situations are evidenced in this case”

The Claimant did not make any further representations or engagement with the university in relation to advancing cause to extend his retirement date and duly retired on the 11th October 2013.

The Tribunal are satisfied and accept that the Claimant was not doing work for the benefit of students or the University leading up to his retirement date, and further the Tribunal accepts that this is the normal reason for an extension to be granted. The reason that Professor (Claimant named) was not doing such work, and in an active role discharging his duties in accordance with his contract of employment within the Department is not for consideration on this jurisdictional point, suffice to say that we note that the relationship between the University and Professor (Claimant named) was completely broken down. This is not for consideration and had no bearing on the Tribunal’s Jurisdictional determination.

It is clear that from the letter dated 31st August 2014 Professor (Claimant named) reason for seeking an extension was to be in a position to qualify for the full State Pension. The Tribunal are further satisfied that no weight can be put on alleged evidence of a verbal agreement the Claimant had with the President at a meeting he had prior to taking up employment. We are satisfied that the President of the University would have had no authority to offer or promise such to the Claimant.

The Tribunal further relies upon the evidence of the pensions officer of the company, together with the substantial correspondence and engagement between the pension officer down through the years and the Claimant regarding his retirement entitlements and what would be due to him. She told the Tribunal that at all material times in all correspondence and documentation on the Claimants pension file the normal retirement age is stated at 65, and no issue was taken with this.

The Tribunal considered the provisions of the Financial Measures (Miscellaneous Provisions) Act 2009 which took away autonomy from NUIG in relation to the University’s pension scheme.

The Tribunal are satisfied that the initial blanket approval obtained for all post holders coming up to normal retirement age was an administrative step in a process to consider whether such extension would be recommended as necessary for the University for consideration by the President.  

Further the Tribunal are satisfied that the Tribunal consider that the provision to seek an extension does not change or alter on a statutory footing the normal retirement age, which we are satisfied is when one reaches their 65th Birthday and therefore declines jurisdiction.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)