ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00008988

Parties:

	Complainant	Respondent
Anonymised Parties	Product Manager	Importer & Distributer

Representatives

Finbar Moloney

David Carroll, Carmel Keogh

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00011558-008	24/05/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00011558-003	24/05/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00011558-004	24/05/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00011558-005	24/05/2017
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00011558-006	24/05/2017
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00011558-007	24/05/2017

Date of Adjudication Hearing: 30/11/2017

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant was employed as a Product Manager from 1st January 2009 to 31st December 2016. He was paid €70,000 per annum plus a bonus and expenses. He has claimed that he did not get a written contract of employment, is owed holiday pay, minimum notice and that he was unfairly dismissed.

1)Organisation of Working Time Act CA 11558-003

Summary of Complainant’s Case:

The Complainant stated that he is owed 7 days’ holidays for the year 2016. These were not included in the final payment received from the company.

Summary of Respondent’s Case:

The Respondent accepts that 7 days’ holiday are due.

Findings and Conclusions:

I note that the Respondent has accepted that 7 days’ holidays are due amounting to €1,884.62.

I find that the Respondent has breached Sec 23 of this Act.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that the Respondent has breached Sec 23 of this Act.

I require the Respondent to pay the Complainant €1,884.62 in respect of the economic value of the holidays.

In addition, I require the Respondent to pay the Complainant compensation of €1,000 for breach of his rights under this Act. This is to act as a deterrent against future infractions.

This is to be paid within six weeks of the date below.

3) Terms of Employment (Information) Act CA 11558-005

Summary of Complainant’s Case:

The Complainant stated that he was not issued with a written statement of his terms and conditions of employment. He was issued with a draft in the beginning of his employment. He refused to sign it as it was deemed to be inappropriate. It did not contain his name, position etc. He requested this on occasions from his employer. He provided background information to them to assist with the preparation of the contract. He categorically denies ever receiving a contract, it was never issued. He is seeking compensation.

Summary of Respondent’s Case:

The Respondent stated that he was given a contract of employment in 2009. It was not signed by the Employer as they waited for him to sign it first and return it to them. The contract that was issued contained information about bonus payments. This information was provided by the Complainant and incorporated into the document given to him. This claim is rejected.

Findings and Conclusions:

I note the conflict of evidence in this claim.

Sec 3 (1) of this Act states,“ An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment”.

I note that there was discussion concerning the issuing of a contract.

I note that the Complainant has advised that he was issued with a draft contract at the commencement of his employment.

I note that the copy of the contract provided by the Respondent was not signed by the Respondent.

Sec 3 (4) of this Act states, “A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer”.

The onus rests with the Respondent to maintain records and they have not been able to produce evidence of issuing the contract.

Therefore, on the balance of probability I find that the Respondent did not issue the Complainant with a contract of employment.

I find that the Respondent has breached Sec 3 of this Act.

Sec 7 (2) (d) of this Act states,” compensation of such an amount (if any) as is just and equitable having regard to all the circumstances but not exceeding 4 weeks’ remuneration”.

I find that compensation is warranted

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that the Respondent has breached Sec 3 of this this Act.

I order the Respondent to pay the Complainant compensation of €3,000 within six weeks of the date below.

4) Unfair Dismissals Act CA 11558-006

The issue of dismissal was in dispute.

Summary of Complainant’s Case:

He stated that when he joined the company he was 58 years of age. He was advised that when he reached the age of 65 there was to be a year to year review. He reached 65 on 13th December 2015 but no review took place. On 12th December 2016 he received an e-mail from the Respondent advising that the employment would end on the end of December but there was a possibility of an extension. The Respondent mentioned ‘consultancy’. He queried what this offer was but there was no follow up. On 21st December, he was provided with a contract offering the same basic salary of €70,000 per annum but no expenses, previously worth €30,000 and no bonus, previously worth €22,000 per annum. He didn’t respond to this offer because he was dismissed with effect from the end of December. He had been told by his employer that he was retiring. He had no discussion with them when he reached 65.

He believes that he was dismissed. He is seeking compensation. In mitigation of his loss he formed his own company and sought to develop business. He didn’t apply for any jobs due to his age.

Summary of Respondent’s Case:

The mail of 8th December 2016 was to confirm that he was retiring from the company and to work as a consultant. The Respondent stated that they did not dismiss him. On 12th December, they held a meeting with him and offered a consultancy role to mentor a new employee. The statement “you are retiring” was in response to his statement that he was not going to retire. He was offered a new contract on 21st December offering him €70,000 per annum, 2 % of all sales and actual expenses incurred in the conduct of business. The previous contract paid a bonus on new sales only. This offered was confirmed by the company’s Accountant / Tax Expert. The business closed for Christmas to 2nd January 2017. They met him off site on 17th January 2017. He confirmed that he wouldn’t accept the offer as it amounted to half pay. The employer explained that it was not a continuation of the same job. There was no sales manager role. They stated that they did not implement the retirement review at 65 because he was not in receipt of the State pension until he was 66. He was the first person to reach retirement age. There was no dismissal, he retired and this claim is rejected.

Findings and Conclusions:

Retirement at 65

I note the conflict of evidence regarding the issuing of a contract of employment at commencement.

I note in the above decision under Terms of Employment (Information) Act I decided that no contract was issued.

I note that it is the Complainant’s position that upon reaching 65 the continuity of employment would depend on annual reviews for further employment.

I note the Respondent understood that the contract was issued with the following term; “Where this contract is not previously terminated, it will terminate by reason of retirement at the end of the month in which your 65th birthday occurs. The company reserves the option to offer time limited extensions to the contract beyond your 65th birthday”.

Therefore, I find that it is accepted by both parties that automatic continuation of employment after reaching 65th year did not apply.

Therefore, there was a policy of retirement at 65 but employees could enter reviews to extend the working relationship on a yearly basis.

I find that it was understood that a review would take place on a yearly basis upon reaching 65th year.

I note that there was not agreement on what the employment would be post 65.

I find that it is not clear and so open to interpretation on what type of employment would occur upon reaching 65th year.

I find that the Respondent in their contract presented to the hearing had addressed the matter in a clear fashion, however there was no evidence of actually having issued him with a signed copy.

I find that the Complainant was aware of the option of retirement at 65 and the possibility of extending the working relationship subject to yearly reviews.

Post 65

I note that no review took place with the Complainant upon reaching 65.

I note the Respondent’s explanation was that the State Old Age pension does not apply until 66 so they did not review his contract until his 66th birthday.

I find that the Respondent did not adhere to its own policy on retirement.

However, I find that there was a logic in their explanation but it should have been explained to the Complainant when he reached his 65th birthday.

I note that the Complainant was the first employee of theirs to reach retirement age.

Nevertheless, I find that they have contributed to this dispute over their handling of the matter.

Retirement or Dismissal

I note that the Respondent initiated discussions on retirement with the Complainant on 8th December 2016.

I find that the Complainant response and subsequent behaviour did not encourage open dialogue on this matter.

I find that he accepted that there were to be reviews but he went on the offensive.

I find that the Respondent had incorrectly expected that these discussions would lead to a review but they did not handle this sensitive matter with due care.

I note that it was the Respondent’s expectation that the Complainant would undertake a consultancy role with the purpose of mentoring an employee.

I find that the Respondent had no other intention other than to extend the working relationship in some form of consultancy.

I find that the Complainant had only an expectation of a continuation of the same contract.

I find that both parties have contributed to this misunderstanding. However, the overall responsibility rests with the Respondent as the employer.

I find that the correspondence and discussions did not bring about an understanding on a new contract.

I find that there was a misunderstanding by the Complainant on the proposed bonus structure and expenses, this lead him to form the view that his proposed salary would be half of what he had.

I find that the Respondent did not get the draft contract to the Complainant until 22nd December just before the business closed up for Christmas until 2nd January 2017.

I find that this delay in getting the draft contract and the business closure prevented discussions that were very necessary.

I note that the Complainant had formed the view that his contract was being terminated and he proceeded to announce his departure.

Under the circumstances, I find that there was a policy to retire at 65. I find that this policy provides for annual extensions to the contract following reviews.

I find that the way that this was handled by the Respondent and the subsequent response from the Complainant prevented the matter being openly discussed.

I note that the Respondent had invested in a lap top and had made reservations for travel in 2017 to China and suppliers and trade shows.

I find that this is not the actions of an employer planning to dismiss an employee.

I find that the Respondent expected that the Complainant would agree to extend his working relationship.

I find that the Complainant hastily took retirement rather than negotiate a continuation of the working relationship.

I find that this was a retirement not a dismissal.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

For the above stated reasons, I have decided that this complaint fails.

2) Payment of Wages Act CA 11558-004

Summary of Complainant’s Case:

The Complainant stated that he wished to continue in this employment. When he got to 65 years of age his position was to be reviewed but it wasn’t. A consultancy was mooted but no offer was made. There was a suggestion of a 2 % bonus but it was unclear. The offer of 12th December was for 1 day a week mentoring one of the employee and trips to China and help at trade shows. Then on 12th December he received an email from his manager advising him that of the involuntary termination of his employment with effect from the end of December. This amounts to 9 working days’ notice. He was entitled to one month’s notice, which was 11 more days but was never paid in lieu of notice. He has claimed 11 days’ notice.

Summary of Respondent’s Case:

The Respondent stated that he was not dismissed, he retired from the business. The Respondent didn’t want him to retire. They had invested in a lap top and a trip to China for business purposes. He failed to negotiate a new contract and left the business. This claim is rejected.

Findings and Conclusions:

I note the conflict of evidence in this dispute.

I refer to the unfair dismissals case above where I have found that there was not a dismissal and the employment ended by reason of retirement.

However, I note that the Complainant was notified on 12th December that he would be retiring on 31st December 2016.

I find that he received three weeks’ notice and so is due one week’s notice amounting to €1,346.15

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that the Respondent has breached Sec 5 of this Act.

I require the Respondent to pay the Complainant €1,346.51 within six weeks of the date below.

5)Minimum Notice & Terms of Employment Act CA 11558-007

Summary of Complainant’s Case:

The issue of minimum notice was dealt with under the Payment of Wages Act.

6)Redundancy Payments Acts CA 11558-008

Summary of Complainant’s Case:

This complaint was withdrawn.

Dated: 4th April 2018

Workplace Relations Commission Adjudication Officer: Eugene Hanly