UDD1862

Background

The Complainant commenced employment with the Respondent on the 1^stJanuary 2009. Prior to and following the commencement of his employment there were discussions in relation to his contract of employment and draft contracts were exchanged. It is disputed as to whether a final contract was ever signed but both parties operated under the draft contract. The contract contained a clause stating that the retirement age was 65 but that the Company reserved the option to offer time limited extensions to the contract beyond the 65^thBirthday. While the exact wording may not be accepted by both parties they both confirmed they were aware of the clause and the nature of same.

The Complainant was retired at the end of the month of his 66^thBirthday December 2016 but was offered a fix term contract commencing the 1^stJanuary 2017. It is the Complainant’s claim that he was unfairly dismissed. It is the Respondent’s contention that there was no dismissal. As dismissal is in dispute it is for the Complainant to show that a dismissal took place.

Complainant’s case

The Complainant turned 65 on the 13^thDecember 2015 and continued to work for the Respondent it was his expectation that this would continue to work on indefinitely. On the 8^thDecember 2016 the Complainant received an email from the Respondent inviting him to a meeting on the 12^thDecember 2016 indicating that the Respondent would like to discuss the Complainant’s retirement plans. The Complainant replied “I don’t have a plan. Happy to discuss subject and your wishes.”On the 12^thDecember 2016 in advance of the meeting scheduled for that day he received an email from the Respondent indicating that they wished him to retire in 2016 and become a consultant. The scheduled meeting went ahead, and further emails ensued. The Complainant indicated that he did not want to retire at the end of 2016.

In his evidence to the Court the Complainant drew the Court’s attention to the fact that the Respondent had bought him a new computer in October 2016 and had booked flights and accommodation so that the Complainant could attend Trade Fairs in the Spring of 2017.

On the 14^thOf December the Complainant wrote to the Respondent settings out his requirements in relation to a contract for consultancy work requesting that the contact be sent to him by Friday of that week. Further emails were exchanged relating to whether the Complainant was retiring (which he disputed) or facing severance which he argued was the case. On the 22nd December 2016 the Complainant received a draft contract to review offering him a fixed term position for 12 months commencing the 1^stJanuary 2017. The Complainant in his evidence to the Court stated he was unhappy with elements of the contract in particular that it did not contain an expense arrangement that he had previously had access to. He did not dispute that it contained the same basic pay and similar duties to what he had previously done with the added role of being mentor to the person being trained in to replace him.

It was the Complainant’s evidence to the Court that he could have taken up that position on the 1^stof January 2017, but he did not. He met with the Respondent on the 17^thJanuary 2017 and confirmed that he would not be taking up the role. He received his p45 showing termination date of 31 December 2016 sometime after the 9^thJanuary 2017 and before the meeting on the 17^thJanuary 2017. It is the Complainant’s contention that he was unfairly dismissed.

Respondent’s case

The Complainant is the first person in the Respondent’s company to reach retirement age. In December 2015 when the Complainant reached 65 the company decided to keep him on till his 66^thbirthday which they understood to be in line with the State Pension Age. The Respondent acknowledges that they did not discuss this with the Complainant at this time.

At a business review meeting in October 2016 it was decided to retain the Complainant after his 66^thbirthday on a one- year fixed term contract commencing 1^stJanuary 2017. The Respondent in his evidence to the Court confirmed that he did not discuss this with the Complainant at that stage. The Respondent did not dispute that in his conversation with the Complainant in December 2016 he mistakenly referred to consultancy work when in fact what was on offer was a fixed term contract for one year. The intention was that he would train in the person who was replacing him.

The fact that it was a fixed term contract that was being offered was clear when the contract was received by the Complainant on the 22^ndDecember 2016. The salary offered was the same basic salary he was on and the role was similar to what he had been doing with an element of mentoring his successor. On receipt of the contract the Complainant engaged with the Respondent’s Accountant in relation to elements of the contract.

The Complainant retired on the 31^stDecember 2016 and was rehired immediately on a fix term contract from the 1^stJanuary 2017 which he chose not to take up.

The law

The definition of dismissal is set out in S1 (a) of the Unfair Dismissals Act which defines it as;

“Termination by the employer of the employee’s contract of employment with or without notice”.

The Act also sets outs exclusions to that definition which are set out in s 2 (1) and states;

• 
  (1)Except in so far as any provision of this Act otherwise provide this act shall not apply in relation to any of the following persons:

  (a)…..

  (b)an employee who is dismissed and who, on or before the date of his dismissal, has reached the normal retiring age for employees of the same employer in similar employment

  ( c) …..

Issue for the Court

Dismissal as a fact is in dispute therefore it is for the Complainant to establish that in the circumstances of this case a dismissal as defined by the legislation took place.

Discussion

The manner in which the Respondent approached the retirement of the Complainant was less than satisfactory. The Respondent after the business meeting in October 2016 could have raised the issue at that stage with the Complainant which would then have left sufficient time to iron out any difficulties or concerns the Complainant had about the Respondent’s proposal. Unfortunately, the issue fell to be dealt with in a condensed period in the lead up to Christmas 2016. However, it is not disputed that following retirement on the 31^stDecember 2016 the Complainant had available to him a fix term contract for one year commencing the next day on the 1^stJanuary 2017 offering the same basic pay and a similar role to the one he had. It was his choice not to take up that role. As set out above for a dismissal to occur the employment relation has to terminate. In this case while the employment relationship may have changed it did not terminate therefore no dismissal occurred.

Determination

The Court determines that the complaint is not well founded. The decision of the Adjudication Officer is upheld. The Court so determines.

Signed on behalf of the Labour Court



Louise O'Donnell
CR______________________
4 December, 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.