UDD1842

FULL RECOMMENDATION UD/18/1 DETERMINATIONNO.UDD1842 ADJ-00009800 CA-00011856-001 SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : MINISTER FOR JOBS ENTERPRISE & INNOVATION (REPRESENTED BY C. SMITH B.L. INSTRUCTED BY THE OFFICE OF CHIEF STATE SOLICITOR) - AND - GEORGE MC LOUGHLIN DIVISION : Chairman: Mr Foley Employer Member: Mr Marie Worker Member: Mr Hall

SUBJECT:
1. Appeal of Adjudication Officer Decision No.ADJ-00009800.


BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 8A of the Unfair Dismissals Act, 1977 to 2015 on 2 January 2018. A Labour Court hearing took place on 17 May, 2018. The following is the Determination of the Court:


DETERMINATION:

This matter comes before the Court as an appeal by George McLoughlin (the Appellant) of a decision of an Adjudication Officer in his complaint made under the Unfair Dismissals Act, 1977 to 2015 against his former employer the Minister for Jobs, Enterprise and Innovation [now the Minister for Business, Enterprise and Innovation] (the Respondent).

The Adjudication Officer, in a Decision dated 28^thNovember 2017, determined that he had no jurisdiction to determine the complaint.

The Appellant complains that he was unfairly dismissed on his sixty fifthbirthday, 8^thJanuary 2017, contrary to the Act.

Preliminary Matter

Rule 57 of the Labour Court (Employment Rights Enactments) 2016 provides as follows

• 57. The Court may, in its discretion, give a preliminary ruling on any aspect of the case where it is satisfied that time and expense may be saved by the giving of such a ruling.

The Respondent in the within matter has raised significant questions as regards the jurisdiction of the Court in the within appeal having regard to the Act at Section 2(1)(b). That Section of the Act provides as follows:

2(1) This Act shall not apply in relation to any of the following persons:

• (b) an employee who is dismissed and who, on or before the date of his dismissal, had reached the normal retiring age for employees of the same employer in similar employment [or who on that date had not attained the age of 16 years],

The Respondent submitted that the termination of the Appellant’s employment derived from his having reached his sixty fifthbirthday which was the normal retiring age for him as a civil servant.

The Court determined, in accordance with its rules, to give a preliminary ruling on this matter because a decision on this matter has the potential to dispose of the entire matter.

Summary position of the Appellant on the preliminary matter

The Appellant submitted that the age of sixty five was not the normal retiring age for civil servants at the material time.

He submitted that he had, on 28^thOctober 2016, made an application for retention in employment beyond his sixty fifthbirthday in accordance with Circular 13/75 which allowed such applications to be considered against certain criteria. He submitted that the fact of the Respondent having, in certain circumstances, the capacity to retain him in employment beyond his sixty fifthbirthday demonstrated that the normal retiring age for a civil servant at the material time was not sixty five years of age.

He submitted that the failure to retain him in employment beyond his sixty fifthbirthday constituted an Unfair Dismissal within the meaning of the Act.

Summary position of the Respondent on the preliminary matter.

The Respondent submitted that the normal retiring age for civil servants, of which the Appellant was one, was sixty five at the point of retirement of the Appellant. The Respondent submitted that this was a matter of fact having regard to the Civil Service Regulation Act of 1956 (the Act of 1956) which provides at Section 8 as follows

8.— (1) In this section, “the retiring age” means—

• • (a) in relation to a civil servant who is an officer to whom the Act of 1919 applies, sixty years,
  (b) in relation to any other civil servant, sixty-five years.

  (2) (a) The appropriate authority may, notwithstanding section 5, require any civil servant who is an officer to whom the Act of 1919 applies, and who has attained the age of fifty-five years or any other civil servant who has attained the age of sixty years to retire, and such civil servant shall retire accordingly.

  • • (b) Paragraph (a) of this subsection does not apply to a transferred officer who is an established civil servant.
    (3) Every civil servant shall retire on attaining the retiring age.

The Respondent submitted that the Act clearly established that the normal retiring age for civil servants within the meaning of the Act was sixty five at the point of retirement of the Appellant and consequently the Act does not apply to the circumstances of the Appellant who retired on his sixty fifth birthday.

The Respondent further submitted that section 8(3) of the Act of 1956 provides a stand-alone mandatory provision which obliges all civil servants to retire on attaining the retiring age, which, by virtue of the provisions of section 8(1)(b) was 65 in respect of the Appellant. The Respondent submitted that the Court has no jurisdiction to disapply section 8(3) of the Act of 1956 and referred to the decision of Clarke CJ inMinister for Justice, Equality and Law Reform and others v Boyle and others [2017] IESC43 in support of that contention.

The Respondent submitted that the Appellant did apply in October 2016 to be retained in employment beyond his sixty fifth birthday. That application was withdrawn by e-mail by the Appellant on 28^th November 2016 and no further such application was submitted prior to or since the retirement of the Appellant. Without prejudice to the factual position as regards an application which had later been withdrawn the Respondent submitted that the existence, by virtue of the terms of circular 13/1975, of a facility for the Appellant to apply for retention in employment beyond the age of sixty five, did not create a right to do so and did not disturb the requirement for the Appellant to retire on his sixty fifth birthday. The Respondent submitted that, notwithstanding the withdrawal of his application for retention, the Respondent had considered whether the Appellant complied with the terms of the relevant circular should he make such an application and had advised him that he did not meet the requirements of the circular.

Findings of the Court

The matter for consideration by the Court in this preliminary matter is the meaning, in the circumstances of this appeal, of the Act at Section 2(1). In essence the Court is required to determine the normal retiring age of the Appellant at the date of termination of his employment.

The Act of 1956 indisputably determines matters related to the retirement of a Civil Servant such as the Appellant. That Act plainly places an obligation on all Civil Servants to retire upon reaching their retiring age. In accordance with the terms of that Act the retiring age of the Appellant was sixty five at the material time.

The Court notes that Circular 13/75 provides a facility for Civil Servants approaching their retiring age to seek retention in employment beyond that age. The Court notes also that this circular addresses the nature of the employment which might be afforded to a Civil Servant who is successful in an application under the Circular when it states at Paragraph 24

• • An established officer should be retired in the ordinary course when he attains the age of 65 and should be re-employed in an unestablished capacity at his former salary and emoluments

There is a clear requirement to retire placed upon a Civil Servant by Section 8(1)(b) of the Act of 1956 and, noting the terms of paragraph 24 of Circular 13/75, the Court finds that no provision of that Circular disturbs the fact of termination of a Civil Servant’s employment by way of retirement on reaching the age of sixty five.

The Court finds, by reference to the Act of 1956 at Section 8(1)(b), that the Appellant had reached the normal retiring age for employees of the Respondent at the date of termination of his employment on his sixty fifth birthday. The Court finds that no application for retention under the terms of Circular 13/75 was in being at the date of the termination of the Appellant’s employment. In any event the Court finds that any such application would not have altered the fact of the normal retiring age of the Appellant being his sixty fifth birthday.

The Court finds that the existence of a facility to apply for retention under the terms of Circular 13/75 does not alter the fact that the normal retiring age for employees of the Respondent was sixty five at the date of termination of the Appellant’s employment.

In consequence of the Court findings on the above matters the Court finds that, by operation of the Act at Section 2(1), the Act does not apply to the circumstances of the termination of the Appellant’s employment.

Determination

For the reasons outline above the Court determines that the Act does not apply to the termination of the Appellant’s employment. The appeal fails and the decision of the Adjudication Officer is affirmed.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
TH______________________
12 July 2018Chairman



NOTE

Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.