Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00017434-001

14/02/2018

The Complainant contends that he was unfairly dismissed on grounds of age.

The Respondent is entirely funded through payments made by the Department of Employment and Social Protection (DEASP) through the CE Programme. The DEASP sets down eligibility criteria for participation in the Programme which includes that CE participants and supervisors must retire on the working day before reaching their state pension age. No funding is provided if they do not meet the eligibility criteria.     The Complainant reached the age of 66 and his applicable state pension age on 25 January 2018. As such, he no longer met the eligibility requirements determined and set by the DEASP for the CE Programme. Consequently, the Respondent would not be provided with any funding from the DEASP to meet the costs of the Complainant’s continued employment from that date. In his capacity as supervisor the Complainant was at all times aware of the relevant eligibility requirements and applicable retirement provisions. The Respondent does not fix different ages for retirement of its employees. The applicable age of retirement within this particular employment has at all times been in accordance with the eligibility criteria (including retirement age) set by the DEASP. Prior to reaching retirement age the Complainant corresponded directly with the DEASP seeking to remain working past his 66th birthday. The Respondent supported the Complainant in his application to the DEASP but the DEASP confirmed that there was no scope for retaining the Complainant post retirement age. Consequently, the Complainant’s contract was terminated on 24 January 2018.

The Complainant was fully aware of the requirement regarding retirement and he discussed the situation many times with the various Chairpersons of the Sponsor Committee. He wrote to the Chairman of the Respondent on 10 August 2017 wishing to be retained after his 66th birthday and being “very concerned about his future”.

The fact of dismissal is not in dispute but the Respondent submits that it has a complete defence to the claim as under Section 2(1)(b), the Unfair Dismissals Acts do not apply to the dismissal of an employee “who is under 16, or who has reached normal retiring age in that particular employment”.    

The Complainant commenced employment on 1 October 1994 and retirement age did not feature in verbal of written form. A contract of employment dated 11 May 2008 which did not refer to any retirement age, was submitted in evidence. The Complainant worked for 24 years and gave valuable and loyal service. He was notified that he would be retiring the day before his 66th birthday. He did not wish to retire and made many attempts to challenge the decision. The Respondent supported his attempts and made representations to the DEASP.   However, the response was in the negative. Quoting CE rules as per the procedures manual. It is contended that as the sole ground for his dismissal was age that the dismissal of the Complainant was unfair. It is submitted that had the sponsor / the Respondent had its own funds to pay for the supervisor the DSP had no issue with him remaining at work. It is submitted that the Complainant was privately employed by the Respondent and that he falls between two stools as the scheme is publicly funded. It is contended that the Respondent could have sought alternatives to explore funding to retain the Complainant in employment and that having not done so, the dismissal should be deemed unfair.

Section 2 (1) (b) of the Unfair Dismissals Act 1977 provides:

“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 was a person to whom by reason of his age the Redundancy Payments Acts, 1967 to 1973 did not apply”.

The Complainant was employed by the Respondent on a community employment scheme which is governed by the rules as set down by the Department of Employment and Social Protection. The normal retiring age for employees in that context and in that employment in which the Complainant was employed is the last working day before reaching state pension age, and I note that The Respondent does not fix different ages for retirement of its employees.    

I find that the Act does not apply to the Complainant and I decline jurisdiction in this matter.