UDD1851

FULL RECOMMENDATION

UD/17/104

DETERMINATIONNO.UDD1851

ADJ-00004660 CA-00006682-001

SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015

PARTIES :

TRADEWINS IRELAND LIMITED T/A EXPD8 IRELAND

- AND -

BRENDAN TYNAN
(REPRESENTED BY GAFFNEY SOLICITORS)

DIVISION :

Chairman: Ms O'Donnell
Employer Member: Mr Marie
Worker Member: Mr McCarthy

SUBJECT:
1. Appeal of Adjudication Officer's Decision ADJ-00004660.

BACKGROUND:

2. The Claimant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 8(A) of the Unfair Dismissals Act, 1977 to 2015. A Labour Court hearing took place on 6th September, 2018. The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Brendan Tynan (hereafter the Complainant) against an Adjudication Officer’s Decision ADJ-00004660 given under the Unfair Dismissals Act 1977 to 2015 (the Act) in a claim that he was unfairly dismissed by his former employer Tradewins Ireland Limited (hereafter the Respondent). The Adjudication Officer held that the complaint was not well founded.

Background

The Complainant commenced his position as a regional manager circa 1998. The Respondent took over the Company in March 2014 and the Complainant stayed on as Regional manager. During the restructuring that followed it emerged that the Complainant had passed the Respondents retirement age of 65. Agreement was reached in August 2014 that the Complainant could remain in role for a further two years. A contract was drafted up to reflect this position. It is the Complainant’s position that at the same time that agreement was reached that he could stay on for two years he was given a verbal commitment by the managing director that if he was in good health he could work beyond the two years. The Respondent disputes that this commitment was given and argue that his contract ceased at the end of the agreed two-year period.

Respondent’s case

The Respondent has a retirement age of 65. When it became aware that the Complainant had passed this age it engaged with the Complainant. It is the Respondent’s position that by mutual agreement with the Complainant agreement was reached that he would retire on the 22^ndAugust 2016 and that this date was inserted in the contract. The Contract was drawn up in 2014 and signed by the Mr Tynan and by Mr O’Donnell managing director on behalf of the Company on the 11^thAugust 2015. The Contract signed by the Complainant was a generic contract but the agreed date of his retirement was specifically inserted into the contract.

The Respondent notes the contention by the Complainant in relation to a verbal agreement with Mr O’ Donnell. They contacted Mr O' Donnell in relation to same but he denied such a commitment was given. Towards the end of May 2016, the Respondent met with the Complainant to discuss his upcoming retirement this was followed up with a letter confirming that he was due to retire on the 22^ndAugust 2016. The Complainant following that meeting by email informed the Respondent that he had decided to continue working. In a further email of the 3^rdJune he stated that although he had originally agreed to retire in August 2016 he had now decided he did not want to retire. Further correspondence ensued but the Respondent was clear that there was an agreed retirement date of 22^ndAugust 2016. The Complainant appealed this decision but his appeal within the Respondent process was unsuccessful. He retired on the 22^ndAugust 2016. He attended an exit interview and the company organised some gifts in recognition of his contribution to the company. It is the Respondent’s position that the Complainant was not unfairly dismissed.

Complainant’s case.

The Complainant does not dispute that he agreed to retire on the 22^ndAugust 2016. However, it is his contention that he had a verbal agreement that would allow him work beyond that date if he was still in good help. He acknowledged that the agreement was not in writing or referenced anywhere. He also confirmed to the Court that when he signed his contract in August 2015 a year after it had been agreed that he did not make any mention of the verbal agreement.

The Complainant also contended that his contract despite having a clause setting out a specific retirement date allowed him to work beyond if he so wished. The Representative for the Complainant drew the Court’s attention to paragraph 19 of the contract headed retirement which stated

“Our normal retirement age is your 65^thBirthday. It has been agreed that your retirement date will be the 22^ndof August 2016. If an employee choses to retire they should advise their manager in good time of their plans but as a minimum should give contractual notice, to support us in in planning workforce requirements.
If an Employee chooses to work beyond state pension age they should be aware that any non- contractual group risk insured benefits e.g. life assurance will no longer be applied.”

It was the view of the Complainant that this paragraph meant that it was a matter for the employee to decide when he would retire regardless of the age or date in the contract and that the Court in interpreting the Contract should apply the principle of contra proferentemand interpret the section in favour of the Complainant.

The law

Section 1 of the Act defines dismissal in the following manner

1. “dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b)……

Section 6(1) states

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Issue for the Court

Dismissal as a fact is not in dispute therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair.

Discussion

The Respondent is relying on the signed contract which set out a specific date for retirement. The Complainant is relying on the last line in the same section of the contract that states “if the employee chooses to work beyond state retirement age”. The Complainant is contending that the statement can have two meanings one meaning is that it highlights the impact on life assurance of working beyond state pension age the second is that the decision as to at what age an employee retires is by virtue of that statement totally at the discretion of the Employee irrespective of what may have been stated earlier in the contract. The Respondent is asking that the Court interpret the Contract in favour of the Complainant and apply that meaning. It is the view of the Court that the principle of contra proferentemcannot be applied to create an absurdity. To suggest that an employer can have no input as to when an employee should retire particularly in circumstances where agreement in relation to same has been reached would in the view of the Court create an absurdity.

Determination

Having carefully considered the submissions both written and oral and the evidence given at the hearing the Court cannot find that the Complainant’s employment came to an end by way of an unfair dismissal.

The Court determines that the Complainant’s complaint is not well founded. The appeal is rejected. The decision of the Adjudication Officer is affirmed.

The court so Determines.

Signed on behalf of the Labour Court

Louise O'Donnell
1st October 2018______________________
SCDeputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.