ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00012103

Parties: 

Complaint(s):

Date of Adjudication Hearing:  24/04/2018

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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

Preliminary Issue

The respondent submitted that that to be able to defend a compulsory retirement age claim. They must, in the first instance be able to establish that a normal retirement age does in fact exist within the organisation and the employee was aware or ought to have been aware of its existence. An employee’s “retirement may arise because of one or more of

(a)          An express term in the contract of employment

(b)          An implied term in a contract of employment

(c)           Custom and practice

 The respondent submitted arguments to support their position under (a) and (B) above.

The Union argued that other employees could work on beyond their normal retirement age and the claimant was denied this opportunity

Background

It was stated that the claimant commenced employment with the respondent on the 12th November 1990 and he retired on the 17th August 2017 as per his contracted of employment and in line with an agreement reached under the auspices of the Labour Relation Commission dated the 31st March 2014 which regularised terms and conditions of employment.

Updated contracts of employment for were issued to all SIPTU members in 2015 by way of collective agreement

The Union submitted that since that agreement the respondent had allowed employees to work beyond their normal retirement age of 65. The claimant had an expectation of working beyond 65 years in accordance with custom and practice with the organisation

The respondent submitted that agreement had been reached with the Trade Union that normal retirement age would be 65. It was accepted that there were 2 employees continued to work following the agreement

Finding

Both made written and verbal submission at the hearing.

I find the 2015 collective agreement was applied to all employees who had on the date and/or year of issuing of the updated terms and conditions, not yet reached the specified age of retirement. The claimant was one of these employees.

However, I do find that the manner of the claimant’s retirement was poorly managed and his expectation to stay beyond the collectively agreed retirement age was not adequately dealt with by the respondent. The sole reliance on written communication close to the date was totally inadequate. I also find that the claimant was offered the opportunity of returning to work with the respondent which he refused

Decision

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

As such I find that since 2015 it is the practice of the respondent to retire employees in accordance with the terms to the collective agreement on reaching their 65th birthday. However, the manner in which this retirement was handled left the claimant in difficulty. Taking in account that he was offered the opportunity of returning to work but he refused it on this basis on a once off without precedence basis I award the claimant the sum of €4,500 compensation.

Dated:   06/09/2018

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

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