Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00016115-001

04/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00016115-002

04/12/2017

The complainant while out sick was required to retire shortly after reaching 66. The company liquidated shortly afterwards and the complainant believes he was required to retire to avoid redundancy payments.

The complainant commenced employment with the respondent on 13th July 1977 and worked as a truck driver. On 16th June 2017, while on sick leave, the complainant was informed by the respondent that he had to let him go and any monies due would be paid shortly. The complainant explained that he intended to return to work after his recovery but to no avail. On 26th June 2017 the complainant received a payment for two week’s pay and public holidays, followed by a P45. Despite the complainant wishing to continue working he assumed that he had to leave work when he reached 66 which he had on 1 March 2017. On 24th November 2017 the complainant sent a letter to the then Director of the respondent company asking why he was let go.   The complainant did not receive a response and on the 30th November 2017 he went to the offices and spoke with the Director in question who informed him that the reason for letting him go was his age. The Director also stated that the company had ceased trading on the evening of the 24th November 2017. The company went into liquidation on 8th December 2017.

The complainant was informed on 30th November that he had been let go because of his age.   However, when he reached 65 he had not been informed that he would have to retire on his 66th birthday. The complainant’s birthday was 1 March 2017 but he was only informed on 16th June that he had to cease employment. The complainant is not aware of any other employee who had to retire at 66. The complainant believes that the decision to terminate his employment was to evade responsibility under the redundancy act.

The respondent company has since liquidated and the liquidator was present at the hearing.   He stated that it was his understanding from one of the company directors that the complainant was made to retire on reaching 66. He confirmed that other staff had been made redundant at that time.

Section 7 of the Redundancy Payments Act 1967 regarding the general right to redundancy payment states;  

7.—(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of two years ending on that date.

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish.

If an employer has a legitimate retirement age in place then a dismissal by virtue of reaching that age cannot of itself mean an entitlement to a redundancy payment. If an employer has no specified retirement age, and no process in place to determine whether an employee is fit to continue then the employee has an indefinite entitlement to employment until such time as he chooses to retire or is unable to continue for health reasons. In such circumstances, the assumption must be that, if the post is no longer required, the employee in question may be entitled to a redundancy payment. Equally, in these circumstances, an employer should not introduce a notional retirement age, particularly in the context of redundancies within that employment, to avoid payments to employees on reaching the prescribed age. To do so may give other causes of action.

In the current case I note that the issue of terminating the complainant’s contract on the grounds of retirement age was only raised some months after he reached 66 and that he was unaware of any such requirement before then. I am satisfied that the proximity of termination of contract on the grounds of age to other redundancies taking place at that time is an indication that the motivation was to avoid a redundancy payment and therefore the complaint is well founded.

The complaint under the Minimum Notice & Terms of Employment Act, 1973 is also well founded. However, as the complainant was out sick at the time with no return date specified he suffered no actual loss.

under the Redundancy Payments Act is subject to the complainant having been in insurable employment for the relevant period under the Social Welfare Acts."

The complaint in under Section 39 of the Redundancy Payments Act is upheld and I order the respondent to pay the complainant the statutory redundancy payment calculated in accordance with the Act subject to the complainant having been in insurable employment for the relevant period under the Social Welfare Acts.

The complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 is upheld but, as the complainant has suffered no actual loss, I make no order for compensation.

Required to retire on age grounds and entitlement to redundancy