Complainant

Respondent

Anonymised Parties

A Driver

A Logistics Company

Representatives

Thomas A. Walsh & Co. Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00021120-001

03/08/2018

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

CA-00021120-002

03/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00021120-003

03/08/2018

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

CA-00021120-004

03/08/2018

The complainant commenced employment as a driver with the respondent in 1979. We went on sick leave in June 2016 and remains on sick leave. He was paid €530.79 weekly.

Similar complaints were lodged and scheduled for hearing as ADJ-00016238. These were withdrawn at the hearing.

The complaint under the Employment Equality Act is a parallel complaint to that under the Employment Equality Act and the complainant was advised by letter of October 2nd, 2018 that it was deemed to be withdrawn

Accordingly, that aspect of the matter may proceed only under the Unfair Dismissals Act as there is no longer jurisdiction to hear it under the equality legislation.

In 2010 the respondent updated its Handbook and issued this to all employees. In January, 2011 the complainant signed a document confirming that he had received it and evidence of his signature was submitted. This contained a provision that all employees of the respondent would retire on reaching sixty-five years of age.

On February 6th, 2018 the respondent wrote to the complainant confirming to him that he would retire on reaching his sixty-fifth birthday on March 14th, 2018.

It is accepted that a number of former employees continued to be engaged by the company after reaching retirement age, but this was a re-engagement on the basis of a contract for services and their previous contract of employment was terminated on reaching retirement age. Specific examples were given of this.

In relation to the statutory statement of his terms of employment, the respondent says that he was given a statement in compliance with the Act. A copy of the statement was submitted. The onus is on an employee who was in employment prior to the enactment of the legislation in 1994 to seek a copy of the terms of employment.

Finally, as the complainant was on notice that his employment would terminate on reaching the retirement age and was advised of this in the latter of February 6th there has been no breach of the Act.

The complainant has not been able to return to work since his accident in June 2016 and remains unfit for work due to a wrist and shoulder injury.

On being notified of the proposed retirement he sought copies of his contract and other relevant policies, but the respondent failed to provide these to his legal representatives.

It is the complainant’s understanding that a number of his co-workers remained in employment after the retirement age.

Around the time when the respondent says the contract was issued there were continuing industrial relations problems.

In addition, the statement of the Terms and Conditions of Employment does not bear the complainant’s signature as evidence of it having been received.

A retirement, as opposed to an age-related dismissal, occurs where the employment comes to an end where this is provided for in the worker’s contract of employment.

In this case, the respondent says that this is provided for in its Handbook at Section 11.12 where it states;

‘It is the policy of [name of respondent] that all employees will retire on reaching their 65th birthday’.

Evidence was given of the complainant having signed a document on January 11th, 2011 confirming receipt of the Handbook and a number of other documents, including a contract of employment.

As noted above, the complainant seemed uncertain about the interaction of this with other, industrial relations issues which were not relevant to the complaint and was understandably somewhat hazy about these events over seven years ago.

I find however that he did receive these documents containing the stated retirement age and was therefore on notice of this since January 2011.

Accordingly, the termination of the complainant’s employment happened as a result only of the activation of the retirement clause in his contract.

The respondent has submitted that, in respect of an employee who was in employment prior to the enactment of the Terms of Employment Act, 1994, the onus falls on the employee to request the statement and that no breach arises where this has not been done.

This is at Section 6.1 of that Act and this is the operative provision.

The respondent also says that, in any event it complied with the requirement to do so although the document submitted in evidence does not bear the signature of the complainant.

Nonetheless, in the absence of a request on foot of Section 6.1 of the Act no breach arises.

Finally, and again as the complainant was on notice of the retirement since at least February 6th of the year in which he reached his sixty-fifth birthday (on March 8th) I find there is no breach of the Minimum Notice and Terms of Employment Act.

For the reasons set out above I do not uphold complaints CA-00021120-001, 002, and 004 and they are dismissed. Complaint CA-00021120-003 was deemed to be withdrawn and therefore not within jurisdiction.

Retirement, age, dismissal