Complainant

Respondent

Anonymised Parties

Assistant Transport Manager

Bakery

Representatives

Breffni Gordon BL

instructed by GarrettFortuneGarrett J. Fortune & Co.

Niamh Daly  IBEC

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-00020808-001

26/07/2018

The Complainant is an Assistant Transport Manager.  The Respondent is a Bakery.

The fact that the Respondent did not its HR file available for the hearing was most unsatisfactory and led to the Complainant experiencing avoidable angst at the hearing.  That said, the Complainant decided not to accept an offer of adjourning the case for another day and preferred to complete the hearing on the day listed.

The Complainant began working for the Respondent on the 9^th of February 1966 and for thirty years worked delivering bread throughout the surrounding counties. 

As the Respondent expanded, the Complainant was asked to help in the transport office and took on the role of Assistant Transport Manager.  His role involved the upkeep and testing of vans.  He also transported vans around the country to swap for existing vans due for major repairs or replacement.  He also undertook bread runs during the night if a depot was left short of bread. 

On the 15^th of November 2017 the Complainant attended for work as usual.  He was advised by the transport manager that he couldn’t drive company vans anymore because he was over 70 years of age and there was no insurance.  The Complainant was 71 at the time.

The Complainant further explained how in February 2018 the General Manager told him that owing to a downturn in the bakery trade that is employment was to end and he was being given a month’s notice.  The Complainant couldn’t believe what was being said to him.  He had previously been told that there was a job in the bakery “as long as he wanted it”. 

He confirmed that his hours of work had been reduced prior to this notification.  He normally had worked a five-day week.  This was then reduced to a four-day week and at the time of the notification of the termination of his employment, he was on a three-day week. 

Under cross examination the Complainant accepted that he was “getting on in age”.  He explained that he felt that the reason his hours were being reduced was that the Respondent “wanted to be nice to him”.  He himself felt he was well able to undertake his role and went along with the reduction in hours.  He said he felt they were “giving him a break”. 

The Complainant’s case was that retirement was never mentioned to him at any stage. 

At the meeting in February 2018 with the General Manager, when he was told he was getting a month’s notice of the termination of his employment, his response was “fair enough”.  He went home.  The meeting only lasted a few minutes. 

On the date of the termination of his employment, he met one of the company directors.  He told him that his employment was ending.  The company director said he would “look into it”, but the Complainant heard nothing from him since. 

The Complainant’s case is that he was very disappointed with the way he was treated by the Respondent and he felt that the rug was pulled from under him.  He didn’t believe that there is a downturn in the bakery trade.

He gave evidence that he had no contract of employment.  As regards the company handbook his evidence was that there was a handbook “flying around” a couple of times. 

He denied that there was a retirement plan put in place to cater for him.  He reconfirmed that retirement was never mentioned to him.  He had no plans for retirement himself.  He wanted to keep working. 

He agreed that he had three meetings with the general manager.  The HR manager was at one of these meetings and a HR specialist was at the other. 

The Complainant’s evidence was that “he never questioned anything and just kept going”. 

He confirmed that at one stage he raised the question of redundancy and the HR manager said, “there was no redundancy”.  The Complainant’s case is that he thought he could stay in employment with the Respondent until he wanted to retire.  He wanted to instigate when he “had enough” and he would go on his own terms. 

He gave evidence that generally he felt that people retired in their seventies with the Respondent. 

He confirmed that once his employment had been terminated, he was not prepared to go back to work for the Respondent.  He denied that he had instructed is solicitors to write to the Respondent on the 27^th March 2018 indicating that he was ready and willing to return to the workplace. 

He confirmed he received the State Old Age Pension from the age of 66 years of age.

Counsel for the Complainant examined the retirement policy in the Respondent’s handbook in detail.  He submitted that there was serious breach of procedures in relation to the period leading up to the termination of the Complainant’s employment.  He submitted that there was no evidence that the Complainant had received a copy of the retirement policy or was aware of this.  Minutes of meeting were not made available to the Complainant prior to the hearing of the case. 

The Complainant only received one piece of correspondence from the Respondent which was dated nine days after the termination of his employment namely a letter dated the 13^th of March 2018.  It stated that the Respondent was extremely grateful to the Complainant for his loyal service to the business and to the commitment he has always demonstrated.  It went on to state that as the Complainant was aware it’s generally company policy that all staff members retire at the age of sixty-five, however an exception was made for him considering his service and dedication to the business.  It confirmed that the retirement process had phased him into retirement going from five days a week to four days a week to three days a week.  The letter stated that this was by agreement with the Complainant.   

Counsel for the Complainant pointed out that this was the first occasion which it was put in writing to the Complainant that his employment ended on the grounds of retirement and set out the reason for the reduction in his hours. 

Counsel for the Complainant also pointed out that there were no internal emails that would justify the position being put forward by the Respondent about to the reason for the reduction of hours. 

A data access request was submitted by the Complainant; however, this was not complied with by the Respondent. 

In Summary, the Complainants case was that he was forced to retire on the 2^nd March 2018.

Since his retirement, he didn’t actively seek a replacement job.

The Respondent’s case was that the Complainant’s employment was terminated by reason of retirement by agreement on the 2^nd of March 2018. 

Its case was that no dismissal, unfair or otherwise took place.  Its confirmed that the Complainant’s original contractual hours were thirty-nine (39) per week and this reduced to twenty-seven (27) hours per week at the ending of the employment. 

It set out that in November 2016, the Respondent began discussions with the Complainant regarding his plans for retirement.  At that stage he was seventy (70) years of age. 

It submitted that it was generally company policy for staff to retire at sixty-five (65) however an exception was made for the Complainant considering his service and dedication to the business.

Its case was that the Group Head of HR and the General Manager met with the Complainant approximately three to four times from November 2016 until his retirement in March 2018.  The purpose of the meetings was to discuss the Complainant’s retirement and various other options available to him in line with the Respondent’s Retirement policy. 

At the meetings it was agreed that the Complainant’s hours would be gradually reduced from October 2017 in line with the optional phased retirement procedure contained in the Respondent’s Retirement policy.  The reduction in hours went from five days in 2016 to four days in November 2017 and three days in January 2018.  The Respondent accommodated the Complainant’s request to work the days which suited him.

Its case was that the Complainant was paid his full notice entitlement and any outstanding monies made to him in the final pay roll.

It confirmed that the Complainant was one of two staff retiring on that date.  The other employee worked in the Maintenance department and he was seventy (70) years of age.

On the 27^th of March 2018 the Respondent received a letter from the Complainant’s solicitors setting out that the Complainant “was compelled to leave his employment” and stated that “our Client instructs us that he is ready, willing and able to continue working as he had been.  Please confirm that our client will be in a position to return to work to continue his loyal years of service with the company”. 

This letter was the first indication to the Respondent of the Complainant’s dissatisfaction with leaving his employment.

The Respondent sent a letter to the Complainant directly following a phone call which took place between the Complainant and the HR manager on the 13^th of April 2018. 

The Complainant called to the HR manager on the 20^th of April 2018 to advise that he would not be returning to the workplace.  A further letter was sent to the Complainant on the 26^th of April 2018 referencing the phone call of the previous week and asking the Complainant to confirm this in writing.  The Respondent never received a reply to this letter apart from correspondence from the Complainant’s solicitor asking that they desist from communicating with the Complainant directly.

The Respondent’s position was that no unfair dismissal took place.  The contractual relationship ended by agreement for the reason of retirement.  There was no indication of any dissatisfaction with the consultation process that took place leading to the ending of the employment.  If there was any dissatisfaction, this would have been addressed by the Respondent.  As soon as the Respondent became aware of the Complainant’s dissatisfaction through correspondence from his Solicitors, it made various efforts to facilitate his return to the workplace.

The Retirement Policy was applied consistently for all staff however exceptions were made on a case by case basis. The Complainant worked long passed retirement age set out in the retirement policy.

A phased retirement procedure was put in place to reduce the Complainant’s hours and facilitate a gradual change before the lead up to full retirement.  At no stage was any issue or compliant made in relation to the reduction in hours or pay made by the Complainant.  No grievance was brought under the internal grievance procedure.

This case was brought under the Unfair Dismissals Act.  The parties were reminded of this at the hearing of the case.  Several submissions made by the Complainant did not fall under the remit of an Unfair Dismissals case.  Any submissions which were more appropriate to an Employment Equality claim must be disregarded as the legislation that I am tasked to decide upon is that of the Unfair Dismissals legislation alone.

Section 2(1)(b) of the Unfair Dismissal Act 1977, as amended by Unfair Dismissals (Amendment) Act 1993 provides that the Act will not apply to:

“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 …”

I am required to determine the normal retiring age of the Complainant at the date of termination of his employment.  

The Complainant’s contract of employment was unavailable to me and it is unlikely that he ever had one.  In those circumstances, I am required to ascertain the Complainant’s normal retirement age, by looking at ancillary documents such as the Respondent’s retirement policy, the various meetings between the parties, the reduction in hours of the Complainant’s working week and any correspondence between the parties.

The Complainant submitted that the age of 65 was not the normal retiring age for employees of the Respondent and stated that staff worked into their 70’s. 

I have reviewed the case of Molloy v Connaught Gold Co-Operative Society Limited (UD891/2009). In that case, the respondent's normal retirement age was 65 which was provided for in the form of custom and practice within the group, agreement with the trade unions (not in writing) and the terms and conditions of a widely used pension scheme. Although there were some limited exceptions, the respondent in that case provided that the bulk of employees left at the normal retirement age.  In that case the complainant disputed her compulsory retirement at age 65 on the basis that she was never given any written documentation stipulating the compulsory retiring age of 65, and as such, she submitted that there was no compulsory retirement age existing in the organisation. The EAT in its determination considered s.2(1)(b) of the Unfair Dismissals Acts 1977 to 2007 (the “Unfair Dismissals Acts”). It held that despite the position in Kiernan v Iarnrod Eireann (UD974/94) the Unfair Dismissals Acts do not require normal retirement age to be shown by way of a written contract or other written notification.  The evidence must be examined to see whether “normal” retirement age had been established. Having done so in that case, the EAT was satisfied that normal retirement age had been established and dismissed the claim.

In the case of An Employee v An Employer (UD2200/2009) the Respondent had previously allowed employees to work beyond the age of 65; however, in July 2008, due to the downturn in the economy, the company policy on retirement was changed, in agreement with Union representatives. When the employee in that case commenced employment in 2000 he signed and accepted his terms and conditions of employment, in which he agreed to be bound and accept the terms of any agreements and procedures negotiated between SIPTU and the company on his behalf. He was also furnished with a staff handbook which specified a retirement age of 65. The EAT held that the respondent was entitled to terminate the claimant's employment as he had reached retirement age as per his written employment agreement. They held that the fact that the employer had allowed employees in the past to work beyond the age of 65 years does not prevent the employer from enforcing what is clearly stated in the employment agreement. In those circumstances, the EAT determined that the claimant's claim under the Unfair Dismissals Acts and the Redundancy Payments Acts 1967 to 2007 failed.

As is evidenced above, there was a considerable amount of evidence presented by both parties in relation to this case. In relation to that evidence, I found the rebuttal evidence was frequently more compelling than the direct evidence presented by the Complainant.  The evidence of the HR Manager and the General Manager was coherent and credible.

Therefore I accept the submissions made by the Respondent’s representatives in relation to the addressing the Complainants retirement, the meetings held with the Complainant (noting that the Complainant did agree that there were three separate meetings), the Respondent’s retirement policy, the reduction in hours of the Complainant’s work leading up to his retirement, fact of retirement of a fellow co-worker on the same day and the one piece of correspondence between the parties.  

I accept that the Complainant was notified verbally on several occasions as to his pending retirement having reached the normal retirement age of 65 in the organisation. 

As the Complainant had reached normal retiring age, the exclusion of Section 2(1)(b) of the Unfair Dismissals Act 1977 applies and I have no jurisdiction to adjudicate on this case.

Normal retiring age.  Unfair Dismissal.  Exclusion Section 2(1)(b) of the Unfair Dismissals Act 1977