FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : LONGFORD COUNTY COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT AGENCY) - AND - MICHAEL NEILON (REPRESENTED BY WILLIAM MARTIN-SMITH, B.L., INSTRUCTED BY COLM O'COCHLAIN, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Treacy |
1. Appeal of Adjudication Officer Decision No ADJ-00011561.
BACKGROUND:
2. The Employee appealed the Decision of the Adjudication Officerto the Labour Court on 12 February 2019 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 30 July 2019. The following is the Determination of the Court:-
DETERMINATION:
This is an appeal by Mr Michael Neilon against the Decision of an Adjudication Officer under the Unfair Dismissals Acts 1977 – 2015 (“the Acts”) in a claim of unfair dismissal against his former employer, Longford County Council. He was employed as a Lorry Driver with the Respondent in or around 1980.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Michael Neilon will be referred to as “the Complainant” and Longford County Council will be referred to as “the Respondent”.
The Complainant commenced employment with the Respondent in 1980, and worked as an outdoor road worker, a truck driver. He claimed that he was forced to retire when he reached the age of 66 on 5thMay 2017. He contended that he should have been allowed to continue working as he maintained that the customary age for Lorry Drivers in the Council to retire was 72 years of age. Therefore, he claimed that he was unfairly dismissed.
The Respondent’s case was that the Complainant retired in accordance with the Respondent’s local and nationally agreed retirement age policy at the age of 66 years.
The Adjudication Officer held that as the Complainant had reached the normal retirement age, the exclusion provided under Section 2(1)(b) of the Act applied and accordingly she did not have the jurisdiction to adjudicate on the case.
Summary of the Respondent’s case
Mr Keith Irvine, Local Government Management Agency, on behalf of the Respondent, submitted that the Complainant retired in accordance with the normal and agreed retirement age for employees of the Council and that as such the Acts do not apply and the dismissal by way of retirement was not unfair.
Mr Irvine said that the Complainant was classified as an Outdoor Worker with the Council and in this regard his terms and conditions of employment were in accordance with the national agreement in respect of this grade within the Local Authority service. Additionally, the relevant statutory provision with respect to retirement age is provided for in the relevant legislation, namely, the Local Government Superannuation (Consolidation) Revision Scheme 1998, the Public Service (Miscellaneous Provisions) Act 2004 and the Public Service Pensions (Single Scheme & Other Provisions) Act 2012. Mr Irvine also referenced an historical national agreement with Trade Unions whereby outdoor workers had an agreed retirement age of 66 years which is nationally recognised in the Local Authority Sector.
He said that this agreement also addressed the transitional period of one year prior to the employee attaining the age on which they would qualify for the benefits payable under the Department of Employment Affairs and Social Protection Pension Scheme and having regard to the calculation of pension entitlements is by reference to a co-ordinated benefit from the employer and the Department of Employment Affairs and Social Protection Pension Scheme.
Mr Irvine said that up to recent legislative changes in December 2018, retirement was set at age 65 years for all employees except in the case of new entrants for the purposes of the Public Service Superannuation (Miscellaneous Provisions) Act, 2004. The Council, in accordance with a national agreement between the Group of Union representing General Operatives and Related Grades and the Local Government Staff Negotiations Board, as it was then known, dating back to the 1980s, accepted a retirement age for outdoor employees of 66 years and this national agreement was applicable to the Complainant. The Complainant was an outdoor worker and so had a normal retirement age of 66 years.
Mr Irvine said that the Council acknowledged the fact that, during the period from 1998 to the 2006, a small number of employees (nine in total) remained in employment after the accepted and recognised retirement age for outdoor employees. As this caused difficulties for the Council, in October 2006, it sought to re-establish its own and the sectoral policies on retirement age with the requirement for outdoor employees to retire at age 66. Mr Irvine said that the Complainant was formally written to in December 2006 and provided a copy of the retirement policy which stated:-“It is recognised that the Retirement Age for outdoor employees is 66 years”. He said that this correspondence and retirement policy was sent to the Complainant and put him on notice with regard to his retirement at the age of 66 years.
The Council, in 2006, therefore introduced a “Retirement Policy” which was to apply equally to all employees of the Council. The Policy was introduced through a consultative process and was circulated to Employee Representatives’ Bodies by correspondence on the 10thOctober 2006. The Policy was accepted by all Employee Representatives’ Bodies on behalf of the employees concerned and was accordingly circulated to each employee (including the Complainant) by correspondence. The Council responded to a query by the Complainant regarding his retirement age, in which he stated that it was his view that he could work up to 70 years of age. The letter from the Council, dated l6th August 2016 stated:-
- “Retirement age is determined in accordance with the rules of the Superannuation Scheme to which the employee belongs. You are a member of the Local Government Superannuation (Consolidation) Scheme 1998.
There are two categories of membership of this scheme, namely “Non New Entrant”, members who are not pensionable under the terms of the Public Service Miscellaneous Provisions Act 2004 (i.e. those in service before1st April 2004) and “New Entrant”, members who are pensionable under the terms of the Public Service Miscellaneous Provisions Act 2004 (i.e. those employed after 1st April 2004). As your employment with Longford County Council commenced before 1st April 2004, you are classified as a Non- New Entrant. An Officer who is a Non New Entrant has a minimum retirement age of 60 and a compulsory retirement age of 65.
A Non new Entrant, has a minimum retirement age of 60, and whilst the Scheme does not specify a compulsory retirement age, agreed Council policy applies and provides for a compulsory retirement age of 66.
The option to remain in employment beyond 66 years of age is only applicable to New Entrants, i.e. employees who were appointed on or after 1st April 2004. May I confirm therefore, that in accordance with the above there is no option for you to remain in employment beyond your 66th birthday.”
Mr Irvine said that the Council would accept that prior to 2006 a number of employees had been permitted to remain on past the established retirement age of 66 years, however, since the re-establishment of a retirement policy in the Council in 2006 and with the agreement of employee unions, the retirement policy has been strictly adhered to. He said that from the period 2009 to 2018 a total of 85 employees had retired from the Council. Of these employees, all 85 of them retired at 66 years or below and none were permitted to remain on past 66 years of age. The only exception to this is with regard to the one “new entrant” previously referenced.
Mr Irvine cited a number of authorities in support of his contention. He referred toMolloy v Connacht Gold[2011] where the complainant in that case did not have a written contract of employment and claimed no retirement age had ever been discussed with her. It was held that she did not have a claim since the retirement age was 65 as stated in her pension scheme which she joined in 1986 where the booklets referred to a retirement age of 65. Similarly, inForan v Candella Ltd (Actons Hotel, Kinsale)[2011] the complainant’s employment came to an end upon reaching the age of 65. The complainant in that case did not have a written contract of employment but her pension booklets referred to a retirement age of 65 years. Evidence was presented which showed the normal practice of retirement at 65 and a number of letters referred to this age. It was held that this complainant did not have a case.
Additionally, in a High Court Judicial Review 2009 1104 JR AoifeMcCarthy v Health Service Executive, Mr. Justice Hedigan decided that the complainant in that case would have had a “broad awareness of the retirement age” and “may be deemed as “on notice” that there was an applicable retirement age by virtue of the superannuation scheme”.
With reference to a meeting which took place on 26thApril 2006 in Park House Hotel in Edgeworthstown, that the Complainant sought to rely on, Mr Irvine was of the view that what was being referenced at that meeting by Mr Thomas McDonald, Finance Officer with the Respondent, was the Public Service Superannuation (Miscellaneous Provisions) Act, 2004. It was a new Act and provided that outdoor workers could work up to age 70 (or above), which had not been the case previously.
Summary of the Complainant’s Case
Mr William Martin-Smith, B.L., instructed by Colm O’Cochlain, Solicitors, on behalf of the Complainant, contended that at no stage during the course of the Complainant’s employment was there an express or implied term in a contract of employment nor was there a custom or practice in the workplace to the effect that he was bound to retire at 66 years of age. On the contrary, he submitted that the custom and practice for outdoor road workers was to retire at 72 years of age (named colleagues were given as examples) and the Complainant had a legitimate expectation that he too would be entitled to work until 72 years of age. He disputed the contention that statutory enactments or collective agreements amended his terms and conditions of employment impacting on his retirement age, since commencing his employment in October 1980. Therefore, Counsel contended that the enforced retirement of the Complainant on the grounds of his having reached the age of 66 amounted to an unfair dismissal pursuant to Section 6(2)(ee) of the Acts.
Counsel said that, despite repeated request by the Complainant (including making a data access request), the Respondent failed to provide him with a copy of his contract of employment.
In support of his contention, Counsel cited the decision of Mr Justice Hedigan in McCarthy v HSE [2010] IEHC 75 wherein the Court accepted the argument that in order for a term regarding retirement to be implied into a contract by custom and practice it must be:-
- “so notorious, well known and acquiesced in that in the absence of agreement in writing it is to be taken as one of the terms of the contract between the parties....lt is necessary in order to establish a custom of the kind claimed that it be shown that it was so generally known that anyone concerned should have known of it or easily become aware of it.”
He further relied upon the reasoning adopted by the E.A.T inDelaney v Electrical Contractors Safety and Standards Association LimitedUD1322/2003 where the Tribunal found that, in determining the normal retirement age, it must look to what was the reasonable expectation or understanding of the employee holding the position at the relevant time.
Counsel said that the Complainant was given a verbal assurance from the Respondent’s Finance Officer, Mr Thomas McDonald, on 26thApril 2006 at a group meeting in the Park House Hotel in Edgeworthstown, that the Complainant and all colleagues present, could remain in employment up to age 70 and that only office workers in the Council would have to retire at the compulsory age of 65. The Complainant accepted that this assurance amounted to a change to the previous custom and practice in that it reduced the retirement age from 72 to 70 and this change he accepted without complaint at the time.
Counsel refereed to a letter dated 12th July 2016, which the Complainant received from the Respondent, stating that its Retirement Policy had been recently updated. The purported updated Retirement Policy stated that employees had to retire as per their contract of employment. Mr Martin-Smith said that in so far as the Complainant was concerned there was no compulsory retirement age in his contract of employment so there was no change to the terms of the Complainant’s employment following this ‘update’ of its Retirement Policy by the Respondent.
The Complainant wrote a letter to the Respondent on 7th August 2016 stating his wish to remain in employment and noting how the Respondent’s Retirement Policy states that retirement age is dependent on the employee’s contract of employment. The Complainant stated that he had not been furnished with a copy of his employment contract following a data access request made in July 2016 following receipt of their letter of 12th July 2016. He also reiterated the verbal assurance provided to him and to colleagues by Mr McDonald. The Respondent responded by letter dated 16th August 2016 stated that:-“at the meeting referred to on 26thApril 2006 the option to remain in employment beyond 66 years of age is only applicable to New Entrants, i.e. employees who were appointed on or after 1 April 2004”...and that... “retirement is determined in accordance with the rules of the Superannuation Scheme to which the employee belongs. You are a member of the Local Government Superannuation (Consolidation) Scheme 1998... whilst the Scheme does not specify a compulsory retirement age, agreed Council policy applies and provides for a compulsory retirement age of 66”.
Counsel referred to the High Court case of an appeal from the EAT inDonegal County Council -v- Porter & Ors23/03/1993 Unreported where Flood J held that firemen employed by Donegal County Council were entitled to continue in employment until the age of 60 notwithstanding a Department of Environment directive reducing the retirement age to 55. Flood J held that nothing had occurred since the employment commenced which reduced the retirement age by consent and that implementation of the directive amounted to an attempt to unilaterally alter the terms of employment. This decision was followed (and the unreported decision of Flood J quoted in part) in numerous subsequent cases including inMcIntyre v Leitrim County Council, [2007] 7 JIEC 1702.
Summary of the Evidence of the Complainant
The Complainant told the Court that he commenced work in October 1980 as a Lorry Driver. He recalled signing a contract in the Council offices in Church Street, Longford Town but he does not have a copy. More recently he made a request under the Freedom of Information Act for a copy of his contract of employment. The Respondent informed him it could not locate a copy. He said that he could not remember if the contract contained a reference to retirement age. However, he said it was traditional for all outdoor employees to work until at least 70 years of age as long as they were fit. He said that he had an expectation that he could work until he was at least 70 years old.
The Complainant told the Court about a meeting in the Park House Hotel which was attended by, the Respondent's Finance Officer, Mr McDonald on 26thApril 2006. The meeting was a health and safety meeting, however, Mr McDonald said he was happy to answer questions on pensions. A number of workers asked about continuing to work beyond the age of 66 and asked when they would have to retire. Mr Mc Donald said they could work until the age of 70. When questioned by his Counsel if Mr McDonald was referring to workers covered by the 2004 Act, the witness said "no" and that he said it about all outdoor workers. In response to questions about distinguishing between pre- and post-2004 staff, the Complainant said that Mr McDonald never mentioned the 2004 Act and that he never mentioned any legislation.
The witness said that as a result of this meeting, he was full sure that he could stay on until the age of 70. He said that he was not aware that anything had changed until his colleague Mr Mel Kiernan was forced to retire at age 67. He referred to another named colleague who was aged 70 when he was made to retire.
The Complainant said there was no retirement planning course and that no one talked to him about retirement planning. When asked if he had any input into the Retirement Policy of the Respondent, he said "no". He said he was not aware of the difference between “new entrants" and "non-new entrants”.
Under cross-examination by Mr Irvine, he confirmed that he was a SIPTU Shop Steward from about 2012/3 until his retirement. In this role he attended monthly meetings in the yard. He said he had no involvement with staff pensions, but he was aware that some staff were retiring at 66. In response to questions from the Court, he said he intended to stay until age 70 if he had good health. He said that he had actually started working in the 1960s for the Council where he worked for four years and was in the old pension scheme. He said that scheme changed in 1977 with the introduction of the widows’ and orphans’ benefit. When he re-joined in 1980, he had to pay the widows’ and orphans’ contributions in order to allow his previous service to be reckonable.
The witness said that he was unaware of the rules of the pension scheme after 1980 and understood that he could work on till his early 70s, as others were doing. He named another worker that retired at age 68 in 2001 to look after his wife. He said this man was told he could stay on if he wished.
He told the Court he had no recollection of receiving a letter from Ms Nora O’ Farrell, Senior Executive Officer, in December 2006 with reference to the Respondent’s Retirement Policy. Details of the Policy were attached to the letter. He also said he had no recollection of receiving correspondence in July 2016 with an updated Retirement Policy. He said that he keeps all his letters in a file and these documents were not there.
The Complainant told the Court that he applied for a number of jobs after his retirement. He has a bus driver’s licence and got a few runs with a coach company in 2017. He was contracted to work one night a week for two months with a bakery but it didn’t suit as there was a lot of waiting around, problems and delays with his pay and very heavy trollies to load and unload and he had trouble with his hip, so he had to give it up. He got three runs as a lorry driver with a scaffolding company. He named six other companies that he contacted looking for work. He was offered a job with a garage in Mullingar driving car transporter lorries but the offer was withdrawn when the garage could not get him insurance at commercial rates because of his age. In response to Mr Irvine he said he did not ask the Council for a reference.
Summary of the Evidence of Mr Mel Kiernan
Mr Mel Kiernan, an ex-employee of the Respondent, had been an outdoor employee with the Council. He was called by the Complainant to give evidence on his behalf. The witness said that he commenced working with the Respondent in 1955 when he was 16. He left a year later and returned in 1973 to work again with the Respondent.
Mr Kiernan attended the meeting in the Park House Hotel on 26thApril 2006. He said the meeting was about health and safety issues, pensions and retirement. Mr McDonald, who was a Finance Officer with the Respondent, spoke about retirement and he was asked about retirement ages for outdoor staff. He said that Mr Mc Donald told employees that he recommended that outdoor staff who did not have full service should continue working. The witness said that he was age 66 at the time therefore this was music to his ears. He said he expected to work until he was in his 70s. The witness said that he understood that whether or not the outdoor staff member had full service they could work on until their 70s.
He told the Court that he had no recollection of whether or not Mr Mc Donald made reference to pre-and post-2004 staff.
Under cross-examination the witness was asked about a case he took under the Employment Equality Acts claiming that he had been discriminated on the basis of his age when he was required to retire at age 67. In his submission to the Equality Authority he accepted that he said that the general retirement age was 66 years of age, however, he said that the submission also said that in some cases outdoor staff worker into their 70s and up to 73.
The Law Applicable
Section 2 (1) (b) of the Acts provides:-
This Act shall not apply in relation to any of the following persons:-
- (b) “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...”
The Complainant has submitted that without an express or implied statement in his contract of employment specifying a retirement age and the fact of the Respondent having retained workers in similar circumstances to him in employment beyond his 66th birthday demonstrated that the normal retiring age for outdoor workers at the material time was not 66 years of age.
He submitted that the failure to retain him in employment beyond his 66th birthday constituted an unfair dismissal within the meaning of the Acts.
The Respondent submitted that the normal retirement age for outdoor workers in Local Government employed pre-2004 was 66. The Respondent submitted that this was a matter of fact having regard to the legislative enactments mentioned in its submissions.
The Court must examine whether or not the normal retiring age for Local Government outdoor workers was 66 at the date of termination of the Complainant’s employment.
Having considered the submissions made by both parties, the documentation supplied and the evidence given, the Court is of the view that there is no compulsory age of retirement specified in either the legislation relied upon by the Respondent, in any contract of employment (which was not available) or in any collective agreement having application to the Complainant. On the other hand, it would appear that there was a custom and practice of pre-2004 outdoor workers having the option to retire beyond their 66th birthday and up to their 72nd birthday.
When the Complainant questioned his right to work beyond 66 he was informed,inter alia, that while the Scheme does not specify a compulsory retirement age, agreed Council policy applies and provides for a compulsory retirement age of 66. The option to remain in employment beyond 66 years of age is only applicable to new entrants.However, the Court was supplied with details of between 9 and 13 outdoor employees who retired over the age of 66 between 2000 and 2008.
The Court notes a letter sent to all of the Respondent’s employees dated 12thJuly 2016, headed“Retirement Policy, 2016”which included a copy of the“Retirement Policy & Procedures”for their information. This Policy has a clause entitled“Retirement Age”, it reads as follows:-
- “Retirement age for employees is dependent on his/her relevant contract of employment, with due consideration being given to the rules of the Superannuation Scheme to which he/she belongs.”
While the Court has been furnished with a copy of a“Superannuation Revision Scheme, 1977”which may have been applicable to the Complainant, however, it does not specify a retirement age. Coupled with this fact, the Court notes that from the evidence given, it is significant that others in similar circumstances continued in employment beyond age 66. Furthermore, the Court has been supplied with two sample contracts, one for a Caretaker and another for a Road Overseer whose holders both commenced employment prior to 2004, which identify two different retirement ages as“the qualifying age for the Old Age Pension”and“retire on reaching the age of 65 years”,respectively. However, while both are applicable to “Outdoor Workers”, similar to the Complainant, the evidence shows that employees in similar circumstances to the Complainant were not required to retire at those ages and some continued to be in the employment of the Respondent even beyond 70 years of age.
It is significant that the Court has not been furnished with a contract of employment specifying the Complainant’s mandatory retirement age nor has it been supplied with a collective agreement or a copy of a pension scheme to substantiate the Respondent’s position that 66 is the normal retirement age for staff in the category the Complainant was in. These facts together with the information supplied to the Complainant at the meeting on 26thApril 2006 leads the Court to the conclusion that the Respondent has not been able to establish that a normal retirement age existed within the organisation which the Complainant was aware or ought to have been aware of. The Court accepts that, with these facts and in the absence of a clear retirement policy applicable to the Complainant, it was not unreasonable for him to have an expectation that he would continue in employment beyond his 66th birthday.
In consequence of the Court's conclusions on the above matters the Court finds that the provisions set down at Section 2(1) of the Acts do not apply to the circumstances of the termination of the Complainant’s employment.
Redress
Section 7 of the Act states
- 7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:
(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or
(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
(c)- (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17of this Act) as is just and equitable having regard to all the circumstances, or
- (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.
- (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17of this Act) as is just and equitable having regard to all the circumstances, or
Having considered the matter, the Court notes that since his dismissal the Complainant has been available for work and had made serious efforts to secure employment. In circumstances where the Court has found that his dismissal was unfair where he should have been permitted to continue in employment beyond his 66thbirthday, it determines that he should be re-instated to his former position under his previous terms and conditions of employment until he reaches the age of 70 years.
Determination
For the reasons outlined above the Court determines that the Complainant was unfairly dismissed and should be reinstated as defined by Section 7(1)(a) of the Acts until he reaches the age of 70 years. Therefore, the appeal succeeds and the Decision of the Adjudication Officer is overturned. The Court hereby orders the Respondent to comply with the Court’s Determination.
Signed on behalf of the Labour Court
Caroline Jenkinson
FMc______________________
2nd September 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Fiona McCarthy, Court Secretary.