Complainant

Respondent

Anonymised Parties

A Worker

Statutory Educational Service Provider

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-00013454-001

31/08/2017

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

CA-00013454-002

31/08/2017

The claimant was employed as a Caretaker at one of the respondent’s schools from the 19th October 1992 to the 30th August 2017.The claimant submitted the respondent was in breach of the Terms of Employment (Information) Act 1994 for failing to furnish him with written terms and conditions of employment .He further submitted that he was unfairly dismissed by the respondent on the 31st August 2017 when he was compelled to retire on reaching the age of 66 years.

The following submission was received from the claimant’s representative on the 7th Nov. 2018:

Facts

The claimant is now aged 67 years. His Date of Birth is the 18th March 1951. He is a single man with a long-term partner. He does not have any children.

In 1992 the Complainant, applied for a job as the Caretaker inX Vocational School (formerly the Technical School and now known as X College). He was interviewed for the job. He got the job and started work on the 19th October 1992.

The Complainant had no recollection of receiving a Contract of Employment in 1992.

The Respondent does not have any evidence of a Contract of Employment being issued to the Complainant in 1992. On or about the 28th March 2010 the Respondent sent the Complainant a Contract of Employment. The Complainant had no recollection of receiving that Contract of Employment. The Respondent also sent the Complainant a Job Description for Caretaking Staff. The Complainant was unhappy with the Contract of Employment and Job Description and on the 13th April 2010 he wrote to Mr.MR (The S.I.P.T.U. Representative) expressing his concerns about the said Contract of Employment and the Job Description.

The Complainant also wrote to Mr.PM, his Shop Stewart complaining about the job description that was given to him.

Both parties now accept that the Complainant did not complete the Contract of Employment which issued to him on the 28th March 2010.

Ms. F.F, Head of Human Resources with the respondent wrote to the Complainant on the 18th March 2016, in response to his letter in which he had advised them that he wished to continue as Caretaker for the next academic year. He had reached the age of 65 years at that time. Ms F.F. asked the Complainant to undergo a Medical Examination with Dr. F.G. at the Out Patient Department, Kingsbridge Private Hospital, Sligo.

The Complainant attended that Medical Examination and the school kept him on for another year.

By letter dated the 4th July, 2016 Ms.FF wrote to the Complainant confirming that he was medically fit to continue in his post for the 2016/2017 academic year. She indicated that the respondent was in a position to continue this employment until the 31st August 2017.

In that letter, she indicated that if the Complainant wished to extend his employment beyond that date then he was advised to contact the respondent with his request before the 31st May 2017. She added that the latest date for his employment with the respondent would be the 31st August, following his 66th birthday.

On the 6th April 2017 the Complainant’s Solicitor wrote to Ms. F.F. informing her that the Complainant wished to extend his employment with the respondent beyond the 31st August 2017.

A body of correspondence took place between the Complainant’s Solicitor and the respondent which culminated in the dismissal/termination of the Complainant’s employment with the Respondent on the 30th August 2017.

The Complainant’s job was advertised in the local Newspapers. The Complainant applied for his old job on a Without Prejudice Basis. He submitted his Application for the job on the 26th July 2017.

The Complainant was interviewed for his old job on Tuesday the 22nd August 2017. By letter dated the 24th August 2017, Ms. E.D., the new head of Human Resources, wrote to the Complainant advising him that he had been placed on a Panel for Fixed Term/Specified Purpose for Caretakers, and she indicated that he may be contacted in the event of a suitable vacancy arising effective from the 2017/2018 session.

A man called Mr.DD was given the Complainant’s old job.

The Complainant subsequently made two complaints against the Respondent to the Workplace Relations Commission namely:-

1. A complaint alleging Unfair Dismissal under the Unfair Dismissals Acts as amended;

2. A complaint under the Terms of Employment Information Act, 1994, as amended, alleging that he did not receive a Written Contract of Employment.

Subsequently, the Complainant made a complaint under the Redundancy Payments Acts.

The Respondent contests the Complainant’s claims in their entirety and deny any allegations of fact or contention of law made by the Complainant save to the extent that same is consistent with the matters set out in their Submission on behalf of the Respondent as if traversed seriatim.

THE ISSUES

1. The first issue to be decided is whether the Complainant ever received a Contract of Employment. It would appear that no Contract of Employment was issued to the Complainant when he was first employed by the Respondent in 1992. It is accepted that the Complainant was employed prior to the commencement of the Terms of Employment Information Act, 1994 and that he subsequently received a number of different documents which have failed to satisfy the requirement laid down in the legislation for the provision of Written Terms of Employment.

It is now accepted by the parties that on the 28th March 2010 the respondent sent him a Contract of Employment. It is clear that the Complainant was unhappy with the terms of that Contract of Employment and the Job Description which accompanied that Contract of Employment. He did not complete the Contract of Employment. He wrote to his Union Representative and to his Shop Stewart about the terms and conditions contained in both documents.

There is therefore no completed Written Contract between the parties.

Indeed, by failing to return the completed Contract within ten working days from the date of receipt of the letter of the 29th March 2010 his appointment as Caretaker was not confirmed as he had failed to return that document and had also failed to comply with the requirements outlined to the satisfaction of the H.R. Division of the Respondent.

Counsel for the Respondent has argued, during the course of these Proceedings that the Complainant remained in the employment of the Respondent and continued to accept payment from them. He contends that the Complainant was bound by the terms and conditions set out in the Contract of Employment which issued to the Complainant on the 29th March 2010.

It is my submission that this argument is unfounded as a radical change to the terms of employment must be agreed between the parties and not unilaterally imposed by one side or the other and furthermore same must be evidenced in writing.

2. Paragraph 17 of that Contract of Employment governs the position on retirement age. It is unclear, from that document, whether staff employed before the 1st April 2004 have the right to have an extension of their Contracts to a maximum retirement age of 70 years.

It is submitted by the Complainant that this lack of clarity should be construed in favour of the Complainant.

3. It is clear that the Respondent was also of the same view. Ms. F.F., Head of Human Resources with the Respondent clearly expressed that view when she wrote to the Complainant on the 4th July 2016 telling him that if he wished to extend his employment beyond the 31st August, 2017 that he should write to them requesting such an extension before the 31st May, 2017.

During the course of these Proceedings the Respondent and its representatives have tried to make that letter disappear but without success. From the Respondent’s point of view it is, at best, an unexplained mystery. At worst, it is a true Statement of what the Respondent’s position actually was in relation to the Complainant.

4. In addition the Respondent tried to rely on the contents of a Staff Handbook setting out the retirement age of Employees. No evidence was produced to show the complainant received same. Indeed the evidence from the Complainant is that he did not receive a Staff Handbook.

5. The Complainant contends that it is unfair that people who are employed by the Respondent before the 1st April 2004 should be treated less favourably than staff employed after that date. The Complainant further contends that all staff employed both before and after the 1st April 2004 should be treated equally.

6. The Complainant contends that it is clear from the evidence that we have heard from Ms. S.G that Senior Staff, Part-time Caretakers and Cleaners are allowed to apply to remain in their employment up to the age of 70 years.

The Complainant asks why a difference is being made between full time Caretakers and Part-time Caretakers and between Senior Staff and Manual Workers.

The Complainant contends that this Policy and Practice of allowing Employees to apply to remain in their employment up to the age of 70 years should and must apply to all employees regardless of their position. To contend otherwise would be clearly unfair and discriminatory between the various classes of workers employed by the Respondent.

7. The Complainant further contends that he has not been given any rationale for this discrimination or distinction which is being made between the various classes of employees with the Respondent.

8. The Respondent accepted the Complainant’s Application to apply for his own job. They interviewed him for his own job on the 22nd August 2017, before his employment had terminated with the Respondent.

Ms. E.D., the new Head of Human Resources wrote to the Complainant on the 24th August 2017 advising him that he had been placed on a Panel for Fixed Term/Specified Purposes for Caretakers, and she indicated that he may be contacted in the event of a suitable vacancy arising effective from the 2017/2018 session. This is clearly a departure from the stated Policy of the respondent. The Complainant was not informed of any issue arising in relation to his age.

9. The Respondent contends that the Complainant was obliged to retire in accordance with the Education Section Superannuation Scheme 2015.

The Complainant contends that the Statutory Instrument relates to his eligibility to receive a Pension and has nothing whatsoever to do with the terms of his Employment.

10. It is my contention that the doctrine of Legitimate Expectation applies in this case. The Applicant was led to believe that he would be able to work with the respondent until the age of 70 years and beyond. He acted to his detriment in 2008 in buying a house in the village of Fahan, County Donegal and borrowed monies in the expectation that he would continue in his employment up to the age of 70 years and beyond and this his wages would meet his loan repayments up to 2021.

The basis of his expectation is:

A. He was informed by Mr. FQ, a Senior Member of Staff with the respondent approximately ten years ago, that he could stay on in his job “until he dropped”.

B. When he was employed in 1992 he was not given a Contract of Employment nor was he given a retirement age for his Job as Caretaker.

C. The attempt to impose this change in his Terms of Employment was not accepted by him when he refused to sign the Contract of Employment and Job Description which issued to him on the 28th March 2010.

D. The letter from Ms.FF to the Complainant, dated 4th July, 2016, again confirmed his believe and expectation that he could remain on as Caretaker until he reached the age of 70 and that if he wished to extend his employment beyond the 30th August, 2017 that he was advised to contact the respondent with his request before 31st May, 2017.

To this end the Complainant’s Solicitor wrote to Ms. F.F. informing her that the Complainant wished to extend his employment with the respondent beyond the 30th August 2017.

E. The Complaint was permitted to apply for his own job despite the fact that he had reached the age of 66. He was called for Interview and he attended in the expectation that, given his experience, he was the most suitable person for the job. No issue was raised at the interview in relation to his age.

Indeed he was placed on a Panel for Fixed Term/Specified Purpose for Caretakers and it was indicated that he may be contacted in the event of a suitable vacancy arising effective from the 2017/2018 session.

F. The Complainant was issued with 2 new uniforms in the months of February/March, 2017. This heightened his expectation that he was being retained as Caretaker in the school beyond the 31st August, 2017.

G. The fact that other employees, with the respondent, who were known to the Complainant, were retained in their jobs beyond 65/66 led the Complaint to believe that there was no legal bar to him remaining in his job beyond the 31st August, 2017.

If the Complainant was still employed by the respondent then they would, in my submission, be estopped from dismissing him. However, as they proceeded with his dismissal, despite warnings from my office, they cannot now contend that he was fairly dismissed.

11. The Complainant contends that he should have been given a copy of a Contract of Employment or a copy of the Terms and Conditions of his Employment in 1994.

12. In addition, the Complainant contends that he was unfairly dismissed from his employment with the Respondent on the 30th August 2017.

On the final day of the hearing , the claimant’s representative undertook to forward his corrected written submission to the WRC   within a matter of days and did so on the 7th.November 2018.In the submission the matter of legitimate expectation is introduced – as this was not argued or presented prior to the conclusion of the hearing on the 30th.October 2018 , I am   not considering the introduction of new arguments after the conclusion of the oral hearings.

The claimant gave evidence of his initial recruitment as Caretaker at the college and advised that he got a set of keys when he started but was not given a contract. Over his career he worked with 4 different principals. He described working up to 75 hours per week for the first 12-14 years of his employment when he worked during extracurricular hours. He worked to 7.00p.m. on Friday nights and all day on Saturdays when he did repair work. The claimant accepted that he received the 2010 contract of employment with terms and conditions and asserted that he was not happy with the terms contained therein including the requirement that he clean the canteen. He did not sign or return the contract because of his dissatisfaction with the terms. The claimant stated that the Principal expected more work than he could deliver and that was why he didn’t sign the contract. The claimant asserted that he never got a staff handbook. He asserted that a former senior administrator Mr.FQ advised him at a staff function – when he enquired how long can a caretaker work , that “you can work til you drop”. He asserted that when he went for his medical with Medmark in 2016 , the doctor said to him “I will see you next year” and he thought he would be returning for a medical every year until he reached the age of 70.He was aware of a part time cleaner who was 69years old and he understood from the letter of the 4th.July 2016 from the HR manager that he could continue in employment if he wanted to. He received a new uniform in Feb./March 2017 and he thought “Happy Days”. He gave the 4th July letter to his solicitor who wrote to the respondent confirming that he wished to extend his employment beyond the 31st August 2017.He described how his job was advertised – he rang the respondent and they told him he could apply – he did the interview , didn’t get the job but was placed on the panel. He confirmed that nobody said to him in the course of the interview that he was too old. He was aware that Mr.McN was 73/74 years of age - he stated that this gentleman had been asked to stay on by the Adult Education Officer. Mr.McN advised the claimant that he never got a contract and did not mention if he got one in 2010.The claimant gave an account of his personal financial circumstances .

Under cross examination the claimant stated that when he purchased a dilapidated property in 2008, it was in his head that he would remain in employment until he was 70 and he recalled Mr.FQ advising him that he could work until he dropped. The claimant stated that nobody gave him a handbook – he could not remember if the principal gave him one and he thought the handbook was directed at teachers. When questioned about the meetings of caretakers that took place regarding the 2010 contract the claimant stated that all that was talked about was uniforms and morning supervision. It was put to him that he wrote 2 letters – to his shop steward and his union official -complaining about the terms and conditions that were issued with the contracts and that he made no reference to retirement .He replied that he did not sign the contract because of the principal and that retirement was not on his mind at the time and that he was more worried about his workload. Reference was made to his engagement with Personnel regarding the calculation of his pension – and the references to mandatory retirement age. The claimant indicated that he based his assumption on continuing in employment on the basis of the ages of his colleague caretakers and cleaners.

The respondent made the following submission on the 2nd Nov. 2017

1.1 The Respondent is statutory body providing a wide range of educational services in the North West As a body working in the education sphere, however, the Respondent is subject to

the jurisdiction of the Department of Education and Skills (the "Department") and specific

matters, in particular those relating to employee pay, retirement and superannuation, are

governed by rules laid down by the Department, including those prescribed by Statute or

issued under Statute.

1.2The Complainant was an employee of the Respondent, employed as a caretaker in X

College, form. The Respondent is the Patron of X College

.1.3 The Complainant took up employment with the Respondent on 19 October 1992. He was

obliged to retire by the Respondent, his last day of work being 31 August 2O17, being the last

day of the academic year following the Complainant reaching 66 years of age - which he did

on 18 March 2017.

1.4 The Complainant, in the complaint form submitted (the "Complaint") to the Workplace

Relations Commission ("WRC"), has made two complaints against the Respondent:

CA-OOO13454-OO1-- A complaint alleging unfair dismissal under the Unfair

Dismissals Acts as amended (the "UD Acts"); and

CA-OOO13454-OO2 - A complaint under the Terms of Employment Information Act

1994 as amended (the "1994 Act"), alleging that he did not receive a written

contract of employment.

1.5The Respondent contests the Complainant's claims in their entirety, and for the avoidance of doubt, denies any allegation of fact or contention of law made by the Complainant, save to the extent that same is consistent with the matters set out herein on behalf of the respondent, as if traversed seriatim.

1.6 In summary the position of the Respondent is as follows:

1.6.1 The WRC has no jurisdiction to hear the Complaint having regard to the provisions of

Section 2(1)(b) of the UD Acts.

L.6.2 The Complainant cannot succeed by virtue of the provisions of Section 6(4)(d) of the

UD Acts.

1.6.3 Without prejudice to the foregoing, the structure and provisions in relation to

retirement, which are prescribed by or under statute and the fact that there are

matters over which the Respondent has no control or power, constitute substantial

grounds justifying the dismissal.

1.6.4 The Complainant was retained prior to the commencement of the Terms of

Employment Information Act 1994 but received, over the course of his employment, a

number of different documents which satisfy the requirement laid down in the

legislation for provision of written terms of employment.

1.7The Respondent reserves the right to adduce further evidence of fact and/or law by way of oral and/or written submission in future and/or at hearing.

2 Complainant's claim for Unfair Dismissal

Preliminary issue - "normal retirement age" - Unfair Dismissals Act Section 2(1)(b)

2.1 In solicitor's correspondence leading up to the cessation of the Complainant's employment by reason of retirement, it is contended, the Respondent submits incorrectly, that there was no legal obligation for the Complainant to retire. The Respondent's objection to that contention is set out in more detail below.

2.2 What is not and has not been contested, however, is that the Complainant had reached the

"normal retirement age" in his employment for employees of his grade and status. That

being so, the WRC has no jurisdiction to hear any claim for unfair dismissal taken by the

Complainant. This is because of section 2 the Unfair Dismissals Act t977 as amended, which provides as follows:

"2.- (1) F8 [ Except in so far as any provision of this Act otherwise provides This Act shall

not apply in relation to anv of the following persons:

( a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year's continuous service with the employer who dismissed him F9 [ ... ],

( 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 F10 [ or who on that date had not attained the age of 16 years J, (emphasis

added)"1

2.3It is important to note that the provisions of section 2(1) are not merely mandatory but go to the jurisdiction of the WRC to entertain an unfair dismissal complaint. The WRC adjudicator is entitled to consider a single issue, whether the employee has reached the normal retirement age, but if this is accepted, the Act does not apply to the employee and there is no jurisdiction to hear any complaint in relation to the termination of his employment.

2.4 The "normal retirement age" for an individual employee or class of employees may be found in a contract (but it is not absolutely essential that it be contractual). It may be an embodied or accepted expectation in relation to retirement ages experienced within the employment.

A relevant consideration will be whether the employee is on notice of the retirement age.

2.5 In relation to the Complainant, it is submitted that it is clear as a matter of law, fact, contract and expectation that the Complainant's normal retirement age was, at the outside, 66:

2.5.1 The Complainant's job was a fully funded ministerially approved position to which the

prevailing superannuation schemes applied, subject to amendment by the Minister

from time to time. Prior to the commencement of the Public Service Superannuation

(Miscellaneous Provisions) Act of 2OO4 there was no expectation within the public

service of working beyond the age of 65 years. Section 3 of the Act of 2004

introduced a new provision which removed the obligation to retire on age grounds but

only so far as new entrants are concerned:

"3,-(1) Except where otherwise provided for by this Act, a person who is a new

entrant to the public service shall not be obliged to retire on age grounds.

2.5.2 It is submitted that the policy and practice within the Respondent, that the retirement

age for persons in the Complainant's position, being a non-officer and non-teaching

employee was 66 years of age. This was reflected in the employment handbook of the

Respondent which was reviewed in 2008 and circulated to all employees, which was

attached in Appendix 1. This states inter alia as follows:

"Compulsory retirement

Staff employed prior to 7 April 2OO4

For craft workers, general operatives and related grades the compulsory retirement

date is 31 August following 66th birthday. For all other staff it is 31st. August following

65th.birthday

"New entrants" employed after 7 April 2OO4

You may continue working after the age of 66/65 respectively as outlined above.

However, no award is paid out to age 65

2.5.3 Following the issuing of the new handbook, the Respondent went about revising the

terms and conditions of various employees. This resulted in a fresh contract of

employment being issued to the respondent's employees, including the Complainant,

in 2010, the contract and the letter sending same to the Complainant were attached in

Appendix 2. That contract stated inter alia:

"17. Retirement age

It is the policy of the respondent that the maximum retirement age for staff

employed prior to 1 April 2004 is 65.

Staff employed on or after 1 April 2004 will have a minimum retirement age of 65.

Staff wishing to have an extension may apply on an annual basis for this extension to

a maximum retirement age of 70 years..."

2.5.4 The superannuation scheme prevailing at the time of the Complainant's retirement

was the Education Sector Superannuation Scheme 2015 - SL 290/2015 (the “2015

Scheme", which was attached in Appendix 3. This specifically defines the compulsory

retirement ages for employees covered by the scheme (including the Complainant)

and states inter alia as follows:

"compulsory retirement age" means, other than in the case of new entrants-

(a) for non-officers, age 65, age 66 or on the last day of the school or academic year

in which the member attains age 65, in accordance with the terms and conditions

of service, the retirement policy of the Board or Institute and the approval of the

Board or Institute concerned, and

(b) for officers, the age attained by the member on the last day of the school or

academic year in which the member attains 65 years of age;”

2.6As can be seen, the prevailing legislation permitted retirement to be either 65, 66 or the last day of the academic year following 65 depending upon how the relevant Board or Institute promulgated its policies. The clearly established normal retirement age within the Respondent was 66 (for employees within the Complainant's grade), as set out in the 2008 handbook but subsequently, the Respondent put in place a policy providing for retirement age of 65, which was reflected in the new contract.

2.7While no concession is made by the Respondent in this regard, conceivably there might have been an argument, had the Respondent sought to make the Complainant retire at 65, that the more recently introduced contractual retirement age was not the normal retirement age and that the correct age for retirement was 66. As the Complainant was not required to retire until after his 66th birthday, no such argument arlses.

2.8For the purposes of this preliminary objection, however, the Complainant had plainly reached the normal retirement age for employees within his employment, having regard to the fact that he was in fact retired on 31 August following his 66th birthday. This was expressly stated in the letter giving him notice of his impending retirement dated 27 March 2017, which was attached in Appendix 4.

2.9 Accordingly, it is respectfully submitted that the terms of Section 2(1)(b) of the UD Acts are met and, consequently, the UD Acts have no application to the Complainant and the WRC has no jurisdiction to entertain any unfair dismissal claim on his behalf.

2.to In light of the foregoing, the claim should fail in that the WRC must, as a matter of law,

decline jurisdiction in relation to the matter.

Dismissal deemed in law to be fair - UD Acts Section 6(4)(b)

2.11Even were the WRC to accept jurisdiction of the claim (and the Respondent reiterates that it cannot so do as a matter of law) it is nonetheless submitted that, having regard to the statutory structure and the position of the Respondent within the education sector and in particular the application of legislation in that sector to both the Respondent and the

Complainant, this is a complaint which, as a matter of law, must fail.

2.12This is because of the provisions of section 6(a) of the UD Acts. The UD Acts provide

protection against unfair dismissal (as defined in the UD Acts) in a number of ways. It also

sets different standards and deals with different situations (and different circumstances giving rise to dismissal) in different ways specifically laid down in the statute. There is a general standard (dealt with further below) contained in section 6(1) of the UD Acts, that in the case of dismissal there is an obligation to demonstrate that there were "substantial grounds justifying the dismissal." The Act proceeds to set out certain specific instances where dismissals are deemed as a matter of law to be unfair - for example dismissals by reason of pregnancy or trade union membership or activities. It also prescribes in Section 6(4) incidents of dismissal that are deemed as a matter of law not to be unfair.

2.13One such instance is set out in Section 6(4)(d) as follows

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an

employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it

results wholly or mainly from one or more of the following:...

( d) the employee being unable to work or continue to work in the position which he held

without contravention (by him or by his employer) of a duty or restriction imposed by or

under any statute or instrument made under statute.

2.14 There are a number of instances of the applicability of this provision including the most

obvious being where, for example, a travelling salesperson is disqualified from driving and

therefore cannot continue to be employed by his employer without the employer or the

employee breaching statute. Another example would be where the employee is obliged to

have but does not have a work permit.

2.15 The Complainant was obliged to retire in accordance with a statutory instrument - the

Education Sector Superannuation Scheme 2015 - SI. 290/2015 ie the "2O15 Scheme",

which was attached in Appendix 3. The Complainant's Solicitors have in correspondence

queried the applicability of the scheme to the Complainant, so it is worth tracing his

membership of schemes as an employee of the Respondent.

2.15.1 The Complainant's role was a Ministerially approved position in a whole time capacity

and was 100o/o exchequer funded. Therefore, he was automatically admitted to the

Local Government (Superannuation) (Consolidation) Scheme, 1986 - S.I. 391/1986

as amended (the "1986 Scheme") when he took up employment with the

Respondent, a copy of the 1986 Scheme was attached in Appendix 5.

2.15.2The Local Government (Superannuation) (Consolidation) Scheme, 1998 - S.I.

Instrument 455/L998 (the "1998 Scheme") revoked and replaced the 1986 Scheme,

a copy of the 1998 Scheme was attached in Appendix 6.

2.15.3Circular OO25/20O8, again issued by the Department, provided for a certain

recalculation of pension benefits of persons within the Education Sector

Superannuation Scheme (it also provided for higher employee contributions). In

March 2013, the Complainant signed an application form to join the revised scheme.

That form included the declaration by the Complainant that he was already a member

of the scheme and that he desired to join the amended scheme, a copy of the form

and of circular OO25/2OO9 were attached in Appendix 7.

2.15.4 Subsequently, the 2015 Scheme revoked the 1998 Scheme, with some exclusions.

2.15.5 Section 5 of the 2015 Scheme provides that membership of the 2015 Scheme is

compulsory for all pensionable employees. The 2015 Scheme goes on to state that

"Non-officers who commenced employment on or after 1 June 1978, provided that,

between that date and 20 December 2001, the minimum qualifying period was

reached in the financial year" are automatically "pensionable employees". The

Complainant fell under this category and was therefore automatically a member of the

2015 Scheme.

2.15.6 Section 5(5) of the 2015 Scheme provides that the following categories of persons are

provided with an option to become a member of the 2015 Scheme:

a. An officer or non-officer who was a member of the 1956 Scheme and who

exercised an option during the period 27 May t977 and 31 May t978, or

between 1 January 1990 and 30 November 1990 to become a member of

Parl2;

b. effective from 1 April 1996, a part-time non-officer who has paid the

appropriate contributions in accordance with Department of Education and

Science Circular Letter 2512OO8.

The Complainant did not come within either of the above categories and therefore the

option provisions did not apply to him as he was automatically a member of the 2015

Scheme.

2.16 As set out above, the 2015 Scheme specifically set out a compulsory retirement age as

follows:

"compulsory retirement age" means, other than in the case of new entrants-

(a) for non-officers, age 65, age 66 or on the last day of the school or academic year

in which the member attains age 65, in accordance with the terms and conditions

of service, the retirement policy of the Board or Institute and the approval of the

Board or Institute concerned, and

(b) for officers, the age attained by the member on the last day of the school or

academic year in which the member attains 65 years of age;

The Complainant who, was not part time did not fall into these categories

2.17This was of course stipulated in the context of the 2004 Act which removed a legal obligation

to retire on the grounds of age for members of the public service but only in respect of those

who are "new entrants".

2.18The 2015 Scheme also provides that a member may not continue in membership of the

Scheme having reached the compulsory retirement age'

2.19As the Complainant's retirement became effective by operation of law, the Respondent had no

part to play in the circumstances in which the complainant was required to retire. It is

important to note that the Respondent is only entitled to employ persons in positions

approved by the Department and/or in accordance with the statutes, Statutory Instruments

and/or Circulars emanating from the Department. Even were it not the case, and it is, that

the 2015 Scheme clearly refers to a "compulsory retirement age", the reality in respect of a

fully funded ministerial position, is that the Department will not permit the employment of

somebody who is not a new entrant past the age of compulsory retirement, which is

contained in the 2015 Scheme (itself prescribed by Statutory Instrument).

2.20 Accordingly, it is submitted that the circumstances giving rise to the cessation of the

Complainant's employment derives exclusively from the terms of legislation and delegated

legislation and from restrictions imposed therein. For the Respondent to continue to employ

the Complainant would be a breach of the restriction imposed by the prevailing legislation.

That being so, the circumstances giving rise to this claim fall squarely within the provisions of

section 6(4)(4) of the UD Acts and are deemed, as a matter of law, not to constitute an unfair

dismissal.

Substantia! Grounds justifying the dismissal

2.21 Without prejudice to the foregoing, it is submitted that the legal provisions underpinning the

Respondent's capacity and entitlement to employ employees and to determine their terms

and conditions mean, in effect, that it has no control over the emolument and superannuation

terms applicable to its employees/ the classification of its different employees, and has no

control over the pay rates, superannuation schemes and retirement provisions relating to

them.

2.22The Respondent employed the Complainant and he was paid out of the Respondent's payroll.

However, the position was one approved and fully funded by the Department. Accordingly, it

is not and was not open to the Respondent to engage the Complainant on different terms and

conditions as to superannuation and retirement than those prescribed by or permitted by the

Department.

2.23The situation in relation to education is sui generis, as illustrated by two cases which made

their way up to the High Court under different legislation: the Protection of Employees (Part-

Time Workers) Act 2001. In both cases, even though the complainant employees were

employed by individual schools, and paid by the schools, two separate High Court judges

found that, in respect of pay matters, their employer was really the Department.

2.24ln Minister for Education & Skitls v Boyte & Orslo there was a claim by a part time teacher,

who was paid out of funding allocated to the school, for entry into the superannuation

scheme. In holding for the employee Hogan I stated

"It is true that there was no actual express contract of employment between the parties, but I

find myself coerced to conclude in these circumstances that there must have been an implied

contract of employment between the Minister and Ms. Boyle in relation to pay-related matters

within the meaning of the definitions of "contract of employment" and "employee" contained

in s. 3(1) of the 2001 Act."

2.25 In CUS v Dooley there was a different result, the employees lost, but for the same reason.

A group of part time workers, again paid by the school, lost a claim for equal pay against the

school, by means of comparison with their full-time colleagues, because they could not be

compared to full time teachers because the Department, who paid them, was their

"employer" for the purposes of pay.

"The school has no hand, act or part in determining the salary and other terms and conditions

of the Department funded teacher. In determining the employer for the purpose of the

legislation in relation to agency workers, the legislation expressly provides that the party

paying the worker is, for the purposes of the legislation, the employer. I think the school is in

an analogous position...To that extent, it seems to me that the Department has to be viewed

as the employer of the chosen comparators for the purpose of the legislation."

2.26 In terms of a challenge to the validity or otherwise of a compulsory retirement age, the reality

is that the operative cause of the Complainant being required to retire was the rules laid

down in the legislation by the Department and all the restrictions imposed by it as to who

may be employed in their "fully funded" roles and up to what ages. On one view, the

Department is the correct Respondent.

2.27It has to be stressed, however, that the two authorities cited above concerned the 2001 Act.

In that Act the definition of "employer" is somewhat different to that contained in the Unfair

Dismissals legislation.

In the UD Acts the employer is:

" "Employer" in relation to an employee means the person by whom the employee is (or, in a

case where the employment has ceased, was) employed under a contract of employment an

individual in the service of a local authority... Shall be deemed to be employed by the local

authority"

This must be contrasted with the 2001 Act protecting part-time workers in which the

employer is:

"employer" means, in relation to an employee, the person with whom the employee has

entered into or for whom the employee works under (or, where the employment has ceased,

entered into or worked under) a contract of employment, subject to the qualification that the

person who under a contract of employment referred to in paragraph (b) of the definition of

"contract of employment" is liable to pay the wages of the individual concerned in respect of

the work or service concerned shall be deemed to be the individual’s employer.

2.28Having regard to the differences in statutory definition and the narrow focus to the UD Acts, it

is not clear that the Respondent can as a matter of law argue that in the case of a

compulsory retirement the Department can, or should, be a proper respondent to the

Complaint.

2.29In circumstances, however, whereby the compulsory retirement is prescribed under statute

and/or required by the Department, which has the power to determine the conditions of

employees employed by the Respondent, including the age at which they are required to

retire, the reality is that the Respondent had no control over the reason for dismissal. It is

submitted that compliance with the Departmental rules and legislation (and the fact that the

Department would not permit, or pay for, employees to be employed by the Respondent

outside of those rules) must constitute substantial grounds justifying the termination of

employment, such that there is no unfair dismissal.

3 CA-OOO13454-OO1- Complaint under the 1994 Act

3.1The Respondent believes that the Complainant would have been issued with a contract of

employment (the '1992 Contract") upon taking up employment with the Respondent in

1992. A Copy of the Complainant's contract could not be located by the Respondent.

however, the template contract used for caretakers in 1998 and that is similar to the 1992

contract was attached in Appendix 8.

3.2The Complainant took up employment with the Respondent in 1992 and before the

commencement of the 1994 Act. Accordingly, there was no requirement to provide a written

statement of terms and conditions in 1992.

3.3The Complainant was issued with a Handbook in 2008, which was attached in Appendix 1.

3.4The Complainant was issued with the 2010 Contract by letter dated 29 March 2010, which was

attached in Appendix 2.

The Complainant entered into employment with the Respondent in 1992 and before the

commencement of the 1994 Act. Section 6 of the 1994 Act provides:

(1) Where, before the commencement of this Act, an employee has entered into a contract of

employment with an employer, then, the employer shall, if so requested by the

employee, furnish to the employee a statement under section 3 and, if so requested by

the employee, there shall be added to the statement the particulars specified in section 4.

(2) An employer shall, within 2 months after the employer has been required to do so under

subsection (1) furnish to the employee concerned a written statement in accordance with

that subsection. (emphasis added)

3.5The Complainant did not request a statement under section 3 of the 1994 Act, and

accordingly there was no requirement for the Respondent to provide one. The Complainant's

Solicitor did request a copy of the Complainant's contract, by which time, he had already

been issued the 2010 Contract.

3.6 Accordingly, there was no breach of the 1994 Act.

4. Conclusions

4.1The WRC does not have jurisdiction to entertain the Complaint, pursuant to Section 2(1)(b) of

the UD Acts, the Complainant having reached the normal retirement age for his employment

at the day of termination of employment.

4.2 The Complainant was required to retire in circumstances whereby, had the Respondent

continued to employ him, it would be in breach of the restriction imposed by statutory

instrument and accordingly the termination is as a matter of law not unfair in accordance with

Section 6(4)(d) of the UD Acts.

4.3Without prejudice to the foregoing, the Respondent has no control over the retirement and

superannuation conditions applicable to its fully funded ministerially approved employees and,

accordingly, the rules prescribed by the Department preventing the Respondent from

continuing to employ the Complainant beyond his compulsory retirement age constitute

"substantial grounds justifying the dismissal" and accordingly there was no unfair dismissal.

4.4 There has been no breach of the Terms of Information (Employment) Act 1994.

A second submission was received from the respondent on the 8th.Jan 2019 – this was made in response to arguments introduced by the claimant’s representative in correspondence dated the 7th.Nov. 2018 on the matter of legitimate expectation. As the matter of legitimate expectation was not raised at any of the 4 hearings , I do not propose to consider any fresh arguments advanced after the final hearing.

Mr.LD gave evidence on behalf of the Dept. of Education – confirming that the respondent was bound by the Rules of the Superannuation Scheme and clarified matters regarding abatement of pension in the event of re-engagement. He stated that where the Dept. might be unsure in relation to the application of the Pension Scheme they would confer with D/PER.

Under cross examination the witness indicated that he advised the respondent that the claimant could be re-employed but that that would involve the abatement of his pension. He asserted that SI 290/2015 set out the compulsory retirement age of 66 as the normal retirement age on the final date of the academic year of the 66th.BirthdayMr,D had a vague recollection of his exchanges with the respondent in relation to the claimant .He advised that the Pension Scheme was silent on whether someone can be reemployed and did not preclude re employment but that would involve abatement/stopping of the ongoing payment of the pension. Mr.D stated that he did not advise the respondent that the claimant could be kept on - he said if the claimant was reinstated his pension would be abated .He stated that he did not rule out re- employment and that terms and conditions of employment did not fall within his remit. When he was advised that 2 of the claimant’s colleagues had been kept on for significant periods > 66years, he stated he was unaware of the numbers involved and no cases sprang to mind of other comparable employers retaining workers beyond retirement age. He stated it possibly happened on rare occasions.

The witness clarified that he advice to the ETB was predicated upon re employment post retirement as opposed to remaining in employment.

Evidence was given by Ms.MMcG of her administrative role in the processing of pensions and she explained that the pension rules require retirement at age 66 or the end of the academic year in which the 66th.birthday falls. She stated that different rules applied to part time Caretakers who would not be in pensionable employment. The funding of the post as well as the status (established) of the employee were also factors of relevance and it had been established that the claimant was in a fully funded post.

Under cross examination, she stated that some caretakers may be brought in directly by a school Principal and there may be no contracts or dates of birth on record. Ms.MmCG said the claimant occupied an established post which was fully funded. She stated that the policy on re- engagement was not within her area of expertise. She confirmed that the respondent had no teachers in employment over 66 years. She stated that the position of the comparator Mr.McN was different to the claimant as Mr.McN was not an established employee and funding for the post was different to the claimant’s. When asked if the claimant was told he would have to leave by age 66 she replied that she wasn’t sure if he was advised about the extension of his contract. It was put to her that the claimant was advised by Mr.FQ that the claimant could work until he dropped.

Evidence was given by Mr.JMcG in relation to the comparator’s post – he explained that the comparator worked in the adult education/training services ; that he had variable hours and that the only way of funding such posts was through the non pay budget. He did not think the comparator had a contract of employment. And he submitted that his conditions of employment were entirely different to the claimant. He was unsure as to whether Mr.McN – the comparator asked to stay on after 66 or whether the respondent asked him to remain.

Evidence was given by the former Hr Manager of the background to the partnership negotiations on the drawing up of an agreed contract as a number of Caretakers were unhappy with their existing contracts over the years 2009-2010 .She set out the background to the communication to the claimant on his retirement in 2017.She stated that extensions to contracts beyond the normal retirement age applied only to non established care taking staff. She stated that the comparator was in an unestablished post and there would be no post if he did not remain in it. She explained that she had been in touch with the Dept. about another caretaker who had accumulated significant leave and was advised that the caretaker was obliged to retire on his due date. She stated that when a post becomes vacant it has to be re - advertised and sanction from the Dept. to fill the post has to be obtained.

Under cross examination she advised that it was possible but not unusual for a staff member not to get a contract in 1992.She stated that the contracts issued to   caretakers in 2010 were issued at the request of SIPTU.As far as she was aware , all caretakers got a contract but she was unsure if the comparator Mr. McN got one. She stated that the trade unions would have signed up to the 2010 contracts as part of the National Wages Agreement at the time. She stated the claimant continued to work for the respondent and the respondent continued to pay him. She did not recall the union complaining about the terms of the contract and was unaware if any of the caretakers in the respondent’s employment signed up. She asserted that all of the respondent’s contracts are augmented by collective agreements. It was put to her that the claimant was only bound by the 1992 contract. It was put to her that clause 17 of the 2010 contract provided for more favourable terms for post 2004 appointees , that it was ambiguous and that the ambiguity must be in the claimant’s favour. The witness stated that the Dept. had advised that “we have to compulsorily retire people at 66 and that we had no discretion”. The witness was advised by the claimant’s representative that she had failed to deal with his correspondence of the 6th.April 2017 and had failed to acknowledge that she had made a mistake in her correspondence to the claimant dated the 4th.July 2016.Ms.FF stated that the staff handbook   would have been issued to Principals to give to staff and that the handbook was on the respondent’s website. There were in excess of 2,000 workers in the employment of the respondent. Ms.FF said that a copy of SI 290/2015 was available in the Pensions Section – the claimant’s representative submitted that the claimant was unaware of its contents or that it was legally binding. The witness was not clear as to what documents had been furnished to the claimant in relation to amendments to the Superannuation Scheme. Ms.FF was unaware that the claimant had reapplied for his own job.

The former Principal of the school gave evidence of raising the Staff Handbook at staff meetings but did not recall a conversation with the claimant about same .He recalled referring to the staff handbook and reading it and indicated that if the claimant had a contract it would have as a matter of routine been kept in his folder. He did not recall any discussion about a contract with the claimant.

The current HR Director gave evidence of the communication with the Dept about the caretaker who had accumulated significant annual leave and their advice that he had to leave there and then and could not go beyond retirement age .It was put to the witness under cross examination that when she wrote to the claimant’s representative on the 4th.July 2017, she had an opportunity to say that Ms.FF was mistaken in her correspondence to the claimant on the 4th.July 2016.She replied that she was unaware at the time. She stated that she did not forward a contract to the claimant’s representative because they did not have a signed contract – it was put to her that only the first page of the unsigned contract was furnished to the claimant’s representative .The HR Director did not know if a competition had been held for Mr.McN ( comparator)’s post. When it was put to her that the respondent was reconsidering the claimant for re employment, she replied no that they wrote to advise him what would happen if he got the job. She stated that they were advised by the Dept. that the claimant was entitled to apply for his job .It was put to her that the claimant was being re interviewed for a job he could not get in the first place and she replied it was a matter for the Interview Board to determine the suitability of the candidates.

I have reviewed the evidence presented at the hearings and taken account of the voluminous submissions of the parties and the authorities invoked by the parties representatives.

The respondent is asserting that the WRC does not have jurisdiction to entertain the complaint by virtue of Section 2(1)(b) of the Act as the claimant had reached normal retirement age. It was submitted that the comparators relied upon by the claimant were a different class of employee. A breakdown of the retirement ages of Caretakers/Cleaners was submitted into evidence and it was argued that this supported the respondent’s contention that 66 was the normal retirement age and that the 3 aberrations from that age were based on the fact that in the case of the 2 part time cleaners , there was no DOB on file and they were granted admission to the Pension Scheme under Cl25/2008 and the caretaker comparator was occupying a non funded post. It was submitted that the extension to age 70 for certain types of employee applied only to those appointed after 2004 and this was very clear from the Dept.’s circulars and the Staff Handbook. It was submitted that SI 290/2015 defined the compulsory retirement age for the claimant and had the respondent retained the claimant in employment, they would have been in breach of this Statutory Instrument. It was contended that even if it was found that the WRC had jurisdiction, the dismissal was fair as a matter of law. There were substantial grounds justifying the dismissal – namely that the respondent was precluded from continuing the claimant in employment. It was submitted that all of the evidence heard did not undermine these arguments. It was submitted that it was clear that the claimant got a contract in 2010 and the claimant did not take issue with the provisions contained therein in relation to retirement. By his own admission , he did not look at the handbook .It was accepted that the respondent’s letter of the 4th.July 2016 contained an error that had been explained by the HR manager and it was contended that the final clause had to be read in context and that the letter did not allow the claimant remain to age 70.It was submitted that the treatment of the claimant was not unfair as it does not create a legally unfair dismissal when the respondent is applying the rules. It was acknowledged that the 1992 contract issued to caretakers did not contain a retirement age but it was submitted that it was not necessary for it to do so in order to be permissible. It was contended that the claimant in evidence admitted that he did not take issue with the retirement provisions contained in the 2010 contract notwithstanding the fact that he took issue with a number of other terms .As regards the rehiring of the claimant , it was submitted that this would only arise provided there was no other suitable candidate and the claimant would have been hired on new entrant conditions.

I have considered the entirety of the claimant’s evidence and the submissions made on his behalf and set out hereunder my response to the submissions made:

1.The claimant is relying significantly on the respondent’s communication to him of the 4th.July 2016.The full text of the latter is set out below

“I write further to your occupational health assessment with Dr.X , Specialist in Occupational Medicine with MM on 28.06.16.

I am now in receipt of the report on your examination, which confirms that you are medically fit to continue in your post for the 2016/17 academic year. In view of the foregoing I advise that the respondent are in a position to continue your employment to 31st August 2017.

Should you wish to extend your employment beyond that date you are advised to contact us with your request before the 31st May 2017.Please note, the latest date of your employment with the respondent will be 31st.of August following your 66th.birthday”.

While I note that the document was ambiguous and confusing, I also acknowledge that it was corrected by the respondent in subsequent correspondence (10th.April 2017) with the claimant’s representative.

Section 2-(1) (b) provides that the Act shall not apply in relation 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..”

On the basis of the foregoing chronology of events , it is evident that the respondent had corrected the error and clarified on the 10th.April that ..”As your clients 66th.birthday occurred on 18 March 2017 the compulsory retirement age falls within the current Academic year of 2016/2017 , his last day of service ‘with the respondent ‘ will be the 31st.August 2017”.The Labour Court has determined in UDD1842 that no provision of a circular providing for retention in employment beyond retirement disturbs the fact of termination of a Civil Servant’s employment by way of retirement on reaching the age of 65.In the instant case , it would be entirely inconsistent to find that the erroneous/confusing wording in the letter to the claimant of the 4th.July 2016 – which was subsequently corrected prior to the claimant’s retirement – could disturb the fact of the normal retirement age of 66   for the claimant’s grade as set out under SI No.290 of 2015 – Education Sector Superannuation Scheme 2015.

2.I must also conclude that the arrangements for the filling of the claimant’s post on a fixed term contract basis which permitted the claimant to compete and be deemed qualified to be place on a panel , notwithstanding his imminent retirement , while understandably confusing for the claimant in the context of the normal retirement age of 66 ,cannot disturb the fact of the normal retiring age set out in the forementioned S.I. While I fully accept and acknowledge   that the sequence of events i.e. the ambiguous correspondence from the respondent on the 6th.July 2016   and the subsequent qualification of the claimant for a temporary panel gave rise to a lack of clarity around the normal retirement age , I cannot accept that this series of events disturbed the normal retiring age for employees of the same employer in similar employment.

3.While I acknowledge the contention of the claimant’s representative that the more favourable retirement conditions applying to post 2004 entrants was unfair to pre 2004 employees, I cannot accept that this argument – which is an industrial relations argument - can be pertinent to the matter of establishing the normal retirement age for the claimant.

4. I note the arguments advanced by the claimant’s representative with respect to the 2010 contract but cannot ignore the fact that the claimant did not pursue a grievance regarding the retirement provisions contained therein. Additionally, I am obliged to take account of the respondent’s chronicle of the claimant’s membership over the years of the Local Government Superannuation Scheme, its various amendments and the ultimate establishment of the Education Sector Scheme 2015 through SI290/2015.

5.While I   have taken account of the submissions of the claimant’s representative with respect to the claimant’s colleagues who remained on in employment over the age of 66 , I find the respondent has made convincing arguments regarding these aberrations which are on all fours with the determination of the EAT in UD 891/2009 Molloy v Connaught Gold Co-Operative Society .The EAT concluded as follows :

“While the claimant gave some examples of Employees of the Respondent who had in the past continued after age 65 , the Tribunal accepts that these were unusual and the normal practise was retirement at age 65.Taking all of these factors into account , the Tribunal finds that the normal retiring age for employees of the same employer in similar employment is 65 and that as she had reached normal retiring age , on or before the date of her dismissal , that pursuant to Section 2.(1)(b) of the Act, the claimant is not a person to whom the Act applies , and her claim against the respondent is hereby dismissed”.

Taking all of the foregoing into account and in particular EAT Determination UD891/2009 and Labour Court Determination UDD1842, I find the claimant “on or before the date of his dismissal “ had reached the normal retiring age for employees of the same employer in similar employment and consequently , I have no jurisdiction to investigate the complaint.

Complaint under the Terms of Employment (Information) Act 1994

I have considered all of the submissions made by the parties and find that as the claimant - having been appointed prior to 1994 - did not request a statement under Section 6 of the Act the respondent has met their obligations under the Act and accordingly I find against the claimant.