Complainant

Respondent

Anonymised Parties

{Sales Area Manager}

{A Construction Company}

Representatives

None 

Joe Bolger ESA Consultants

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00033225-001

18/12/2019

The Complainant was employed with the Respondent from 1st April 1998 to 30th September 2019.

The Complainant seeks redundancy from the Respondent in relation to his dismissal on 30th September 2019 pursuant to S39 of the Redundancy Payments Act 1967.

In July 2019 the Complainant was informed he was being replaced by a younger man without any reason. One other employee aged 74 years is still working for the company. The Complainant had been promised a better car, but never received this. The Director said they would buy him a new car.

The Complainant met a Director of the company in November 2019 and said he intended to stay working. He said he would tell the company Director when he wanted to retire.

The new company car was given to the person who replaced the Complainant. The Complainant was given two month’s notice of retirement at 65 years of age. He never received his P45. He has no problem working and is working elsewhere. The company told staff he was retiring.

The Complainant never received a temporary contract of employment. His replacement is younger than him. He disputes the notes put forward by the company of the meeting. The company Director was not present at the hearing to give evidence.

The Respondent says the title of the Respondent is incorrect on the complaint form and objects to the application of S39(2) of the Organisation of Working Time Act 1997. The Complainant must show inadvertence and the Complainant cannot show an error as he is aware of the name of his employer.

The Respondent operates a retirement age of 65 years which is established by the CIF pension scheme, and the physical effort to perform the business duties.

The Respondent says the Complainant joined the company on 1st April 1998 and retired on 6th August 2017 following consultation. The Complainant received his Construction Industry Federation pension and a termination date of 11th January 2018 was agreed. The Complainant obtained his CIF pension but not state pension and it was agreed the Complainant would work until his 66th birthday. The Complainant was given a draft temporary contract. Holiday, and notice pay was paid to the Complainant.

The Respondent says it is dealing with the Complainant’s retirement not a redundancy. There is no redundancy as the Complainant was replaced. In August 2019 it was accepted the Complainant’s role would be advertised. The Complainant would be paid until end of September 2019 and was given his vehicle and took leave on pay. He was given his P45 and holiday pay.

I have heard and considered carefully the oral and written evidence of the parties.

Pursuant to S39 (2) of the Organisation of Working Time Act 1997 and with the consent of the Respondent, I amend the title of the Respondent set out in the complaint form.

No contract of employment or policy has been provided by the parties in relation to the retirement age of the Complainant. The Complainant is a member of the Construction Industry Federation pension scheme (CIF) and is receiving pension. The normal retirement age for members of the CIF scheme is 65 years.

The Respondent says the normal date of retirement of staff is 65 years and accepts that another current member of staff is 74 years of age. I am cognisant of the judgement of Mr. Justice Hedigan in the High Court in McCarthy v HSE [2010] IEHC 75 where the employee’s retirement age of 65 years was found to be an implied term due to membership of the pension. I find the Complainant reached retirement age on 6th August 2017 and his employment terminated on 11th January 2018. The Complainant was then employed for a further period of one year and retired. The Complainant was not dismissed due to redundancy. The complaint is not well founded.

The complaint is not well founded.