Complainant

Respondent

Anonymised Parties

An Attendant

A Third Level Institution

Representatives

Ed Thompson Unite the Union

Terry Mac Namara IBEC North West

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-00009955-001

28/02/2017

The Complaint is that the Complainant was unfairly dismissed by being compulsorily retired at the age of 65.

Two complaints were originally brought, an equality and an unfair dismissal complaint but the equality complaint was withdrawn prior to the adjudication and therefore the hearing proceeded on the basis of an unfair dismissal complaint alone.

An Industrial Agreement (IR)was entered into by the parties in 1999. This was a productivity agreement and part of it included the following terms:

“Parties agree to the introduction of compulsory retirement at the age of 65 (the staff members to have an option of retiring on their birthday or at the end of the academic year i.e. 31 August.)

For existing members only, if a staff member would have less than full pensionable service at age 65 the Institutes agree that such an individual’s circumstances will be considered sympathetically.”

The Complainant contends that this agreement should be interpreted as follows: that as reference to “their birthday” is capable of meaning either their 65th birthday or their birthday following their 65th birthday, ie their 66th birthday and that a construction favouring the Complainant should be made. So that the date of retirement should be his 66th birthday or the following 31 August thereafter, which in the Complainant’s case would be the 31 August 2017.

The interpretation of this paragraph by the Respondent was that the Complainant should retire at the latest on 31 August 2016 was not clear from the passage.

The reliance on a 2015 statutory instrument by the Respondent permits an interpretation of retirement at age 66. The Complainant would have accepted a retirement date on his 66th birthday.

The Complainant was the only employee that was an existing member at the time the IR agreement was made and therefore he, a per the IR agreement should have been considered sympathetically, ie he should have been allowed to retire on 31 August 2017

This is not an equality complaint and no argument has been raised by the Complainant that the 1999 Industrial Relations Agreement did not become incorporated into his contract with the Respondent. Nor could such an argument be made, in circumstances where the Complainant seeks to relying on the terms of the IR agreement.

An ordinary and plain interpretation of the IR agreement is that the reference to “retiring on their birthday” in the bracketed section can only mean their 65th birthday as it follows the words “compulsory retirement at the age of 65” and any other interpretation, whereby it means 66th birthday is not a reasonable interpretation of the words used.

SI 290 of 2015 applies to all employees within the Public Sector Education Sector and defines “compulsory retirement age” for non-officers as being “age 65, 66 or on the last day of the school or academic year in which the member attains age 65”.   This statutory instrument permits the Respondent to apply in the Complainant’s case retirement on the 31 August 2016, ie in the academic year in which he turns 65.

The Respondent contends that a dismissal shall not be considered to be an unfair dismissal if it occurs to an employee who has reached normal retirement age for employees of the same employer in similar employment (section 2 (1) (b) of the Unfair Dismissals Act

The Respondent cited that of the 154 employees who had retired in the period of time that the Respondent was an employer, none had contested the retirement age of 65 prior to this Complainant. As such 65 was considered to be the normal retirement age, quite apart from the SI dealing with Pensions or the IR agreement.

The Respondent denied the relief sought

A dismissal shall not be considered to be an unfair dismissal if it occurs to an employee who has reached normal retirement age for employees of the same employer in similar employment (section 2 (1) (b) of the Unfair Dismissals Act)

The parties agree that the determination of this matter is mainly by an interpretation of the IR agreement – although the Respondent also relies on SI 290 or 2015.

In respect of the IR agreement I do not find that there is any ambiguity in the phrase of “the introduction of compulsory retirement at the age of 65.”

The agreement in my opinion is not capable of being reasonably interpreted at meaning that the retirement age could extend to beyond either his 65th birthday or the end of the academic year of his 65th birthday.

I find that SI 290 of 2015 is less clear in that it permits an extension to the age of 66. However, this statutory instrument is to establish when a pension entitlement arises and does not alter what his terms and conditions in relation to retirement age.

As the Complainant has accepted that the IR agreement forms part of his terms and conditions of employment. I find that the terms of the agreement are unambiguous in that the compulsory retirement date is either his 65th birthday or the 31 August following his 65th birthday.

As the IR agreement incorporated into the terms of the Complainants terms of employment. By applying section 2(1) (b) of the Unfair Dismissals Act 1977 as amended I find that this was a compulsory retirement and is not an unfair dismissal.

The reference to employees being treated sympathetically does not amend the terms and conditions of the compulsory retirement date as there is no specific representation raised by this description.

For the reasons stated, this complaint is not well founded

Unfair Dismissal – normal retirement age – terms and conditions of employment