Complainant

Respondent

Anonymised Parties

A Retired Civil Servant

A Government Department

Representatives

Self 

Kiwana Ennis B.L.

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-00031630-001

27/02/2019

The complainant was employed by the respondent from 26 August 2002 until 16 November 2018 as a clerical officer in the respondent Department. The complaint was submitted to the Workplace Relations Commission (WRC) on 27th of February 2019. The cognisable 6-month period of the complaints dates from 28th August 2018 to 27th February 2019.

The within claim was initially processed as a claim under the Employment Equality Acts 1998-2015 as the details provided in the complaint form referred to an allegation that the complainant was dismissed upon reaching the age of 66, and the narrative stated that the claim was being taken under the Employment Acts. The complainant in his claim form had also selected the Unfair dismissals Act.   The claim had been progressed as discrimination claim under the Employment Equality Acts.

The first hearing of this matter took place on the 17th of October 2019. The complaint before the adjudicator on that date was a claim of discriminatory dismissal. The complainant advised the hearing that his claim was not a discrimination claim but was in fact a claim of Unfair Dismissal under the Unfair Dismissals Act.   The complainant stated that his claim centred around a letter received from the respondent on 2nd of October 2018 stating

“If a further period of retention is required, it is necessary to re-apply and the case will be re-assessed.”

The complainant clarified that his claim was not a claim of discrimination on the grounds of age.

The respondent advised the hearing that the notice of hearing had contained notice of a discriminatory dismissal claim and that it was present at the hearing and prepared to meet that claim noting that the burden of proof in a discrimination claim lay with the complainant. The respondent advised the hearing that it was not on notice of an Unfair Dismissal claim and was not prepared on that day to meet a claim of Unfair dismissal where the burden of proof would lie with the respondent and a submission in respect of same would be required from the respondent.

Given the circumstances and with the agreement of both parties I adjourned the hearing and advised the parties that the claim would proceed on the next scheduled date as an Unfair dismissal claim.   Given that the burden of proof in an Unfair Dismissal claim lies with the respondent, a submission on the Unfair dismissal claim was requested from the respondent and was emailed to the WRC and to the complainant on 26th of November 2019.   A hard copy of this submission was also sent to the complainant on the 3rd of December 2019.    The hearing was rescheduled for the 10th of December 2019 but was rescheduled for the 24th of February 2020 following an adjournment request by the complainant.

I proceeded to a hearing of the Unfair Dismissal claim on the 24th of February 2020.  

The complainant at this hearing raised a number of objections in respect of respondent being allowed to provide a submission after the first day of hearing and expressed his dissatisfaction with this.   I clarified that the reason for this was due to the fact that the claim before the WRC was now an Unfair Dismissal claim and thus the respondent now bore the burden of proof and accordingly was required to provide a submission in those circumstances.   In addition, I noted that the complainant was not disadvantaged by the provision of the submission as it was copied to the complainant by email on the 26th of November 2019 by the respondent and by the WRC in hard copy on 3rd of December 2019 which was almost twelve weeks prior to the hearing of the claim.

The complainant submits that

His employment ended on the 16th of November 2018 upon reaching his 66th birthday,

The complainant had been advised in the previous year that he was due to retire on his 65th birthday but was given the option of applying for a 1-year extension on the grounds of hardship,

The complainant applied for the 1-year extension and was successful in his application,

The complainant was advised that it was open to him to make a further application the following year,

This option was withdrawn for no reason the following year,

When he made this application the following year, he received no reply other than a notice that his employment was to terminate in November 2018,

The complainant was advised that his employment would terminate upon reaching his 66th birthday,

The complainant submits that this amounts to an unfair dismissal under the Unfair Dismissals Act.

The respondent submits that

The complainant commenced employment on 26 August 2002 as a clerical officer,

the complainants employment was terminated due to his reaching the compulsory retirement age for civil servants pre 2004 which at that time was 65 years of age. The respondent submits that as a consequence of this he is excluded from the application of the Unfair Dismissals Act by virtue of Section 2(1)(b),

in the alternative the respondent submits that the complainants employment was terminated fairly and on the basis of substantial grounds due to his having reached the compulsory retirement age of 65 which he reached on 16 November 2017 and at which point he received his pension lump sum payment,

Prior to his retirement by email dated 31 July 2017 the complaint applied to be retained beyond the age of 65 on the grounds of hardship,

On 2 October 2017 his request for retention was approved for a period of one year until 16 November 2018,

In October 2018 he sought a further extension to age 70 but this was refused as the only basis under which he could be retained at that stage was under Circular 21/2017 which did not apply to him as he would reach state pension age in November 2018 on his 66th birthday.

This case was brought under the Unfair Dismissals Act. The complaint was initially listed as an Employment Equality complaint but at the insistence of the complainant it was relisted as an Unfair Dismissal claim as outlined above in the background to the complaint.

The decision before me is thus whether or not the complainant was subjected to an Unfair dismissal by the respondent.

The respondent submits that the complainants employment was terminated due to his reaching the compulsory retirement age for civil servants pre 2004 which at that time was 65 years of age. The respondent submits that as a consequence of this he is excluded from the application of the Unfair Dismissals Act by virtue of Section 2(1)(b) which states

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

“an employee who is dismissed and who, on or before the date of his dismissal, had reached the normal retiring age for employees of the same employer in similar employment …”

The respondent submits that the normal retirement age is 65 in accordance with the Civil Regulation Act 1956.   The respondent acknowledges that legislation has now been introduced to allow civil servants to remain in employment until the age of 70 but submits that this cannot be applied retrospectively and so does not apply to the complainant.  

The respondent in the alternative submits that the complainant’s employment was terminated fairly and on the basis of substantial grounds due to his having reached the compulsory retirement age.

The complainant submits that his dismissal at the age of 66 was unfair due to the fact that he had the previous year on his 65th birthday and upon reaching the specified retirement age, been granted an extension to remain in employment for a year longer than the specified retirement age on the grounds of hardship.  The complainant had applied for and was granted this one-year extension in November 2017 to expire in November 2018.  The letter granting this extension of one year stated that any further extensions would have to again be requested and applied for and would be reassessed.

The complainant advised the hearing that he sought a further extension on the same basis for the period November 2018 to 2019 but this was refused, and he was forced to retire on of November 2019 upon reaching the age of 66.

The complainant submits that the letter granting the one-year extension to his employment in 2017 indicated that he could similarly apply for another extension the following year. The complainant states that the following year he applied but his application was refused despite the fact that his financial situation had worsened given that he had just purchased a new car.

The complainant in support of his claim referred to recent legislation introduced to allow civil servants to remain in employment until the age of 70 an option he was not permitted to avail of.

The respondent advised the hearing that the complainant commenced employment on 26 August 2002 as a clerical officer and in accordance with his terms and conditions of employment the complainant’s compulsory retirement age was 65.    The complainant reached this age on 16 November 2017 at which point he received his pension lump sum payment.

The respondent advised the hearing that prior to his retirement the complaint applied to be retained beyond the age of 65, by email dated 31 July 2017 .

By letter dated 21 August 2017 the complainant was provided with the relevant application form for retention.  This letter stated “please note that retention beyond the normal retiring age is only considered in exceptional circumstances and that to be eligible for the grant of an extension of service one’s income must fall below certain income limits“.

On receipt of his completed application form his application for retention was considered pursuant to Circular 13/1975 which set out the applicable rules in respect of retaining civil servants beyond the normal retirement age and which included being retained on the grounds of hardship.  The complainant was advised by letter dated 2nd of October 2017 that his request was approved for a period of one year until 16 November 2018.    This letter stated “under the regulations retention of service can only be granted for one year. If a further period of retention is required it is necessary to re-apply and the case will be reassessed.“

The respondent advised the hearing that the following year by email of 8 October 2018 the complainant made a further request to remain in employment, this time until his 70th birthday.   He referred to the Bill then before the Dail in which the mandatory statutory retirement age was to be increased from 65 to 70 for public servants employed before 2004. The respondent advised the hearing that with effect from 5 December 2017 Circular 13/1975 was replaced by circular 21/2017 and therefore the only basis on which an employee could be retained from that date was in accordance with Circular 21/2017 which did not include the hardship ground.    The respondent advised the hearing that the complainant did not qualify for retention under Circular 21/2017 and was advised of this by letter dated 18 October 2018.

The respondent went on to state that Circular 21/2017 allows staff members who are or were due to retire at age 65 to apply to be retained in an unestablished capacity until they reach the age of eligibility for the state pension.

The complainant was informed that his period of retention would expire on the 16th of November 2018 on his 66th birthday and that this would be his last day of service. The complainant replied by email dated 22 October 2018 stating that he would fight this decision.  The respondent in its reply dated 7 November 2018 re-stated that Circular 21/2017 had replaced Circular 13/1975 under which the complainant had previously had his employment extended on the grounds of hardship from November 2017 until November 2018. The complainant‘s employment duly terminated on 16 November 2018 and he has been in receipt of his pension since that time.

The respondent advised the hearing that the complainant wrote to the respondent again on 22 November 2018 stating that he wished to make a final appeal regarding his retention beyond his final day which occurred on 16 November 2018 and referring back to the letter received by him the previous year in October 2017 which had stated that he could re-apply for a further extension of service.

The Respondent replied on 3 December 2018 clarifying that no commitment had been made to retain the complainant beyond the 16th of November 2018.   The respondent clarified that he had been advised that he could re-apply for a further extension due to the possibility that pending legislation to increase the retirement age for all civil servants to age 70 would have passed before he completed his additional year.

The respondent advised the hearing that by way of a government decision of 5 December 2017 the government agreed to increase the compulsory retirement age to 70 for public service employees recruited before 1 April 2004.   The respondent stated that primary legislation to affect this change only came into effect on 26 December 2018, but the legislation did not have any retrospective effect in relation to public service employees who had retired prior to 26 December 2018.  

In addition, the respondent stated that with effect from 5 December 2017 Circular 13/1975 was replaced by Circular 21/2017 and from that date therefore the only basis on which an employee could be retained past the retirement age was in accordance with Circular 21/2017.   Circular 21/2017 does not refer to a hardship ground but allows staff members who are or were due to retire at age 65 to apply to be retained until they reach the age of eligibility for the state pension.

The respondent advised the hearing that the complainant did reapply for a further extension in 2018 and his application was reassessed, but he did not qualify for retention under Circular 21/2017 as the complainant had reached his retirement age on 16 November 2017 which pre dated the government decision made on 5 December 2017 and as a consequence the complainant was not covered by circular 21/2017.   The respondent added that the complainant had at that stage already been retained   until he reached the age of eligibility for the state pension.

The respondent told the hearing that the complainant was thus informed that his period of retention would expire on the 16th of November 2018 and that this would be his last day of service.  The complainant‘s employment duly terminated on 16 November 2018 and he has been in receipt of his pension since that date.

The complainant at the hearing sought to assert that his second application for an extension submitted in October 2018 should have been assessed on the hardship ground in accordance with Circular 13/1975, the respondent in reply to this advised the complainant that this circular was no longer in use for applications for extensions as it had been replaced by Circular 21/2017.

The respondent submits that the complainants application for a further extension to his employment was assessed in accordance with Circular 21/2017 which was at that time the only means under which an application for retention could be assessed.   The respondent at the hearing also clarified that even if Circular 13/1975 was still in place and had the complainants 2018 application been assessed in accordance with its criteria he would not have met this criteria in November 2018 as he would at that stage have reached the age for receipt of the state pension and so he would not have come within the thresh hold of the hardship grounds having regard to his previous application. The respondent at the hearing provided an estimate calculation as to how this assessment would have been carried out in 2018 and the result of same had that circular still been in place. Thus, the respondent advised the hearing that even if his application in 2018 had been assessed under Circular 13/1975, his application would not have succeeded.

The respondent advised the hearing that whilst the bill to extend the retirement age to 70 was at the time close to being passed in the Dáil the primary legislation to effect this change only came into effect on 26 December 2018 but stated that the legislation did not have any retrospective effect in relation to public service employees who had retired prior to 26 December 2018.

Having considered the totality of the evidence adduced here it is clear from the evidence adduced that the retirement age in place at the time of the complainant’s termination of employment was 65 years of age.   It is also clear that the complainant applied for and was granted a one-year extension to that retirement age on the grounds of hardship by virtue of Circular 13/1975.    I am satisfied from the evidence adduced that the complainant following this one-year extension applied for a further extension which was assessed in accordance with the Circular in place at that time Circular 21/2017 and that he did not qualify for retention under that Circular.    I am also satisfied from the evidence adduced that this retirement age was later increased to 70 but that the legislation to effect this change was not in place at the time of the complainants retirement and that the revised retirement age was not and could not be applied to him retrospectively.     Therefore, I am satisfied that the complainants employment was terminated following his reaching the mandatory retirement age in place at the time and that his applications for extensions were assessed in accordance with the procedures in place at that time as dictated by Circular 13/1975 which was later replaced by Circular 21/2017.

I am thus satisfied that the complainant was not subjected to an Unfair dismissal and that this claim is not well founded.

I am thus satisfied that the complainant was not subjected to an Unfair dismissal and that this claim is not well founded.