Complainant

Respondent

Parties

Teresa  McCoy O'Grady

Sodexo Ireland Limited

Representatives

Niamh Ní Cheallaigh Ibec, Lynn Carson, Mary McEvoy, Niamh Cullen, Jolanta Binkawska

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-00039307-001

21/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00039332-001

24/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00039334-001

24/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00039335-001

24/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00039336-001

24/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00039337-001

24/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00039338-001

24/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00039339-001

24/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00039345-001

24/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00039352-001

25/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00039389-001

25/08/2020

The Complainant was employed as a Chef from 6th February 2012 to 27th March 2020. She was paid €555 per week on average. She has claimed that she was unfairly dismissed because of her age and was forced to retire. The Respondent has rejected this claim and her employment ended when her contract of employment ended.

The Respondent stated that this claim is brought under Section 8 of the Unfair Dismissal’s Act, 1977. The Complainant alleges that she was unfairly dismissed. The Respondent refutes this claim. The Complainant’s employment was terminated by reason of retirement on 27 March 2020 and therefore no dismissal unfair or otherwise took place.

Preliminary Argument

The definition of dismissal is set out in Section 1 of the Unfair Dismissals Act which defines it as; “the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee”. The Act also sets outs exclusions to that definition which are set out in Section 2(1) and states; (1) Except in so far as any provision of this Act otherwise 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, has reached the normal retiring age for employees of the same employer in similar employment” The Respondent contends that as the Complainant had reached normal retiring age, the exclusion of Section 2(1)(b) of the Unfair Dismissals Act 1977 applies and therefore, we respectfully submit that the WRC does not have the jurisdiction to hear this claim.

Background to the Complainant

On 4 November 2019 the Complainant transferred employment to the Respondent as a Kitchen Assistant on a religious order site. At the time of transfer, she was on a post-retirement fixed-term contract which was due to expire on 29 March 2020. This was confirmed to the Respondent as part of the TUPE due diligence process in August 2019. The Complainant also confirmed this to the Respondent as part of the TUPE consultation process in September 2019. The Complainant worked variable hours and earned on average €555.00 per week.

Background to the claim

In January 2020 the House Manager (and the Complainant’s Line Manager) was speaking to the Complainant about the options for an Easter menu (in April) when the Complainant made a comment about her upcoming retirement saying, “if I’m still here”. On 12 February 2020 the Client Relationship Manager and the Operations Excellence Manager, met with the Complainant to discuss her upcoming retirement. The Complainant was advised that in line with her contract and also her extension letter from her previous employer she was due to retire on 29 March 2020. The Complainant was advised that her retirement was solely based on her terms and conditions of employment. She was accepting of the fact that she had to retire and was aware that her fixed term contract of employment was due to expire and she would be retiring. Subsequently the Complainant made a request to retire on 27 March, 2 days earlier than scheduled. The Respondent agreed to the Complainant’s request, organised a retirement gift and she retired on 27 March 2020 as agreed ). 7. The Complainant then lodged her complaint with the WRC on 21 August 2020 alleging that the Respondent “said I had to retire as I was too old” – an allegation which is wholeheartedly disputed by the Respondent.

Respondent’s Position

Notwithstanding the Respondent’s preliminary argument that the WRC does not have the jurisdiction to hear the complaint, it is the Respondent’s position that no unfair dismissal took place but rather the contractual relationship with the Complainant terminated by reason of retirement in line with the provisions of her contract and the custom and practice on the site she that was employed on.. There are no employees over the State pension age of 66 employed on the site. The Complainant transferred over to the Respondent on a 6-month extension to her contract of employment. This extension document, which the Complainant signed, stated that she would retire on 29 March 2020. The Complainant’s retirement on 29 March 2020 was something she was aware of and mentioned to the Respondent as part of the due diligence process as well as commenting on it to her manager in January 2020. As confirmed to the Complainant upon her transfer to the Respondent, they would honour her terms and conditions and this included her retirement age. Notwithstanding that point, the Complainant requested to retire 2 days earlier and this was facilitated by the Respondent. The Respondent has an established Grievance Policy and Procedure. It is worth noting that at no point did the Complainant raise a grievance or a formal complaint in relation to any of the matters referred to above. The Respondent notes from the Complainant’s claim form that she has indicated both reinstatement and compensation as her preferred form of remedy. In the event that the Adjudicator were to find in favour of the Complainant, notwithstanding the Respondent’s position that there is no jurisdiction to do so, we would ask that the Adjudicator choose what is the most appropriate remedy in the circumstances and the preferred option is compensation. It would not be reasonable to have the Complainant return back to the workplace in circumstances whereby she would be the only person over and above the retirement age. The Respondent respectfully submits that where one party is strongly opposed to re-instatement or re-engagement, the Adjudicator should respect this. Furthermore, the Respondent submits that should the Adjudication Officer determine that they have jurisdiction to hear this claim and then find in favour of the Complainant, the amount of any award of compensation must be reasonable in light of all the circumstances and in light of the financial loss incurred by the Complainant since her date of dismissal.

Conclusion

The Adjudicator is respectfully requested, based on this submission and the evidence presented, to find in favour of the Respondent in this case.

The Complainant stated that she believed she was discriminated against on the grounds of her age. She worked as a Chef for 7 years.  ln November 2019 there was a transfer of undertaking to the Respondent.  This was to take place under the guidelines of T.U.P.E. and she was told that all terms and conditions of employment were protected. However once the person looking after the takeover, discovered she was to have her 66th birthday in October she said she would have to go as they didn't employ people of her age. However, she had, in September; been given a six-month extended contract by the previous employer. This is what normally happened over the years, staff were always allowed to work long past their retirement age - so this is what she expected to happen to her. Normally one would be given a six-month extended contract, then if one were fit and able to work one's normal hours this contract was extended for as long as one was able to work. Sometimes staff were asked to have a medical to make sure they were fit. She would have been more than happy to have done this. After the takeover she had a meeting with management and she said she was aware that there seemed to be some problem with her age and working for the Respondent. to which she was told that they had no problem with her age. All she was worried about was that she would be without a chef and would have to start looking for someone new straight away. I said I had been given a six-month extension. This seemed to really annoy management. She said in that case we will discuss what will happen nearer to the retirement date. Then in February she was asked to attend a meeting with her manager at 12 noon. However, the manager didn't turn up until 12:45. She then just said straight out that she would have to retire on March 29th. When she asked why she was told that she was 66 and a half and well over retirement age and that she had to go. This was the only reason for telling her to leave. She then said that she thought this was very unfair as she was well able to do everything she was asked to do and in fact worked 38 to 40 hours a week, which was more hours than anyone else in the kitchen. To this her manager said "Oh you have done nothing wrong. You are an excellent chef and a very good employee, in fact you made our takeover very easy because you were so easy to work with, but you will still have to retire in March." She said she thought this was very unfair as there was already another person who was 69 and still working in a part of the house employed by the Respondent’s sister company and if she was still employed she couldn't see why she had to leave. Her manager said she should not worry about what happened on the other side of the house. She then said that all the care staff had the Respondent’s logo on their uniforms just as she did, so she could not see why there were treated in a different way as we all had to work together to care for the old men they were there to look after. The manager then said well, that is the way it is and the care staff have nothing to do with the Respondent.  All staff in the house have to work together as many of these men need special food etc. She also had no reason to believe she would be asked to leave as she had just been sent, three weeks before this, on a Food Safety Supervision course. None of what has happened made sense since the manager was fully aware and had it in writing, that many staff stayed on long past their retirement age. She believed that she was discriminated against and is seeking re-instatement or compensation.

1) Jurisdiction

I note that the Respondent has relied upon the definitions of dismissal set out in Section 1 of the Unfair Dismissals Act and in particular the exclusions, to that definition which are set out in Section 2(1) and stating “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, has reached the normal retiring age for employees of the same employer in similar employment”, this is to ascertain that the Workplace Relations Commission does not have jurisdiction to hear this claim.

I note that the Complainant is relying upon the fact that her employment transferred to the Respondent and that her terms and conditions and custom and practice are protected under the Transfer of Undertakings legislation, which in her opinion applied to her staying on in this employment.

I have decided that the Complainant has raised sufficient grounds under the implications of the transfer of undertakings regulations, for me to consider this case under the Unfair Dismissals Act. So, I have decided that I have jurisdiction to deal with this complaint.

2) The Complaint

I find that this complaint was taken under the Unfair Dismissals Act, not the Employment Equality Act.

While I find that the Complainant has referred to discriminatory dismissal I must apply the provisions of the Unfair Dismissals Act, but I should take note of the provisions of the Transfer of Undertakings Regulations and also consider possible implications of the provisions of the Employment Equality Act.  

I find that this employment transferred to the Respondent in November 2019.

Transfer of Undertakings Regulation 4 (1) Rights & Obligations states, “The Transferor’s rights and obligations arising from a contract of employment existing on the date of a transfer shall by reason of such transfer, be transferred to the transferee”.

I find that the Complainant had received a fixed term contract extension to her contract of employment, which allowed her to work beyond the normal retirement age.

I find that she had an expectation that she could receive a further extension to that contract provided she was physically able to do so and she affirmed her willingness to be medically assessed if necessary.  

Alleged dismissal having reached retirement age