Complainant

Respondent

Parties

Michael  Donohoe

Interlink Ireland Ltd Dpd Ireland

Representatives

Dundalk Citizens Information Centre

IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00029443-001

03/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00029443-002

03/07/2019

The complainant Michael Donohoe began working on November 1st, 1999 as a courier with the respondent. His employment ended on January 25th, 2019. He has submitted complaints under the Unfair Dismissal Acts 1977 -2016 and under the Minimum Notice & Terms of Employment Act 1973.

The case concerns a claim by Michael Donohoe under the Unfair Dismissals Acts 1977, Minimum Notice & Terms of Employment Act, 1973 against his former employer Interlink Ireland Ltd.  The fact of dismissal is in dispute as the complainant retired from his post as per his contract of employment.

In 2018 the respondent issued the complainant with an updated Statement of Main Terms of Employment. The Statement contains the following clause under the heading of 'Retirement Age’.

The company's retirement age is 68 at which time the Employee's employment with automatically terminate without any notice obligations on either side.

The complainant turned 68 on January 3rd, 2019. On January 11th, 2019, he told his Depot Manager that he would retire on January 18th,2019.

For personal reasons the complainant then had a period of paid compassionate leave and returned to work January 21st. He advised that his employment would finish that Friday, January 25th, 2019.

Both parties accept that the complainant's Terms of Employment set the retirement age at 68. This is the common retirement age for the employment.

The Unfair Dismissals Acts (as amended), says at 2. - (1):

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 dismissal, had reached the normal retiring age for employees of the same employer in similar employment ...

The Act is clear, no jurisdiction exists to entertain this claim as it is excluded by the Act.

Notice does not arise in a retirement. The contract of employment specifically waives notice obligations in a retirement. In addition to which the complainant was advised as early as July 2018 of the company retirement age.

The respondent relies on ADJ-00016260; a complaint brought under the same legislation and on near identical facts as this case. These claims are misconceived as retirement is not an Unfair Dismissal and Notice does not arise.

The Complainant began working with Interlink Ireland Limited trading as DPD on November 1st, 1999, as a courier.

Hehashadnoissues withhisemployers in overtwentyyearsofservice. There was a transfer of undertaking in 2018 when he was given a written undertaking of continuity of employment including all rights connected with thecontractsofemployment.

The complainant has not been given a staff handbook.

In January 2019, he needed compassionate leave and in short order he suffered three close family bereavements. He was on leave due to the bereavements, from January 11th, 2019, until January 18th, 2019.

He returned to work on January 21st, 2019 and had a discussion with Dominic Kelly who informed him that that he was no longer employed by DPD.

As a result of this conversation and immediately after, the complainant went home and called the Depot Manager to tell him what he had been told, to earn from him that he was still employed by DPD until told otherwise.

Over the next few days, the complainant started to hear from customers and staff that he was ‘finished’ on January 25th, 2019.

On Thursday 24th the complainant rang the depot manager who confirmed that he was finishing up on January 25th, 2019. The complainant had worked for the company for twenty years and was shocked at this and the fact he had not received notice or any reason for his dismissal.

When he questioned the manager, he said that he wanted to keep him as he was good in the company, but it was out of his control.

The complainant worked his shift on Friday January 25th, 2019, and on January 30th, the Citizens Information Service (CIS) sent a letter to the respondent seeking further clarification.

A response was received on February 11th from DPD) stating “On the 11th of January 2019 you tendered your resignation and your last day of work was due to be the 18th of January 2019.”

 The complainant had twenty years’ service and at no time did anyone in DPD mention the noticerequiredtobegivenunderthecontractofemployment.

On the February 18th, the complainant responded, denying that he resigned, advising that he was not working on February 11th and asked for a copy of his resignation.

The respondent replied on February 20th and stated, “Michael as you are aware your resignation was made verbally to me and was not in writing”.

In fact, the complainant is entitled to twelve weeks’ notice. 

CIS received the complainants Data Access file and there is no mention of a discussion of his resignation nor are there any references to a request for a written resignation as per the contract of employment.

An email dated February 11th, 2019, refers to the complainant’s termination where the email says, “we can get him processed as a leaver this week”. The complainant denies that an earlier alleged the conversation about his health had taken place took place, and he remained capable of doing his work.

The complainant is not disputing an earlier accident happened in 2018, but this was attributable to a faulty handbrake.

In an email dated 27th of August 2018, shortly after the transfer, most of the email is redacted however at the bottom of the email it clearly states “Micka again manages himself and his collections.”

It is the complainant’s position that he was dismissed from his employment on January 25th, 2019, and that his dismissal was an unfair dismissal and falls within the scope of the Act. There were no grounds justifying dismissal, and he strongly rejects the claim that he resigned his position. He is also entitled to the appropriate notice payment.                                                                                                                                    In the respondent’s email of August 27th, 2018, he is frustrated with the complainant where he says “Micka-again manages himself and his collections”.

There was a failure to follow procedures after the accident which occurred on October 3rd, 2018, where the complainant was not asked to complete the incident report. Regarding emails related to missed collections and customer complaints on the December 3rd and 4th 2018 no disciplinary action followed

Although the complainant was experiencing a very difficult personal period in his life, he did notify his employer.

There are no records in the Data Access file that the complainant ever approached anyone in DPD resigning his position and the complainant has stated he “was happy to continue working within the company”

The complainant seeks compensation for loss of earnings and minimum notice.

There are two strands relevant to a determination of these complaints.

The first, and by far the more decisive is the complainant’s Contract of Employment; the employer refers to it above.

Curiously, in an extensive submission the complainant does not refer to it at all, although there is a degree of rather confusing fog about other issues (in 2018) which have no bearing on the case, unless there is some suggestion that the respondent re-activated these issues as grounds for terminating the complainant’s employment some three years later.

But the complainant did not dispute the provisions on the contract in relation to retirement age, either in the formal submission or in his direct evidence to the hearing. He confirmed that he had seen the contract.

Then, in the second strand, argument in the case turned on conversations between the complainant and his manager in January before the termination took place.

That manager gave evidence of that conversation with the complainant on January 11th in the course of which the complainant raised an issue about his take home pay. The witness referred him to the payroll department.

That witness further stated that the complainant told him that he could not work for that amount and sought some form of tax-free cash payment. He continued in evidence that the complainant told him that he would finish up in two weeks; quoting him as saying ‘I’m out of here’ and repeating that he would finish up in two weeks’ time.

The complainant confirmed that a conversation took place about pay, but denied that he sought a pay rise, or cash payment.  He also said that there was no reference to him working beyond retirement age.

The complainant then had the misfortune of three close family bereavements which obviously disrupted the timeframe referred to.

The respondent’s management of the situation leaves something to be desired. The lack of formal communication about the retirement date falls some way short of what might be regarded as the courtesy due to a long-standing employee.

That said, and the complainant accepted as much in evidence, he was aware of the provision in the contract as it related to his retirement.

On balance I prefer the evidence of the witness manage regarding the January 11th exchange. This indicates that the complainant was aware of the retirement age, and whatever the truth of the exchange about the take-home pay nothing turns on it for this decision

While the respondent’s communications lacked a degree of both good business practice and compassion and noting that the complainant’s period of bereavement leave interrupted what might have followed had he been at work, I can find no basis for his complaint that he was unfairly dismissed.

Accordingly, I find that the termination of the complainant’s employment arose from his reaching the contractual retirement age and the complaint of unfair dismissal is not well founded.

For that reason, the complaint regarding notice also fails.

For the reasons set out above Complaint CA-00029433-001 is not upheld and the dismissal was fair, and complaint CA-00029433-002 is not well founded.

Retirement, Unfair dismissal.