UDD2140

1.Appeal of Adjudication Officer Decision No(S) ADJ-00007415 CA-00009955-001

BACKGROUND:

2.The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 6 November 2020 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 13 May 2021. The following is the Determination of the Court:-


DETERMINATION:

This matter comes before the Court as an appeal by Mr John Comiskey (the Appellant) against a decision of an Adjudication Officer in his complaint under the Unfair Dismissals Act, 1977 (the Act) made against his former employer, the Institute of Technology Sligo (the Respondent).

In a decision issued on 29^thSeptember 2020 the Adjudication Officer decided that the complaint was not well founded.

Background

The Appellant was employed by the Respondent from 1989 until the termination of his employment on 31^stAugust 2016.

The Appellant contends that he was unfairly dismissed within the meaning of the Act. The Respondent contends that by operation of the law at Section 2(1)(b) of the Act, the Appellant lacks locus standi to maintain the within claim.

The Act at Section 2(1)(b) states as follows:

• 2.— (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, had reached the normal retiring age for employees of the same employer in similar employment F10 [ or who on that date had not attained the age of 16 years,

The Respondent submitted that the normal retirement age of the Appellant on the date of termination of his employment was 65, with the option of retiring on his birthday or at the end of the academic year in which his birthday fell. The Appellant retired on 31^stAugust 2016 which was his normal retiring age and consequently he does not, having regard to the Act at Section 2(1)(b), have locus standi to maintain the within complaint.

On 4^thJanuary 2016 the Appellant advised the Respondent that he intended to remain in his employment until the end of the academic year after his 65^thbirthday and to retire on 31^stAugust 2016. He repeated this assertion on 8^thJanuary in writing.

The Appellant wrote to the Respondent on 10^thMay 2016 and indicated that he intended to remain in employment for a period not beyond 7^thJuly 2017. On 25^thMay 2016 the Respondent wrote to the Appellant advising him that his request had been considered but that the Respondent expected him to retire on 31^stAugust 2016.

The Respondent submitted that a total of 154 of its staff had retired prior to the Claimant and the latest retirement age of any such person was the end of the academic year following the date of their 65^thbirthday.

The retirement age of the grade occupied by the Appellant was established by way of collective agreement in 1999. That collective agreement formed part of the contract of employment of the Appellant and consequently he could not maintain the within complaint. The retirement age contained in the collective agreement was understood by the Appellant to be his normal retirement age and was the accepted norm without challenge by all staff of the Respondent.

Summary position of the Appellant

The Appellant submitted that the contract of employment upon which he was employed in 1992 did not contain a retirement age. A collective agreement in 1999 did establish a compulsory retirement age for staff of the Respondent covered by it, but that agreement also provided in respect of then serving staff that the circumstances of an individual who would have less than full pensionable service at age 65 would be considered sympathetically. The Appellant had less than full pensionable service at age 65.

The Appellant had sought an extension of his service on the basis of the provisions of the 1999 agreement. On 10^thMay 2016 he clarified that the extension he was seeking was just less than one year’s duration. On 20^thMay he again sought an extension to his service but was informed on 25^thMay that the Respondent expected him to retire on 31^stAugust 2016.

The Appellant contended that he was never given a reason for being refused an extension to his service and had not had his request for extension of service considered sympathetically. He was entitled to such consideration on the basis of the 1999 collective agreement.

He contended that whereas the 1999 agreement introduced a compulsory retirement age for staff in his grade, it did not have the effect of introducing a normal retiring age for staff already in service at the time.

Summary testimony on behalf of the Appellant

Testimony was given on the Appellant’s behalf by Mr B.S. who was a member of the Trade Union negotiating team which arrived at an agreement with Institutes of Technology in 1999 which was later accepted by the membership of the Union. He stated that the intention of the agreement was that existing staff would have the benefit of sympathetic consideration should they have less than full pension entitlement on reaching the age of 65. He accepted that the agreement did not provide an entitlement to service beyond the compulsory retirement age but it did entitle a member to sympathetic consideration in the circumstances outlined. He stated that notwithstanding the title of the agreement and its reference to “Institutes” in the plural, the specific retirement provision related only to the Respondent.

The witness stated that no person had retired in any Institute nationally since 1999 at an age other than the compulsory retirement age set down in the 1999 agreement.

Discussion and conclusions

This appeal will turn on the question of whether the Claimant had, at the date of the occurrence of his alleged unfair dismissal, reached the normal retiring age for employees of the same employer in similar employment.

It is common case that the Appellant retired at the end of the academic year in which his 65^thbirthday fell.

The Appellant submits that whereas he was a party to a collective agreement in 1999 which introduced a compulsory retirement age for his grade, the terms of that agreement did not mean that the normal retiring age of employees of the Respondent in similar employment to him who had been employment in 1999 was that which was set out in the collective agreement and identified as compulsory.

The collective agreement in relevant part provided as follows:

• “Agree to the introduction of a compulsory retirement age of 65 (staff members to have the option of retiring on their birthday or at the end of that academic year; i.e. 31^stAugust). For existing serving 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 Respondent submitted that the terms of the collective agreement, taken together with custom and practice in the Respondent organisation and the terms of relevant statutory instruments and circulars of the Department of Education, meant that the Appellant’s normal retiring age was consistent with the terms of the 1999 collective agreement. The Respondent further submitted that it had complied with the 1999 agreement in the case of the Appellant in that it had considered the Appellant’s application to remain on employment beyond his normal retiring age but decided not to facilitate that.

The Oxford English Dictionary defines the word ‘normal’ as meaning ‘conforming to standard, usual, regular, typical’.Taking that definition into account, the plain meaning of Section 2(1)(b) can reasonably be understood as excluding from the protections of the Act those persons who have reached the age at which employees in similar employments usually, typically, regularly or normally retire.

In the within matter the Court has heard submissions as regards the operation of the Superannuation scheme which applied to the Appellant but was not provided with a copy of that scheme by the parties. Much discussion took place before the Court as to the meaning of the 1999 collective agreement which introduced a compulsory retirement age. That agreement was headed “Settlement in respect of Craftsmen and General Operative related grades in the instItutes of technology”.

The specific clause of that agreement which was the subject of dispute before the Court referred to an undertaking that“the institutes agree that such an individual’s circumstances will be considered sympathetically”. Notwithstanding the fact that the agreement refers to “institutes” the Appellant’s witness gave evidence to the effect that this clause applied to only the Respondent institute. That evidence was challenged by the Respondent at the hearing of the Court.

The Court notes the following;

• 
  •Testimony on behalf of the Appellant was to the effect that since 1999 no person covered by the collective agreement in any Institute nationally had retired at an age greater than that specified in the collective agreement.

  •The undisputed submission of the Respondent was to the effect that since 1999 no person covered by the collective agreement employed by the Respondent had retired at an age greater than that specified in the collective agreement.

  •The 1999 agreement provides for a compulsory retirement age of 65 (staff members to have the option of retiring on their birthday or at the end of that academic year; i.e. 31st August).

  •The 1999 agreement provides that, if an existing“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”

  •Testimony on behalf of the Appellant was to the effect that this latter clause of the 1999 agreement did not confer a right or entitlement upon any person to remain in employment beyond the compulsory retirement age specified in the agreement. It did however confer a right upon certain persons covered by the agreement to apply to remain in employment beyond that date.

While the agreement did make provision for serving staff to have their circumstances considered sympathetically if they would have less than full pensionable service at age 65. This latter provision cannot be interpreted as meaning that such staff had any right or entitlement to remain in employment beyond the compulsory retirement age but rather that they could request to have their circumstances considered sympathetically. This interpretation is consistent with the testimony proffered by the witness on behalf of the Appellant.

In all of the circumstances set out above, the Court concludes that the normal retiring age for the Appellant in 2016 was his 65th birthday or the end of the academic year of 2016.

Having concluded that the Appellant had reached his normal retiring age on the date of the termination of his employment, the Court must conclude that he does not have locus standi to maintain the within claim.

Decision

The Court decides that, by operation of the law at Section 2(1)(b) of the Act, the within appeal must fail.

The decision of the Adjudication Officer is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CO'R	______________________
18 May, 2021	Chairman