ADJ-00033239

Complainant

Respondent

Parties

Sean Fleming

Instant Upright Limited

Representatives

Mr. Derek Beegan, Connect Trade Union

Mr. Loughlin Deegan, Byrne Wallace Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00043990-001

11/05/2021

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

CA-00043990-002

11/05/2021

The Complainant commenced employment with the Respondent on 5th May 1995. The Complainant was a permanent, full-time employee of the Respondent. He received a salary of €1,084.00 per week. The Complainant’s employment was terminated by reason of retirement on 11th December 2020.

On 11th May 2021, the Complainant submitted the present complaints with the Commission. Herein he alleged that his forced retirement constituted an unfair dismissal and discrimination on the grounds of age. At the hearing of the matter the Complainant’s representative stated that he wished to proceed under the Unfair Dismissals Act only and the complaint under the Employment Equality Act was withdrawn. In denying the Complainant’s claim, the Respondent submitted that he had reached the normal retirement age, as set out in his express contractual terms, and as such the dismissal was not unfair.

A hearing in relation to this matter was convened for and finalised on 2nd September 2021. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by with side during the hearing.

The Complainant was a long-standing employee of the Respondent, with an excellent work record. In May of 2020, the Respondent elected to move some of their operations overseas, prompting a period industrial relations unrest.

In September of 2020 this dispute was resolved with an agreed redundancy process implemented. The Complainant was not amongst the staff members that was made redundant. At this point the Complainant was assured that his employment was secure, with no mention of a forthcoming retirement at this time.

In October 2020, a pension broker emailed management on behalf of the Complainant. The pension broker informed management of the forthcoming maturity of the Complainant’s pension. At no point during this exchange did management advise that they intended to retire the Complainant at the age of 65.

On 2nd December 2020, the Complainant was issued with a letter of authorisation, allowing him to travel during the restrictions arising from the Covid-19 pandemic in place at the time. The Complainant stated that this demonstrated that the Respondent intended to retain him beyond the contractual retirement age.

On 14th December 2020, the Complainant received a call from his line manager advising him not to report for work as he had to retire as per the Company Agreement. The relevant clause in this agreement states that “The normal retirement age in the company is the date of your 65th birthday. The company will contact you 3 months in advance to ensure all issues relating to your retirement are in place”.

On 23rd December 2020 and 4th January 2021, the Complainant’s trade union corresponded with the Respondent alleging that the Complainant had in fact been unfairly dismissed.

In summary, the Complainant submitted that at the time of the company wide redundancies, the Complainant was advised that his services would be required in the future. Three months later, the Complainant was retired against his will. Having regard to the same, it was submitted that the Complainant was only retained during the redundancy procedure as the Respondent was aware that he would be retired in a few months. The Complainant submitted that there was no consultation with the Respondent regarding the retirement, with the Complainant simply being informed of the retirement by a single phone call. It was further submitted that this lack of engagement, coupled with the actions of the company in permitting international travel evidenced the fact the Respondent wished for the Complainant to work beyond his retirement age.

In response to the Respondent’s submission, the Complainant stated that the retirement age of 65 was not universally applied to all employees, and that he was aware of other employees that worked beyond 65.

The Respondent submitted that the Complainant’s contract of employment contained a clause that clearly and unambiguously set out a normal retirement age of 65. They submitted that Section 2(1) of the Unfair Dismissals Act provides that the Act does not apply in circumstances whereby an employee had reached the normal retirement age. In light of the contractual provision, and the relevant section of the Act, they submitted that the relevant provisions of the Act regarding unfair dismissal do not apply.

Notwithstanding the same, the Respondent denied the Complainant’s version of events. In particular, they submitted that on 22nd September 2020 the Complainant’s line manager sent an email clearly stating that the Complainant was to retire on the 11th December 2020, with his last pay date being the 17th December. It was submitted that the Complainant was well aware of his forthcoming retirement. It was further denied that the Respondent gave any indication that the Complainant would be employed beyond his 65th birthday.

In answer to a question, the production manager of the Respondent gave evidence of two individuals that were retained after their 65th birthday. He stated that both these persons were specialist welders who nominally retired on their 65th birthdays but were retained thereafter on a fixed term contract. The production manager stated that the normal process is that when an employee approaches their 65th birthday, the process for retirement begins and they are retired in line with their contract of employment. He stated that this is what occurred in the majority of instances and is very much the norm in the organisation.

Section 2(1)(b) of the Unfair Dismissals Acts provides as follows:

“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 or who on that date had not attained the age of 16 years”

In the present case, it is accepted that the relevant contractual clause in the Complainant’s contract states as follows,

“The normal retirement age in the company is the date of your 65th birthday. The company will contact you 3 months in advance to ensure all issues relating to your retirement are in place”.

It is further accepted that this clause is operable across the Respondent, with all employees’ being subject to the same.

The case advanced by the Complainant thereafter is two-fold. Firstly, they submit the Respondent’s failure to consult in advance of the same, and their implied consent to the Compliant working beyond the retirement age render the relevant clause ineffective. Secondly, they submit that as others worked beyond the age of 65, in reality this is not the “normal” retirement age for the Respondent.

Regarding the former point, I note the first line of the relevant clause is unambiguous and self-contained. While the second line of the clause does state that consultation will occur, the retirement itself is in no way dependent on such consultation taking place. While naturally such consultation is best practice, and necessary to defend complaints under other legislation, I cannot find that the Respondent’s alleged failure to consult serves to nullify a clear and unambiguous term of the contract. 

In relation to the second point, in the matter of Institute of Technology Sligo -v- John Comiskey UDD2140, the Labour Court held as follows,

“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.”

It should be noted that the word “normal” and the synonyms of “usual, regular, typical’, all imply that exceptions may exist to the standard retirement age. Having regard to the same, I do not find that the retention of other employees beyond the normal retirement age automatically serves to disapply the exclusion set out in Section 2(1).

Further to the same, I note the process regarding the Complainant’s retirement occurred somewhat automatically. As he approached his 65th birthday, his pension broker approached the Complainant and management advising that his entitlements would soon fall due. Soon thereafter, management of the Respondent contacted the Complainant regarding his forthcoming retirement. This sequence of events would imply that as an employee of the Respondent approaches their 65th birthday, the process regarding their retirement normally begins as standard.  

Regarding the employees retained by the Respondent beyond their retirement age, I note that the retirement age was not disregarded and that the clause was applied to them. I further note the evident from the Respondent they were retained on a 12-month, fixed-term contract thereafter. It is clear that these employees were the exception to the general rule regarding the retirement age, and that the normal retirement age for the Respondent remains 65 years of age.

Having regard to the accumulation of the foregoing points, I find that the exclusion set out in Section 2(1)(b) is operative and consequently, I do not have jurisdiction to hear the complaint. 

CA-00043990-002

I find that the exclusion set out in Section 2(1)(b) of the Unfair Dismissals Acts applies and consequently I do not have jurisdiction to hear the Complaint.

Retirement, Unfair Dismissal, Normal Retirement Age, Fixed Term Contract