FULL RECOMMENDATION
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005 PARTIES : INTERLINK IRELAND LIMITED T/A DPD IRELAND (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MR MICHAEL DONOHOE (REPRESENTED BY NORTH LEINSTER CITIZENS INFORMATION) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s)ADJ-00022501, CA-00029443-002 This is an appeal by Mr Michael Donohoe (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00022501/CA-00029443-002, dated 15 December 2021) under the Minimum Notice and Terms of Employment Act 1977 (‘the Act’). Notice of Appeal was received on 21 January 2022. The Court heard the appeal in Dublin on 15 July 2022. The Factual Matrix The Complainant worked as a sorter/delivery driver since 1 November 1999. His employment transferred by operation of the European Communities (Protection of Employees on the Transfer of Undertakings) Regulations 2003 (‘the 2003 Regulations’) to Interlink Ireland Limited T/A DPD Ireland (‘the Respondent’) in June 2018. At that time, the Complainant was sixty-seven years of age. Following the transfer, the Respondent issued the Complainant with a written statement of terms and conditions which provided,inter alia, for a mandatory retirement age of 68. The Complainant read, but did not sign, this statement of terms and conditions. The retirement provision in the statement provides: “The Company’s retirement age is 68 at which time the Employee’s employment will automatically terminate without any notice obligations on either side.” The Complainant turned sixty-eight on 3 January 2019. His employment with the Respondent ceased on 25 January 2019.Complainant’s Submission The Complainant submits that, although he had no written contract with his original employer (the transferor), he had a verbal agreement that permitted him to work until age seventy. He accepts that he received the Respondent’s statement of terms and conditions following the transfer in June 2008 and read but didn’t sign it. He further accepts that it makes provision for a mandatory retirement age of 68. He states in his written submission to the Court that this purported amendment to his pre-transfer terms and conditions was in breach of the 2003 Regulations. He also submits that his sixty-eighth birthday came and went on 3 January 2019 and he continued to work as normal. Nobody from the Respondent’s human resources department or from management approached him about retirement. He submits, therefore, that he was entitled to continue working until age seventy. It is his submission that the Respondent, nevertheless, terminated his employment on 25 January 2019 and that his dismissal on that date was in breach of the Act. Respondent’s Submission It is submitted on behalf of the Respondent that the Complainant voluntarily resigned his employment by reason of retirement on 25 January 2019 following a series of engagements with his manager from early January 2019 onwards. The Respondent submits that the Complainant’s resignation was originally to take effect on 18 January 2019 but was delayed by a week in circumstances where the Complainant availed himself of a week’s paid compassionate leave following a series of bereavements. The Complainant’s Evidence The Complainant told the Court that he received a written statement of terms and conditions following the transfer of his employment to the Respondent in June 2018, that he read that statement and was aware of the mandatory retirement age provision in it and that he accepted it, although he didn’t actually sign the statement. The Complainant referred to a discussion he had with Mr Jeff Faulkner, his manager, in or around early January 2019 in relation to what appeared to be a significant reduction in his take-home pay. He says he was advised that this was due to tax reasons. He went on to tell the Court that he came to work in the usual way on 11 January 2019 but in the course of the morning he received bad news about his brother-in-law. He, therefore, left work and took his wife to the hospital to see her brother. He had a number of family bereavements over the next couple of days and, therefore, took the following week off work but was paid for the week. When he returned to work on Monday 21 January a colleague, he says, expressed surprise to see him at work and remarked to him that his (the Complainant’s) employment was due to end on the previous Friday. The Complainant told the Court that he got Mr Faulkner’s mobile telephone number and asked him what was going on. According to the Complainant, Mr Faulkner assured him that he was still employed by the Respondent and he should proceed to do his work as normal. The Complainant said he continued to so until the following Thursday when he again telephoned Mr Faulkner because many of his colleagues had been telling him that he was due to finish work the following day. Mr Faulkner, he says, confirmed that to be the case. He said Mr Faulkner came to see him at the depot early in the morning of 25 January, he worked normally that day and handed in his keys at the end of his shift. He denies that he tendered his resignation or that he had retired from his employment. The Complainant also gave evidence in relation to his efforts to mitigate his loss. He said he had made efforts to find driving or stores work in the period between 25 January 2019 and the advent of the Corona Virus. However, he said that he hadn’t compiled a Curriculum Vitae and nor had he registered with an agency or recruitment company. Evidence of Mr Jeff Faulkner The witness told the Court that he had been employed as a Regional Manager with the Respondent at the material time and had responsibility for seven depots, including the depot from which the Complainant operated. He said he had had a good rapport for a number of years with the Complainant as he did with the other drivers working for the Respondent. The witness referred to a meeting he had had with the Complainant in mid-January 2019 when the Complainant had approached him to say that his pay was not correct. He said he put in a request to the human resources department to verify if the Complainant’s working days in the relevant pay period had all been recorded and they had been. He said he then put the Complainant in direct telephone contact with somebody in human resources and the telephone call that followed was a lengthy one. The witness’s evidence is that the Complainant came to him after that call to say that the problem was caused by his pensions and that he was not in a position to work for the money that he was now taking home and requested to be paid cash-in-hand. The witness says he told the Complainant that this would not be possible to which the Complainant, he says, replied, “I am out of here. I am retiring age. I have my pensions and I will retire on Friday”. According to the witness, the Complainant’s bereavements occurred later that week and the witness, therefore, arranged for cover for the Complainant having made a decision to pay him for a week’s compassionate leave. According to the witness, the Complainant returned to the workplace on 21 January on which date the witness met the Complainant and sympathised with him about his loss. He says the Complainant told him that it was intention to retire the following Friday. The witness said he did not communicate this to either the Complainant’s colleagues or to the customers he serviced as it was his own business. The witness told the Court that he was aware that the Complainant received many gifts from customers during the course of week leading up to 25 January 2019 as he had been well-known and liked as a driver. Finally, the witness told the Court that he received a telephone call on 24 January from the Complainant in which they again discussed his retirement and that he went into the depot on the morning of the 25thto wish him well for his retirement. Discussion and Decision Dismissal is in dispute in this case. The burden of proving that a dismissal within the meaning of the Act occurred falls on the Complainant. Having regard to the totality of the evidence before it, the Court finds that the Complainant has not discharged this burden. The Court found Mr Faulkner to be a very credible witness with very good recall of the events that took place in the period in question in January 2019. Mr Faulkner is no longer working for the Respondent so it cannot be suggested that his evidence was tendered other than impartially and independently. In the Court’s judgment, the evidence before it is that the Respondent did not take any active steps to remind the Complainant that the mandatory retirement age provided for in his contract was approaching and did not initiate the termination of his employment on retirement grounds or at all. It is apparent to the Court that the Complainant himself decided to bring his employment to an end once it had become apparent to him that his income tax liability had increased in January 2019, due to his being in receipt of certain pension payments, and that the Respondent was not disposed to paying him cash-in-hand. It follows, therefore, that the Court finds that the Complainant terminated his own employment and was not dismissed, unfairly or otherwise, by the Respondent. It follows that the issue of entitlement to a minimum period of notice from the Respondent does not arise in this case. The appeal fails and the decision of the Adjudication Officer is upheld. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary. |
