UDD2340

1.Appeal Of Adjudication Officer Decision No(S) ADJ- 00028764

BACKGROUND:

2.The Employer appealed the Decision of the Adjudication Officerto the Labour Court on 16 May 2023 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 28 September 2023. The following is the Determination of the Court

DETERMINATION:

This is an appeal by McQuaid O’ Flanagan Warehousing and Transport Ltd., ‘the Respondent’, against a decision by an Adjudication Officer, ‘AO’, that Mr. Smith, ‘the Complainant’ was dismissed unfairly, contrary to the Unfair Dismissals Act, ‘the Act’.

The Complainant was employed by the Respondent as a mechanic at the time of his dismissal on 2 April 2020. He earned €946 per week.

The Respondent argues that the Complainant was not dismissed but, rather, that he was retired upon reaching normal retirement age. The Complainant argues that he was unaware of any ‘normal’ retirement age and that he was dismissed unfairly.

The AO decided that there was no unambiguous evidence of a retirement age, that the Complainant was dismissed unfairly and an award of compensation of €8112 was made.

Summary of Complainant arguments.

The Complainant’s representative requested the Court to regard the Decision of the AO as its submission on behalf of the Complainant and asked that it be upheld.

Summary of Respondent arguments.

The Court is referred to s.2 (1)(b) of the Act, which provides that the Act shall not apply when an employee is dismissed upon reaching normal retiring age.

The Respondent provided the Complainant with a statement of main terms of employment and a company handbook, both of which specify a retirement age. The Respondent did not receive signed copies from the Complainant but he was given them. It is clear that the retirement age was on attaining 66 years. This is the age specified in the handbook. The statement of terms of employment refers to reaching the age of 65 but it was always the intention to allow staff to work to the end of their 65^thyear.

The Act does not require a retirement age to be set out in writing. This case can be differentiated from that ofMolloy v Connaught Gold UD891/2009as in the instant case there is unequivocal evidence that the retirement age was set out in the statement of terms and in the handbook.

InInstitute of Technology v John Comiskey UD/20/179, the Court considered a term that allowed circumstances to be considered in evaluating if an extension of service might be granted. In the instant case, the Respondent maintained the Complainant in employment in order to allow him to serve out his full period up to the mandatory retirement age, even though his work had diminished considerably. It is noteworthy that the handbook allows for fresh employment ‘after retirement’ in certain circumstances.

InSean Fleming v Instant Upright Ltd., ADJ-00033239, it was established that a reference to consultation does not’ nullify a clear and unambiguous term of the contract’. In the instant case, the terms of the statement of conditions and the handbook are clear and unambiguous.

Finally, the AO, in determining compensation, made an award having regard to what was described as ‘loss of potential statutory redundancy under the Redundancy Payments Acts 1967-1973’. There is no basis for this. Redundancy was not sought or discussed. The Complainant was, simply, retired because he had reached retirement age. No complaint was made under those Acts.

Summary of witness evidence

Mr. Mick McQuaid.

Mr. McQuaid is the Transport Manager for the Respondent.

The witness said that he spoke to the Complainant in December 2019 about his upcoming retirement. The Complainant made no response. He spoke to the Complainant again in January 2020, at which time the Complainant indicated that he wished to remain in his role. The witness explained to the Complainant that he had to go.

The witness then got Covid and spent some time in ICU, only returning to work in March. He spoke to the company solicitor about the matter and then advised the Complainant that he was being let go. He denied that this had anything to do with differences of opinion.

The witness described the much-diminished workload of the Complainant at the time due, to technological advances, and the fact that another company had taken on major maintenance.

The witness said that minor maintenance was done by drivers since the Complainant’s departure.

The witness denied that other employees were kept on after reaching 66 years. One named individual did some jobs for the company to ‘get him out of the house’ since his retirement but he was not an employee. Another named truck driver was not over 66 years when he was working for the Respondent.

In cross examination, it was put to the witness that the Complainant reached 66 years on 10 January but was kept on until April. The witness said that the Complainant went on holidays, that the witness wanted to give the Complainant time to ease into the situation and that he had been ill himself.

In questions from the Court, it was put to the witness that the Complainant’s contract referred to retirement at 65 and the handbook referred to retirement at 66, so that applying the logic being argued for the Respondent’s position, could the Complainant not argue that he should be retained up to 67? The witness said that the handbook allowed the Complainant to stay to 66 and that was what was applied.

The witness said that if redundancy had arisen for consideration, it would have done so in 2015 or 2016 and that it had not been considered.

Mr. Peter Smith.

Mr. Smith is the Complainant.

The witness said that he had never seen his contract and knew nothing about it. There had been no mention of it until the last few weeks of his employment, when he was told that he had to retire because the company could not get insurance for him due to his age.

The first discussion he had about finishing was around his birthday in January 2020. He was told that he had to go, despite saying that he did not wish to go. He asked if there would be a ‘package’ and he was told that there would not.

The witness referred to a man, who was well past 66 years, who did work for the company, such as taking lorries in to be taxed. He did not know the details of the relationship but he knew that the man did work for the company. He referred also to a lorry driver that he believed to have worked for the company after he was 66.

In cross examination, it was put to the witness that he did not know the age of that named lorry driver and that Mr. McQuaid had given evidence that he was less than 66 years when he worked for the Respondent. The witness could not say for certain.

It was put to the witness that the company had insurance for employees up to 70 years. The witness reiterated that he had been told that he had to go because he could not be insured.

The witness denied that there had been any discussion with him in December 2019.

The witness said that he could not remember exactly but he believed that he had taken holidays before Christmas 2019.

The witness said that he had a number of arguments with Mr. McQuaid in the run up to him being told that he was being let go.

The witness said that he never saw or knew anything about a contract or handbook until the WRC hearing.

In response to questions from the Court, the witness said that he did not remember Mr. McQuaid being hospitalised with Covid.

The witness advised that he had not actively sought employment since his dismissal, that he was in receipt of the Old Age Pension and that he had just started recently to do some advisory work.

On redirect, it was put to the witness that there had been no discussion regarding redundancy and he reiterated that he had asked about a ‘package’.

The applicable law.

Unfair Dismissals Act.

1.

“dismissal”, in relation to an employee, means—

(a) 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,

Exclusions.

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:

(a) an employee (other than a person referred to insection 4of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him ,

(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,

Unfair dismissal.

6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Redress for unfair dismissal.

7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following F49[the adjudication officer or the Labour Court], as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

(1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) ofsection 14of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

Deliberation.

The relevant sections of the Act, set out above, make it clear that a dismissal is unfair unless shown to be otherwise, having regard to other relevant provisions set out in the Act. In the instant case, the Respondent relies on s. 2(1)(b) of the Act, see above, to argue that the Complainant was simply retired upon reaching normal retiring age.

However, in the view of the Court, that argument is severely undermined by the fact that the two documents on which the Respondent seeks to rely in establishing that there is a ‘normal’ retiring age, are, in fact, contradictory. One fixes this at age 65 and the other at age 66.

It is not, therefore, necessary for the Court to consider in any depth if the evidence given by the Complainant to the effect that he was unaware of either document is a plausible account, though the Court was given no reason to disbelieve him. Even if he was aware of the contents of both documents, the fact that they are contradictory meant that he could not be expected to interpret which was correct.

It seems to the Court that if an employer wishes to rely on 2. 2(1)(b), there can be no ambiguity or doubt about what is, or is not, a normal retiring age. While the Respondent is correct to say that the Act does not prescribe that any such age be set out in writing, it is axiomatic that if something is to be described as ‘normal’, it must be notorious, clearly understood and not open to misrepresentation or misinterpretation. None of these requirements have been met by the Respondent and they cannot rely upon an alleged normal retiring age, as a result.

While not determinative, the Court notes that the Respondent argument that age 65 meant the 65^thyear up to age 66 is, simply, incorrect as the year following a 65^thbirthday is, in fact, the person’s 66 th year. However, the substantive and fatal flaw in the argument made by the Respondent is the level of contradiction as between the two documents on which they seek to rely.

As this was the sole basis put forward by the Respondent for the dismissal of the Complainant, it follows that the dismissal is unfair.

Neither party argued that reinstatement or re-engagement are appropriate remedies and the Court believes that they are not appropriate in the circumstances. The Court is obliged to consider the question of compensation.

In arguing to the Court that it should, simply, uphold the AO Decision, the Complainant obliges the Court to consider the basis under which the AO decided the level of compensation to be awarded. In that regard, the Decision is correct in identifying that the Court is required to consider the effect of dismissal in depriving a worker of future employment rights. However, the Court diverges with regard to the inclusion of a purported loss under the Redundancy Payments Acts in the compensation awarded. If the Complainant was of the belief that his rights under those Acts had been denied to him, he was free to lodge a complaint under those Acts. For whatever reason, he chose not to do so. Therefore, what is in question is not a consideration of some future deprivation of rights due to dismissal but, rather, a choice made by the Complainant as to the appropriate legislation under which to make a complaint. As no complaint was made under the Redundancy Payments Acts, the Respondent could not be expected to mount a defence of its actions having regard to the provisions of those Acts. Therefore, in the view of the Court, it would be inappropriate to have regard, in determining compensation, to any rights that the Complainant might argue he should enjoy under those Acts, an argument that would, in any event, have been open to be contested by the Respondent, if it had been made.

The Complainant was frank and honest in giving evidence that he has made no efforts to mitigate his losses. Indeed, he has settled into retirement. Having regard to those considerations, the Court is satisfied that compensation of four weeks’ pay is the appropriate remedy for the unfair dismissal of the Complainant and the Court determines that the Respondent should pay to him a sum of €3784.

Determination.

The Decision of the Adjudication Officer is varied.

	Signed on behalf of the Labour Court
	Tom Geraghty
SOC	______________________
18 Oct 2023	Deputy Chairman