Complainant

Respondent

Parties

Kieran  O Brien

Paul Boyd trading as John Dwyer Butchers

Representatives

Self

 D.A. Houlihan & Son, Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00053624-001

09/11/2022

The Complainant commenced working in the Respondent business in October 1971. His gross pay was €400 per week approximately.

The Respondent took over the business in August 1997 on the retirement of his father-in-law John Dwyer who had been carrying on the business from the same premises since 1967.

The Complainant's employment ended on 24 September 2022. He was 73 years of age at the time.

The Complainant brought a complaint under the Redundancy Payments Acts 1967 that he did not receive a redundancy payment on the termination of his employment.

The Complainant confirmed his date of birth was April 1949. He commenced working in the business now owned by the Respondent in 1971. He worked full-time as a butcher, and this involved slaughtering /boning meet for sale and working in the shop serving at the counter as required.

The Complainant confirmed that he had received a staff handbook. He confirmed he received a payslip.

He explained that there was no retirement age in the business, but that the Respondent did ask about when he was planning on retiring and there were discussions about his retirement.  The Complainant described this discussion as "torturing". He confirmed that the Respondent did often ask about it.

The Complainant took holidays in August/September 2022 and never returned to the workplace.

The Complainant didn’t taken up any work since his employment ended and he has not applied for any other jobs.

He explained that he would like to have kept on working in the business for as long as he could have.

He confirmed that he was in receipt of the Social Welfare pension.

Under cross examination, the Complainant accepted that he never said he didn't want to retire. He said that he didn't think he agreed to retire.   He recalled specifically saying the words to the Respondent during one of the discussions "do I have any choice?".

The Complainant accepted that he didn't raise any issue with the correspondence he received from the Respondent in August 2022. He said that he didn't know that he should have raised a complaint at the time.

The Respondent’ representative raised a preliminary issue that the Respondent was not correctly identified in the complaint form. It submitted that no claim against Paul Boyd was before the WRC.

She submitted that the Complainant's employment was terminated by reason of retirement rather than redundancy.  She explained that the Respondent had several discussions with the Complainant regarding his retirement in the years prior to his retirement in September 2022.

In August 2022, an agreement was reached between the parties that the Complainant would retire following his summer holidays in September 2022. The agreement was recorded in the Respondent’s letter to the Complainant dated 10 August 2022. No issue whatsoever was raised by the Complainant following his receipt of this letter.

The Respondent submitted that the Complainant was aware that the normal retirement age in the business was 65 years. This was contained at page 23 of the Employee Handbook. The Complainant signed an Acknowledgement confirming that he had sight of the Employee Handbook.

The Respondent explained that the Complainant worked his last day on the 17 September 2022 and took one week’s annual leave the following week. His employment terminated on 24 September 2022 by mutual agreement.

The Respondent’s wife gave evidence. She explained how her father had run the business before he retired. She now managed the accounts for the business.

She was aware that the Complainant had had short conversations with her husband the Respondent regarding his retirement.

The witness had prepared the letter following the discussions and agreement on the Complainant's retirement.  She confirmed that she handed the letter 10 August 2022 to the Complainant.  She recalled it was a Saturday evening and that the letter was given to him in an envelope.

She confirmed that she gave the Complainant a thank you gift for his service on his retirement.

The Respondent gave evidence. He said that the discussions about the Complainant's retirement had gone on for a long time. The work involved in the business was quite physical and he was aware the Complainant couldn't continue working forever.

He said there was never any question that he was making the Complainant redundant.  He confirmed that none of the discussions he had with the Complainant were about redundancy, the discussions were always about the Complainant's retirement.

The witness stated that the Complainant never said he didn't want to retire. He pointed out that he never raised an issue with the Respondent’s letter of 10 August 2022.

He said he was sympathetic to him and allowed him to continue working from his 66th birthday until after his 73rd birthday.

The witness advised that while he had not renewed his slaughter licence due to environmental issues, the shop was still open and he was still boning meat that was purchased wholesale.

He explained that the Complainant never came back to work after his holidays in September 2022.

I am conscious that this claim is brought under the Redundancy Payments Acts 1967 and not under any other legislation.

Preliminary issue:

I am satisfied that the Respondent is correctly before the WRC. On page 3 of the complaint form he was personally named and on page 4 under the heading “Respondent/Employers Full Legal details” he is named as owner.

Having heard evidence with regard to the staff handbook and the name of the business over the door, I am satisfied that the Respondent is as named at the heading of this decision.

Substantive issue:

An employment relationship can come to an end in a number of different ways. In some situations, it will end amicably and in others not.  Where a dismissal is by reason of redundancy, an employee may be entitled to compensation for the loss of their job.

In this case, the fact of dismissal was in dispute.

While dismissal is not defined in the Redundancy Payment Acts, date of dismissal is. It sets out in Section 2 what "date of dismissal" in relation to an employee is.

The Workplace Relations Commission (WRC) has a code of practice (SI 600 of 2017) on longer working. The code sets out best practice and guidance in the run up to retirement.  If an employee wants to ask to work beyond retirement age, he/she must make a request at least 3 months before the intended retirement date.

I have considered the evidence presented to me both orally and in writing.  I find on the balance of probability that the Complainant did resign from his position for reasons of his retirement and that he was not dismissed. I accept that this was a difficult time for him, but the compelling evidence presented to me was that he did agree to retire and that he did not request to work beyond the agreed retirement date.

I was provided a copy of the letter given to the Complainant on 10 August 2022. It referred to his service and dedication to the business and how he had discussed with the Respondent a mutual date for his retirement.

While the Complainant's contract of employment was not available, I was provided with a copy of the Employee Handbook. At page 23 of the Handbook, it stated that the normal retirement age was 65 years.  It set out

"Other than in exceptional cases all employees will be required to retire at 65 years of age, although you may request early retirement by agreement with the employer".

Section 7 of the Redundancy Payments Act 1967 sets out that an employee shall be entitled to a Redundancy payment, if he is dismissed by his employer by reason of redundancy.

I accept the Respondent submission that there was no dismissal in the ending of the Complainant's employment.

I find that the Complainant retired (albeit reluctantly) from his position.

This complaint is not well founded.

Dismissal in dispute. Retirement. Redundancy Payments Act 1967.