Complainant

Respondent

Parties

Margaret  Doyle

Kylemore House Nursing Home Limited        

Complainant

Respondent

Anonymised Parties

Representatives

Eric Furlong,                                      Coghlan Kelly Solicitors.

Barry O’Mahony BL,                               Paula Walshe,                                        Arag Legal Protection Limited.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00059834-001

06/11/2023

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

It should also be noted that the Complainant and Respondent witnesses were all in a position to give a formal affirmation that all evidence provided would be truthful. The giving of false statements or evidence is an offence. In the end, formal evidence was not required.

The specific details of the dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 6th of November 2023.

The Complainant was present and was fully represented. The Complainant provided me with a comprehensive submission dated the 25th of June 2024. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form.  I was provided with supplemental documentary evidence in support of the Complainant’s case. No objection was raised to any of the materials relied upon by the Complainant in making his case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that she was Unfairly dismissed.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent also had representation at this hearing.  The Respondent provided me with a written submissions dated 20th of June 2024. A number of Respondent witnesses attended to present the Respondent case. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case

The Respondent rejects that there has been a Dismissal and does not accept any contravention of Employment Rights as protected by statute.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully listened to the submissions made out in the course of this hearing. A preliminary issue arose which meant that getting into the substantive issue became redundant.

In the first instance I must note that the Complainant submitted the complaint form on the 6th of November 2023.The complaint form centred around two complaints. Firstly, the complainant alleged she had been unfairly dismissed contrary to the Unfair Dismissal legislation. In addition to this, the Complainant says that she was discriminated against when her employment was terminated on foot of the Complainant having reached and gone beyond retirement age.

As is usual, when a complaint form contains a complaint of an Unfair Dismissal and a Discriminatory Dismissal, the WRC will ask that the Complainant choose between one or the other. I note a letter dated the 15th of November 2023 went out the Complainant in the following terms:

 Parallel Complaints

It is noted that you have referred a complaint of discriminatory dismissal under Section 77 of the Employment Equality Act 1988 and a claim of unfair dismissal under the Unfair Dismissals Act 1977.

In accordance with Section 101(4)(a) of the Employment Equality Act 1998, the complaint under the Employment Equality Act 1998 will be deemed to have been withdrawn unless, not later than 41 days from the date of this letter, the complainant withdraws the claim under the Unfair Dismissals Act 1977.

You are now requested to advise the Commission in writing not later than 41 days of the date of this letter if you wish to withdraw the claim under the Unfair Dismissal Act 1977. If you withdraw the claim of unfair dismissal within the 41 day period, the Commission will then make arrangements to process the complaint under the Employment Equality Act 1998.

You should note that if you do not respond to this letter within the 41 day period, your complaint under the Employment Equality Act 1998 will be deemed to have been withdrawn and the Commission will then make arrangements to process the complaint under the Unfair Dismissals Act 1977.

By letter dated the 8th January 2024 the Respondent was informed that the employment equality complaint was withdrawn.

The Complainant representative has very fairly flagged that the choice given was never actively considered. The Employment Equality claim therefore fell away by operation of Statute. The Complainant is therefore left with the singular claim of Unfair Dismissal under the UD Acts. At this remove there is no jurisdiction to change this fact. The Complainant proceeds with the Unfair Dismissals claim only.

The facts are that the Complainant worked with the Respondent from 2005 to 2023 (save for a six month period in 2011). The Complainant’s employment came to an end by reason ostensibly of retirement. The Complainant rejects this categorisation of her termination, and says that she wanted to keep working and that this retirement was foisted on her by her employer. This amounted to her Unfair Dismissal on the 11th of June 2023.

Some facts are agreed between the parties. The Complainants date of birth is the 9th of January 1952. She was therefore 71 years of age when she alleges that she was unfairly dismissed.

I accept the assertion that the normal retirement age within the Respondents organisation is 66. Employees within the Respondent organisation normally retire upon attaining that age. The age is contained in the Complainants initial contract\statement of terms which quite simply reads:

 “The normal retirement age is 66.”

Whether there is an objective justification for this Contractual Term being included is not something explored by me or the parties. The discriminatory characteristics of such a condition were not at issue as the Discriminatory complaint had not survived. The Complainant was seeking redress under the Unfair Dismissals legislation.

As it happens, when the Complainant had reached the age of 66, the Employer in consultation with the Complainant agreed that the Complainant would stay on beyond the normal Contracted age. By agreement, the Complainant worked a few back-to-back Contracts from January 2022 onwards. As I understand it, the Respondent and the Complainant continued to meet periodically to discuss the Complainants retirement. During these meetings, the Complainant repeatedly indicated that she was intending to retire soon, and as such she was provided with shorter contracts. In July 2022 the Complainant indicated that she intended to retire in 2023 and asked to be retained in employment for a further period. Two six-month contracts were also provided. I am satisfied that the series of fixed term Contracts were always provided in the stated (and printed) knowledge that the normal retirement age within the company was 66.

The last such Contract was to expire in June of 2023. It is clear that the complainant had no real wish to retire, but that the Respondent were minded to put this retirement into effect one way or another. Whether they were justified to force this issue or whether this was an inherently unfair act on the part of the employer, has not been fully explored by me. Instead, I have had to consider whether or not I have jurisdiction to hear this case. In this regard, the Employer representation has asked me to have regard for the assertion - that the Unfair Dismissals Act 1977 does not apply to employees who have reached normal retirement age.

Section 2(1)(b) of the Unfair Dismissals Act 1977 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 or who on that date had not attained the age of 16 years

It has been put to me that the Complainant knew that the normal age of retirement in this workplace was 66. Each and every contract of employment which the Complainant was given after the age of 66 was of short duration and had expressly referred to the normal retirement age of 66 within the Respondents Company.

I am advised that numerous staff members have retired at the age of 66 within the Respondent Organisation and the Complainant has not been able to provide evidence which could displace this norm.

It was therefore submitted by the Respondent, that the Unfair Dismissals Act 1977 does not apply to the Complainant as she had passed the normal retirement age in this workplace by in or around 6 years at the time of her retirement.

I find that I am bound to accept the Respondent submission herein. The Complainant was well aware that the retirement age in this workplace was 66. Whether this was a discriminatory clause is moot as this was not the claim brought before me. Instead (and to succeed under the Unfair Dismissals legislation) the complainant would have had to provide evidence that 66 was not the normal age of retirement – evidence she could not provide.

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

CA-00059834-001  - The Complaint fails for want of Jurisdiction.