Complainant

Respondent

Parties

Stephen  Walsh

Marymount University Hospital and  Hospice

Representatives

  Self-Represented

Ms Cara Jane Walsh BL instructed by Ms Michelle Ryan  RDJ LLP

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-00058236-001

11/08/2023

The Complainant commenced employment as a healthcare assistant in July 2014 and earned €740 per week at the time of the termination of his contract of employment on 22 April 2023. The Complainant submits he was unfairly dismissed by the Respondent , furthermore, was not offered a fixed term contract as was the norm in the employment  

The Respondent submits that it lawfully terminated the Complainant’s employment on 22  April 2023 as (i) he reached the normal contractual retirement age for the employer and (ii) owing to the significant health conditions he was suffering at this time, he was incapable of performing his duties when  he was independently medically assessed in this regard by a suitably qualified medical expert.

Mr Shane O’Gorman, HR Manager since 2019,  gave evidence on behalf of the Respondent of which the following is a summary:

 A bullying complaint was made by the Complainant in 2020  about a colleague, which was formally investigated by the Respondent. A formal investigation did not uphold the complaint. The Complainant continually corresponded with the witness about the investigation, expressing dissatisfaction and health concerns, despite not formally appealing the outcome of the investigation within the designated period at the time. Despite clarification provided by the witness, the Complainant persisted in seeking resolution, eventually raising a formal grievance. Further emails ensued between the Complainant and the witness regarding health, job-related stress, and the ongoing  dispute over the  investigation. The investigation report was examined by another person, who upheld the original decision, notwithstanding the ongoing dissatisfaction of the Complainant.

In parallel to  the above, medical assessments by the Occupational Health specialist indicated the Complainant’s unfitness for work due to cardiac issues. Subsequent disciplinary procedures involving the Complainant were initiated by the Respondent because of what was perceived as unacceptable behaviour towards  colleagues. The Complainant refused to engage in disciplinary proceedings, citing bias concerns. The Complainant suffered a cardiac episode leading to hospitalisation during the process, pausing disciplinary actions. Open-heart surgery was performed in July 2021, followed by assessments that  indicated prolonged unfitness for work.

Correspondence in 2023 involved discussions about retirement age and extension requests. The Complainant received Temporary Rehabilitation Remuneration (TRR) payments until exhausting the entitlement in January 2023. The Complainant ceased receiving payments from the Respondent after January 2023 until retirement. The retirement age provision was in the employee handbook was sixty-five. The Respondent exhibited the relevant section.

 The final medical assessment deemed that the Complainant was incapacitated to the extent that a further fixed term contract beyond retirement was not  advisable. The witness emphasised that at all times the Respondent considered the Complainant to be a dependable and committed employee.

Submission:

The Respondent cites Section 2(1) of the Unfair Dismissal Acts (the Acts)  which exempts from unfair dismissal claims employees who reach the normal retirement age for their position. The Respondent further cites Section 6(4) which  states that dismissal may not be deemed unfair if it results from an employee's incapability, incompetence, or lack of qualifications for the work they were employed to do.

The Respondent refers to  McQuaid O’Flanagan Warehousing & Transport Limited v Peter Smith UDD2340, where the Labour Court emphasised that a "normal" retirement age must be clear and widely understood. The Respondent cites the case of Assistant Transport Manager v Bakery – ADJ0016023 where the exclusion under Section 2(1)(b) applied due to the Complainant reaching the normal retirement age.

The Respondent asserts that they believed the Complainant's employment ended mutually due to reaching the normal retirement age. Despite the retirement age exclusion, the Respondent highlights medical evidence showing the Complainant's unfitness for work since May 2023, with no challenge from the Complainant nor formal grievance/appeal lodged by him regarding retirement age, nor incapacity for work.

The Complainant gave evidence which can be summarised as follows: He experienced bullying at work from 2017. He   reported the bullying to the HR Dept, but he was completely unhappy with the outcome of the investigation. He said that various complaints were made against the person in question but that the Respondent always protected the person.

The stress of this situation led to a heart attack resulting in his hospitalisation. Upon his return to work, despite providing a doctor's letter requesting certain shifts due to his health condition, he was denied assistance, though the Respondent’s policies purported to aid employees in returning to work. Subsequently, he injured his hand, further prolonging his absence from work.

Throughout this time, he consistently communicated with HR regarding the bullying and his situation. However, upon returning to work, he faced allegations of abusing a work colleague over the phone when reporting sickness. Despite having a witness to contradict this claim, he was summoned to a meeting by the Respondent  where he explained his health concerns to management. Despite feeling unwell, he was told to return to work on the day, but his condition deteriorated on his way back, leading to removal by ambulance to the hospital, where he underwent a triple bypass surgery.

During his absence, the Respondent sent him a number of times to their company doctor, and on his  65th birthday he  received a message informing him  that his  position was terminated. He strongly believes that he was dismissed by the Respondent  because he spoke up about bullying, and it seemed to him  there was an attempt to conceal this fact. The Complainant said that an exacerbating factor for him was the fact that he had heard from a work colleague that they had cleared his locker whilst he was out on a sick leave. He felt that this signified to him strongly that the Respondent wanted to get rid of him and not offer him a further fixed term contract after his 65th birthday, as was offered to other employees.

The Applicable Law:

Section 2(1) of the Acts,  provides the following:

 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…

The Respondent exhibited the  Employee Handbook version 3, dated 30th June 2021. It states the following under “Statutory Retirement Age”:

 There is a statutory, (that is, set out in legislation), retirement age for public servants. For people who joined the public service before 1 April 2004 the minimum retirement age is 60 and the maximum is 65 years. New entrants (joined post 1st April 2004) the minimum retirement age is 65 years with no maximum retirement age. Since 1st January 2013, the minimum retirement age for new entrants is 66 rising to 67 in 2021 and age 68 in 2028 and the maximum retirement age is 70 in line with the State Contributory Pension. The normal retirement age in our organisation is 65 and employees will retire on the day of their 65th birthday or the closest working day to their retirement date. 7 9.Working Beyond Retirement Age As the state contributory pension does not currently pay benefits until age 66, some staff may wish to work longer than age 65.

It further states, with regard to further working beyond that age:

The employee should make such a request in writing to HR no less than three months from the intended retirement date to be followed up with a meeting between the employer and employee. This meeting gives both the employee an opportunity to advance the case and allowing the employer to consider it. It is important that the employee is listened to and that any decision made is on fair and objective grounds. The Hospital's decision will be communicated to the employee as early as practical following the meeting. Should the decision be to offer a fixed-term contract postretirement age, the period will be specified, setting out the timeframe, and the legal grounds underpinning the new contract should be made clear (i.e., fixed- term contract). 8 The employee will be required to undergo an occupational health assessment prior to signing of the fixed-term contract. (my emphasis)

The Complainant in this case put a significant emphasis on what he considered to be an unsatisfactory outcome to a bullying complaint he had made some years previously, which was not upheld. Other than an assertion, he did not show evidence for  a connection between the submission of the  complaint and the termination of his employment. However, there was convincing  evidence submitted to show that the termination of the Complainant’s  employment was due to the established custom and practice, and contractually recognised by him, that he would retire upon reaching the age of sixty-five. This was not a case taken under the Employment Equality Acts but instead taken under the Unfair Dismissals Acts of where section 2(1)(b) clearly states that  “(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…”, is not covered by the Act. Furthermore, the Respondent handbook clearly states that a further fixed term contract is only offered to those who are medical assessed as being capable of conducting the work need. Unfortunately, such was the evidence of the seriousness of the Complainants medical condition, that it was never practical that he would be offered such an extension of contract. I have the greatest sympathy for the Complainant because all the evidence suggested he was a caring a committed employee in a challenging environment but, nevertheless, I am satisfied that  the reason for the  termination of his employment  was by reason of him reaching the contractual retirement age. Therefore, I find he was not unfairly dismissed by the Respondent.

CA-00058236-001: For the reasons outlined above, I find that the Respondent did not unfairly dismiss the Complainant.

Unfair Dismissals Acts 1977-2015, Retirement Age.