Kirkwood Enterprises Ltd v Pearse O'Brien

• Jurisdiction: Ireland
• Judgment Date: 04 December 2018
• Judgment citation (vLex): [2018] 12 JIEC 0408
• Docket Number: FULL RECOMMENDATION DETERMINATION NO.UDD1862 ADJ-00008988 CA-00011558-006
• Date: 04 December 2018
• Court: Labour Court (Ireland)

Labour Court

FULL RECOMMENDATION

UD/18/78

DETERMINATION NO.UDD1862

ADJ-00008988 CA-00011558-006

PARTIES:

Kirkwood Enterprises Limited

and

Pearse O'Brien

DIVISION:

Chairman: Ms O'Donnell

Employer Member: Ms Connolly

Worker Member: Mr Hall

SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015

SUBJECT:

1 1. An appeal of an Adjudication Officer's Decision no ADJ-00008988.

BACKGROUND:

2 2. The Complainant appealed the Decision of the Adjudication Officer to the Labour Court on 10 May 2018 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 8 November 2018. The following is the Determination of the Court:

DETERMINATION:

3 This is an appeal by Pearse O'Brien (the Complainant) against an Adjudication Officer's Decision ADJ-00008988 given under the Unfair Dismissals Act 1977 to 2015 (the Act) in a claim that he was unfairly dismissed by his former employer, Kirkwood Enterprises Limited (the Respondent). The Adjudication officer dismissed the claim on the basis that there was no dismissal.

Background

4 The Complainant commenced employment with the Respondent on the 1 ^st January 2009. Prior to and following the commencement of his employment there were discussions in relation to his contract of employment and draft contracts were exchanged. It is disputed as to whether a final contract was ever signed but both parties operated under the draft contract. The contract contained a clause stating that the retirement age was 65 but that the Company reserved the option to offer time limited extensions to the contract beyond the 65 ^th Birthday. While the exact wording may not be accepted by both parties they both confirmed they were aware of the clause and the nature of same.

5 The Complainant was retired at the end of the month of his 66 ^th Birthday December 2016 but was offered a fix term contract commencing the 1 ^st January 2017. It is the Complainant's claim that he was unfairly dismissed. It is the Respondent's contention that there was no dismissal. As dismissal is in dispute it is for the Complainant to show that a dismissal took place.

Complainant's case

6 The Complainant turned 65 on the 13 ^th December 2015 and continued to work for the Respondent it was his expectation that this would continue to work on indefinitely. On the 8 ^th December 2016 the Complainant received an email from the Respondent inviting him to a meeting on the 12 ^th December 2016 indicating that the Respondent would like to discuss the Complainant's retirement plans. The Complainant replied “ I don't have a plan. Happy to discuss subject and your wishes.” On the 12 ^th December 2016 in advance of the meeting scheduled for that day he received an email from the Respondent indicating that...