Equality Officer Decision No: DEC-E/2011/155
Parties
Jones
(Represented by Patrick O'Neill BL - Instructed by
Dermot McNamara & company - Solicitors)
And
Kilsaran Concrete Ltd.
(Represented by IBEC)
File No: EE/2008/873 and EE/2010/007
Date of issue: 18 August, 2011
Headnotes: Employment Equality Acts 1998- 2008 - sections 6,8, 14A, 74, 77 & 77A -age - retirement age - treatment- victimisation - timelimits - misrepresentation- frivolous & vexatious
1. DISPUTE
This dispute involves claims by Mr. Joseph Jones that he was (i) discriminated against by the respondent on grounds of age and disability, in terms of section 6(2) of the Employment Equality Acts 1998 - 2008 and contrary to section 8 of those Acts in relation to his conditions of employment, (ii) harassed by the respondent on grounds of age, in terms of section 6(2) of the Employment Equality Acts 1998 -2008 and contrary to section 14A of those Acts, (iii) dismissed in circumstances amounting to victimisation in terms of section 74(2) of the Employment Equality Acts, 1998-2008.
2. BACKGROUND
2.1 The complainant was employed by the respondent as a Lorry Driver from March, 1996 until end July, 2009, when he was required to retire by the respondent having passed the age of sixty-five years. He states that during his period of employment he was subjected to harassment on grounds of age by a number of employees and business contacts of the respondent. He asserts that when he reported these matters to the respondent it took no action to address them. The complainant adds that he suffered a serious injury to his ankle in July, 2008 whilst at work. He submits that this constitutes a disability in terms of section 2 of the Employment Equality Acts, 1998-2008 and asserts that the subsequent treatment of him by the respondent constitutes discrimination of him on grounds of disability contrary to the Acts. The complainant states that he was unaware of any requirement on him to retire at the age of sixty-five years. He adds that the respondent retained a number of employees in employment beyond this age and submits that requiring him to retire on reaching the age of sixty-five years amounts to less favourable treatment of him on grounds of age contrary to the Acts. Finally, the complainant states that shortly after he lodged his first complaint with the Tribunal the respondent attempted to pressurise him into resigning and when he refused, it terminated his employment by virtue of him reaching the age of sixty-five years. He submits that this constitutes victimisation of him in terms of section 74(2) of the Acts. The respondent rejects the complainant's assertions in their entirety and notwithstanding this submits that the first complaint filed by the complainant is not properly before the Tribunal for investigation as it was referred to the Tribunal outside of the timelimits prescribed at section 77(5) of the Acts. Without prejudice to this argument it submits that the complaint should be dismissed as made in bad faith and/or frivolous, vexatious or misconceived in terms of section 77A of the Acts. It makes a similar submission as regards section 77A in respect of the second complaint referred to the Tribunal by the complainant - alleging victimisation and discriminatory treatment of him.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2008 to the Equality Tribunal on 19 December, 2008 alleging discriminatory treatment and harassment of him on grounds of age in respect of alleged events between August, 2000 and August, 2007. He referred a second complaint on 6 January, 2010, alleging (i) discriminatory treatment on grounds of age and disability and (ii) victimisation. In accordance with his powers under the Acts the Director delegated the complaints to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaint commenced on 16 March, 2011, the date the complaints were delegated to me.
2.3 The parties had filed submissions in advance of the complaints being delegated to me and I notified them in writing on 21 April, 2011 that the Hearing would take place at the Tribunal's Offices in Dublin on 14 July, 2011 commencing at 10:30am. This correspondence was sent by registered post to both parties. In this letter I also requested the complainant to file a supplemental submission in respect of his second complaint. The complainant filed a supplemental submission on 23 May, 2011. This was copied to the respondent on receipt and it furnished its response on 30 June, 2011. The respondent did not attend the Hearing at the specified time. In accordance with the practice of the Tribunal I allowed thirty minutes to enable the respondent appear and during this time I made the necessary enquiries to satisfy myself that the respondent's representative had received the notification. I was satisfied that the respondent's representative had received the correspondence setting out the Hearing details - An Post confirmed same - and I proceeded with the Hearing as scheduled. The respondent did not attend nor was it represented at the Hearing. At the outset of the Hearing the complainant withdrew his claim of discriminatory treatment on grounds of age in respect of his first complaint - leaving the alleged harassment element of this complaint before the Tribunal for investigation.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that the last alleged incident of harassment on grounds of age which forms part of his first complaint - the one referred to the Tribunal on 19 December, 2008 - occurred on 13 August, 2007. He states that this was part of an on-going campaign of harassment and bullying of him - stretching from August, 2000 - August, 2007 - by direct employees of the respondent as well as employees of long-term sub-contractors engaged by the respondent who worked at the same depot as the complainant every day for several years. The complaint accepts that he referred his complaint to the Tribunal on these alleged incidents outside of the twelve month timelimit prescribed at section 77(5) of the Acts but seek to rely on section 77(6) of the Acts to bring his complaint within time. He states that following the alleged incident on 13 August, 2007 he reported the matter to Mr. C (Plant Manager) - as he had on many of the previous alleged incidents. The complainant states that he (Mr. C) recorded the details of his complaint and told him he would deal with it. The complainant states that he heard nothing more from the respondent about this matter despite a number of written requests from his solicitor. It is submitted on the complainant's behalf that the respondent deliberately delayed dealing with his complaints and "strung him along". It is further submitted that the respondent did not indicate the outcome of its findings on the complaint until June, 2008, that its actions constitute misrepresentation by the respondent in terms of section 77(6) of the Acts and that complainant is entitled to rely on that section. Counsel for the complainant states that respondent informed the complainant in writing on 20 June, 2008 that it considered the matter closed. He adds that the complainant referred his complaint on 19 December, 2008 and submits that the complaint was referred within the six month time limit prescribed at section 77(5)(a) of the Acts and is therefore validly before the Tribunal for investigation. The complainant rejects the respondent's assertion that his complaints should be dismissed in accordance with section 77A of the Acts and states that he never spoke with the respondent's HR Manager as alleged.
3.2 The complainant states that he suffered an ankle injury while at work in July, 2008. It is contended on his behalf that this constitutes a disability in terms of subsection (c) of the definition of "disability" at section 2 of the Acts. He states that he continued to work for about four weeks but attended his doctor and was certified unfit for work as a result of his injury for six weeks from 11 August, 2008. He adds that a second medical certificate was furnished to the respondent on 25 September, 2008 certifying the complainant as unfit for duty for a further six weeks. The complainant states that he received a telephone call from Mr. K - Director of the respondent - on 26 November, 2008 inviting him to a meeting two days later. The complainant rejects the respondent's version of events in respect of the contents of this telephone conversation. The complainant states that he attended the meeting on 28 November, 2008 during which Mr. K gave him a letter to sign confirming his resignation from the company. The complainant states that he refused to sign the letter and the meeting ended. He adds that the following day he received a letter (dated 28 November, 2008) from Mr. K accepting his resignation from the company with immediate effect. He states that his solicitor replied to this letter on 2 December, 2008 advising that he had not resigned from his employment and that he remained unfit for work due to his ankle injury. The complainant states that he attended a medical examination with the respondent's Occupational Physician on 16 December, 2008 as requested by the respondent. He adds that he was never made aware of the contents of this report and rejects the respondent's assertion that his retirement was discussed with that Physician during the consultation. The complainant states that he did not submit any further medical certificates covering his absence and states that he never received the respondent's letter of 17 February, 2009 which, inter alia, advised of the company's retirement policy and asked him to contact the respondent to discuss his upcoming retirement. The complainant asserts that this treatment constitutes discrimination of him on grounds of disability contrary to the Acts.
3.3 The complainant states that the next correspondence he received form the respondent was a letter dated 30 July, 2009 advising him that it had come to the respondent's notice, on foot of an audit of employee records, that the complainant had reached the age of sixty-five on 11 March, 2009 and consequently his employment was terminated by virtue of him reaching that age in accordance with the policy of the respondent. The complainant states that this was the first occasion he had ever been made aware of a compulsory retirement age and had believed he could continue in employment as long as he was able to drive. He adds that he knew of no other employees who were required to retire and was aware of employees who remained in employment with the respondent beyond that age. He contends that one such employee was Mr. G. In the course of the Hearing the complainant provided the Tribunal with a copy of a letter dated 7 June, 2001 from the respondent's solicitor in respect of the complainant's personal injury claim, which issued in response to a Motion of Discovery in relation to those proceedings. It is submitted on his behalf that this correspondence confirms there were two employees who remained in employment with the respondent beyond the age of sixty-five years, although he is unable to identify them by name. The complainant submits that requiring him to retire constitutes discriminatory treatment of him on grounds of age contrary to the Acts.
3.4 The complainant submits, without prejudice to his assertions in the preceding two paragraphs, that the respondent victimised him in terms of section 74(2) of the Employment Equality Acts, 1998-2008. He states he was never informed that the respondent operated a compulsory retirement age of sixty-five and it was a shock for him to be notified of the termination of his employment as a result of reaching that age in March, 2009 when the respondent wrote to him on 30 July, 2009. He rejects the respondent's assertion that he received correspondence for the Construction Industry Pension Scheme in the months prior to his sixty-fifth birthday which would have alerted him to the fact that he was required to retire on reaching that age. The complainant contends that following the referral of his first complaint to the Tribunal in December, 2008 and the filing of his personal injury claim in the Circuit Court, the respondent first attempted to pressurise him into resigning and when this tactic failed it invented a company policy of a compulsory retirement age and ultimately terminated his employment on foot of that alleged policy. The complainant submits that this constitutes victimisation of him contrary to the Acts.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertions in their entirety and notwithstanding this submits that that the complainant's first complaint is not properly before the Tribunal as it was referred outside of the timelimits prescribed at section 77(5) of the Acts. As the respondent did not attend the Hearing it was unable to address the complainant's arguments as regards the application of section 77(6) of the Acts to his first complaint. The respondent further submits that both of the complaints should be dismissed as made in bad faith and/or frivolous, vexatious or misconceived in terms of section 77A of the Acts. In support of this argument the respondent states that the complainant referred a complaint under the Industrial Relations Acts, 1969-2004 and the parties attended a Hearing on the complaint before a Rights Commissioner on 6 October, 2008. It adds that the parties agreed terms to resolve the complaint at the Hearing and no Recommendation issued. The respondent states that it wrote to the complainant's representative on 10 October, 2008 setting out the steps it proposed to take to make good on the terms of agreement reached. It adds that the complainant's representative subsequently replied stating that the terms were acceptable on the proviso that the respondent pay the complainant's legal costs of bringing the complaint under the industrial relations legislation. The respondent states that it refused to do so and the complainant contacted its HR Manager (Ms. L) by telephone on 18 December, 2008 informing her that if the respondent did not pay the fees he would "go to town on the company". The respondent states that the complainant referred his first complaint to this Tribunal on the following day and that both this complaint and the complaint referred on 6 January, 2010 are an attempt by the complainant to obtain these costs.
4.2 The respondent states the it was notified by the a letter from the complainant's Orthopaedic Surgeon dated 11 August, 2008 that the complainant had sustained an injury to his ankle that would require surgery and consequently he was unfit for work for the following six weeks. It states that it received a second medical certificate on 25 September, 2008 certifying the complainant unfit for work for a further six weeks. The respondent adds that during this period it paid the complainant his salary but that this arrangement ceased in mid-November, 2008 as the complainant failed to submit medical certificates in support of his absence, despite several requests for same. The respondent accepts that Mr. K spoke with the complainant by telephone on 26 November, 2008. It states that Mr. K made this call to clarify a comment which the complainant had allegedly made to a colleague where he had indicated he would not be returning to work. The respondent states that on two separate occasions during this telephone conversation the complainant informed Mr. K that he had no intention of returning to work and asked what would be required to end his employment with the company. The respondent states that Mr. K informed the complainant it would require confirmation in writing that he was resigning and the complainant agreed to furnish this. It adds that the complainant then asked Mr. K for assistance in drafting a written resignation and both parties agreed to meet on 28 November, 2008. The respondent states that in the course of this meeting the complainant was shown a sample resignation letter, that he asked to take it away with him and was allowed to do so. It adds that whilst this was not the most prudent thing to do in hindsight, the letter had been prepared in good faith in response to a direct request from the complainant for assistance in the matter. The respondent rejects the complainant's assertion that it brought pressure to bear on him - at any time - to resign from his employment.
4.3 The respondent states that it wrote to the complainant on 28 November, 2008 accepting the complainant's resignation and setting out the arrangements for his outstanding pay. It adds that the complainant's solicitor replied on 2 December, 2008 advising that the complainant was not resigning his position and enclosed a medical certificate which purported to certify the complainant unfit for duty until May, 2009. The respondent adds that this certificate appeared to it to only cover an absence until 2 December, 2008 and it wrote to the complainant's solicitor on 9 December, 2009 rejecting the suggestion that it had attempted to bring pressure on the complainant to resign and requested that the necessary medical certificates to cover his absence be provided. The respondent states that no such medical certificates were furnished.
4.4 The respondent accepts that the complainant attended a medical appointment with the respondent's Occupational Physician on 16 December, 2008. It adds that it received the medical report on foot of this consultation in February, 2009 - which stated that the complainant was unlikely to be in a position to return to work before his retirement. The respondent states that it wrote to the complainant on 17 February, 2009 outlining the contents of the medical report and asking the complainant to contact its HR Manager to discuss his upcoming retirement. It adds that the complainant failed to make contact and the next time the matter came to light was in July, 2009 - following an audit of its employment records. It accepts that it wrote to the complainant on 30 July, 2009 advising that his employment had ceased as a result of him reaching the age of sixty-five years - the retirement age operated by the company. The respondent does not accept that the complainant was unaware he would be required to retire on reaching the age of sixty-five years. It adds that reference to this had been made in its letter of 17 February, 2009 as well as correspondence it contends was sent to him by the Scheme Administrator for the Construction Workers' Pension Scheme. The respondent further states that the complainant was aware of the retirement age as in the six years preceding his retirement twelve employees in the company retired on reaching the age of sixty-five. It adds that a further eight employee took early retirement, including the Plant Manager at the Deport where the complainant was based. It rejects the complainant's assertion that Mr. G was permitted to remain in employment beyond the age of sixty-five years - stating that in fact he took early retirement.
4.5 In conclusion, the respondent rejects the complainant's assertion that it discriminated against him on grounds of age and/or disability contrary to the Acts. It further rejects the assertion that it victimised him in terms of section 74(2) of the Acts. It states that at no time did it suggest or pressurise the complainant to resign and that the complainant's employment with it ceased by virtue of the fact that he had reached the normal retirement age.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me are (i) whether or not the complainant's first complaint is properly before the Tribunal for investigation, (ii) if so, whether or not the respondent harassed the complainant on grounds of age, in terms of section 6(2) of the Employment Equality Acts 1998 - 2008 and contrary to section 14A of those Acts as regards the alleged incidents between August, 2000 and August, 2007, (iii) whether or not the respondent discriminated against the complainant on grounds of disability, in terms of section 6(2) of the Employment Equality Acts 1998 -2008 and contrary to section 8 of those Acts in terms of his conditions of employment between July, 2008 and July, 2009, (iv) whether or not the respondent discriminated against the complainant on grounds of disability, in terms of section 6(2) of the Employment Equality Acts 1998 -2008 and contrary to section 8 of those Acts in terms of his conditions of employment when it terminated his employment in July, 2009 on him reaching the age of sixty-five years and (v) whether or not the respondent victimised the complainant in terms of section 74(2) of the Employment Equality Acts, 1998-2008. In reaching my decision I have taken into consideration all of the submissions, both written and oral, submitted to the Tribunal as well as evidence advanced at the Hearing.
5.2 The first matter which I must address is whether or not the complainant's first complaint is validly before the Tribunal for investigation. The complainant lodged this complaint on 19 December, 2008 alleging discriminatory treatment and harassment of him on grounds of age. The referral form stated that the most recent occurrence of discrimination occurred in July, 2008. The complainant's legal representative filed a submission with the Tribunal on 22 July, 2009 providing fuller details of the alleged acts of unlawful treatment covered by this complaint. This submission detailed six separate incidents of alleged unlawful treatment of the complainant on grounds of age. The submission stated that the first of these alleged incidents occurred on 13 August, 2000 and the sixth and final incident took place on 13 August, 2007. In the course of the Hearing the complainant stated, in response to a direct question from the Equality Officer, that the 13 August, 2007 was the last alleged incident of unlawful treatment covered by the complaint. In those circumstances it is clear that the complaint was not referred to this Tribunal within the six month timelimit prescribed at section 77(5)(a) of the Acts nor the extended period of twelve months prescribed at section 77(5)(b) of the Acts. Counsel for the complainant seeks to rely on section 77(6) of the Acts, submitting that the timelimit for referral of the complaint should only commence on 20 June, 2008 - the date the respondent advised the complainant's representative in writing that it considered the complainant's complaint of bullying and harassment, most recently advised to the respondent by letter dated 23 October, 2007 - to be concluded. Counsel for the complainant further submits that the respondent gave the complainant the impression that it was dealing with his complaint whilst all the time it was stringing him along and not dealing with the complaint in any effective manner. He further submits that this constitutes misrepresentation in terms of section 77(6) of the Acts and entitles the complainant to rely on that provision, as a consequence of which the complaint is validly before the Tribunal since it was referred to the Tribunal within the timelimit prescribed at section 77(5)(a) of the Acts.
5.3 Section 77(6) of the Acts provides as follows:
"Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection 5(a) shall be construed as if the reference to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant's notice."
The effect of the provision is that the timelimit for referring a complaint to this Tribunal, in circumstances where the respondent has engaged in any misrepresentation, only commences when the complainant becomes aware of that misrepresentation. In A Bank v A Worker the Labour Court provided useful guidance on when misrepresentation can arise in terms of section 77(6) of the Acts when it stated as follows -
"the term 'misrepresentation' is generally understood as referring to a false statement of fact, intended to be acted upon, which actually misleads the person to whom it is addressed. In the context in which the term appears in s. 77(6) of the Act operative misrepresentation can arise where: -
(a) The Respondent makes a false statement of fact in respect to some material particular affecting a cause of action under the Act;
(b) The Complainant believed the statement to be true, and
(c) In reliance on the truth of the statement the Complainant delayed in initiating a complaint under the Act.
In light of this it is clear that in order to avail of the provision the complainant must satisfy this Tribunal, as a matter of probability, that there was misrepresentation by the respondent and that the delay in referring his complaint to this Tribunal is due to this misrepresentation.
5.4 The complainant's solicitor wrote to the respondent on 23 October, 2007 advising that it represented the complainant in respect of the numerous incidents of harassment and bullying which he (the complainant) contended he had been subjected to during his employment. Whilst the letter does not refer to the alleged incident of 13 August, 2007, it does refer to what is described as the most recent incident of alleged bullying/harassment of the complainant - where a colleague splashed corrosive cleaning material in his face. This alleged incident was detailed in the complainant's submission to this Tribunal of 22 July, 2009, in which it is stated that the alleged incident occurred on 20 July, 2007. The letter goes on to say that if the respondent does not confirm to the complainant's solicitor within seven days that it (the respondent) will fully investigate the complaints and take appropriate sanction against those found responsible, the complainant will have no alternative but to "issue such legal proceedings as might be necessary in the circumstances". The respondent replied on 25 October, 2007 advising that it intended to investigate the matter and would revert to the complainant's solicitor on completion of its investigation. The complainant received no further correspondence in the matter until 20 June, 2008, when the respondent advised its investigation was complete and that no particular action was considered necessary.
5.5 During this period the complainant's solicitor wrote to the respondent on three separate occasions - 29 January, 2008, 14 April, 2008 and 17 June, 2008 seeking an update on how matter was progressing. It is clear therefore that during this period the complainant was legally represented and in essence the respondent ignored his legal representative's attempts to clarify the status of the investigation at any given time. Whilst the actions of the respondent could be termed ill advised and/or unprofessional, they do not represent a falsehood on its part in terms of the Acts - in fact it made no statement whatsoever on the matter, false or otherwise. It was always open to the complainant's legal representative to refer a complaint to this Tribunal at any stage during that period and it chose not to do so. It cannot be held that the respondent's failure to reply to the three letters mentioned above could lead the complainant (and/or his legal representative) to the conclusion that it should not seek to protect the complainant's statutory rights under employment equality legislation by referring a complaint to the Tribunal at an early date. The position adopted by the complainant is all the more inexplicable given the final sentence of the letter of 23 October, 2007 quoted above. In the circumstances I find the complainant's contention that the respondent was guilty of misrepresentation in terms of section 77(6) of the Acts cannot succeed and he is not entitled to avail of that provision. It follows therefore that the complaint was not referred within the timelimits prescribed at section 77(5) of the Employment Equality Acts, 1998-2008 and I have no jurisdiction to investigate this complaint. In the circumstances I do not consider it necessary to consider the arguments made in terms of section 77A of the Acts in respect of the complainant's first complaint.
5.6 The respondent also submits that the complainant's second complaint - referred to this Tribunal on 6 January, 2010 - should be dismissed as made in bad faith and/or frivolous, vexatious or misconceived in terms of section 77A of the Acts. The respondent states, in support of this argument, that the actual reason for this complaint is to enable the complainant recover legal costs from the respondent incurred by him in respect of proceedings taken under industrial relations legislation in October, 2008. Article 9 of the EU Framework Directive, which prohibits discrimination on a number of grounds, including age and disability, obliges Member States Access to provide persons who consider themselves wronged by discrimination with an appropriate mechanism of remedy. It is well established that the right of access to the Courts or other appropriate remedy is so fundamental that the Courts or Tribunals should exercise their jurisdiction to restrict such a right sparingly and only in the clear cases. For "bad faith" to exist the respondent must show that the complainant acted with mala fides and abused the process. The respondent has failed to adduce the necessary evidence in support of its assertion that the complainant's second complaint was made in bad faith. The complainant has, on the face of it, a legitimate basis upon which to refer a complaint alleging unlawful treatment under the Acts to this Tribunal and whilst he could have decided not to exercise his statutory right in this regard, the fact remains that he did so and I can see no basis upon which to dismiss this complaint as having been made in bad faith in terms of section 77A of the Acts.
5.7 The respondent further submits that the complaint should be dismissed as frivolous, vexatious or misconceived in terms of section 77A of the Acts. In Farley v Ireland & Others the Supreme Court stated as follows -
"So far as the legality of the matter is concerned frivolous and vexatious are legal terms, they are not pejorative in any sense....It is merely a question of saying that so far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case. Similarly, it is a hardship on the defendant to have to take steps to defend which cannot succeed and the law calls this vexatious.".
It is also trite law that a complaint is considered misconceived if it is incorrectly based in law. I have carefully considered the arguments submitted by the parties on this issue in the light of the authorities referred to above and I find that there is no basis upon which I can dismiss the complainant's second complaint as frivolous, vexatious or misconceived in terms of section 77A of the Employment Equality Acts, 1998-2008. I shall therefore proceed to investigate the substantive elements of the complainant's second complaint - that he was (i) discriminated against on grounds of age and/or disability and (ii) victimised contrary to the Acts.
5.8 Section 85A of the Employment Equality Acts 1998- 2008 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he was treated unlawfully contrary to the Acts. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. If the complainant does not discharge the initial probative burden required his case cannot succeed.
5.9 The following facts are agreed between the parties or have been established in evidence -
the complainant was absent from work from 11 August, 2007 on certified sick leave and he never returned to work.
the complainant received his full salary for the first three months of this absence. During this period the respondent made no mention of terminating the complainant's employment with it.
a telephone conversation took place between the complainant and Mr. K on 26 November, 2007 and this call was initiated by the respondent.
the complainant was given a draft letter of resignation at the meeting of 28 November, 2008 - which had been prepared by Mr. K. The complainant was permitted to take this letter home with him and never actually signed it or any letter in similar terms.
later that same day Mr. K wrote to the complainant accepting his resignation with immediate effect.
the complainant's solicitor wrote to the respondent on 2 December, 2007 advising that its client had no intention of resigning.
the respondent replied on 9 December, 2007, inter alia, confirming the arrangements for the complainant's appointment with the company Occupational Physician on 16 December, 2008.
5.10 The content of the telephone conversation of 26 November, 2007 is in dispute and it is necessary for me to carefully consider the evidence adduced on same as its goes to the core of the events which followed. By this time the complainant had been absent from work for over three months and had been paid during this absence. During this period the respondent had made no reference to his employment whatsoever. The respondent initiated contact with the complainant by telephone on 26 November, 2007. It states that the call was an attempt by Mr. K to clarify a comment he understood the complainant had made to a colleague concerning his (the complainant's) future employment with the respondent. In the course of the Hearing the complainant rejected the explanation furnished by the respondent as regards the reasons for and the content of this telephone call but was unable to offer an alternative version of events. I find this surprising given the vehemence with which he rejected the respondent's submission. It seems unlikely to me that Mr. K would have prepared the sample letter of resignation for the meeting of 28 November, 2007 had the complainant not mentioned the matter during the telephone conversation two days earlier and sought Mr. K's assistance in the matter. Consequently, on balance, I find that this was the case.
5.11 No evidence has been adduced by the complainant to support his assertion, in the first instance, that the respondent exerted pressure on him to resign during the meeting of 28 November, 2008. Indeed the opposite is the case as the complainant brought the draft letter of resignation from the meeting with him unsigned. It is clear however that Mr. K believed that the complainant would confirm in writing what he (the complainant) had allegedly stated verbally to him - that he had no intention of continuing employment with the respondent - as Mr. K issued his letter confirming acceptance of the complainant's resignation later that same day. However, this premature action of Mr. K was subsequently corrected by the letter of 2 December, 2007 from the complainant's solicitor, the respondent's response to same of 9 December, 2007 and the complainant's attendance at the respondent Occupational Physician on 16 December, 2007. In the circumstances I am satisfied that the complainant, if his employment was ever terminated (and I make no finding in that regard) had his position restored to him within a relatively short period. It is also accepted by the complainant that (i) he received his full salary for the first three months of his absence from work on sick leave and (ii) that no further medical certificates were submitted to cover his absence after November, 2008. In light of my comments in this and the preceding two paragraphs I find that the complainant has failed to discharge the initial burden of proof required of him and that element of his complaint alleging discrimination on grounds of disability cannot succeed.
5.12 The complainant essentially argues that the cessation of his employment on 30 July, 2008 - but with effect from 11 March, 2008 - the date he reached the age of sixty-five years - constitutes discrimination of him on grounds of age and/or victimisation contrary to the Acts. I shall deal with the age discrimination aspect of the complaint first. Section 6(1) of the Employment Equality Acts, 1998 - 2008 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2).....". Section 6(2) of the Acts requires that the two persons involved for comparison purposes must be of different ages. The core of the complainant's argument is that his employment was unilaterally terminated by the respondent solely because he reached the age of sixty-five and he contended that this constituted less favourable treatment of him because other employees were permitted to remain in employment with the respondent beyond that age. He referred in particular to Mr. G as one such employee. The respondent states that Mr. G did not work beyond the age of sixty-five and indeed he retired before that age. The complainant was unable to contradict the respondent statement in this regard and at the Hearing agreed that this was merely an assertion on his part. The Labour Court has consistently held that Section 85A of the Acts "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.". It has further held in the same Decision that "mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.". I therefore find that the complainant has failed to establish a prima facie case of less favourable treatment on grounds of age in comparison with Mr. G.
5.13 The complainant also seeks to ground a complaint of less favourable treatment on grounds of age in comparison with two unnamed employees whom the respondent confirmed, in a letter to his solicitor dated 7 June, 2011, were retained in employment beyond the age of sixty-five years. This information, which was secured by the complainant on foot of a Motion for Discovery in respect of personal injury proceedings in the Circuit Court, was furnished to the Tribunal at the Hearing and as the respondent was not present it was not afforded an opportunity to challenge same. In the interests of natural justice I am satisfied that I must take the totality of the relevant contents of this letter into account in my decision and not just those extracts which the complainant seeks to rely on. This correspondence confirms that the respondent retained two employees beyond the age of sixty-five years. However, it adds that the first such employee was retained by the respondent for a minimal number of hours each week to open and lock up company premises and that the arrangement was based on convenience because he lived locally. The letter adds that the second employee was retired on his sixty-sixth birthday as the company records on this employee contained the incorrect date of birth for him. It states that this error only came to light when the company terminated his employment on the date it believed was his sixty-fifth birthday. In the course of the Hearing the complainant was unable to take issue with the explanations furnished by the respondent as set out above. I have given careful consideration to the above matter and I find that the complainant was not treated less favourably on grounds of age in terms of the Acts in comparison with these two employees and this element of his complaint fails.
5.14 I shall now look at the final element of the complainant's claim- that he was victimised by the respondent contrary to the Acts. It is submitted on behalf of the complainant that the alleged victimisation of him arose as a result of him (i) referring his first complaint to this Tribunal and (ii) lodging his personal injury claim in the Circuit Court. The complainant is unable to sustain a complaint of victimisation under the Acts on the basis of his personal injury claim. The nature of "proceedings" in the definition of victimisation in section 74(2) of the Acts is governed by the definition of that term contained at section 2 of the Acts and that definition is restricted to proceedings on foot of a reference under the employment equality legislation and appeals arising from same. In Tom Barrett v Department of Defence the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have take action of a type referred to at paragraphs (a)-(g) of section 74(2) - what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant. There is no doubt that the complainant, by referring his first complaint to this Tribunal, carried out a protected act in terms of section 74(2) of the Acts. Over six months later the respondent terminated his employment with it. The complainant asserts that this was done by way of an invented or sham policy of the respondent. It is clear from the Labour Court's comments in the Melbury decision that the initial burden of establishing the necessary primary facts from which an inference of unlawful treatment can be drawn rests squarely on the complainant's shoulders. The complainant has failed to adduce any credible evidence to support his assertion on this point and I find, on balance he has failed to establish a prima facie case of victimisation contrary to the Acts.
6. DECISION OF THE EQUALITY OFFICER.
I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2011. I find that -
(i) the complainant's first complaint - the one referred to this Tribunal on 19 December, 2008 - was referred to the Tribunal outside of the timelimits prescribed at section 77(5) of the Employment Equality Acts, 1998-2008.
(ii) the complainant cannot avail of section 77(6) of the Employment Equality Acts, 1998-2008 to bring his first complaint within time and it is not therefore properly before the Tribunal for investigation.
(iii) the respondent has failed to satisfy me that the complainant's second complaint - the one referred on 6 January, 2010 - should be dismissed in accordance with section 77A of the Acts and I find that I am required to investigate the substantive aspects of that complaint
(iv) the complainant has failed to establish a prima facie case of discrimination on grounds of disability in terms of section 6(2) of the Employment Equality Acts 1998-2008 and contrary to section 8 of those Acts in respect of his conditions of employment between July, 2008 and July, 2009.
(v) the complainant has failed to establish a prima facie case of discrimination on grounds of age in terms of section 6(2) of the Employment Equality Acts 1998- 200 and contrary to section 8 of those Acts in respect of his conditions of employment between July, 2008 and July, 2009, in particular the circumstances of the termination of his employment.
. (vi) the complainant has failed to establish a prima facie case of victimisation in terms of section 74(2) of the Employment Equality Acts 1998-2008.
and his complaint therefore fails in its entirety.
_______________________________
Vivian Jackson
Equality Officer
18 August, 2011