FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : CARLOW INSTITUTE OF TECHNOLOGY (REPRESENTED BY ARTHUR COX SOLICITORS) - AND - JOHN MAVROUDIS (REPRESENTED BY JOHN MAVROUDIS) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal Under Section 83 Of The Employment Equality Acts, 1998 To 2008
BACKGROUND:
2. An appeal was submitted to the Labour Court in accordance with Section 83 of the Employment Equality Acts, 1998 to 2008. A Labour Court hearing took place on the 13th March, 2011. The following is the Court's Determination:
DETERMINATION:
The case comes before the Court by way of an appeal by the Complainant Under Section 83 of the Employment Equality Acts 1998 – 2008.
Dispute:
The Complainant claims that the Respondent the Institute of Technology, Carlow discriminated against him on the age ground contrary to section 6(2) of the Employment Equality Acts and that he was dismissed in a discriminatory manner in breach of of Section 8 of the Acts.
Background:
The Complainant came to Ireland in 1965. He worked for the respondent from 1972 – 1976 as a lecturer in the Engineering Department. From 1976 - August 2007 he worked for the Respondent as a lecturer in Electronic Engineering (apart from leave of absence from 1979 – 1980.)
Summary of the Complainant’s Case: -
The Complainant submits that since 2001 he applied on four occasions for promotion to a higher post. On each occasion he submits that the successful candidate had lower qualifications, experience , skill and seniority. He also submits that in September 2006 he made an application to undertake a course of studies leading to the award of a Ph. D Degree that was returned because the respondent said no qualified supervisor was available, even though he had been accepted by a suitable supervisor. The Complainant submits that these actions amounted to constructive dismissal that occurred when he took early retirement on 30 September 2007.
Summary of the Respondent’s Case: -
The Respondent submits that this claim is out of time in accordance with Section 77 (5) of the Acts in that the last of the competitions referred to by the complainant was held in September 2004. It further submits that the PhD application was dealt with in the Spring of 2006. The complaint under the Act was not submitted until December 4th 2007.
The Respondent further submits that the Complainant was not dismissed but retired under the terms of the pension scheme shortly after reaching his 60th birthday. On 25 January 2007 the Complainant wrote to the respondent proposing to retire on 31 December 2007. He gave no reason for this other than that he would be 60 years of age in July 2007. On 13 June 2007 he asked to bring his retirement forward to 30 September 2007 because “the latest developments in the Electronics Department have forced me to review my retirement date”. He expressed his dismay that two courses in which he had been involved would not be run in the next academic year and accordingly he felt it was better not to begin teaching new courses in and then retire in December as originally planned. He gave no other reason for changing his retirement date at that time. The Respondent accommodated his request.
The Respondent denies that any discrimination took place in relation to the Complainant’s applications for promotional positions within the respondent or in relation to his PhD application. The Respondent submits that the Complainant has failed to establish a prima facie case of discrimination in relation to the age ground cited.
Findings of the Court:
Section 77 (5) of the Act provides that “ a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of a period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case be the date of its most recent occurrence.” This period of time may be extended to 12 months if there is “reasonable cause.”
The Court is satisfied that as the job vacancies for which the Complainant applied were submitted before September 2004 and the complaints in this regard under the Acts were not submitted until 4 December 2007 it has no statutory authority to hear that aspect of the case.
However this is also a complaint of discriminatory dismissal that allegedly took place on 31st August 2007. This aspect of the complaint was submitted to the Director of the Equality Tribunal on 4 December 2007, within six months of the date of the incident, and is accordingly properly before the Court.
Section 85A of the Employment Equality Acts 1998 – 2007states “ Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. Section 6(1) of the Act 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).”
The Complainant claims that he considered his early retirement on 31 August 2007 to be constructive dismissal and that this arose from his treatment in relation to the four job applications and his PhD application where he alleges he was discriminated on the age ground.
The Court has already found that consideration of claims of discrimination arising out of the Complainant’s job applications are out of time. The Court is satisfied that the claims arising out of the PhD application are within time and can be dealt with by the Court.
However the decision to retire in 2007 was notified to the Respondent in January 2007 and in that letter the Complainant set out his reasons for so deciding. These related to his reaching pension age in July 2007. By letter dated 25 January 2007 the Complainant stated to the Respondent that it was on the advice of his pension advisors that he had nominated 31 December 2007 as his chosen date of retirement. No reference to was made to a PhD application and in any case no decision on the PhD application had arisen at that time. The original proposed retirement date was brought forward by the Complainant by way of letter dated 13 June 2007. In that letter he cited changes to course structure and curriculum changes as his reasons for so doing. He again made no reference to his PhD application in that letter.
Section 2 (1) of the Act defines dismissal as including
“ the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so ..”
At the time the Complainant gave notice of his intention to retire there was no impugned act on the part of the respondent that could be said to have in any way have justified the employee terminating his contract of employment.
Indeed the Court is satisfied that the real reason for the termination of the Complainant’s employment is set out by him in his letters to the Respondent. The reason relates to his having reached the earliest pension age at which he could retire, without loss of benefit, under his pension scheme.
Determination: -
The Court finds no merit in the Complainant’s contention that he was discriminatorily dismissed.
The appeal is disallowed. The decision of the Equality Officer is upheld.
Signed on behalf of the Labour Court
Brendan Hayes
10th August,2011______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.