THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011-242
PARTIES
Patrick Nevins
(represented by Purdy Legal Solicitors)
-v-
Portroe Stevedores Ltd
(represented by Michael MacNamee B.L. instructed by DAS Group)
File Reference: EE/2007/550 & EE/2008/278
Date of Issue: 20th December 2011
Decision DEC-E2010-000
Patrick Nevins
(represented by Purdy Legal Solicitors)
-v-
Portroe Stevedores Ltd
(represented by Michael MacNamee B.L. instructed by DAS Group)
Keywords
Employment Equality Acts 1998-2008, Dismissal - Section 2(1), Section 6(1) - less favourable treatment, Section 74(2) - victimisation, prima facie case, Section 8(6) discriminatory dismissal, Mandatory retirement age, Section 34(4) defence Article 6 of EU Directive 2000/78 /EC.
1. Dispute
This dispute concerns a claim by Mr. Patrick Nevins that he was discriminated against by the respondent, Portroe Stevedores Ltd in circumstances which amounted to victimisation contrary to Section 74 Employment Equality Acts, 1998 - 2008. He also claims discriminatory dismissal on the age ground when he had to retire at the age of 65.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 - 2008 to the Equality Tribunal on the 30th of October 2007 alleging that the respondent victimised him contrary to the Acts and he referred a further claim on the 2nd May 2008 alleging discriminatory dismissal on the age ground when his employment was terminated by reason of retirement at the age of 65.
2.2 In accordance with her powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on the 13th May, 2010 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from the both parties. A hearing on the complaint was held on the 18th of August 2010. The last correspondence was received on the 26th August 2010.
3. SUMMARY OF THE COMPLAINANT'S CASE
3.1 The complainant submits that he was victimised following a successful complaint which he brought under the Employment Equality Acts against the respondent. The complainant was employed as a casual docker at Dublin Port since he was 16 years old and worked on a casual basis with various companies in the port including the respondent company. Following reorganisation at the port in 1992 the complainant became part of a pool from which casual labourers were provided to stevedoring companies including the respondent company. The complainant applied for a permanent position which became available in the respondent company and he was unsuccessful. He claimed discriminatory treatment on the age ground and the Labour Court issued a determination in the complainants favour on the 11th of February 2005 and ordered the respondent to employ him as a general operative on the same terms and conditions as those employees who were appointed to the permanent positions and to pay him a sum of €4,000 in compensation.
3.2 The complainant was appointed to the position on the 5th May 2005. He submits that he was subjected to unfair and unwarranted treatment since he was appointed. In particular he states that, Mr. M. General Manager, who was a member of the interview board, bullied and harassed him and treated him unfairly, including threatening to unilaterally remove him from the sick pay scheme. In particular he states that the he made false accusations against him, made various threats against him. In addition he said that he was undermined and overlooked for overtime and other duties.
3.3 The complainant stated that in October 2005 he was allocated weekend work but he slept in. He telephoned the company to say he would not be in on the assumption that he was already replaced by another docker. On his return to work he informed the pay clerk of his absence to ensure he was not paid. He was called to a meeting with management together with his union official to discuss his absence and then he received a letter from Mr. M. stating that he would not be disciplined on this occasion but that if there was a repeat offence he would take a different view. The complainant believes that the meeting and letter were unwarranted and that he was the only employee who got such a letter of reprimand for a once-off incident.
3.4 The complainant gave examples of other incidents which occurred and he wrote to the Chief Executive of the respondent company outlining his grievances. He was not happy with the response he received. In the first letter dated 28th February 2007, the complainant complained about his treatment by Mr. M on his return to work after a day's sick leave. The complainant said that he was informed by his local manager on the day he was out sick that he was due to start work on a ship called the Endeavour at 2pm the following day. When he arrived for work at 2pm the ship had not arrived and it transpired that the ship would not arrive until 6pm. As there was no other work to do in the meantime, the complainant sought out management to find out if he should remain on duty or return at 6pm when the ship was due in. He said that he was referred to the General Manager, Mr. M, who told him that he should have received a text advising him about the arrival time of the ship and that he should not have come to work until 6pm. On checking with other staff it transpired that the text was not sent to the complainant. The complainant said that when he advised Mr. M. he could not work beyond 10pm he was accused of trying to set a precedent as regards finishing times for the permanent employees. He said that Mr. M. also accused him of taking 6 hours off the previous day at the company's expense. The complainant said that when he explained to Mr. M. that he was on sick leave he threatened to take him out of the sick pay scheme. He said that he was also accused of having a problem with working on container ships. The complainant also said that he threatened to take him off the 'reach stacker' machines. The complainant asked for this instruction to be put in writing but Mr. M. refused to do so. The complainant put his complaints in writing to the Chief Executive in which he set out the above complaints. In that letter he said that he had been intimidated threatened and accused of dishonourable behaviour and also that he was discriminated against and victimised on the basis of his trade union membership Following the letter the complainant had a meeting with management and had a response by letter dated 5th of May 2007, but he was not happy with the outcome.
3.5 The complainant wrote a further letter to the respondent dated 23rd May 2007 about a number of other incidents which he considered to be a continuation of bullying and harassment. He said that on the 8th of May 2007 he was taken off working on a ship and replaced by a casual worker and the following day he was taken off the reach stacker and told to give the job to a casual worker. On Thursday 10th May the complainant alleges that, in breach of the collective agreement, casual workers were asked to work late and no overtime opportunity was offered to him. On Friday the 11th of May the complainant says he was sent to ship discharging wheat and that the casual workers were sent to work on soil ships which involved working overtime. The complainant submits that the permanent staff should be given the opportunity of overtime ahead of the casual staff as provided for in the collective agreement.
3.6 On Friday 18th May 2007 the complainant said that a casual worker was appointed as a temporary / replacement foreman ahead of him which was again in breach of the union management agreement. The complainant was called to a disciplinary hearing in relation to leaving the ship without permission on the 16th of May and he objected to the hearing being conducted by Mr. M. He submitted that he was the foreman on a ship and he left the ship for about 10 minutes to bring his union representative and another man on to the ship. He believed he was entitled to do this but he was reprimanded and called to a disciplinary meeting to discuss the matter.
He submits that the company failed to investigate the allegations of bullying and harassment he had made against Mr. M. He said that he was subject very close supervision unlike other employees. Mr. M. regularly sat in his car and watched him working. On another occasion he climbed into the machine he was working on and reprimanded him for no good reason. The complainant also said that Mr. M. visited the ships more often when he was on duty.
3.7 The complainant also alleges that another member of local management acted in an intimidating manner towards him and took his private camera. The complainant submitted he had brought his camera to work with the intention of taking pictures of a ship and a cruise line which were in port at the time. On that particular day a ladder on a Lieber machine broke and a fellow worker fell on his back on the floor. The person was uninjured but he reported the incident to the office. The complainant said that he decided to take some pictures of the broken ladder as the machine was about to be shipped back to Austria. A member of local management arrived on the scene and asked the complainant for his camera and took it back to the office. The complainant went to the office and asked for his camera back but the manager refused to return it. He said that he had thrown it in the bin. The complainant searched the bin but he did not find the camera. He returned to the office and the manager eventually returned the camera to him. He told him that the photographs were not admissible in evidence and that he was not allowed to take photographs at work. The complainant wrote a letter of complaint dated 17th September 2006 to management about the way he was treated over the camera but he said he received an inadequate response.
It was submitted for the above reasons the complainant believes that he was victimised for bringing the aforementioned complaint under the Employment Equality Acts.
3.8 The complainant also submitted that he was discriminated on the age ground when he was retired by the company at the age of 65. He said that he was on sick leave from the company since June 2007. The respondent wrote to the complainant on the 4th of February 2008 informing that he was due to retire on his 65th birthday. In response the complainant said that there was no normal retirement age in the company and it was not his intention to retire at age 65. Further correspondence issued to the company from the complainant's solicitor to the company objecting to the retirement and alleging that it was discriminatory on the age ground. The complainant's employment terminated when his p45 was issued by the company. He said that the terms and conditions of employment for permanent staff did not include a retirement age whereas a retirement age of 65 was specified in the terms and conditions for casual dockers. The complainant said that he believed he could work beyond 65 if he chooses to do so. He accepted however that all the employees retired at 65 apart from 2 who were kept on.
3.9 The complainant's solicitor wrote the company about the matter but the decision to retire the complainant on his 65th birthday was not reversed. His solicitor referred me to the European Court of Justice cases of Felix Palacious De La Villa v Servicios SA Case C-411/05 and The Incorporated Trustees of the National Council on Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform Case C-388/07 (known as the Heyday Case) which concerned mandatory retirement age. He submitted it was clear from the first judgment that mandatory retirement age was not automatically lawful but must be found on the facts as having been an appropriate and necessary way of achieving a legitimate aim. In relation to the Heyday case the solicitor submitted that the ECJ firmly placed objective and reasonable justification for mandatory retirement ages in the realm of social policy and not those of a purely individual employment nature. He further submitted that the ECJ recognised that in order to justify mandatory retirement ages as being non-discriminatory there is a burden on Member States to establish to a high standard of proof, the legitimacy of the aim relied upon as a justification. I was also referred to the case of Calor Teoranta v McCarthy Det. No. EDA089, in which the Labour Court suggested that Section 34(4) of the Employment Equality Acts may not be compatible with EU Law. It was submitted that for the above mentioned reasons that the respondent cannot rely on the provisions of Section 34(4) of the Acts in order to defend the claim of discriminatory dismissal on the age ground.
4. SUMMARY OF THE RESPONDENT'S CASE
4.1 The respondent denies that the complainant was subject to any adverse treatment because he had taken a case under the Employment Equality Acts against the respondent. They submit that they dealt with all the issues raised by the complainant and in particular they reject the complainant's contention that the respondent failed to deal with his letters of complaint about the matters which occurred on the 28th of February 2007. In relation to his letter of complaint dated the 28th of February 2007, in which he outlined a number of matters relating to a discussion with the General Manager, Mr M. after his return from sick leave, the respondent stated that that letter was responded to on the 5th of March 2007 and the complainant was advised that that his complaint was being investigated. The Chief Executive Mr. O'R) said that after investigating the complaints he called the complainant to a meeting with Mr M., General Manager, and the complainant's SIPTU representative on the 14th March 2007. All the matters raised in the complainant's letter of the 28th of February were discussed with him. In a letter of the 5th of April to the complainant, the Chief Executive gave the reasons for finding that there was no basis for the allegations that he had made. In response to the complainant's complaint about the ship called the Endeavour arriving late, Mr O'R said that he pointed out to the complainant that there was always a chance that a ship may not berth on time and consequently the job would take longer than anticipated and as an experienced docker he would have known this. It was unreasonable for him to state that he would not work after 10pm, because when a person is designated to work on a ship they are required, in accordance with procedures, to finish the job and in this case the complainant was expected to work after 10pm because the ship was not expected to arrive until 6pm and it was unlikely it would be finished by 10pm. It is an extra cost to the company to employ a casual worker to finish a job started by a permanent worker because casual workers get a minimum of 8 hours work when they are called in and have to be paid over time after this whereas the complainant is a permanent employee and is paid for an 8 hour day regardless of whether he is called in or not. It was for this reason the complainant was sent home and replaced by a casual docker.
4.2 In relation to the alleged threat to remove the complainant from the sick leave scheme, Mr O'R told the complainant that he believed that Mr. M. and himself were probably talking at cross purposes and he was happy to clarified that on the basis of his sick record to date there could have been no threat to remove him from the sick pay scheme. Mr. O'R said that the company was a unionised employer and he could find no evidence of any discrimination against the complainant in respect of his union membership.
4.3 Mr. O' R. also pointed out to the complainant that Mr. M.'s statement to him that he appeared to have a problem working on container ships was factually grounded. He said that the complainant had a preference for working on bulk ships. The company's record show that when weekend work was available on container ships for the period October 2006 to March 2007 that he was not available for container work on any of the 41 weekend days during this time. The complainant made himself available on 9 occasions during this period to work on bulk or soil ships only. A further meeting was held with the complainant on 10th May 2007. The respondent submitted that the complainant was unhappy with the outcome of the investigation and in a further letter of the 23rd May, he raised new issues. In a response letter from the Chief Executive, he requested further details of the new issues raised by the complainant. The complainant responded on the 19th June indicating that he had no further information to offer in relation to his complaints other than the two letters of complaints that he had sent to the company.
4.4 In relation to the camera incident, the respondent submitted that at a meeting of the 16th October 2006 at which the complainant was represented the issues were resolved. In response to the complaints about work allocation and the allocation or the removal of the complaint from a particular piece of machinery the respondent witnesses submitted that there was always a good reason to allocate employees to particular jobs and it is the manager's job to decide who goes on a particular machine. It was also the manager's decision to decide if a foreman was required on a particular job. In the complainant's case he did not like to work on container ships so he was usually on bulk ships or soil ships and the company always accommodated him in that respect.
4.5 Mr. M. denied that he ever bullied or harassed the complainant or that he supervised the complainant's work much more closely than he supervised other employees' work. He said it was difficult to contact the complainant to advise him about the time a ship was due in because he refused to provide his mobile number. In relation to the complainant's complaint about the company not offering him overtime or a foreman job ahead of the casual workers, Mr M. said that the casual workers were covered by legislation since 2001 and the company was obliged to offer them the same terms and conditions of employment as the permanent staff. The company policies were changed to reflect that and supersede any previous agreements.
4.6 Mr M. said that the complainant was not treated any differently than other employees in relation to reporting to their foreman, supervisor or local manager before going home. On a number of occasions the complainant and other employees left the job during the day without permission and the reporting procedure was brought in. The respondents submitted that this incident cannot be construed as adverse treatment or treatment which was in response to the successful equality claim. Mr M. said that he was involved with the equality case the complainant had taken against the company but he said that he never held that against the complainant nor did he treat him more severely or watch him more closely than other employees. He said it was not unusual for him to sit in his car and watch the work in progress or to visit any ship in port or to climb into a machine to talk to a worker because it was his duty to ensure that the port operated to its maximum capacity at all times. He stated that he spent about 50% of his time in the office and the other 50% on supervision duties out in the port. He said that he did not single out the complainant for any particular treatment over and above the rest of the employees. The respondent submits that the complainants complaints were investigated promptly and that the further complaints made by him were in effect abandoned in that he did not provide details. He did not attend the disciplinary hearing in relation to leaving his foreman duties on the ship because he was out sick.
4.7 In relation to the complainant's retirement the company states it was normal practice to retire employees when they reached their 65th. The complainant was employed as a casual docker with another company and also from time to time with the respondent up to 2005. During this time he was covered by an agreement for casual dockers agreed between the respondent and the stevedore companies and the unions. This agreement which the complainant signed up to provided for retirement at 65. The complainant signed an acceptance of the agreement between the respondent and Dublin Stevedores and the MPGWU Division of SIPTU which is dated July 27th 2003 on the 9th May 2005, the date he was made permanent by the respondent. The complainant was on the on the Branch Executive of the Union and signed the Agreement along with the Branch Secretary. The permanent employees are covered by an agreement known as XYZ Limited which sets out terms and conditions of employment for foremen, dockers and checkers. The respondent stated that the parties to the agreement forgot to mention the retirement age. It was submitted that while the agreement does not mention that employees have to retire at 65 it is implied into the agreement. The complainant's pension plan was based on a retirement age of 65 and all employees understand it is custom and practice that they have to retire on reaching their 65th birthday. The respondent stated that two employees who retired on reaching their 65th birthday were rehired as consultants for a short period as they both had specialist knowledge, one in negotiation and the other in rigging. No other employee worked beyond 65.
4.8 The respondent's counsel submitted that the respondent is relying on Section 34(4) of the Employment Equality Acts which permits the fixing of retirement ages without any requirement to establish objective justification. He also submitted that without prejudice to the preceding argument, the respondent contends that the retirement age as provided for in the union management agreement is justified with reference to the particular job and the particular sector and the employment conditions prevailing in the country at the date of the retirement. The imposition of the said retirement age by the company is proportionate, appropriate and necessary for the achievement of the foregoing objectives.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The complainant's case is that he was victimised in terms of Section 74(2) of the Employment Equality Acts, 1998 - 2008, and that he discriminated against on the age ground in terms of Section 8 of that Act when he was compulsorily retired by the respondent. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties.
5.2 The first matter I have to consider is whether the complainant was victimised as a result of a successful equality claim he pursued against the respondent resulting in him being appointed to a permanent position with the company. Section 85A of the Employment Equality Acts sets out the burden of proof necessary in claims of discrimination. It provides "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."
It requires the complainant to establish, in the first instance, a prima facie case, that is, facts from which it can be established that he suffered victimisation.
Section 74(2) of the Act defines victimisation as:
''victimisation'' shall be construed in accordance with subsection (2).
(2) For the purposes of this Part victimisation occurs where dismissal
or other adverse treatment of an employee by his or her
employer occurs as a reaction to --
(a) a complaint of discrimination made by the employee to the
employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a
complainant,
(d) the work of an employee having been compared with that
of another employee for any of the purposes of this Act
or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under
this Act or the Equal Status Act 2000 or any such repealed
enactment,
(f) an employee having opposed by lawful means an act which
is unlawful under this Act or the said Act of 2000 or
which was unlawful under such repealed enactment, or
(g) an employee having given notice of an intention to take any
of the actions mentioned in the preceding paragraphs.
5.3 The first matter the complainant states constitutes victimisation or adverse treatment by the respondent concerned the complainant's non-attendance at work after he slept in. The complainant took the day off in the belief that another docker would have been allocated his work. The respondent submitted that they require advance warning of absences as they do not have extra dockers scheduled to work on the ship in the event of someone already scheduled failing to turn up. I note that the complainant was warned about his actions but no disciplinary action was taken against him. I am satisfied that other employees who did not turn up for work in similar circumstance would have received the same warning. I am not satisfied that the complainant was subject to any adverse treatment in relation to this matter.
5.4 The next matter I have to consider is the camera incident. The complainant stated that he had the camera at work to take some pictures of ships in the port and he was not aware that he was no allowed to take photographs and that the camera was taken from him by his local manager. He submits this was in retaliation for taking an equality claim against the company. The respondent submitted that for security reasons employees are not allowed to take photographs in the dock area. There are 2 designated officials permitted by the company to take photographs. I note that the complainant made a complaint by letter dated the 17th September 2006 to management about the way he was treated by the local manager in relation to the camera. He was called to a meeting together with his union official to discuss this matter and other grievances he had with the company. I note from the minutes of the meeting that the respondent considered that hiding the camera was "banter". The complainant was also informed about the company policy on taking photographs at work. I note the complainant said that while he was not happy with the outcome he did not wish to pursue the matter further. Likewise, I note that the complainant's camera was returned to him on the day of the incident and he was not disciplined in any way in relation to the matter. I am satisfied that the incidents complained about here were resolved to the satisfaction of both parties. I find therefore that the complainant has not established that he was subject to any adverse treatment which could be construed as victimisation under the Acts in relation to this matter
5.5 The next matter I am considering concerns the complainant's absence on sick leave and his return to work the following day. He was due to start work at 2pm on a ship called the Endeavour but when he arrived the ship was not in. The complainant said he spoke to Mr. M. who accused him of taking time off the previous day at the company expense and threatened to take him off the sick pay scheme. He also learned that the ship would not be in port until 6pm. He said that Mr. M. gave out to him for not being available for work after 10pm. The respondent stated that the complainant was an experienced docker and he would have known that there was a chance that the ship may not arrive on time and it was unreasonable for him to say he was finishing work at 10pm. Permanent dockers are paid for an 8 hour shift 8am to 5pm and overtime after this. If a casual docker is called in as a replacement he has to be paid for an 8 hour shift and overtime if the shift is longer. In this case where the complainant refused to work after 10pm a casual worker had to be employed at an extra cost to the company.
I note the matter was investigated by the company and the complainant received a letter of explanation regarding the matters complained about. I note that the complainant was not sanctioned nor was he removed from the sick pay scheme. I am satisfied that the perceived threat in relation to the sick pay scheme was a misunderstanding between the complainant and Mr. M. Likewise, I am satisfied that the issues complained about here were normal everyday issues arising in any employee/employer relationship and were dealt with through the grievance procedure. I cannot find any adverse treatment of the complainant in relation to these matters.
5.6 The next matter complained about concerned the complainant's treatment in relation to casual dockers. The complainant stated that he was taken off jobs and machines such as the reach stacker and replaced by casual workers. In addition he submitted that casual workers were offered overtime ahead of him and he was allocated to ships which did not require overtime whereas the casual workers were allocated to ships which required overtime. In addition he stated that a casual worker was appointed a temporary foreman on a ship ahead of him. The complainant submitted that all of the above treatment of him was in breach of the collective agreement which provides that permanent employees have first call to such opportunities. The respondent submitted that they are obliged by the Part-Time Work Act 2001 to treat casual employees equally with full-time employees and for this reason they are obliged to offer them the same opportunities for overtime and higher duties as full-time employees. The respondent also stated that the bulk of the overtime was on container ships over the weekend and the complainant constantly refused overtime on these ships. They also submitted that it was for management to decide, depending on the experience of the person, who was appointed to a particular task or who operated a particular machine at any given time or if it was necessary to have a temporary foreman on a particular job.
5.7 I am satisfied that the complainant has not established that he was adversely treated by the respondent in comparison to other employees either permanent or casual in the allocation of work which attracted overtime or the allocation of higher duties of a foreman. I note from the company's records that the complainant did not work on container ships at the weekend which was the heaviest period for overtime. I also note from the evidence that the complainant refused to work after 10pm on the Endeavour ship. It is also clear from the evidence that the complainant was acting as a Forman in May 2007. The respondent is also obliged to comply with the provisions of the Protection of Employees (Part-Time Work) Act 2001 in relation to the casual employees. It is therefore a matter for the respondent to decide how opportunities for overtime and higher duties are distributed amongst the employees. I find no evidence to support the complainants claim that he was adversely treated in relation to this aspect of the complaint.
5.8 The complainant also complained that he was closely supervised in comparison to other employees and that if his work on the ship finished early he was required to report to a supervisor before he could go home and this rule did not apply to other employees. He stated that Mr. M. treated him differently to other employees in that he sat in his car and watched him working and if he was assigned to work on a ship he always visited and this did not happen to other employees. He said that Mr. M. intimidated him and chastised in relation to work matters and on one occasion climbed into the cab of his machine to give out to him about a matter which was not his fault. Mr. M. denied that he supervised the complainant more closely than other employees or that his treatment of the complainant was motivated by the fact the complainant had a successful equality claim against the company. He submitted that it was his job to ensure that the work was carried out in an efficient manner and for this reason he watched the work in progress or he visited the ships the employees were working on. He said that some of the employees including the complainant left the workplace without permission and he introduced a rule for security reasons that all employees had to report to their supervisor before they could leave if their work finished early. On 16th May 2007, the complainant was acting foreman on a ship and he left his position on the ship without permission to bring a union official and another person on to the ship. Mr. M. said that this was in breach of company procedures and of the security of the workplace. The complainant was called to a disciplinary hearing in relation to this matter and also about the fact that while working as a foreman on the same day he informed management he could not work past midnight to finish the work on the ship. The meeting never took place because the complainant went out sick shortly afterwards.
5.9 I find no evidence to support the complainant's contention that he was singled out for more close supervision than the other employees of the respondent. The respondent is entitled to have practices and procedures in place concerning the supervision and reporting arrangements of its employees and to ensure that the work of the company is carried out to its satisfaction. I am satisfied that these practices and procedures were applied equally to all the staff. I note that the complainant accepts that when he was acting as a foreman in May 2007 when he left the ship without permission for a short period of time to accompany some visitors on to the ship. I am satisfied that the respondent was entitled to call him to a disciplinary hearing under the company disciplinary grievance procedure to investigate this matter. To call an employee to a disciplinary hearing to investigate an incident which the complainant accepts happened cannot, in my view, amount to adverse treatment contrary to the Acts.
Age Ground
5.10 The next matter I have to consider is whether the complainant was discriminated against on the age ground when he was compulsorily retired on his 65th birthday.
6. -- (1) "For the purposes of this Act and without prejudice to its
provisions relating to discrimination occurring in particular circumstances,
discrimination shall be taken to occur where --
(a) 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) (in this
Act referred to as the ''discriminatory grounds'') which --
(i) exists,........
(2) As between any 2 persons, the discriminatory grounds (and
the descriptions of those grounds for the purposes of this Act) are --
.........
(f) that they are of different ages, but subject to subsection (3)
(in this Act referred to as ''the age ground''),...."
Section 8(6) provides for discrimination in specific areas including dismissal:
8 (6)" Without prejudice to the generality of subsection (1), an
employer shall be taken to discriminate against an employee or prospective
employee in relation to conditions of employment if, on any
of the discriminatory grounds, the employer does not offer or afford
to that employee or prospective employee or to a class of persons of
whom he or she is one --
(a) the same terms of employment (other than remuneration
and pension rights),
(b) the same working conditions, and
(c) the same treatment in relation to overtime, shift work, short
time, transfers, lay-offs, redundancies, dismissals and disciplinary
measures,
as the employer offers or affords to another person or class of persons,
where the circumstances in which both such persons or classes
are or would be employed are not materially different."
5.11 The complainant submits that there is no provision in the terms and conditions of employment for permanent employees for retirement at 65 and two employees were kept on beyond the age of 65. It was submitted that it was for the respondent to establish that imposing a compulsory retirement age was objectively justified and that the jurisprudence of the ECJ in the above mentioned Palacious and Heyday cases places an onerous burden on the respondent to establish that a mandatory retirement age is compatible with Article 6 of Directive 2000/78 and was not discriminatory on the age ground. I was also referred to the Labour Court decision in Calor Teoranta cited above. The respondent submitted that the retirement age was 65 and the complainant knew this because he was a union representative and was part of the union negotiating team when the agreements were drawn up. While 65 is not specifically mentioned in the agreement for the permanent employees due to an oversight it is in the agreement for casual employees and it was custom and practice for all employees to retire at 65. The complainant would have known once he signed up to the pension plan for permanent dockers that the retirement age was 65.Two people who retired at 65 were rehired for a short period due to their specialist skills. The respondent's representative submitted that the law had not been changed by the ECJ in the Palacious and Heyday cases. In relation to the issue of whether the national law complies with the Directive he submitted it was not an issue which could be litigated by the parties herein because such an issue is a matter of public law. In addition he submitted that the complainant's representative was asking the Tribunal to strike down a provision of the Employment Equality Acts which is beyond the Tribunal's jurisdiction. Counsel also submitted that without prejudice to the aforementioned arguments that the mandatory retirement of 65 was objectively justified by the respondent by reference to the particular job and the particular sector.
5.12 Firstly I am satisfied that the complainant was subject to the company's terms and conditions of employment which was agreed between the union and the employer and the complainant as a union representative was involved in the negotiation of the agreement for casual dockers. I am also satisfied that the agreement while not specifically stating that there was a mandatory retirement age of 65 that it was implied into the agreement by custom and practice in that all employees had to retire on reaching that age. It is clear from the evidence that all the employees were mandatory retired at that age. The dismissal of the complainant was therefore age related. Employees who had not attained the age of 65 are not obliged to retire at 65. I am satisfied that the complainant has established that he was treated less favourably than another person who had not reached the age of 65 and is treated or would have been treated in comparable circumstances contrary to Section 6(1) and 6(2)(f) and in terms of Section 8(6) of that Act. The ECJ has analysed the issue of mandatory retirement in a number of judgements. In particular the following; Palacios de la Villa v Cortefal Services , Petersen v Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe , R (Age Concern) v Secretary of State for Business, Enterprise and Regulatory Reform , Rosenbladt v Oellerking Gebäudereinigungsges.mbH , Georgiev v Techniches Universitet , and, more recently, Fuchs and Kohler v Land Hessan and Reinhard Prigge, Michael Fromm, Volker Lambach v Deutsche Lufthansa AG . It is clear from this ECJ case law that a compulsory retirement ages imposed on an employee on reaching a certain age establishes a difference of treatment on the age ground and is discriminatory.
5.13 The next matter I have to consider is the Section 34(4) defence in the Employment Equality Acts which provides that the fixing of retirement ages is not discrimination. Section 34(4) of the Acts provides a defence for the respondent in relation to claims of age related discriminatory dismissal in relation to retirement and states:
"(4) Without prejudice to subsection (3), it shall not constitute discrimination
on the age ground to fix different ages for the retirement
(whether voluntarily or compulsorily) of employees or any class or
description of employees."
I have been referred to the above cited cases by the complainant in relation to the compatibility of this section with the EU Directive2000/78/EC. It is clear that the Calor Teoranta decision of the Labour Court did not make any decision in relation to this Section and expressly stated it was reserving its position on this question to another case.
I note that Article 6 (1) of Counsel Directive 2000/78/EC states:
"Justification of differences of treatment on grounds of age
(1)Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary."
5.14 Member States were required to adopt their laws in order to comply with the provisions of the Directive by the 2nd of December 2003. The Equality Act 2004 was enacted by the Oireachtas in 2004 and the long title of the Act states that one of the purposes of the 2004 Act was to give effect to the Council Directive 200/78. It is clear therefore from the Directive which has been transposed into Irish law by the 2004 Act and also from the above cited ECJ case law that a compulsory retirement ages imposed on an employee on reaching a certain age establishes a difference of treatment on the age ground and is discriminatory. These differences in treatment must be objectively and reasonably justified by legitimate aim as set out in Article 6 of the Directive. In Palacios de la Villa v Cortefal Services C-411/05 the Court held as follows:
"50 Under Article 2(1) of Directive 2000/78, for the purposes of the Directive, the 'principle of equal treatment' is to mean that there is to be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1. Article 2(2)(a) states that, for the purposes of paragraph 1, direct discrimination is to be taken to occur where one person is treated less favourably than another person in a comparable situation, on any of the grounds referred to in Article 1.
51 National legislation such as that at issue in the main proceedings, according to which the fact that a worker has reached the retirement age laid down by that legislation leads to automatic termination of his employment contract, must be regarded as directly imposing less favourable treatment for workers who have reached that age as compared with all other persons in the labour force. Such legislation therefore establishes a difference in treatment directly based on age, as referred to in Article 2(1) and (2)(a) of Directive 2000/78.
52 Specifically concerning differences of treatment on grounds of age, it is clear from the first subparagraph of Article 6(1) of the directive that such inequalities will not constitute discrimination prohibited under Article 2 'if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary'. The second subparagraph of Article 6(1) sets out several examples of differences of treatment having characteristics such as those mentioned in the first subparagraph and, therefore, compatible with the requirements of Community law."
5.15 In Donnellan v The Minister for Justice, Equality and Law Reform & Others McKechnie J held that the termination of an employee's employment solely on reaching a particular age constituted direct discrimination on the ground of age. He stated in the judgement at paragraph 79:
"It is clear that the imposition of mandatory retirement age is discriminatory, per se, under the Directive, in that it places one person at a disadvantage to another, who would otherwise be in the same situation, on the grounds of age alone."
At paragraph 70 of the judgment McKechnie J also made reference to the Equality Act of 2004:
"That being so, it inevitably must follow that the provision of the 1996 Regulations, which had the effect of terminating the plaintiff's employment at age 60, constitutes direct discrimination within the meaning of Article 2 of the Directive; in that the plaintiff is treated less favourably than another Assistant Commissioner who has not reached the age of 60. Therefore it falls squarely within the prohibition on direct discrimination. This conclusion of course equally applies to the Equality Act 2004. Consequently it is incumbent upon the member state to justify this difference of treatment on the grounds of age. It can do so under the provisions of Article 6 if it can establish that, within the context of national law, the differences in such treatment are "objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour, market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary" (see paras. 61 - 62 supra. for the relevant Directive provisions)."
5.16 In Impact v The Minister for Agricultural and Food and Others the ECJ, in referring to the Labour Court stated at paragraphs:
98 "In that regard, when applying domestic law and, in particular, legislative provisions specifically adapted for the purposes of implementing the requirements of the directive, national courts are bound to interpret the law, so far as possible, in the light of the wording and the purpose of the directive in order to achieve the results sought by it and thus to comply with the third paragraph of Article 249 EC (See, in particular, Pfeiffer and Others paragraph 113 and the case law cited)
99 The requirement that national law be interpreted in conformity with Community law is inherent in the system of the EC Treaty, since it permits national courts, for the matters within their jurisdiction, to ensure the full effectiveness of Community law when they determine disputes before them (See, inter alia, Pfeiffer and Others, paragraph 114, and Adeneler and Others, paragraph 109)."
5.17 In Donnellan v The Minister for Justice, Equality and Law Reform and Others. McKechnie J stated, in looking at the regulations governing the application of compulsory retirement ages of senior members of an Garda Síochána, that:
"national measures relating to retirement ages are not excluded from consideration under Directive 2000/78/EC. Any discrimination with regards to age must, as put by that Directive, serve a legitimate aim or purpose and the means taken to achieve that purpose be appropriate."
5.18 I am satisfied therefore that McKechnie J's comments in the aforementioned Donnellan case and the ECJ judgment in the Impact case, are authorities for the proposition that section 34(4) of the Acts must be construed in light of Article 6(1) Directive 2000/78/EC . Therefore the question I have to decide is whether or not the mandatory retirement age in this case can as stated in Donnellan be
"objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour, market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary"
5.19 In considering the above I have followed the jurisprudence of the ECJ in the case of Rosenbladt v Oellerking Gebäudereinigungsges.mbH. In this case the contract of employment was terminated as Mrs Rosenbladt had reached the age of 65. The age of retirement in that case was negotiated between the employers and unions as part of a collective agreement. The ECJ held that, in this case, the law permitting compulsory retirement did not breach the prohibition on age discrimination as it could be objectively justified and the actions taken under the legislation were proportionate.
"If in the light of the assessment made by the referring court, it was to be observed that the clause on the automatic termination of employment contract at issue in the main proceedings was the result of an agreement negotiated between employees' and employers representatives' exercising their right to bargain collectively which is recognised as a fundamental right (Case C 271/08 Commission v Germany). The fact that the task of striking a balance between their respective interests was entrusted to the social partners offered considerable flexibility. By guaranteeing workers a certain stability of employment and, in the long term, the promise of foreseeable retirement, while offering employers a certain flexibility in the management of their staff, the clause on automatic termination of employment contracts is thus the reflection of a balance between diverging but legitimate interests, against a complex background of employment relationships closely linked to political choices in the area of retirement and employment."
5.20 It would appear from the Rosenbladt case that a collective agreement can constitute objective justification. I also note that in Rosenbladt the Court took cognisance of the fact she had access to and was a member of the pension plan and the national legislation did not prevent her from continuing to work. This is equally the case in the complaint herein in that the complainant was party to collective agreement that included a clause on compulsory retirement at age 65; he was also a member of the company's pension plan, which came into effect when he turned 65 and neither was he estopped from continuing to work beyond retirement age in a new job. The respondent submitted that the imposition of a mandatory retirement age of 65 was appropriate and necessary given the nature of the particular job and the particular sector and the employment conditions prevailing therein. It should also be noted that there was a considerable amount of physical activity attached to the job. I am satisfied therefore that the reasons advanced for the retirement of the complainant comes within the principles laid down in the Rosenbladt case and that retirement has been objectively justified by the respondent.
5.21 For the aforementioned reasons I am satisfied therefore that the respondent has rebutted the prima facie case of discriminatory dismissal raised by the complainant. Likewise, I am satisfied that the respondent has established that the mandatory retirement of the complainant on reaching his 65th birthday was objectively justified. I find therefore that the respondent did not discriminate against the complainant on the age ground when he was retired on reaching his 65th birthday...
6. DECISION OF THE EQUALITY OFFICER.
6.1 On the basis of the foregoing, I find that the respondent did not victimise the complainant in terms of Section 74(2) of the Employment Equality Acts 1998-2008 and contrary to section 8 of the Acts in relation to his conditions of employment.
I find that the respondent did not discriminate against the complainant on the age ground in terms of Section 6 and contrary to Section 8 of the Acts when he was compulsory retired from the company.
______________________________
Marian Duffy
Equality Officer
20th December 2011