The Equality Tribunal
Employment Equality Acts
Decision DEC-E2011-210
Parties
Canniffe
-V-
University College Dublin
(Represented by IBEC)
File reference: EE/2008/866
Date of Issue: 15 November 2011
Headnotes: Employment Equality Acts, 1998-2008 - Sections 6,8 - age- conditions of employment - time limits - misconceived.
1. Dispute
1.1 This dispute involves a claim by Mr Oliver Canniffe (hereinafter the complainant) that he was discriminated against by University College Dublin (hereinafter the respondent) on grounds of age, in terms of section 6 of the Employment Equality Act, 1998 and contrary to section 8 of that Act. The complainant maintains that the respondent discriminated against him in relation to his conditions of employment.
1.2 The complainant referred a complaint under the Employment Equality Act, 1998 to the Equality Tribunal on 15 December 2008. In accordance with his powers under the Acts the Director delegated the complaint to Ms Deirdre Sweeney, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Act. My investigation of the complaint commenced on 27 June 2011 the date the complaint was delegated to me. Submissions were received from both parties. As required by Section 79(1) of the Acts and as part of my investigation I proceeded to hearing on 8 September 2011.
2. Summary of the Complainant's Submission
2.1 The complainant states that he commenced employment with the respondent in July 1976 at the Laboratory Attendant grade. He progressed to the grade of Technician on 1 November 1998 and to Senior Technician on 1 July 2000. The complainant contends that during the course of his employment it had been agreed that technicians would be entitled to a lump sum payment to be received on retirement on condition that they retired at 65 rather than their original retirement age of 70. The complainant states that this lump sum payment was the subject of a Rights Commissioner recommendation on 19 October 2006. In that case the Rights Commissioner recommended that the respondent pay a claimant in that case this lump sum payment on his retirement.
2.2 The complainant states that subsequently it was agreed between the respondent and the complainant's union that the lump sum of £4000 (subsequently increased to €8000) would be applicable to technicians on the basis laid down by the Rights Commissioner. This agreement only applied to those employees who commenced employment on the Laboratory Assistant grade prior to 1978 and who were subsequently promoted to the position of Technician. It was further agreed that the normal retirement age for the grade of Technical Officer was 65 years of age rather than 70. This agreement was reached on 25 February 2008.
2.3. The complainant states that when he became aware of the agreement between the respondent and the union to pay the lump sum, he had already retired. He retired in February 2006 at the age of 65. He had retired then as the respondent had informed him that this was the normal retirement age for his grade. The complainant states that he would have liked to continue working until 70 but was not given this option. He was not paid the lump sum on retirement. The respondent continued to employ him on a fixed term contract until the end of August 2006.
2.4 The complainant states that by email dated 14 July 2008, passed to him by his union in August 2008, the respondent stated that those not entitled to the lump sum payment included staff who had retired prior to the Rights Commissioner recommendation of 19 October 2006. The complainant falls into this category and on this basis he states he was informed by the respondent that he would not receive the lump sum payment. The complainant contends that the basis on which he was asked to retire at 65 was that he would be entitled to the lump sum payment on retirement. He also contends that the fact that he retired at 65 is the very basis on which the respondent is now denying his right to the payment.
2.5 The complainant states that on 27 August 2008 he wrote to the respondent appealing this decision and stating that he was being denied the payment solely on the basis of his age and that this constituted discrimination on the grounds of age. The respondent responded on 16 September 2008 confirming that he would not receive the lump sum payment.
2.6 The complainant submits that the respondent's treatment of him constitutes discrimination of him on grounds of age contrary to the Employment Equality Acts and in terms of redress he states that he is seeking payment of €8000 as per the agreement with the union.
3 Summary of the Respondent's Submission
3.1 The respondent denies that the complainant has been subjected to discrimination on the grounds of age contrary to the Employment Equality Acts in relation to this lump sum payment. The respondent maintains that the complainant did not receive this payment as he was not entitled to it as was the case with a number of other staff in the same position as him.
3.2 The respondent states that the complainant commenced employment in 1976 as a Laboratory Attendant. He was subsequently promoted first in November 1988 to the Grade of Technician (now Technical Officer) and then to Senior Technician (Senior Technical Officer) in July 2000. He retired on 31 January 2006 and was then employed on a fixed term contract until 31 August 2006.
3.3 The respondent outlines that a claim was referred to the Rights Commissioner by another staff member at the grade of Technical Officer claiming that he was entitled to an ex-gratia lump sum payment on retirement of £4000. This claim was heard on 18 September 2006. The respondent's position was that this payment was only intended to be made to serving Laboratory Attendants who were entitled to work until the age of 70 but retired on or before age 65. The claimant in the case claimed that he had originally been employed as a Laboratory Attendant and notwithstanding his subsequent promotion to Technical Officer, his terms and conditions remained unchanged as his new contract on promotion stated this. The Rights Commissioner decision recommended that the respondent pay the lump sum of £4000 (€5076) to the individual concerned and to increase the value of the payment taking into account that the amount was set in 1978 and it was then 2006. The respondent did not appeal this Recommendation. Subsequently the Unite trade union referred a case to the Conciliation Service of the Labour Relations Commission on the basis that all Technicians, in the exact same position as the claimant in the Rights Commissioner case, should receive this payment. In February 2008 the respondent and the Unite trade union agreed, on the basis laid down in the Rights Commissioner recommendation, that the lump sum of €8000 would be applicable to technicians "who commenced employment on the laboratory attendant grade prior to 1978 and who were subsequently promoted to the post of technician."
3.4 Following this conciliation agreement the respondent states that technical officers wrote querying their entitlement to the ex-gratia payment. There were a number of categories of staff who were not entitled to the ex-gratia payment including staff who had retired prior to the Rights Commissioner recommendation of 19 October 2006.
The respondent submits that it is policy and standard practice not to apply agreements to those who are no longer staff. The respondent contends that it was the understanding of the parties at conciliation that this agreement would only apply to former Laboratory Attendants who were employed or had been employed at the time of the Rights Commissioner recommendation and that therefore staff who had retired before this were not covered.
3.5 It is the respondent's position that the complainant was not discriminated against on the grounds of age, he had retired as had a number of other staff and therefore none of these staff members were eligible for this payment. The respondent contends that the decision not to pay this lump sum to the complainant was unrelated to his age but due to the fact that he was no longer a staff member and was not a party to the dispute at conciliation and was not covered by it.
3.6 The respondent states that, while the complainant has claimed that the alleged discriminatory act occurred on 25 February 2008, he was not an employee of the respondent at that time. It further submits that as the Employment Equality Acts concern equality between employers and employees I do not have jurisdiction to investigate this claim. It further submits that the complainant is claiming that he should have received the lump sum on his retirement. However as he retired on 31 January 2006 and ceased employment with the respondent in August 2006 his claim was lodged over two years after his retirement. Consequently this claim is out of time and I have no jurisdiction to hear his claim.
3.7 Notwithstanding the previous arguments, the respondent rejects the complainant's claim that he has been discriminated against on the grounds of age and submits that he was not treated differently to anyone else on the grounds of his age. No other employee who retired prior to 2006 received the lump sum. The complainant did not receive the lump sum as he was no longer an employee of the respondent and therefore was not entitled to it.
3.8 In conclusion the respondent contends that the complainant was not a party to the conciliation and was not covered by the agreement. The decision not to pay the lump sum to him was solely based on the fact that he was no longer an employee of the respondent. The respondent has not discriminated against him on grounds of age. The respondent requests the Equality Officer to uphold its position and reject the claim of discrimination on the grounds of age.
4. Conclusions of the Equality Officer
4.1 The issue for decision by me is whether or not the respondent (i) discriminated against the complainant on grounds of age in terms of section 6 of the Acts and contrary to Section 8 of those Acts. In reaching my Decision, I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.2 The complainant ceased his employment with the respondent on 31 January 2006. At the hearing the complainant confirmed that his claim was that between July 2008 and September 2008 the respondent discriminated him by not paying to him the ex-gratia payment of €8000 provided for in the conciliation agreement of February 2008. In effect the complainant is claiming that the respondent discriminated against him in his conditions of employment in 2008 at a time when his employment with the respondent had ceased. At the hearing I drew both parties' attention to and asked for their comments on a Labour Court determination which I considered pertinent to this case. The respondent indicated at the hearing that they had no comments to make on this while the complainant subsequently stated that he did not consider the determination had any bearing on his situation. However I am guided by the Labour Court determination in that case in which the Court stated, inter alia,
"the only form of actionable discrimination of which the complainant could complain is in relation to the conditions of his employment. Logically such discrimination could only arise when a complainant is actually in employment. In this case the Complainant ceased to be employed by the Respondent on 23rd February 2003 and any discrimination upon which he could ground a claim for redress under the Act could only have occurred before that date. This would clearly place his claim outside the time limit."
In this case the complainant has submitted that in 2008 the respondent discriminated against him in term of his conditions of employment. However as the complainant was not in employment in 2008 discrimination in terms of his conditions of employment cannot have occurred then. Section 77A of the Employment Equality Acts, 1998-2008 provides that the Director "may dismiss a claim at any stage if he is of the opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter." A complaint is misconceived if it is incorrectly based in law or if the particulars of the complaint disclose no cause of action under the relevant legislation - i.e. the Employment Equality Acts, 1998-2008. I am of the view that this complaint is misconceived and cannot succeed.
4.3 The complainant has also argued in the alternative that he was discriminated against on his retirement in 31 January 2006. He contends that he was entitled under the terms and conditions of his employment to work until the age of 70 but retired at the age of 65 and therefore was entitled to this ex-gratia lump sum payment then. Section 77 (5) (a) of the Employment Equality Acts sets out the time limit for referring claims for redress under the Acts. It states that : "a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the 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". Section 77(5) (b) allows applications to be made to extend the time period to 12 months if there is "reasonable cause". The complainant's referral form was received in the Tribunal on 15 December 2008- outside both the six months and extended twelve months timeframe required under section 77(5)(a) of the Acts. I find therefore that I have no jurisdiction to investigate this claim.
5. Decision by Equality Officer
5.1 I find that the complainant's complaint of discrimination in employment against the above-named respondent to be misconceived. Therefore I have no jurisdiction to investigate the matter, and I dismiss it under the provisions of S. 77(A) of the Employment Equality Acts.
Deirdre Sweeney
Equality Officer
15 November 2011.