THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS
Decision DEC - E2012- 048
PARTIES
Davy Byrne & Aidan O'Hanlon
(Represented by Mary Honan, B.L. instructed by O'Mara Geraghty McCourt, Solicitors)
v
Diageo
(Represented by Rosemary Mallon, B.L. instructed by Arthur Cox Solicitors)
File reference: EE/2008/887 & EE/2008/888
Date of issue: 26 April 2012
Headnotes: Employment Equality Acts-sections 6, 8,9,86 - age- - conditions of employment - collective agreement -time limits - misconceived.
1. Dispute
1.1This dispute concerns complaints by Mr. Davy Byrne and Mr. Aidan O'Hanlon (hereinafter "the complainants") that each of them was subjected to discriminatory treatment by Diageo Ireland (hereinafter the respondent) on the grounds of age in terms of Section 6 of the Act of the Employment Equality Acts in relation to conditions of employment and in relation to a collective agreement. Claims in relation to victimisation were withdrawn by the complainants at the hearing of the matter.
1.2 The complainants referred complaints under the Employment Equality Acts to the Equality Tribunal on 23 December 2008. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Deirdre Sweeney, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 7 June 2011 the date the complaint was delegated to me. Submissions were received on behalf of both parties. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 28 September 2011. At the hearing I requested further submissions from both parties dealing with certain legal issues raised by the claims and a further hearing was scheduled for 25 November 2011. Further submissions on behalf of both the complainants and respondents were received and exchanged. Following subsequent correspondence it was agreed with the parties that a further hearing was unnecessary.
2. Summary of the Complainants' Submissions
2.1 Each of the complainants was employed by Dundalk Packaging, a division of the Respondent Company. Mr Byrne was employed as a brewhouse operative from September 1976 until June 2001. Mr. O'Hanlon was employed as a tank station operative from September 1975 until June 2001.
2.2 Each of the complainants availed of a redundancy package arising out of the closure of Dundalk Packaging in 2001. The terms of this package varied depending on the age of the employee. One set of arrangements applied to those employees who were aged 45 by 31 December 2002 (otherwise known as "the K2 arrangements"). Another set of arrangements devised in consultation with the Labour Relations Commission applied to all other employees including the two complainants. This group of employees received a defined, service-based lump sum and a deferred pension which they will receive at normal retirement age. They also received a beer allowance which terminated in December 2007 and VHI, medical and death in service benefits which terminated in December 2010. This is in contrast to those employees to whom the K2 arrangements applied who continue to receive those benefits under the normal arrangements.
2.3 The complainants contend that they have been discriminated against on grounds of age contrary to the Employment Equality Acts. They submit that the Equality Officer should find their claims well founded and make the following orders:
- A decision that the complainants have been discriminated against
- An order for compensation for the effects of the discrimination
- An order extending the K2 benefits to the complainants backdated to the date they signed the redundancy agreements.
3. Summary of the Respondent's Submissions
3.1 The respondent accepts that the complainants were employed by Dundalk Packaging, a subsidiary within the Diageo Group, which ceased its operation in 2001. The respondent submits that the claims were lodged with the Equality Tribunal on 23 December 2008 over seven years after the complainants ceased employment with Dundalk Packaging on 1 July 2001. The respondent raised a number of preliminary issues.
3.2 The respondent submits that these claims are out of time in terms of section 77(5) of the Acts as the disputed agreement is dated 25 May 2001. In addition the respondent submits that the Equality Officer does not have jurisdiction to hear this claim on the grounds that the complainants are not employees for the purposes of this legislation. The respondent submits that the definition of employee under Section 2 of the Acts must be read in conjunction with the time limits set out in the Act for bringing a claim. Under Section 77(5) of the Act it is clear that a claim must be brought within 6 months (and in certain cases within 12 months) from the date of the alleged act of discrimination. Therefore the respondent submits that the Act only refers to former employees in this context i.e. it allows former employees to claim about discrimination while at work or at the time of the termination of the contract of employment but only up to 12 months after the date of termination of the contract of employment. The complainants in this case have not been employed by the respondent for a period of approximately 10 years. The respondent submits that the complainants are clearly not "employees" for the purposes of the Act and their claims must fail. The respondent submits that the complainants cannot complain about their conditions of employment with the respondent as quite simply they are not employees and have no conditions of employment and that has been the case for the last 10 years. The respondent relies on the case of A Healthcare Provider v A Claimant where the Labour Court considered the definition of worker in the Industrial Relations Acts and held that the claimant in that case was not a worker as defined by those Acts. The respondent also relies on Employment Appeals Tribunal jurisprudence where employees who refuse the offer of alternative employment can succeed in a claim for redundancy but in the particular circumstances their claims under the Minimum Notice and Terms of Employment Act must fail. In all the circumstances the respondent submits that the Equality Officer does not have the jurisdiction in relation to the claims made by the complainants in these proceedings.
3.3 Notwithstanding the above arguments the respondent states that the complainants were employed by Dundalk Packaging which was part of the Diageo Group. Mr Byrne commenced employment on 27 September 1976 and Mr O'Hanlon commenced on 1 October 1976. The closure of Dundalk Packaging was announced in July 2000. At this time some individuals had already signed up to avail of 'K2 severance terms'. K2 was a change plan/productivity agreement which had been accepted by the employees in Dundalk Packaging in April 2000 prior to the closure announcement and had provided for reduction in headcount and changes to work practices. Those leaving under this change plan were eligible to what were known as "K2 terms". That agreement continued to be honoured and the availability of the K2 severance terms was extended to other employees aged 50 years or over impacted by the closure.
3.4 Following the announcement of the closure, plant management and the relevant trade unions (SIPTU, TEEU, ATGWU and AEEU) entered into negotiations on redundancy terms and other elements of a closure deal. A set of proposals dated 28 May 2001 was ultimately agreed with the intervention of the Labour Relations Commission. These proposals were accepted by the Trade Unions representing the workforce at Dundalk Packaging and all employees then received the payments they were entitled to. Approximately 150 employees were made redundant with effect from June 2001. The complainants were notified of the applicable severance terms to their employment in accordance with the LRC agreement. The complainants' employments terminated on 1 July 2001.
.
3.5 Under the LRC agreement it was agreed that the 'K2 terms' would be extended to those who reached the age of 45-49 by 31 December 2002. It was further agreed that a number of options would be made available for those in that particular age group as follows:
Option 1 - a lump sum, plus either a deferred pension at 62 or 65 or an actuarially reduced pension at 50
Option 2 - a lump sum plus a non-actuarially reduced pension at aged 50 and an additional €60,000 pension funding provided by the Company
Option 3 - a lump sum plus an enhanced pension at aged 50 and an additional €100000 pension funding provided by the Company
For those who were aged 50 or over by 2002 and in receipt of a pension their medical and VHI arrangements continued as normal. For deferred pensioners, aged between 45 and 49 in December 2002 they received full VHI and medical benefit and their Beer Allowance until eligible for a pension at 50 and thereafter. Prior to the closure of the site in 2001 all employees who were left employment and who were eligible to receive an immediate pension were entitled to receive medical benefit and a beer allocation into their retirement.
3.6 Upon redundancy all employees of Dundalk Packaging except those eligible for the K2 terms, received a lump sum payment based on service and a deferred pension at retirement age. The lump sum payments were based on service (i.e. six weeks pay per year of service). The weekly rate of pay reflected the uniqueness of the closure of the site, all payments due under the PPF, (the applicable national pay deal), payments due under the K2 agreement and the calculation include full work pattern allowance. Compensation for loss of benefits was also included. During the negotiations on a "closure deal" concessions were made by the company to give an element of the retirement deal to those who would be departing as a result of the closure. Consequently, VHI/GP services and death in service cover was continued for staff for a period of time depending on their service levels. For those with 5 plus years service, those benefits continued until Christmas 2005, for those with 10 plus years service until Christmas 2006 and for those with 20 plus years such as the complainants these benefits will continue until Christmas 2010. Furthermore the complainants as employees with more than 10 years service were entitled to receive a beer allowance until December 2007. In accordance with these terms, Mr. Byrne received a lump sum of €181,991 and Mr O'Hanlon received a lump sum of €178,109. Their entitlement to a beer allowance ceased at Christmas 2007 and their health and death in service cover ceased at Christmas 2010.
3.7 The respondent submits that there was no direct discrimination on the ground of age in these cases, although it is accepted that the redundancy options available to staff on the closure of Dundalk Packaging did depend on their age and level of service as at 31 December 2002. The respondent relies on Section 34(3)(d) of the Acts which provides inter alia that providing different rates of severance package for different employees, based on or taking into account the age of an employee on leaving the employment shall not constitute discrimination on the age ground.
3.8 The respondent submits that the severance package applicable to the employees of Dundalk Packaging was based on their age, their pension entitlements and their remaining period of service, and thus they were not discriminatory. By structuring the severance payments in this way, those employees who were nearer to retirement and who thus were unlikely to obtain re-employment upon redundancy had the option of deciding to avail of an earlier pension under redundancy and/or to wait until they reached their retirement age. The reminder of the severance terms and specifically the benefits such as the beer allowance and the health benefits continued for staff after the termination of their employment for a specified period of time based on service.
4. Summary of the Complainants' supplemental submission
4.1 The complainants contend that the facts disclose prima facie discrimination on grounds of age in respect of their conditions of employment and secondly in respect of the collective agreement. The redundancy package at issue provided, inter alia, a beer allowance to the complainants from 2001 until December 2007; VHI/GP services and death-in-service cover from 2001 until December 2010. If the complainants had been 45 years or over on 31 December 2002, these benefits would have continued into retirement.
4.2. It is submitted on behalf of the complainants that they are disadvantaged by the terms of the redundancy agreement in terms of section 8(1) of the Acts by having less favourable conditions of employment in respect of redundancy imposed on them; that in terms of Section 8(4) the respondent operates a scheme which results in disadvantage to the complainants. It is also submitted that in terms of Section 8(6) the respondent failed to afford the same treatment to the complainants in respect of redundancy as it did to other employees on grounds of age and continues to do so. A question was raised at the hearing by the Equality Officer as to whether these claims in relation to beer allowance and medical cover were claims in relation to conditions of employment or remuneration. The Equality Officer asked for confirmation that these were not claims in relation to equal remuneration and cited caselaw in relation to the 'treatment of benefits' in kind as remuneration for the purposes of the Acts.
The complainants submit that the fact that a condition of employment may have financial implications does not alter its character from an issue of 'treatment' to one of 'pay'. The complainants contend that this is evident from the wording of Section 8 which covers, for example, promotion, redundancy and overtime, all of which attract higher pay but which nonetheless are clearly addressed under Section 8 as non-pay issues. It is submitted that this case primarily concerns conditions for an employee's inclusion in the 'K' redundancy scheme. It does not concern equal pay, notwithstanding as with many conditions of employment, the conditions for access to the scheme have indirect financial implications for the complainants in that clearly the beer allowance and the VHI/GP provision have a material value. It is submitted that these criteria for access to the more favourable conditions of the 'K2' redundancy scheme are clearly discriminatory on the grounds of age. The criteria for access to the scheme at issue clearly show that those aged 45 or over on 31 December 2002 were afforded access to more favourable conditions under the redundancy agreement. It is submitted that a prima facie case of age discrimination is established and that it is for the respondent to prove the contrary.
4.3 The complainants refer to the respondent's contention that the Equality Officer has no jurisdiction as the complaint is outside the time limit imposed by section 77(5) because any discrimination occurred in 2001 and the claim was not referred until 23 December 2008. The complainants submit that the discrimination at issue here is a form of continuing discrimination. Section 77(5) provides that the time limit runs from the date of occurrence of discrimination or 'its most recent occurrence'. The benefits at issue in this case arise from an agreement entered into in 2001 which continues to impact on the complainants and will continue to do so for the rest of their lives. The redundancy package agreement does not at any time cease to have effect. In support of this contention the complainants cite a number of UK cases . It is submitted that in the instant case there is a scheme at issue in respect of which decisions were taken impacting on former employees of the respondent. It is further submitted that the respondent was responsible for 'an ongoing situation or a continuing state of affairs' in which certain former employees and specifically the complainants were treated less favourably. Similarly it is submitted that the discrimination in the instant case continues for the duration of the redundancy package agreement and that therefore the time limit under section 77(5) has been complied with.
4.4 Without prejudice to the above, it is also submitted that the beer allowance was in effect withdrawn in July 2008 and the medical benefit in December 2010 and that on these grounds the complainants were not in breach of section 77(5). However the specific acts of discrimination in July 2008 and December 2010 do not alter the nature of the continuing discrimination at issue. This was a matter which was addressed in Calder and the EAT took the view that the specific acts of discrimination were not inconsistent with a form of continuing discrimination.
4.5 The complainants also refer to the respondent's contention that the Equality Officer has no jurisdiction to hear the case on the basis that the complainants are not 'employees' for the purposes of the 1998 Act but former employees. It is submitted that there is no provision in the 1998 Act which restricts its protection to current employees and to those recently in the employment of a respondent. The scope of the Act is extremely wide and extends not only to former employees but also to potential employees (regarding access to employment). Furthermore the Act is not restricted to claims regarding discrimination occurring during the period of the contract of employment: this is evident from the decision of the European Court of Justice in Coote v. Granada Hospitality Ltd which addressed the issue of discrimination in the form of victimisation of a former employee in respect of a reference.
4.6 In Rhys -Harper decision the House of Lords rejected the employers' contention that the protection of the discrimination statues only applied in respect of discrimination occurring during the actual period of employment. The House of Lords concluded that it is unlawful to discriminate against former employees if there is a substantive connection between the discriminatory conduct and the employment relationship, regardless of when the discrimination occurs. In the instant case, it is submitted that there is such a substantive connection: the discrimination is effected by the terms of the redundancy agreement which resulted from the employment relationship between the complainants and the respondent. It is of course accepted that the Irish courts are not bound by the UK decisions but the complainants submit that these have strong persuasive values.
4.7 In relation to the respondent's reliance in its defence on section 34(3)(d) of the Act the complainants submit that a defence under section 34(3)(d) must be objectively justified. In support of this contention it cites the decision of the Equality Officer in Five Named Complainants v. Hospira Ltd . In his decision the Equality Officer concluded that, as the 1998 Act inter alia transposes the Framework Directive 2000/78/E, Section 34 must be interpreted and applied in light of Article 6(1) of the Directive. The complainants submit that the Equality Officer's approach in Hospira was correct and is consistent with the jurisprudence of the European Court of Justice and of the Irish Supreme Court.
4.8 The complainants submit that the complaint relating to alleged discrimination in the relevant collective agreement pursuant to section 9 and 86 of the Acts is based on the fact that the complainants are persons whose conditions of employment were adversely impacted on by such an agreement. A question has been raised by the Equality Officer as to whether this aspect of the complaint is properly before her on the ground that such a complaint requires all parties to the collective agreement to be cited as respondents. Reference has been made to the definition of 'respondents' in section 86(2) (c) which is in the plural. It is submitted however that there are circumstances in which there may only be one respondent in a claim relating to a collective agreement. For example, this was the case in Department of Finance v 7 Named Complainants (represented by the CPSU); this case was unsuccessful for the complainants but not because there was only one respondent. Furthermore, there may be situations where there are only two parties to a collective agreement, in which case if a complaint is made by one party, there will only be one respondent. It should also be noted that there is nothing in the Act which mandates an interpretation requiring multiple respondents in proceedings pursuant to section 86.
4.9 The complainants submit that they have been discriminated against on the age ground in respect of conditions for access to a redundancy scheme at issue and the Equality Officer is asked to order appropriate redress. They contend that the facts disclose prima facie age discrimination in respect of their conditions of employment and, secondly, in respect of the relevant collective agreement.
5 Summary of Respondent Supplemental Submission
5.1 At the hearing it was submitted on behalf of the complainants that if they were successful in their claim they sought the agreement as set out in the LRC document to be declared null and void. Without prejudice to the defences raised the respondent wishes to comment on the relief that is being sought. The agreement as set out in the LRC document affects approximately 150 former employees. This agreement governs the pensions they receive and the lump sums that they all received ten years ago. If the agreement is declared null and void this would mean that everything in the agreement should be set aside. The effect of such a declaration could be that certain employees would no longer be entitled to their pension (i.e. under the K2 terms) and that all lump sums received by 150 employees should be returned. This would include the complainants who received €181,991 and €171, 191 as lump sum payments. If the agreement was rendered null and void the only entitlement the 150 employees would have is their entitlement to a statutory redundancy payment.
5.2 The respondent submits that it seems extraordinary that the complainants would seek a relief that would not only adversely affect their former colleagues but would also adversely affect themselves. The repercussions of such a declaration would undoubtedly have a far reaching impact on approximately 150 former employees, none of whom (the Respondent assumes), are aware of the within proceedings. It is submitted that should the Equality Officer intend to consider granting this relief (if the claim is successful) that natural justice and fair procedures would require each and every former employee be informed of the claim and be afforded the opportunity to make submissions and be heard on the matter. In this regard reliance is also placed on Section 86 of the Employment Equality Acts 1998. Without prejudice to the foregoing if the Equality Officer decided that it was open to her to only consider rendering the agreement null and void in relation to the two complainants it is submitted that undoubtedly this would have the effect of requiring the complainants repay their lump sum payments as these payments were made on foot of the said agreement. It is also submitted that interest would be due and owing to the Respondent on these sums. It is submitted that the appropriate rate of interest is the Courts Act interest rate.
5.3 The respondent further submits that the complainants have failed to properly bring their claim in accordance with Section 86 as is provided for in the Acts. The respondent submits that the provision of Section 86 of the Acts clearly indicate that the correct respondents to any such claim must include the unions who entered into the agreement on behalf of their members i.e. SIPTU, ATGWU, TEEU and AEEU. It further submits that the correct respondents must include all former employees who are affected by the agreement. The complainants have failed to join either the unions and/or the former employees to their claims and consequently the claim pursuant to Section 86(1) must fail. It is not open to the complainants now to seek to join additional parties to this claim. The claims were instituted by EE1 forms received by the Tribunal on 23 December 2008. The complainants are clearly out of time to join any additional parties to the within proceedings.
5.4 The respondent submits that, while the Acts do apply to former employees, the definition set out in Section 2 of the Acts must be read in conjunction with the statutory time limits set out in Section 77(5). The Equality Officer queried this submission in the light of ECJ case law concerning victimisation on the basis of the failure to give reference to former employees. The respondent submitted that the European caselaw is not inconsistent with the argument being put forward. The Respondent accepts that victimisation can occur after the employment relationship has ended. However the within proceedings are not victimisation proceedings. The complainants withdrew their victimisation claims. Victimisation by its very nature is a two stage process i.e., a person seeks to enforce or protect their rights and as a consequence of that they are victimised. Victimisation frequently occurs after the employment relationship has terminated whereas discrimination in relation to one's "conditions of employment" can only logically apply during one's employment. Therefore it is submitted that the claims in relation to discrimination concerning conditions of employment and collective agreements can only be brought by former employees within 6 months (or 12 months) of the date of the termination of their contract of employment.
5.5 In the case of HSE v Tom Whelehan, which the Equality Officer drew to the attention of the parties at the hearing, the complainant's employment ended on 23 February 2003 and he brought a claim under the Employment Equality Act in 2007. In the Whelehan case the Labour Court held that discrimination in relation to conditions of employment can only logically arise when a complainant is in employment. The complainants in the within proceedings have not been employed by the respondent for over ten years. They instituted their claim seven years after their employment terminated. Consequently the respondent submits that the complainants' claims in relation to conditions of employment must fail as any alleged discrimination upon which they could ground a claim could only have occurred prior to the Dundalk plant closing in 2001. This clearly puts this part of the claims out of time.
5.6 It is further submitted, relying on the Whelehan case, that if a former employee wished to make a complaint about the terms of a collective agreement entered into during their employment than, by virtue of the time limits, that claim must be brought at the very latest within 6 months (or 12 months) of their employment ending. In relation to the current claims they would have to have been brought sooner to be within time as the agreement is dated 25 May 2001. A claim about a collective agreement entered into during the course of employment is not the same as victimisation occurring after the employment relationship ends. The alleged cause of action commences during the employment i.e. when the agreement is entered into. Consequently the respondent submits that, in accordance with the spirit and the intention of the Acts, the claim at the latest must be brought within 6 (or 12) months of the date of termination of employment.
5.7 The respondent refers to the arguments submitted on behalf of the complainants that the discrimination was ongoing and therefore the claim was in time and in the alternative that the complainants only became aware in early July 2008 that their beer allowance was stopped and that the time should only begin to run from this date. In relation to both these arguments the respondent relies on the Whelehan case. In that determination the Labour Court held, inter alia, that " that a cause of action accrues at the time when all the requisite elements of the action existed whether or not the plaintiff knew of their existence......"
The respondent submits that the complainants' asserted date of knowledge (which is not accepted by the respondent given the extensive communication that formed part of the closure and the fact that all employees were balloted on the terms of the LRC agreement) is clearly irrelevant. Furthermore the complainants are challenging the terms of the agreement set out in the LRC proposal. This agreement provided for the removal of the beer allowance and medical benefits. This agreement is dated 25 May 2001. This is the date that any potential cause of action accrues as all requisite elements of the action existed at this time because from that date it was agreed that the complainants' benefits would stop in return for €8000. Therefore the complainants are significantly outside the time limits prescribed by Section 77 of the Acts. The respondent refers to the submission on behalf of the complainants that their claims under Section 86 of the Acts are not subject to any time limit. A reference under Section 86 is effectively a claim that the collective agreement is discriminatory. This is clear when Section 86 is read in conjunction with Section 9 of the Acts. As the claim is a claim in relation to discrimination it is submitted that the time limits in Section 77(5) apply to such claims.
5.8 The respondent also seeks to rely on Section 34(3)(d) in defending the claims. In Five Named Complainant v Hospira Ltd the Equality Officer held that Section 34(3)(d) of the Acts had to be construed in light of Article 6(1) of the Framework Directive. Article 6 of the Directive permits member states to allow for difference in treatment on grounds of age not to constitute discrimination where it is "objectively and reasonably justified by a legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are proportionate and necessary". In Eircom Limited v. Raymond McGovern the Labour Court considered a claim relating to the alleged exclusion of the complainant from voluntary severance schemes put in place in 2004 and 2005. These schemes were not open to employees who could avail of their pension entitlements. An employee with the requisite service could avail of their pension entitlements from age 60 onwards. The Labour Curt did not in fact decide the question of whether Section 34(3) is to be given a literal interpretation or a purposive interpretation in harmony with Article 6 of the Directive. The Court held that even if Section 34(3)(d) had to be interpreted in light of Article 6(1) of the Directive that
"the effect would be that the Court should consider if the decision to exclude employees who could avail of their pension entitlement by virtue of being over 60 years of age is objectively and reasonably justified......In that regard it was manifestly reasonable for the Respondent to direct the funding available under the scheme to those employees with longer remaining tenure in employment and to exclude those whose remaining potential service would be insufficient to realise sufficient savings so as to justify the initial outlay. In the Court's view that constituted a legitimate objective the attainment of which required the imposition of some cut-off point related to the age and consequently the tenure of employees."
The respondent submits that there is no conflict between Section 34(3)(d) of the Acts and Article 6 of the Directive. It further submits on the basis of the decision in the Minister for Justice Equality and Law Reform and the Commissioner of an Garda Siochana v The Equality Tribunal and Others that words cannot be imported into Section 34(3) by reliance on Article 6 of the Directive. Without prejudice to the foregoing and relying on the Eircom case it is submitted that there can be no doubt that one can have a cut -off point regarding age where there is a legitimate objective.
5.9 The respondent submits that the closure of the Dundalk plant was a major decision for the Company. It was the first time that a major and relatively modern plant was closed by Diageo Ireland. There was significant opposition to the decision from unions representing employees across a number of sites culminating in a strike being called. Against this very serious industrial relations background and following a one day stoppage, the LRC offered its services in an effort to resolve the conflict between the parties. The unions were only willing to enter into negotiations under the auspices of the LRC on the basis of reassurance being given that management would meaningfully engage on the terms which would be available to the Dundalk staff. A key element of these negotiations was extension of the "K2" terms to those between 45 and 50. The LRC proposals were endorsed and recommended by all the unions and balloted on and passed. The terms agreed are objectively justified on industrial relations grounds. The terms agreed with the unions prevented a very serious industrial relations situation escalating across a number of sites. The involvement of the LRC indicates the level of seriousness and importance of the situation from a company and union perspective. The terms agreed were based on negotiations where the respondent was most anxious to show the unions and employees good faith. Had negotiations not taken place nor resulted in an agreement that the unions were happy with industrial relations ramifications for the respondent could have been significant in both the short and long term.
5.10 The respondent submits that the second legitimate objective is quite simply that the terms of the agreement recognise the unfortunate reality in our society which is that the closer one is to retirement age the more difficult it is to obtain employment. In the case Worrell v L. Behan & Sons, an ex-tempore decision of the President of the Circuit Court Mr Justice Deery, the claimant was held to have been unfairly dismissed and was awarded compensation of 104 weeks remuneration. The claimant was in her early 60s and indicated that she was unable to obtain alternative employment due to her age. The Respondent called evidence from employment agencies to give evidence that there was work available for the claimant regardless of her age. The claimant's evidence was accepted by the Court. Therefore the terms of the LRC agreement entered into recognise that the closer one is to retirement age the less likely one is to find a new job. The terms agreed was about enduring and protecting the financial stability of such employees. This is clearly an objective justification. In all the circumstances the complainants are not entitled to succeed in their claim.
Conclusions of the Equality Officer
7.1 The issues for decision by me are
(i) whether each of the complainants was discriminated against by the respondent on grounds of age in terms of Section 6 of the Acts and contrary to Section 8 of those Acts as regards conditions of employment
(ii) whether the complainants were discriminated against in relation to a collective agreement under Section 86 in terms of Section 9 (2) of the Acts
(iii) if the respondent treated the complainants less favourably on grounds of age contrary to the Acts whether or not it can avail of the defence available to it at Section 34(3) of the Acts.
In reaching my decision I have taken into consideration all of the submissions, oral and written, made to me by the parties. However before making a decision on the substantive issues I must be satisfied that the complaints are properly and validly before me.
7.2 The complainants ceased their employment with the respondent in June 2001. It has been argued on behalf of the complainant that the discrimination at issue here in their conditions of employment is a form of continuing discrimination and that Section 77(5) provides that the time limit runs from the date of occurrence of discrimination or 'its most recent occurrence'. The complainants' representatives have argued that the termination of the beer allowance in December 2007 and the medical benefit in December 2010 are manifestations of the most recent occurrences of discrimination. I consider that in effect the complainants are claiming that the respondent discriminated against each of them in their conditions of employment in 2007 and in 2010 at a time when their employment with the respondent had ceased for several years. 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. 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."
7.3 In this case the complainants have submitted that in 2007 and in 2010 the respondent discriminated against each of them in terms of his conditions of employment. However as the complainants were not in employment at these times discrimination in terms of their 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 the complainants' complaints are misconceived and cannot succeed.
7.4 In view of my decision above it is not necessary for me to consider the arguments on behalf of the complainants that the "LRC agreement" agreed in May 2001 has continuing effects and that this constitutes a continuing act of discrimination insofar as the time limits under Section 75(5) are concerned. Notwithstanding this I would add that on the basis of all the evidence available to me I consider that it is clear that the settlement agreement was a once off severance agreement on the closure of Dundalk Packaging in June 2001 which has continuing consequences. This would not constitute a continuing act of discrimination. I consider that this is similar to a UK EAT case which dealt with the issue of continuing consequences where a claimant argued that as a result of a failure to regrade her she suffered ongoing wage loss. The EAT found that the correct analysis was that there was a one-off regrading decision which had continuing consequences and not a continuing policy. I am satisfied that the date of the most recent occurrence of discrimination is the date of the agreement, May 2001.
7.5 I will now proceed to deal with the complaints made on behalf of the complainants relating to alleged discrimination in a collective agreement pursuant to section 9 and 86 of the Acts based on the fact that the complainants are persons whose conditions of employment were adversely impacted on by such agreement. Section 86(1) of the 1998 Act governs the referral of collective agreements for determination as to whether a provision of that agreement is null and void by virtue of section 9 of the Act. In turn Section 9 of the Act provides inter alia that in a collective agreement if a provision gives rise to discrimination in relation to conditions of employment in terms of Section 8 of the Act it shall be null and void. While the complainants' initial submission sought an order from me extending the K2 benefits to the complainants backdated to the date they signed the redundancy agreements, their representatives confirmed at the hearing that their complaint was that the collective agreement known as the "LRC agreement" should be declared null and void in that it contains discriminatory provisions contrary to Section 9 of the Acts.
7.6 Before proceeding further, it is necessary for me to consider whether this claim is properly before me in accordance with the provisions of Section 86 of the Acts. Section 86(2)(c) of the Employment Equality Act 1998, which governs the reference of collective agreements to the Director of the Equality Tribunal, states that:
'"the respondents" means the parties to the agreement, other than (where relevant) the complainants'
The complainants have cited Diageo as the respondents in this claim. However it is clear from the evidence before me that the parties to the agreement also included the relevant trade unions (SIPTU, TEEU, ATGWU and AEEU). I drew both parties' attention at the hearing to the definition of "respondents" in that Section of the Act and asked for submissions, in particular from the complainants, as to whether the wording in the Act in relation to such a complaint requires all parties to the collective agreement to be cited as respondents. It was submitted on behalf of the complainants that there are circumstances in which there may only be one respondent named in a claim relating to a collective agreement and the decision in Department of Finance v 7 Named Complainants was cited in this regard. It was also suggested that there may be situations where there are only two parties to a collective agreement in which case if a complaint is made by one party there will only be one respondent. It was also contended that there is nothing in the Act which mandates an interpretation requiring multiple respondents in proceedings pursuant to Section 86.
7.7 In relation to the arguments submitted on behalf of the complainants I note that no decision was made in Department of Finance v 7 Named Complainants in relation to the definition of "respondents" in Section 86(2)(c) as the Director did not consider that a collective agreement had been referred to her. I also consider that the wording in Section 86(2)(c) provides for situations where there are only two parties to a collective agreement and one of those parties makes the complaint. However there are clearly more than two parties in this collective agreement. I am not satisfied that the complainants' contention that there is nothing in the Act which mandates an interpretation requiring multiple respondents in proceedings involving a collective agreement under Section 86 is correct.
7.8 The primary canon of statutory interpretation is to give words in a statute their ordinary meaning. Section 5(1) of the Interpretation Act 2005 clearly underlines that the literal rule is still the primary canon of interpretation as it specifies the occasions when there should be a departure from that rule. It states:
"In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction) -
(a) that is obscure or ambiguous or
(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of -
(i) in the case of an Act to which paragraph (a) of the definition of "Act" in section 2(1) relates, the Oireachtas, or
(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,
the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole."
7.9 I consider that the words in Section 86(2)(c) '"the respondents" means the parties to the agreement" are plain, meaningful and specific. In this case the statutory provision is not "obscure or ambiguous." Furthermore a literal interpretation of the provision of the Act cannot be said to be absurd. I cannot identify any justification for reaching the conclusion that a literal interpretation of the provision of the statute would fail to reflect the plain intention of the Oireachtas. Accordingly I find that I am required to construe the provision "in the ordinary and natural meaning of the words and sentences" in which it is written. Accordingly I find that in order for a reference under Section 86 to be validly before me all the parties to the agreement should be named as respondents. I find therefore that I have no jurisdiction to investigate this claim.
8. Decision
8.1. I find that the complainants' complaints of discrimination on the ground of age in terms of conditions of 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 Section 77(A) of the Employment Equality Acts.
I also find that as the collective agreement was not validly referred under Section 86 of the Employment Equality Acts I have no jurisdiction in that matter.
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Deirdre Sweeney
Equality Officer
26 April 2012