EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2013 - 027
PARTIES
Mr Patrick Dunican (represented by Mr Michael Dunican) and Mr Thomas Spain
and
Offaly Civil Defence (represented by LGMA)
File References: EE/2010/729 & EE/2010/730
Date of Issue: 28th March 2013
Keywords: jurisdiction - contract of employment - S. 2 - age - discriminatory dismissal - no fixed retirement age - S. 34(4) - applicability of EU Framework Directive 2000/78
1. Claim
1.1. The cases concern claims by Mr Patrick Dunican and Mr Thomas Spain that Offaly Civil Defence discriminated against them on the ground of age contrary to Section 6(2)(f) of the Employment Equality Acts 1998 to 2008, in terms of ending their volunteer involvement, which they contend amounts to discriminatory dismissal
1.2. The complainants each referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 21 September 2010. A submission from each complainant was received on 15 March 2011. A submission was received from the respondent on 6 May 2011. On 16 January 2013, in accordance with his powers under S. 75 of the Acts, the Director delegated the cases to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the cases on 14 February 2013. At the time of the hearing of the complaint, Mr Patrick Dunican had begun to suffer from chronic ill-health which rendered him unable to follow proceedings, so I accepted, pursuant to the provisions of S. 77(4) of the Acts, that his son, Mr Michael Dunican, would represent him and state his complaint to the Tribunal. The last piece of correspondence relating to the complaint was received on 6 March 2013.
2. Summary of the Complainants' Written Submissions
2.1. The complainants state that their volunteer involvement with Offaly Civil Defence came to an end for both of them on 23 August 2010, when each of them received a letter from Mr Raphael Fallon, Civil Defence Officer for the county, in which Mr Fallon advised them of their retirement from the organisation pursuant to Circular 7/91 and due to the fact that both of them were over 70 years of age. Mr Dunican states he was 73 years of age at the material time. Mr Spain states that he was 71 years of age when he received the letter. Both complainants consider this termination of their volunteer role in the Civil Defence to be a discriminatory dismissal on the ground of age.
3. Summary of the Respondent's Written Submission
3.1. The respondent points out that both complainants were volunteers with the organisation; that this volunteer role is not grounded in contract law and does not create legal relations; and that the complainants are not employees within the meaning of the Acts. The respondent therefore argues that the Tribunal lacks jurisdiction to investigate these complaints.
4. Conclusions of the Equality Officer
4.1. Before I consider the main issue in these complaints, I need to examine as to whether the complainants were employees of Offaly Civil Defence within the meaning of the Acts, and therefore, whether I have jurisdiction to investigate these cases.
4.2. Mr Dunican gave evidence that his father's involvement with Civil Defence started in the 1960s, and that he had been an instructor with the organisation. Mr Dunican estimated that his father would attend between 30 and 40 events a year in this role, each lasting between 4 and 10 hours. He would receive payment of €19.95 for two hours, and travel expenses. The payment he received was liable to income tax and the Universal Social Charge.
4.3. Mr Spain's involvement with Civil Defence began in 1970, and he was promoted to instructor in or around 1979/1980. As a rescue instructor, he would give a class every week, of between two and three hours duration, and occasionally participate in camp events which lasted an entire weekend. These took place once a year. His main area of instruction was to teach the safe evacuation of buildings. Mr Spain stated that Offaly County Council owned the equipment he used. He further stated that when teaching sessions, he was supervised by either the county's Civil Defence Officer (CDO) or the Assistant CDO, who would call in on his sessions.
4.4. In terms of payment, he received the same payments as Mr Dunican. Mr Spain produced a time sheet in evidence, in which instruction sessions which were to be remunerated would be recorded.
4.5. The complainants' witness, Mr C., who was the former CDO of the respondent, further stated that instructors were expected to carry out their duties in person, or if they could not conduct a particular training session for any reason, they were obliged to notify the CDO, who would organise a replacement instructor centrally.
4.6. Both parties were agreed that the Unfair Dismissal Acts did not come into application when an instructor's involvement with the respondent was ended - the relationship, in cases where the CDO was of the opinion that it should be brought to an end for any reason, was mostly ended by persuasion and essentially by agreement. However, the applicability of the Unfair Dismissal Acts is not the correct test for establishing whether someone is an employee within the meaning of the Employment Equality Acts and therefore entitled to enjoy the protections contained in same.
4.7. S. 2(1) of the Employment Equality Acts defines "contract of employment" as (a) a contract of service or apprenticeship, or (b) any other contract whereby - (i) an individual agrees with another person personally to execute any work or service for that person [...] whether the contract is express or implied and, if express, whether oral or written."
4.8. From the undisputed fact that consideration moved between the parties for the provision of instruction by the complainants, and that it attracted income tax and USC, I am satisfied that a contractual relationship exists between the parties. The next question is then, whether it is a contract of employment within the meaning of either subparagraph of the subsection quoted above.
4.9. The main test, under Irish law, for assessing this in work situations such as the complainants found themselves was set out by Keane J in Henry Denny & Sons (Ireland) Ltd v. The Minister for Social Welfare [1998 1 IR 34]. The Supreme Court held that it was appropriate not only to examine the entire contractual agreement between the parties, but also the particular conditions under which work was performed. Keane J stated: "[...] in general a person will be regarded as providing his or her services under a contract of service and not as an independent contractor where he or she is performing those services for another person and not for himself or herself. The degree of control exercised over how the work is to be performed, although a factor to be taken into account, is not decisive. The inference that the person is engaged in business on his or her own account can be more readily drawn where he or she provides the necessary premises or equipment or some other form of investment, where he or she employs others to assist in the business and where the profit he or she derives from the business is dependent on the efficiency with which it is conducted by him or her."
4.10. Murphy J added: "Whether Ms M. was retained under a contract of service depends essentially on the totality of the contractual relationship express or implied between her and the appellant and not upon any statement as to the consequences of the bargain."
4.11. I am satisfied that the work carried out by the complainants in discharging their duties as instructors, with materials and supervision provided by the respondent, and an obligation to carry out those duties in person, with no option to send a self-selected replacement in case of illness or other unavailability, does make the contract between the parties a contract of employment within the meaning of the Acts. I further note that in an Equality Tribunal case brought by another Civil Defence volunteer against another local authority, also disputing his forced retirement, which that complainant had erroneously brought under the Equal Status Acts (DEC-S2011-020), that respondent noted that the case should have been brought under the Employment Equality Acts, and specifically highlighted the definition given in S. 2(b)(i) - referenced in paragraph 4.7 above - in their defence as to why it would have been appropriate to bring those proceedings under the Employment Equality Act. The Equality Officer in that case concluded that she lacked jurisdiction to investigate the complaint and dismissed it as misconceived.
4.12. Taking into account all of the evidence which is set out in the preceding paragraphs, I am satisfied that the complainants were the employees of the respondent within the meaning of the Acts, and that I have therefore jurisdiction to investigate their complaints.
4.13. The issue for decision in these case are whether the complainants were discriminatorily dismissed because of their age. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent.
4.14. There is no dispute that their age was the reason their employment with the respondent was ended. Their retirement occurred when the new Civil Defence Officer for the county, Mr. B., reviewed member data and noticed that the complainants were both over 70 and should therefore be retired according to the Civil Defence's Office Notice 7/91. The Civil Defence Act 2002 does not identify a retirement age for civil defence members. The Office Notice, likewise, does not refer to "retirement", but rather states that no member of the organisation can be enrolled if he or she is older than 65 years of age. It states under "Age":
A person joining Civil Defence must be sixteen (16) years of age on the date of enrolment. The upper age limit for membership is sixty five (65) years (i.e. must not have reached their 65th birthday at the commencement of that training year) but this can be increased to a maximum of seventy (70) years of age where the duties are senior warden or Headquarter staff. These ages must be strictly adhered to for insurance purposes. [Emphasis in the original.]
4.15. The Office Notice does not really state how the age restrictions apply in terms of members who joined before the date it was issued. It only addresses this point in terms of who is considered to be a member of the organisation.
4.16. Mr Spain asserted, and the respondent did not dispute, that he had no prior knowledge at all of the content of this Office Notice. According to the respondent's witness Mr. A, who is a member of the Civil Defence Board, these provisions have never been reviewed at any point after 1991, including as to whether they are compliant with EU anti-discrimination law, in particular, the EU Framework Directive 2000/78/EC, which lays down a general framework for equal treatment in employment and occupation, covering, among other prohibited conduct, discrimination on the ground of age. The respondent, even in response to direct questions, did not provide any objective justification for retiring the complainants, either in terms of the requirements of their role as instructors, or on policy grounds.
4.17. Rather than having regard to the provisions of the Directive, the respondent sought to rely on S. 34(4) of the Acts, which makes it legitimate for respondent to fix specific retirement ages for their employees. However, I am not satisfied that Office Notice 7/91, as quoted above, fixes actual retirement ages in a sufficiently clear and cogent manner. I have already noted that it does not even use the word "retirement" in the body of the text. Furthermore, it does not distinguish between instructors and volunteers or different roles to be carried out, and, as noted above, is silent on whether its provisions apply to new members only or to all members. Finally, from the fact that the complainants were both well over 70 years of age and were not performing warden duty, but rather working as instructors, when they were retired, it seems obvious that the Office Notice was not implemented as one would expect if it really "fixed" retirement ages for the entire organisation. Accordingly, I find that Office Notice 7/91, while providing some general guidelines for membership of the respondent organisation, does not fix retirement ages within the meaning of S. 34(4) of the Acts for persons who, like the complainants, were casually employed by it in their role as instructors.
4.18. It follows, then, that the defense in S. 34(4) of the Acts does not avail the respondent and that I therefore have to examine the cases in the light of the provisions of the EU Framework Directive 2000/78/EC. In this regard, the complainants' situation differs from that of other complainants in recent Tribunal decisions, such as DEC-E2011-083, Five named complainants v. Hospira Ltd.; DEC-E2011-142, Saunders v. CHC Ireland Ltd.; DEC-E2011-177, Kelly and Masterson v. Chivers Ltd. and DEC-E2012-086 Doyle v. ESB International, where the Equality Officers interpreted retirement ages that were fixed by the respondents pursuant to S. 34(4) in a manner which was harmonious with the provisions of the Directive.
4.19. In the case of the complainants, the provisions of the EU Framework Directive 2000/78/EC apply directly following the jurisprudence of the ECJ in the case of Werner Mangold v Rüdiger Helm Case C-144/04, where the ECJ set down the principle of non-discrimination on the ground of age, among others, as a fundamental principle of community law and held that is was "the responsibility of the national court, hearing a dispute involving the principle of non-discrimination in respect of age, to provide, in a case within its jurisdiction, the legal protection which individuals derive from the rules of Community law and to ensure that those rules are fully effective, [...]" [para 77]
4.20. Specifically with regard to age, Article 6(1) of the Framework Directive states:
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. [Emphasis added]
4.21. In terms of what might be recognised as "objective justification", other than public policy grounds, the case of Wolf v. Stadt Frankfurt am Main [Case C229-08] provides useful guidance, even though that case concerned access to employment rather than forced retirement. Mr Wolf applied to the city of Frankfurt for a position as a professional firefighter. His employer argued that the physical demands of his job were such that, because physical capability diminishes with age, it was justified in setting an age limit for the recruitment of firefighters. The CJEU affirmed this position and stated that "the possession of espeically high physical capabilities may be regarded as a genuine and determining occupational requirement within the meaning of Article 4(1) of the Directive for carrying on the occupation of a person in the fire service."
4.22. This would appear to support the position that the respondent could set various retirement ages for members of the organisation depending on the demands of their roles. However, it is clear that such a justification test cannot be directed at the circumstances of an individual complainant, but rather must be based on clear policy grounds, which relate to the needs and objectives of the organisation, including the specific mental and physical requirements of different roles within the organisation. However, as noted repeatedly and as per the respondent's own evidence, these where never formally identified, and no evidence has been adduced in this matter. In the absence of any such justification, I am satisfied that the complainants' retirement amounts to discriminatory dismissal on the ground of age and that the complainants are entitled to succeed.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that Offaly Civil Defence discriminated against Mr Patrick Dunican and Mr Thomas Spain, when it retired them from the organisation without being able to offer an objective justification for that decision pursuant to the EU Framework Directive 2000/78/EC.
5.2. I therefore order that the respondent pay Mr Dunican and Mr Spain each €1,200, or slightly less than two years' service as an instructor would have earned them at the time they were retired. These awards are for the discrimination suffered, are not in the nature of pay, and are therefore not subject to tax and other pay-related charges.
______________________
Stephen Bonnlander
Equality Officer
28 March 2013