The Equality Tribunal
Employment Equality Acts 2000 to 2011
EQUALITY OFFICER’S DECISION
NO: DEC-E2014-099
PARTIES
Thomas Hughes
(Represented by SIPTU)
V
Dublin and Dun Laoghaire Education and Training Board
formerly Dun Laoghaire VEC
Date of issue: 30 December 2014 File reference: EE/2012/120
Headnotes: Employment Equality Acts, 1998-2011 - sections 6, 8 - age - employment status - dismissal - jurisdiction
1. DISPUTE
This dispute involves a claim by Mr. Thomas Hughes (hereafter “the complainant”) that he was (i) discriminated against by Dublin and Dun Laoghaire Education & Training Board (hereafter “the respondent”) on grounds of his age when he was required to retire from his position with the respondent. At the material time the complainant was approaching retirement age, an extension for him to continue working for a further year was granted by the organisation CEO. Following the government’s moratorium and the establishment of the employment control framework, this extension was revoked. The complainant submits that he was discriminated against on age grounds.
2. BACKGROUND
2.1 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2008 to the Equality Tribunal on 14 February 2012. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Valerie Murtagh, 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 6 August 2014, 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 2 December 2014.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant commenced employment with the respondent as an assistant caretaker/cleaner in October 2004. The complainant was due to retire on 31 August 2011. On 30 November 2010, the complainant requested in writing an extension of his employment beyond the retirement age of 65. On 11 January 2011, this extension request was approved on an exceptional basis and without precedent allowing the complainant to work until 31 August 2012. Subsequently, the CEO of the respondent issued a letter to the complainant on 30 March 2011 revoking the extension citing an instruction from the Department of Education and Skills to reduce its non-teaching posts as the unfortunate reason for the decision to rescind the earlier offer of another year’s employment. The complainant wrote to the respondent on 15 June 2012 setting out his objections to retiring one year earlier than had been agreed and sanctioned by the respondent. The complainant states that the respondent discriminated against him on grounds of age and submits that he has a prima facie case under the employment equality legislation.
3.2 The complainant submits that he was forced to retire at 65 years after he had been granted an extension for one year (66 years) because of his age. The complainant accepts the fact that the employer received an instruction from the Department of Education and Skills instructing them to reduce their non-teaching posts, although he was not in a position to see this document. The complainant contends that no attempt was made by the respondent to offset this instruction to reduce staff numbers and staff costs by examining alternatives and discussing other options with employees. The complainant maintains that instead of engaging staff and/or their representative body in progressing this change, the complainant contends that he was singled out by the respondent as the easiest means of adhering to the Departmental instruction because of his age i.e. near retirement age. The complainant submits that he was discriminated against on grounds of age and forced to retire one year earlier than previously agreed with the respondent.
SUMMARY OF RESPONDENT’S CASE
4.1 The respondent did not attend the hearing. In its written submissions, the respondent submits that in accordance with section 101(4) of the Employment Equality Acts an employee who has been dismissed shall not be entitled to seek redress under this Part in respect of the dismissal if:
(b) in the exercise of powers under the Unfair Dismissals Acts, 1977 to 1993, a Rights Commissioner has issued a recommendation in respect of the dismissal.
(c ) the Employment Appeals Tribunal has begun a hearing into the matter of the dismissal. The respondent submits that a Rights Commissioner decision issued in relation to the complainant’s claim of unfair dismissal concerning the exact same set of facts and circumstances as are been re-litigated at this Tribunal and found that the complainant was not unfairly dismissed. The respondent states that the complainant appealed the Rights Commissioner decision to the Employment Appeals Tribunal and the EAT considered the matter and upheld the decision of the Rights Commissioner. The respondent submits that this Tribunal has no jurisdiction to investigate this complaint as the matter is res judicata.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The respondent submitted that since the complainant had previously brought a complaint under the Unfair Dismissals Act pertaining to the exact same set of facts and circumstances before the Rights Commissioner, and appealed that decision to the Employment Appeals Tribunal; the Tribunal is barred from investigating the complaint, pursuant to S. 101(4) of the Employment Equality Acts.
S. 101(4) of the Employment Equality Acts provides that
An employee who has been dismissed shall not be entitled to seek redress under this Part in respect of the dismissal if –
(a) […]
(b) in exercise of powers under the Unfair Dismissals Acts 1977 to 1993, a rights commissioner has issued a recommendation in respect of the dismissal, or
(c) the Employment Appeals Tribunal has begun a hearing into the matter of the dismissal.
I note that the complainant has union representation. I am satisfied that the Rights Commissioner recommendation was a recommendation in respect of the dismissal. In addition, the complainant appealed the Rights Commissioner decision to the Employment Appeals Tribunal who in turn upheld the Rights Commissioner decision. Having given careful consideration to the written and oral submissions, I find that I lack jurisdiction to investigate the within complaint pursuant to the provisions of S. 101(4)(b) and (c) of the Acts.
6. DECISION OF THE EQUALITY OFFICER
6.1 Based on all the foregoing, I find pursuant to section 79(6) of the Employment Equality Acts that I am lacking jurisdiction to investigate the within complaint, due to the fact that an earlier Rights Commissioner decision and Employment Appeals Tribunal decision issued in the matter under the Unfair Dismissals Acts 1977-1993, pursuant to the provisions of S. 101(4)(b) and (c) of the Employment Equality Acts.
_____________________
Valerie Murtagh
Equality Officer
30 December, 2014