Equality Officers Decision No: DEC-E-2015-039
McGuinness
(Represented by SIPTU)
-v-
Maynooth Mission to China Inc. t/a Columban Missionaries
(Represented by Cathal McGreal BL instructed
by Millett & Matthews – Solicitors)
File Reference No: EE/2012/241
Date of issue: 29 June, 2015
Employment Equality Acts, 1998-2011 – Sections 6&8- - employment – age- extension of contract
1. Dispute.
The Complainant referred a complaint, under the Acts, to the Director of the Equality Tribunal on 23rd April 2012 alleging she had been discriminated against on the age ground as she was not allowed work beyond the age of 66.
In accordance with his powers under Section 75 of the Act, the Director delegated the case on 23rd October 2014 to me, Rosaleen Glackin an Equality Officer, for Investigation and Decision. A Submission was received from the Complainant on 2nd August 2012 and from the Respondent on 13th September 2012. A Supplemental Submission was received from the Respondent dated 21st November 2014 and from the Complainant.
As required by Section 79 (1) of the Acts, a Hearing was scheduled for 4th December 2014. This Hearing had to be adjourned to a further Hearing on 9th March 2015 as the Submission from the Respondent had not been copied to the Representative for the Complainant, Ms Deirdre Canty of SIPTU.
As required by Section 79 (1) of the Acts, a further Hearing was scheduled for 9th March 2015.
2. Summary of Complainant’s Position.
2.1 The Complainant has 18 years’ service with the Employer. She was not issued with a Contract of Employment when she originally commenced employment in November 1993. However in October 2010 the Complainant was furnished with a Contract of Employment. This stipulated that the retirement age was on 65th Birthday. The Complainant did not agree to this Contract and at that time she was just 5 months from her 65th Birthday. Therefore she did not sign acceptance of this Contract.
Other employees of the Respondent were allowed to work beyond the age of 65 and at least two employees age 70 were still working with the Respondent at that time. At least five employees were permitted by the Respondent to work to age 70.
The Respondent argues that there was a Collective Agreement with SIPTU in 1997 regarding terms and conditions of employment, including retirement age. However SIPTU argued that as a number of employees were working beyond the age of 65 then the Collective Agreement was not adhered to by the Employer and custom and practice was established to allow employees to work beyond the age of their 65th Birthday.
2.2 The Complainant was informed that her employment would cease on her 65th Birthday. The Complainant requested to work beyond her 65th Birthday and she was issued with a Fixed-Term Contract of Employment for a period of 12 months, bringing her to age 66. She was notified prior to her 66th Birthday that her employment would cease on that date. She did request to again work beyond her 66th Birthday but this was refused. Her employment ended on 29th February 2012.
SIPTU also asserted that the Fixed-Term Contract of Employment was also discriminatory in that it provided that “Sick pay is not paid by the Society after the age of 65”. This also breaches the Employment Equality Act.
This element of the complaint was formally withdrawn by SIPTU, on behalf of the Complainant, on 14th April 2014
2.3 SIPTU argued that the Respondent must also objectively justify the decision to terminate her employment at age 66.
3. Summary of Respondent’s Submission.
3.1 In relation to the fixing of a mandatory retirement age of 65 years, the Complainant is precluded from making any such claim as such a claim is both out of time and is not made out in the compliant form as submitted. Furthermore, the recent decision of the Court of Justice of the European Union in Case C-45/09, Rosenbladt v Oellerking Gebfudereinigunsges mbh (2011) IRLR 51has clearly upheld the fixing by the Employer of a mandatory retirement age in circumstances almost identical to those under consideration in this case. Finally the Complainant’s submission does not satisfy the burden of proof that she was treated differently and/or that if she was treated differently that the different treatment was less favourable and /or that the Respondent was not legally allowed to set different retirement ages for its employees.
The Complainant is also precluded from making any complaint in relation to the termination of her employment on the expiry of the Fixed-Term Contract of Employment in February 2012 by virtue of Section 6(3) (c) of the Act.
3.2 The Respondent argued that the introduction of a complaint in relation to the non-payment of sick pay post retirement is an inappropriate and invalid extension of the complaint as set out in the complaint form.
4. Preliminary Issue – Time Limits. - Section 77(5)
4.1 Ms McGuinness commenced employment as a Cleaner/Domestic Assistant on 17th November 1993. She was not issued with a Written Statement of her Terms and Conditions of Employment at that time.
The Employer issued a Personnel Handbook to all employees working in Catering, Housekeeping, Maintenance, Farm and Infirmary employed by the Society of St Columban at Dalgan Park, Navan in October 1992. This provides at Section 1.5 of the Handbook as follows: “All staff are required to retire at age 65”. The Complainant could not recall if she had been given the Handbook when she joined the Society in 1993. The Employer stated that the Complainant had been provided with a copy, however there was no evidence presented to confirm this.
4.2 The Complainant joined the Pension Scheme on 1st January 2000. She was issued with the Member Explanatory Booklet which stipulates that the Normal Retirement Age is 65. The Complainant received yearly statements from the Pension Provider, where the “normal retirement“ age of 65 years was specified.
4.3 The Complainant was issued with a written statement of her Terms and Conditions of Employment on 6th October 2010. This Contract of Employment at Section 11 specifies “The Society’s Retirement Age is 65”. The Complainant reached 65 years of age on 1st March 2011and the Respondent terminated her employment on the basis that she had reached 65 years of age.
The Complainant applied for her Pension from Zurich, the Pension Provider, before 1st March 2011 and the Complainant was notified by the Respondent by letter dated 1st March 2011, advising her that they had signed off on her application for her Pension.
4.4 In an undated letter to her Employer, the Complainant did apply to work beyond this date. She stated as follows: “I am putting in writing my reasons why I wish to stay employed with the Columban Fathers, Dalgan Park, Navan, even though I have reached the age of 65 years this March 1st 2011”. The Complainant was issued with a copy of her terms and conditions of employment by letter dated 16th March 2011. She was requested to acknowledge receipt for the records. She received a signed and dated Fixed-Term Contract of Employment from the Respondent on 5th July 2011 to cover the period from 1st March 2011 to 1st March 2012 bringing her to age 66. The Complainant responded by letter dated 7th July 2011 as follows: “There was no retirement age agreed and I understood I was able to work until such time as I wished to retire”. The Employer responded by letter dated 11th August 2011.
The Complainant was informed by letter dated 7th February 2012 that her employment would be ending on 1st March 2012.
4.5 There was a SIPTU/Company Collective Agreement dated 31st January 1997 which states as follows – “A members 65th Birthday determines the normal age of retirement”. This is in Appendix 1 of the Collective Agreement dealing with the Pension, Death and Disability Benefits Scheme.
The Complainant reached 65 years of age on 1st March 2011.
Section 77 (5) (a) of the Act provides as follows:
“Subject to paragraph (b), 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 may be, the date of its most recent occurrence”.
4.6 However Section 77 (5) (b) of the Act does provide for an extension of time by up to 12 months on application to the Director due to “reasonable cause”. There was no application for an extension of time made to the Director or to the Equality Officer at either Hearing. The Complainant and her representative confirmed at the Hearings that the complaint does not relate to the Complainant’s retirement at age 65 on 1st March 2011, although they argued both in their submission and at the Hearings in relation to retirement at age 65.
5. Preliminary Issue – Section 6 (3) (c).
5.1 Section 6 (3) (c) of the Act provides as follows:
“Offering a fixed term contract to a person over the compulsory retirement age for that employment or to a particular class or description of employees in that employment shall not be taken as constituting discrimination on the age grounds”.
The Complainant and her Representative argued that the Complainant did not accept the Contract of Employment offered to her by the Respondent in November 2010 nor did she accept the Fixed Term Contract of Employment issued to the Complainant on 5th July 2011 to cover the period from 1st March 2011 to 1st March 2012. They argued that the Complainant continued to work on her implied Contract of Employment that she had worked under since 17th November 1993. They further argued that the Complainant had objected to the Fixed-Term Contract of Employment by letters dated 7th July 2011 and again on 10th February 2012
With specific reference to Section 6 (3) (c) of the Act the Complainant and her Representative stated as follows:-
“Offering” – While a contract was offered to Ms McGuinness she did not accept this fixed term contract issued to her on 5th July 2012 as Ms McGuinness rejected by way of letter dated 7th July 2011, therefore there was no acceptance of this contract”
“Over the compulsory retirement age” – There had been no agreement on a compulsory retirement age, rather an age at which the pension becomes payable is referenced in the collective agreement”.
6. Decision.
6.1 Section 6 (3) (c) of the Act is very clear where it states as follows_
“Offering a fixed term contract to a person over the compulsory retirement age for that employment or to a particular class or description of employees in that employment shall not be taken as constituting discrimination on the age grounds”.
6.2 Section 5 (1) of the Interpretation Act, 2005 provides as follows:
“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……, the Oireachtas or
(ii) ….. 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”.
6.3 In construing Section 6 (3) (c) of the Act I find that it is neither obscure nor ambiguous. It is clear that the Oireachtas intended to separate the issues of age discrimination generally as provided for under the Act and the issue of Fixed Term Contracts issued to an employee after the compulsory retirement age, which in this case is 65 years, as per the Collective Agreement between SIPTU and the Company of 31st January 1997 and the Contract of Employment issued to the Complainant on 6th October 2010.
6.4 The Complainant and her Representative also argued that notwithstanding Section 6 (3) (c) of the Act there was a requirement on the Respondent to objectively justify the retirement of the Complainant at age 66. It is very clear that Section 34(4) of the Act in relation to fixing different ages for the retirement, whether voluntarily or compulsorily, has to be objectively justified and this has clearly been established by the Court of Justice of the European Union and by the Labour Court.
However it is clear that that the Complainant’s complaint relates to the issue of her failure to secure an extension of her 1 year Fixed Term Contract of Employment that operated from 1st March 2012 to 1st March 2012.
7. Decision of the Equality Officer.
In accordance with Section 79 (6) of the Act I find the complaint of discrimination on the age ground fails.
___________________________________________
Rosaleen Glackin
Equality Officer.
29 June, 2015