EDA167

This is an appeal by Michael McGrath and John Ryan (hereafter the Complainants) against the decision of the Equality Tribunal in their claim of discrimination on age grounds made against Athlone Institute of Technology (hereafter the Respondent). They also claim to have been victimised by the Respondent. The claims were made under the Employment Equality Acts 1998-2015 (the Act).

The complaints were presented to the Equality Tribunal on 5^thMarch 2013. They were heard by an Adjudication Officer designate acting as an Equality Officer on 10^thJuly 2015. The decision under appeal was issued on 30^thOctober 2015, at which time the issuing authority was the Workplace Relations Commission.

Preliminary Point
The Respondent raised a preliminary objection to the jurisdiction of the Court to entertain the within claims. A similar application had been made to the Equality Officer / Adjudication Officer at first instance.

The basis for the objection was that the parties herein entered into an agreement to compromise earlier litigation before the High Court and the Supreme Court which precluded the taking of the within proceedings. That litigation related to the Complainants’ entitlement to contracts of indefinite duration and their purported dismissal on grounds of redundancy following a decline in demand for the Trade Courses which they taught. In the compromise agreement reached the Respondent agreed to employ the Complainants on contracts of indefinite duration. It was further agreed that the Complainants would be redeployed pursuant to the collective agreement which then covered the generality of public servants, known as the Croke Park Agreement. The compromise agreement was reduced to writing in a document dated 19^thJanuary 2012 and signed by all parties thereto including the Complainants. It is accepted that at all material times the Complainants were represented by solicitor and counsel. The document executed by the parties contained a provision in the following terms: -

• “The foregoing constitutes full and final settlement between the employees named at 1 above and AIT of all claims of whatsoever nature and disputes arising from the cessation of the Trade Courses and their resulting redeployment.”

The Respondent contends that the within complaints relate to the terms under which the Complainants were redeployed. Consequently, it was submitted, the Complainants are estopped from proceeding with the claims by reason of the agreement into which they entered.

Conclusion
The Complainants, who appeared in person, were questioned by the Court as to the factual basis upon which their claims of age discrimination are grounded. Having heard the Complainants, the Court is satisfied that these claims related to the location and the roles to which they were redeployed. Consequently, they are claims arising from cessation of the Trade Courses and their resulting reemployment.

In her decision the Equality Officer/ Adjudication Officer relied on the decision of Smyth J inSunday Newspapers v Kinsella and Bradley[2008] ELR 53 in holding that the Complainants were estopped from proceeding with the claims in circumstances where the compromise agreement was expressed to be in full and final settlement of all claims arising out of their redeployment. That case involved an appeal to the High Court on a point of law from a decision of this Court in a claim by two former employees of the Plaintiff under the Protection of Employees (Fixed-Term Work) Act 2003. The substantive dispute concerned the amount of redundancy payments made to the claimant employees relative to the amount made to permanent employees. In accepting the redundancy lump sum proffered by their employer, the claimant employees signed a discharge agreement with provided that the amounts that they received were in full and final settlement of all claims arising from the termination of their employment. The discharge agreement listed a number of statutes that under which claims could not be pursued but a reference to the 2003 Act was omitted.

In giving judgement in the case Smyth J held that the intentions of the parties to an agreement of the type in issue are to be ascertained from the language of the agreement itself. The agreement provided that it was in full and final settlement of all claims and that meant what it said. That was a decision of the High Court by which the Equality Officer /Adjudication Officer and this Court is bound.

The decisionSunday Newspapers v Kinsella and Bradleymakes it clear that the intentions of the agreement of 19^thJanuary 2012 must be ascertained from the language used in the written document. The agreement was carefully drafted by professional legal advisers on both sides. The intentions of the parties are clearly discernible from the document itself. It is clear beyond argument that in executing the agreement the Complainants herein undertook, for valuable consideration, not to pursue any claims of whatever nature arising from their redeployment.

The within claims of discrimination on grounds of age are clearly precluded by the terms of that agreement. Consequently, the Court must decline jurisdiction in relation to these claims.

Grade Progression
The agreement executed on 19^thJanuary 2012, at cause 9, provided that the Complainant may pursue a claim in relation to grade progression pursuant to the Industrial Relations Acts. It appears that such claims were pursued under those Acts. However, the Complainants claimed before the Equality Officer / Adjudication Officer that the issues surrounding those claims also involved discrimination against them on grounds of age. On a reading of the plain language used in the aforesaid agreement that issue was to be pursued as an industrial relations issue constituting a trade dispute. By necessary implication, the agreement precluded their pursuance as employment equality issues. Nevertheless, the Equality Officer / Adjudication Officer dealt with this aspect of the claim and found that that there was no evidence of any connection between those issues and the Complainants’ age.

No evidence was proffered in the appeal on which that finding could be disturbed.

Victimisation
The Equality Officer / Adjudication Officer held that the Complainants’ claims of victimisation were not covered by the terms of the compromise agreement of 19^thJanuary 2012. While the Respondent takes issue with the decision of the Equality Officer / Adjudication Officer on this point the Court has proceed to consider this claim on its merits.

Victimisation is defined by s.74(2) of the Act as follows: -

• For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith—
  • (a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),

    (b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,

    (c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or

    (d) given notice of an intention to do anything within paragraphs (a) to (c).

• 
  1.The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),
  
  2.The Complainant was subjected to adverse treatment by the Respondent, and,
  
  3.The adverse treatment was in reaction to the protected action having been taken by the Complainant.

As the Complainants have failed to show a causal connection between the treatment grounding their claims and an act covered by s.74(2) of the Act their claims of victimisation cannot succeed.

Outcome
For the reasons set out in this Determination the Court is satisfied that the Complainants’ appeal must be dismissed.

Accordingly, the appeal is disallowed and the decision of the Adjudication Officer is affirmed.

Signed on behalf of the Labour Court



Kevin Duffy
14th April 2016______________________
JKChairman



NOTE

Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.