ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001038

Complaint(s)/Dispute(s) for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00001405-001	11/12/2015
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00001405-002	11/12/2015
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00001405-003	11/12/2015

Date of Adjudication Hearing: 24/05/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Act, 1998, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

I was dismissed by my employer in contravention of the Employment Equality Acts in circumstances where my employment was terminated on my reaching a specific age. This decision by my employer was not supported by my terms and conditions of employment nor did any objective grounds exist to justify same.

I was dismissed by my employer on reaching the national retirement age. My terms and conditions of employment do no provide for any specific age of retirement. I protested this decision in advance of the date of termination . This protest was not the subject of any internal inquiry or grievance process. .

My Position was terminated by my employer on my reaching the national retirement age. I did not agree any contractual provision with my employer in respect of an age of retirement. My employer stated the reason for my termination was the company's inability to fund my position after the date of my termination.

Respondent’s Submission and Presentation:

There was no attendance by the respondent.

The address to which notice of hearing was sent is the current registered address of the respondent as verified by the records of the Companies Registration Office, the last return occurring in February 2016.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of that Act.

Issues for Decision:

Whether the respondent was dismissed on the grounds of age contrary to the provisions of the Employment Equality Act 1998.

The complaints under the Unfair Dismissal Act 1977 and the Redundancy Payments Act 1967 were withdrawn by the complainant at the commencement of the hearing.

Legislation involved and requirements of legislation:

Section 6(1) of the Acts states:

“For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where -

(a) A person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”) which-

(i) Exists,

(ii) Existed but no longer exists,

(iii) May exist in the future, or

(iv) Is imputed to the person concerned

Section 6(2)(f) specifies age as one of the discriminatory grounds.

Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination and requires the complainant to establish, in the first instance, facts that he/she can rely on in asserting that he/she suffered discriminatory treatment. It is only where a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.

Decision:

Complaint No. CA-00001405-001:

The complainant was employed as a Community Employment (CE) Supervisor for the respondent since June 2014 having had many years previous experience in similar roles in the locality. Her previous employment ended when that entity was struck off and ceased trading. The staff were offered similar employment in February 2014 with another CE entity under TUPE arrangements but the complainant did not avail of this option. Subsequently in June the complainant’s employment with the respondent on the same pay rate as applied previously was facilitated by the Dept. of Social Protection (DSP). The rate of pay was €772.50 per week gross. No contract of employment was furnished. The respondent employs 12 staff in the same work location and other staff are employed in charity shops in the locality. The complainant worked in the office and was involved in payroll and administration. A board consisting of voluntary personnel is responsible for running the organisation.

In May 2015 the complainant became aware that there was an issue regarding her continued employment after she reached 66 years of age on 19 June 2015. It emerged that the DSP would not fund her employment after that date. The complainant wrote to the Chairman of the Board stating that she was refusing to retire on reaching age 66. The only response was an email saying that her letter would be kept on file. In response the complainant requested that the DSP be informed of the situation but heard noting more in this regard. The complainant’s employment was terminated on 19 June 2015 and a P45 form issued.

In evidence the complainant stated that she was not aware of any mandatory retirement age for CE Supervisors nor did she know of any established retirement age or precedents on the part of the respondent. There had been no direct discussion with the complainant prior to her termination but her position had been advertised. It was argued on behalf of the complainant that there was no objective, reasonable or public policy ground justifying the dismissal.

Based on the above I find that a prima facie case of discrimination on the grounds of age has been established. As the respondent failed to attend the hearing there was no evidence to rebut this inference of discrimination.

I find therefore, in accordance with Section 79(6) of the Acts, that the complainant was discriminatorily dismissed on the grounds of age.

It is my understanding that the Transfer of Undertaking provisions did not apply to this employment.

I therefore award the sum of €2,500 as redress for the infringement of the complainant’s statutory rights. As this is redress it is not subject to Income Tax.

Complaint No. CA-00001405-002:

Withdrawn

Complaint No. CA-00001405-003:

Withdrawn

Dated: 23^rd August 2016