EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-072
PARTIES
Jimmy Moran
-v-
Irish Pride Bakeries
File reference: et-155361-ee-15
Date of issue: May 2016
1. Introduction:
1.1 On the 13th April 2015, the complainant referred a complaint regarding his discriminatory dismissal on the basis of age. On the 11th February 2016, in accordance with powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Kevin Baneham, 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 which date my investigation commenced.
1.2 The complaint was scheduled for hearing on the 30th March 2016. At the time the hearing was scheduled to commence, there was no appearance by or on behalf of the respondent. I verified that the respondent was on notice of the hearing. The respondent did not make submissions regarding the complaint. The hearing, therefore, proceeded in the absence of the respondent. The complainant attended the hearing, accompanied by his spouse and son. The complainant was represented by Simon Brady, BL instructed by Aoife Toner, Kelly Noone Solicitors.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.
2. Summary of the complainant’s case:
2.1 The complaint relates to a claim of age discrimination, where the complainant says he was forced to retire from work on the 27th February 2015. He outlined that he commenced employment with the respondent in 1969 and was initially engaged as a laboratory technician. He moved into a sales role and the company was also subject to a corporate takeover. In 1991, he was appointed to the post of Deputy Chief Executive Officer of the respondent. At the time of the end of his employment, the complainant was in receipt of remuneration of €6,077.42 per month and was based in the respondent’s facility in the west of Ireland.
2.2 In respect of an age of retirement, the complainant said that the custom and practice with the respondent was that employees could work for as long as they wished. He gave examples of individuals who worked until their mid-80s. In February 2014, the complainant reached an agreement with the Sales and Distribution Manager that he would retire on the 11th October 2015, his 66th birthday. The complainant reached age 65 on the 11th October 2014. No more was said of this agreement until he received unexpected correspondence on the 2nd January 2015. This letter informs the complainant that the respondent wishes to introduce a “clear and coherent retirement policy” and informs the complainant of the end of his employment on the 27th February 2015. Attached is a document entitled “Retirement Policy”, which states that from January2015, the respondent’s mandatory retirement age is 66. The complainant outlined that there had been no prior consultation before his receipt of this letter. He said that while some six other colleagues were retired in or around this time, others were able to continue beyond age 65.
2.3 The complainant said that he wrote to the respondent to challenge his retirement and to say that it was unfair that such a mandatory requirement be imposed in his 65th year. He met with the Sales and Distribution Manager and the CEO in City West, but they declined to allow him continue in employment. The complainant left the respondent’s employment on the 27th February 2015. Given that his agreed date of retirement had been the 11th October 2015, he was at a loss of €44,544. He had done a small amount of consultancy work for a third party after his retirement.
2.4 The complainant outlined that he had advanced a complaint pursuant to the Terms of Employment (Information) Act, following which a recommendation had been issued by a Rights Commissioner. He confirmed that no complaint had been made pursuant to the Unfair Dismissals Acts.
3. Summary of the respondent’s case:
3.1 The respondent did not attend the hearing and did not make submissions to be considered as part of this investigation.
4. Findings and reasoning:
4.1 The complainant has long service with the respondent and performed various roles during this time. He acquired senior management posts and the undisputed evidence was that he continued without issue until his forced retirement on the 27th February 2015. He gave evidence that there was no retirement age in the respondent and no such mandatory retirement age is mentioned in the documentation before me. The complainant outlined that he reached an agreement with the respondent to retire on the 11th October 2015. The letter from the respondent of the 2nd January 2015 seeks to introduce a retirement age of 66. Despite this assertion, the respondent then required the complainant to end his employment during his 65th year. The document of the 2nd January 2015 does not explain this deviation in what it purports to be a new retirement policy. According to the respondent’s own letter, the complainant could have continued in employment until the 11th October 2015.
4.2 The complainant challenges that reasons given by the respondent to justify its retirement policy. Given that the complainant was retired in breach of this policy, it is not necessary to assess the objective justification provided in the policy. The letter of the 2nd January 2015 is clear that the complainant’s employment is being terminated because of his age. No defence is mounted by the respondent. It follows that the complainant was subject to a discriminatory dismissal by the respondent in being compelled to retire on the 27th February 2015.
4.3 In assessing award, I take account of the fact that the complainant had intended to retire on his 66th birthday, i.e. the 11th October 2015. I also take account of his long service with the respondent and the agreement of the parties that he could retire in good order at his next birthday. Taken these factors into account, I make an award of €50,000 to be paid by the respondent to the complainant.
Decision:
5.1 I have concluded my investigation into this complaint and make the following decision in accordance with section 79(6) of the Employment Equality Acts. I find that the complainant was subject to a discriminatory dismissal on grounds of age, contrary to section 8 of the Act.
5.2 In accordance with section 82 of the Act, I order that the respondent pay the complainant €50,000. The entire award of €50,000 is redress for the infringement of the complainant’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act, 1997 (as amended).
_______________________________
Kevin Baneham
Adjudication Officer / Equality Officer
May 2016