EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-049
PARTIES
Raymond Maguire
AND
Raidió Teilifís Éireann
(Represented by Arthur Cox Solicitors)
File reference: EE/2014/144
Date of issue: 14th March 2016
Introduction:
1.1 This complaint concerns a claim of discrimination on the grounds of gender. The complainant was a longstanding employee of the respondent and left its employment on the 17th December 2012, having accepted a voluntary redundancy package. The respondent is the national broadcaster.
1.2 The complainant referred a claim to the Director of the Equality Tribunal on the 14th March 2014 under the Employment Equality Acts. On the 8th July 2015, 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. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on the 15th July 2015. The complainant attended in person and was accompanied by a former colleague. The respondent was represented by Arthur Cox Solicitors and two managers attended as witnesses on its behalf.
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. Submissions and evidence of the complainant:
2.1 The complainant outlines that the respondent has discriminated against him on the ground of gender. He availed of a voluntary severance package and left the respondent’s employment on the 17th December 2012. He had requested to continue in service in order to complete certain legacy issues with the project he was working in, but this request was declined. He was informed that all those who wished to avail of the scheme would have to leave prior to the end of December 2012. He states that during the course of 2013, he became aware that two female members of staff were able to avail of the scheme while continuing in employment until dates in 2013. The complainant states that he is at a loss of 15 weeks’ pensionable service and the accrued salary and pension benefits. He says that the most recent date of discrimination is the 17th October 2013.
2.2 The complainant outlines that he commenced employment with the respondent in 1969 and worked in various technical and management roles. In 2011, he worked on two significant projects where he acted as project manager. Those projects came to fruition on the 24th October 2012 and there were legacy issues to deal with after that date. The complainant outlines that he trained a consultant to work on these issues for the time after the end of his employment with the respondent. In April 2013, he spoke to the consultant twice by telephone and made one visit to him at the respondent’s headquarters. Addressing his association with the respondent after the end of his employment, he said that in July 2013 he attended a congress on behalf of the credit union associated with the respondent.
2.3 In respect of the end of his employment, the complainant outlines that in April 2012, the respondent issued details of a redundancy package that required members of staff to leave by the end of 2012. He asked to avail of the package and requested that he continue in employment until March 2013, in order to address legacy issues. This request was declined. He states that a representation was made to him that the package would not be available to him if he continued in employment beyond the end of 2012. He refers to differences in “Frequently Asked Questions” in the 2011 and 2012 schemes, where a statement in the 2011 FAQ that staff might continue in service “in exceptional circumstances” was not included in the 2012 FAQ. This difference highlighted the once-and-for-all nature of the 2012 package.
2.4 The complainant outlines that he became aware that three colleagues had availed of the 2012 package but remained in service until dates in 2013. These three staff members were women and he states that forcing him to leave by the end of 2012 was intrinsically discriminatory. He states that the terms and conditions of the 2012 scheme stated that the respondent reserved the right to extend the termination date to a date in 2013, but there were no objective criteria for the exercise of this power. This was also discriminatory. He outlines that the respondent breached its Policy and Procedures manual in not treating all its employees equally.
2.5 During the course of the hearing, the complainant submitted electronic newsletters issued by the respondent in 2013. The newsletters were circulated to former RTÉ employees so that they could keep abreast of news about the organisation and their peers. The documentation includes announcements of those of the complainant’s former colleagues who retired in 2013. Through casual conversations, the complainant said that he became aware that certain 2013 retirees had been able to avail of the 2012 package. He learnt that this included female colleagues who had retired in March, June, August and September 2013. The complainant outlined that, in contrast with how these colleagues were treated, he had been emphatically told that there was no possibility of remaining in service into 2013. This was immutable, non-negotiable and there was no discretion. He refers to internal communications within the respondent stating that this would be the final time a package would be based on salaries paid before significant pay deductions were made by the respondent. The complainant stated that his manager, a woman, was permitted to avail of the package and to work until August 2013. He draws attention to the free briefing he gave the consultant who took over his role. He outlines that he sought to reach an agreeable solution between the parties. He says that the most recent occurrence of discrimination was the 22nd September 2013, i.e. the date of the retirement of the fourth of the colleagues who availed of the 2012 package and worked into 2013.
2.6 Addressing the issue of the waiver, the complainant said that this does not prevent him from referring this complaint. He states that the fact that female colleagues were allowed avail of the package and to continue working into 2013 when no man was, in itself, establishes a prima facie case of discrimination. He states that one male retired in 2013 but did not receive the 2012 package. The complainant asks what criteria were used to allow the female employees continue into 2013. Addressing the issue of when he submitted this complaint, he said that, because of his long service with the respondent, he had to reflect carefully before referring this complaint. He did so in February 2014 and lodged the complaint in March 2014.
3. Submissions and evidence of the respondent:
3.1 The respondent raises three preliminary issues. First, the complaint was made outside the time limits prescribed in section 77(5) of the Employment Equality Act. The second is that the complainant was not entitled to bring these proceedings as he had voluntarily and lawfully compromised his statutory rights in signing the waiver, returned with his letter of acceptance, dated the 12th September 2012. This document provides that the respondent is released from all claims under statute, contract or common law, arising out of his employment with the respondent. It is submitted that the complainant had sufficient opportunity to obtain professional advice prior to signing the waiver. The third preliminary issue is that the complainant has not discharged the necessary burden of proof, i.e. raising a prima facie case of discrimination.
3.2 The respondent outlines that in addition to the preliminary issues, it always treated the complainant fairly and with respect. It rejects the allegations of discrimination. It outlines that the original date for the complainant’s departure had been the 23rd September 2012 and he requested that this be extended to March 2013. The respondent agreed to postpone the date of cessation to the 17th December 2012, as indicated in its letter of offer.
3.3 The respondent submits that the complainant has not established a prima facie case of discrimination. It provides statistics on the number and gender breakdown of those employees who availed of the 2012 redundancy scheme, including details of those who departed in September and December 2012. It outlines that it provided favourable treatment to the complainant by extending his departure date from September to December 2012. In relation to those who departed in 2013, it says that two were women and one was a man. In these cases, the respondent exercised its discretion to extend departure dates for operational and business continuity needs. Furthermore, the respondent denies victimisation. It is also submitted that, in the event the complaint succeeds, the maximum award that could be awarded is €13,000 as the complainant was not in receipt of remuneration at the time the claim was lodged.
3.4 In response to the complainant’s evidence, the witnesses for the respondent gave reasons for two staff being allowed to continue working into 2013. One had a particular skill set needed for a leading restructuring role and a second was key in the handover to a new senior member of staff. They said that the complainant had now raised the situation of other former colleagues that they had not had notice of; they would need an opportunity to address the situation of these other former colleagues.
4. Findings and reasoning:
4.1 The first issue to consider is whether the waiver signed by the complainant prevents him for pursuing this complaint under the Employment Equality Act. On the 12th September 2012, the complainant signed and dated the letter of offer. Immediately above the signature of the complainant is the following text: “I irrevocably accept the offer set out above. I acknowledge that by doing so I am releasing RTÉ from all claims under statute, contract or common law, arising out of my employment with RTÉ and the termination of that employment. I have had the opportunity to take appropriate professional advice on this offer and I accept it from my own free will and with full knowledge of its meaning and effect.”
4.2 The respondent states that the complainant is estopped from pursing this complaint. It relies on the decision of the Employment Appeals Tribunal in Fowler and Bergin v Hardware Distributors Dublin Ltd [1996] E.L.R. 240. The majority of the EAT held that the claimants had agreed a settlement regarding their redundancy and this had included a specific reference to the Unfair Dismissals Act. The dissenting opinion held that the agreement breached section 13 of Unfair Dismissals Act and the claimants were not estopped from bringing their claim. The respondent relies also the High Court decision of Sunday Newspapers Ltd v Kinsella and Bradley [2007] IEHC 324. This was the employer’s appeal against a determination of the Labour Court that the employees had not compromised their entitlements under the Protection of Employees (Fixed-Term Act), 2003 and that the waiver sought to exclude and limit the application of the Act and was therefore void pursuant to section 12 of that Act. The High Court held that the question of whether statutory rights have been lawfully compromised is a matter of the proper construction of the agreement itself, pointing in the instant case to the “full and final settlement” nature of the impugned agreement. While the High Court reached a different conclusion to that of the Labour Court, it did not overturn the principles laid out by the Labour Court to distinguish a genuine bargain from an attempt to exclude the Act. The Labour Court had laid out the following principles:
“1. The terms of any waiver must be construed strictly against the party from whom it emanated. Where there is doubt the course of negotiations between the parties should be examined so as to ascertain what was intended.
2. An agreement to wave statutory rights must be supported by adequate consideration.
3. The waiver should normally arise from an agreement reached as a result of meaningful negotiations and professional advice having been sought and given.
4. The waiver should list the various Acts being taken into account.
5. The waiver is only valid if it is based on a free and informed consent given by a person with full knowledge of their legal rights.
6. It is for the employer to ensure that the worker is capable of giving an informed consent and the employer should normally advise the worker in writing to obtain professional advice before inviting him or her to sign a waiver.” [Sunday Newspapers Ltd v Kinsella and Bradley [2006] E.L.R. 325]
4.3 There is no voidance provision in the Employment Equality Acts equivalent to the voidance provisions of section 12 of the Protection of Employees (Fixed-Term Act), 2003 or section 13 of the Unfair Dismissals Act. The Equality Tribunal has frequently considered whether a complainant who has signed a waiver or compromise agreement can pursue their claim under the Employment Equality Acts. In Nenartavicius v RKSD Limited (DEC-E2011-162), the Equality Officer applied the rationale of the Labour Court in the Sunday World case to determine that the claimant had not obtained sufficient consideration in the settlement and was, therefore, entitled to pursue the claim. In Langford v An Grianan Hotel (DEC-E2011-220), the Equality Officer held that he had jurisdiction to hear the claim as a previous settlement reached by the parties did not encompass all proceedings. Again applying the Sunday World principles, the Equality Officer in Skopinska v Portmarnock Sport & Leisure Club (DEC-E2014-006) held that the employee had not exercised full and informed consent in accepting a redundancy package. She had not received additional consideration and nor was it clear that the agreement affected her outstanding equality claim. In Sobczyk v SAMI SWOI Limited (DEC-E2015-016), the Equality Officer held that the employee could pursue their claim as the previous settlement carved out the dismissal element of her claim and she was now entitled to pursue a discriminatory dismissal claim.
4.4 The Sunday World principles have also been relied on to determine that a complainant could not pursue their claim. The Equality Officer in Kasztelan v Fingal County Council (DEC-E2011-189) found that a previous settlement and the fact that the she had been legally represented during the settlement negotiations meant that she could not pursue the Equality claim. In Suffin v Tesco Ireland Ltd (DEC-E2015-006), the Equality Officer held that it would have been in the contemplation of the employee (but not the employer) that she may have a future disability claim. She was bound by the full and final nature of the severance agreement. The Equality Officer referred to the High Court decision in PMPA Insurance v Keenan & Others [1983] I.R. 330 and the state of knowledge of the parties. In A Chef v A Hospital (DEC-2015-054), the Equality Officer held that the employee was not entitled to pursue their equality claim due to a previous settlement, relying on the facts that the agreement made reference to the Employment Equality Act, that the employee had been professionally represented and the claim was lodged after the settlement.
4.5 Having considered the submissions of the parties, I find that the complainant is entitled to pursue this complaint. At the time he signed acceptance of the 2012 offer, there was no outstanding equality claim and any such complaint was not in his contemplation. Unlike the Fowler and Bergin and Sunday World cases, the complainant did not have within his contemplation all of the relevant facts, i.e. colleagues would be permitted to continue working into 2013 after having accepted the 2012 package. The respondent did not provide criteria by which applications to continue working into 2013 would be assessed. The complainant maintains that he was informed that employees availing of the 2012 package would have to leave service by the end of this year.
4.6 Section 77(5) of the Employment Equality Act requires that a claim for redress in respect of discrimination or victimisation be referred within six months from the date of the most recent occurrence of such an act. This limitation period may be extended to 12 months where reasonable cause is shown. The question in this case is at what date is the most recent occurrence of an act of discrimination. The respondent submits that the latest date for such an act is the date the complainant left the employment of the respondent, i.e. the 17th December 2012. The complainant states that the date of the most recent occurrence is a date in 2013 when the fourth named colleague ended her employment with the respondent in that year. In evidence, the complainant referred to the 22nd September 2013. The complaint was made on the 14th March 2014.
4.7 I am satisfied that neither the 12th September 2012, nor the 17th December 2012 are the latest dates of discrimination. The complainant states that he was not aware that colleagues would be allowed accept the 2012 redundancy scheme and be allowed continue work into 2013. The question is what cause of action could the complainant have pursued at the time he accepted the terms of the 2012 redundancy scheme or left the respondent in December 2012? In effect, the act of discrimination crystallised on the retirement of the first of his female colleagues. This is the approach followed by the UK Employment Appeal Tribunal in Clarke v Hampshire Electro Plating Co Ltd [1992]ICR 312, where the EAT held that Mr Clarke’s cause of action crystallised on the recruitment of a white manager, when he had previously sought a promotion to this role.
4.8 I find that the relevant date for the purposes of time running is the 31st March 2013. This is the date of the newsletter (provided by the complainant at the hearing) where he was notified of the retirement of a named female colleague. Over the last number of years, the respondent instituted pay cuts to adjust to the financial difficulties faced by the broadcaster and the country generally. It had also introduced a series of voluntary redundancy packages. The complainant outlined that the respondent had been clear that the 2012 package was the last one to calculate the lump sum according to salary levels preceding pay cuts. There was an obvious incentive to either accept redundancy, or to continue in employment with the respondent. The complainant chose to accept redundancy and left employment on the 17th December 2012. A female colleague left the respondent’s employment in March 2013. While the complainant would not have had direct knowledge of his colleague’s affairs, he was on constructive knowledge that this colleague had availed of the 2012 scheme. To hold otherwise is to accept that a longstanding and senior staff member of the respondent chose not to avail of the 2012 scheme and then only to retire three months later.
4.9 The complaint was referred on the 14th March 2014. The normal limitation period for referring complaints is six months from the date of the act of discrimination. This is extendable to 12 months where reasonable cause is shown. In Cementation Skanska (formerly Kvaerner Cementation) v Carroll DWT0425, the Labour Court considered “reasonable cause” in the following terms:
“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.
The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”
4.10 The complainant gave evidence that, because of his longstanding relationship with the respondent, he had to reflect before initiating this complaint. He also became aware of other retirements occurring in 2013 and the fact that the retirees had availed of the 2012 package became a topic of conversation amongst colleagues. He attended a conference in Canada on behalf of a credit union associated with the respondent. Applying the Skanska v Carroll decision, there is a particular onus on the complainant to show reasonable cause when the application was made very late in the limitation period. I find that the period of reflection is not a sufficient reason for such an extended delay, in particular where there had been a number of retirements during the year and the 2012 package was already a live issue of conversation. It follows that the complainant has not shown reasonable cause to extend time to make the complaint and it is out of time.
Decision:
5.1 I have completed my investigation of this complaint and, in accordance with section 79 of the Employment Equality Acts, I issue the following decision: I find that the complaint in relation to discrimination on grounds of gender was not lodged in accordance with the time limits provided for in section 77 of the Acts and I therefore have no jurisdiction to further investigate the complaint.
_____________________
Kevin Baneham
Adjudication Officer / Equality Officer
14th March 2016