ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003460

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

Date of Adjudication Hearing: 05/10/2016

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and the abovementioned Acts, 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:

The complainant submits that he worked for the respondent as a mechanic for a period of 28 years and was given assurance from the HR manager early in 2015 that he would he facilitated with two fixed term contracts of 6 months duration after his normal retirement date. When he formally requested the same prior to his retirement he was informed that he would not be accommodated and that it was the respondent’s intention to reduce staff numbers by ten. The respondent advertised for additional staff two weeks after his retirement and subsequently employed two new staff members.                                                                                                                                                                      

He was a loyal employee who requested an extension of his contract until such time as he became entitled to an old age pension. He was informed that he could not be kept on because he hadn’t completed the necessary paper work (filled in a form).                                                                                  

The respondent did not require younger staff to attain a competitive advantage. There was a significant mix of older and younger workers and in fact the respondent found it difficult to retain older members of staff. The respondent “did not have to meet any of what are considered legitimate aims to justify the compulsory retirement age.”

Respondent’s Submission and Presentation:

By way of preliminary issue the respondent submits that the complainant has failed to provide a detailed statement in respect of the alleged act of discrimination and accordingly failed to comply with the WRC procedures. This failure undermines the aims of the WRC and denies the respondent the opportunity to respond in full and obstructs the adjudication officer from full consideration of the matter in advance. Therefore the adjudication officer should infer that the complainant is not in a position to adduce evidence or provide facts to fully support his complaint.                                               

The complainant has been employed primarily as a mechanic by the respondent since 2^nd of June 1987. The respondent’s policies including its retirement policy are set out in its employee handbook. The handbook is emphatic in respect of advance notification of retirement date and the retirement age of 65 has been inserted therein and scrupulously applied as it relates to staff in general (other than one head office based individual who performed a completely different role – details provided) and in particular to those involved in extremely high labour intensive work. The complainant wrote to the respondent’s HR manager following receipt of notification of retirement date letter seeking a six month extension to his contract on the basis that such an arrangement had been facilitated for other employees. The situation was explained to the complainant and the MD wrote to him on the 20^th of November to confirm that he would be required to retire on the 6^th of December in accordance with the contractual provision.                                                                                                              

It is further submitted that the complainant has failed to discharge the burden of proof required to establish a prima facie case of discrimination. He has “merely set out in his complaint, a number of brief statements which, as set out below are almost wholly inaccurate and are unfounded.” He did not request to remain on for 12 months rather he sought to be retained for a period of 6 months, he was not informed that no further staff was being taken on, nor was three additional staff recruited within two months of the date of his retirement.                                                                                              

Additionally despite the fact that the complainant has not sought to challenge the existence of the retirement policy and/or the retirement age the same is entirely objectively justified consistent with the provisions of the Acts specifically as provided by s. 10 of the Equality (Miscellaneous Provisions) Act, 2015. The retirement age has been determined and applied consistently to ensure the health and safety of staff and customers in a safety critical environment and to facilitate job opportunity and succession planning. These it is submitted constitute legitimate aims which are wholly justified objectively within the meaning of the Acts provisions.                                                                                                   

 The respondent’s H&S manager gave evidence concerning the safety critical nature of the policy and the types of injuries sustained by mechanics in the motor trade and the physical nature of the work involved. The HR manager denied giving any assurances to the complainant in respect of fixed term contracts post retirement and elucidated on the respondent’s commitment to workforce succession planning. The 10 employees were reduced to 9 upon the complainant’s retirement which was subsequently increased to 10 and thereafter reduced to 8. The respondent is actively seeking to recruit an additional 2 employees presently.

Decision:

CA-00004998-001: I am not in a position to make a recommendation favourable to the complainant in respect of the complaint received under the Industrial Relations Act, 1969 as the material facts are the same as those presented in the complaint under the Employment Equality Act.

CA-00004998-002: Addressing the preliminary issue firstly I do not accept that the respondent has been prejudiced in circumstances where a degree of informality exists in the system which was devised to provide an inexpensive and accessible route to complainants as it relates to alleged breaches of their statutory rights. The form provided is not a statutory form. In any event the respondent has not been prejudiced in this case in my view.                                                                  

The existence of a mandatory policy concerning retirement at age 65 does of itself shift the burden of proof from the complainant and accordingly my decision in this matter will hinge on the objective justification requirement set out at s. 34 (4) of the Acts and the submissions of the respondent.    That said I am satisfied that the respondent has been able to provide objective justification for the mandatory retirement policy as it relates to the health and safety of employees and customers on the one hand and the legitimate requirement to engage in workforce succession planning on the other.

Accordingly I find that the complaint is not well founded.

Dated:   9^th February 2017