ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00001616

Parties:

Complaint(s):    

Date of Adjudication Hearing: 02/05/2017

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 Section 79 of the Employment Equality Acts, 1998 – 2015 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).

Background:

The Respondent is a company based and operating in Shannon Airport. The Complainant was an employee of the Respondent prior to the termination of his employment on the 13 November 2015. The Complainant claims he was dismissed in circumstances amounting to discrimination on grounds of age, in terms of section 6(2) of the Employment Equality Acts and contrary to section 8 of the Acts. The Respondent states that the Complainant was retired on this date.

Summary of Complainant’s Case:

• The Complainant began his employment with the Respondent on the 8 May 1995 when he was 44 years of age.
• The Complainant was not provided with a written contract of employment but did receive a statement of his terms and conditions of employment in October 2003. This was in the context of collective negotiations with SIPTU and on his appointment as a permanent employee. The Complainant’s statement of his terms and conditions of employment is silent on the matter of a retirement age and the Complainant did not enter into any agreement with the respondent in this regard. The Complainant is unaware of the existence of any document or policy created by the Respondent which points to a specified or established retirement age.
• On the commencement of his employment the Complainant was provided with 2 weeks on the job training and was employed as a temporary worker. The Complainant was made permanent in 2003 on the provision of the above referenced statement of his terms and conditions of employment. At the time the Complainant was recruited by the Respondent, employees would remain as temporary workers for a considerable number of years before being made permanent. In the Complainant’s case this was 8 years.
• While the Complainant was initially employed as an ‘operator’ he was subsequently promoted to ‘crew chief’ in October 2011. On a weekly basis the Complainant would be required to work 2 day and 2 night shifts on a 9 to 9 roster. He would work these shifts with one ‘operator’ and was responsible for the refuelling of commercial airliners at the Shannon airport. The Respondent employed 4 crews comprising of a ‘chief’ and ‘operator’ on a permanent shift with one crew always being on duty. In addition there would be another ‘operator’ on duty to assist but on a 6 to 6 shift.
• Promotions to the role of ‘crew chief’ were generally on the basis of seniority. While the respondent sought to advertise these positions as they became available this was the subject of dispute between the union and the Respondent. In the Complainant’s case while a vacant role as crew chief became available and was advertised by the Respondent he was the next most senior employee. This position remained unfilled from December 2010 to October 2011 before eventually being offered to the Complainant who was the only applicant for the advertised role. It is noted that the Complainant operated as a Shop Steward on site at this time.
• On the 6 June 2015 the Complainant saw that a notice had been posted advertising his position to applicants. The Complainant rang his direct line manager [DLM] and was informed that he would be retired in November on reaching 65 years of age and that the Respondent were to advertise his position.
• The Complainant informed DLM that he had intended to work beyond 65 years. On the following day the Complainant spoke with HR and was again informed that he would be expected to retire in November. The Complainant protested this and referenced a colleague [C1] who was made permanent on the same years as he was and remained with the company until 67 years of age. The Complainant pointed to the statement of his terms and conditions of employment to support this.
• On the 9 June 2015 the Respondent wrote to the Complainant informing him that he would be expected to retire on his reaching 65 years of age on the 13November 2015.
• The Complainant approached his union regarding this matter and SIPTU wrote to the Respondent on the 26 June 2015 protesting to the proposed retirement of the Complainant on that date.
• SIPTU again wrote to the Respondent on the 19October 2015 regarding this matter and sought a response to the fact that the Complainant has not agreed a retirement age with the Respondent and to the fact that other employee had remained beyond the stated retirement age.
• The Respondent replied to the correspondence on the 21October 2015 and outlined its position that it was an implied term on the basis of custom and practice that employees would retire at 65 years. This reply did not address the fact that other employees had remained beyond 65 years of age.
• A meeting between the Complainant, the Respondent and the parties’ representatives was arranged for the 4 November 2015. At this meeting the Respondent reiterated its position as per its previous correspondence.
• On the 12 November 2015 the Respondent wrote to the Complainant informing him that his employment was to be terminated the following day and dealt with his closing payslip and tax details.
• The Complainant subsequently submitted the instant complaint to the Workplace Relations Commission.
• The Complainant is aware of a number of employees who retired during the currency of his employment. To the best of his knowledge: 2 retired at 63 years, 1 retired at 64 years, 3 retired at 65 years, 2 retired at 67 years, 1 still engaged with company at 70 years.
• In respect of the employees who were still engaged with the Respondent after 65 years the claimant identifies these as:
• Employee 1: The Complainant recalls Employee 1 as performing a management role and still working with the respondent at 67 years of age. Employee 1 became sick at that point and then ceased to be employed.
• Employee 2: The Complainant recalls this employee as still working with the respondent beyond 65 years of age. He recalls this individual still being engaged by the Respondent at the time of the Complainants retirement and believes him to be approximately 70 years at that point.
• Employee 3: The referenced statement of the Complainants terms and conditions of employment is addressed to Employee 3 as well as the Complainant. This was at a point when both were appointed permanent employees. Employee 3 reached 65 years in 2005 and continued to work with the Respondent until September 2007 at which time he voluntarily retired. The Complainant references Employee 3 as a comparator in this regard having been made permanent in conjunction with the Complainant but did not retire until he was 67 years of age.
• The Complainant submits that a normal retirement age has not been established in this employment. There is no contractual provision in respect of a normal retirement age nor is it provided for in any associated documentation or policy. The Complainant disputes that there is ‘an implied and well established term that the contractual retirement age is 65’.
• The Complainant submits that there were no objective or reasonable grounds by which the Respondent might justify the termination of his employment and the termination of the Complainant was in breach of the protections provided in the Employment Equality Acts.

Summary of Respondent’s Case: 

• The Complainant commenced employment with the Respondent on the 8 May 1995, initially employed in a temporary or relief capacity fulfilling irregular hours. The Complainant was made permanent in 2003. This is the normal entry practice for the Respondent.
• In October 2011, the Complainant was promoted to the position of ‘Crew Chief’. The Complainant’s promotion to Crew Chief was carried out in line with company policy and is matter wholly unconnected to this claim.
• The Respondent stated they always had a good working relationship with the Complainant in his role as Shop Steward.
• The Respondent stated that the Complainant retired on 13 November 2015 in line with the Company’s established normal retirement age which is in line with the Respondent’s occupational pension scheme, which the Complainant and his Union were fully aware of.
• The Respondent did not advertise the position of the Complainant prior to putting him on notice of his retirement. On 4 June 2015, the Respondent advertised the position of Relief Refueller.
• On 9 June 2015, the HR Department wrote to the Complainant regarding his impending retirement and advised him of the opportunity to avail of pre-retirement support including training courses.
• The position of Crew Chief was not advertised until the 11 June 2015.
• On the 26 June 2015 SIPTU wrote to the Respondent regarding the Complainant’s retirement. On the 8 July 2015, the Respondent wrote SIPTU again re-affirming the Company’s normal retirement age was 65, which had been established through custom and practice and of which the Complainant was aware. On 22 July 2015, SIPTU responded to the Respondent’s letter of 8 July 2015. On 6 August 2015, the Respondent wrote to SIPTU again setting out the position of the normal retirement age and some of the reasons for same.
• On 19 October 2015, SIPTU wrote to the Respondent. On 22 October 2015, the HR Department wrote to the Complainant again reminding of him the pre-retirement courses available to him.
• On 4 November 2015, the Respondent met with the Complainant and his union representative during which the Company addressed and answered the questions.
• On 12 November 2015, the Respondent wrote to Complainant confirming his retirement.
• The Complainant retired on the 13 November 2015, following a local retirement gathering and a presentation from the Company and his final papers were issued on 20 November 2015.
• It is the position of the Respondent that the company compulsory retirement age of 65 years is permitted by both Section 34(4) and 37(2) of the Employment Equality Acts.
• The Respondent stated that the normal retirement age of 65 has been well established in the Respondent Company and is an implied term of employment. The Company has an occupational pension in place which specifically provides for a normal retirement date of 65 years. In 1996, SIPTU as the Complainant’s representative body lodged an Industrial Relations claim before the Labour Court seeking a permanent position for the Complainant and his inclusion in the company pension scheme. In line with Labour Court recommendation the Complainant was offered the opportunity to join the Company pension scheme, which he subsequently declined to join.
• It was reasonably known to the Complainant, as a shop steward and as a party to the claim that the Company retirement age as stipulated in the pension scheme was 65 years. In his role as shop steward and safety representative, a role occupied for a significant proportion of his career, the Complainant was well aware through ongoing dealings with management that the established retirement age was 65 years as he had seen other SIPTU members retire at this age and through the sharing of information with the Complainant about the provision of pension arrangements in his capacity as a union representative. More specifically, in December 2000, the Complainant was present at a Right Commissioner hearing. In these proceedings, a colleague sought the same benefits as his colleagues including access to the Company pension scheme, again the terms of the pension were relayed as part of that hearing. Again in 2004, the Complainant was involved in discussions under the auspices of the former Labour Relations Commission during which SIPTU again sought access to Company pension scheme for temporary workers. Details of the scheme were provided during this process and a copy of the scheme was provided to SIPTU.
• The base at Shannon has a small number of staff, on average 17 people are employed at the site, 14 of which are engaged in refuelling activities. Over the last decade, 8 employees retired at the normal retirement age of 65 years and in once instance an employee retired a few weeks short of his 65^th birthday as evidenced in the table below.

• The Respondent stated that the Complainant does not identity the individuals who retired during the currency of his employment therefore is not in a position to respond.
• Employee 1 [referenced by the Complainant] did retire at 65 years of age and was not engaged in an employment relationship after this date. It is understood that Employee 1 may have been available for handover queries that may have arisen immediately after his retirement in order to support to his subsequent successor but it was not in an employment capacity and there was no payment or retention bonus paid.
• Employee 2 [referenced by the Complainant] retired at the end of 2010, weeks short of his 65^th birthday, with his successor in place from November 2010. Separately in 2010, the Respondent was successful in a tender. In September 2012, 18 months after his retirement, Employee 2 was retained as a consultant by the Respondent on the specific request of the tender company owing to his unique experience and expertise. The tender company are invoiced directly for the time worked. Employee 2 is now contractor and not an employee of the Respondent.
• Employee 3 [referenced by the Complainant] retired from his position 65^th birthday. However, owing to operational necessity brought about by an usually high turnover period, other extraordinary circumstances and the long term absence of some employees Employee 3 was subsequently offered two fixed term contracts to provide relief work. These were specific separate contracts. Employee 3 only provided minimal relief cover. This arrangement was objectively justified an occurred over a decade ago and has not occurred since.
• The Respondent stated that the Complainant could not have had any legitimate expectation of working beyond his date of retirement as evidenced from the above.
• The Respondent referred to case law in the support of its case. In the Equality Tribunal case of Paul Doyle v ESB, DEC-E2012-086, the Tribunal accepted the custom and practice of compulsorily retiring employees, notwithstanding the absence of any written policy in this area. The European Court of Justice (ECJ) in the case of Fuchs & Another v Land Hessen, C-160/10 did not regard permitting someone to work beyond the compulsory retirement age of 65 in certain circumstances as undermining a compulsory retirement age of 65. In Georgiev v Tehnicheski Universitet,C-250/09 the ECJ did not find that permitting someone to work beyond the compulsory retirement age on a series of fixed term contracts after age 65 as undermining a compulsory retirement age of 65.
• The Respondent has established objective justification for their retirement age of 65 years including but not limited to the following:
• To protect the health and safety of Air Craft Refuellers and Crew Chiefs. There are significant hazards to the health and safety of aircraft refuellers, namely heavily physical workloads, shift work and noisy environments which have a greater impact on older workers which reasonably and justifiably require a retirement age of 65. The Respondent refers to a report conducted for TOP Oil which carried out an extensive review of the refueller’s role which clearly establishes the requirement for the established retirement age. As crew chief, a significant portion of the Complainants role involved the same duties as a refueller. In the 14 page report, it takes account of research and information on the hazards and risks associated with the refuelling of aircraft at Shannon Airport, in particular to those risks relating to older workers. It is the position of the Respondent that the possession of a high physical capacity is a genuine and determining occupational requirement for the role within the meaning of Section 37(2).
• Workforce and succession planning and promotion and inter-generational fairness also requires an established and enforced normal retirement age. As accepted in the Complainant’s own submission, many relief workers are not guaranteed regular hours often acting in a relief capacity for long periods of time waiting to occupy permanent roles with guaranteed hours. This can only be achieved through the application of a normal retirement age. The Respondent is required to retain a grade of relief staff who work variable hours as a consequence of volume volatility. This is the recruitment route for all refuelling staff and these relief staff, can only progress into guaranteed hours on the vacating of positions through resignation and retirement of colleagues. In the case of the Complainant, he moved to a guaranteed hour’s position in 2003 and subsequently appointed to a promoted position on the back of another colleague retiring in 2011. The Complainant would not have been in the position to avail of such opportunities had the Respondent not operated a normal and established retirement age. In addition, in order to allow permanent refuellers to progress into supervisory / crew chief roles and increase their earning potential it is necessary to have an established retirement age. The Complainant benefitted from this policy when he was promoted to Crew Chief. The established retirement age also provides opportunities for younger people, the majority of the recruitment into the relief roles in the last 10 years have resulted from retirements.
• In the case of Donnellan v The Minister for Justice, Equality and Law Reform, [2008] IEHC 467 the High Court dismissed the claim of Assistant Commissioner Donnellan that the retirement age of 60 for his rank was discriminatory. It was found that the State had satisfied the objective justification including the provision that the measures taken were appropriate.
• The Respondent’s actions therefore fall under Section 34(4) of the Act. The Respondent has not breached the Act. The Respondent has clearly demonstrated that the difference of treatment on the grounds of age is justified as a proportionate means to achieve a legitimate social policy objective related to employment policy.
• It is the position of the Respondent that the company compulsory retirement age of 65 years is permitted by both Section 34(4) and 37(2) of the Employment Equality Acts. The Respondent has clearly set out three clear objective grounds to meet the requirements of Section 34 (4) of the Act with the necessary supporting case law.
• The Respondent is of the position that the Complainant was retired in line with its normal retirement age which was lawful within the provisions of Act and the claim should fail.

Findings and Conclusions:

In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of the investigation as well as the evidence presented at the hearing.

The Law Applicable

Section 6 (1) of the Employment Equality Act, 1998 provides:

“For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”) one person is treated less favorably than another is, has been or would be treated.”

Section 8 (1) of the Act provides:

“In relation to-

(a)   Access to employment

(b)   Conditions of employment

(c)    Training or experience for or in relation to employment

(d)   Promotion or re-grading, or

(e)    Classification of posts,

an employer shall not discriminate against an employee or prospective employee….”

Section 34(4) of the Employment Equality Acts 1998 and 2004 (the Act) provides for certain savings and exceptions relating to the family, age and disability grounds. Subsection (4) of that Section provides:

(4) Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees.

Subsection (3) deals with occupational benefit schemes and is of no relevance to the issues arising in this case.

The Act gave effect in domestic law to Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (the Directive). Recital 14, 25 and Articles 2 (5), 4(1) and 6 (1) of the Directive are of particular relevance to the instant case. Recital 14 provides:

“This Directive shall be without prejudice to national provisions laying down retirement ages.”

Recital 25 provides:

The prohibition of age discrimination is an essential part of meeting the aims set out in the Employment Guidelines and encouraging diversity in the workforce. However, differences in treatment in connection with age may be justified under certain circumstances and therefore require specific provisions which may vary in accordance with the situation in Member States. It is therefore essential to distinguish between differences in treatment which are justified, in particular by legitimate employment policy, labour market and vocational training objectives, and discrimination which must be prohibited.

Article 4(1) of the Directive provides as follows

"Notwithstanding Article 2(1) and 2(2), Member States may provide that a difference in treatment which is based on a characteristic referred to in Article 1 shall not constitute discrimination where, by nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate."

Article 6 (1) of the Directive provides:

Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.

Section 85A of the Act 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 can rely on in asserting that he suffered discriminatory treatment. It is only when a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.

I find that the Complainant has established a prima facie case of discrimination on the grounds of age which falls to the Respondent to rebut as he was retired due to age grounds.

Issues for Consideration by the Court

Existence Of A Contractual Retirement Age

The Complainant argued that his contract of employment did not include a retirement age. While it is accepted that the contract did not contain a mandatory retirement clause, it is submitted that such a clause should be implied as it has been the accepted custom and practice of the Respondent.

Section 34(4) of the Act, prima facie, allows the Respondent to fix a retirement age without contravening the prohibition of discrimination on grounds of age. The jurisprudence of the CJEU on the circumstances in which compulsory retirement is saved by Article 6 of the Directive is relevant only if the Adjudicator finds that a retirement age was in fact fixed by the Respondent and that the retirement age applied to the Complainant.

In Earagail Eisc Teoranta v Richard Lett [EDA1513] the Court held that as a matter of general principle, a termination of employment by way of retirement should be distinguished from a dismissal on grounds of age. A retirement occurs where the employment comes to an end pursuant to a condition of employment which limits an employee’s tenure to the point at which they attain a specified age. It held that a term of employment regarding a retirement age, within the provision of Section 34 (4) of the Act, can be provided in an employee’s conditions of employment either expressly or by implication, or it can be provided by incorporation where some other document or instrument, of which the employee had notice, can be read in conjunction with the formal contract of employment. The Court further accepts that an employer’s employment policy in relation to retirement can take effect as a contractual condition of employment which is, prima facie, protected by Section 34(4) of the Act. However, in the Adjudicator’s view that could only arise where the policy is made known in such a manner that the employees to whom it applies either knew, or ought to have known, of its existence.

On that point the judgment handed down by Hedigan J in McCarthy v HSE [2010] 21 ELR 165 is instructive. In that case a public servant sought to challenge a decision of the HSE requiring her to retire at age 65. The HSE, in common with all public sector employments, maintained an employment policy requiring employees to retire at age 65, in line with certain statutory provisions. Ms McCarthy claimed that the policy did not apply to her because she had never been informed that she would be required to retire at that age and no such term was included in her contract of employment. It is noteworthy that rather than relying on the existence of the policy, per se, the approach taken by the Court was to consider if the employer’s policy on retirement took effect as an implied term in the applicant’s contract of employment. Having reviewed the evidence and the submissions made by the parties Hedigan J said:

“In addressing the substantive issues raised, the crux of the application lies in whether the retirement age of 65 could be viewed as having been implied into the contract as submitted by the respondent. Two alternative approaches were suggested utilising the “officious bystander test” on the one hand and implication by custom on the other. It is my opinion that in the circumstances of the case, the former provides a more suitable formula to determine whether such a term has been implied, although there is necessarily a large degree of overlap.

The court is of the opinion that such a term should indeed be implied into the applicant's conditions of employment. The applicant is a highly intelligent woman who is legally qualified. It is difficult to accept that she had no knowledge of the retirement age applicable in that part of the public service in which she worked. Furthermore, irrespective of any actual knowledge of this fact, I would consider the dicta of Maguire P. in O'Reilly that anyone concerned “should have known of it or could easily have become aware of it” to be particularly apt in this case. Moreover in addition to the broad awareness of the retirement age among most working adults, the applicant may be deemed as “on notice” that there was an applicable retirement age by virtue of the superannuation scheme. The superannuation scheme, of which she was a member, made reference to the existence of a retirement age, and more specifically, a cut-off for contributions at age 65. I therefore find that such a term can be implied into the terms and conditions of employment.”

Again in Shirlaw v Southern Foundaries Ltd [1939] 2 K.B. 206, the Court held that a term as to retirement age may be implied in the contract by application of the so called “officious bystander” test. Here the test was set out in the following terms:

“Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying that if, while the parties were making the bargain, an officious bystander were to suggest some express provision for it in the agreement they would testily suppress him with a comment ‘Oh of course’.”

A term can also be implied in the alternative, and somewhat overlapping, ‘custom and practice’ test adopted in this jurisdiction by Maguire P in O'Reilly v Irish Press[1937] 71 I.L.T.R 194. Here it was held that the practice must be:

“…so notorious, well-known and acquiesced in that in the absence of agreement in writing it is to be taken as one of the terms of the contract between the parties…it is necessary in order to establish a custom of the kind claimed that it be shown that it was so generally known that anyone concerned should have known of it or easily become aware of it.” 

The Respondent states that the Complainant should and did know the retirement age and refer to his right to join the pension scheme which he subsequently declined to join. In addition, the Respondent refers to a previous Rights Commissioner Hearing in 2000, approximately 17 years ago and again in 2004, approximately 13 years ago, in which the Complainant was in attendance as shop steward where colleagues were seeking access to the pension scheme. The Adjudicator cannot accept that the Complainant had knowledge of a retirement age of 65 years based on his declining of joining a Company pension scheme and his attendance at a Rights Commissioner hearings over 17 and 13 years prior.

The Respondent had ample opportunity to inform the Complainant of a requirement that he retire at age 65 since his commencement date 8 May 1995. No evidence was adduced of the Complainant having been so informed or having been provided with any document from which such a requirement could have been discerned. In fact a letter of acceptance of new conditions for permanent employees to SIPUT on 21 October 2003 states ‘as per [Respondents] scheme in current operation’ without outlining the same. The Complainant was not a member of the pension scheme and it was not explicitly stated that the pension age was the same as the retirement age outside of the pension scheme document. There was no express term in his conditions of employment requiring him to retire at age 65 years and, in the Adjudicator’s opinion, no such term can be regarded as having been implied or incorporated on any of the accepted tests. Nor was there any engagement with the Complainant prior to his positons being advertised to replace this vacancy.

The Respondent has provided reasons within their submission such as health and safety, workforce and succession planning, and dignity in the workplace. The justifiable reasons are as a result of a report conducted by the Health, Safety and Environmental Manager within the Company in July 2016. This report was completed after the Complainants retirement. At no point in written correspondence provided had the Respondent explained this reason for his retirement in advance of the same as a reasonable and justifiable requirement for a retirement age of 65 to the Complainant. The Adjudicator finds that the Respondent seeks to rely on a report that was completed after the Complainant was forced to retire and as a means of supporting a claim of age discrimination should it arise. The Complainant stated in his oral evidence that re requested a one year extension to his employment during discussions with his employer prior to his termination but this was refused.

In these circumstances the Adjudicator must hold that the Respondent had not fixed a retirement age in respect of the Complainant and that he was dismissed because of his age. Therefore, the Adjudicator finds that the Respondent cannot avail of Section 34(4) of the Act. In such circumstances it is not necessary for the Adjudicator to consider Respondent’s arguments of objective justification for a retirement age of 65 years.

Decision:

Section 41 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 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

For the reasons set out above, the Adjudicator finds that the Complainant herein was dismissed by the Respondent by reason of his age, and that this dismissal constituted an act of discrimination within the meaning of Section 6(2)(f) of the Act. The Adjudicator orders the Respondent to pay the Complainant the sum of €5,000 for the effects of the Act of discrimination.

Dated:   07 July 2017

Workplace Relations Commission Adjudication Officer: Caroline McEnery