ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000379

Complaint for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00000547-001	30/10/2015
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00000547-002	30/10/2015

Venue: Lansdowne House, Ballsbridge, Dublin 4.

Dates of Adjudication Hearings: 03/06/2016 & 28/02/2017

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 79 of the Employment Equality Act, 1998 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Attendance at Hearing:

By	Complainant	Respondent
Parties	Hotel Manager	Hotellier
Representative	Helen Whately BL, on 3rd June 2016, Lars Asmussen BL 28th February 2017, Sean Ormonde Sol,	Michael McNamee BL, Aidan McGrath of DAS Group, Tracey Farren, Al Ryan
Witnesses

Background

The Complainant was employed as a Manager from 1^st June 2013 to 5^th August 2016. He was paid €673.14 per week. He has claimed that he was discriminated against on grounds of age. He has sought compensation.

Unfair Dismissals Acts CA 0547 -001

This complaint was withdrawn

2) Employment Equality Act CA 0547 -002

Complainant’s Submission and Presentation:

On 28^th November 2013 the Respondent extended his contract with a fixed term contract which excluded the operation of the Unfair Dismissals Act from the termination of the contract. In April 2014 he applied for the post of Operations Manager. He was unsuccessful but was informed by a colleague, not management that he did not get the job. He was never given the reason why he did not get the job. The Respondent purported to extend the fixed term contract from 21^st May 2014 for 12 months. In November 2014 an issue arose concerning a function in the hotel that gave rise to a customer complaint. Following an investigation he was called to a disciplinary hearing for 24^th Nov. 2014. No other staff member was subjected to such a hearing. He believed that this was a bias against him due to his age. He went out sick on 26^th November 2014 and had been providing certificates since. The Respondent wrote to him concerning the certification, refusing them. His contract expired on 1^st June 2015 and his employment was not terminated at that time. On 10^th July 2015 the Respondent wrote to him following receipt of a solicitor’s letter and stated that he has not been dismissed. On 27^th July 2015 he received a letter from the Respondent advising him that it was company policy that employees retire upon reaching 65 years of age. His employment ceased on 5^th August 2015 on the grounds that he had reached his 65^th birthday. He does not believe it is company policy to retire at 65, nor was he informed of such a policy. The contract states, the normal retirement age for company’s employees is 65 subject to alternative agreement being reached by retiring employee and the Company.” Therefore there is no concrete rule in relation to retirement. This mandatory retirement cannot be objectively justified. He was capable of doing his job beyond the age of 65. He then wrote to the Respondent on 24^th August 2015 requesting his P45 as his employment had ceased on 5^th August.

It is his position that he was dismissed as a result of his age. The Respondent did not compulsorily retire anyone over the age of 65. Sec 8 of the Employment Equality Act 1998 outlines the prohibition on discrimination on grounds of age. The Respondent was not pursuing a legitimate aim. It is clear that the Respondent compulsorily retired him because they wer having a dispute with him and also he was on sick leave. He cited Nolan v Quality Hotel Oranmore DEC-E2012 -110, Furlong v Applus Car Testing Service Ltd DEC –E2013-084, McPhilips v ISS Facility Services DEC -2013 -042 in support of his position. The Complainant’s employment was terminated under a mandatory retirement age so there is prima facie evidence of discrimination. The burden then shifts to the Respondent to attempt to justify this discrimination. In the Furlong v Applus Car Testing Service Ltd DEC –E2013-084 case applied to the effect that the Respondent must show detailed evidence to support any assertion of an objective justification.

Respondent’s Submission and Presentation:

The Complainant’s contract contained a specific reference to retirement age and the retirement policy of the company. The Complainant was on sick leave when his contract terminated on 5^th August 2015 by reason of retirement. The Respondent wrote to him on 27^th July 2015 advising him that his contract would terminate on his 65^th birthday in accordance with company policy. The same letter also invited him to apply to remain in employment. So the Respondent acted precisely in accordance with its policy, both in relation to its policy on retirement and in relation to employment beyond retirement on terms to be agreed. He was actively represented at this time by his solicitor. The Respondent had expected engagement with the Complainant regarding the letter of 27thy. This could have addressed his grievance and the issue of his retirement. No response was received. The Respondent rejects outright that the termination by reason of retirement was an easy way of dispatching the Complainant without affording him fair procedures. It is their position that the offer to remain in employment is inconsistent with the allegation that they wanted to remove him. The Respondent’s letters of 8^th January and 8^th April 2015 to the Complainant’s solicitors clearly demonstrate the Respondent’s desire to engage with the Complainant. If he had engaged with the Respondent instead of requesting his P45 then he would have had a right apply to remain in employment or seek an extension of time to do so. Had he done so the Respondent would have been obliged to address his grievance. The Respondent has demonstrated its willingness to engage with the Complainant throughout the relevant period from November 2014 to July 2015. The Complainant’s failure to take all reasonable steps to protect his rights is not attributable to any discrimination, bad faith or other act or default on the part of the Respondent. The Respondent’s contention is that any such loss sustained by the Complainant arises from his own decisions taken or not taken at a time when he was professionally represented, in circumstances where the Respondent is not guilty of the alleged or any discrimination.

If the dismissal is based upon a mandatory retirement policy then it has to be objectively and reasonably justified. The rationale of the retirement policy which is generally applicable is motivated by a desire to generate staff rotation and to encourage recruitment of new fulltime staff. The policy has been consistently applied throughout its undertakings and examples of individuals working beyond their retirement date are attributable to this individuals taking up the offer to remain in employment such as was made to the Complainant. It was the Complainant’s failure to engage with the Respondent in any way following an invitation to engage on 27^th July 2015 which has led to this situation. It is his failure rather than any alleged discrimination which has prejudiced his position.

If it the dismissal is held to be attributable wholly to the Respondent’s retirement policy that said policy is objectively and reasonably justified and is proportionate and necessary. This complaint is rejected.

Findings

I note the contract of employment states, “Retirement Age; The normal retirement age for the company’s employees is 65 subjective to alternative agreement being reached by the retiring employee and the company”.

I note that it is company policy and practice to invite employees reaching the normal retirement age to make an application to remain in employment should they wish to do so.

I note that by letter dated 27^th July 2015 the Respondent company wrote to the Complainant “As you are aware the company policy is that employees retire upon reaching 65 years of age. We note that you will be 65 years on the 5^th August next. In line with the company policy we invite employees who are reaching retirement age to make an application to remain in employment should they wish to do so.

I note that the letter then goes on to say “however as with all employees you must be certified fit for work and in a position to carry out your duties.”

I note that at this time the Complainant was out on sick leave.

I note that the Complainant did not respond to this letter until 24^th August 2015 when he requested his P45.

I note that he only refers to the retirement on grounds of his age. He does not refer to the invitation to make an application to remain in employment.

I note that the Respondent only gave a few days for him to respond and that he was out on sick leave at the time.

I note that he had corresponded with the HR Manager and so would have known her e-mail address but chose not to correspond with her.

I note that he neither sought more time to consider the invitation, request to wait until he was fit to return to work or to request an extension to the employment.

I note that he was aware that he faced an investigation into a customer complaint had he returned to work.

I find that the Respondent adhered to its policy by advising him in writing of his option to request to extend his employment.

I find that the Complainant failed to reply to that letter until 24^th August and made no reference to the invitation.

I find that the Complainant had been in consultation with his legal advisers and so had that benefit if he so choose to avail of it.

I find that the Complainant on the one hand failed to respond to the letter of invitation to extend the employment and then sought to accuse the Respondent of breaching the law by implementation a retirement on age grounds.

I find that the Complainant was inconsistent to say the least.

I find that the Respondent gave the Complainant an opportunity to request an extension to his employment and failed to avail of that option.

I find that the Respondent was within its rights to then implement its policy of retirement at 65 as per its retirement policy.

Decision:

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 the Act.

For the above stated reasons I have decided that the Complainant has not established a prima facie case of discrimination on grounds of age and so this complaint should fail.

Eugene Hanly

Adjudication Officer

Dated: 8^th May 2017