ADJ-00004560

ADJUDICATION OFFICER DECISION/RECOMMENDATION 

Adjudication Reference: ADJ-00004560

Parties: 

Complaint:

Date of Adjudication Hearing: 11/04/2017

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015, 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. 

Background:

Preliminary Point - Time limit

Respondent

This complaint has been referred to the Commission outside the 6 month’ time limit as set down in the legislation. The Complainant commenced employment in October 2004 and retried on 15^th March 2016. He was written to on 29^th January 2016 informing him that he would be retiring on 15^th March 2016. On 4^th February 2016 his solicitor wrote to the Respondent alleging that the retirement amounted to age discrimination in breach of the Employment Equality Acts. However no complaint was received by the Commission until 22^nd August 2016. To refer his case within 6 months he would need to have registered his complaint no later than 28^th July 2016, i.e. within 6 months of the Respondents letter of January 29^th 2016.

The alleged act of discrimination occurred in or around 29^th January 2016 when he was informed of the decision that he would be retiring from the company. They cited Eargail Eisc Teo v Richard Lett (EDA 1513) where the Labour Court distinguished between dismissal on grounds of age and dismissal by way of retirement. This case recognised the fact where a retirement age exists in an employment that the worker knows well in advance when they are due to leave that employment. He was issued with an annual benefit statement which clearly states his retirement age and the date when that retirement takes place. In the Labour Court case Calor Teo v Michael McCarthy EDA 089 the issue of when the alleged discriminatory act occurred in a retirement case was explored. In that case the employee was informed on October that he would be retiring on 1^st January the following year. The Court concluded that the alleged discriminatory act occurred at the time the employee was informed of the decision to terminate his employment by way of retirement and not the date the termination occurred. It stated “that decision crystallised on 13^th October when the Respondent in effect gave the Complainant notice that his employment would terminate by retirement on X date”.

Under this Act the time limit may be extended to 12 months where “reasonable cause” exists to justify the delay in referring the complaint. The Complainant was aware of time limits under employment legislation. In 2006 he referred a discriminatory complaint under the Protection of Employees (Fixed Term Work) Act and referred to the form being referred by fax to comply with the time limit for the submission of a complaint. His solicitor had written to the Respondent on 4^th February alleging discrimination on grounds of age. There was nothing to prevent the lodging of the complaint at that time. He has been represented by his current solicitor since 2014 regarding a personal injuries claim. Within 7 days of the Respondent issuing the letter of 29^th January 2016 confirming the date of his retirement his solicitor wrote on 4^th February “we notify you that it is our client’s intention to file a claim with the Workplace Relations Commission…” No complaint was presented to the Commission until 22^nd August 2016. This complaint is out of time and the Adjudication Officer should dismiss it.

In response to the supplementary submission made by the Complainant they reaffirmed that the Calor Teo v Michael McCarthy EDA 089 case was identical to this case. The Complainant is alleging that the discriminatory act occurred on the day of his retirement and relied upon the case Maynooth Mission to China t/a Columbian Missionaries v Nuala McGuinness EDA 1521. It is not stated anywhere in this case that the Complainant was written to confirming the date she would be leaving the organisation. The time limit was based on the date she retired from the company. So that case is not identical to this one. The Complainant also referred to an Equality Officer’s decision BM Cooke v UCD (DEC –E2010-004). This concerned an appeal before an internal appeal was concluded. The Complainant had referred the complaint before the outcome of the appeal in order to be prudent to do so in order to be within the time limits. It is the Respondent’s position that this case supports their position. The reference to the Unfair Dismissals Act is not relevant to this case.

Complainant

The Respondent wrote to the Complainant on 29^th January 2016 notifying him that he will have to retire on reaching his 65^th birthday. That letter amounts to an intention to discriminate, so no discrimination would occur until 15^th March when he reached his 65^th birthday. His pension was not paid until April 2016. Sec 77 (1) of the Employment Equality Act lists the discrimination on grounds of age. Sec 77 (5) refers to the “occurrence “of the discriminatory act. In the A Cox Employment Law Yearbook 2016 it refers to the occurrence or most recent occurrence. The Complainant cited the Maynooth Mission to China case in support. The Respondent imposed a unilateral decision to retire the Complainant at 65 years. This condition is not in the contract of employment. It is contained in the pension statement. There was no discrimination until 15^th March when the Complainant had to retire at his 65^th birthday, prior to that it was an intention only.

The contracts received by the Complainant are all silent on retirement age. The pension statement cannot imply a retirement at 65. The Harbours Act 1996 imposed a retirement at 65 condition. The Merchant Shipping Act 2010 removed the retirement at age 60 and introduced a medical assessment.

The Complainant’s position is that the dismissal/retirement occurred on 15^th March 2016 and the filing of the complaint to the Commission on 22^nd August 2016 was well within the six month allowed. Sec 77(1)(b) of the Employment Equality Act 1998 was referred to. Under that section it was the fact of been dismissed which brought the section into play.

The case of Maynooth Mission to China v McGuinness was cited where time limits under Sec 77 (5) were expressly considered. The A Cox Employment Yearbook was also relied upon as above.

It is submitted that the approach of the Court in the Maynooth case is to be distinguished from the case of Calor Teo v McCarthy EDA089. In the Maynooth case the Court was expressly considering sub section 77(5) and the occurrence from which time would run under that subsection. The issue in the Calor case was whether or not the Complainant was entitled to seek redress before the threatened dismissal/retirement.

It is accepted that the Court held that a firm and final notice of an intention to commit a discriminatory act was sufficient to ground a complaint for redress, at least if the discriminatory act was subsequently carried out.

It should be noted that the Complainant returned the forms concerning his pension on a without prejudice basis.

Findings on the Preliminary Issue

I note that both parties made detailed verbal and written submissions on this preliminary issue.

I note that the Complainant was written to on 29^th January 2016 informing him that he would be retiring on 15^th March 2016.

I note that on 4^th February 2016 his solicitor wrote to the Respondent alleging that the retirement amounted to age discrimination in breach of the Employment Equality Act. 

I note the conflicting position of the parties. The Respondent believes that the alleged act of discrimination took place on 29^th January 2016 and the Complainant believes that the discriminatory act only took place when he had to retire at 65 on 15^th March 2016.

I note that the complaint was presented to the Commission on 22^nd August 2016 therefore the 6-month period for consideration commenced on 23^rd February 2016.

I have considered the respective positions of both parties. I am influenced by the Labour Court cases Eargail Eisc Teo v Richard Lett (EDA 1513) and Calor Teo v Michael McCarthy EDA 089 in particular.

I have decided that the date of the alleged discrimination was 29^th January 2016 when the Respondent wrote to the Complainant informing him that he would be retiring on his 65^th birthday 15^th March 2016 and I am relying upon the CalorTeo v Michael McCarthy EDA 089 case.

I am satisfied that the Complainant had the benefit of legal advice.

I note that his solicitor wrote to the Respondent on 4^th February concerning this discriminatory act and advised that they intended to refer a complaint to the Commission.

I note that they did not do so until 22^nd August 2016. Nothing was advanced that would prevent them from doing so.

Sec 77 (5) (a) of this Act states, “a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates, or as the case may be, the date of its most recent occurrence”.

Sec 6 of the Workplace Relations Act states, “Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

Therefore I find that according to Sec 6 of the Workplace Relations Act this complaint was presented to the Commission outside the time limit allowed.

I also find that there was no basis to extend the time limit as the Complainant had the benefit of legal advice throughout this time and he was familiar with time limits in employment legislation. 

Decision:

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.

I have decided that this complaint was presented to the Commission outside the time limit allowed under this Act and that I do not have jurisdiction to hear this case. 

Dated:               31 May 2017

Workplace Relations Commission Adjudication Officer: Eugene Hanly

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