EDA1814

Background

The Claimant commenced employment with the Respondent as a marine pilot on 4^thOctober 2004 and his employment terminated on 15^thMarch 2016.

The Respondent wrote to the Claimant by letter dated 29^thJanuary 2016 advising that the Respondent had decided to retire the Claimant with effect from 15^thMarch 2016 upon his reaching the age of 65 on that date and advising him that his sick pay would continue until his retirement date. The Claimant’s legal adviser wrote to the Respondent by letter dated 4^thFebruary stating that the termination of the claimant’s employment on age grounds amounted to age discrimination and indicating that this was not acceptable to the Claimant.

The Respondent terminated the employment of the Claimant on 15^thMarch 2016 and the Claimant made a complaint to the Workplace Relations Commission alleging discrimination on the age ground on 22^ndAugust 2016.

Summary position of the Claimant

The Claimant contended that the act of discrimination giving rise to his complaint to the Workplace Relations Commission was the termination of his employment on 15^thMarch 2015. The Claimant submitted that the Adjudication officer had considered the decision of this Court inCalor Teoranta v McCarthy (EDA089)and concluded that the date of communication of the decision of the Respondent to terminate the Claimant’s employment by reason of age was to be taken as the date of the act of alleged discrimination in the within matter. The Claimant submitted that the fact that he had been advised of the decision of the Respondent on 29^thJanuary 2016 could not remove from him the capacity to complain that the termination of his employment on 15^thMarch 2016 was an act of discrimination. The Claimant submitted that he had made such a complaint on 22^ndAugust 2016 and that this complaint was made within six months of the termination of his employment on 15^thMarch 2016.

The Claimant submitted that, in the event the Court decided that the complaint made on 22^ndAugust 2016 was out of time there were reasonable grounds for any delay in submission of that complaint insofar as it was reasonable for the Claimant’s legal advisers to interpret the application of the law and relevant case law so as to mean that a complaint as regards the termination of the employment on 15^thMarch 2016 could constitute grounds for a complaint of discrimination. The Claimant submitted that, in accordance with the act at section 77(5)(b), an extension of the time for reasonable cause for the making of his complaint should be directed.

Position of the Respondent

The Respondent submitted that the alleged act of discrimination in the within matter is the communication to the Claimant, by letter dated 29^thJanuary 2016, of a decision of the Respondent to terminate the employment of the Claimant on 15^thMarch 2016. The Respondent submitted that any complaint of discrimination arising from that act would have to be made to the Workplace Relations Commission by 28^thJuly 2016.

The Respondent submitted that the decision of this Court inCalor Teoranta and McCarthy (EDA089)is authority for the proposition that where the Claimant is notified of a decision by the Respondent to retire the Claimant, it is the date of that notification rather than the date of termination which must be taken as the date of any alleged act of discrimination

The Respondent submitted that there were no reasonable grounds for the Claimant’s failure to make a complaint to the Workplace Relations Commission within the period allowed by the act.

The Law

The Act at Section 77(5)(a) provides as follows

• 77(5) (a) Subject to paragraph (b) , 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.

The facts of this matter are not in dispute. Against the background of those undisputed facts the first matter to be decided by the Court is whether the alleged act of discrimination occurred on 29^thJanuary 2016 or whether that alleged act occurred on 15^thMarch 2016. It is only if the Court finds that the alleged act of discrimination occurred on 29^thJanuary 2016 does it become necessary for the Court to consider the Claimant’s application for an extension of time for the making of a complaint under the Act for reasonable cause.

The Respondent submits that this court’s decision in the case ofCalor Teoranta and Michael McCarthy (EDA089)is authority for the proposition that the date of communication of the Respondent’s decision to dismiss is the date of the act of alleged discrimination and should be taken to be so in the within matter rather than the date of dismissal itself. This Court’s decision in EDA 089 can, however, be distinguished from the within matter. The issue before the Court in that case was whether, in advance of dismissal, a valid complaint of discrimination could be made notwithstanding the fact that the dismissal had not in fact yet taken place. This Court in that decision found

• It was submitted on behalf of the Respondent that the complaint herein was not properly before the Equality Tribunal and is not now properly before the Court. In support of this submission it was pointed out that the complaint was lodged with the Equality Tribunal on 23rd December, 2004, whereas the Complainant’s employment did not terminate until 1st January, 2005. Thus, it was submitted, the act alleged to constitute discrimination had not occurred at the time the complaint was lodged. On that basis the Respondent contended that the complaint was invalid.

  The Court cannot accept that submission. The Respondent, by letter dated 13th October, 2004 told the Complainant that he was being retired on reaching his 60th birthday on 1st January, 2005. The act alleged to constitute the discrimination of which the Complainant complained was the decision of the Respondent to require him to retire at age 60. That decision crystallised on 13th October when the Respondent, in effect, gave the Complainant notice that his employment would terminate by retirement on 1st January, 2005. Hence, when the Complainant lodged his complaint on 23rd December, 2004, the act complained of had occurred. Moreover, the Court is not aware of any rule of law or logic that could render invalid a complaint made under the Act in response to a firm and final notice by an employer of an intention to commit a discriminatory act which was subsequently carried into effect.

  For these reasons it is clear that the matter is properly before the Court.

The Claimant submits that while the Respondent’s decision to retire the Claimant may have been an act of discrimination and while the communication of that decision may also have been an act of discrimination, it is the termination of the Claimant’s employment on 15^thMarch 2016 which is the contended for act of discrimination complained of to the Workplace Relations Commission on 22^ndAugust 2016.

The Court cannot accept that, because the Respondent on 29^thJanuary 2016 communicated an intention to retire the Claimant, the Claimant is precluded from contending that the termination of his employment which took place on 15^thMarch 2016 is an act of alleged discrimination.

The Claimant complained that his compulsory retirement on 15^thMarch 2016 constituted discrimination on the age ground in that the operative reason for his forced retirement was his age. That complaint was made on 22^ndAugust 2016.

The Court finds that the Claimant is not precluded from making a complaint of discrimination arising from the termination of his employment on 15^thMarch 2016 and the fact that the Respondent communicated that decision to the Claimant by letter dated 29^thJanuary 2016 did not limit the Claimant’s capacity to make that complaint. The cause of action identified by the Claimant in his complaint to the Workplace Relations Commission was identified as the termination of his employment by reason of age. That event occurred on 15^thMarch 2016.

In all of the circumstances the Court finds that the Claimant’s complaint to the Workplace Relations Commission made on 22^ndAugust 2016 as regards an act of discrimination alleged to have taken place on 15^thMarch 2016 is in time by reference to the Act at section 77(5)(a). In light of that finding the Court is not required to consider the application of the Claimant made under the Act at section 77(5)(b).

Determination

The decision of the adjudication officer is set aside and, in accordance with the Act at section 84(4) the matter is referred back to the Workplace Relations Commission for a new investigation and decision under Section 79 of the Act.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
22 February 2018______________________
MNChairman



NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.