Complainant

Respondent

Anonymised Parties

A Worker

A Refuse Company

Representatives

Appeared in Person

Barry Kenny, Solicitor.

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994(Withdrawn at hearing)

CA-00013032-001

09/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00013032-002

09/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000(Withdrawn at Hearing)

CA-00013032-003

09/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973(Withdrawn at Hearing)

CA-00013032-004

09/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) (Withdrawn at Hearing)

CA-00013032-005

09/08/2017

This is a claim for Discrimination on age grounds and I have exercised my discretion to anonymise the parties as the complainant is actively seeking alternative employment at this time . All other claims were withdrawn at the commencement of the hearing .

The Complainant worked for 2.5 years at the Respondent waste disposal business which had transferred ownership from another company, where the complainant had worked for 6.5 years. He worked a 39-hour week and received a net pay of 524.20 euro per week.

At the commencement of the hearing, the complainant confirmed that he wished to withdraw all complaints bar his claim under employment equality legislation. The Respondent accepted the position and the hearing proceeded on that basis.

The Complainant submitted a general outline of his complaint that he had been discriminated against by the Respondent on age grounds. He referred to a conversation which took place between the overall Plant Manager and the complainant early in 2017. He understood that he was insulted regarding how the job should be done and sought to challenge this treatment.

The Complainant submitted that he had then been omitted from a group of workers who subsequently transferred to another company when the respondent lost the contract for the business. He attributed this omission to his altercation with the Plant Manager. He believed that he had suffered because he had spoken against the treatment he received.

The Complainant submitted that he was due to retire on 8 February, 2017, but regretted that he had not been given the chance to transfer to work for the new company. He was aged 66. The Complainant contended that he had been bullied.

In addressing the Respondent Preliminary issue on statutory time limits, the complainant asked for an extension due to reasonable cause and cited that he understood that he had missed the deadline but had been waiting to discuss the case with his wife. He sought an opportunity to acknowledge that the company had been fair to him and his difficulty was solely with the Plant Manager. The Complainant confirmed that he had activated the company grievance procedure.

The Respondent disputed the claim and sought that the complaint be ruled outside the Statutory time limits.

The Respondent outlined that the complainant had been employed as a General Operative firstly with a Refuse Company in 2007, which subsequently entered receivership but maintained the complainant in continuous employment, without any changes to his terms and conditions of employment.

On July 1, 2014, the Respondent took over the business and maintained the complainant’s terms and conditions of employment.

On 8 February,2016, the Complainant attained 65 years of age and he requested a year’s extension on his employment to link in with his state retirement pension. The Complainant also undertook a Retirement course in January 2017. The extension was granted and the complainant served his last working day on 7 February 2017, attended his retirement lunch and his employment ceased.

The Respondent confirmed that the company was party to a transfer of undertakings which became operative on March 1,2017, some three week after the complainants agreed retirement date. It did not apply to him.

Preliminary Argument:

The Respondent submitted that the claim was statute barred. The Workplace Relations Act,2015 provides that the claim must be submitted within six months from the date of the alleged contravention of the legislation. The Complainant employment ceased at 23.59 hrs on 7 February, 2017 whereas the complaint form was not received until August 9,2017.

The Respondent made submissions against granting an extension of time through reasonable cause and relied on a Labour Court Case of, QFF Distribution ltd and Keith O Reilly UDD 1749, which incorporated test outlined in Cementation Skanska V Carroll DWT 0338, which sought reasons which both explain and excuse the delay and that explanation must be reasonable.

The Respondent submitted that the complainant in the case had been a Shop Steward and was not a stranger to the process or short of assistance. The Complainant was aware and accepting of his imminent retirement and the implications of that date. The Respondent was firmly opposed to extending the time in the case.

Substantive Case:

The Respondent submitted that the Complainant had not particularised his claim in terms of his claim for discrimination and the respondent was clearly in the dark.

I have considered this complaint and I have outlined the section of the Act which is relevant. Section 77(5) of the Employment Equality Acts 1998 -2015 sets out the mechanism and time lines for redress in accordance with the Acts.

(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.

( b ) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I have concluded my investigation and have found that I lack the necessary jurisdiction on which to hear the case. The claim is statute barred.

Discrimination on Age grounds