ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00006972

Parties:

Complaints:

Complaint seeking adjudication by the Workplace                 CA-00010422-001                     26/03/2017

Relations Commission under Section 77 of the

Employment Equality Act, 1998

Date of Adjudication Hearing: 17/01/2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

PRELIMINARY ISSUES.

Complaint submitted to the WRC on 2nd February 2017. Time Limits – Section 77. CA00009506 -001

This complaint relates to the complaint submitted to the WRC on 2nd February 2017 in relation to the termination of the Full-Time Contract of Employment which terminated on 8th March 2016 when the Complainant reached the age of 65 years. The Complainant confirmed at the Hearing that she did have a pre-retirement meeting with the Respondent in February 2016. This is in accordance with the provisions of her Contract of Employment (Staff Handbook).

Section 77 (5) of the Act provides – “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”. Section 77 (5)(b) does provide for an extension of time not exceeding 12 months due to “reasonable cause”. The Complainant sought an extension of time. The Complainant explained she and a family member had gone abroad in April 2016 where the family member became ill. They both returned to Ireland in June 2016 where the family member was hospitalised for some 18 months. This was a stressful time. She sought legal advice in December 2016. Her complaint was submitted on 2nd February 2017.

Following discussion at the Hearing the Complainant confirmed that she had in fact commenced working with the Respondent again, on a Contract for Services, in September 2016. There was no explanation from the Complainant or her Legal Representatives to explain the delay from September 2016 to February 2017 in submitting her complaint. The decision of the Labour Court in Cementation Skanska v Carroll DWT 0338 of 2003 is relevant to this issue of “reasonable cause”. The Court held as follows – “It is for the appellant to show that there are reasons which both explain the delay and afford an excuse for the delay -The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd – In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the appellant at the material time – The appellant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon – Hence there must be causal link between the circumstances cited and the delay and the appellant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time – the length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons”.

Decision- I do not give an extension of time under Section 77(5)(b) of the Act as the Complainant relied on the illness of the family member to show reasonable cause for the delay. However, during discussion at the Hearing in relation to the second complaint lodged on 26th March 2017 the Complainant confirmed that she had in fact commenced working with the Respondent in September 2016 but the complaint was not lodged until 2nd February 2017.The Complainant in evidence to the Hearing on 17th January 2018 also confirmed that she had been in regular contact with the Respondent from July 2016 to December 2016 in relation to her second contract which was casual/irregular and being placed on the roster for this job. I decide the Complainant has not shown “reasonable cause” to explain the delay.

PRELIMINARY ISSUE – COMPLAINT OF 26TH MARCH 2017 – Time Limits – Section 77(5) of the Act – Section 77(5(a) – Most recent occurrence. CA-00010422-001

This complaint relates to the termination of her Casual/Irregular Contract of Employment. The Complainant stated at the Hearing that she had been informed in March 2016 when her full-time contract was terminated on reaching age 65 years that she would continue to be placed on the roster in relation to Casual/Irregular Contract but that a period of time would have to elapse between the termination of her full-time contract on 8th March 2016 and being placed on the roster in relation to her Casual/Irregular Contract. She stated that she was out of the country from April to June 2016 but contacted the Respondent continuously from July 2016 to December 2016 in relation to being placed on the Roster. She stated she had been in contact with the Editor, named, who was responsible for the roster by email on several occasions and she contacted the named Acting Managing Director, in December 2016 ,in relation to the Roster. The Acting MD did respond to the Complainant on 19th December 2016 to confirm to her that she would not be placed on the roster in relation to the Casual/Irregular employment. This was confirmed at the Hearing by the named employee of the Respondent.

The Respondent objected to an extension of time as the Respondent stated that there was one termination of the employment in respect of both Contracts of Employments, which terminated on 8th June 2016 in accordance with the Complainant’s Contracts of Employment and the Staff Handbook, which comprised part of the Complainant’s Terms and Conditions of Employment in respect of both Contracts of Employment.

Decision I decide that the Complainant has established that the “date of the most recent occurrence” under Section 77(5)(a) of the Act was in fact 19th December 2016 when the Complainant was informed by the Acting MD that she would not be placed on the roster again in relation to her Casual/Irregular Contract. This was confirmed by the Respondent, named, at the Hearing on 17th January 2018.

Summary of Complainant’s Case: Complaint of 26th March 2017.

Summary of Respondent’s Case:

Findings and Conclusions:

Decision: CA 00010422-001

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.

Section 6(1) of the Employment Equality Acts, 1998 -2015 provides as follows; - (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where – (a) a person is treated less favourably than another person is,has been or would be treated in a comparable situation on any grounds specified in subsection (2) in this Act referred to as the ’discriminatory ground’

Article 6(1) of Directive 2000/78 provides as follows – 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”.

This has been given effect by S.I. 610 of 2015, Equality (Miscellaneous Provisions) Act, 2015, which amends the Employment Equality Act, 1998 at Section 34(4) as follows –

“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 if – (a) it is objectively and reasonably justified by a legitimate aim, and (b) the means of achieving that aim are appropriate and necessary”.

Section 85 A (1) of the Act provides as follows:

Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.

Decision. I find that the Complainant has met the burden of proof test and she has established facts from which it is presumed there has been discrimination in relation to her. The burden of proof now passes to the Respondent to prove the contrary.

The Framework Directive (which the Act of 2015 implements), prohibits any direct or indirect discrimination on the grounds of age under Article 2(2) of the Directive. However Employers can fix different ages for the retirement of employees (which would otherwise constitute age discrimination) provided they satisfy both elements of the Framework Directive’s derogation to the general prohibition of Article 2(2). The derogation entails two distinct criteria which are set out at Section 34(4) of the Act of 2015 being – the retirement age must be objectively and reasonably justified by a legitimate aim of the employer and the means of achieving that are both appropriate and necessary.

The Respondent argued at the Hearing, in relation to objective justification as follows – The Respondent has operated a compulsory retirement age of 65. This was designed to encourage a high retention rate by creating opportunities for promotion – it creates intergenerational fairness – it ensures the renewal of the employment teams – it recognises the dignity and respect due to all employees and it avoids disputes regarding capacity and underperformance. As a Broadcaster, the Respondent has considerable interest in ensuring the progression of younger members of staff and the rotation of staff and to present to the listening public with variety and new ideas and to reflect the diversity of Irish Society. This would be adversely affected if the Respondent’s normal retirement was increased.

These issues have been addressed in a number of key Decision of the Court of Justice of the European Union, commencing with the decision of the Court in 1986 in the Bilka Kaufhaus v Weber von Hartz Case where the Court set down a three tier test as follows – the discrimination must be for the purpose of pursuing a legitimate objective – the means chosen must be appropriate to achieve the stated objective and the means must be proportionate to the stated objective. The following decisions of the Court of Justice of the European Union addressed this issue of age discrimination in the context of a compulsory retirement age. However, it must be stated there is no mandatory retirement age at a national level in this jurisdiction. These cases which I have considered in reaching my Decision are – Felix Palacios de La Villa and Contrefiel Servicios SA (C -411/05) – Rosenbladt v Oellerking Gebaudereinigungsges (C-45/09) – Georgiev v Technicheski Universite Sofia (C-250/09) – Joined cases in Fuchs and Kohler v Land Hessen (C-159/10 and C-160/10) - Hornfeldt v Posten Meddelande AB (C-141/11). In all these cases the CJEU did not hold that a Collective Agreement or a national law permitting automatic termination of an employment contract infringed the age discrimination provisions of the Directive as the provisions could be objectively justified in relation to employment policy and the labour market. However, the decision of the CJEU in Case C-447/09 Prigge v Deutsche Lufthansa held that a compulsory retirement age for Pilots was not justified. But in Case C-190/16, Werner Fries v Lufthansa Cityline GmbH, of July 2017, the CJEU held that the Respondent had acted proportionately based on the circumstances of that case and the imposition of the retirement age was not discriminatory.

There have been a number of Decisions of the Labour Court, which I have also considered in making my Decision, as follows – Irish Ferries Ltd v McDermott EDA 31/20`16 – Transdev Light Rail Ltd v Chrzanowski EDA 32/2016 and Connaught Airport Development Ltd v Glavey EDA 10/2017.

Decision.

My findings above do not support the contention of objective justification as advanced by the Respondent by the following facts –

There is no reference to a compulsory retirement age of 65 years in either the Complainant’s Contract of Employment for Casual/Irregular Employment or in the Staff Manual (as I have quoted above).

There was no evidence presented to me by the Respondent of any Collective Agreement with the Unions concerning a compulsory retirement age of 65 years.

The evidence was, confirmed by the Respondent, that there were in fact two people over the age of 65 years working on the same roster that the Complainant’s Casual/Irregular Contract covered. The difference was the Complainant was an Employee on a Contract of Services whereas the other two people were “Independent Contractors” i.e. on Contracts for Services. Thus I find that it was the status of the Complainant’s Contract of Employment which was the determining factor in her retirement at age 65 years.

Furthermore, the Staff Manual does provide for employees to work beyond the normal retirement age of 65 years by the provision of a Fixed-Term Contract of Employment – duration unspecified. Section 6 (3) (c) of the Act (as amended) provides as follows – “Offering a fixed term contract to a person over the compulsory retirement age for that employment or to a particular class or description of employees in that employment shall not be taken as constituting discrimination on the age ground if – (i) it is objectively justified by a legitimate aim and (ii) the means of achieving that aim are appropriate and necessary”.

The Complainant is over the age of 65 years, yet she is working for the Respondent on a Contract for Services since September 2016.

Dated:   16.03.2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Key Words: