EDA199

FULL RECOMMENDATION

ADE/18/85

DETERMINATIONNO.EDA199

ADJ-00012650 CA-00016647-001

SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015

PARTIES :

MOUNTTOWN COMMUNITY FACILITY CLG
(REPRESENTED BY CATHY SMITH B.L., AS INSTRUCTED BY ST JOHN SOLICITORS)

- AND -

PETER TOBIN

DIVISION :

Chairman: Mr Haugh
Employer Member: Mr Marie
Worker Member: Ms Treacy

SUBJECT:
1. Appeal of Adjudication Officer's Decision No. ADJ-00012650.

BACKGROUND:

2. The Claimant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts , 1998 to 2015. A Labour Court hearing took place on 4th April 2019. The following is the Determination of the Court:

DETERMINATION:

This matter came before the Court by way of an appeal brought by Mr Peter Tobin (‘the Complainant’) against a decision of an Adjudication Officer (ADJ-00012650, dated 15 October 2018) under the Employment Equality Act 1998 (‘the Act’). The Complainant’s Notice of Appeal was received by the Court on 21 November 2018. The Court heard the appeal in Dublin on 4 April 2019. The Complainant presented his case in person; Mounttown Community Facility Clg (‘the Respondent’) was represented by Cathy Smith BL, instructed by St John Solicitors.

The Respondent is a company with charitable status established to run the Mounttown Community Facility on behalf of Dun Laoghaire Rathdown County Council. The Complainant was employed by the Respondent from 4 May 2010 until the termination of his employment on 1 September 2017 as a Community Facility Manager. The Complainant alleges he was discriminated on the age ground when he was compelled to retire in September 2017. He was aged 68 at that time. It is common case that his written contract of employment did not specify a retirement age. The Respondent denies that it discriminated against the Complainant on the age ground or at all and submits that the reason for the termination of the Complainant’s employment was that the position he held was externally funded by Pobal and that that funding was conditional upon all employees employed thereunder not having reached aged sixty-six.

The Complainant’s duties as Community Facility Manager included: reporting to the Respondent’s Board of Management; liaising with the Respondent’s funding body (Pobal); developing and implementing management structures; recruiting staff; issuing contracts of employment and maintaining personnel records; staff management and strategic planning. It is accepted by the Respondent that the Complainant discharged his managerial functions efficiently and effectively. It is common case that the Complainant was on written notice from the outset and throughout the course of his employment that his position was subject to funding.

The Respondent receives annual funding of approximately €70,000.00 from Pobal. This funding covers approximately 63% of three core staff members’ salaries, including that of the Manager. Pobal’s Operating Manual for Community Services Programme Contract Holders (which the Complainant accepts he received, although he denies any knowledge of its contents) provides as follows at page 20:

“Individuals who have reached their 66^thbirthday and qualify for the state pension may not hold a CSP supported post (Manager or FTE post). The employer has the right to continue employing that person after the 66^thbirthday if desired, but the funds to do so must come from another source.”

The Respondent submits that the Complainant was or ought to have been aware of this condition as it was an integral requirement of his position as Manager to be familiar with the Pobal rules, conditions, procedures and reporting requirements. The Complainant submits that he was ‘never personally advised of the provisions of the Pobal Operating Manual for Community Services Programme Contract Holders’. He accepts the Manual was emailed to him but says that he simply passed it on to the Board without reading it as the contents of the email were addressed to the Chair and Secretary of the Board, neither of which positions he had ever held. He further submits that he had turned sixty-six on a stated date in 2015 and that his age was never a secret and had, for example, been included on his initial application for his job in 2010. In response to a question from the Court, the Complainant conceded that he should ‘probably’ have been aware of the Pobal rules in relation to funding and that it had been a ‘failing’ on his part not to have read the manual.

The events that culminated in the termination of the Complainant’s employment were initiated by a letter from Pobal in May 2017 wherein Pobal informed the Chair and Secretary of the Respondent’s Board that it had noted that a change had occurred in the Complainant’s PRSI categorisation in 2016 which indicated he may have surpassed the qualifying age for receipt of funding. Pobal specifically requested the Respondent to confirm the Complainant’s age and date of birth. Following receipt of this request, the Board wrote to the Complainant on 8 June 2017, enclosing a copy of the letter from Pobal, and again on 23 June 2017 to seek the information required by Pobal. The Complainant accepts he did not reply in writing to either of these letters but did confirm his age verbally to the outgoing Chair of the Board.

Pobal’s letter of 16 May 2017 to the Respondent also states as follows:

“We now require the Board to confirm the age and date of birth of the current manager for us to ascertain if the company has claimed ineligible funding under the Community Services Programme. Please note that any ineligible funding will need to be repaid to Pobal. We have now put your organisations (sic) funding payments on hold until we have confirmation of this information to ensure no further possible overpayment. We will of course release payment if there is another valid reason for the change in PRSI categorisation that does not refer to reaching the age of 66.”

As things transpired, Pobal not only withheld the grant payable to the Respondent with effect from the date of the above letter but also subsequently sought repayment of funds overpaid to the Respondent. The Respondent is committed to repayment of those funds over a five-year period.

The Court heard evidence from Ms Margaret Kenny and Ms Frances Lawlor on behalf of the Respondent. Ms Kenny was a member of the Respondent’s Board for much of the period 2010 to 2018. Ms Lawlor joined the Board in May 2016 and has been its Chair since May 2017. Both witnesses gave evidence of the Respondent’s funding structure and its high dependence on the monies received from Pobal. Ms Kenny told the Court that the Respondent receives rent from tenants in the Mounttown Facility which is used to pay utilities and to make up the balance of employees’ wages. She told the Court that the rents in the Respondent’s facilities are relatively high compared to similar facilities operated elsewhere on behalf of Dun Laoghaire Rathdown County Council and that there was no prospect of seeking to raise them in 2017 as a means to fund the Complainant’s continued employment. Ms Lawlor stated in her evidence that the Board had engaged directly with Dun Laoghaire Rathdown County Council in July 2017 to determine if it would be willing to provide additional funding to retain the Complainant. The Board was advised that no such funding was available.

Ms Lawlor told the Court that the Respondent, unable to identify alternative sources of funding and confronted with the obligation to repay substantial overpayments to Pobal, was left with no option but to terminate the Complainant’s employment as Manager with a view to appointing a replacement for him. Her very clear evidence to the Court was that the Board’s decision to dismiss the Complainant was informed exclusively by Pobal’s funding rules and its decision to withhold funding to the Respondent due to the Complainant’s ineligibility. Ms Lawlor advised the Court that the Board’s decision to terminate the Complainant’s employment and the reasons for that decision were set out in a letter dated 4 August 2017 which she and a colleague, Ms Mary Ruane, attempted to hand deliver to the Complainant on that date at his place of employment. However, it transpired that he was absent on annual leave. The letter was, therefore, delivered by courier to his home address and received by the Complainant on 15 August 2017 following his return from annual leave.

Discussion and Decision

Having carefully considered the Parties’ submissions, the Complainant’s evidence and that of the witnesses called by the Respondent the Court is satisfied that the Complainant was not dismissed because of his age. The Complainant was dismissed from a position that was substantially funded by Pobal and which funding was subject to express eligibility criteria which the Complainant ought to have been fully aware of. When the Complainant turned sixty-six in 2015 he was no longer eligible to be retained in his position as Manager of the Mounttown Facility. The Complainant was retained in employment until 1 September 2017, well beyond his 66^thbirthday, due to an oversight on the part of all concerned – the Board, Pobal and the Complainant himself.

For the foregoing reasons, the appeal fails and the decision of the Adjudication Officer is affirmed.

The Court so determines.

Signed on behalf of the Labour Court

Alan Haugh
15th April 2019______________________
SCDeputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.