ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Parties |
| Complainant | Respondent |
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Representatives | Mike Cusack HR Consultant |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00024211-001 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, andfollowing 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:
The complainant was employed by the respondent as a general operative/ fork lift driver on the 2nd of February 1996 and his employment terminated on the 31st of December 2018. He was paid €789 per week and he worked a 40 hour week. He is claiming that he has been discriminated against contrary to the Employment Equality Act 1998 on the age ground when he was compulsory retired. |
Summary of Complainant’s Case:
The complainant said he worked as a general operative and forklift driver he said he had no contract of employment and there was no retirement age in the company. The complainant said that on reaching 65th birthday the employer advised him that they expected him to retire. The complainant said he did not wish to retire and requested an extension to his employment and a 12-month extension was agreed. At the end of this extension he said he sought a second extension. He said that the respondent would only give him a further six months extension and it was stated in a letter to him that this would be the last extension. The complainant said he was put under pressure to sign the letter dated 9th of April 2018 which stated that this would be the final extension granted until 31st of December 2018, otherwise he believes he would not have got that 6 months extension. He requested a further extension and he was refused as the respondent claimed that he had agreed to retire on the 31st of December 2018. The complainant appealed the refusal of a third extension and the appeal was unsuccessful. The complainant said he appealed on the grounds that another staff member had worked until his 69th birthday; that there was no retirement age in his contract of employment, and he was passed as medically fit to continue his work as a fork lift driver. The union submitted that there was no explanation for the decision reached and there was no objective justification given. The EU Directive 2000/78 EC provides that any difference in treatment on the ground of age must be objectively justified and reasonable. The complainant was a general operative and was not preventing progression of other employees. As set out in the Donnellan vs Minister for Justice Equality and Law Reform [2008] IEHC, the High Court said that there is an obligation to justify retirement ages under the Employment Equality Acts. The respondent has deemed the normal retirement age to be 65. The complainant has no such term in his contract of employment. The union submitted that the complainant wished to continue working for financial reasons that he was fit and healthy to continue in his role. It was submitted that he was treated less favourably than another employee and the respondent breached the Acts on age discrimination ground. I was referred to the Labour Court case of Calor Teoranta vs Michael McCarthy EDA 089 which concerns an employee who was forced to retire at 60. In that case the Labour Court found that he was discriminated against on the age ground. I was also referred WRC case of a Secretary vs a Solicitors Firm ADJ-00016645 concerning the dismissal of an employee because of her age. The Adjudication Officer found as the complainant was dismissed because she was 67, this is a prima facie evidence of age-based discrimination. No objective justification is applied because the reason given at hearing was based on the assumption that poor performance based on age. if there was poor performance, like any employee, she should have been given an opportunity to improve before she was dismissed. In that case the Adjudicator Officer found for the complainant and awarded her €24,000 compensation in respect of the discrimination. |
Summary of Respondent’s Case:
The respondent stated that is provides logistics management, warehousing and transportation services to many clients throughout Ireland. In February 2011, following a competitive tendering process the company became one of the delivery contractors engaged at a brewery in Dublin. This involved the delivery and collection of beer kegs throughout Leinster. The company also commenced the bulk delivery and collection of kegs to distribution centres throughout Ireland. In January 2012, the company took over work previously undertaken by another company (A) at the brewery in Dublin. The employees were transferred under TUPE regulations to the respondent company and the complainant was one of those employees who transferred on the 1st of January 2012. The company's position is that the complainant was aware of the normal retirement date for employees at Company A before the transfer. The issue of the pension scheme formed part of the company's and Union discussions at the time of the TUPE transfer on the 1st of January 2012. On the 23rd of April 2018 when the last extension to the complainant’s contract of employment was granted. The complainant acknowledged that the normal retirement date for employees of both companies is 65 years of age. Upon reaching 65 years of age the complainant sought and was granted an extension of an additional year of employment this was from the 26th of June 2017 to 26th of June 2018. On the 9th of April 2018, the complainant emailed his line manager to request a further extension be granted on June the 26th 2018. Following consideration, the complainant was offered and accepted a second extension of a further period from 26th of June 2018 to the 31st of December 2018. This agreement was signed by the complainant in the presence of his Shop Stewart the agreement was very clear. The final sentence in the agreement drawn up by the complainant’s line manager stated, “should you have any queries in this regard, please do not hesitate to contact me”. On the 6th of November 2018 the complainant’s line manager informed the complainant that he would be finishing on the 31st of December 2018. This was confirmed in a letter of the same date, the 6th of November 2018. The complainant requested a further extension of employment and this request was given consideration by the company and following due consideration the complainant was informed that his request has been declined. This was confirmed in a letter to the complainant dated 16th of November 2018. On the 20th of December 2018, the complainant appealed the company's decision to abide by the agreement dated 23rd of April 2018 which was to decline the request for a third extension. An appeal hearing took place on the 3rd of January 2019. At the meeting the principal grounds of appeal put forward by the complainant related to a colleague who had been allowed to work until just short of his 69th birthday. The complainant also stated that the law had changed, and employees were no longer required to retire at 65 years of age and that it is unfair to be forced to retire when he had been passed fit to continue. On the 11th of January 2019 the appeal was not upheld based on an agreement signed by the complainant and his Shop Steward dated 23rd of April 2018; that he was offered an opportunity to work beyond the normal retirement age and he was granted an extension. The company has facilitated employees who wish to work beyond the normal retirement age of 65th birthday and there have been three occasions when this has been offered to employees including the complainant. I was referred to a number of cases namely Earagail Teoranta v Richard Lett EDA1513, A Traffic Warden v A Local Authority ADJ-0009096, Brendan Tynan v Tradewins Ireland UDD1851. It was submitted that the complainant was not discriminated against in any way he was accommodated with extensions to hid employment in the manner expected of a reasonable employer. The Managing Director stated and evidence that the complainant was replaced after he retired by an agency worker who was now employed directly by the company and who was much younger than the complainant. He said that the reason the complainant was retired was to employ the agency workers directly in that the agency workers were aged between 30 and 40 and were looking for full-time employment with the company. He said that having an age balance in the workforce is important. The work undertaken was manual outdoor work in all weathers and in order to have an age balance he decided that he would directly employ more agency workers with the company. He accepted that the complainant passed a medical and was fully fit to do the work of a forklift driver. He said that he has 40 general operative/ forklift drivers. They range in age from 30 to 65 with about 1/3 of the employees in each age bracket. He said that only 3 employees have been retired they were kept on beyond the age of 65 including the chief shop steward who worked until he was aged 69. |
Findings and Conclusions:
The question for consideration is whether the complainant was discriminated against when the respondent refused him a further extension to his employment. The complainant submits that he was discriminated on the age ground. The respondent’s case is that a retirement age of 65 applies in the company and this was known to the complainant. The Law Section 6 of the Act states “Discrimination for the purposes of this Act. 6.— (1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated. (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are— (f) that they are of different ages, but subject to subsection (3)(in this Act referred to as “the age ground”),
Section 8 of the Act states 8.—(1) In relation to— (a) access to employment, (b) conditions of employment, (c) training or experience for or in relation to employment, (d) promotion or re-grading, or (e) classification of posts, an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.”
Article 6 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation states: Article 6 “Justification of differences of treatment on grounds of age 1. 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. Such differences of treatment may include, among others: (a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection; (b) the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment; (c) the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement. 2. Notwithstanding Article 2(2), Member States may provide that the fixing for occupational social security schemes of ages for admission or entitlement to retirement or invalidity benefits, including the fixing under those schemes of different ages for employees or groups or categories of employees, and the use, in the context of such schemes, of age criteria in actuarial calculations, does not constitute discrimination on the grounds of age, provided this does not result in discrimination on the grounds of sex.” Section 34(4) of the Employment Equality Act states: 34 (4) “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.” The first matter I must decide is did the company have a retirement age of 65 and did the complainant have either actual knowledge or implied knowledge of it? I note that the complainant had no contract of employment or conditions of employment specifying a retirement age. Further I note that there was no custom or practice within the company of employees retiring at 65. There were only three retirements from the company in the recent past and all these employees worked beyond their 65th birthday including one employee who worked until he was 69. Therefore, I am satisfied from these facts that there was no fixed retirement age operated by the company and furthermore the complainant did not have implied notice of such a retirement age. Therefore, I that the complainant was dismissed from his employment due to his age on the 31st of December 2018 when the employer refused to extend his period of employment. I cannot accept that the letter which the complainant signed was an agreement that he would retire on the 31st December 2018 because I am satisfied, that if he had not signed the letter, he would not have got an extension to his employment. In any event as I have found that there was no retirement age in the company, the contents of the letter had no operative effect because the letter was based on the company having a retirement age of 65. I note that the respondent in evidence stated that the reason he wanted the complainant to retire was because he wanted to lower the age profile of his workers, he wanted the company to employ younger agency workers who were already working in the company. He replaced the complainant with a younger worker. I am satisfied that the complainant was treated less favourably than a person of a different age and has established a prima facie case of age discrimination. Section 34 of the EE Act cited above provides a defence of objective justification in age discrimination cases. As there was no retirement age in the company and the complainant was dismissed because of his age objective justification does not apply. In considering if this section applies the Labour Court, in a case where no fixed retirement age applied, stated: “In these circumstances the Court must hold that the Respondent had not fixed a retirement age in respect of the Complainant and that he was dismissed because of his age. Therefore, the Court finds that the Respondent cannot avail of Section 34(4) of the Act. In such circumstances it is not necessary for the Court to consider Respondent’s arguments of objective justification for a retirement age of 65 years.” Connaught Airport Development Ltd v John Glavey EDA1710. Applying the above jurisprudence of the Labour Court, I find that the complainant has established a prima facie case of age discrimination which the respondent has failed to rebut.
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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 find that the respondent discriminated against the complainant on the age ground. Section 82-(i)(c) of the Act provides that I can make an order for the effects of the discrimination. Section 82(4) provides: The maximum amount which may be ordered by the Director General of the Workplace Relations Commission by way of compensation under subsection (1)(c) or (1)(f) shall be— (a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of— (i) 104 times the amount of that remuneration, determined on a weekly basis, (ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or (iii) €40,000, or (b) in any other case, €13,000.
The EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate. In accordance with Section 82 of the Act, I order the Respondent pay the Complainant €21,000 in compensation for the distress and the effects of the discriminatory treatment. In deciding the amount of compensation, I have taken into consideration that the complainant said that he wished to work a further 6 months with the company. The total award is redress for the infringement of the Complainant’s statutory rights and, therefore, is not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004). |
Dated: 10th October 2019
Workplace Relations Commission Adjudication Officer:
Key Words:
Employment Equality Act, 1998, age discrimination, retirement, dismissal, S. 34 of EE Act, objective justification, |