Complainant

Respondent

Parties

Patricia  Nolan

Iarnrod Eireann

Representatives

none 

none 

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 79 of the Employment Equality Acts

CA-00035921-001

16/04/2020

The complainant submits that she was discriminated against in relation to access to employment on the grounds of family status contrary to Section 6 of the Employment Equality Acts.

The complainant submits that she applied for five externally advertised positions by the respondent organisation between September and December 2019. The complainant outlines that she met all the entry requirements for the positions in question. The complainant states that she was denied consideration for each of the roles on the basis that she received a voluntary severance payment from the company in 2012. The complainant states that she previously worked with the company for 13 years. She states that she availed of a career break in 2011 to have her family. She outlines that due to the economic downturn, there was an offer of a voluntary severance package which she availed of in 2012.

The complainant submits that she has brought to the respondent’s attention DPER’s letter dated 28 June 2012 which states that after a period of two years from receiving voluntary severance, a person can be eligible for re-employment. The complainant states that on 12 December 2019 after a series of back and forth correspondence, she was given a copy of the CIE’s Re-engagement of Former Employees Policy 2009 on which the respondent based its decision.

The complainant feels that this policy is discriminatory and outdated. She states that she made a decision to leave the workforce periodically to raise young children. The complainant states that this policy was not circulated to staff and there was no mention of it in the contracts of voluntary severance. She states that as a period of over seven years has lapsed since she received a severance payment, she should have been considered for employment. The complainant states that she did not avail of voluntary severance and work elsewhere, she availed of it to raise her young children and she feels that this is being held against her.  

The respondent states that the complainant commenced employment with the company in April 1999 and retired from the organisation on 19 December 2012 on a voluntary severance package of €77,582. The respondent states that prior to her exit, the complainant was availing of a paid career break with a retention payment of €12,500 per year paid quarterly in arrears i.e. €3125.00 per quarter which was open to all employees. The respondent states that it was understood that the complainant availed of voluntary severance so that she could emigrate to Canada with her family.

The respondent contends that in October 2019, the complainant contacted RC in relation to a role she had applied for in the organisation. The complainant was advised that she had reached the standard for the interview process but could not be considered on the basis that she had exited the organisation on voluntary severance. The respondent states that following this advice, the complainant sent an e-mail to RC outlining the Public Sector guidance in relation to employees who exit on voluntary severance.

The respondent states that on 8 November, the company received representations from a TD on behalf of the complainant on this matter. The complainant also contacted the Director of HR on 25 November outlining her claim and requesting clarification. A response issued from HR on 5 December to the TD advising that the company were seeking clarification from the Department regarding the engagement of former employees. HR sent correspondence to the TD confirming that the company adhere to CIE’s re-engagement of former employees’ policy which stipulates that any employee who exits the organisation on voluntary severance terms should not be considered for re-employment under normal circumstances. HR also spoke directly to the complainant when she called into the office and following this engagement the complainant requested and was furnished with a reference to assist her in pursuing other roles.

The respondent outlines that since 2012, 476 staff have exited on a voluntary severance package, 394 were male and 82 were female. The respondent submits that three male staff who exited on a severance package have also sought to be re-engaged and were advised that as they exited on voluntary severance, their application could not be considered. The respondent’s position is that in the within claim, a prima facie case of discrimination does not exist on the basis that it is a CIE group policy that states; “Staff whose positions are identified as surplus and who retire on Voluntary Severance should not be considered for re-employment and/or re-engagement under normal circumstances.”

The respondent submits that in the policy for re-engagement of employees, a case can be made in exceptional circumstances where for example the life of a project is not deemed to be long enough to warrant the recruitment of a new employee with a similar skill set to replace the retired staff member. However, the respondent maintains that this was not the situation in the present case.

The respondent refers to the complainant’s reliance on a document by DPER in relation to ex-gratia redundancy payments to public servants where it stipulates that “It is a condition of the Collective Agreement that persons availing of the agreement will not be eligible for re-employment in the public service by any public service body for a period of 2 years from termination of the employment.”   The respondent submits that this policy covers public sector employees only. It states that it was not party to any public sector discussions in relation to this matter and as a Semi-State organisation would not be bound by these agreements and contend that they do not have any legal effect. The respondent also states that it should be noted that the Act makes clear in the Schedule that public service bodies do not include CIE or any of its subsidiaries.

The issue for consideration by me is whether or not the complainant was discriminated against on the grounds of her family status in relation to access to employment with the respondent company. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination.  It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination.  If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary.   The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85Aplaces the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule".

Having carefully considered all the evidence both in the written submissions and the witness testimony at the hearing, I find that the complainant has not established a prima facie case of discrimination on grounds of family status in relation to access to employment with the respondent company.

I note that the respondent is complying with the CIE group policy which states; “Staff whose positions are identified as surplus and who retire on Voluntary Severance should not be considered for re-employment and/or re-engagement under normal circumstances.”

I note that within the policy for re-engagement of employees, a case can be made in exceptional circumstances where for example the life of a project is not deemed to be long enough to warrant the recruitment of a new employee with a similar skill set to replace the retired staff member but that these circumstances did not pertain in the present case.

The respondent outlined that since 2012, 476 staff have exited on a voluntary severance package, 394 were male and 82 were female.

I note that three male staff who exited on a voluntary severance package have also sought to be re-engaged and were advised that as they exited on voluntary severance, their application could not be considered.

Having carefully considered all the evidence adduced in the within claim, I find that the complainant has not demonstrated a nexus in relation to her treatment and her family status and therefore I find that she has not established a prima facie case of discrimination in relation to access to employment on grounds of her family status.

I find that the complainant was not discriminated against on grounds of family status in relation to access to employment with the respondent organisation.

Employment Equality Acts, family status ground,