Complainant

Respondent

Parties

Francis  Hehir

Grant Engineering (Ireland) Unlimited Company

Representatives

Natasha Hand, Richard Grogan & Associates

Jan Hayden , IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00038546-001

03/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00038546-002

03/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 9 of the Industrial Relations (Miscellaneous Provisions) Act 2004

CA-00038546-003

03/07/2020

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

CA-00038546-004

03/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00038546-005

16/07/2020

The Complainant was initially employed by the Respondent since August 10 2000 as a General Operative. He was retired by the Respondent on his 65th birthday and was offered a new 12 month fixed term contract which he asserted is discriminatory. He also claimed that he was subject to other unfair treatment. The Complainant’s gross rate of pay is €518.40, which was paid on a weekly basis.

The Complainant was initially employed by the Respondent since August 10 2000 as a General Operative. He was retired by the Respondent on his 65th birthday and was offered a new twelve month fixed term contract which was due to expire on 22 July 2020.

He is claiming that he should not have been retired when he turned 65 and asserts that this was discriminatory. He also alleged that he did not receive a statement of his terms and conditions of employment, had his weekly bonus payment stopped by the Respondent since 2017 and stated that he was victimised for having raised the cessation of his bonus with his trade union.

The Respondent’s representative stated that the company has a long and established practice of collective agreements with SIPTU and highlighted that the agreed Handbook stipulates a retirement age of 65. In 2017, negotiations commenced collectively with SIPTU in relation to amending the Retirement Policy. This revised and agreed policy was issued to all employees including the Complainant in April 2018.

The Complainant turned 65 in July 2019 and the above agreed policy was applied as it was for other employees. The Complainant attended pre-retirement meetings from September 2018 to ascertain his desire to continue working post retirement and subsequently received a letter confirming his 12 month fixed term employment post retirement with all terms and conditions remaining the same as previously applied. The Complainant or SIPTU on his behalf did not raise any issue with the Respondent and the Complainant signed and accepted this post retirement employment letter in July 2019.

In January and February 2020, the Complainant again engaged with the company and attended a number of meetings to discuss his wish to extend his employment by a further year after his 12 month contract expired on 22 July 2020. The Complainant went absent on sick leave from 13 March 2020.

As the Covid 19 pandemic hit and only essential businesses remained opened from 30 March 2020 the Respondent, whilst operating as an essential business, availed of the Government support schemes for a period from the end of March until mid-May 2020. During this period, staff rotated to work one day per week on average to fulfil emergency orders.

The Complainant contacted the company and sought to receive payment under this scheme as he stated that other employees were in receipt of same. The Respondent confirmed that company was in receipt of the support schemes and those employees who were available to work were benefiting from same. The Complainant then forwarded a medical cert on 5 May 2020 declaring him fit to return to work and the Respondent advised him of his work schedule. The Complainant refused to return to work however citing his desire to remain at home until the Government or HSE told him it was legal to do so.

The Respondent was not in a position to place him on the government support payment scheme and had a legal obligation under the scheme to only claim payments for those employees actually working or available for work. The Complainant became irate at the Respondents response and on the same day 5 May 2020 sent in a further sick cert declaring him unfit to work. He has remained on sick leave since then.

The Complainant has continued to engage with the company in relation to working post his 66th  birthday including attending for medical and occupational health assessments up to the end of August 2020.

The Complaint ceased sending medical certificates covering his absence from October 2020 and has to date refused to engage with the company in his return to work and is currently on unauthorised absence since October 2020.

CA-00038546-001:

THE LAW

The Terms of Employment (Information) Act 1994, Section 3 sets out the basic terms of employment which the employer must provide to the employee in a written form within two months of starting the employment.

(1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say –

a)      the full names of the employer and the employee,

b)      the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

c)       the place of work or where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

d)      the title of the job or nature of the work for which the employee is employed,

e)       the date of commencement of the employee’s contract of employment,

f)        in the case of a temporary contract of employment, the expected duration thereof of, if the contract of employment is for a fixed term, the date on which the contract expires,

g)      the rate or method of calculation of the employee’s remuneration,

h)      the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

i)        any terms or conditions relating to hours of work (including overtime),

j)        any terms or conditions relating to paid leave (other than paid sick leave),

k)       any terms or conditions relating to –

l)        (i)incapacity for work due to sickness or injury and paid sick leave, and

m)    (ii pensions and pension schemes.,

n)      the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

o)      a reference to any collective agreements which directly affect the terms and conditions of employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

The Act also requires this statement to be signed and dated by or on behalf of the employer and the employer is also required to retain a copy of this statement for the period of employment and for a period of 1 year after the employment ceases.

This Act was amended by virtue of the Employment (Miscellaneous Provisions) Act 2018 and its provisions apply from 04/03/2019 whereby some of the core terms must be given in writing to an employee within 5 days of staring employment.  These are:

a)      the full names of the employer and employee;

b)      the address of the employer in the State, or where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

c)       in the case of a temporary contract of employment, the expected duration thereof, or, if the contract of employment is for a fixed term, the date on which the contract expires;

d)      the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000;

e)       the number of hours which the employer reasonably expects the employee to work –

(i) per normal working day, and

(ii) per normal working week.

The Workplace Relations Act 2015 at section 41, in relevant part, provides as follows

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

 8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

FINDINGS

The initial start date of the Complainant’s employment was agreed as August 10 2000. The Complainant was however retired effective from his 65th birthday on 22 July 2019 and he was informed in letter of 3 July 2019 that he would be entitled to a new one year fixed term contract of employment on his retirement which would expire on 22 July 2020.

Given that this complaint was made to the WRC on 3 July 2020 and that his previous employment with the Respondent was ended by his retirement on 22 July 2019, I can only consider the alleged failure to provide him with a statement of his new terms and conditions of employment which he was informed of on 3 July 2019 and which was due to expire on 22 July 2020, given that any complaint in relation to his previous contract of employment is out of time in accordance with s 41 (6) of the Workplace Relations Act above.

It is the Complainant’s position that he did not receive any written statement of his terms and conditions of employment. At the hearing, the Respondent agreed that this was the case but highlighted that he received an employee handbook which sets out the full Terms and Conditions of Employment. Having reviewed the handbook however, I find that it does not contain a number of key requirements set out in the Act and note that it is a general document applicable to all of the employees and not just the Complainant. Specifically, it does not include inter alia his remuneration or how this his calculated, his name or address, the date on which his new employment began or the duration of the contract of employment. Accordingly, I must find that this complaint is well founded.

In making a decision on what compensation to award in respect of this complaint, I have regard to the Labour Court decision in the case of Megan Hayes Kelly and Beechfield Private Homecare, DWT 1919, where the Complainant claimed that her employer was in breach of the Terms of Employment (Information) Act because there were omissions and errors in her contract of employment. In his determination on the case, the Chairman of the Court, considered the errors and omissions to be “at the serious end of the spectrum” and awarded the maximum of four weeks’ pay in redress.

As the failure to issue any statement of terms and conditions of employment within the required timeframes must be considered to be more serious than issuing an imperfect statement, I must follow the authority of the Labour Court and make the maximum award in the within case. I therefore award the Complainant compensation of four weeks remuneration, namely €2,073.60.

CA-00038546-002:

THE LAW

The Payment of Wages Act at Section 5, in relevant part, provides as follows:

5. (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

And 

5(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

The Workplace Relations Act 2015 at section 41, in relevant part, provides as follows

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

 8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

FINDINGS

The provisions of section 5(6) of the Act were considered by MacGrath J in an appeal on a point of law from a decision of the Labour Court in the case of Marek Balans v Tesco Ireland Limited [2020] IEHC 55. In that case MacGrath J re-affirmed the proposition that, in a section 5(6) application, the first matter to be determined by the Court is what wages are properly payable.

I am therefore required, having investigated this matter, to establish if the Complainant should have received a bonus payment.

I note firstly that this complaint was referred to the Workplace Relations Commission on 3 July 2020 and that, in accordance with s 41 (6) of the Workplace Relations Act above, I can therefore only calculate any bonus payments that were due to the Complainant for the period from 4 January 2020.

I also note that it is clear from the employee handbook that bonuses are not payable when employees are absent on sick leave. Given that the Complainant went on sick leave on 13 March 2020 and did not work between this period and 3 July 2020, the date on which the complaint was referred to the WRC, the relevant period is the 10 weeks from 4 January 2020 to 13 March 2020.

While the Respondent highlighted that the bonus issue was discussed and negotiated with SIPTU and that there was a new bonus scheme implemented further to these discussions, there was no evidence presented to me to suggest that the Complainant had agreed in writing to a change in his bonus payment in accordance with section 5 (1) ( c ) of the Act outlined above.

I also note that the Complainant’s solicitor highlighted the case of Cleary and Others vs B & Q Ireland (2016) IEHC 2019 where McDermott J found that on the date the Respondent had decided to withdraw the payment the right had already accrued.

Bearing all of the above in mind, I find that the Complainant is entitled to receive the bonus payment of €140 per week for the 10 weeks from 4 January 2020 to 13 March 2020.

CA-00038546-003:

THE LAW

Section 8 of the Act states:

(1) This section applies where it is not the practice of the employer to engage in collective bargaining and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute and—

(a) a trade union takes steps to invoke the procedures under the Code of Practice on Voluntary Dispute Resolution under section 42 of the Industrial Relations Act 1990 (or any code of practice amending or replacing that code) in relation to a trade dispute, or

(b) such procedures have been invoked by a trade union in relation to a trade dispute, or

(c) an employee intends to request the trade union of which the employee is a member to make a request under section 2 of the Act of 2001 in relation to a trade dispute, or a trade union intends to make such a request, or

(d) such a request by a trade union has been made but the Court determines that the requirements specified in that section for the carrying out of an investigation of the trade dispute have not been met, or

(e) the Court determines that those requirements have been met and either—

(i) that investigation is being or has been carried out, or

(ii) any other procedure under the Act of 2001 consequent on or subsequent to that investigation is being or has been carried out.

(2) Where this section applies, none of the following—

(a) the employer,

(b) an employee, or

(c) a trade union of which an employee is a member,

shall victimise an employee or (as the case may be) another employee in the employment concerned on account of—

(i) the employee’s being or not being a member of a trade union, or

(ii) the employee’s engaging or not engaging in any activities on behalf of a trade union.

(3) In this section “victimise”, in relation to an employee, means to do any act (whether of commission or omission) that, on objective grounds, adversely affects the interests of the employee or his or her well being and includes any act specified in a code of practice, prepared under section 42 of the Industrial Relations Act 1990 in relation to conduct prohibited by this section, to be an act falling within the foregoing expression but does not include any act constituting a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001.

FINDINGS

The Complainant in his submission said that he was penalised for having engaged his union to deal with the issue of having his bonus cut. Specifically, he stated that he tried to take time off around the time of his daughter’s wedding in November 2018 but was not allowed to do so unlike other employees.

I note when questioned that the Complainant stated that he had taken all of his annual leave in 2018 prior to his daughter’s wedding and that he was initially refused permission to take unpaid leave at this time. When asked what other employees were not allowed to take unpaid leave, the Complainant could not provide any comparators. The Complainant also states that he was never refused permission to take his paid annual leave entitlements during his time with the Respondent.

In addition, the Complainant asserted that he was discriminated against in respect of his age because of the stance he took in relation to the bonus issue. Specifically, he asserted that when he turned 64 in July 2018, he started getting letters sent to his home address about the Respondent’s retirement age being 65. He stated that no other employees of the Respondent got such correspondence and also claimed that there is no evidence of a company policy retirement age of 65.

I note in the first instance that Article 32 of the Employee Handbook, which the Respondent agreed with SIPTU, states:

“The normal retirement of an employee will occur on his or her 65th birthday. You will be

contacted by HR in advance of this date in order to make appropriate arrangements. The

company will consider allowing an employee to continue past their 65th birthday if the

company has no concerns in relation to the employees’ health and fitness to work.”

I also note that no named comparators were presented by the Complainant to suggest that other workers did not receive correspondence from the Respondent in advance of their impending retirement date.    

In the absence of any evidence of any named comparators presented by the Complainant to suggest that he was treated in a different manner to other employees in relation to either the granting of unpaid leave or the issuing of correspondence by the Respondent in respect of the retirement age, I find that this complaint is not well founded.

CA-00038546-004:

THE LAW

The Employment Equality Acts 1998 and 2008 transposed Directive 2000/78, which, via Article 2(2), prohibits discrimination on four grounds (including age). The Directive, however, permits direct discrimination on the age ground, where justified. Addressing the justification of differences of treatment on grounds of age, article 6(1) provides “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.”

Section 6 of the Employment Equality Acts 1998-2015 (The Act) provides that discrimination shall be taken to occur where a person is treated less favourably than another person on one of the discriminatory grounds which ‘exists, existed but no longer exists, may exist in the future, or is imputed to the person concerned.’ Section 6(2) sets out the age discriminatory ground as ‘between any 2 persons … that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”)’.

Section 34 of the Act provides for savings and exceptions. The provisions relevant to age discrimination are contained in subsections (4) and (5). Section 34(4) addresses retirement age:

“(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 Workplace Relations Act 2015 at section 41, in relevant part, provides as follows

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

 8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

FINDINGS

I note that this complaint was referred to the Workplace Relations Commission on 3 July 2020 and that the Complainant reached the age of 65 in July 2019. Any alleged contravention of the legislation which occurred in relation to the Respondent’s treatment of the Complainant around the time he turned 65 should therefore have been referred to the WRC within 6 months of same, in accordance with s 41 (6) above. Given that no reasonable cause was presented to me by the Complainant’s representative to explain why the complaint was not referred within this timeframe, I can make no finding in relation to any alleged discriminatory treatment of the Complainant surrounding the decision both to retire him at 65 and issue him with a new 12 month contract.     

I note that in March 2020 the Respondent wrote to the Complainant confirming his desire to continue working beyond his 66th birthday and that it was the intention to issue him with a new 12 month contract in July 2020, subject to him being medically fit. In addition however, I note that further to him going out sick on 13th March 2020, no additional contract was issued to him after the expiry of his 1 year fixed term contract on 22 July 2020 and also note that he is still in the employment of the Respondent.

In the absence of any cogent evidence of any alleged discriminatory treatment in the six month period from 4 January 2020 to 3 July 2020 and the failure to establish a prima facie case, I find that the Complainant was not discriminated against.

CA-00038546-001:

I find that the complaint is well founded and award the Complainant compensation of four weeks remuneration, namely €2,073.60, for the reasons outlined above.

CA-00038546-002:

I find that the complaint is well founded and award the Complainant €1,400 for the reasons set out above. This is subject to taxation and the normal statutory deductions.

CA-00038546-003:

I find that this complaint is not well founded for the reasons set out above.

CA-00038546-004:

I find that the Complainant was not discriminated against for the reasons set out above.

CA-00038546-005:

This is a duplicate complaint

Out of time; retirement;