Complainant

Respondent

Parties

Philip  Nelson

Bord Na Móna Plc

Representatives

  Self

Ms Mary Fay BL, instructed by Arthur Cox

Act

Complaint Reference No.

Date of Receipt

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

CA-00053312-001

17/10/2022

The complainant worked for the respondent for almost 20 years as a GIS Specialist and GIS Manager. The complainant retired from his employment on 21 April 2021 at age 65. The complainant then entered into a one-year fixed-term contract with the respondent.  This contract expired on 19 April 2022. Before the expiry of this contract, the complainant requested a second fixed-term contract. The respondent did not agree to a second fixed-term contract and the complainant’s employment ended on 19 April 2022. The complainant presented a complaint to the Workplace Relations Commission (WRC) alleging that the respondent’s refusal to issue a second fixed-term contract constituted discrimination on grounds of age.  The respondent submitted that the complaint is out of time but without prejudice to the foregoing, the complainant was retired from his employment in line with the collectively agreed retirement age; the retirement age was objectively and reasonably justified by a number of lawful and legitimate aims; and the retirement age was appropriate and necessary for achieving those aims.

Evidence of the Complainant (under affirmation)

The complainant outlined that he emailed his line manager in November 2021 to request a second fixed-term contract. His line manager was supportive of his application as the complainant was in the middle of a database changeover. The complainant was led to believe by his line manager that he would secure a second fixed-term contract for 6 months or one-year. The complainant detailed how he played an integral role in the database changeover which had not yet been completed and that it made sense, given his knowledge and expertise, for him to remain in employment until that process was complete. The complainant did not receive a response from Human Resources (HR) regarding his request until 23 March 2022. From this date until his fixed-term contract expired, the complainant was busy doing a handover and he took annual leave. The complainant spoke to a solicitor and looked at the WRC website. He understood that he had 6 months from the date of the expiry of his fixed-term contract to present a complaint to the WRC. The complainant submitted that HR were aware of his request for a further fixed-term contract and that HR should have alerted him to the requirement to refer his complaint within 6 months of the respondent’s refusal to offer him a second fixed-term contract. The complainant stated that he had no reason to object to the compulsory retirement age of 65, nor had he any reason at that stage to object to the issuing of the one-year fixed-term contract post-retirement. He was very happy in the job; there were no complaints regarding his performance; his immediate manager had expressed her desire to retain him in employment beyond the one-year fixed-term contract; and the consultant overseeing the database changeover project also wanted him to remain in employment because he knew the system. The complainant added that he had an 8-to-12-month plan mapped out to correct errors in the system once the changeover was complete, but he was denied an opportunity to complete that work. The complainant submitted that he was fully capable of doing the job.

The complainant confirmed to the hearing that the last act of discrimination was 23 March 2022 when his request for a second fixed-term contract was declined by the respondent. The complainant added that this refusal made no sense and was based solely on the complainant’s age and was discriminatory. The complainant added that he would have settled for a 6-month fixed-term contract as the system changeover project was due to be completed by August 2022. The complainant described the changeover as “his baby” and he wanted to see it completed properly which could have been achieved had he been permitted to remain in employment post the expiry of the fixed-term contract. The complainant confirmed to the hearing that he was a member of the trade union but that he had not spoken to the union regarding his request for a second fixed term contract. The complainant reiterated that he spoke to a solicitor but added that he did not have the financial resources to engage a solicitor. The complainant explained that he referred his complaint to the WRC on 17 October 2022 as he thought he had 6 months from the date of the expiry of the fixed-term contract to present a complaint.

The complainant outlined that he was aware of several people who remained in the employment of the respondent post age 66. Person A, who was employed within the land registry department, retired at age 65 but was brought back on contract until age 71. Person B, who was the complainant’s previous manager, remained in the employment of the respondent to age 70. The complainant outlined that on his commencement of employment some 20 years earlier, he was precluded from joining the pension, and that now he is in receipt of state pension only and that a family member is unwell.

The complainant detailed that his role was advertised after his fixed-term contract ended, and that he was not given the opportunity to compete for it. The complainant detailed how his role was not physically strenuous in anyway and that he was more than capable of continuing to work. The complainant referred to the respondent’s equality, diversity and inclusion policy and stated that he did not feel that he had been treated in accordance with that policy.

In cross-examination, counsel for the respondent opened Tab 9 (page 61 of the respondent’s submission) and directed the complainant to ‘Clause 7 Pension’, which provided that while the complainant was not eligible to join any of the respondent’s superannuation schemes, the respondent would pay an annual contribution of 8% of basic salary to the complainant in respect of his individual pension arrangements. The complainant confirmed that he had received this additional 8% each year but choose not to direct it towards a pension. The complainant accepted that the reason he wanted to remain on in employment was to oversee the completion of the project, and he confirmed that he had not alerted HR to any pension concern or to any concerns regarding the ill-health of a family member, but that his line manager would have been aware of the latter. It was put to the complainant that his role had not been replaced, and that his role had been subsumed into existing roles within the division. The complainant replied that he could not comment on this as he was no longer working with the company, but he accepted that this may be the case. It was put to the complainant that the role advertised was not the same role as the complainant’s role and that the role advertised was in a different division, namely renewables, to which the complainant responded that he had worked in all divisions including renewables and that the job advertised looked the same as the job he had been doing as far as he could recall from the advertisement of the vacancy.

Counsel for the respondent opened Tab 16 (page 100 of the respondent’s submission) and directed the complainant to an email dated 29 May 2020 in which the complainant had applied for an extension to his employment beyond the company retirement age of 65 in line with the JIRC interim provisions to work past age 65. The complainant accepted that he was aware of the then retirement age of 65 and the then collectively agreed JIRC interim decision on longer working and the provisions of same. The complainant confirmed that he was not disputing that a compulsory retirement age was collectively agreed, nor was he disputing the existence of the JIRC interim decision on longer working and that he had availed of the benefits of that interim decision in so far as he was permitted to work beyond the age of 65.  

Counsel for the respondent summarised the challenges facing the respondent from 2016 and the range of measures collectively agreed to save jobs and minimise the risk of compulsory redundancies and the continuing delicate balancing act required to maintain jobs and to ensure the viability of the company. This was accepted by the complainant who stated that he was aware of the challenges and ongoing negotiations in that regard. Counsel for the respondent continued that the retirement age of 65 with an extension of one-year by way of a fixed-term contract was an inherent part of the raft of measures collectively agreed, to which the complainant said: “yes, I would accept that”. Counsel put it to the complainant that it would be the respondent’s case that the company retirement policy was and remains under continuous review; that the complainant had benefitted from the introduction of the decision to allow a one year fixed-term contract after retirement age; that more recently it was agreed to allow employees to request remaining to the age of 67; and that it was an ongoing balancing act. The complainant agreed that he had benefited from the extension to the retirement age and that he could appreciate that it was a balancing act for the respondent.

The complainant accepted that HR communicated a decision not to offer a further fixed-term contract to the complainant on 23 March 2022, and added that he thought he had 6 months from the date of the expiry of the contract to present a complaint to the WRC. The complainant accepted that he had spoken to a solicitor at the time and that the solicitor had not indicated any differently.

Counsel put to the complainant that one of the individuals named by him who had remained working for the respondent after he retired at age 65 was in fact engaged as an independent contractor and not as an employee post his retirement. The complainant stated he was not aware of this and had assumed that the word ‘contractor’ meant a fixed-term worker. It was put to the complainant that he did not know the true contractual status of the other named person either, nor was the respondent able to verify this at the hearing as this was the first time the complainant had named a possible comparator. The complainant submitted that he would not have objected to returning as an independent contractor but that he was not afforded that opportunity. Counsel put it to the complainant that his work was subsumed into the roles of his colleagues on his departure. The complainant again stated that he was not able to refute that as he no longer worked for the respondent.

The complainant confirmed for the hearing that he had raised the option of returning as an independent contractor with his line manager but that he had not proposed this option to HR. The complainant also confirmed that he did not utilise the grievance procedure following the refusal of his request for a second fixed-term contract as he did not have time to do so before the expiry of the one-year fixed term contract because he was concerned to do a handover and take leave.

Opening Remarks & Preliminary Issue

Counsel for the respondent submitted that the normal retirement age of 65 was collectively agreed between the respondent and a group of trade unions, including Unite/Amicus, of which the complainant is a member. On reaching age 65 the complainant entered into a one-year fixed-term contract with the respondent in accordance with the provision for same under the collectively agreed procedure. Counsel submitted that the expiry of that one year fixed-term contract does not constitute a dismissal, but rather the exiting of service on agreed terms. Should the Adjudication Officer find that it is a dismissal within the meaning of the Employment Equality Acts 1998-2015, it is not a discriminatory dismissal having regard to s 6(3)(c) of the Acts as amended. If the complainant felt that the fixing of a term at all, or the period of the term, was not objectively justifiable he was obliged to bring his complaint within 6 months of the offering of the contract. The complainant is now out of time to make any such complaint. Counsel submitted that the complainant has not shown any reasonable cause as to why the time limit should be extended. In the alternative, and without prejudice to the foregoing, the expiry of the one-year fixed-term contract is not discriminatory and does not give rise to any prima facie case of discrimination. Further, the complainant has identified no comparator. The offering of the one-year fixed-term contract was objectively justified by a legitimate aim and was necessary and appropriate to achieve that aim, as was the decision not to offer a further fixed-term contract. The respondent relies on the decision of the Labour Court in Bord na Móna Plc v Kenny (EDA2232) in this regard.

Substantive Matter

Evidence of Ms Doyle, Head of Human Resources (under oath)

Ms Doyle confirmed that she has worked for the respondent since 2008, and more recently as Head of Human Resources.

Ms Doyle explained the challenges facing the business as it engaged on a transition strategy moving from to peat to environmentally friendly renewable energy sources by 2030 (the “brown to green” strategy) and the need for cost savings. This required significant restructuring to ensure the future success and sustainability of the business. In 2016 following very lengthy negotiations with the assistance of the WRC, the respondent concluded a new 3-year collective agreement. Counsel for the respondent directed Ms Doyle to Tab 10 of the respondent booklet which included the terms of the agreement. The agreement also provided for the setting up of a Joint Industrial Relations Council (JIRC) where matters of concern to either party could be referred for prompt resolution, the outcome of which would be binding on both parties. The council comprised of three members: one nominated by management; one nominated from the group of unions; and an external independent chairperson agreed by both parties. This agreement included a retirement age of 65 and revised terms and conditions for new entrants. The goal was to avoid compulsory redundancies. There were gains negotiated on behalf of employees also, and the complainant continued to benefit from these.

Counsel for the respondent opened Tab 11, and invited Ms Doyle to comment on the “Just Transition Agreement”, the successor to the 2016 agreement. This agreement provided inter alia for the continuation of the JIRC; pay rises; new ways of working; and retirement. The agreement acknowledged that cost reductions agreed in the 2016 agreement was predicated on a company retirement age of 65; however, a commitment was given to review the retirement policy in line with the WRC Code of Practice on Longer Working by July 2019. Ms Doyle outlined that no sooner had the 2019 agreement come into existence did the landscape change again when ESB, the respondent’s biggest customer, announced the closure of some of its peat burning plants. This placed a considerable number of jobs at risk. Counsel opened Tab 12 and Ms Doyle outlined that the JIRC considered the retirement policy in January and February 2020. The JIRC acknowledged the “current exceptional circumstances” facing the business and an interim decision was made by the committee to make available the option to employ persons post-retirement on a one-year fixed term contract. This could be revisited, if necessary, when the current crisis had passed. On 29 May 2020 the complainant made an application under the interim decision of the JIRC for a one-year fixed term contract post age 65 and this was agreed to by the respondent by letter dated 26 June 2020.

In September 2022 several months after the complainant’s employment ended, the option of applying for a second fixed-term contract was agreed by the JIRC.

Ms Doyle outlined that the approach of the respondent was to apply the retirement policy in a consistent way to all staff. To do otherwise would cause considerable difficulties. The two persons named by the complainant at the hearing retired at age 65 and one returned as an independent contractor. Ms Doyle outlined that she was unable to comment on the other person as this was the first time these individuals had been named, but she submitted that the second named individual may have been engaged on an independent contractor agreement also. There is a procurement process in place and the appointment of independent contractors is regulated.

Ms Doyle explained that after the departure of the complainant, the division was slimmed down, and the work performed by the complainant was thereafter performed by existing staff within the division. The respondent was not engaged in a major process of rehiring at that time and the complainant’s role was not back filled due to cost cutting measures.

In cross-examination the complainant put to Ms Doyle that 80% of his work was in renewals and a position like his had been advertised within that division. Ms Doyle stated that most of the database activity had been outsourced. She disputed that the role advertised was the role the complainant had held. The complainant put it to Ms Doyle that his workload had increased and that it made sense to retain him in employment. Ms Doyle responded that everyone’s work load increased at that time and that the retirement policy was a necessary part of the agreement around sustaining the business. The complainant asked why there was no flexibility in the application of the retirement policy to which Ms Doyle responded that it was critical to apply the policy consistently as to do otherwise in a company employing 1,400 staff would present considerable problems.

Ms Doyle clarified for the hearing that if an employee wished to remain beyond retirement age, they could approach the union or raise the matter via the company grievance procedure. In the case of the complainant, he made the request via email to his line manager and not through the grievance procedure. Ms Doyle confirmed that the decision not to issue a second fixed-term contract was communicated by letter on 23 March 2022.

Counsel for the respondent presented a detailed legal submission and closing remarks at the end of the hearing.

The complainant submitted that the refusal of the respondent to offer a second fixed-term contract was discriminatory on grounds of age and contrary to the Employment Equality Acts 1998-2015 (“the Acts”). The complainant presented his complaint to the WRC on 17 October 2022. The complainant outlined that he thought he had 6 months from the date of the expiry of the one-year post retirement fixed-term contract to bring a complaint to the WRC. The respondent submitted that the complainant made no application to extend the time limit for bringing his complaint. The respondent directed the hearing to the decision of the High Court in O’Donnell v Dun Laoghaire Corporation [1991] ILRM 301 and the decision of the Labour Court in Cementation Skanska v A Worker (DWT0425) and submitted that the onus is on the complainant to show that there are reasons which both explain and afford a justifiable excuse for the delay in presenting the complaint within the time limit prescribed by s 77(5)(a).

Section 77(5)(a) of the Acts 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) of the Acts provides:

“(b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly” (emphasis added).

I accept the respondent’s submission that the complainant did not object to the offering of a fixed-term contract following the complainant reaching the mandatory retirement age of 65. In fact the complainant confirmed to the hearing that he had no reason to object to the issuing of the one-year fixed-term contract. The complainant agreed in cross-examination that the one-year fixed-term contract was issued in accordance with the collectively agreed procedure and that it was fully accepted by him. At no time in the narrative of the complaint or in the complainant’s oral testimony did the complainant argue that the offering of the one-year fixed-term contract post-retirement constituted discrimination on grounds of age. I find that the complainant’s termination of employment by way of the expiry of the fixed-term contract which was issued post-retirement in accordance with the provisions of s 6(3)(c) of the Acts and accepted by the complainant, should be distinguished from a dismissal on grounds of age.  In any event, the complainant did not argue that his dismissal, on the expiry of the one-year fixed-term contract and/or its non-renewal, constituted a discriminatory dismissal. On my seeking clarity on the matter, the complainant confirmed to the hearing that the discriminatory act was the refusal to grant a second fixed-term contract: a decision which was communicated to the complainant on 23 March 2022.

I am satisfied for the reasons set out above that the occurrence of the alleged discrimination is confined to the date of 23 March 2022: the date on which the respondent declined to offer a second fixed-term contract. The complainant presented his complaint to the WRC on 17 October 2022. The complainant did not make an ‘application’ as provided for under s 77(5)(b) of the Acts to extend the 6-month time limit but he did give evidence in relation to the reason for not presenting his complaint within 6 months of 23 March 2022. The reason proffered by the complainant for the delay in presenting his complaint to the WRC, namely that he thought he had 6 months from the date of the expiry of the fixed-term contract to present his complaint, does not explain and excuse the delay. I find that the complaint has not been referred to the WRC within the time limits prescribed under s 77(5) of the Acts.

CA-00053312-001

I decide this complaint under the Employment Equality Acts 1998-2015 is not well-founded.

Compulsory retirement age. Discrimination on grounds of age. Time limits.