Complainant

Respondent

Parties

Tom  Barry

360 Degrees Complete Maintenance & Project Management Ltd.,

Representatives

  Self-represented

 Padraig Foley

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00055749-001

27/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00055749-002

27/03/2023

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

CA-00055749-003

27/03/2023

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

CA-00055749-004

27/03/2023

The Complaint Form was received by the Workplace Relations Commission on 27 March 2023.

The Complainant attended and swore an affirmation at the outset of hearing.

Mr. Padraig Foley appeared on behalf of the Respondent and swore an affirmation.

No documentation or submissions were received the parties.

The parties were invited to cross examine each other at the hearing.

It was the Complainant’s case that he commenced worked on 1 October 2016 until 28 September 2022. He was a Sales Manager and earned €605 fortnightly.

The Complainant gave evidence that he was 68 years of age.

CA-00055749-001

It was the Complainant’s evidence that he received a phone call from his employer , Mr. Padraig Foley, and his father, asking to meet with him. When he attended the meeting he was told that he was being made redundant but when he asked, he was told he was not entitled to any payment. It was his evidence that the Respondent told him its accountant advised that he was not eligible for a redundancy payment.

It was submitted by the Complainant that he was unfairly selected for redundancy. He gave evidence that he was told by the Respondent , at that meeting, that Mike Foley was returning to work for the Respondent

It was the Complainant’s evidence that he asked his employer to sign a RP50, but nothing was forthcoming.

CA-00055749-002

The Complainant accepted he was paid €1,000 notice pay in July 2022.

CA-00055749-003

The Complainant gave evidence that he never received a contract of employment.

CA-00055749-004

It was the Complainant’s evidence that he was very upset at the treatment he received from his employer because of his age. He now must rely solely on the state pension and believes he was discriminated against on the grounds of his age.

CA-00055749-001

It was the Respondent’s evidence that due to financial challenges the Respondent had to lay off two staff but were advised that the Complainant was not eligible for redundancy.

CA-00055749-002

It was submitted that the Complainant was paid his notice in Q2 of 2023. Mr Foley accepted the payment was late which was due to financial difficulties.  

CA-00055749-003

It was the Respondent’ s evidence that the Complainant was given a contract but did not have proof of same.

CA-00055749-004

It was the Respondent’s evidence that the Complainant was not dismissed because of his age. It was Mr Foley’s evidence that he was advised that the Complainant was not entitled to redundancy. Upon inquiry it was confirmed by Mr Foley that another employee did receive redundancy and she was younger than the Complainant.

CA-00055749-001

There is no dispute between the parties that the Complainant was made redundant. The dispute arises as to whether the Complainant was entitled to a redundancy payment.

Section 4 (1) of the Redundancy Payment Act 1967 as amended by the Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007, provides:-

“(1) Subject to this section and to section 47, this Act applies to—

(a) employees employed in employment which is insurable for all benefits under the Social Welfare Consolidation Act 2005,

(b) employees who were so employed in such employment in the period of four years ending on the date of termination of employment, and

(c) employees who have attained the age of 66 years and are in employment that would be insurable for all benefits under the Social Welfare Consolidation Act 2005 but for—

(i) their attainment of that age, or

(ii) the fact that the employment concerned is excepted employment by reason of paragraph 2, 4 or 5 of Part 2 of Schedule 1 to that Act.”

The Complainant gave evidence that he was over the age of 66 at the time of redundancy and continued to be employed without exception with the Respondent beyond this age. He confirmed he was in receipt of the State Pension.

Section 7 sets out the General Right to Redundancy as:-

“7.—(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.”

The Complainant was employed since 2016 on a continuous basis.  In the event the Complainant has been in insurable employment under the Social Welfare Acts during the relevant period he is entitled to a redundancy payment.

I find the Complainant’s appeal is allowed under the Redundancy Payments Acts 1967 – 2012.

CA-00055749-002

I find the complaint is not well founded on the basis that both parties accepted the sum of €1,000 was paid as notice to the Complainant albeit some months after it was due

CA -00055749-003

Section 3 (4) of the Act states-

“A statement furnished by an employer shall be signed and dated by or on behalf of the employer.”

On the basis there is no evidence presented of a contract of employment being provide to the complainant I find the complaint is well founded.

As per Section 7 of the Act, there is provision to pay the employee compensation of such amount as the adjudicator considers just and equitable having regard to all the circumstances, but not exceeding 4 weeks’ remuneration.

CA-00055749-004

Section 6 (1) of the Employment Equality Act 1998 -2015 defines discrimination as:-

“(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.”

Section 6 (2) sets out the test for determining discrimination on the grounds of age:-

“(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”),”

Burden of proof

Section 85A(1) of the Employment Equality Acts 1998-2015 provides:

“Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary”.

Accordingly, the burden of proof rests on the Complainant to establish facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.  In Mitchell -v- Southern Health Board [2001] ELR 201, the Labour Court emphasised that the claimant:

“. . . must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.” 

It was undisputed that the Complainant was 68 years old. It was undisputed that he did not get a redundancy payment, but it was agreed he was made redundant. I was undisputed that his colleague, a female in her forties, who was also dismissed by way of redundancy received from the Company.  On the basis of the evidence before me , the Complainant has established a prima facie case of discrimination on the grounds of age.

It has now been established that the Complainant is entitled to a redundancy payment provided he has the required social welfare contributions and was in insurable employment.

Therefore, the question remaining; was the Complainant discriminated against on the grounds of his age by not receiving a redundancy payment compared to his colleague?

The reality this case is there is little to no documentary evidence replied upon by the parties. Consequently, the only evidence before me is the oral testimony of the parties. The only defence put forward by the Respondent was that it was advised the Complainant was not entitled to a redundancy payment. No further explanation was given.

While the Respondent may have been advised , the obligation rests with the employer under the Employment Equality Acts and not any third-party adviser. Consequently, in the absence of any evidence of a defence to the Complainant’s complaint , I find he was discriminated against on the grounds of age.

Redress

Section 82 addresses redress:-

“Subject to this section, the types of redress for which a decision of the Director General of the Workplace Relations Commission under section 79 may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:

(a) an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 3 years before the date of the referral under section 77(1) which led to the decision;

(b) an order for equal remuneration from the date referred to in paragraph (a);

(c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77;

(d) an order for equal treatment in whatever respect is relevant to the case;

(e) an order that a person or persons specified in the order take a course of action which is so specified;

 (f) an order for re-instatement or re-engagement, with or without an order for compensation.”

Considering the fact it has been over 12 months since the Complainant was made redundant I find compensation to be the most appropriate form of redress.

CA-00055749-001

I find that the Complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payments Acts 1967 -2014, in accordance with the following details:

Date of commencement of employment: 1 October 2016

Date of termination of employment: 28 September 2022     

Gross weekly pay: €302.50

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

CA-00055749-002

I find the complaint is not well founded.

CA-00055749-003

I find the complaint is well founded.

Having regard for all the circumstances of this complaint I am awarding the Complainant compensation in the sum of €605 as being just and equitable.

CA-00055749-004

I find the Complainant was discriminated against on the grounds of age. Having regard for all the circumstances, I am awarding him the sum of €10,000 compensation as being effective, dissuasive, and proportionate to prevent further incidents of workplace discrimination.

Redundancy payment – over age of 66 – discrimination on the grounds of age