Complainant

Respondent

Parties

Padraic  Kenny

Bord Na Mona

Representatives

  Self

IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00056799-001

19/05/2023

The Complainant's case was that he was discriminated against on grounds of age. The Respondent refuted this and filed preliminary submission regarding the time limits and explained how the Complainant's post retirement fixed term contract came to a natural expiry on the 17 August 2021. The Respondent submitted that the Complainant's contract of employment terminated on this date. It pointed out that the Complainant waited until the 19 May 2023 (21 months later) to submit his complaint to the WRC. It submitted that this complaint was clearly outside of the timeframe as set out in the Employment Equality Act 1998.

The Complainant filed his complaint with the WRC on 19 May 2023.

He set out that he had worked for the Respondent since 3 October 1980.  He celebrated his 65th birthday on 7 November 2019.

He submitted that before reaching his 65th birthday he applied to remain in employment with the Respondent. Initially he was refused, however after several communications he was offered a one-year contract and was allowed to resume work nine months later commencing on 17 October 2020. He continued working until 16 August 2021.

He applied for a further one-year contract by letter 1 July 2021. He received a reply from the Respondent dated 8 July 2021 stating that he would not be offered an additional external contract.

The Complainant's case that it came to his attention that the Respondent had offered other employees two-year contracts or even more after their 65th birthday.

He submitted that he should have been offered an additional second contract and for failing to provide same the Respondent had discriminated against him and he was seeking compensation of the loss of a year’s salary.

In response to the Respondents submission that the Complainant was out of time, the complainant stated that he only became aware of the information that the Respondent was providing a second fixed term contract when he met a co-worker who updated him of the work practice in May 2023.

The Respondents position was that the complaint was submitted out of time and should not be heard. It requested that I make a preliminary decision for moving to the substantive case.

It acknowledged that the Complainant did request to work an additional year in July 2021, however the Respondent replied on the 8 July 2021 in line with the Bord Na Mona JIRC Retirement Age Interim Decision (C-164883-20) between Bord Na Mona/Group of Unions (see Appendix 7) and stated:

“The company (Bord Na Móna) should make available the option to employ people to work on a 1-year fixed term contract in the following circumstances:

a) In the case of any worker who before now has registered a grievance with the Company relating solely to being retired at age 65 years to be offered a fixed term contract for 12 months,

subject to satisfactorily passing a medical examination in advance. No other medical should arise during the period unless in the normal course of events a health issue subsequently arises, which should be dealt with, as it would for other employees, in the normal way;

b) Staff exercising this option may have to be flexible in the nature of the work they undertake during this fixed term contract however the work to be undertaken should be comparable in nature to their current role;

It submitted that no discrimination occurred as the Respondent had normal retirement age and had agreed on a work process beyond that age with the Group of Unions as part of Internal collective bargaining.

It submitted that in 2022 the agreement between the Respondent and the Group of Unions under the JIRC was updated and that since September 2022 it is possible to apply for an employee aged over 65 to apply for a second fixed term contract. This opportunity was not applied retrospectively.

It submitted that the Complainant was not discriminated against. 

Section 77 (5) of the Employment Equality Act 1998 as amended set out

a) 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.

(b) On application by a complainant the [Director General] 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.

The Complainant's request for a second fixed term contract was declined on the 8 July 2021. The Complainant's employment with the Respondent ended on 16 August 2021. Even allowing a 12 month period for the Complainant to bring his complaint, this would have given the Complainant window open to the 15 August 2022 to file a complaint. The WRC received the Complainant's complaint on 19 May 2023.

While I note that the internal rules regarding continued employment after contractual retirement age has changed within the Respondent, this does not give the Complainant an opportunity to bring a complaint such a considerable period of time after the time limit to do so has expired.

It is accepted practice in all legal systems that time limits for bringing complaints are necessary to give certainty and fairness to all of the parties involved.

The complaint that the Complainant was discriminated was not lodged within the timeframe provided by Section 77(5) of the Employment Equality Acts and therefore, I have no jurisdiction to investigate the matter.

This complaint is not well founded. 

Time limits. 

Section 77(5) of the Employment Equality Acts