EDA2433

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00037279 (CA-00048648-001)

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts,
1998 to 2015 on 5 March 2024. A Labour Court hearing took place on 27 August 2024.

The following is the Determination of the Court:

DETERMINATION:

Background to the Appeal

This is an appeal by Mr Carl Davidson (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00037279, dated 29 January 2024) under the Employment Equality Act 1998 (‘the Act’). The Complainant contends that he was discriminated against on grounds of age when compelled by his former employer – Amari Ireland Limited (‘the Respondent’) - to retire on reaching the age of sixty-six. Notice of Appeal was received in the Court on 5 March 2024. The Court heard the appeal in Dublin on 27 August 2024. Sworn evidence was given by the Complainant and by two witnesses for the Respondent: Mr Declan Kerins and Mr Robin Malcolm.

The Factual Matrix

The Complainant commenced employment with the Respondent as a Product Specialist/Sales role on 25 April 1994. His contract of employment provided that his sixty-fifth birthday would be his normal date of retirement. In the Complainant’s case, that date fell on 22 September 2020. It is common case that the Complainant let it be known some time in advance of his sixty-fifth birthday that he wished to continue working beyond his contractually agreed retirement date. It is also common case that he was offered and accepted a one-year fixed-term contract of employment that was stated to expire on the date of his sixty-sixth birthday. The Complainant’s employment with the Respondent ultimately terminated in accordance with the terms of the aforementioned fixed-term contract on 22 September 2021. The Complainant has obtained part-time employment elsewhere in the meantime.

The Complainant referred his complaint under the Act to the Workplace Relations Commission on 15 February 2022. In the narrative section of the complaint form, the Complainant stated his complaint to be as follows: “I was dismissed because of my age. Having worked with this business since 1994, I was dismissed because of my age without consultation”. The Adjudication Officer to whom the case was assigned decided that the complaint was not well-founded and no discrimination had occurred.

The Complainant’s Evidence

The Complainant gave an outline to the Court of the history of his employment with the Respondent and the role that he performed. He said he was aware that his contract provided for a mandatory retirement date that coincided with his sixty fifth birthday but that approximately two years before that date he approached the Respondent’s then-Managing Director – Mr Robin Malcolm – following a routine meeting, to let it be known that he would like to continue in the Respondent’s employment beyond his contractual retirement age. The Complainant’s evidence is that Mr Malcolm told him that that would be no problem as he had been with the company for a very long time. The Complainant said that on the basis of what Mr Malcolm said to him at that meeting he formed an expectation that his request to work beyond sixty-five would be accepted. He next said that some months later he was instructed by his line manager at the time, Mr Declan Kerins, to put his request in writing to Mr Malcolm. He did so as follows in an email dated 19 June 2020:

“Unfortunately the time has almost arrived which will see my contract with Amari Ireland come to an end on 22nd September this year. However, never being one to be idle or ready for the ‘pipe and slippers’ as they say, I earnestly request to continue in Amari’s employment after the aforementioned date. I hope you can look favourably at this request.”

The Complainant next told the Court that he was issued with a one-year fixed-term contract of employment by the Respondent which he signed and returned before 22 September 2020. His evidence was that, prior to signing the fixed-term contract, he had asked Mr Kerins if the fixed-term contract could be for a period longer than one year and Mr Kerins, he said, told him that the Respondent could only issue him with a contract on a year-to-year basis. He also said that he had an expectation based on Mr Kerins’s reply that he would get further yearly contracts and would not be confined to a single one-year fixed-term contract.

The Complainant was then asked by his own Counsel about a meeting he had with Mr Malcolm again prior to the Complainant signing the one-year fixed-term contract, which meeting is referred to in the Respondent’s written submission to the Court. The Complainant said he accepted that Mr Malcolm had given him several reasons as to why, in the Respondent's view, there was no justification for offering him anything other than a one-year fixed-term contract. Those reasons advanced by Mr Malcolm, he agreed, were connected with the Respondent’s need to promote a balanced age structure within its sales team, 70% of whom were due to retire within the following ten years. He also indicated that he did not necessarily agree with Mr Malcolm’s reasoning.

The Complainant next told the Court that he applied for ‘a second extension’ to his employment with the Respondent in August 2021 but was told that this could not be justified and that he ought to have made an application in writing for this at least three months before the expiry of his current contract. He said he was given no reasons for the Respondent’s refusal, so he subsequently sent an email to Mr Malcolm outlining his disappointment. In that email the Complainant wrote:

“It has been almost two weeks since we spoke and I have had time to reflect on my situation as it stands. As you would have been aware for the last few years, it was always my wish to carry on working after 65 and I subsequently signed a contract for another year in the hope of carrying on further thereafter. I have to say I left your office totally dejected, deflated and you could say somewhat confused as to the reason or reasons why the decision was made to enforce my retirement. I have numerous questions going through my mind and I don’t seem to be able to come up with any logical answers. At the time we spoke, I don’t think I was in the right frame of mind to ask these questions of you as I was extremely disappointed.”

The Complainant said he did not receive any reply from Mr Malcolm to this email and his retirement was duly enforced by the Respondent on 22 September 2021. Counsel opened a letter dated 13 September 2021 from Mr Malcolm to the Complainant in which Mr Malcolm ‘confirmed’ the Complainant’s forthcoming retirement on 22 September 2021 and thanked him for his 27+ years of service to the company.

Finally, the Complainant in his direct evidence outlined his current employment situation. He said he is working four days per week as a warehouse manager and earning €44,000.00 per annum. The role involves some office work, some work in the warehouse and also work in the manufacturing side of the business.

Under cross-examination, the Complainant accepted that Mr Malcolm had set out the Respondent’s reasons for offering him only a one-year fixed-term contract before the Complainant signed that contract. The Respondent’s Representative referred the Complainant to the copy of the fixed-term contract contained in the Complainant's own book of papers and observed that the written contract is headed as follows: ‘Post-retirement Fixed-term Contract of Employment’. The Complainant also accepted that the contact itself sets out the fixed term of its duration as being the period commencing 23 September 2020 and ending on 22 September 2021 and that it does not indicate any potential for an extension to that period.

The Complainant was then referred to paragraph 12 of his submission to the Court where it is contended that:

“The Respondent was willing to extend the Appellant’s contract by way of a fixed-term contract for a period of 1 year to 22nd September 2021. The Appellant duly signed the said contract with the express expectation and understanding from the meeting with Mr Malcolm that he would continue on working beyond the fixed-term date.”

The Respondent put it to the Complainant that the language used in his submission indicating that he had had ‘an express expectation and understanding’ of continuing his employment beyond September 2021 is in marked contrast to what he had said in his email of 10 September 2021 to Mr Malcolm when he referred to having signed his one-year contract ‘in the hope of carrying on further thereafter’.

The Respondent then invited the Complainant to comment on paragraph 16 of his submission in which he suggested that the Respondent was ‘in effect unilaterally enforcing the retirement provisions of the contract’. It was put to the Complainant that there is no retirement provision in the contract of employment under which he was employed between September 2020 and September 2021.The Complainant accepted this to be the case. Likewise, the Complainant was asked about paragraph 18 of his submission in which he contends that he was not offered a right to appeal from the Respondent’s decision to terminate his employment with effect from 22 September 2021. It was put to him that he signed a fixed-term contract with a clear termination date in it and that he did not raise a grievance about this at any time between the start and finish date of the contract. The Complainant replied that he didn’t know that he could do so.

Finally in cross-examination, it was put to the Complainant that there were other colleagues in the Sales Team who had also been given a single one-year post retirement fixed-term contract of employment to bridge the gap between retirement and the qualifying age for the State pension, including Mr SR and Mr FL. The Complainant accepted that that was correct but was unsure how long either person had actually remained working after their contractual retirement date.

Evidence of Mr Declan Kerins

The witness told the Court that he is now Managing Director of the Respondent company in which he has worked since 1983. He said that the Respondent employs about twenty-six staff, many of whom have long service with the company. He said the Sales Team comprised twelve employees during the Complainant’s tenure – including the witness himself and Mr Malcolm. According to the witness, eight members of the Sales Team in 2020 would have been due to retire within the following ten years and that this had given rise to a concern about succession in the business and about the business’s ability to continue to renew itself. He also observed that there was, of course, no guarantee that every employee would continue working until retirement age.

The witness told the Court that he was aware of requests from four employees to continue working beyond their contractual retirement age. In each case, he said, the employee concerned was offered a one-year fixed-term contract to ensure they could bridge the gap up until they qualified for the State pension. The witness expressed the view that this practice was widely known of throughout what is a very small company.

The witness’s evidence then turned to his engagement with the Complainant about the latter’s request to work beyond age sixty-five. He said that he directed the Complainant to Mr Malcolm who was the Managing Director at that time as he didn’t want there to be any confusion about matters.

Under cross-examination, the witness agreed that Mr Malcolm had remained working in the company beyond age sixty-six. He said he was not aware of any other employee who had done so. The witness was asked about management’s alleged concern about the age profile of the Respondent’s Sales Team and how that had come about. He said that each year, the company had a business forecast meeting with its shareholder and that a perennial concern for the shareholder is the age profile of the staff cohort, in the context of ensuring business continuity.

Evidence of Mr Robin Malcolm

The witness told the Court that he is now retired having worked for the Respondent for forty-one years. He said he had known the Complainant before the Complainant had started working for the Respondent as he had previously been employed by a competitor.

The witness’s recollection is that he first spoke to the Complainant about the latter’s retirement some eighteen months before his contractual retirement date. He said the Complainant followed up that conversation by making a written application to remain in employment beyond his contractual retirement date. The witness said he had given no expectation to the Complainant of anything but a one-year fixed-term contract and that the reason for that was the company’s concern about the age profile of the Sales Team. He said that this had been an issue for the previous ten years in the context of the board’s annual meeting with the single shareholder who routinely asked at those meetings if any ‘new blood’ had been introduced since the previous such meeting. According to the witness, the shareholder’s representative had also raised similar concerns whenever he visited the company from the United Kingdom.

According to the witness, the purpose of issuing the Complainant a one-year fixed-term contract of employment should have been very clear to him and that purpose was to bring him to the qualifying age for the State pension. The witness said that the Complainant ought to have also understood that any further contract beyond that age was ‘highly unlikely’.

The witness referred to the meeting that took place between him and the Complainant at the end of August 2021. The witness said that he initiated that meeting to confirm that the Complainant’s employment would terminate on 22 September 2021 in accordance with the provisions of his fixed-term contract of employment. He said that the Complainant did not make any request for a further contract at that meeting. The witness also said he asked the Complainant if he required the witness to make contact with the pension provider on his behalf. He said that the Complainant replied that he didn’t because he had all of that ‘boxed off’, from which the witness said that he concluded that the Complainant was focused on leaving his employment.

The witness’s evidence then turned to the Complainant’s email of 10 September 2021 (referred to and quoted above). The witness said he had not replied to that email because he viewed it simply as a statement of fact from the Complainant that did not make any request of him (the witness).

Finally, in direct examination, the witness was asked why his final letter to the Complainant dated 13 September 2021 did not offer the Complainant a right to appeal his termination. He replied that there was a grievance process available to the Complainant which he did not avail himself of between September 2020 and September 2021.

In reply to questions put to him in cross-examination, the witness said that although he was the Managing Director of the Respondent, he did not have a carte blanche when it came to make decisions, for example, in relation to amending employees’ terms and conditions. These were matters over which the shareholder retained control. If a decision was required in relation to such a retained matter, the Managing Director was required to raise it via the UK-based Regional Director who had authority to deal with it on the shareholder’s behalf. The witness said that that process had been followed in relation to granting the Complainant his one-year post-retirement fixed-term contract.

The witness also confirmed that he was seventy-one years old when he retired from the Respondent. He stated emphatically that no other employee of the Respondent had worked for it beyond the age of sixty-six. He explained that the reason why he had done so was because Mr Kerin’s had been chosen by the shareholder to succeed him as Managing Director but that Mr Kerin’s had been seconded to manage three related companies in the United Kingdom for a number of years.

Discussion and Decision

It was agreed at the outset of the hearing of the within appeal, that a key issue in dispute between the Parties arose from their differing positions about the Complainant’s expectations about his ongoing employment with the company beyond his sixty-fifth birthday. His evidence is that he had an expectation of working for a number of additional years based on a conversation he recalls having with Mr Malcolm in 2018. On the other hand, Mr Malcolm was very firm in his evidence that the conversation in question took place at a later date – in 2019 – and that on that occasion he had made it clear that because of the Respondent’s concerns about the age profile of its existing Sales Team there would be no possibility of giving the Complainant anything longer than one fixed-term contract of employment to take him up to the qualifying age for the State pension. Mr Malcolm’s uncontradicted evidence was that the Respondent had been consistent in treating all employees who made a request to extend their employment beyond their agreed contractual retirement date in the same manner i.e. by offering them a single additional one-year fixed-term contract. The Court has no reason to doubt the veracity of what Mr Malcolm said was the well-known practice of the company in this regard arising from the manner in which four out of twenty-six employees had been treated.

The Court found Mr Malcolm to be a very impressive witness whose evidence was consistent, considered and firm throughout. By contrast, the Complainant’s evidence was not always consistent and it was difficult at times to elicit a direct answer from him, particularly when he was asked by the Court to explain the basis for his expectation that he would receive more than one additional fixed-term contract post his contractual retirement age. It is also worth noting that when he wrote to Mr Malcolm shortly before the expiry of his fixed-term contract, the Complainant said that it had been his ‘hope’ to continue working for the Respondent thereafter; however, when it came to drafting his submission to the Court, what had been a mere hope had been transformed into an ‘express expectation and understanding’ that he would continue working beyond that date.

Having carefully considered the Parties’ submissions and the evidence before it, the Court finds that the Respondent’s position offers a coherent and non-discriminatory explanation for its decision not to offer the Complainant a further contract of employment following the expiry of his one-year post-retirement contract of employment on 22 September 2021. The Respondent had genuine concerns, in the Court’s view, regarding future succession within its Sales Team having regard to the ageing profile of that team. It therefore sought to achieve a prudent balance between acceding to individual staff members’ requests to work beyond their contractual retirement age and future workforce planning and renewal. In doing so, the Respondent did not discriminate against the Complainant on grounds of age or at all.

For these reasons, the Court finds that the appeal fails. The decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
SOC	______________________
30 August 2024	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Sinéad O'Connor, Court Secretary.