Complainant

Respondent

Parties

Michael  O'Leary

Greystones And District Credit Union Ltd

Representatives

Lorna Madden BL instructed by Natasha Murphy Michael Powell Solicitors LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 5 of the Central Bank (Supervision and Enforcement) Act, 2013

CA-00064082-001

13/06/2024

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

CA-00064082-002

13/06/2024

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

CA-00064082-003

13/06/2024

The Complainant commenced working with the Respondent on 18 February 2020. He was employed as a Compliance and Risk Officer. He stated that he was discriminated against by the Respondent on age grounds when they terminated his employment because he turned 67 years old. He also stated that he was owed outstanding pay.

CA-00064082-002:

The Complainant stated that he was due to retire upon reaching his 67th birthday on 29 October 2023, as stipulated in his contract of employment. He sought a 12-month extension which was refused.  

He stated that the Respondent’s refusal to extend his contract constituted discrimination on age grounds and highlighted that the Credit Controller worked with the Respondent until he was 73 as did the Anti Money Laundering Officer who was employed until she was 70.

He also stated that he suffered a huge decrease in income as a result of his enforced retirement.

CA-00064082-003:

The Complainant stated in the first instance that he received an amount of €997 into his bank account on 14 December 2023 from the Respondent and that he did not know what this was for.

He also sought payment of €661.53, which he stated referred to the week he worked after his retirement as he was not instructed not to work.

CA-00064082-002:

In May 2023, when the Complainant first inquired of the CEO about working beyond his retirement age, he was informed that this was a matter which the Board would have to consider. Following a further conversation in September, the Respondent sent a letter to the Complainant on 13 October 2023 indicating that he would be offered a six-month fixed term contract following his retirement date. The reasons for offering the Complainant a six-month contract was that the Respondent’s wished to outsource the Complainant’s role due to the potential cost savings of doing so, and also to separate the Risk and Compliance functions, as is recommended best practice. The letter clearly stated that the Complainant was being offered a 6-month fixed-term contract, to allow the Board time to appoint new providers, and ensure an effective handover process, and also to facilitate a sufficient period time for the new providers to work toward the 2024 year-end reporting on a stand-alone basis.

On 26 October 2023, the Respondent sent the Complainant a six-month fixed term contract by email. The email set out that the Complainant would retire from his permanent employment with the Credit Union on 29 October 2023 and asked for the six-month contract to be returned by COB on the 2 November 2023.

On 1 November 2023, the Complainant sent two emails raising issues with outsourcing the Risk and Compliance function and the offer of a 6-month contract. On 3 November 2023, the Respondent emailed the Complainant noting that he had neither accepted nor declined the 6 month contract and allowed him until 9 November 2023 to return the signed contract. In the same email the Respondent made clear that the Complainant was out-of-contract following his retirement on 29 October 2023 and that he should not be conducting any work for the credit union as he was no longer in employment or on the payroll. The Complainant replied on 3 November 2023 indicating that the Respondent would be receiving communication from his legal advisors.

On 11 November 2023, the Complainant returned a signed fixed term contract which he had unilaterally amended to a 12-month fixed term contract. This was not accepted by the Respondent. On 17 November 2023, the Respondent wrote to the Complainant indicating that the offer of the 6-month contract had lapsed and noted that the Complainant had declined to accept the offer of the six-month contract following his retirement.

CA-00064082-003:

The Respondent stated that their employees get paid on a Thursday for the previous week. The Complainant was paid on a weekly basis up until his retirement on the 29 October 2023. The Complainant’s last two payslips dated 26 October and the 2 November 2023 were for the Complainant’s final two weeks of working with the Respondent and were received by the Complainant at his work email address.

The €997 received in December 2023 was holiday pay due to the Complainant. The Complainant was emailed his payslip relating to the €997 to his work email address, however, at that stage his email address had been deactivated. The Respondent’s payroll is outsourced to an external provider and the only contact details this provider has for employees is their work email address.

The Respondent’s position is that the Complainant has been paid all amounts due to him.

CA-00064082-002:

Section 77 of the Employment Equality Acts states;

(5) (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 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

Findings

I note firstly that the Complainant’s employment with the Respondent ended on 29 October 2023 and this complaint was not submitted to the WRC until 13 June 2024, outside of the six month timeframe set out in section 77 (5) (a) of the Act.

Although he sought to extend the timeframe, in line with section 77 (5) (b), on the basis of delays caused by his solicitor, the Labour Court highlighted in their decision in Huseyin Turkay v Pamukkale Trading Co Limited Anatolia Cafe And Restaurant (DWT2427) that “It is well established in case law …. that the failure by a representative to submit complaints within the statutory timeframes does not constitute reasonable cause for the purposes of providing for an extension of time.”

Considering the foregoing, I find that I do not have jurisdiction to hear this complaint.

CA-00064082-003:

Section 1 of the Payment of Wages Act 1991 (“the Act”) defines wages as:

“any sums payable to the employee by the employer in connection with his employment, including—

(a)   any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise,”

In Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) Limited -v- Lacey [2007] 1 1.R. 478, it was stated a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under the Payment of Wages Act 1991.  While each case will turn on its own particular facts, it is necessary to ascertain, in the instant case, (1) whether the pay constituted a term of the Complainant’s contract and (2) if has there been a contravention of Section 5 of the Act.

On the basis of the evidence presented to me, I am satisfied that the Complainant was paid in full in respect of his entire period of employment with the Respondent up to and including 29 October 2023 and that the payment he received on 14 December 2023 related to his outstanding holiday payment.

I therefore find that this complaint is not well founded.

CA-00064082-001: This complaint was withdrawn.

CA-00064082-002: I find that I do not have jurisdiction to hear this complaint for the reasons set out above.

CA-00064082-003: I find that this complaint is not well founded for the reasons set out above.