EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-144
PARTIES
Donal O’Leary
(Represented by IMPACT)
-v-
Mayfield Community Enterprises Ltd.
File Reference: EE/2014/181
Date of Issue: December 2015
1 Dispute
This dispute involves the claim by Mr Donal O Leary that he was discriminated against by Mayfield Community Enterprises ltd on grounds of age, in terms of section 6(2) of the Employment Equality Acts 1998 and 2008 in relation to his dismissal, by being forced to retire at age 65.
2 Background
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on 19/3/2014.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts 1998 to 2015, The Director delegated the case on 1st July 2015 to me, Patricia (Patsy) Doyle, an Equality Officer, for investigation, hearing and decision .This is the date I commenced my investigation.
A written submission was received from the complainants’ representative. The respondent forwarded a letter to the Tribunal. I undertook a Company Registration Office check subsequent to receipt of the letter and Mayfield Community Enterprises ltd is listed as trading normally. I proceeded to a hearing on 23rd July 2015.
2.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015.
3 Summary of complainant’s case
3.1 It is submitted that the complainant commenced work as a community enterprise supervisor in Northside Community Enterprise on September 1, 1994.He relocated to Mayfield in 1996 and was the sole employee of Mayfield Community Enterprises ltd on the date of his dismissal .His employment was funded by Fas (Dept. of Social Protection) as part of its support for the governments community employment scheme. He maintained continuity of employment throughout his tenure and held a contract dated 29/10/2012 which described him as full time and permanent. There are a myriad of community employment schemes around the country. In 2008, in the context of a Labour Court claim for provision of pension, the number of supervisors and assistant supervisors of CE schemes was listed as 2,200 in number.
3.2 In 2008, the Complainant undertook a third level qualification in Sociology and Community Development.
3.3 The complainants’ representative submitted that there was no fixed retirement policy in his employment. He told the Tribunal, that sometime around his 65th Birthday (Sept 2012), the complainant approached one of the Dept. of Social Protection Supervisors, Ms Unna O Donoghue who in essence managed the CE scheme. He asked whether he could extend his tenure as he had seen other CE Supervisors benefit from this arrangement on an individual basis. He named a comparator from a North Cork CE scheme.
He told the Tribunal that he wanted to work on as 2008 Labour Court Recommendation19293 provided that “an agreed pension scheme should be introduced for CE Supervisors and Assistant Supervisors” .It was the complainant’s evidence that it was not introduced up to his date of departure from Mayfield CE scheme.
He received an inconclusive response and was told that it was “unlikely “. There was no follow up on this issue .He was told verbally that Fas had a policy that community employment supervisors would not be funded after the age of 65.Mr O Leary continued to work until one week short of his 66th birthday . In or around July 2013, the Complainant was informed by the Dept of Social Protection Supervisors that his employment would cease one week before his 66th Birthday.
3.4 On 11/9/2013, the Mr O Leary received a letter from the Chairperson of Mayfield Community Enterprises:
“It is with regret that we have to inform you that as of 20/9/2013 your employment with the above organisation will cease. This is due to circumstances beyond our control. However may we wish you every success in your future career”
3.5 The complainant told the Tribunal that this caused him great upset and disappointment. His case is, that this would not have happened if he was 63 or 64 years old and had simply occurred as he was almost 66 years old .The Mayfield scheme was merged with two other local schemes in the City, Cork Social and Sporting ltd and Blackpool area group .It followed that all course participants from Mayfield transferred to these schemes prior to the complainants departure.. The complainant told the Tribunal that there was no discussions on redundancy for his position, just compulsory retirement due to his age.
3.6 The Complainants representatives submitted extensive EU case law for the attention of the Tribunal. They told the Tribunal that while “ the complainant is mindful of the provisions of Section 34(4) of the Act, the Appellant contends that this section of the Act must be interpreted in accordance with the provisions of EU law ( Directive 2000/78/EC) as well as domestic Irish Statute law.”
3.7 The Complainant sought that the 11th September letter should be considered by the Tribunal on EU Law supremacy arguments and that by terminating the complainants’ employment on age grounds alone, this constituted direct discrimination by the Employer. The Complainant had not got further employment since 20/9/2013.
4 Summary of Respondents case
4.1 The Employer did not attend the Hearing. Instead, the Chairman of Mayfield Community Enterprises, Mr Tony Walsh wrote to the Tribunal on 16th June 2015. The letter stated that Fas had withdrawn funding when Mr O Leary retired. It outlined that the Board had instructed the accountant to wind up the company and disperse remaining funds. The Chairman, Mr Tony Walsh stated that legal advice received precluded his attendance at the Hearing.
4.2 Mr Walsh referred to a copy of an email which he received from an Ms Michelle Swaine of Dept. of Social Protection which purported to refuse to cover the Boards legal costs in the case. This email was incorporated into the letter .It went on to state that
“On advice from DSP Head Office unfortunately we are not able to fund the legal costs incurred. Reason being, the CE Procedures Manual at that time ( Sept 2013) stated :All CE participant and Supervisors “ Terms and Conditions of Employment “ should include a clause stating that participants must retire on the Friday prior to their 66th birthday “
The respondent did not advance any further information and as they did not attend the hearing, I could not verify or rely on any of the above or pursue any line of questioning with them which may have assisted in my investigation .This is regrettable.
5 Further Information Sought at the Hearing:
5.1 I did ask the complainant to submit supplementary documentation to the Tribunal after the hearing date. This referred to
1P45 for the Complainant
2 Contract of Employment of the Complainant.
3 Labour Court Recommendation on a claim for payment of pension to CE Supervisors from 2008 and what followed in terms of implementation?
This was received by the Tribunal on August 22nd, 2015. I proceeded to consider and include these documents in the completion of my investigation.
6 Findings and Conclusions of the Equality Officer
6.1 The issue for me to decide now, is whether or not, the respondent discriminated against the complainant, on grounds of age, in terms of section 6 of the Employment Equality Acts, 1998 to 2008, in relation to his dismissal, by being forced to retire at age 65, one week from his 66th Birthday .In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
6.2 Section 85A of The Employment Equality acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If he succeeds in doing so, then and only then, is it for the respondent to prove the contrary. The seminal case in this regard , is Labour Court authority in the case of Melbury Developments ltd and Valpeters [1]
Section 85A of the Act provided for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. While those facts will vary from case to case there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination .However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual; basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.
6.3 The complainant was born on 26th Sept 1947. He commenced work as CE Supervisor on 1/9/1994 and worked without a break in service until 20/09/2013. He gave credible evidence to the Tribunal in stating that it was never his stated intention to retire at 65 or 66 and instead he wished to carry on until age 70 to consolidate his third level qualification and to allow time for a pension scheme recommended by the labour court in 2008 for his grade to come into being . He had no knowledge of a fixed retirement age as he had seen a certain discretion applied in practice where at least one employee was permitted to work until age 70 in a comparative CE scheme. His contract of employment signed by both parties on 29/10/2012(when the complainant had passed his 65th Birthday) described his tenure as” permanent and full time “It was silent on a retirement age clause.
He told the Tribunal that he did a good job and was disappointed when notification of a decision taken to terminate his employment issued by letter of 11th September 2013 citing “This is due to circumstances beyond our control”
Earlier conversations reported with representatives of the Dept. of Social Protection where an extension was sought to the complainants tenure beyond 65 and 66 were not followed up or acted on in terms of clarification or provision of a handbook where a fixed retirement age was mentioned or agreed with the complainant .
The date of dismissal was one week before the complainants 66th Birthday. I am satisfied that based on the above sequence of events and the facts arising that the complainant has established a prima facie case of discrimination on the grounds of age which falls to the respondent to rebut .
6.4 Ireland does not have any national Legislation which adopts a compulsory retirement age across the country.
6.5 Section 34(4) of the Acts states:
Without prejudice to subsection (3) it shall not constitute discrimination on age grounds to fix different ages for the retirement (whether voluntary or compulsory) of employees or any class or description of employees.
The Equality Tribunal has consistently adopted the practice of harmonious interpretation of Sec 34(4) with Article 6 of the Equal Treatment Directive [2]
Member States may provide those differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law , they are objectively and reasonably justified by a legitimate aim , including legitimate employment policy , labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.
This approached was adopted by Mc Kechnie J.in the High Court in Donnellan v MJELR [3]
Any discrimination with regards to age must, as put by that Directive, serve a legitimate aim or purpose, and the means taken to achieve that purpose must be appropriate and should go no further than is necessary if they should be proportionate.
6.6 This was followed in Saunders v CHC Irl ltd [4] where the Equality Officer held that he was obliged to interpret 34(4) in light of article 6 Framework Directive which meant that if an employer wished to lawfully rely on a retirement age within contract, it must satisfy a Tribunal that it is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary[5]
I am satisfied that the complainant has satisfied the burden of proof necessary in this case to establish a prima facie case of discriminatory dismissal and it is necessary for the respondent to rebut the presumption.
6.7 I have considered the facts in this case carefully. It is regrettable that the Employer chose not to attend the Hearing. However, it is doubly regrettable that there seemed to be an excessively casual approach adopted to the topic of the complainants’ retirement by the same Employer. Mr O Leary had been attached to the CE scheme for 19 years on the date of his termination of his employment. This ought to have crystallised into at the very least a tri partite discussion between his Employer, Mayfield Enterprises ltd, the main funder Fast (DSP) and the complainant .Mr O Leary contended that he had a lot more to offer in the role of CE supervisor and this contention deserved discussion and debate long before the issuing of the 11/9/2013 letter which confirmed that his position would end unilaterally, one week later in Mayfield.
I am satisfied that the contract of employment was silent on retirement age. The sole grounds permitting a dismissal under contract were breaches of the Disciplinary policy, which did not arise in this case. I am also satisfied that a clear “custom and practice “retirement age was not evidenced by either the complainant or the respondent. Mr O Leary was the sole employee of Mayfield Enterprises ltd, this should have prompted a more robust duty of care towards him. I am mindful here of the wording in LCR 19293, Various Community Employment Schemes and IMPACT and SIPTU (2008)
An agreed pension scheme should be introduced for CE Scheme supervisors and assistant supervisors. This scheme should be adequately funded by Fas as the recognised funding agency. The parties should engage without delay to bring this about, being mindful that no adverse consequences for workers employment should arise therefrom.
I asked at the Hearing whether progress had followed this 2008 recommendation which was binding on the Union, I was informed that implementation was outstanding. I find that Mr O Leary was an intended beneficiary of this recommendation and while a state pension was payable from age 66, no provision was made to protect Mr O Leary’s interests in regard to the introduction of a work based pension scheme prior to his termination of employment .
6.8 In Earagail eisc Teo v Richard Lett[6] The Labour Court adopted an insightful criteria which is helpful in deciding this case. The complainant had also alleged discriminatory dismissal on grounds of age.The Court found that discrimination on age grounds followed where:
The Complainant did not have active or constructive knowledge of either a handbook or of a fixed retirement age of either 65-66. The respondent had ample opportunity to inform the complainant of a requirement that he retire at the age of 65 or 66 over the currency of his employment. No evidence was adduced of the complainant having been so informed or having been provided with any document from which such a requirement could have been discerned. There was no express term in his conditions of employment requiring him to retire at either age and in the Courts opinion, no such term can be regarded as having been implied or incorporated on any of the accepted tests. In these circumstances, the Court must hold that the respondent had not fixed a retirement age in respect of the complainant and that he was dismissed because of his age..
6.9 The respondent did not make themselves available to the Hearing, consequently they failed to rebut the prima facie case of less favourable treatment on the grounds of age. Accordingly, I am satisfied that the complainant was discriminated against on grounds of age by the respondent.
It may have been of benefit if the complainant had activated the grievance procedure in accordance with his terms and conditions of employment in July 2013.
Decision of the Equality Officer
7.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts 1998-2008 I issue the following decision. I find that
7.2(1) The complainant was discriminated against by the respondent on grounds of his age in terms of section 6 (2) of the Employment Equality Acts 1998 to 2008 .and contrary to section 8 of those Acts in relation to his dismissal on 20/9/2013.
(2) Section 82 of the Employment Equality acts 1998 to 2008 provides that I can make an order for the effects of the discrimination. This should be proportionate, effective and dissuasive.
Mr O Leary clearly enjoyed his job and honestly believed that he had more to offer the CE scheme and that his age did not disadvantage him in that regard. I am mindful of the complete absence of participation by the Employer in the investigation and hearing of this case .The withdrawal of funding which led to Mr O Leary’s dismissal was actioned to coincide with his 66th Birthday and the Employer through their non-attendance did not rebut the prima facie case .
7.3 Having regard for the rate of pay that the complainant was in receipt of on 20/9/2013, I consider an award of €25,000 to be just and equitable.
7.4 Therefore, in accordance with S 82 of the Employment Equality acts 1998 to 2008, I order that the respondent pay the complainant €25,000 in compensation for his discriminatory dismissal. This award is in compensation for the distress experienced by Mr. O Leary in relation to his dismissal and is not in the nature of pay , and therefore not subject to tax .
___________________
Patsy Doyle
Adjudicator Officer/Equality Officer
December 2015
[1] EDA 0917 [2010]21 ELR 64
[2] Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation .
[3] [2008]IEHC 467 para 126
[4] DEC E2011-142
[5]Bolger, Bruton and Kimber, Employment Equality Law, 1st edition, 2012.
[6] EDA 1513 July 2015 Labour Court