ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014152
Assistant Staff Officer
Dorothy Donovan, B.L.
Tom Mallon, B.L., instructed by Eversheds Sutherland, Solicitors
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 18/12/2018
Workplace Relations Commission Adjudication Officer: Joe Donnelly
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015 and/or Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The complainant had been employed by the respondent since 1998 being made permanent in 2002. In 2005 the complainant signed a contract of indefinite duration (CID) which stipulated that she would retire at age 65. The complainant sought and was granted a one-year extension to her contract as she was not eligible to receive her state contributory pension until she reached 66 years of age. The complainant sought and was granted a further one-year extension in 2017 which was due to terminate in February 2018. In January 2018 the complainant requested a further extension which was refused. The complainant appealed this decision and eventually was granted a 3-month extension to enable the taking of annual leave which she was due. The complainant’s employment terminated on 2 May 2018 by which time she had referred her complaints to the WRC.
Summary of Complainant’s Case:
The complainant’s employment was terminated by virtue of her age.
The employer stated that the complainant could not be retained because of criteria contained in circulars issued by the Department of Health.
The circulars are discriminatory as the main criteria refer to age.
There was no objective justification put forward in relation to the decision to terminate the complainant’s employment.
Summary of Respondent’s Case:
The complainant was not dismissed by the respondent.
The complainant had a compulsory retirement age of 65 as do thousands of Public and Civil servants.
The complainant applied for and was granted three extensions to her contract.
There was an objective justification for the termination of employment.
The complainant’s contract came to a natural end on 2 May 2018 on reaching the expiry date of the final extension.
Findings and Conclusions:
These complaints were heard in conjunction with similar complaints contained in complaint form ADJ-00015488 in which the Minister for Health was named as respondent.
Written submissions were received from both parties and the complainant and the respondent’s General Manager gave verbal evidence. The complainant’s representative stated that it had been the intention of the complainant to process a complaint under Section 77 of the Employment Equality Act, 1998, but had inadvertently ticked the wrong box. The representative of the respondent objected to the complaint being heard under that Section on the grounds that there was no complaint under Section 77 before the hearing. Following a short adjournment the complainant’s representative advised that it had been decided to withdraw the complaint under the Unfair Dismissals Act, 1977 (CA-00018334-001) and to enter a fresh complaint under Section 77 of the Employment Equality Acts.. The complaints contained in ADJ-00015488 were also withdrawn.
The remaining complaint therefore is a complaint under Section 86 of the Employment Equality Act, 1998. The complainant’s representative argued that the reason put forward by the respondent to the complainant for not agreeing to another extension to her contract was that the respondent was precluded from so doing because of the criteria contained in circulars issued by the Department of Health. In addition, the original clause in the complainant’s contract stated that the complainant must retire at age 65. In her verbal evidence the complainant said that the reason given to her by management for refusing a further extension was the circular. In the submission the complainant’s representative argued that the circular, which dealt with the criteria for retention of staff beyond the retirement age, could not be held to be other than discriminatory because there was no provision in the circular to apply any criteria other than age.
The representative for the respondent argued that a circular issued by a Government Department is not in itself a collective agreement and is not evidence of a collective agreement.
Section 86 of the Act states:
(1) If the Authority or a person who is affected by a collective agreement claims that a provision of that agreement is null and void by virtue of section 9, the Authority or that person may refer the question of that agreement to the Director; and in this section (and section 87) the Authority or the person making such a reference is referred to as “the complainant”.
(2) For the purposes of this section (and section 87) –
(a) The expression “collective agreement” shall be taken to include an order or agreement falling within paragraph (b) or (c) of section 9(3)
(b) A person is affected by a collective agreement if that person is an employee whose remuneration or whose conditions of employment are, in whole or in part, governed by the agreement (or any part of it), and
(c) “the respondents” means the parties to the agreement, other than (where relevant) the complainant……
Apart from any other matters it appears to me that the first requirement in such a complaint process is to produce evidence of the existence of a collective agreement which governs, in whole or in part, the complainant’s conditions of employment. In particular, there should be evidence of the provisions of that agreement which are the subject of the complaint. Reference was made to circulars issued by the Department of Health and the criteria contained therein regarding extension of retirement age. This does not constitute evidence of a collective agreement. I must find therefore that, in the absence of such evidence, the complaint under Section 86 of the Act is not well founded and would appear to be misconceived.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Complaint No. CA-00018334-001:
This complaint under the Unfair Dismissals Acts, 1977 – 2015, was withdrawn at hearing.
Complaint No. CA-00018334-002:
This is a complaint under Section 86 of the Employment Equality Acts, 1998 – 2015. As detailed above I find this complaint to be not well founded and it accordingly fails.
Dated: February 19th 2019
Workplace Relations Commission Adjudication Officer: Joe Donnelly