Complainant

Respondent

Parties

Frank  Lennon

Europa Worldwide Logistics Ltd

Representatives

Darach MacNamara B.L. instructed by Dillon Geraghty & Co

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00029690-001

15/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00029690-002

15/07/2019

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

CA-00029690-004

15/07/2019

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and the witness for the respondent gave evidence under affirmation.  Both parties were afforded and availed of the opportunity for cross examination.

The complainants wages came to €506.00 weekly, the respondent confirmed this figure.

CA-00029690-001

The complainant submitted that he did not receive a statement of his terms and conditions of work in accordance with the provisions of the Terms of Employment (Information) Act, 1994.

CA-00029690-002

The respondent submitted that the redundancy complaint submitted was an auxiliary claim that it was not central to his complaint but rather constituted a backup complaint should it be found that he was passed over for selection for redundancy.

CA-00029690-004

The complainant submitted that he was discriminated against on the basis of his age when his employment was terminated on the basis of his age.  He submitted that he was forcefully retired on the basis of age in a letter dated 30 November stating that in accordance with the respondent’s policy, as he was turning 68 he had to retire.  Upon informing the respondent that he was already 68, he received a further letter stating that in accordance with the respondent’s policy, he had to retire as he was turning 69.

The complainant submitted there was no established retirement date in the respondent company as no one had retired before and that no policy was circulated giving prior notice to him that the respondent had a retirement policy.

CA-00029690-001

The respondent submitted that the redundancy complaint submitted was an auxiliary claim that it was not central to his complaint but rather constituted a backup complaint should it be found that he was passed over for selection for redundancy. The respondent accepted that it had not provided the complainant with written terms and conditions for his job.

CA-00029690-002

The respondent submitted that he discussed the need to make two of the complainant’s colleagues redundant arising from the post Brexit trading situation.  He submitted that he outlined this to the complainant and indicated that his position was not a risk of redundancy because the complainant dealt exclusively with the Irish market.

CA-00029690-004

The respondent submitted that he was sorry for the way the employment relationship ended, he admitted that the company was wrong in how it proceeded to effect the termination of employment in relation to documentation and policy.  The respondent noted that he felt that certain individuals panicked and that noted that although the documentation did not specifically mention an option to raise an objection to appeal to the retirement process, to his mind it had been open to the complainant to question the process with him.

Both the witness gave their evidence in a cogent, credible and honest manner and are to be commended for the way in which they contributed to the hearing of this matter.

CA-00029690-001

The Terms and Conditions of Employment claim was accepted by the respondent and the only matter to be decided is whether the complaint was submitted within the time limits provided for in the Act.  The complainant contends that as he was not provided with a written statement of his terms and conditions during his employment, the breach of Section 7 of the Acts is a subsisting contravention.  The complainant submitted three decisions of the Workplace Relations Commission in support of this contention: The decision of the Adjudication Officer, Kevin Baneham in the case of An animal carer v A Charity (ADJ-0009820) and two subsequent cases: An Employee v An Employer (ADJ-00012490) and A Doctor v A Public Service Provider (ADJ-0003277; [2020] ELR 159.) 

In A Doctor v A Public Service Provider Adjudication Officer Pat Brady, citing Mr Baneham’s reasoning, provides the following which is instructive in this case:

The decision in ADJ-9820 sets out an interpretation of the legal position in relation specifically to the Terms of Employment (Information) Act 1994. It has not been appealed to the Labour Court and has been followed by this Adjudicator in ADJ-19368 and others as a correct statement of the law.

The following appears in that Decision (ADJ 9820).

Section 3(1) of the Terms of Employment (Information) Act is clear that an employer shall provide the employee with a statement within two months of the start of the employment relationship.

Where this is not provided, the employee has recourse to the Workplace Relations Commission where section 7(2) enables the adjudication officer to take steps to amend or add to a statement, to require a statement be provided or to award financial redress.

The multiplicity of interventions allowed by section 7(2) shows that the contravention of section 3 is a subsisting contravention that endures so long after the initial two-month period the employee remains an employee not in possession of a statement. If the respondent’s submission was correct, the Oireachtas would have clearly stipulated that the interventions permitted by section 7(2) may only be made for a contravention arising on a single day after the end of the initial two-month period of employment.

If the respondent’s submission is correct, section 7(1) is superfluous.

This provision prevents an adjudication officer from hearing a complaint where the employer has complied with a previous direction or determination. This section would not be necessary if there could only be one contravention of section 3 arising on a single day. Instead, section 7(1) presents the contravention as a subsisting breach and prevents an employee from submitting a fresh complaint where the employer has complied with the outcome of a previous complaint.

While the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, is clear, in my view, that a breach of section 3 is a subsisting breach, this conclusion is fortified by the application of EU law.

 First, the Terms of Employment (Information) Act, as amended, does not provide that the only date of contravention is the day after the end of the initial two-month period.

 Applying a conforming interpretation to section 3 does not, therefore, require an impermissible contra legem interpretation of the section.

Article 2 of the Directive requires that a statement be provided by the employer to the employee and does not limit this requirement to any time period within the employment relationship. Reading section 3(1) of the Terms of Employment (Information) Act in conformity with Article 2 of the Directive leads to the conclusion that the obligation to provide the statement subsists throughout the employment relationship.

Article 8 of the Directive requires that employees have recourse where there is a breach and this requires section 41 of the Workplace Relations Act to be read as referring to the failure to provide a statement as a subsisting breach.

For these reasons, the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, provides that a contravention of section 3 occurs where, after the expiry of the initial two-month period of employment, the employee has not been provided with a statement.

The contravention of section 3 is a subsisting contravention.

If no statement is provided at any stage during the employment relationship and this comes to an end, the employee may refer a complaint within six months of the last day of contravention, i.e. the last day of their employment.

Mr Brady concludes with the following: “Accordingly, I adopt and apply this to the current complaint and I find that an alleged breach of this Act is a subsisting and continuing breach and the complaint is within jurisdiction from the point of view of time limits.”

The current case is based on a similar set of facts to A Doctor v A Public Service Provider in that the complainant in this case was not provided with a statement of the Terms and Conditions of his employment throughout his entire working relationship with the respondent.  Accordingly, I also adopt and apply the Baneham reasoning to the current complaint and find the lack of provision of a written statement of the complainants’ terms and conditions (as agreed by the respondent) constitutes a subsisting and continuing breach and accordingly places the complaint within the required time limits.  Therefore, I find that this complaint was well founded.

CA-00029690-002

The complainant suggested that perhaps he should have been chosen for redundancy earlier in the year (but within the timeframes envisaged by the Act). The respondent agreed that he had made two warehouse operatives redundant in 2018. The respondent outlined how the business was divided between serving the British market and serving the Irish market.  He stated that he had outlined this to the complaint at the time indicating that as he was serving the Irish market, and the redundancies only related to the servicing of the British market, his position was not affected.  The complainant recalled having this conversation with the respondent.

The complainant submitted that this case was effectively an auxiliary case and that it would not pursue the matter any deeper than the evidence adduced heretofore.

Having regard to the written and oral evidence in relation to this complaint, I find that the respondent did not err in its section of employees in relation to the 2018 redundancy process, as this was delineated by the need to change elements of the service provision to the British market alone.

CA-00029690-004

The complainant submitted that he was let go in two letters dated 30 November 2018 and 10 December 2018.  He submitted that although the letters refer to two ages, 68 and 69, these letters indicate that he was being let go on the basis of his age.  The complainant confirmed that upon receipt of the first letter he indicated that he was already 68.

The respondent confirmed that the correspondence letting the complainant go referred to the complainants age but submitted that although the correspondence did not state as such, it was open to the complainant to appeal this decision.  The respondent’s solicitor wrote to the complainant   outlining that under the legislation it was

“entitled to set a retirement pursuant to Section 10 of the Equality (Miscellaneous Provisions) Act, 2015 provided (a) it is objectively and reasonably justified by a legitimate aim, and (b) the means of achieving that aim are appropriate and necessary.  The legitimate aim of our client’s retirement age is done on the grounds of succession planning and to ensure fair opportunities to newcomers in the workplace”

In oral testimony the respondent confirmed that it did not set a retirement age, communicate a retirement age to the workforce, or have a retirement policy in place.  The respondent suggested that the complainants driving certification documentation was not up to date but agreed that the correspondence terminating the employment relationship did not refer to that issue.

Having regard to the written and oral submissions, I am satisfied that the complainant has established facts from which a discriminatory dismissal may be inferred.  Accordingly, the burden of proof falls to the respondent. 

Section 34(4) of the Employment Equality Act, 1998 – 2015, states that

(4) Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees if —

(a) it is objectively and reasonably justified by a legitimate aim, and

(b) the means of achieving that aim are appropriate and necessary

I am satisfied that the respondent has not established facts from which it can invoke the defence outlined in Section 34(4).  Accordingly, I find that the complainant was discriminated against.

CA-00029690-001

Arising from my findings above, my decision is to award the complainant compensation equivalent to four weeks pay which I consider to be just and equitable in all the circumstances, (€506 x 4 = €2020).

CA-00029690-002

Having regard to all the written and oral evidence in relation to this complaint, my decision is to disallow the complainants appeal of the respondent’s decision.

CA-00029690-004

Having regard to all the written and oral evidence in relation to this complaint, my decision is to award the complainant compensation of €13,156 equivalent to 26 weeks’ pay on the basis that there was no justification for the decision taken and it was established that the termination was solely age related.

Statement of terms and conditions, subsisting and continuing breach, age discrimination, discrimination established.