ADJUDICATION OFFICER DECISION.
Adjudication Reference: ADJ-00037905
Parties:
| Complainant | Respondent |
Parties | Tommy Browne | MSR-FSR Managed Engineering Solutions |
Representatives | John Hubbard SIPTU | William Wall , Peninsula Business Services |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00049294-001 | 23/03/2022 |
Date of Adjudication Hearing: 18/11/2022
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant was employed by the Respondent as a process technician. Employment commenced on 21st October 2019 and ended on 31st December 2021.
This complaint was received by the Workplace Relations Commission on 23rd March 2022. |
Summary of Complainant’s Case:
BACKROUND
There are approximately 1000 people working worldwide for M.S.R. They have plants in the U.S.A. Mexico, Israel, and Ireland. M.S.R. are an international engineering service supporting business in the high-tech sector. Its main job is to repair, clean, rebuild and replace critical manufacturing parts for the semiconductor and pharmaceutical industry. In Ireland they deal mainly with one major multinational which accounts for much of their work. The work is a clean room environment. It includes cleaning parts by both mechanical and chemical cleaning. They work with stainless steel, special glass ceramics, they also deal in the cleaning and repair of highly expensive quartz materials. Parts that come in have to be disassembled, cleaned refurbished reassembled, a final clean and packaged into airtight controlled work environment. They work on a Kanban system with parts being delivered to their customer every day In Naas M.S.R. have taken a lease on a property across the road from their present plant, they hope to start operations there over the coming months. The new plant is approximately twice the size of their present one...so the future look promising. Mr Browne joined the company on 21st October 2019. Hi contract states that the normal retirement age is 66 years. He was due to turn 66 on the 10th of May 2021. In April 2021 Mr Browne was approached by his manager Mr Mark Russell inquiring as to would he be open to continuing to work after his 66th birthday. Mr Browne said yes that he was delighted, and his intention was to continue to work for as many years as possible.
The following week, management offered him a new fixed term contract extension until the 31st December 2021. On the day he singed he was assured that there was nothing to worry about and given a clear indication that his contract would be renewed by the end of December 2021. He was told by management that he was not to tell anyone about the extension he had received to his contract.
In Mid November 2021 Mr Browne was informed by his Lead Teck Mr Calm Brady that the company would not be extending his contract. Mr Brady said that he was extremely surprised and disappointed, and he said he was an excellent worker.
The following morning before the start of his shift he was called to his assistant production manager Mr Mark Russell's office, and he broke the ·same news to him. Mr Russell told him he really wanted him to stay as he was one of the best workers he had. Mr Russell stated that people higher up in MSR had made the decision.
Mr Russell said that unfortunately there are several people coming behind him that are coming up for retirement and under no circumstances were they getting an extension. This being the case Mr Browne was dismissed on the grounds of his age and the fact that when he signed the extension, he was told not to tell anyone.
Mr Browne received an excellent reference from the company saying they would recommend him for any position and were very sorry to see him go.
There was no objective reason for the termination of his employment only his age.
The company have continued to employ new staff and up to the present-day people are leaving and the company continue to hire new staff.
In Mr Browne the had a reliable, diligent worker who was punctual, hardworking, flexible, and very motivated, as outlined in his reference letter. I ask what more could an employer want. The only minus against Mr Brown was his age.
In a time when the government of the country are encouraging workers to remain in employment and are seeking to increase the Pension age to 70 years of age. In the Public sector workers can remain in employment until they are 70 years of age. Mr Browne was trained and anxious to remain in work.
This employer has a member of staff in purchasing still employed who is older that Mr Brown. This suggests a clear act of discrimination against our member.
In January 2022 Mr Russell was contacted by telephone and a message was left that SIPTU would like to speak to him in relation to Mr Tommy Browne. Mr Russell returned the call to the SIPTU representative. Mr Russell was asked to speak to senior management in relation to the possibility of Mr Browne remaining in employment. Mr Russell did not return this call.
Throughout this process SIPTU has sought to engage with the employer regarding Mr Browne and it has always been SIPTU’s intention to resolve this matter at local level to the benefit of all stakeholders concerned. To date MSR-FSR management have failed to engage with the Complainant and his union.
The Company did not take account of the Code of Practice on Longer Working nor indeed any objective justification for the refusaI.
SIPTU appealed the company's decision to forceMr Browneto retire, the company failed torespond. A copy of section 4 of the Code of Practice on Longer Working (S.I. 600 OF 2017) was included in the submission. Conclusion. Mr Browne was a hardworking and respected member of staff. He was at the time of his retirement anxious to continue to carry out his role. The employer has not facilitated Mr Browne under the Code of Practice SI 600 Of 2017. We are therefore seeking reinstatement and compensation for his loss of earnings to date. The alternative to reinstatement, we are seeking the maximum award under the Act.
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Summary of Respondent’s Case:
1. The Claimant commenced employment with the Respondent company as a Product Technician in or around the 21st October 2019.
2. The Claimant was provided with a statement of main terms of employment, dated 14th October 2019, prior to his commencement with the Respondent company.
3. At page 6 of the statement, under the title “Retirement Age”, provided: “The normal company retirement age is 66. This contract constitutes notice that your contract of employment will expire on the date of your 66th birthday, unless it has terminated at an earlier date, without the requirement of any further notice being issued to you.”
4. The Claimant was also provided with a copy of the Respondent’s ‘Employee Policies Handbook”, which the Claimant acknowledged receipt of by signature, dated 22nd October 2019.
5. At page 75 of the Handbook the Respondent’s “Retirement Policy” is detailed in full, specifying the scope of the policy as:
“This policy applies to all members of staff and comes into effect whenever a staff member reaches the age of 66. The date of retirement will be the day on which the employee turns 66.
6. The policy also provides for the procedure of informing all staff “of his/her impending retirement date with the company. This is usually at least 6 months in advance of the employee reaching the retirement age of 66.”
7. Ms Aisling Glynn, HR Manager within the Respondent company, will give evidence that it is her practice to contact the Production Manager in relation to staff approaching retirement age, six months in advance of their 66th birthday as per the policy.
8. In the Claimant’s case, the Claimant’s manager Mr Mark Russell approached the Claimant in respect of the company’s retirement policy in/or around two or three months prior to the Claimant’s 66th birthday.
9. Given the fact this discussion was within the agreed 6 months of notice, as detailed in the employee handbook, it was agreed that the Claimant had not been given a sufficient reminder of the company retirement policy, in terms of time. It was agreed the Claimant could work past his 66th birthday, for a specific period of time.
10. The Claimant’s contract of employment provided for the expiration of the Claimant’s contract of employment upon reaching his 66th birthday, in line with the Respondent company’s retirement policy.
11. A fixed-term contract for a period of 7 months was issued to the Claimant, with an expiry date of 31st December 2021.
12. The Claimant verbally requested to remain after the expiration of the fixed term contract for an indefinite period.
13. The Claimant was informed that the retirement age, was company policy.
14. Ms Glynn, and Mr Donal Lynch will give evidence, that the primary reason for the company policy is due to health and safety risks of working with chemicals, chemical baths and lifting items in and out of those baths. It is the Respondent’s position that the retirement policy is in place in line with the company health and safety statement, at clause 2 under the heading “Environmental Health and Safety Policy”, it states:
“we excel because of our employees. Keeping our employees safe is a value embedded in our corporate culture. Safety is NOT simply an MSR-FSR priority. Safety is an intrinsic MSR-FSR Value. Priorities may Change, but Values are embedded in our Corporate Culture.”
15. The Claimant left the employ of the company upon completion of his fixed term contract on 31st December 2021.
16. On the 3rd February 2022, Mr John Hubbard of SIPTU contacted Mr Mark Russell by phone, and requested the Claimant be reinstated to his position. Mr Russell will give evidence at hearing as to the content of that conversation.
17. By letter dated 8th March 2022, Mr Hubbard wrote to Mr Donal Lynch, seeking to appeal the “company’s position decision to force Mr Tommy Browne to retire under the Code of Practice SI No 600 217 Industrial Relations Act 1990”
18. The within claim was filed with the WRC on the 22nd March 2022.
Legal Submission:19. The Claimant has brought a claim under section 77 of the Employment Equality Act 1998 (as amended) (“the Act”) and claims he was treated differently due to his age.
20. This is strongly disputed by the Respondent.
21. Discrimination is dealt with in Section 6(1) of the Employment Equality Acts, 1998 to 2008 which states that discrimination occurs where: “…a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)”
22. Section 6 (2) (f) of the Acts defines the discriminatory ground of age as follows –
“(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),
23. It is submitted that central to the claim of discrimination under the Act, is for one person to be treated less favourably than another. The act also requires the identification of a comparator, which the Claimant has failed to do in his claim papers.
24. It is well settled that Section 85(A) of the Employment Equality Acts, as amended, specifies that the burden of proof rests with the claimant at first instance: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”
25. The Labour Court clarified the burden of proof in respect of discrimination under the Employment Equality Acts in Mitchell -v- Southern Health Board [2001] 12 E.L.R. 201 follows: “It is necessary, however, to consider the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. The first requirement of Article 4 of the Directive is that the claimant must ‘establish facts’ from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.” It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.
Applied to the present case, this approach means that the appellant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her sex. If she does not, her case cannot succeed.”
26. It is submitted that Mitchell -v- Southern Health Board, albeit dealt with discrimination on the basis of gender, is instructive in respect of the burden of proof in all discrimination cases under the Employment Equality Acts.
27. The Respondent refers to the Labour Court decision of Melbury Developments v Arthur Velpetters (EDA0917) where the Court, whilst examining the circumstances in which the probative burden of proof operates held as follows: –
“Section 85A of the Acts provides 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. What those facts are will vary from case to case and 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.”
28. It is submitted that the Claimant has not only to establish the primary fact upon which he will seek to rely but also that those facts are of sufficient significance to raise an inference of discrimination. We refer to the case of Cork City Council -v- McCarthy EDA21 2008 where the Labour Court recommended that:
‘‘The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain in particular facts or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts’’
29. Subsection 6 (3)(c) of the Acts states:
“(c) Offering a fixed term contract to a person over the compulsory retirement age for that employment or to a particular class or description of employees in that employment shall not be taken as constituting discrimination on the age ground if— (i) it is objectively and reasonably justified by a legitimate aim, and (ii) the means of achieving that aim are appropriate and necessary.”
30. The Respondent submits that the Claimant’s contract of employment was due to expire on the Claimant’s 66th birthday, and a fixed term contract was provided to the Claimant in order to give him further and sufficient notice to prepare for retirement, despite the policy being contained in the Claimant’s initial contract and handbook.
31. It is submitted the Claimant was provided with a fixed term contract after the expiration of his original contract, which “is objectively and reasonably justified”, with the “legitimate aim” of providing the Claimant with sufficient time to prepare for retirement in line with section 6 (3)(c). The Respondent submits the further period of seven months was fair, reasonable and “appropriate and necessary” in the circumstances and in line with s 6(3)(c)
32. The retirement policy of the company is a custom and practice and is expressly depicted in both the statement of main terms of employment and the employee policies handbook. It is submitted that the retirement policy was detailed in both documents and provided to the Claimant prior to the commencement of his employment with the company.
33. The Respondent refers to Earagail Eisc Teoranta v Lett EDA 1513, where the Labour Court expressed the following view: “As a matter of general principle, a termination of employment the way of retirement should be distinguished from a dismissal on grounds of age. A retirement occurs where the employment comes to an end pursuant to a condition of employment which limits an employee's tenure to the point at which they attain a specific age.”
34. It is submitted that the Claimant commenced employment at the age of 64 and was provided with his statement of main terms of employment (contract of employment), and handbook in advance of commencement, both of which included an express term in respect of the Claimant’s employment, requiring him to retire at the age of 66.
35. Section 34 (4) of the Act also provides for:
“(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.”
36. The Respondent refers to the Labour Court case of An Aircraft Refueller (complainant) v An Aviation Fuel Company (respondent) [2020] 31 E.L.R. 38 which referenced the Earragail case above in its determination, and quoted “an employer's employment policy in relation to retirement can take effect as a contractual condition of employment which is, prima facie, protected by s.34(4) of the Acts. However, in the Court's view that could only arise where the policy is promulgated in such a manner that the employees to whom it applies either knew, or ought to have known, of its existence.”
37. The Respondent submits that the Claimant confirmed his acceptance of the employee handbook by his own signature, dated 22nd October 2019.
38. The Aircraft Refueller case is distinguishable from the within facts, in that the Respondent in that case did not have an express term in the employee’s contract of employment nor an express retirement policy, as is present in the within case. The Labour Court found in the absence of such a policy the Respondent could not rely on s 34(4) of the acts finding: “In my view, the above view from the court clearly distinguishes between an established retirement date, be that expressly stated or by implication, and another date on which an employer may move to terminate the contract of employment of an employee. Having carefully reviewed all of the evidence adduced and in a context where no express term existed in the complainant's contract of employment requiring him to retire at an appropriately established retirement date, I can only conclude that the complainant had no clear, actual knowledge as to the existence of such a date…. And “Based on the above, I am satisfied that the respondent, in the within case, cannot, in the circumstances that pertain, avail of the protections of s.34(4) of the Acts.”
39. The Respondent further submits that within the scope of the policy it provides for “Requests to work longer”, in line with the Code of Practice SI No 600 217 Industrial Relations Act 1990, allowing for “The company will consider requests to work longer on an individual basis. Due consideration will be given to all requests. Where there is a legitimate business need the company may consider extending retirement age for employees.”
40. The Respondent submits that the policy is applied across the board but has given due consideration to any request to work longer. The Respondent submits that a request to work longer, by a member of staff overseeing a specific project has been permitted. Fixed terms contracts in line with the policy, permitted the individual in question to work beyond his 67th birthday.
41. The Respondent submits that this individual worked in the administrative department, remained on staff in order to complete the extension of the premises to another site. The Respondent submits that the individual does not work in the clean rooms, is not in contact with any of the hazardous chemicals, contrary to the Claimant’s role. The Respondent submits their health and safety obligations dictate that the company take preventative measures, given the serious nature of the chemicals with which those in the role of Product/Process Technician undertake.
42. Labour Court decision of Pat O’Donnell & Co. -v- Denis O’Keeffe: EDA 2133, distinguished between an identified comparator in an admin role and a service engineer, finding:
“The Complainant pointed to only one individual who had worked beyond 65 in support of his contention that a retirement age of 65 was not mandatory but did not contradict the Respondent’s evidence that the individual in question had transferred out of his role as service engineer five years before his retirement. Based on the evidence before it, the Court finds that on the balance of probabilities there was a mandatory retirement age for service engineers.”
43. The Respondent refers to Section 37(2) of the Acts where it states that: “For the purposes of this Part a difference of treatment which is based on a characteristic related to any of the discriminatory grounds (except the gender ground) shall not constitute discrimination where, by reason of the particular occupational activities concerned or of the context in which they are carried out – (a) the characteristic constitutes a genuine and determining occupational requirement, and (b) the objective is legitimate and the requirement proportionate.” 44. It is submitted that the reasons for the compulsory retirement policy are:
· To allow promotional opportunities to other employees within the organisation · Intergenerational fairness to enable younger workers to gain promotional employment · Motivation and dynamism through the increased prospect of promotion · Health and Safety · Creation of a balanced age structure in the workforce · Personal and professional dignity · To ensure succession planning for vacancies that may arise within the organisation
45. The Respondent submits that the Process/Product Technicians work with Hydrofluoric Acid, Nitric Acid and Oakite 61 B. The Respondent refers to the enclosed BRENNTAG Safety Data Sheet in respect of each substance identifying risk management requirements, the hazardous nature of each chemical and the effects of exposure are detailed in each. · Hydrofluoric Acid sheet at pages 9 to 11 of the effects of exposure include: “Fatal if swallowed. Fatal if inhaled. Fatal in contact with skin. Extremely corrosive and destructive to tissue.”
· Nitric Acid data sheet at pages 2 and 3 effects of exposure include:
“Causes severe skin burns and eye damage. Toxic if inhaled Corrosive to the respiratory tract.”
· Oakite 61 B data sheet at page 11, effects of exposure include:
“If swallowed, severe burns in the oral cavity and throat as well as danger of perforation of the digestive tract and stomach Harmful if swallowed., Causes serious eye damage.”
46. The Respondent refers to the Labour Court decision of Pat O’Donnell & Co. -v- Denis O’Keeffe: EDA 2133, where the Labour Court gave due consideration to the safety aspect of the nature of the work in question and held:
“The Court notes the undisputed evidence of the Respondent’s witnesses concerning the nature of the job, the fact that it is safety critical, the training period required to qualify service engineers, the investment required by the Respondent in terms of training apprentices to the standard they required.
Taking account of all of these issues the Court is satisfied that a mandatory retirement age of 65 for service engineers in this employment is objectively and reasonably justified as it constitutes a legitimate aim. In this case the legitimate aim is to ensure a through flow of appropriately qualified service engineers and to ensure that employees are not required to continue working until they are unable to perform the duties.”
47. It is the Respondent’s position that given the nature and severity of the effects of the chemicals used by the technicians, and the Claimant during his employment, in particular the fact that some lifts involving the chemical baths are a two person lift, it is the custom and practice of the Respondent to enforce the compulsory retirement age of the company, in respect of technicians.
48. The Respondent submits that a technician retired from the company in December 2019, prior to the Claimant’s retirement, and in line with the company policy. The company have also had two further technicians reach compulsory retirement age, since the Claimant’s departure, and the policy has been applied to both technicians. One of which retired from the company in March 2022, the second in November 2022. It is submitted the Respondent will give evidence at hearing in respect of these assertions.
49. The Respondent submits that the company’s health and safety obligations, and accreditations are heavily reliant on the capability of their employees, and the company’s responsibility to identify and prevent any health and safety risks in the workplace.
50. The Respondent submits that the company relies on the retirement policy for promotional opportunities, intergenerational fairness, motivation and dynamism, a balanced age structure, personal and professional dignity, and succession planning. The Respondent submits that the overarching aim of the policy in the context of product/process technicians is due to the inherent dangers associated with the risk of exposure to the chemicals, were an accident to occur.
51. The Respondent submits that the Claimant was an excellent employee, but the Respondent in considering extending the Claimant’s employment further than the seven months it had already catered for, could not in good conscience put the Claimant’s health and safety nor that of his colleagues at risk.
52. It is submitted the retirement age of 66 was detailed in the Claimant’s statement of main terms and employee handbook, prior to commencing employment. The Claimant confirmed receipt of same by signed acknowledgement dated 22nd October 2019, the Claimant was provided with a fixed term contract of 7 months beyond retirement age. Mr Russell spoke to the Claimant two/three months prior to the cessation of his initial contract, meaning the Claimant had a 10 month lead to prepare for the cessation of employment due to retirement, as of the 31st December 2021.
53. In all the circumstances it is submitted that the Claimant was not discriminated against on the basis of his age, the retirement policy in place for product/process technicians is objectively justified given the health and safety implications, and the strenuous nature of the work carried out by the technicians.
54. It is submitted the within claim should fail.
Conclusion1. The Respondent did not treat the Claimant less favourably than another. The Respondent’s retirement policy serves a legitimate aim, in ensuring the health and safety obligations of the Respondent are upheld.
2. The Claimant has failed to identify a comparator in respect of his claim of discrimination, on the basis of age, against the Respondent.
3. The Respondent submits that in failing to provide the Claimant with the requisite six months written notice as recommended in the Code of Practice on Longer Working, and given the Claimant’s work record, the Respondent felt it reasonable to provide a fixed term contact to the end of the year, a further 7 months in order for the Claimant to make the necessary preparations for retirement.
4. It cannot be said the Claimant was not aware of the Respondent’s retirement policy. The Respondent is disappointed the Claimant feels aggrieved by a policy in place prior to the Claimant’s commencement, and in the full knowledge of the Claimant from the outset of his employment.
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Findings and Conclusions:
There is no mandatory retirement age in Ireland. An employer may stipulate a retirement age provided that the age selected can be objectively justified. A retirement age may be stipulated in an employee’s contract of employment, or it can be an implied term of the contract, such as where it may be stipulated in a staff handbook or a policy statement given to employees. It can also be established by custom and practice. The Workplace Relations Commission prepared a Code of Practice on this subject entitled Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017, S.I.600 of 2017. This Code provides guidance on how issues relating to retirement, including advice on how requests by employees, should be handled. It also sets out factors that can be taken into account in objectively justifying a mandatory retirement age. The Employment Equality Acts 1998 to 2015 prohibit discrimination on nine grounds including age. Therefore, the termination of an employee because of age could be construed as discrimination under the legislation. The Equality (Miscellaneous Provisions Act) 2015 made a number of amendments to the 1998 Act. Section 34(4) of the Act now states as follows: “(4) Without prejudice to subsection (3) it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntary or compulsorily) of employees or any class or description of employees if – (i) It is objectively and reasonably justified by a legitimate aim, and (ii) The means of achieving that aim are appropriate and necessary”. Essentially the law is now that compulsory retirement ages set by employers must be capable of objective justification both by the existence of a legitimate aim and evidence that the means of achieving that aim is appropriate and necessary. Examples of what constitutes a legitimate aim by an employer may include: · Intergenerational fairness (allowing younger workers to progress); · Motivation and dynamism through the increased prospect of promotion; · Health and Safety (generally in more safety critical occupations); · Creation of a balanced age structure in the workforce; · Personal and professional dignity (avoiding capability issues with older employees); or · Succession planning. In the instant case I carefully noted the evidence provided by Mr. Donal Lynch. Mr Lynch described the process highlighting how physically demanding it can be in places and he also spoke about how harmful, if not fatal, some of the chemicals used in the process can be if not handled properly. The Respondent submission clearly stated the following: ….Mr Donal Lynch will give evidence, that the primary reason for the company policy is due to health and safety risks of working with chemicals, chemical baths and lifting items in and out of those baths. It is the Respondent’s position that the retirement policy is in place in line with the company health and safety statement, at clause 2 under the heading “Environmental Health and Safety Policy”, it states:
“we excel because of our employees. Keeping our employees safe is a value embedded in our corporate culture. Safety is NOT simply an MSR-FSR priority. Safety is an intrinsic MSR-FSR Value. Priorities may Change, but Values are embedded in our Corporate Culture.” One would have to accept that this is a safety critical process that the Complainant was employed in. It was customary that employees would be written to six months prior to their 66th Birthday, such a letter provided notice to the employee that he/she would be retiring in 6 months’ time. For whatever reason this did not happen in the instant case. To address this the Respondent issued a fixed term contract to the Complainant, this contract was for a period of 7 months and would expire on 31st December 2021. This gave the Complainant the customary six months’ notice period. It is impossible to overlook the fact that there was a clear clause in the Complainant’s contract of employment: “The normal company retirement age is 66. This contract constitutes notice that your contract of employment will expire on the date of your 66th birthday, unless it has terminated at an earlier date, without the requirement of any further notice being issued to you.” I find this to be self-explanatory. The Complainant’s representative has pointed out that Mr Mark Russell had inquired would he (the Complainant) be open to continuing to work after his 66th birthday. The Complainant said yes, he would be delighted and his intention was to continue to work for as many years as possible. The following week, management offered him a new fixed term contract extension until the 31st December 2021. On the day he singed he was assured that there was nothing to worry about and given a clear indication that his contract would be renewed by the end of December 2021. He was told by management that he was not to tell anyone about the extension he had received to his contract.
This should not have happened. There can be only one management team in an organisation – not two.
I have given this complaint much consideration. As a witness I was impressed with Mr Browne, I can understand how he would be considered a valued asset in any company he worked in. As already stated, I cannot overlook the evidence from Mr. Lynch in relation to the demands and dangers of the actual process. From a health and safety perspective I conclude that the policy of retirement at 66 years of age is justified and that the Complainant was not the victim of discrimination.
I must conclude that the complaint as presented is not well founded.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
I have given this complaint much consideration. As a witness I was impressed with Mr Browne, I can understand how he would be considered a valued asset in any company he worked in. As already stated, I cannot overlook the evidence from Mr. Lynch in relation to the demands and dangers of the actual process. From a health and safety perspective I conclude that the policy of retirement at 66 years of age is justified and that the Complainant was not the victim of discrimination.
I must conclude that the complaint as presented is not well founded. |
Dated: 2nd March 2023
Workplace Relations Commission Adjudication Officer: Jim Dolan
Key Words:
Age discrimination; retirement age. |