ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00052200
Parties:
| Complainant | Respondent |
Parties | Elizabeth Dunne | County Wicklow Community Partnership Clg County Wicklow Partnership |
Representatives | Cathal McGreal B.L. instructed by Wendy Doyle Solicitors | IBEC |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00063850-001 | 31/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00063850-002 | 31/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00063850-003 | 31/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00063850-005 | 31/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00063850-006 | 31/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00063850-007 | 31/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00063850-008 | 31/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00063850-009 | 31/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00063850-010 | 31/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00063850-011 | 31/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00063850-012 | 31/05/2024 |
Date of Adjudication Hearing: 06/11/2025
Workplace Relations Commission Adjudication Officer: Pat Brady
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 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.
Background:
The complainant, a community worker, was required to retire on the basis of her age on December 25th, 2019, having reached what the respondent described as its ‘retirement age’ and did so, (reluctantly).
She appealed the decision at the level of the workplace and was then offered and accepted two fixed term contracts running for the following four years; the first, a three year contract that expired at the end of 2022 and the second which ran for one year and terminated on December 31st, 2023.
According to the respondent, the complainant was involved in negotiations on the terms of the first contract, and it involved some alterations to her previous job description.
She referred her case to the WRC on May 31st, 2024, and challenges the original retirement at the end of December 2019, some four and a half years later on the basis that the subsequent events (specifically, the fixed term contracts) were part of a continuum of discriminatory treatment that bring her complaint into jurisdiction on time limits.
The following complaints were withdrawn. CA-00063850-003 re public holidays, CA-00063850-005 re Terms of Employment, CA-00063850-006, 007 and 008 re Fixed Term Contract complaints and CA-00063850-012 re pay.
The claim in respect of annual leave has been conceded as the respondent has agreed that seventeen hours’ holiday pay is owed. |
Summary of Complainant’s Case:
The equality claim is the principle point of focus of these claims. The age discrimination is a continuum of events since she was refused longer working in 2019 and had to appeal to achieve it. A dismissal took place on December 31st, 2023, even though the complainant was given to believe she would be kept on and her intention to work longer could not have been clearer. The dismissal was executed in the most insensitive of ways given her good service over twenty-two years.
There can be no doubt but that she was dismissed because of her age. No comparator is required in precisely the same was as a comparator was not required in Mallon v The Minister for Justice and Others [2024] IESC 20.
There was no terms of employment document or statement in existence post December 31st, 2022. There is a document to the respondent’s submission which is unexecuted, and which contains significant breaches of the 1994 Act.
The minimum notice that should have been paid should be the maximum allowable (eight weeks) under the Minimum Notice and Terms of Employment Act 1973 to 2005 because the Complainant had twenty-two years’ service.
The complainant did not wish to retire in 2019. It was clearly not her choice to accept a fixed-term extension of her working life but the only option she was given. It is entirely incorrect for the respondent to state that.
“Following her retirement on25 December 2019 at the age of 66 years, the Complainant freely entered into a total of two post-retirement fixed term contracts. In the subsequent period, the Complainant at no time raised concerns about her retirement or the manner in which it was implemented.”
This submission is very significant for what is conspicuously absent:
a) What was actually said (not just written) in the meetings in mid to late 2023 about the complainant’s longer working. b) Factual objectification not just references to it in contractual documents. There is not a single reference to the age structure or planning of the Respondent.
The respondent’s submission dealing with “Justification of the Mandatory Retirement Age’ does not yield anything at all to support it. The respondent clearly proceeded on the basis that mere mention of generational planning was somehow self-executing and does not require anything more.
The principal claim is one of age discrimination. The respondent uses the word ‘retirement’ in a manner that suggests it is not a dismissal. Where it is non-consensual, it is a dismissal. And the respondent had initially refused to extend her employment beyond the age of 66. Only on appeal had it considered extending it.
The primafacieburden is made out immediately in this case. The respondent’s defence is really all about objective justification. That is the post-prima facie phase of any claim.
The respondent makes the following submission, apparently under the impression that a contractual retirement age is for an employer to impose unilaterally.
“4.2. At the time of transfer, a contract of employment was provided to the Respondent as part of the due diligence and is attached in Appendix 2 of this booklet. Whilst this contract did not specifically address the Respondent’s mandatory retirement age, the Complainant was provided access to the Respondent’s company handbook, available via an online portal, which specified the mandatory retirement age as when an employee reaches the State pension age, specifically, their date of birth upon reaching that age (see Appendix 11). Furthermore, new employment contracts were issued in 2015 to all employees, setting out this express term and condition of employment.”
There were in fact no references to a mandatory retirement age through the process of the complainant gaining the benefit of a transfer of undertakings and a new contract.
The respondent has set out what happened in 2019 in an attempt to say that 66 was the complainant’s retirement age and she remained retired after that point: that the employment status of the Complainant under the two subsequent fixed term contracts are not subject the Longer Working consultation rules. This clearly not what the law provides.
Ultimately, by setting out what happened in 2019, the Respondent illustrates (at least by way of a general proposition) what did not occur in 2023:
“4.4. In accordance with the Company’s retirement procedures, on 20 June 2019, 6-months prior to the Complainant’s retirement date in line with the mandatory retirement age, a letter was issued to the Complainant outlining that the Respondent was seeking a meeting to discuss her retirement intentions and offer supports in relation to retirement-planning.”
Apparently, the respondent takes the position that ‘the retirement procedures’ only apply once.
(The respondent made substantial submissions in relation to the later events which in view of the preliminary issue that arises it is not necessary to replicate here).
Regarding the Working time complaint, taking the three weeks covered by the chart submitted, it is clear that there are instances of rest breaks not being taken. The claim in respect of annual leave has been conceded.
Regarding the Terms of Employment complaint, the respondent submission is conspicuous by its omission of a key contractual document, the written statement of terms and conditions of employment. It is a confirmation by letter on 26.11.08 that the complainant’s terms and conditions of employment would not suffer diminution post transfer from Wicklow Working Together Limited. As such, the documents that followed– both executed and unexecuted remain to be explained and justified in respect of any such diminution.
The last iteration of terms of employment produced by the respondent was a fixed term part time contract ostensibly commencing on January 1st, 2023, and ostensibly expiring on December 31st, 2023.
This document was intended to avoid the Protection of Employees (Fixed Term Work) Act 2003. The provision that was contemplated is s.9 of the Act. It is impossible to reconcile this with the stated reasons at the commencement of the purported (unexecuted) contract. In particular, it would appear that competing terms relating to the purpose of the contract (limiting it to 4 years total fixed term service, generational planning, or fixed purpose funding-based purposes) are impossible to reconcile with the provision in s.12 of the Act which provides as follows:
“12.—Save as expressly provided otherwise in this Act, a provision in an agreement (whether a contract of employment or not and whether made before or after the commencement of the provision concerned of this Act) shall be void insofar as it purports to exclude or limit the application of, or is inconsistent with, any provision of the Act.”
Either this was a fixed term contract for a specific term, a specific purpose or on a specific objective justification, or it was not. Without prejudice to the foregoing, the following are the breaches on the face of the purported contract of 2023 with respect to the 1994 Act,
a) A compliant document was not ‘furnished’ to the Complainant. b) It is not signed or executed. It is not signed or dated by the employer. c) Whilst it contains a commencement date, purportedly, for a fixed term, it does not contain “the date of commencement of the employee's contract of employment”. d) It refers to a future date of retirement in 2019. e) The document does not explain why the pension scheme previously part of the Complainant’s terms and conditions of employment (and which she had never agreed to waive) did not apply. f) Notice periods are expressed in terms of the minimum periods payable under the Minimum Notice and Terms of Employment Act 1973 to 2005. These were not paid to the complainant and there is no provision in this document as to why that was so. g) The training entitlement of the complainant is not mentioned. It was agreed that the Complainant would pursue a course of studies whilst continuing to be employed as part of the requirements of such studies.
9.—(1) Subject to subsection (4), where on or after the passing of this Act a fixed term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year.
The Respondent has not explained why, after twenty-two years’ service the maximum minimum notice of eight weeks’ pay was not paid.
There were no issues or difficulties with our client in terms of her performance or conduct. It was very much the contrary.
The Code of Practice on Longer Working was clearly not considered or utilised in this case and it is clear that no consultation took place. This submission is made without prejudice to the position that the consultation that is required and must be meaningful. No consultation is meaningful if it is not with a view to considering what a worker has to say about their own retirement. Neither is it a process that can be given lip service in 2019 and then deemed to have been a ‘once and done’ entitlement in 2023.
This is not a case where the history of the case can mislead: this respondent already refused longer working. The Complainant had to appeal to be permitted to work longer. The Company appears to have allowed a further extension and then bluntly, and an ill- considered and unlawful manner, forced the termination of her employment in December 2023.
The Respondent cannot have been acting in accordance with the decision in Mallon as it had not yet been decided. Even if it is the law, the questions left open by the case cannot be said to have been anticipated by this Respondent.
Pension poverty is a central concern in this case, and it was specifically identified in Mallon as a criterion that can be dispositive. Mr Mallon had no such difficulties, and it is arguably one of the principal reasons why he did not succeed.
The Mallon case is not authority for the proposition that a dismissal based on age (so-called retirement) can be ‘reasoned’ or ‘reasonably justified’ in an objective sense by a formula that is not supported by contemporaneous facts, enquiry, necessity and due consideration. Cogency and credibility are automatically in question where an employer engages in a retrofitted exercise of this kind.
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Summary of Respondent’s Case:
The respondent is a community development organisation supporting the wellbeing of individuals, families and communities in County Wicklow and is a member of the Irish Local Development Network. The complainant alleges that she was discriminatorily dismissed due to reaching the contractual retirement age and was provided with two subsequent fixed term contracts and that she did not receive her accrued, unused annual leave upon termination of her employment. She also complains that she did not receive, and was not paid for her public holiday entitlements owed to her during her employment, and after the termination of her employment and that the respondent failed to provide her with written notice of changes to her terms and conditions of employment
The complainant says that the respondent has used fixed-term contracts having “forced” her to retire, and has failed to provide justification for this and failed to inform her of open vacancies within the organisation when “forcing” her to retire on foot of successive fixed-term contracts She also complains that the respondent failed to pay her for her contractual notice period upon termination of employment and that it avoided providing her with a contract of indefinite duration by utilising successive fixed-term contracts. She says that she did not receive her break entitlements or a written statement of her terms and conditions of employment and that the respondent failed to pay her until “the end of December 2023”.
The complainant reached the mandatory retirement age on December 25th, 2019, and following her request to work beyond this, was given two post-retirement fixed-term contracts for an aggregate duration of four years. These post-retirement fixed-term contracts were objectively justified, and new terms and conditions associated with same were negotiated with her and she confirmed her acceptance by signing and agreeing to the terms.
Her post-retirement fixed-term contract expired when the agreed fixed period agreed was reached on December 31st, 2023. She was provided with written statements of her terms and conditions of employment, with all but one copy signed by her. No changes to her terms and conditions of employment took place that were not negotiated by her and included in the post-retirement fixed-term contracts provided to her in 2020, and 2023. The WRC complaint form was date stamped received on 31 May 2024, and as such, the relevant time period that will be referred to by the Respondent is 30 November 2023 to 30 May 2024. Including for complaints under the Employment Equality Act. There is therefore a preliminary issue in relation to the Adjudication Officers jurisdiction to hear the complaint under the Employment Equality Act, 1998-2015.
The allegation that she was discriminatorily dismissed or “forced into retirement” is not only manifestly out of time but is also not well founded. Following her retirement on December 25th, 2019, at the age of 66 years, she freely entered into a total of two post-retirement fixed term contracts. In the subsequent period, the complainant at no time raised concerns about her retirement or the manner in which it was implemented.
The complaint was lodged with the WRC on May 31st, 2024, four and a half years after the retirement took place. The WRC complaint form fails to indicate on which date she was alleged to have been discriminated against, but instead states “Iwasdismissedduetoreachingretirementageand provided with two subsequent fixed term contracts” .It is evident that any allegation by the complainant of enforced retirement at 66 years of age is statute barred.
Section 77 (5) (a) and (b) of theEmployment Equality Actsstates: (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 to the Director 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 substituteda 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.
TheWorkplaceRelationsAct2015issimilaratS.41: (6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates ……. (8) Anadjudicationofficermay entertaina complaint or disputetowhichthissection applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or referthedisputewithinthatperiodwasduetoreasonablecause.3.5Ifacomplaintis not within the time limit an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay.
The Respondent requires the preliminary arguments to be addressed at the outset of this hearing. Support for the hearing of stand-alone jurisdictional issues at the commencement of a hearing is to be found in the decision of the Supreme Court in Brannigan v. The Equality Tribunal and County Louth VEC [2016] IESC 40 wherein McKechnie J stated: - “Itisbothatriteandhistoricalprincipleoflawthatacreatureofstatutemustliveby thestatute.ItsjurisdictionisfoundsolelywithintheprovisionsoftheenablingAct.It has no inherent capacity, unlike, say, that of a constitutional court. It is therefore bound by what has been conferred on it. It has no further competence and it cannot create, add to or enlarge the jurisdiction so vested in it. Killeen v Director of Public Prosecutions [1997]3I.R.218.Itisboundbywhatjurisdictionithasandmustactaccordingly. Therefore,whenconsideringthe substantive issue, it must be remembered that the Tribunal inquires into referred incidents of discrimination: it looks at prohibited conduct of which it is notified. It has no function in a situation such as this to embark upon a wide-ranging inquiry into discrimination generally, or to generally investigate such discrimination; it does not conduct investigations proprio motu into discrimination which has not been the subject of a statutory referral to the Tribunal. Rather, it determines what lawfully has been referred to it with a view to providing redress to that applicant for any discrimination as found. The Tribunal cannot as such freelance its inquiry”.
Other cases submitted on this point were Sheehy v Most Reverend James Moriarty UD1264/2008, Employee v Employer UD969/2009 , and Bus Eireann v SIPTU PTD8/2004.
At her request, the complainant freely entered into two post-retirement fixed-term contracts and commenced in a new, fixed-term part-time position (SICAP Development Officer), as requested by her. A copy of her post- retirement fixed term contracts and a copy of the relevant SICAP Development Officer job description was submitted.
Prior to the expiry of her post-retirement fixed-term contract on December 31st, 2023, the complainant worked 15 hours per week, on Mondays, Tuesdays and Wednesdays, and earned an annual salary of €26,080.20.
The complainant in this case commenced employment with the company by way of a transfer of undertakings on 01 January 2009. In accordance with the Transfer of Undertakings (Protection of Employment) Regulations, 2006, the Complainant’s continuous service was recognised, and her official start date of employment remained as June 11th, 2001.
At the time of transfer, a contract of employment was provided as part of the due diligence. Whilst it did not specifically address the respondent’s mandatory retirement age, the complainant was provided access to the company handbook, available via an online portal, which specified the mandatory retirement age as when an employee reaches the State pension age, specifically, their date of birth upon reaching that age . Furthermore, new employment contracts were issued in 2015 to all employees, setting out this express term and condition of employment.
The complainant initially indicated in late 2018 to her line manager that she wished to remain in employment past the mandatory retirement age.
In accordance with the Company’s retirement procedures, on June 20th, 2019, 6-months prior to the Complainant’s retirement date in line with the mandatory retirement age, a letter was issued to the Complainant outlining that the Respondent was seeking a meeting to discuss her retirement intentions and offer supports in relation to retirement-planning. This meeting was proposed to take place between 01 July and 08 July 2019 and was to be conducted by Ms O’Connor.
The meeting took place in July 2019, and subsequently, the complainant confirmed by way of letter that she was requesting to work beyond the mandatory retirement age. Specifically, she stated that it was her
“Desire to continue on in my current position on my existing terms and conditions and to be offered the opportunity to work untiltheageof 69”.
This letter went on to state that the complainant looked forward to
“Havingtheopportunity todiscussfurtherinthe comingweeksandthankyoufor giving me the opportunity to submit this proposal” . Having given her request to work beyond the mandatory retirement age due consideration, Ms O’Connor replied confirming that the Respondent was, at that time, declining the request. Ms O’Connor referred the Complainant to the mandatory retirement age, and offered her the right to appeal this decision, in line with the Respondent’s grievance procedure.
The respondent subsequently received correspondence from Forsa, challenging the company mandatory retirement age and requesting that the Complainant be retained in her role at that time, until she turned the ages of 69/70. Ms O’Connor responded to this correspondence, again referring the Complainant to the appeal mechanism available to her in line with the grievance procedure.
Ms O’Connor’s decision was subsequently appealed and following engagement with the Complainant at that time, her request to work beyond the mandatory retirement age was acceded. She was provided with a post-retirement fixed-term contract and her terms and conditions, at her request, where amended and these changes were reflected in the signed contract (and new job description), which provided the following objective justification for this being a post-retirement fixed- term contract:
The complainant accepted the terms of this post-retirement fixed term contract and acknowledged her official retirement from the Respondent by way of an email to her colleagues on Friday 13 December 2019.
Following consultation with her and a further request to work beyond the company mandatory retirement age, a second post-retirement fixed-term contract was provided to her for a further 12-month period. The following objective justification for the extension and non-provision of a contract of indefinite duration
She agreed to these terms and conditions and signed this post- retirement fixed-term contract on 19 December 2022, as evidenced in the booklet. On 01 August 2023, Ms O’Connor emailed the Complainant advising that her fixed-term contract of employment was due to expire in December and requested the Complainant meet with her to discuss her intentions.
This meeting took place on August 8th, 2023, with Ms O’Connor and the complainant, at which time she verbally indicated that she wished to continue to work in her current role after the fixed-term contract expires. Following this meeting, Ms O’Connor sent an email thanking her for attending this meeting and advising that when she is clearer as to the specific programme needs and funding allocation, the conversation would be reconvened .
The Complainant sent an email to Ms O’Connor on 12 December 2023, requesting an update on “developments” regarding her role. Ms O’Connor, then in a position to advise all employees on the SICAP programme and provision of funding, emailed all relevant employees on 18 December 2023 stating:
“Good news that the SICAP contracts for 2024+ have been signed, sealed and delivered. For those of you who are on fixed term contracts I will prepare the renewal, and we can get them signed in the first week in January. We have a few steps to undertake first- some decisions by the Board, etc. but will get them to you as soon as possible”.
The complainant was not advised that her request for a further post- retirement fixed-term contract extension was granted. Ms O’Connor advised all colleagues that the Board was required to make decisions in relation to this.
The following afternoon, December 19th, 2023, Mr Brian Carty, CEO, met the complainant to inform her that her post-retirement fixed-term contract was not going to be renewed, and the fixed term would expire as mutually agreed and stipulated therein. She was provided with written confirmation of this following the meeting on 19 December 2023 and her final date of employment was 31 December 2023 and a final payment was issued up to 31 December 2021 via monthly payroll on 19 December 2023 .
EmploymentEqualityActClaim,CA-00063850-001
Section 85 (a) of the Employment Equality Acts 1998 to 2015 requires a Complainant to present facts from which it can be inferred that he was treated less favourably than another person is,has been,or would be treated, on the basis of the discriminatory ground cited. The Labour Court has stated that its jurisprudence in this matter(along with that of the WRC)stems from the Court’s analysis in Southern Health Board v Teresa Mitchell,DEE011,[2001]ELR201,
OrganisationofWorkingTimeActClaim,CA-00063850-002/03/10
The complainant in this case alleges a breach of section 27 of the Organisation of Working Time Act, 1997 in relation to her hours of work. Specifically, the Complainant alleges that she did not receive her accrued but untaken leave upon termination of her employment, that she did not receive, nor was she paid for the public holidays owed to her during her employment and termination, and that she did not receive proper rest breaks at work.
She has failed to indicate in her complaint form to the WRC the alleged dates of contravention, the respondent will refer to the relevant time period of 30 November 2023 to May 2024, in accordance with Section 27(4) of the Organisation of Working Time Act, 1997, which states:
A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.
A spreadsheet was submitted demonstrating the complainant’s actual hours of work within the relevant period of this claim. She received her daily rest break of 11 consecutive hours per 24-hour period during the relevant time period, in accordance with section 11 of the Organisation of Working Time Act, 1997.
Her normal hours of work per week totalled 15 hours. This was worked over a three-day period, Mondays, Tuesdays and Wednesdays. From the material submitted it is clear that she received her entitlement to rest breaks at work and on some occasions, received additional time, for example on 11 December 2023, when she received a 47-minute break, and 13 December 2023, when she received a 1 hour and 57-minute break. The Complainant at all times maintained a degree of flexibility with her working hours and at no point did the Respondent receive a complaint, grievance or query pertaining to her rest breaks however the Complainant would frequently engage with Ms O’Connor in relation to the utilising of TOIL, etc .
The first notification of the complaint regarding rest breaks was the WRC complaint form. At all times the respondent complied with the Organisation of Working Time Act, 1997 in the provision of daily rests, and at no point received any notification or grievance from the Complainant advising that she had not received her entitlement.
Regarding her entitlement to benefit from public holidays during the course of her employment, the respondent’s offices were closed on all public holidays, and no employee was required to work on these dates. She received her full entitlement to public holidays during the relevant time period of the claim.
In respect of complaints regarding her annual leave, the Respondent submits that it sought to engage with her on numerous occasions following her final date of employment to ensure that the calculations and records on file correlating to her understanding of her outstanding annual leave entitlements. She did not engage but the position is as follows.
The complainant worked 15 hours per week, so her annual leave entitlement per annum was 73.5 hours. She carried forward 27.38 hours of annual leave from 2022, leaving her with a total of 101 hours of annual leave to utilise in 2023 and we can confirm that the Complainant availed of 84 hours of annual leave in 2023 and 101 hours (total annual leave entitlement for 2023) – 84 leaving 17 hours of annual leave outstanding. This element of the complainant’s claim under the Organisation of Working Time Act, 1997 is conceded.
Terms and Conditions of Employment Claims, CA-00063850-005/011
The Complainant in this case alleges that the Respondent breached section 7 of the Terms of Employment (Information) Act, 1994, specifically did not provide her with written changes to her terms and conditions of employment; and that she did not receive a statement in writing of her terms and conditions of employment. The complainant was provided with written confirmation of all terms and conditions of employment and at no point during the relevant time period of this claim, did any changes occur in which she did not specifically request and/or negotiate.
There has been full compliance with the Terms of Employment (Information) Act, 1994 in that the complainant was provided with written notice of the post-retirement fixed-term contracts under which she was an employee no changes occurred within the relevant time period of this claim, and accordingly, she cannot establish a breach of the Terms of Employment (Information) Act, 1994. Thus, these claims must fail. (The complaints under the Fixed-TermWorkAct were withdrawn)
Minimum Notice & Terms of Employment Claim, CA-00063850-008
The Complainant alleges that the respondent failed to pay her the notice period upon terminating her employment. Her employment was not terminated, but instead, the fixed term period, which was expressly agreed with her, expired.
She was notified on December 19th, 2023, that her request to continue working beyond the mandatory retirement age would not be facilitated by the Respondent and as a result, the post-retirement fixed-term contract on which she was employed would expire on 31 December 2023 as was agreed.
In support of their position, the respondent submitted various authorities George McGrath v Department of Foreign Affairs ADJ-00030967 and Quality and Qualifications Ireland v Clare O’Neill UDD1961.
She was not entitled to a notice period, nor was she entitled to payment in lieu of notice and the Respondent respectfully requests that this complaint fails.
Payment of Wages Claim, CA-00063850-012 (Withdrawn) |
Findings and Conclusions:
For clarity, the following complaints were withdrawn; CA-00063850-003, 005, 006, 007, 009 and 012. This leaves CA-00063850-001 CA-00063850-002, CA-00063850-008, CA-00063850-010, and CA-00063850-011 Terms of Employment Information Act, (Amended at hearing to refer to detail only)
As set out above in the background to this case the complainant, a community worker, was required to retire on the basis of her age on December 25th, 2019, having reached what the respondent described as its ‘retirement age’ and did so, (reluctantly).
She appealed the decision at the level of the workplace and was then offered, and accepted, two fixed term contracts running for the following four years; the first, a three year contract that expired at the end of 2022 and the second ran for one year and terminated on December 31st, 2023.
The complainant was involved in negotiations on the terms of the first contract, and it apparently involved some alterations to her previous job description.
She referred her complaints to the WRC on May 31st, 2024, and challenges the original retirement at the end of December 2019, some four and a half years later on the basis that the subsequent events (specifically, the fixed term contracts were part of a continuum of discriminatory treatment that bring it into jurisdiction on time limits.
There are four other complaints CA-00063850-002, 008 ,010 and 011 to which I will return.
But it is complaint CA-00063850-001 which, in the complainant’s own submission, in the main complaint.
The respondent has raised as a preliminary point whether it can be considered to be within jurisdiction after the passage of four and a half years.
Normally, there are no circumstances that would allow it to be considered.
However, complaints under the Employment Equality Acts are an exception, where it can be established that there has been a continuum, or sequence of discriminatory events which link matters complained of and allow all of them, even those which occurred at a time well outside the normal principles applicable to cognisable periods to be brought within jurisdiction.
Thus, a ‘continuum’ may arise in an employment equality case when there are consecutive, often similar acts of less favourable treatment that represent breaches of the Act over an extended period.
While it is easy to see that the retirement and the two contracts are connected in that the subsequent contracts would not have arisen but for the complainant’s retirement in 2019, can these consequential acts be regarded as sufficient to create a continuum?
The first obstacle to this position is that it is difficult to see how the fixed term contracts may be viewed as discriminatory acts, especially as the complainant negotiated and consented to them and signed written contracts.
Admittedly, she did so, as she described it, ‘reluctantly’ as she did not wish to retire in 2019, and while she makes the reasonable point that she had very little choice if she wished to continue to work, she has not made out any case as to why she still did not make any reference to the WRC within the statutory period.
She only did so when she was not granted a third fixed term contract some four and a half years later. But the biggest obstacle remains that if the actions purporting to constitute the continuum are not discriminatory, how can they be relied on to bring the alleged discriminatory retirement in 2019 within jurisdiction? They are undoubtedly a consequence of that event, but do they constitute a sequence sufficient to create the required continuum to bring her original retirement within jurisdiction? The respondent submitted a number of authorities on this point and says that no discrimination occurred during this period of the fixed term contracts. In Cork County VEC v Hurley EDA1124, it was decided that “The Court must conclude that no acts capable of constituting victimisation occurred in the period of six-months ending on the date on which she presented her claim to the Equality Tribunal. Accordingly, even if the Complainant’s case were to be taken at its height in relation to all other incidents relied upon, they are outside the time limit prescribed by s.77(5) and are statute barred”. This was further supported in Cisco Systems Internetworking (Ireland) Limited v Olumide Smith, when the Labour Court concluded. “The Court therefore, consistent with its approach in Cork County VEC, must first consider whether an act or acts of discrimination occurred within thecognisableperiodforthewithincomplaint,beforeitcanconsiderwhetherevents outside of that period can be considered to be part of a continuum or regime of discrimination and within the jurisdiction of the Court. It is only if the Court forms such a conclusion that it can consider events which occurred prior to the cognisable period” (emphasis added). The respondent also cited Occipital Ltd v Hayes, EDA184 where the Court stated that “It is settledlaw that inorder forallegedacts ofdiscriminationtobe considered by the Court as representing a continuum of discrimination it is necessary to establish that acts of discrimination have actually occurred within the cognisable period set down by the Acts for the making of a complaint”, Finally, in, Beaumont Hospital and Ms Somy Thomas, EDA2431, the Court noted that. “As the Complainant has failed toestablishaprimafaciecaseofdiscriminationorvictimisationwithinthecognisable periodofthewithincomplaint,theCourtcannotaddressthecontentionthatevents occurring within that period were part of a continuum of discrimination. As a result, the CourtdoesnothavejurisdictiontoconsiderthecomplaintsmadebytheComplainant relatingtoeventsoutsidetheperiodsetoutinthe Actsfor themakingofacomplaint of discrimination.” In my opinion, the fixed term contracts cannot be regarded as a continuum of discriminatory treatment solely on the grounds alone of their being consequent on something that may have been discriminatory, if there is no intrinsic discriminatory element in those succeeding events, and I so find. The logic being proposed here is that if B only happened because of A, which was a discriminatory action, then B must also automatically discriminatory even if it is otherwise a neutral act. This problem for the complainant is compounded by her freely, even if reluctantly entering into those contracts. It is clear from the respondent‘s submission and from the evidence given by Ms O’Connor for the respondent that elements of the first contract after the retirement contained significant changes to the complainant’s previous role. Also, these were freely negotiated with the complainant, so this has a bearing on the degree of ‘reluctance’ with which she now seeks to characterise her decision to enter into the contract. While coercion would be a fatal consideration, reluctance is not. However, this is not the determinative point; that is the earlier point above whether, if the acts purporting to establish the continuum do not individually represent a breach of the Act, then they may not be relied on to draw earlier breaches within the timeframe required by the Employment Equality Acts. I find therefore that the complaint CA-00063850-001 under the Employment Equality Acts has not been properly made within the time limits and is not within jurisdiction. In respect of the other complaints the respondent has accepted that the complainant did not receive accrued but untaken leave on termination and some seventeen hours are therefore due to the complainant and this complaint is well founded (CA-00063850-002). Complaint CA-00063850-008 that the employer failed to pay notice period on termination is based on the contention that the complainant had unbroken service at the time of the final termination in 2023. The complainant submitted that the respondent had not explained why, after twenty-two years’ service the maximum minimum notice of eight weeks’ pay was not paid to her. This is based on the complainant’s view that she enjoyed or would have enjoyed continuity of employment based on a finding that her termination in December 2019 was unlawful. However, in the absence of jurisdiction to make such a finding that argument falls. This complaint is not well founded based on the fact that she had entered the fixed term contracts. The complainant has submitted that she did not get proper rest breaks at work (CA-00063850-010). The respondent has submitted persuasive rebuttal evidence that this is not well founded, and I so find. The respondent at the hearing clarified its complaint under CA-00063850-011 to confirm that it referred to detail in changes to the complainant’s terms and conditions. The complainant alleged seven breaches. Two of these are that the document is ‘not compliant’ and not signed, another is a spurious complaint about the commencement date, one is a typographical error, and three others are highly technical minor complaints. They are so minor that I make no finding of a breach of the Act. The complaint Is not well founded. Complaint CA-00063850-002 is well founded and I order the respondent to pay the complainant seventeen hours due to her in annual leave. I do not uphold complaint CA-00063850-001 and complaints CA-00063850-008. 010 and 011 are not well founded, |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints 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 do not uphold complaint CA-00063850-001 under the Employment Equality Act 1977. Complaint CA-00063850-002 is well founded and I award the complainant seventeen hours pay in lieu of annual leave not taken.
Complaints CA-00063850-008, CA-00063850-010, and CA-00063850-011 are not well founded.
Complaints CA-00063850-003, 005, 006, 007, 009 and 012 were withdrawn.
|
Dated: 12/12/2025
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Age retirement, fixed term contracts |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00052200
Parties:
| Complainant | Respondent |
Parties | Elizabeth Dunne | County Wicklow Community Partnership Clg County Wicklow Partnership |
Representatives | Cathal McGreal B.L. instructed by Wendy Doyle Solicitors | IBEC |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00063850-001 | 31/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00063850-002 | 31/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00063850-003 | 31/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00063850-005 | 31/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00063850-006 | 31/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00063850-007 | 31/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00063850-008 | 31/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00063850-009 | 31/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00063850-010 | 31/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00063850-011 | 31/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00063850-012 | 31/05/2024 |
Date of Adjudication Hearing: 06/11/2025
Workplace Relations Commission Adjudication Officer: Pat Brady
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 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.
Background:
The complainant, a community worker, was required to retire on the basis of her age on December 25th, 2019, having reached what the respondent described as its ‘retirement age’ and did so, (reluctantly).
She appealed the decision at the level of the workplace and was then offered and accepted two fixed term contracts running for the following four years; the first, a three year contract that expired at the end of 2022 and the second which ran for one year and terminated on December 31st, 2023.
According to the respondent, the complainant was involved in negotiations on the terms of the first contract, and it involved some alterations to her previous job description.
She referred her case to the WRC on May 31st, 2024, and challenges the original retirement at the end of December 2019, some four and a half years later on the basis that the subsequent events (specifically, the fixed term contracts) were part of a continuum of discriminatory treatment that bring her complaint into jurisdiction on time limits.
The following complaints were withdrawn. CA-00063850-003 re public holidays, CA-00063850-005 re Terms of Employment, CA-00063850-006, 007 and 008 re Fixed Term Contract complaints and CA-00063850-012 re pay.
The claim in respect of annual leave has been conceded as the respondent has agreed that seventeen hours’ holiday pay is owed. |
Summary of Complainant’s Case:
Theequalityclaimistheprinciplepointoffocusoftheseclaims.Theagediscriminationis acontinuumofeventssince shewasrefusedlongerworkingin2019andhadtoappealtoachieveit.Adismissal took place on December 31st, 2023, even though the complainant was given to believe shewouldbekeptonandherintentiontoworklongercould nothavebeenclearer.Thedismissalwasexecutedinthemostinsensitiveofwaysgivenhergoodserviceovertwenty-twoyears.
There can be no doubt but that she was dismissed because of her age. No comparator is required in precisely the same was as a comparator was not required in Mallon v The Minister for Justice and Others [2024] IESC 20.
There was no terms of employment document or statement in existence post December 31st, 2022. There is a document to the respondent’s submission which is unexecuted, and which contains significant breaches of the 1994 Act.
The minimum notice that should have been paid should be the maximum allowable (eight weeks) under the Minimum Notice and Terms of Employment Act 1973 to 2005 because the Complainant had twenty-two years’ service.
The complainant did not wish to retire in 2019. It was clearly not her choice to accept a fixed-term extension of her working life but the only option she was given. It is entirely incorrect for the respondent to state that.
“Following her retirement on25 December 2019 at the age of 66 years, the Complainant freely entered into a total of two post-retirement fixed term contracts. In the subsequent period, the Complainant at no time raised concerns about her retirement or the manner in which it was implemented.”
This submission is very significant for what is conspicuously absent:
a) What was actually said (not just written) in the meetings in mid to late 2023 about the complainant’s longer working. b) Factual objectification not just references to it in contractual documents. There is not a single reference to the age structure or planning of the Respondent.
The respondent’s submission dealing with “Justification of the Mandatory Retirement Age’ does not yield anything at all to support it. The respondent clearly proceeded on the basis that mere mention of generational planning was somehow self-executing and does not require anything more.
The principal claim is one of age discrimination. The respondent uses the word ‘retirement’ in a manner that suggests it is not a dismissal. Where it is non-consensual, it is a dismissal. And the respondent had initially refused to extend her employment beyond the age of 66. Only on appeal had it considered extending it.
The primafacieburden is made out immediately in this case. The respondent’s defence is really all about objective justification. That is the post-prima facie phase of any claim.
The respondent makes the following submission, apparently under the impression that a contractual retirement age is for an employer to impose unilaterally.
“4.2. At the time of transfer, a contract of employment was provided to the Respondent as part of the due diligence and is attached in Appendix 2 of this booklet. Whilst this contract did not specifically address the Respondent’s mandatory retirement age, the Complainant was provided access to the Respondent’s company handbook, available via an online portal, which specified the mandatory retirement age as when an employee reaches the State pension age, specifically, their date of birth upon reaching that age (see Appendix 11). Furthermore, new employment contracts were issued in 2015 to all employees, setting out this express term and condition of employment.”
There were in fact no references to a mandatory retirement age through the process of the complainant gaining the benefit of a transfer of undertakings and a new contract.
The respondent has set out what happened in 2019 in an attempt to say that 66 was the complainant’s retirement age and she remained retired after that point: that the employment status of the Complainant under the two subsequent fixed term contracts are not subject the Longer Working consultation rules. This clearly not what the law provides.
Ultimately, by setting out what happened in 2019, the Respondent illustrates (at least by way of a general proposition) what did not occur in 2023:
“4.4. In accordance with the Company’s retirement procedures, on 20 June 2019, 6-months prior to the Complainant’s retirement date in line with the mandatory retirement age, a letter was issued to the Complainant outlining that the Respondent was seeking a meeting to discuss her retirement intentions and offer supports in relation to retirement-planning.”
Apparently, the respondent takes the position that ‘the retirement procedures’ only apply once.
(The respondent made substantial submissions in relation to the later events which in view of the preliminary issue that arises it is not necessary to replicate here).
Regarding the Working time complaint, taking the three weeks covered by the chart submitted, it is clear that there are instances of rest breaks not being taken. The claim in respect of annual leave has been conceded.
Regarding the TermsofEmploymentcomplaint, therespondentsubmissionisconspicuous by its omission of a key contractual document, the written statement of terms andconditionsofemployment.Itisaconfirmationbyletteron26.11.08thatthe complainant’s terms and conditions of employment would not suffer diminution post transfer from WicklowWorkingTogether Limited.As such, the documents that followed– bothexecutedand unexecutedremain tobeexplainedandjustifiedin respect ofany such diminution.
The last iteration of terms of employment produced by the respondent was a fixed term part time contract ostensibly commencing on January 1st, 2023, and ostensibly expiring on December 31st, 2023.
This document was intended to avoid the Protection of Employees (Fixed Term Work) Act 2003. The provision that was contemplated is s.9 of the Act. It is impossible to reconcile this with the stated reasons at the commencement of the purported (unexecuted) contract. In particular, it would appear that competing terms relating to the purpose of the contract (limiting it to 4 years total fixed term service, generational planning, or fixed purpose funding-based purposes) are impossible to reconcile with the provision in s.12 of the Act which provides as follows:
“12.—Save as expressly provided otherwise in this Act, a provision in an agreement (whether a contract of employment or not and whether made before or after the commencement of the provision concerned of this Act) shall be void insofar as it purports to exclude or limit the application of, or is inconsistent with, any provision of the Act.”
Either this was a fixed term contract for a specific term, a specific purpose or on a specific objective justification, or it was not. Without prejudice to the foregoing, the following are the breaches on the face of the purported contract of 2023 with respect to the 1994 Act,
a) A compliant document was not ‘furnished’ to the Complainant. b) It is not signed or executed. It is not signed or dated by the employer. c) Whilst it contains a commencement date, purportedly, for a fixed term, it does not contain “the date of commencement of the employee's contract of employment”. d) It refers to a future date of retirement in 2019. e) The document does not explain why the pension scheme previously part of the Complainant’s terms and conditions of employment (and which she had never agreed to waive) did not apply. f) Notice periods are expressed in terms of the minimum periods payable under the Minimum Notice and Terms of Employment Act 1973 to 2005. These were not paid to the complainant and there is no provision in this document as to why that was so. g) The training entitlement of the complainant is not mentioned. It was agreed that the Complainant would pursue a course of studies whilst continuing to be employed as part of the requirements of such studies.
9.—(1) Subject to subsection (4), where on or after the passing of this Act a fixed term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year.
The Respondent has not explained why, after twenty-two years’ service the maximum minimum notice of eight weeks’ pay was not paid.
There were no issues or difficulties with our client in terms of her performance or conduct. It was very much the contrary.
The Code of Practice on Longer Working was clearly not considered or utilised in this case and it is clear that no consultation took place. This submission is made without prejudice to the position that the consultation that is required and must be meaningful. No consultation is meaningful if it is not with a view to considering what a worker has to say about their own retirement. Neither is it a process that can be given lip service in 2019 and then deemed to have been a ‘once and done’ entitlement in 2023.
This is not a case where the history of the case can mislead: this respondent already refused longer working. The Complainant had to appeal to be permitted to work longer. The Company appears to have allowed a further extension and then bluntly, and an ill- considered and unlawful manner, forced the termination of her employment in December 2023.
The Respondent cannot have been acting in accordance with the decision in Mallon as it had not yet been decided. Even if it is the law, the questions left open by the case cannot be said to have been anticipated by this Respondent.
Pension poverty is a central concern in this case, and it was specifically identified in Mallon as a criterion that can be dispositive. Mr Mallon had no such difficulties, and it is arguably one of the principal reasons why he did not succeed.
The Mallon case is not authority for the proposition that a dismissal based on age (so-called retirement) can be ‘reasoned’ or ‘reasonably justified’ in an objective sense by a formula that is not supported by contemporaneous facts, enquiry, necessity and due consideration. Cogency and credibility are automatically in question where an employer engages in a retrofitted exercise of this kind.
|
Summary of Respondent’s Case:
The respondent is a community development organisation supporting the wellbeing of individuals, families and communities in County Wicklow and is a member of the Irish Local Development Network. The complainant alleges that she was discriminatorily dismissed due to reaching the contractual retirement age and was provided with two subsequent fixed term contracts and that she did not receive her accrued, unused annual leave upon termination of her employment. She also complains that she did not receive, and was not paid for her public holiday entitlements owed to her during her employment, and after the termination of her employment and that the respondent failed to provide her with written notice of changes to her terms and conditions of employment
The complainant says that the respondent has used fixed-term contracts having “forced” her to retire, and has failed to provide justification for this and failed to inform her of open vacancies within the organisation when “forcing” her to retire on foot of successive fixed-term contracts She also complains that the respondent failed to pay her for her contractual notice period upon termination of employment and that it avoided providing her with a contract of indefinite duration by utilising successive fixed-term contracts. She says that she did not receive her break entitlements or a written statement of her terms and conditions of employment and that the respondent failed to pay her until “the end of December 2023”.
The complainant reached the mandatory retirement age on December 25th, 2019, and following her request to work beyond this, was given two post-retirement fixed-term contracts for an aggregate duration of four years. These post-retirement fixed-term contracts were objectively justified, and new terms and conditions associated with same were negotiated with her and she confirmed her acceptance by signing and agreeing to the terms.
Her post-retirement fixed-term contract expired when the agreed fixed period agreed was reached on December 31st, 2023. She was provided with written statements of her terms and conditions of employment, with all but one copy signed by her. No changes to her terms and conditions of employment took place that were not negotiated by her and included in the post-retirement fixed-term contracts provided to her in 2020, and 2023. The WRC complaint form was date stamped received on 31 May 2024, and as such, the relevant time period that will be referred to by the Respondent is 30 November 2023 to 30 May 2024. Including for complaints under the Employment Equality Act. There is therefore a preliminary issue in relation to the Adjudication Officers jurisdiction to hear the complaint under the Employment Equality Act, 1998-2015.
The allegation that she was discriminatorily dismissed or “forced into retirement” is not only manifestly out of time but is also not well founded. Following her retirement on December 25th, 2019, at the age of 66 years, she freely entered into a total of two post-retirement fixed term contracts. In the subsequent period, the complainant at no time raised concerns about her retirement or the manner in which it was implemented.
The complaint was lodged with the WRC on May 31st, 2024, four and a half years after the retirement took place. The WRC complaint form fails to indicate on which date she was alleged to have been discriminated against, but instead states “Iwasdismissedduetoreachingretirementageand provided with two subsequent fixed term contracts” .It is evident that any allegation by the complainant of enforced retirement at 66 years of age is statute barred.
Section 77 (5) (a) and (b) of theEmployment Equality Actsstates: (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 to the Director 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 substituteda 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.
TheWorkplaceRelationsAct2015issimilaratS.41: (6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates ……. (8) Anadjudicationofficermay entertaina complaint or disputetowhichthissection applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or referthedisputewithinthatperiodwasduetoreasonablecause.3.5Ifacomplaintis not within the time limit an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay.
The Respondent requires the preliminary arguments to be addressed at the outset of this hearing. Support for the hearing of stand-alone jurisdictional issues at the commencement of a hearing is to be found in the decision of the Supreme Court in Brannigan v. The Equality Tribunal and County Louth VEC [2016] IESC 40 wherein McKechnie J stated: - “Itisbothatriteandhistoricalprincipleoflawthatacreatureofstatutemustliveby thestatute.ItsjurisdictionisfoundsolelywithintheprovisionsoftheenablingAct.It has no inherent capacity, unlike, say, that of a constitutional court. It is therefore bound by what has been conferred on it. It has no further competence and it cannot create, add to or enlarge the jurisdiction so vested in it. Killeen v Director of Public Prosecutions [1997]3I.R.218.Itisboundbywhatjurisdictionithasandmustactaccordingly. Therefore,whenconsideringthe substantive issue, it must be remembered that the Tribunal inquires into referred incidents of discrimination: it looks at prohibited conduct of which it is notified. It has no function in a situation such as this to embark upon a wide-ranging inquiry into discrimination generally, or to generally investigate such discrimination; it does not conduct investigations proprio motu into discrimination which has not been the subject of a statutory referral to the Tribunal. Rather, it determines what lawfully has been referred to it with a view to providing redress to that applicant for any discrimination as found. The Tribunal cannot as such freelance its inquiry”.
Other cases submitted on this point were Sheehy v Most Reverend James Moriarty UD1264/2008, Employee v Employer UD969/2009 , and Bus Eireann v SIPTU PTD8/2004.
At her request, the complainant freely entered into two post-retirement fixed-term contracts and commenced in a new, fixed-term part-time position (SICAP Development Officer), as requested by her. A copy of her post- retirement fixed term contracts and a copy of the relevant SICAP Development Officer job description was submitted.
Prior to the expiry of her post-retirement fixed-term contract on December 31st, 2023, the complainant worked 15 hours per week, on Mondays, Tuesdays and Wednesdays, and earned an annual salary of €26,080.20.
The complainant in this case commenced employment with the company by way of a transfer of undertakings on 01 January 2009. In accordance with the Transfer of Undertakings (Protection of Employment) Regulations, 2006, the Complainant’s continuous service was recognised, and her official start date of employment remained as June 11th, 2001.
At the time of transfer, a contract of employment was provided as part of the due diligence. Whilst it did not specifically address the respondent’s mandatory retirement age, the complainant was provided access to the company handbook, available via an online portal, which specified the mandatory retirement age as when an employee reaches the State pension age, specifically, their date of birth upon reaching that age . Furthermore, new employment contracts were issued in 2015 to all employees, setting out this express term and condition of employment.
The complainant initially indicated in late 2018 to her line manager that she wished to remain in employment past the mandatory retirement age.
In accordance with the Company’s retirement procedures, on June 20th, 2019, 6-months prior to the Complainant’s retirement date in line with the mandatory retirement age, a letter was issued to the Complainant outlining that the Respondent was seeking a meeting to discuss her retirement intentions and offer supports in relation to retirement-planning. This meeting was proposed to take place between 01 July and 08 July 2019 and was to be conducted by Ms O’Connor.
The meeting took place in July 2019, and subsequently, the complainant confirmed by way of letter that she was requesting to work beyond the mandatory retirement age. Specifically, she stated that it was her
“Desire to continue on in my current position on my existing terms and conditions and to be offered the opportunity to work untiltheageof 69”.
This letter went on to state that the complainant looked forward to
“Havingtheopportunity todiscussfurtherinthe comingweeksandthankyoufor giving me the opportunity to submit this proposal” . Having given her request to work beyond the mandatory retirement age due consideration, Ms O’Connor replied confirming that the Respondent was, at that time, declining the request. Ms O’Connor referred the Complainant to the mandatory retirement age, and offered her the right to appeal this decision, in line with the Respondent’s grievance procedure.
The respondent subsequently received correspondence from Forsa, challenging the company mandatory retirement age and requesting that the Complainant be retained in her role at that time, until she turned the ages of 69/70. Ms O’Connor responded to this correspondence, again referring the Complainant to the appeal mechanism available to her in line with the grievance procedure.
Ms O’Connor’s decision was subsequently appealed and following engagement with the Complainant at that time, her request to work beyond the mandatory retirement age was acceded. She was provided with a post-retirement fixed-term contract and her terms and conditions, at her request, where amended and these changes were reflected in the signed contract (and new job description), which provided the following objective justification for this being a post-retirement fixed- term contract:
The complainant accepted the terms of this post-retirement fixed term contract and acknowledged her official retirement from the Respondent by way of an email to her colleagues on Friday 13 December 2019.
Following consultation with her and a further request to work beyond the company mandatory retirement age, a second post-retirement fixed-term contract was provided to her for a further 12-month period. The following objective justification for the extension and non-provision of a contract of indefinite duration
She agreed to these terms and conditions and signed this post- retirement fixed-term contract on 19 December 2022, as evidenced in the booklet. On 01 August 2023, Ms O’Connor emailed the Complainant advising that her fixed-term contract of employment was due to expire in December and requested the Complainant meet with her to discuss her intentions.
This meeting took place on August 8th, 2023, with Ms O’Connor and the complainant, at which time she verbally indicated that she wished to continue to work in her current role after the fixed-term contract expires. Following this meeting, Ms O’Connor sent an email thanking her for attending this meeting and advising that when she is clearer as to the specific programme needs and funding allocation, the conversation would be reconvened .
The Complainant sent an email to Ms O’Connor on 12 December 2023, requesting an update on “developments” regarding her role. Ms O’Connor, then in a position to advise all employees on the SICAP programme and provision of funding, emailed all relevant employees on 18 December 2023 stating:
“Good news that the SICAP contracts for 2024+ have been signed, sealed and delivered. For those of you who are on fixed term contracts I will prepare the renewal, and we can get them signed in the first week in January. We have a few steps to undertake first- some decisions by the Board, etc. but will get them to you as soon as possible”.
The complainant was not advised that her request for a further post- retirement fixed-term contract extension was granted. Ms O’Connor advised all colleagues that the Board was required to make decisions in relation to this.
The following afternoon, December 19th, 2023, Mr Brian Carty, CEO, met the complainant to inform her that her post-retirement fixed-term contract was not going to be renewed, and the fixed term would expire as mutually agreed and stipulated therein. She was provided with written confirmation of this following the meeting on 19 December 2023 and her final date of employment was 31 December 2023 and a final payment was issued up to 31 December 2021 via monthly payroll on 19 December 2023 .
EmploymentEqualityActClaim,CA-00063850-001
Section 85 (a) of the Employment Equality Acts 1998 to 2015 requires a Complainant to present facts from which it can be inferred that he was treated less favourably than anotherpersonis,hasbeen,orwouldbe treated,onthe basisofthediscriminatory groundcited. TheLabourCourthasstatedthatitsjurisprudenceinthismatter(alongwiththatof theWRC)stemsfromtheCourt’sanalysisinSouthernHealthBoardvTeresaMitchell,DEE011,[2001]ELR201,
OrganisationofWorkingTimeActClaim,CA-00063850-002/03/10
The complainant in this case alleges a breach of section 27 of the Organisation of Working Time Act, 1997 in relation to her hours of work. Specifically, the Complainant alleges that she did not receive her accrued but untaken leave upon termination of her employment, that she did not receive, nor was she paid for the public holidays owed to her during her employment and termination, and that she did not receive proper rest breaks at work.
She has failed to indicate in her complaint form to the WRC the alleged dates of contravention, the respondent will refer to the relevant time period of 30 November 2023 to May 2024, in accordance with Section 27(4) of the Organisation of Working Time Act, 1997, which states:
A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.
A spreadsheet was submitted demonstrating the complainant’s actual hours of work within the relevant period of this claim. She received her daily rest break of 11 consecutive hours per 24-hour period during the relevant time period, in accordance with section 11 of the Organisation of Working Time Act, 1997.
Her normal hours of work per week totalled 15 hours. This was worked over a three-day period, Mondays, Tuesdays and Wednesdays. From the material submitted it is clear that she received her entitlement to rest breaks at work and on some occasions, received additional time, for example on 11 December 2023, when she received a 47-minute break, and 13 December 2023, when she received a 1 hour and 57-minute break. The Complainant at all times maintained a degree of flexibility with her working hours and at no point did the Respondent receive a complaint, grievance or query pertaining to her rest breaks however the Complainant would frequently engage with Ms O’Connor in relation to the utilising of TOIL, etc .
The first notification of the complaint regarding rest breaks was the WRC complaint form. At all times the respondent complied with the Organisation of Working Time Act, 1997 in the provision of daily rests, and at no point received any notification or grievance from the Complainant advising that she had not received her entitlement.
Regarding her entitlement to benefit from public holidays during the course of her employment, the respondent’s offices were closed on all public holidays, and no employee was required to work on these dates. She received her full entitlement to public holidays during the relevant time period of the claim.
In respect of complaints regarding her annual leave, the Respondent submits that it sought to engage with her on numerous occasions following her final date of employment to ensure that the calculations and records on file correlating to her understanding of her outstanding annual leave entitlements. She did not engage but the position is as follows.
The complainant worked 15 hours per week, so her annual leave entitlement per annum was 73.5 hours. She carried forward 27.38 hours of annual leave from 2022, leaving her with a total of 101 hours of annual leave to utilise in 2023 and we can confirm that the Complainant availed of 84 hours of annual leave in 2023 and 101 hours (total annual leave entitlement for 2023) – 84 leaving 17 hours of annual leave outstanding. This element of the complainant’s claim under the Organisation of Working Time Act, 1997 is conceded.
Terms and Conditions of Employment Claims, CA-00063850-005/011
The Complainant in this case alleges that the Respondent breached section 7 of the Terms of Employment (Information) Act, 1994, specifically did not provide her with written changes to her terms and conditions of employment; and that she did not receive a statement in writing of her terms and conditions of employment. The complainant was provided with written confirmation of all terms and conditions of employment and at no point during the relevant time period of this claim, did any changes occur in which she did not specifically request and/or negotiate.
There has been full compliance with the Terms of Employment (Information) Act, 1994 in that the complainant was provided with written notice of the post-retirement fixed-term contracts under which she was an employee no changes occurred within the relevant time period of this claim, and accordingly, she cannot establish a breach of the Terms of Employment (Information) Act, 1994. Thus, these claims must fail. (The complaints under the Fixed-TermWorkAct were withdrawn)
Minimum Notice & Terms of Employment Claim, CA-00063850-008
The Complainant alleges that the respondent failed to pay her the notice period upon terminating her employment. Her employment was not terminated, but instead, the fixed term period, which was expressly agreed with her, expired.
She was notified on December 19th, 2023, that her request to continue working beyond the mandatory retirement age would not be facilitated by the Respondent and as a result, the post-retirement fixed-term contract on which she was employed would expire on 31 December 2023 as was agreed.
In support of their position, the respondent submitted various authorities George McGrath v Department of Foreign Affairs ADJ-00030967 and Quality and Qualifications Ireland v Clare O’Neill UDD1961.
She was not entitled to a notice period, nor was she entitled to payment in lieu of notice and the Respondent respectfully requests that this complaint fails.
Payment of Wages Claim, CA-00063850-012 (Withdrawn) |
Findings and Conclusions:
For clarity, the following complaints were withdrawn; CA-00063850-003, 005, 006, 007, 009 and 012. This leaves CA-00063850-001 CA-00063850-002, CA-00063850-008, CA-00063850-010, and CA-00063850-011 Terms of Employment Information Act, (Amended at hearing to refer to detail only)
As set out above in the background to this case the complainant, a community worker, was required to retire on the basis of her age on December 25th, 2019, having reached what the respondent described as its ‘retirement age’ and did so, (reluctantly).
She appealed the decision at the level of the workplace and was then offered, and accepted, two fixed term contracts running for the following four years; the first, a three year contract that expired at the end of 2022 and the second ran for one year and terminated on December 31st, 2023.
The complainant was involved in negotiations on the terms of the first contract, and it apparently involved some alterations to her previous job description.
She referred her complaints to the WRC on May 31st, 2024, and challenges the original retirement at the end of December 2019, some four and a half years later on the basis that the subsequent events (specifically, the fixed term contracts were part of a continuum of discriminatory treatment that bring it into jurisdiction on time limits.
There are four other complaints CA-00063850-002, 008 ,010 and 011 to which I will return.
But it is complaint CA-00063850-001 which, in the complainant’s own submission, in the main complaint.
The respondent has raised as a preliminary point whether it can be considered to be within jurisdiction after the passage of four and a half years.
Normally, there are no circumstances that would allow it to be considered.
However, complaints under the Employment Equality Acts are an exception, where it can be established that there has been a continuum, or sequence of discriminatory events which link matters complained of and allow all of them, even those which occurred at a time well outside the normal principles applicable to cognisable periods to be brought within jurisdiction.
Thus, a ‘continuum’ may arise in an employment equality case when there are consecutive, often similar acts of less favourable treatment that represent breaches of the Act over an extended period.
While it is easy to see that the retirement and the two contracts are connected in that the subsequent contracts would not have arisen but for the complainant’s retirement in 2019, can these consequential acts be regarded as sufficient to create a continuum?
The first obstacle to this position is that it is difficult to see how the fixed term contracts may be viewed as discriminatory acts, especially as the complainant negotiated and consented to them and signed written contracts.
Admittedly, she did so, as she described it, ‘reluctantly’ as she did not wish to retire in 2019, and while she makes the reasonable point that she had very little choice if she wished to continue to work, she has not made out any case as to why she still did not make any reference to the WRC within the statutory period.
She only did so when she was not granted a third fixed term contract some four and a half years later. But the biggest obstacle remains that if the actions purporting to constitute the continuum are not discriminatory, how can they be relied on to bring the alleged discriminatory retirement in 2019 within jurisdiction? They are undoubtedly a consequence of that event, but do they constitute a sequence sufficient to create the required continuum to bring her original retirement within jurisdiction? The respondent submitted a number of authorities on this point and says that no discriminationoccurred during thisperiod of the fixed term contracts. In Cork County VEC v Hurley EDA1124, it was decided that “The Court must conclude that no acts capable of constituting victimisation occurred in the period of six-months ending on the date on which she presented her claim to the Equality Tribunal. Accordingly, even if the Complainant’s case were to be taken at its height in relation to all other incidents relied upon, they are outside the time limit prescribed by s.77(5) and are statute barred”. This was further supported in Cisco Systems Internetworking (Ireland) Limited v Olumide Smith, when the Labour Court concluded. “The Court therefore, consistent with its approach in Cork County VEC, must first consider whether an act or acts of discrimination occurred within thecognisableperiodforthewithincomplaint,beforeitcanconsiderwhetherevents outside of that period can be considered to be part of a continuum or regime of discrimination and within the jurisdiction of the Court. It is only if the Court forms such a conclusion that it can consider events which occurred prior to the cognisable period” (emphasis added). The respondent also cited Occipital Ltd v Hayes, EDA184 where the Court stated that “It is settledlaw that inorder forallegedacts ofdiscriminationtobe considered by the Court as representing a continuum of discrimination it is necessary to establish that acts of discrimination have actually occurred within the cognisable period set down by the Acts for the making of a complaint”, Finally, in, Beaumont Hospital and Ms Somy Thomas, EDA2431, the Court noted that. “As the Complainant has failed toestablishaprimafaciecaseofdiscriminationorvictimisationwithinthecognisable periodofthewithincomplaint,theCourtcannotaddressthecontentionthatevents occurring within that period were part of a continuum of discrimination. As a result, the CourtdoesnothavejurisdictiontoconsiderthecomplaintsmadebytheComplainant relatingtoeventsoutsidetheperiodsetoutinthe Actsfor themakingofacomplaint of discrimination.” In my opinion, the fixed term contracts cannot be regarded as a continuum of discriminatory treatment solely on the grounds alone of their being consequent on something that may have been discriminatory, if there is no intrinsic discriminatory element in those succeeding events, and I so find. The logic being proposed here is that if B only happened because of A, which was a discriminatory action, then B must also automatically discriminatory even if it is otherwise a neutral act. This problem for the complainant is compounded by her freely, even if reluctantly entering into those contracts. It is clear from the respondent‘s submission and from the evidence given by Ms O’Connor for the respondent that elements of the first contract after the retirement contained significant changes to the complainant’s previous role. Also, these were freely negotiated with the complainant, so this has a bearing on the degree of ‘reluctance’ with which she now seeks to characterise her decision to enter into the contract. While coercion would be a fatal consideration, reluctance is not. However, this is not the determinative point; that is the earlier point above whether, if the acts purporting to establish the continuum do not individually represent a breach of the Act, then they may not be relied on to draw earlier breaches within the timeframe required by the Employment Equality Acts. I find therefore that the complaint CA-00063850-001 under the Employment Equality Acts has not been properly made within the time limits and is not within jurisdiction. In respect of the other complaints the respondent has accepted that the complainant did not receive accrued but untaken leave on termination and some seventeen hours are therefore due to the complainant and this complaint is well founded (CA-00063850-002). Complaint CA-00063850-008 that the employer failed to pay notice period on termination is based on the contention that the complainant had unbroken service at the time of the final termination in 2023. The complainant submitted that the respondent had not explained why, after twenty-two years’ service the maximum minimum notice of eight weeks’ pay was not paid to her. This is based on the complainant’s view that she enjoyed or would have enjoyed continuity of employment based on a finding that her termination in December 2019 was unlawful. However, in the absence of jurisdiction to make such a finding that argument falls. This complaint is not well founded based on the fact that she had entered the fixed term contracts. The complainant has submitted that she did not get proper rest breaks at work (CA-00063850-010). The respondent has submitted persuasive rebuttal evidence that this is not well founded, and I so find. The respondent at the hearing clarified its complaint under CA-00063850-011 to confirm that it referred to detail in changes to the complainant’s terms and conditions. The complainant alleged seven breaches. Two of these are that the document is ‘not compliant’ and not signed, another is a spurious complaint about the commencement date, one is a typographical error, and three others are highly technical minor complaints. They are so minor that I make no finding of a breach of the Act. The complaint Is not well founded. Complaint CA-00063850-002 is well founded and I order the respondent to pay the complainant seventeen hours due to her in annual leave. I do not uphold complaint CA-00063850-001 and complaints CA-00063850-008. 010 and 011 are not well founded, |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints 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 do not uphold complaint CA-00063850-001 under the Employment Equality Act 1977. Complaint CA-00063850-002 is well founded and I award the complainant seventeen hours pay in lieu of annual leave not taken.
Complaints CA-00063850-008, CA-00063850-010, and CA-00063850-011 are not well founded.
Complaints CA-00063850-003, 005, 006, 007, 009 and 012 were withdrawn.
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Dated: 12/12/2025
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Age retirement, fixed term contracts |