Complainant

Respondent

Parties

Martin  Moran

Starrus Eco Holdings Limited

Representatives

Ciara Ruigrok BL instructed by L.O'Connor & Co.

Darach McNamara BL instructed by Rory Muldowney

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-00059514-001

20/10/2023

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

CA-00059514-002

20/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00059514-003

20/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00059514-004

20/10/2023

The Complainant, a truck driver, gave evidence on oath. It was his complaint that he was discriminated against on the grounds of age. He also brought complaints under the Organisation of Working Time Act and failure to provide a contract of employment.

Mr Dara Mink, Head of Insurance with the Respondent, gave evidence on affirmation. Ms Tracy Doherty, Head of Human Resources and Mr Paul Leufer, Office Manager, also gave her evidence on affirmation.

Written submissions were received in advance from both parties. Further time was afforded to enable additional submissions to be filed. The Complainant was given until 12 September 2024 to submit further material in relation to annual leave and public holiday entitlements. The Respondent was provided until 26 September 2024 to file a reply, should they wish to do so.

Upon review of the case file, no further submissions were received from either party.

CA-00059514-001

Preliminary Matter

It was submitted on behalf of the Complainant that there had been very little engagement with him since January 2023. Despite writing to the Respondent on a number of occasions, the first constructive response was received on 4 October 2023, which contained an incorrect reference to alternative employment being offered. Further follow-up letters were sent in October and November 2023, but these were not responded to.

Substantive Matter

The Complainant denied ever receiving an employee handbook from Weir Ltd or the Respondent and stated he was never party to any discussion concerning his age.

It was his evidence that, once he was deemed medically fit to return to work, he was informed by his line manager, Mr Paul Leufer, that he was “too old” and that the truck insurer would not provide cover for him. Mr Leufer told him he could work on the back of the truck, to which the Complainant responded that if he was too old to drive the truck, then he was also too old to work on the back of it.

A series of letters dated 30 March 2023 and 8 May 2023 were opened during the hearing, demonstrating the Complainant’s attempts to engage with the Respondent. A response was only received following a third letter, dated 23 May 2023.

The Complainant disputed the Respondent’s assertion, set out in that response, that alternative employment had been offered to him. It was his evidence that the first time any alternative position was suggested was in correspondence dated May 2024.

Under cross-examination, the Complainant was questioned on the absence of any reference in his complaint form or written submissions to the alleged statement by Mr Leufer that he was “too old” to drive. It was put to him that Mr Leufer would deny ever making such a statement.

The Complainant acknowledged that Mr Leufer had advised him of an alternative job, which involved “sitting on the back of a truck.” He further explained that the reason he did not return a call from the Respondent or respond to the letter dated 6 June 2023 was because he was only interested in driving a truck. He accepted that the Respondent did not dismiss him and that they were entitled to assign him to different roles.

Upon re-examination regarding the letter of 6 June 2023, the Complainant stated that he felt “very let down” and “left in limbo.”

In relation to the offer of alternative roles, it was the Complainant’s evidence that no other positions were brought to his attention.

CA-00059514-002

It was the Complainant’s evidence that he did not get a contract of employment. It was further submitted that as a consequence, there was no mandatory retirement date or a clause relating to the company’s vehicle insurance. 

CA-00059514-003

It was the Complainant’s evidence that he did not take any annual leave in 2020 or 2021. He stated that he regularly worked as cover for drivers on leave, noting that “a lot of weeks I did 5 days”. He further stated that he worked from approximately 4:00am to 2:00pm or 3:00pm from January to June 2022, after which he was on sick leave and did not return to work thereafter.

CA-00059514-004

It was the Complainant’s evidence that he did not receive payment for public holidays.

At the conclusion of the hearing, it was submitted on behalf of the Complainant that the issue of public holiday entitlements would be addressed in written submissions. As outlined above, no further submissions were received from either party.

CA-00059514-001

Preliminary Matter

It was submitted that the Complainant’s complaint falls outside the six-month time limit provided for in Section 77(5)(a) of the Act, as it was referred to the Workplace Relations Commission on 20 October 2023. However, it was also submitted that only an incident of discrimination occurring between 21 April 2023 and 20 October 2023 can be adjudicated upon herein.

It was noted that the Complainant’s evidence was that a meeting took place between the parties at the end of January 2023, during which the terms of the insurance policy were communicated.

It was further submitted that Section 77(5)(a) also addresses what constitutes a “continuum,” relying on Cast v Croydon College [1998] IRLR 318 and Waldron v North Western Health Board [2003] ELR 107. No acts or omissions occurred within the six-month period prior to the complaint being referred to the Workplace Relations Commission. The decision of January 2023 was a standalone decision, which was reiterated to the Complainant and/or his representatives over the subsequent months. Consequently, there was no new or separate act of discrimination within the relevant six-month period upon which the Complainant can rely.

Substantive Matter

Mr Mink, Head of Insurance and Compliance, gave evidence regarding the transfer of Weir Ltd to the Respondent in 2019, at which time the Complainant was aged 69.

Following the Complainant being deemed medically fit to return to work in 2023, he was advised of the insurer's age limit. It was Mr Mink’s evidence that the company’s insurance provider for bin trucks, NFP Ireland, imposed a maximum age limit of 70 years for drivers. He relied on an email from NFP Ireland dated 1 March 2023 to support this position.

He explained that it had been an oversight on the part of the company to have allowed the Complainant to continue driving beyond the age of 70, and further stated that the policy had since been applied consistently across the business. Under cross-examination, Mr Mink acknowledged that the Respondent did not make any enquiries with alternative insurers.

Ms Doherty, Head of Human Resources, outlined the Respondent’s Retirement Policy. She accepted that the normal company retirement process was not followed in the Complainant’s case. It was her evidence that the Respondent does not forcibly retire employees, and that a process of engagement would ordinarily take place in such circumstances.

Mr Leufer, Office Manager, gave evidence of a meeting with the Complainant in January 2023. He stated that he had offered the Complainant alternative employment on the back of the truck. He denied ever telling the Complainant that he was “too old,” but confirmed he had informed him of the insurer’s age restriction. It was Mr Leufer’s evidence that the insurance restriction came as a surprise to him, and he expressed a desire to have the Complainant return to work, noting that they had a good working relationship.

Under cross-examination, Mr Leufer accepted that he did not make contact with the Complainant following the letter of 23 May 2023, stating that he was not instructed by HR to do so.

CA-00059514-002

It was the Respondent’s submission that the Complainant held a contract of employment. However, the Respondent accepted that the contract was not compliant with the Terms of Employment (Information) Act 1994.

CA-00059514-003

The Respondent denied that any annual leave payment was due to the Complainant. However, by letter dated 28 May 2024, which was referenced during the hearing, the Complainant was informed that he had accrued 96 hours of annual leave in 2023. The Complainant declined this offer.

The Respondent submitted that the complaint regarding annual leave was out of time. The relevant cognisable period is from 21 April 2023 to 20 October 2023, being the six-month period preceding the date on which the complaint was submitted to the Workplace Relations Commission. It was further submitted that the annual leave year, running from 1 April 2022 to 31 March 2023, had concluded prior to the cognisable period and therefore, the Complainant’s claim under the Organisation of Working Time Act 1997 was statute-barred.

CA-00059514-004

The Respondent conceded that the Complainant was entitled to payment in respect of public holidays falling within the cognisable period, specifically 1 May 2023, 5 June 2023, and 7 August 2023.

CA-00059514-001

Preliminary Matter

Section 77 (5) provides:-

(5) (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 the Director General of the Workplace Relations Commission 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 substituted a 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.”

It is the Respondent’s submission that the last date of alleged discrimination was in January 2023 with the complaint not being referred until 20 October 2023.

The Complainant stated on that the last date of discrimination was 23 May 2023, but it is unclear what new act of discrimination occurred on this date. There was a letter from the Respondent dated 24 May 2023 which reiterated what was discussed by the Complainant and Mr Leufer. It was undisputed in both parties’ evidence that Mr Leufer and the Complainant had a conversation about the age restriction on the insurance policy in January 2023.

It is appreciated that the Complainant sought to resolve this matter by engaging constructively in writing with the Respondent between January 2023 and May 2023 with no response. However, this correspondence is a follow up on the discussion of January 2023.

It is noted that there was an allegation the Complainant’s employment was ended with Revenue in June 2023, but this is not a complaint for discriminatory dismissal.

On the basis I can see no separate act or omission that would amount to a continuum of the discrimination, there is no jurisdiction for the Workplace Relations Commission in this complaint.

CA-00059514-002

Section 7 (2) of the Act provides for redress:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G, shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either—

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G , or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) in relation to a complaint of a contravention under change section 3, 4, 5, 6, 6D, 6E, 6F, or 6G, and without prejudice to any order made under paragraph (e) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.”

It is not accepted that the unsigned and undated employee handbook presented in evidence from a company which the Complainant worked with previously before being transferred satisfies the requirements of Section 3 of the Act.

The Complainant’s submission that a contract of employment would have brought clarity to a number of questions which have resulting in these complaints being adjudicated on.

For these reasons, I find the complaint is well founded.

CA-00059514-003

Preliminary Objection

The time limits for submitting complaints under the Workplace Relations Act 2015 are set out in Section 41 (6) of the Workplace Relations Act 2015 : -

“(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.”

No extension of time application was made at the hearing

Section 19 of the Act provides for the entitlement for annual leave:-

“19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

The leave year is defined in Section 1 of the Act as “leave year”means a year beginning on any 1st day of April”.

The Complainant was absent for a period due to illness but was certified fit to return to work from December 2022. In accordance with Section 19(1A) of the Organisation of Working Time Act 1997, any entitlement to annual leave accrued during the six-month period of certified sick leave should have been availed of upon his return to work. However, as part of his wider case, the Complainant did not return to work.

Section 20(1)(c) of the Act provides that where an employee is unable to take annual leave due to illness, such leave must be taken "within the period of 15 months after the end of that leave year." I find that this 15-month period commenced in December 2022 and expired in March 2023.

The Complaint Form was submitted to the Workplace Relations Commission on 20 October 2023. Accordingly, I find the complaint falls outside the time limit provided for under Section 41(5) of the Workplace Relations Act 2015, and I therefore do not have jurisdiction to hear the matter.

On this basis, I find the complaint is not well-founded.

CA-00059514-004

In the circumstances where there was no evidence that the Complainant worked at “least 40 hours during the period of 5 weeks ending on the day before that public holiday” in accordance with Section 21 (4)of the Act, I find the complaint is not well founded.

CA-00059514-001

I find I have no jurisdiction as per Section 77 of the Employment Equality Acts 1998 – 2015.

I find that the Complainant was not discriminated against on the grounds of age.

CA-00059514-002

Consequently, I find the complaint is well founded and order the Respondent to pay the Complainant compensation in the sum of €1,260, being four weeks’ renumeration based on a hourly figure of €12.60 and an average of 25 working hours a week.

CA-00059514-003

I find the complaint is not well-founded.

CA-00059514-004 

I find the complaint is not well founded.