ADJ-00031897 - Workplace Relations Commission Michael O Mahony V University Of Limerick

• Judgment Date: 13 January 2023
• Date: 13 January 2023
• Hearing Date: 11 October 2022
• Docket Number: ADJ-00031897
• Court: Workplace Relations Commission
• Respondent: University Of Limerick

Procedure:

In accordance with s 79 of the Employment Equality Acts 1998 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. A remote hearing took place on 11 October 2022. The complainant was not represented and gave evidence under affirmation. The respondent was represented by Ibec. A written submission was furnished by the respondent. There was one witness for the respondent who gave evidence under affirmation.

Background:

The complainant worked as a Student Counsellor with the respondent, delivering 19 hours per week, in respect of which he was paid a gross salary of €38,874 per annum. He alleges discrimination on grounds of age and discriminatory dismissal by reason of his age when he was compulsorily retired on 9 March 2021.

Summary of Complainant’s Case:

Preliminary Issues Time Limit The complainant felt it was correct to submit the complaint when he received notice from the respondent of its intention to terminate his employment on 9 March 2021. He is not a lawyer and did not know that a complaint should be referred after the dismissal. Substantive Issue Oral Evidence The complainant described his enjoyment working as a student counsellor for the University. He has over 53 years’ experience working with young people and continues to work in his own private practice. In September 2019, the complainant met with two members of the HR team. He was advised that he would have to retire in two weeks’ time as he was over the retirement age applicable to him. The complainant spoke to his solicitor who advised him he was not required to retire at 65. The complainant’s solicitor then spoke with Ms Twomey, Deputy HR Director, and the complainant was permitted to continue working. At a subsequent meeting, it was suggested by the respondent to the complainant that he could continue to work as a student counsellor but under the employ of Unijobs, an agency. This was unacceptable to the complainant. The hourly rate of pay would be less than what he was earning as a direct employee. Following the intervention of his solicitor, the complainant thought the matter of his retirement was resolved and that he could continue to work until the age of 70. There was no mention of retirement or a termination date thereafter until the letter of 12 January 2021. The complainant was engaged by the respondent as an independent contractor for 17 years. During that time he did not take breaks with employees of the respondent and was not privy to staff contractual or union matters. He was aware that some people retired at 65. There were 3 other counsellors who worked with him. None of these persons have reached retirement age. While on sick leave following surgery, the complainant received a letter dated 12 January 2021 from the HR Director, Mr F, giving notice of termination of employment. In this letter, the complainant was reminded that he was aware since September 2019 that he should have retired on 30 September 2017. It further advised that as 39 months had now elapsed since this date, it was essential that the respondent bring the complainant’s employment to an end in line with instructions from the Department of Education. The complainant was advised that the date of termination was 9 March 2021. The complainant retired on this date. During the complainant’s period of sick leave, the respondent hired three additional counsellors. The complainant wanted to work until he was 70. He was fit and capable of doing so. His age was held against him. It was important to him as a respected hard-working member of staff that he be treated with dignity and respect. The manner of his dismissal was a sad way to end what was otherwise a very happy and rewarding career with the respondent. Cross -Examination The complainant accepted that he had been found to be in insurable employment since 1 January 2001; that members of the HR department had tried to regularise his employment as a direct employee since 1 January 2019; and that he had been issued with a contract of employment late 2018/early 2019 which he did not sign. The complainant said he was not aware that the intention of the respondent in offering him employment with Unijobs was in good faith and proposed as a way of retaining his services while meeting the legal obligation on the respondent to retire him from employment. The complainant accepted that the reason the rate of pay was lower with Unijobs was because it was an employee rate. It was put to the complainant that he enjoyed a higher rate of pay because he was permitted to retain the higher Independent Contractor hourly rate. It was put to the complainant that the only reason he was not afforded critical life cover/income continuance was because it is a benefit that only applies up to the age of 65. The complainant accepted that the employment of other counsellors during his sick leave was in response to the growing student population and he welcomed that. The complainant did not accept that the delay in effecting his retirement was due to the ongoing negotiations with the University in relation to his contract and contractual entitlements. Nor did he accept that a mediation process during this time included his retirement as one of the issues for resolution. Closing Remarks This complainant stated that this whole situation arose because of the SCOPE and Revenue determinations, which were something akin to Brexit. Everything concerning his new employee status and the implications of same were confusing and uncertain. The complainant was focused on his work and assisting distressed students. He did not know the terms of an employment contract or the retirement age which would become applicable to him because for 17 years he was not regarded as an employee and accordingly did not concern himself with employee matters.

Summary of Respondent’s Case:

Representative for the respondent read the respondent written submission before taking the Deputy HR Director, Ms Anne Twomey, through her evidence. Respondent Written Submission Preliminary Issues 1. Time Limits The complaint was presented to the Workplace Relations Commission on 6 February 2021 which was before the complainant’s dismissal on 9 March 2021. Accordingly, the complaint was not presented to the Workplace Relations Commission within 6 months beginning on the date of contravention to which the complaint relates. 2. Named Respondents The respondent was carrying out its statutory obligations under Acts of the Oireachtas in requiring the complainant to retire. The respondent could not act independently in this regard and to name it as the sole respondent is fruitless. The respondent referenced Horgan and Keegan v Minister for Education and Skills, The Department of Finance, The Department of Public Expenditure and Reform, Ireland and the Attorney General, C154/18, [2019] IRLR 597 as an example of a case where more than one respondent was appropriately named. 3. Jurisdiction of the Workplace Relations Commission The respondent does not have the power to disapply an Act of the Oireachtas. The Workplace Relations Commission does not have simple carte blanche as regards disapplying an Act of the Oireachtas. This is the only possible outcome in favour of the complainant by the Workplace Relations Commission. The respondent cited the Supreme Court decision in Boyle, Cotter and Fitzpatrick v The Minister for Justice, Equality and Law Reform and the Commissioner of An Garda Siochana and the Workplace Relations Commission [2017] IESC 43 and the consideration of the latter case before the CJEU; and Palacios de La Villa, C-411/05 – 2007 in support of this preliminary argument. Substantive Issue The complainant was engaged in January 2001 as an Independent Contractor. A SCOPE (10 April 2018) and Revenue (31 October 2018) determination found him to have been in insurable employment from 1 January 2001. He was placed on payroll on 1 January 2019. From the latter date to September 2019 efforts were made to regularise the complainant’s employment and agree a contract of employment. A written contract was not finalised. Given the complainant was now regarded as a public servant employed prior to 1 April 2004, a compulsory retirement age of 65 years applied to him. On 5 December 2017, the government made a...