Bord Na Mona Plc (Represented by Byrne Wallace LLP, Solicitors) v Mr Anthony Kenny (Represented by Services Industrial Professional Technical Union)
| Jurisdiction | Ireland |
| Judgment Date | 02 December 2022 |
| Judgment citation (vLex) | [2022] 12 JIEC 0201 |
| Docket Number | FULL RECOMMENDATION ADJ-00027832, CA-00035646-001 DETERMINATION NO. EDA2232 SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 |
| Court | Labour Court (Ireland) |
FULL RECOMMENDATION
ADE/21/35
ADJ-00027832, CA-00035646-001
DETERMINATION NO. EDA2232
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015
Full Court
Chairman: Ms Connolly
Employer Member: Mr Murphy
Worker Member: Mr Bell
1. Appeal Of Adjudication Officer Decision No. ADJ-00027832, CA-00035646-001.
2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 8 November 2021. A Labour Court hearing took place on 15 September 2022. The following is the Court's Determination:
This is an appeal by Bord na Mona Plc against the Decision of an Adjudication Officer (ADJ-00027832—dated 01 October 2021) in relation to a claim by Mr Anthony (Tony) Kenny, taken under the Employment Equality Act, 1998 as amended (“The Act”). The Adjudicator held that Mr Anthony Kenny was discriminated against on the grounds of age and recommended an award of €25,000 as compensation.
A Notice of Appeal was received by the Labour Court on 08 November 2021. The Court heard the appeal on 12 May 2022 and 15 September 2022. Comprehensive written and verbal submissions were received from both Parties.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Kenny is referred to as “ the Complainant” and Bord na Mona Plc is referred to as “ the Respondent”.
It is accepted that a compulsory retirement age of 65 is incorporated into the Complainant's contract of employment through collective agreement and by custom and practice.
The Complainant formally sought to remain in employment beyond his 65th birthday in April 2020. That request was refused by letter dated 13 December 2019. He appealed the decision, and in January 2020 his appeal was rejected. The company policy is to retire employees on their 65 th birthday or on the last day of that calendar month. The Complainant's employment terminated on 30 April 2020.
The Complainant lodged a complaint of discrimination on the grounds of age to the Workplace Relations Commission (WRC) on 9 April 2020, before he retired.
The Complainant asserts that he was discriminated on the grounds of age on the 15 January 2020 when his employer refused his request to work beyond his 65 th birthday, on the basis that the Respondent did not objectively justify the decision to retire him in line with legislation or the code of practice. The Respondent refutes that assertion. Its position is that the retirement of the Complainant at the collectively agreed retirement age of 65 was objectively justified and did not constitute discrimination within the meaning of the Act.
The Complainant was due to retire in April 2020 and formally requested to extend his employment for a further period. He notified the company in good time and complied with all internal procedures. His application was rejected by letter dated 13 December 2020, which stated as follows:
• “ The current arrangements in respect of employees retiring at 65 are clearly established and understood by all employees in Bord na Móna Group. We believe that retaining the retirement age at 65 years of age is still appropriate and in line with:
1. Bord na Móna conditions of employment which require that all employees retire on their 65th birthday
2. Pension scheme rules
3. Established custom and practice
4. Employees entitlement to draw down pension.”
The Complainant appealed that decision, and his appeal was rejected by letter dated 15 January 2020. The appeal outcome confirmed the same four grounds set out in the 15 December 2019 letter and cited a further ground in relation to “ health and safety requirements given the physically demanding nature of the general operative role and tasks associated with that role.”
The appeal outcome letter was the last communication sent to the Complainant until he received communications about his pension after he was retired in April 2020.
A referral was made to the Workplace Relations Commission on 9 April 2020.
Ms Feeney, SIPTU, on behalf of the Complainant, asserts that a discriminatory decision was made on 15 January 2020, when the Complainant was refused an extension to his contract of employment. The Complainant was explicitly told on 15 January 2020 that he would not be retained in employment. The Respondent did not objectively justify the decision to retire the Complainant in line with legislation and the provisions of the Code of Practice on Longer Working S.l. 600 of 2017. The Complainant had no alternative other than lodge a complaint to the WRC on 9 April 2020.
Ms Feeney further submits that there was no reference to health and safety in the initial grievance, yet the issue of health and safety is relied upon quite clearly by the company. The Complainant's capability to carry out the role was not challenged. It was not a requirement to carry out a medical at that time.
There is no collective agreement in place that allows the appellant to forcefully retire the Complainant. The Respondent cannot rely on a 2016 company union agreement as it related to retirement age. The relevant collective agreement in place was the 2019 company union agreement, which superseded the 2016 agreement. Procedures in respect of retirement age were not agreed at that time. The Respondent's position was that they would not allow any worker under any circumstances to work past 65 years of age. Despite efforts by the union to conclude an agreement on retirement age during 2019, the company continued to schedule individual grievance cases.
A decision of the Joint Industrial Relations Council issued on 17 February 2020 which dealt with the issue of retirement in the following terms:-
• “ The parties should engage on this issue in the context of the WRC code of practice’. It went on to say “ if there are any further outstanding matters arising from this engagement, they should be referred back to the JI are for final decision’.
A decision subsequently issued on 1 April 2020 confirming:
• “ In the case of any worker who before now had registered a grievance with the company relating solely to being retired at 65 years to be offered a fixed term contract for 12 months’.
Ms Feeney submits that the JIRC decision of the 1 April 2020 did not supersede the decision made in January 2020 to reject the Complainant's application to remain in employment after his 65 th birthday. The Complainant was never informed of this matter and instead he was retired in April 2020. The trade unions were only informed on 12 May 2020 that the Respondent was fully committed to implementing the JIRC decision. The Complainant was already retired a month.
The appellant is a member of the defined benefit pension scheme, but the pension was not sufficient to retire.
In response to questions from the Court, Ms Feeney told the Court that it is accepted that the aims set out by the Respondent to justify a mandatory retirement age were legitimate aims, but she asserts that the means of achieving those aims were not appropriate or necessary, as the manner in which the retirement policy was implemented in the Complainant's case was not objectively justified. In this regard, the grievance outcome letter issued to the Complainant did not provide details of the legitimate aims outlined to the Court at the hearing, and the Complainant was never given an opportunity to challenge the health and safety ground.
Ms Feeney referred to the following case law in support of her position: An Operations Manager and An Oil Company ADJ-00023458, Roper and RTE ADJ-0001908417, Geraghty and the Office of the Revenue Commissioners ADJ-0003125 and A Senior Staff Nurse and a Nursing Home (in Liquidation) ADJ 00027325.
Ms Feeney, on behalf of the Complainant, seeks that Court affirm the Decision of the Adjudication Officer or increase the compensation awarded to appropriately compensate the Complainant for loss of earnings and stress which he suffered as a result of the failure of the Respondent to follow their own procedures, jurisprudence, and natural justice.
Mr Loughlin Deegan of Byrne Wallace Solicitors, on behalf of the Respondent, submits that the retirement of the Complainant at the collectively agreed retirement age of 65 was objectively justified and did not constitute discrimination within the meaning of the Act.
The retirement age was collectively agreed with the recognised group of trade unions, including SIPTU, and has operated for many years. When the Complainant was approaching retirement age, he availed of a collectively agreed mechanism in place by which employees could apply through the company's Grievance Procedure to remain in employment beyond retirement age. The Complainant made such an application but was initially unsuccessful.
In April 2020, significant changes were made to the retirement age policy allowing employees to work after retirement age, subject to passing an occupational health assessment and limited to a one-year fixed-term contract. This policy change arose from a binding decision issued by the Joint Industrial Relations Council (JIRC) on 1 April 2020. The JIRC is a tripartite body established to address particular industrial relations issues. Its decisions are binding on both management and unions. Further to the binding decision that issued on 1 April 2020, the Complainant and other employees were offered the opportunity to work past their retirement age and avail of a one-year fixed-term contract, subject to passing an occupational health assessment.
The Complainant declined to attend an occupational health assessment. Having excluded himself from the collectively agreed procedure, he did not take up the...
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