Case Number: ADJ-00026333. Workplace Relations Commission

Docket NumberADJ-00026333
Hearing Date15 September 2020
Date01 December 2020
CourtWorkplace Relations Commission
ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00026333

Parties:

Complainant

Respondent

Parties

Peter O'Loughlin

Health Services Executive HSE West

Representatives

Gerard Kennedy SIPTU

Diarmuid Cunningham, Comyn Kelleher Tobin Solicitors

Complaint(s):

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00033546-001

08/01/2020

Date of Adjudication Hearing: 15/09/2020

Workplace Relations Commission Adjudication Officer: Ray Flaherty

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, andfollowing the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant commenced employment with the Respondent, on 8 March 1999 in the role of Caretaker, in a temporary capacity. The Complainant was subsequently made permanent on 16 February 2015. At that time, the Complainant was provided with a Contract of Employment which stipulated a retirement age of 65 years, at which point he would be entitled to a pension, based on full-service from 8 March 1999.

On 8 August 2018, the Complainant applied for a one-year retention of employment, under the Department of Health Circular 015/2017 (HSE HR Circular 006/2018). This application was approved, and the Complainant completed and signed the appropriate documentation in this regard on 29 August 2018.

In September 2018, some two months prior to his 65th birthday, the Respondent initiated his retirement process, with the appropriate application documentation being completed and signed on 27 September 2018.

The Complainant commenced a one-year fixed term contract of employment on 2 December 2018, which concluded on 1 December 2019 in line with the terms of that contract.

On 8 January 2020, the Complainant submitted a complaint to the Workplace Relations Commission, under Section 77 of the Employment Equality Act, 1998, claiming discriminatory dismissal by reason of his age.

That complaint is the subject of this investigation/adjudication.

Summary of Complainant’s Case:

Submissions made on behalf of the Complainant contended that he was dismissed by the Respondent through enforced retirement on 3 December 2019 when his application for an extension of his contract beyond the age of 66 was rejected.

According to the Complainant’s submission, at the time of his dismissal, the Respondent had not set out any reasons whatsoever for deciding to issue a notice of termination or for now applying a retirement date of 66 as per HSE HR capita circulars.

It was further submitted that the Complainant was not required to undertake a medical examination to determine his fitness or otherwise to remain in employment.

In his complaint form, the Complainant nominated a comparator (Mr A), on whom he relied to demonstrate that there are differing and, in Mr A’s case more beneficial retirement dates applicable within the Respondent’s employment. According to the Complainant’s submission, it has been confirmed by the Respondent that, at no stage, prior to the implementation of the decision to dismiss the Complainant, did the Respondent indicated subjective justification for the difference in retirement ages or identify as to whether the means of achieving that objective were either appropriate or necessary.

The Complainant contends that the Respondent cannot now rely on any form of objective justification for his termination given that at no stage prior to his dismissal was he made aware or given the opportunity to either question or challenge the legitimacy or veracity of such justification.

The Complainant’s representative referred to Section 85 (a) of the Employment Equality Acts, which sets out the burden of proof applying to claims of discrimination. The Complainant requested, that in considering the requirement necessary to meet that burden of proof, the Adjudication Officer should give due consideration to the following facts:

1. The Complainant was dismissed by the Respondent on 13 December 2019.

2. The decision to terminate his employment was directly related to his age.

3. At the time of his dismissal, other employees have been and were being treated more beneficially in relation to the application of retirement age. In this regard, the Complainant again cited Mr A, who, it was alleged, continues as a direct employee of the Responded at age 67.

4. At the time of his dismissal, the Respondent had not justified the Complainant’s age of retirement within the meaning of Section 34 (4) of the Acts and Article 6 of the Directive 2000 78/EC.

5. At the time of the Complainant’s dismissal, he was fit and well and quite capable of carrying out the functions and duties associated with his job, thereby removing any requirement for the imposition of a mandatory retirement age.

6. The Complainant’s entitlements under the Act are not diluted by virtue of the fact that he was on a fixed term contract. In this regard the Complainant’s representative cited the case of McGrath v Focus Ireland (ADJ-00018823) in support of his arguments.

7. There exists a legal imperative on the Respondent to clearly identify the objective justification be relied upon. In this regard, the Complainant’s representative cited the case of Ann Roper v RTE (ADJ-00019084) and that of Valerie Cox v RTE (ADJ-00006972)

Representation made on behalf of the Complainant contended that the facts, as set out above, are of such significance that they are sufficient to establish a prima facie case of discriminatory treatment. Consequently, the Complainant contends that the burden of proof must,...

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