Case Number: ADJ-00026791. Workplace Relations Commission

• Docket Number: ADJ-00026791
• Hearing Date: 01 October 2020
• Date: 01 January 2021
• Court: Workplace Relations Commission
• Respondent: A Community Employment Scheme

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00026791

Parties:

	Complainant	Respondent
Anonymised Parties	A Supervisor	A Community Employment Scheme

Representatives Forsa Burns Nowlan Solicitors

Complaint:

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-00033626-001	09/01/2020

Date of Adjudication Hearing: 01/10/2020

Workplace Relations Commission Adjudication Officer: Enda Murphy

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015following 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.

Given the sensitivities of the issues connected with the complaint, I have decided to exercise my discretion to anonymise the identities of the parties in this matter.

Background:

The Respondent is a not for profit organisation and operates a community employment scheme which is funded by a Government Department. The Complainant was employed by the Respondent as a Supervisor from 30 December, 2002 until 10 April, 2019 when his employment was terminated. The Complainant claims that his employment was terminated on the grounds of his age after reaching the age of 66 years. The Complainant contends that the Respondent did not have a compulsory retirement age for employees upon reaching the age of 66 years and that his contract of employment did not contain any clause to indicate that he would be obliged to retire upon reaching this age. The Complainant claims that his dismissal upon reaching the age of 66 years amounts to a discriminatory dismissal on the grounds of age contrary to Section 8(6) of the Employment Equality Acts. The Respondent disputes the claim of discriminatory dismissal and contends that the Complainant’s employment was terminated as a result of the cessation of funding for his position from the relevant Government Department. The Respondent contends that the Complainant’s position was wholly funded by the Department and that the company did not have sufficient finances to retain him in employment after this funding was ceased in April, 2019. The Respondent disputes that the termination of the Complainant’s employment was in any way connected to the fact of his age or that it amounts to a discriminatory dismissal contrary to the Employment Equality Acts.

Summary of Respondent’s Case:

Preliminary Issue – Time Limits and Application for Extension of Time The Respondent disputes the Complainant’s claim that he was discriminatorily dismissed on the grounds of age contrary to Section 8(6) of the Employment Equality Acts. The Respondent, without prejudice to the foregoing, also submits that the Director General of the WRC does not have jurisdiction to inquire into this complaint on the basis that the Complainant has failed to refer the complaint to the WRC within the six-month time limit provided for in Section 77(5)(a) of the Employment Equality Acts. The Respondent submits that the Complainant has indicated on his Complaint Referral Form that the date of the most recent occurrence of discrimination was 10 April, 2019 (i.e. the date of termination of his employment) and that the complaint was referred to the WRC on 9 January, 2020. The Respondent submits, therefore, that the complaint was not referred to the WRC within the proscribed six-month statutory time limit. The Respondent also submits that the Complainant has failed to establish that his failure to refer the instant complaint to the Director General within the required time limit was due to reasonable case, and therefore, he cannot avail of an extension to the time limit under the provisions of Section 77(5)(b) of the Employment Equality Acts.

Summary of Complainant’s Case:

Preliminary Issue – Time Limits and Application for Extension of Time The Complainant does not dispute that the instant complaint was not referred to the Director General within the six-month time limited provided for in Section 77(5)(a) of the Employment Equality Acts. However, the Complainant, contends that his failure to submit the complaint within the applicable period of six months occurred as a result of the ill-health that he suffered following the termination of his employment on 10 April, 2019. The Complainant claims that he experienced multiple health issues following his dismissal which required medical intervention and resulted in his hospitalisation for a period. The Complainant contends that he was required to undergo a lengthy period of recovery following his hospitalisation which required the prioritisation of his health, and therefore, was not in a position to attend to matters arising from his dismissal during this period. The Complainant stated that he approached a solicitor in May/June, 2019 to obtain advice about getting assistance in relation to asserting his rights arising from his dismissal. The Complainant stated that he subsequently contacted his Trade Union representative in December, 2019 and following which arrangements were put in place to refer the instant complaint to the WRC. The Complainant submits that he has established that the failure to refer the complaint to the WRC within the six-month statutory time limit was due to reasonable cause, and therefore, the relevant time period should be extended to twelve months in accordance with the provisions of Section 77(5)(b) of the Acts.

Findings and Conclusions:

Preliminary Issue – Time Limits and Application for Extension of Time The Respondent raised a preliminary objection in relation to the jurisdiction of the Director General of the WRC to investigate the claim of discrimination in the instant complaint on the grounds...