Case Number: DEC-E2016-049. Workplace Relations Commission

Judgment Date01 March 2016
CourtWorkplace Relations Commission
Docket NumberDEC-E2016-049
PartiesRaymond Maguire -V- Raidió Teilifís Éireann
EMPLOYMENT EQUALITY ACTS DECISION NO. DEC-E2016-049 PARTIES Raymond Maguire AND Raidió Teilifís Éireann (Represented by Arthur Cox Solicitors) File reference: EE/2014/144 Date of issue: 14th March 2016 Introduction:

1.1 This complaint concerns a claim of discrimination on the grounds of gender. The complainant was a longstanding employee of the respondent and left its employment on the 17th December 2012, having accepted a voluntary redundancy package. The respondent is the national broadcaster.

1.2 The complainant referred a claim to the Director of the Equality Tribunal on the 14th March 2014 under the Employment Equality Acts. On the 8th July 2015, in accordance with powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Kevin Baneham, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on the 15th July 2015. The complainant attended in person and was accompanied by a former colleague. The respondent was represented by Arthur Cox Solicitors and two managers attended as witnesses on its behalf.

1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.

2. Submissions and evidence of the complainant:

2.1 The complainant outlines that the respondent has discriminated against him on the ground of gender. He availed of a voluntary severance package and left the respondent’s employment on the 17th December 2012. He had requested to continue in service in order to complete certain legacy issues with the project he was working in, but this request was declined. He was informed that all those who wished to avail of the scheme would have to leave prior to the end of December 2012. He states that during the course of 2013, he became aware that two female members of staff were able to avail of the scheme while continuing in employment until dates in 2013. The complainant states that he is at a loss of 15 weeks’ pensionable service and the accrued salary and pension benefits. He says that the most recent date of discrimination is the 17th October 2013.

2.2 The complainant outlines that he commenced employment with the respondent in 1969 and worked in various technical and management roles. In 2011, he worked on two significant projects where he acted as project manager. Those projects came to fruition on the 24th October 2012 and there were legacy issues to deal with after that date. The complainant outlines that he trained a consultant to work on these issues for the time after the end of his employment with the respondent. In April 2013, he spoke to the consultant twice by telephone and made one visit to him at the respondent’s headquarters. Addressing his association with the respondent after the end of his employment, he said that in July 2013 he attended a congress on behalf of the credit union associated with the respondent.

2.3 In respect of the end of his employment, the complainant outlines that in April 2012, the respondent issued details of a redundancy package that required members of staff to leave by the end of 2012. He asked to avail of the package and requested that he continue in employment until March 2013, in order to address legacy issues. This request was declined. He states that a representation was made to him that the package would not be available to him if he continued in employment beyond the end of 2012. He refers to differences in “Frequently Asked Questions” in the 2011 and 2012 schemes, where a statement in the 2011 FAQ that staff might continue in service “in exceptional circumstances” was not included in the 2012 FAQ. This difference highlighted the once-and-for-all nature of the 2012 package.

2.4 The complainant outlines that he became aware that three colleagues had availed of the 2012 package but remained in service until dates in 2013. These three staff members were women and he states that forcing him to leave by the end of 2012 was intrinsically discriminatory. He states that the terms and conditions of the 2012 scheme stated that the respondent reserved the right to extend the termination date to a date in 2013, but there were no objective criteria for the exercise of this power. This was also discriminatory. He outlines that the respondent breached its Policy and Procedures manual in not treating all its employees equally.

2.5 During the course of the hearing, the complainant submitted electronic newsletters issued by the respondent in 2013. The newsletters were circulated to former RTÉ employees so that they could keep abreast of news about the organisation and their peers. The documentation includes announcements of those of the complainant’s former colleagues who retired in 2013. Through casual conversations, the complainant said that he became aware that certain 2013 retirees had been able to avail of the 2012 package. He learnt that this included female colleagues who had retired in March, June, August and September 2013. The complainant outlined that, in contrast with how these colleagues were treated, he had been emphatically told that there was no possibility of remaining in service into 2013. This was immutable, non-negotiable and there was no discretion. He refers to internal communications within the respondent stating that this would be the final time a package would be based on salaries paid before significant pay deductions were made by the respondent. The complainant stated that his manager, a woman, was permitted to avail of the package and to work until August 2013. He draws attention to the free briefing he gave the consultant who took over his role. He outlines that he sought to reach an agreeable solution between the parties. He says that the most recent occurrence of discrimination was the 22nd September 2013, i.e. the date of the retirement of the fourth of the colleagues who availed of the 2012 package and worked into 2013.

2.6 Addressing the issue of the waiver, the complainant said that this does not prevent him from referring this complaint. He states that the fact that female colleagues were allowed avail of the package and to continue working into 2013 when no man was, in itself, establishes a prima facie case of discrimination. He states that one male retired in 2013 but did not receive the 2012 package. The complainant asks what criteria were used to allow the female employees continue into 2013. Addressing the issue of when he submitted this complaint, he said that, because of his long service with the respondent, he had to reflect carefully before referring this complaint. He did so in February 2014 and lodged the complaint in March 2014.

3. Submissions and evidence of the respondent:

3.1 The respondent raises three preliminary issues. First, the complaint was made outside the time limits prescribed in section 77(5) of the Employment Equality Act. The second is that the complainant was not entitled to bring these proceedings as he had voluntarily and lawfully compromised his statutory rights in signing the waiver, returned with his letter of acceptance, dated the 12th September 2012. This document provides that the respondent is released from all claims under statute, contract or common law, arising out of his employment with the respondent. It is submitted that the complainant had sufficient opportunity to obtain professional advice prior to signing the waiver. The third preliminary issue is that the complainant has not discharged the necessary burden of proof, i.e. raising a prima facie case of discrimination.

3.2 The respondent outlines that in addition to the preliminary issues, it always treated the...

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