Case Number: ADJ-00009096. Workplace Relations Commission.
| Docket Number | ADJ-00009096 |
| Hearing Date | 23 March 2018 |
| Date | 01 May 2019 |
| Year | 2019 |
| Court | Workplace Relations Commission |
| Parties | A Traffic Warden v A Local Authority |
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
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The complainant details that he was not notified in writing of changes to his terms of employment and that he was discriminated against on the basis of age. Additional correspondence was forwarded to the WRC up until December 2018 regarding the claims which parties were given an opportunity to respond to. |
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The complainant represented himself on day 1 of the hearing and was represented by his representative on day 2.
The complainant outlined that he interviewed for the role of Traffic/Litter Warden in 1998. On 1st October 1998 he was advised to call into the respondent’s office where he was provided with a contract of employment which he signed on 4th October 1998. There was no reference in this contract to a retirement age. The contract details that he “accepts and agrees to bound by the above terms and conditions…”.
The complainant detailed that he never received what the respondent refers to as “Qualifications and Particulars of Employment” and which the respondent advises accompanied the contract of employment. It was put forward by the complainant that no reference was made to such qualifications and particulars of employment within the contract of employment and there is only mention that he is bound by the “above” terms. No “qualifications and particulars” are detailed anywhere “above”.
When the complainant requested a copy of his personnel file in 2017, there was no copy of such “qualifications and particulars of employment” on his personnel file. It was also further put forward by the complainant that in recent times, he has been provided with two copies of the “particulars of employment”; one which detailed his retirement age to be 65 and another which details that his retirement age would be 66.
In evidence the complainant detailed that the addition of these qualifications and particulars and/or the differences between them were in effect, a change to his terms of employment which he was never notified of.
The complainant outlined that his employment was terminated on 3rd August 2017.
Case law highlighted included Donnellan v Minister for Justice Equality and Law Reform IEHC 467, Reilly v Drogheda Borough Council [2008]IEHC467, Giorgiev C-250/09 and C268/09. |
Summary of Respondent’s Case:
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The respondent details that the complainant received a contract of employment. This contract of employment did not detail a retirement age but his retirement age was detailed within the qualifications and particulars ofhis employment, as well as his pension scheme and correspondence sent to the complainant in advance of his retirement.
The respondent outlined that the complainant knew that the “qualifications and particulars” were the basis for the role that he applied for originally. While the “qualifications and particulars” may not have been on his personnel file when he queried the issue of retirement; it always formed part of his terms and conditions of employment and therefore the respondent refutes the claim that the terms and conditions were changed.
It was detailed by the respondent that the Town Clerk who would have signed the contract with the complainant was of the opinion that the complainant was given a copy of the qualifications and particulars on the same day that the contract was signed. This former Town Clerk was not in attendance to give direct evidence.
Case law cited included UD891/2009 & MN924/2009 Hannah Moloy v Connacht Gold, Mysie Foran v Candela Ltd t/a Actons Hotel UD/1009 |
Findings and Conclusions:
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Section 5 of the Terms of Employment (Information) Act 1994 provides that
“Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3 , 4 or 6 , the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than— ( a) 1 month after the change takes effect, or ( b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.
The complainant outlines that the ‘introduction’ of a retirement age was a change in his terms and conditions of employment. The respondent details that this retirement age was always a condition of his employment.
I note that while there is a signed copy of a contract of employment, there is no reference in this contract to any retirement age and there is also no mention to any other document namely, “qualifications and particulars”. It is also noteworthy that no satisfactory explanation was given as to why there were two copies of “qualifications and particulars” provided at the hearing with two different retirement ages detailed purporting to relate to the complainant’s terms of employment.
Based on all the evidence, I find that the “retirement age” contained in the “qualifications and particulars” was a change to the complainant’s terms and conditions of employment. I find that the claim is well founded. |
Summary of Complainant’s Case:
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The complainant represented himself on day 1 of the hearing and was represented by his representative on day 2.
The complainant outlined that he interviewed for the role of Traffic/Litter Warden in 1998. On 1st October 1998 he was advised to call into the respondent’s office where he was provided with a contract of employment which he signed on 4th October 1998. There was no reference in this contract to a retirement age. The contract details that he “accepts and agrees to bound by the above terms and conditions…”.
The complainant detailed that he never received what the respondent refers to as “Qualifications and Particulars of Employment” and which the respondent advises accompanied the contract of employment. It was put forward by the complainant that no reference was made to such qualifications and particulars of employment within the contract of employment and there is only mention that he is bound by the “above” terms. No “qualifications and particulars” are “above”.
When the complainant requested a copy of his personnel file in 2017, there was no copy of such “qualifications and... |
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