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Ex-Labour Court official loses age discrimination claim

Workplace Relations Commission awards Andrew McCarthy €3,000 on fixed-term contracts issue

Lansdowne House, the offices of the Workplace Relations Commission in Ballsbridge, Dublin. (Picture Colin Keegan, Collins Dublin)

Stephen Bourke
Thu Sep 29 2022 - 15:20

A trade union appointee to the Labour Court has lost his claim for age-based discrimination over losing his position on the court at 66 when he expected to go on working.

However, the Department of Enterprise has been ordered to pay Andrew McCarthy €3,000 in compensation after a Workplace Relations Commission adjudicator found it was not “absolutely clear” that there was “strict compliance” with the law on fixed-term contracts in the case.

Mr McCarthy claimed he was forced to retire in 2020 and lodged a complaint under the Employment Equality Act 1998 and the Protection of Employees (Fixed-Term Work) Act 2003 against the Department of Enterprise, Trade and Employment, alleging discrimination on the grounds of age.

The Department of Enterprise argued his appointment as an ordinary member of the court had been on a series of fixed-term contracts arising from his nomination by the Irish Congress of Trade Unions.

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Although Mr McCarthy had been nominated for three years in 2014 and again in 2017, ICTU did not send his name to the Minister for Enterprise in 2020, the Workplace Relations Commission was told.

Mr McCarthy gave evidence that he was working as a Siptu organiser in the food and drinks sector when he was approached about a position on the Labour Court in 2014.

He said it was a “very serious decision” for him as he was 60 at the time and the role would require him to move from Cork to Dublin.

The WRC was told the complainant was ICTU’s sole nominee for the vacancy in 2014 and was given a three-year warrant of appointment by the Minister for Enterprise.

When he got the second warrant of appointment in 2017, the minister simply wrote to ICTU asking if it wanted him reappointed, Mr McCarthy said.

This contract was extended slightly beyond three years so as to “dovetail” with Mr McCarthy’s 66th birthday in 2020, the tribunal was told.

In February 2020, near the end of Mr McCarthy’s first three-year warrant of appointment, the minister did not repeat the 2017 process and instead wrote to ICTU seeking three names to fill the role of worker member on the Labour Court.

Adjudicating officer Penelope McGrath wrote in her decision that she understood that Mr McCarthy’s name wasn’t on the list.

She noted that the complainant was “clearly blindsided” by this as he had believed he was entitled to work until 70 in the circumstances.

“He had also believed that with ICTU’s backing, which he had clearly had in 2017, he could be reappointed for whatever number of terms would take him to 70 years of age. This plan was clearly unravelling,” she wrote.

In his evidence, Mr McCarthy alleged “skulduggery and shenanigans” were at play, along with “pernicious bullying and harassment”.

He claimed his age of 65 or 66 at the time of the events “played a factor in the decision to terminate [my] employment” as other Labour Court members who were reappointed were “all younger”.

Ray Ryan BL, who appeared for the complainant instructed by Barry Walsh of Fieldfisher Solicitors, submitted that his client had been “retired compulsorily” because he had reached the age of 66 and therefore unlawfully discriminated against.

A civil servant who gave evidence on behalf of the department rejected the complainant’s suggestion that the minister could “override or ignore” the nominations presented by either ICTU or IBEC for the Labour Court.

“These are not and never were intended to be lifetime posts,” the civil servant added.

“I accept the respondent’s evidence that the complainant’s age was neither here nor there. The respondent was not in a position to renew a further fixed-term contract because the complainant had not been nominated,” Ms McGrath wrote.

However, she upheld a complaint by Mr McCarthy under the Protection of Employees (Fixed-Term Work) Act 2003.

Mr Walsh, for the complainant, had argued that he had six years’ unbroken service across the two contracts and ought to have been awarded a permanent contract after four years.

The respondent’s barristers, Cathy Smith SC and Frances Meenan SC, who appeared on the instructions of state solicitor Joseph Dolan, argued that the Department was relying on an objective justification for the successive contracts.

Ms McGrath accepted the evidence presented by the respondent side that the Labour Court required “an array of contemporary innovation, talent and specialisation” in order to stay relevant and perform its functions.

“It does not make sense that such a body might have a perception of being out of touch, entrenched or stale. ‘Replenish and renew’ was the phrase used and I accept that this is the best way of ensuring the agility and dexterity demanded,” she wrote.

However, she noted that the parties were at odds over whether Mr McCarthy received the notification of this objective justification in writing, as required by law.

While there was “no evidence to suggest that any such notice was wilfully withheld”, Ms McGrath wrote, she added that it was “not absolutely clear” that there had been strict compliance with the law.

She awarded €3,000 in compensation for this breach.

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