Labour Court Database __________________________________________________________________________________ File Number: EED932 Case Number: EEO9310 Section / Act: S27EE Parties: CARROLL JOINERY (INTERNATIONAL) LIMITED - and - EAMES DORE & COMPANY, SOLICITORS;MS. JOSEPHINE KILALLY;THE EMPLOYMENT EQUALITY AGENCY |
Alleged discriminatory dismissal of a worker in contravention of Section 3(4) of the Employment Equality Act, 1977.
Recommendation:
This case involves a dispute (referred under section 27 of the
Employment Equality Act, 1977 ('the 1977 Act')) that the claimant
suffered discrimination in contravention of section 3(4) of the
1977 Act in relation to her dismissal from her employment as a
production assistant.
The Labour Court ('the Court') investigated the dispute in
accordance with Section 26 of the 1977 Act on the 26th of May,
1993 and has considered all of the evidence put forward by the
parties in their oral and written submissions.
The Court is satisfied that the claimant was selected for
redundancy despite the fact that a redundancy situation did not
properly exist within the employment. Even if there had been a
redundancy situation within the Company, the Company should have
chosen a male worker who had considerably less service and less
experience with the Company than the claimant.
The Court is satisfied that the termination of the claimant's
employment occurred because the Company wished to employ a male
worker instead of the claimant, and that this preference for a
male worker was grounded on considerations related to the sex of
the claimant and not otherwise.
Consequently the Court is satisfied that the complaint is
well-founded and that the claimant was discriminated against by
the employer in contravention of section 3(4) of the 1977 Act.
The claimant has not sought reinstatement or re-engagement and the
Court has therefore decided to award compensation. The Court
considers that the sum of #1,500 would represent reasonable
compensation in the circumstances of the case, and will make an
order for the payment of the said sum by the employer to the
claimant.
Division: MrMcGrath Mr Keogh Mr O'Murchu
Text of Document__________________________________________________________________
EED932 ORDER NO. EEO1093
EMPLOYMENT EQUALITY ACT, 1977
SECTION 27
PARTIES: CARROLL JOINERY (INTERNATIONAL) LIMITED
AND RATIONEL VINDUER LIMITED TRADING AS RATIONEL VINDUER
(REPRESENTED BY EAMES DORE & COMPANY, SOLICITORS)
AND
MS. JOSEPHINE KILALLY
(REPRESENTED BY THE EMPLOYMENT EQUALITY AGENCY)
SUBJECT:
1. Alleged discriminatory dismissal of a worker in contravention
of Section 3(4) of the Employment Equality Act, 1977.
BACKGROUND:
2. 1. The Company is engaged in the manufacture of doors and
windows and is based in Edenderry, Co. Offaly. The worker
commenced employment on the 1st of September, 1988 and worked
as a cleaner for a short period. She was then trained to
work on the factory floor. From February to June, 1992, she
was on sick-leave with a pregnancy-related illness. During
this period the Company engaged a male employee, some of
whose duties were those previously carried out by the worker.
On the 17th of July, 1992, shortly after she returned to
work, the complainant was given notice of proposed selection
for redundancy. The reason given by the Company for her
dismissal was 'Trade recession'. The worker's position is
that her dismissal was not a genuine redundancy and that it
was based on discriminatory grounds. She claims that her
dismissal was related to her sex and to her pregnancy-related
sick-leave, in contravention of Section 3 of the 1977, Act.
The Company rejected her claim and the worker referred the
dispute to the Labour Court in accordance with Section 27 of
Employment Equality Act, 1977. A Labour Court hearing was
held in Tullamore on the 26th May, 1993.
The parties submitted written submissions which were expanded
on orally at the hearing.
AGENCY'S ARGUMENTS:
3. 1. As far as the worker is aware, there was no fall-off in
trade during the months prior to her dismissal or during the
two weeks she worked in July, 1992. The Company was in a
healthy position regarding orders. In December, 1991, the
staff were informed that the Company had received a large
order from a Scottish development Company.
2. The worker is unaware of any other worker who was made
redundant when she was. Apart from the claimant, all other
staff in the Company were male.
3. If there had been a genuine redundancy situation and a
"general programme of redundancy", it would have been
inconsistent to take on two workers to replace the claimant,
the first while she was on sick-leave and the second some
weeks following her dismissal.
4. Even if there were a genuine redundancy situation, the
fact that the claimant's employment was terminated when there
were other (male) workers with less service and experience
suggests that her employment was terminated for
discriminatory reasons. Most of the workers on the factory
floor had considerably less experience and service than the
claimant. One worker was taken on in April, 1992 and was
kept on in employment after the claimant was let go.
5. In the recent Labour Court decision, EEO3/93, Iona v A
Worker (EEA & IALPA), the Court concluded that the selection
of the claimant for redundancy was discriminatory; there are
many similarities between the Iona case and the present one.
In another similar case, EEO5/90, Kinsella v Rathfarnham Inn,
the Court held that the claimant's dismissal had been related
to her sex.
6. The Company stated in its letter of the 26th January,
1993, that it was not possible to keep the worker in
employment because (i) it was not viable to employ one
full-time employee to carry out the insulation work and (ii)
although redeployment was considered, the alternative work
available was not suitable for the claimant because it
involved heavy lifting, loading etc.
Even if it were not feasible to have the claimant employed
solely on insulation work, she was capable of performing a
range of other duties (details supplied to the Court). The
main task the claimant had not had experience of was cutting
out profiles but she could have been trained to do this and
would have been happy to carry out this duty had it been
required of her.
7. The Company's argumant that 'redeployment' was possible
only to duties which involved heavy lifting is unacceptable.
Any lifting involved in the duties carried out by machinists
or general operatives is easily managed using trolleys etc.
and had been done without difficulty by the worker in the
past as part of her duties. The only time when the lifting
of considerable weight is involved is when glass is fitted
into the units and they are moved into storage or loaded onto
lorries; lifting at this stage has never been done by one
person.
8. The circumstances of the termination of the worker's
employment, after four years of very satisfactory service,
suggest that the termination of her employment was related to
her pregnancy - related sick leave. In the Dekker case (ECJ
177/88) the European Court of Justice held that unfavourable
treatment because of pregnancy constitutes direct
discrimination on grounds of sex. The ECJ stated in that
decision that unfavourable treatment arising from absence
'connected with pregnancy must be deemed to be based,
primarily on the fact of pregnancy'.
9. In the absence of a clear, specific and
non-discriminatory explanation for the worker's dismissal, it
is reasonable to conclude from all the circumstances that her
treatment was discriminatory on grounds of sex and
contravened the 1977 Act.
COMPANY'S ARGUMENTS:
4. 1. The worker approached management at the end of February,
1992 and enquired if she could be made redundant. The
Company's response was that as she had advised the Managing
Director that she was pregnant it would be neither possible
nor advisable to consider redundancy for her.
2. During the worker's illness (February, 1992 to June,
1992) the Company retained another worker to carry out
general factory labourer work. His duties included work
previously carried out by the complainant. He was not,
however, employed to replace her but was retained to do heavy
manual work including the lifting of heavy doors and windows.
He was also required to perform the lifting of doors and
windows on and off Company vehicles.
3. After the complainant's return to work in early June,
1992, the Company was compelled to pursue a voluntary
redundancy programme. On remembering the worker's prior
request for redundancy, the Managing Director approached her
and enquired if she still wished to be made redundant to
which she replied "whatever you like". If at any time the
worker had objected to the termination of her employment she
would have been retained.
4. During the month of July, 1992, another employee was
also made redundant in accordance with the Company's general
programme of redundancy.
5. On the 29th July, 1992 the worker received her
redundancy cheque from the Company's Financial Controller.
Although she expressed disappointment with the amount of the
cheque, there was no suggestion at this time or at any
previous time that she was not satisfied about being made
redundant.
6. The Company's decision to terminate the worker's
employment was made on a commercial basis and under no
circumstances was it based on her sex or her marital status.
7. The worker's employment was terminated in accordance
with the provisions of the redundancy payments Acts
1987-1990. All appropriate procedures as laid down by these
acts were followed. The worker accepted her redundancy
payment and signed RP2 Forms.
ORDER:
This case involves a dispute (referred under section 27 of the
Employment Equality Act, 1977 ('the 1977 Act')) that the claimant
suffered discrimination in contravention of section 3(4) of the
1977 Act in relation to her dismissal from her employment as a
production assistant.
The Labour Court ('the Court') investigated the dispute in
accordance with Section 26 of the 1977 Act on the 26th of May,
1993 and has considered all of the evidence put forward by the
parties in their oral and written submissions.
The Court is satisfied that the claimant was selected for
redundancy despite the fact that a redundancy situation did not
properly exist within the employment. Even if there had been a
redundancy situation within the Company, the Company should have
chosen a male worker who had considerably less service and less
experience with the Company than the claimant.
The Court is satisfied that the termination of the claimant's
employment occurred because the Company wished to employ a male
worker instead of the claimant, and that this preference for a
male worker was grounded on considerations related to the sex of
the claimant and not otherwise.
Consequently the Court is satisfied that the complaint is
well-founded and that the claimant was discriminated against by
the employer in contravention of section 3(4) of the 1977 Act.
The claimant has not sought reinstatement or re-engagement and the
Court has therefore decided to award compensation. The Court
considers that the sum of #1,500 would represent reasonable
compensation in the circumstances of the case, and will make an
order for the payment of the said sum by the employer to the
claimant.
~
Signed on behalf of the Labour Court
Tom McGrath
5th October, 1993 ____________________________________
M.K./J.C.
Chairman
Note
Enquiries concerning this Recommendation should be addressed to
Mr. Michael Keegan, Court Secretary.