FULL RECOMMENDATION
SECTION 77, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : LOCABOAT IRELAND LIMITED (REPRESENTED BY MASON HAYES & CURRAN, SOLICITORS) - AND - MS JENNIFER HEWSON (REPRESENTED BY THE EQUALITY AUTHORITY) DIVISION : Chairman: Mr Flood Employer Member: Mr Pierce Worker Member: Mr O'Neill |
1. Alleged unfair dismissal under Section 77 of the Employment Equality Act 1998.
BACKGROUND:
2. The Company is involved in the boat rental business. The claimant was employed as an office executive from 17th October, 2000 to 20th June, 2001. She alleges that she was unfairly dismissed on the grounds of her nationality. On the 19th December, 2001 the claimant submitted a complaint to the Labour Court under the Employment Equality Act, 1998. A Court hearing was held on the 23rd May, 2003
DETERMINATION:
The claimant was recruited by the then Managing Director in October, 2000. She was offered the position of office executive on a part-time basis and accepted the position. The claimant’s duties were described in her contract as including general office duties such as responding to customer enquiries, filing and assisting the Managing Director. The more particular duties to be carried out by her were outlined in an appendix to her contract
The claimant was employed by the respondent from the 17th October 2000 until the termination of her employment in June 2001. She claims she was dismissed in circumstances amounting to discrimination on the grounds of her nationality or race.
Claimant’s Case:
While the claimant worked for the Company she reported to the Irish Managing Director and had very little contact with the Directors of the Company who were based in France. She did have Leaving Certificate French and had made it clear that she would be happy to undertake training in the French language if it would assist her in her job.
The claimant stated that she had a very good working relationship with both staff and customers alike but that she felt excluded by a number of the French nationals who spoke French in her presence and this made her feel excluded and uncomfortable. She stated that one of her co-workers, the trainee base manager, said on a number of occasions that he missed his partner Ms Renouard who lived in France and he was hoping that they would be in a position to be together before long.
The claimant's case is that a meeting on the 5th June the Managing Director was informed by the Chairperson of the Company that staff changes were to be made. A new position was to be created for Ms. Renouard, which would involve dealing with clients, reception and non-commercial tasks. It was claimed by the claimant that the Chairperson at this meeting had informed the Managing Director that she was to be dismissed.
She was given no opportunity to apply for or to be considered for this new position, which she contends was almost identical to her own.
On the 14th June she received a letter from the Managing Director of the Company giving her one months notice of her termination of her employment, “due to organisational changes within the Company”. She claims that the Company dismissed her in circumstances amounting to discrimination in that they were determined to hire a French national and specifically Ms Renouard for the position and did not to give her an Irish national any opportunity to apply for the post or any opportunity to train for any additional requirements that might be necessary in order to allow her to undertake any duties required for the position.
Company’s Case:
The respondents stated that regrettably the operations in Ireland had not gone as well as was hoped and in early June 2001 they had made a decision to terminate the contract of the then Managing Director. The dismissal of the Managing Director was it was claimed of considerable significance to the present case.
The Company claimed that once the decision to terminate the Managing Director’s role in Ireland had been taken a decision was then made to restructure the Irish operation entirely with the result that the claimant’s role, which was primarily assisting the Managing Director, was no longer necessary.
The respondents felt they were perfectly within their rights to restructure the Company as they saw fit, given that they were faced with the choice of either attempting to recruit another suitable Managing Director or to restructure in such a way as to eliminate the need for a Managing Director and consequently the need for a personal assistant for that Managing Director.
The respondents listed for the Court a number of areas on which the impact of the termination of the Managing Director’s employment affected the claimant’s position. The Company stated that there were crucial responsibilities in the managing director's position, including reporting to the main board, which required fluency in French and on the accounts side, the Managing Director had overall responsibilities for the preparation of day to day accounting functions. He was a fluent French speaker and had been trained in the French software package and accountancy system.
The person who was to carry out this accounting role would need knowledge of the French accounts software system and also to speak French so that he/she could communicate effectively with the office in France.
In addition, once the decision to terminate the Managing Directors position had been taken, the claimant's general administration duties were no longer necessary and her responsibilities for responding to queries in relation to the reservation of pleasure cruisers were transferred to France.
Once the decision to terminate the Managing Director position and restructure the Irish operations had been taken it became necessary as a matter of urgency to take steps to maintain the continuity of the Irish operation.
The respondents were not in a position to offer the post to the claimant because she lacked the required skills or experience to handle the preparation of day to day accounts. By her own admission the claimant had very little contact with the parent Company in France during the course of her employment, and therefore her level of spoken French had not been a problem.
The respondents say that even had the claimant been fluent in French, her employment would still have been terminated, as she would not have been competent to carry out the revised role that was introduced as part of the restructuring following the termination of the Managing Directors employment.
Since Ms Renouard was a native French Speaker, was trained in accounts and had previous accounting experience with the Company, the Company took the view that with minimal retraining she would be suitable for the newly created post.
The Company accordingly took the decision to employ Ms Renouard in its Ballinamore operation fulfilling the revised role that included some of the duties of the managing director and some elements of the claimant’s duties.
In summary the Company claimed that the claimant was dismissed by reason of redundancy. The termination of the employment of the Managing Director together with the decision to entirely restructure the Irish operation made the claimants position redundant. The decision to employ Ms Renouard arose from operational necessities, was not tainted by discrimination and was entirely reasonable in the circumstances.
The restructuring carried out by the respondent it was claimed fell clearly within the definition of redundancy as set out in the Redundancy Payment Act.
In relation to the claimant being ostracized by her French colleagues, the Company argued that she never made any formal complaint in relation to this matter during the course of her employment. There was nothing sinister about such activities as it is likely she spoke in English with the Managing Director.
Labour Court Findings:
It is clear that the decision to dismiss and not to replace the Managing Director had a major influence on the claimant’s role within the Company. The Court accepts that the primary reason the claimant was dismissed was as a result of the elimination of her job as a result of the dismissal and non-replacement of the Managing Director.
However, the Court must also consider if the “new post” created as part of the restructuring was in fact the claimant’s job under another title, and if this had resulted in discrimination.
The Company has in its submission identified the differences in the two posts. Having examined these differences, the Court is satisfied that the roles are different, although there may be some overlaps, and that this is a new post.
In relation to the question as to whether the claimant could have fulfilled the new job effectively, it is the Court’s view, given the restructuring of the organisation, that it would have been unlikely and certainly not without significant training.
The Court accepts that the Company needed to urgently address the problems it perceived in Ireland. The Court accepts that the decision to appoint Ms Renouard to the position was reasonable and justifiable in all the circumstances and that the decision to dismiss the Plaintiff and or not afford her the opportunity to retrain or apply for the new position was not discriminatory.
Since the claimant was employed for less than one year the avenue of a claim under the Unfair Dismissal Act was not open to her.
Determination:
The claimant was not discriminated against under the Employment Equality Act 1998 when she was dismissed from her employment. Her claim is therefore dismissed.
Signed on behalf of the Labour Court
Finbarr Flood
8th August 2003______________________
TOD/BRChairman
NOTE
Enquiries concerning this Determination should be addressed to Tom O'Dea, Court Secretary.