EED0313

The Evidence.

The evidence adduced before the Court can be summarised as follows:

The Complaint’s Case.

The complainant told the Court that on the morning of 25th February 2003 he attended a meeting with Mr Andrew Clarkin and Mr Jim Clarke who are respectively the Managing Director and Production Manager of the respondent. He was informed by Mr Clarkin (hereinafter referred to as the respondent) that the company could not afford to retain six printers and that he was to be made redundant.

It was the complainant’s evidence that the respondent told him that he was being selected for redundancy because he was the oldest printer employed by the respondent. The complainant further told the Court that Mr Clarke had remarked that as he (the complainant) had only a few years to go to retirement he was the obvious choice for redundancy.

The complainant accepted that a redundancy situation existed within the employment. However, he believed that another printer whose work performance was considered unsatisfactory, should have been selected. The complainant also said that a printer had been employed in a temporary capacity some time after he had commenced employment and that this person had subsequently been retained on the permanent staff. The complainant told the Court that he was the most experienced printer employed by the respondent and had been appointed to act as supervisor. On this account he felt that he should have been retained.

The Respondent’s Evidence.

The respondent denied that the complainant’s age entered into or influenced his consideration in selecting him for redundancy. He said that he did not know the complainant’s age when he decided to make him redundant. It was only when he came to complete the statutory redundancy forms that he became aware of his date of birth. The respondent said that approximately 12 months before the disputed dismissal there was a downturn in the level of work which the business was attracting. He said that he discussed the matter with the company’s accountant and with Mr Clarke. Whilst a number of alternative approaches were considered they had come to the realisation that the only viable option was to make one printer redundant.

The respondent company is not party to a collective agreement on selection for redundancy and there is no established custom and practice within the employment in that regard. The witness told the Court that he initially believed that selection would have to be on the basis of last-in-first-out. However he consulted the redundancy section of the Department of Enterprise Trade and Employment in the matter and was told that this was not the case.





The respondent said that he had considered the attributes of each of the six printers and found that there was little to separate them in terms of their suitability for retention. Finally he decided to select the complainant because of an occurrence in which he (the complainant) was involved during the previous year (details of which were provided to the Court) The respondent also said that the complainant was uncooperative in that he would not give a home telephone number at which he could be contacted.

The respondent said that he had not consulted any other member of management on who should go. The decision to select the complainant was his alone.

The witness denied that at the meeting of 25th February, or at any time, had he indicated to the complainant that his selection for redundancy was based on age. The respondent accepted, however, that at the close of the meeting on the 25th February Mr Clarke had remarked to the complainant that he (the complainant) would shortly be reaching retirement age. He said that this was an observation on the part of Mr Clarke, who was not involved in the decision to select the complainant, and did not indicate that age was a factor in that selection.

Conclusions

Burden of Proof
It is now established in the jurisprudence of this court that in all cases of alleged discrimination a procedural rule for the shifting of the probative burden similar to that contained in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001(S.I. No. 337 of 2001) should be applied. The test for determining when the burden of proof shifts is that formulated by this Court inMitchell v Southern Health Board [2001] ELR 201. This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination. If those two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed.

In the instant case the factual basis upon which the complainant relies is twofold. Firstly the complainant’s dominant assertion, around which his case is principally built, is that at the meeting of 25th February the respondent told him that he had been selected for redundancy because of his age. Secondly, in the course of argument the Solicitor for the complainant submitted that the respondent had failed to follow appropriate and fair procedures in deciding who was to be made redundant. It was submitted that this is a sufficient basis on which to shift the probative burden to the respondent.

The Meeting of 25th February.

The Court heard sworn evidence from the complainant and the respondent on their respective recollections of what was said at the meeting of 25th February. They gave diametrically opposed accounts on all material points. The complainant was adamant that the respondent told him in express terms that he was being selected because he was the oldest printer. The respondent was equally adamant that he made no such comment. Neither party was in a position to adduce any corroborative evidence. The complainant told the Court that immediately after the meeting he made a longhand note recording the verbatim content of what had been said. He later created a typed minute based on this note, which was proffered in evidence as corroboration. However the longhand note is no longer available and it transpired that the typed document proffered was created some time after the meeting to which it relates and for the purpose of instructing the complainant’s solicitor. In the circumstance this document has little or no evidential value as corroboration of the complainant’s version of what was said to him.

The Court has given careful consideration to the testimony given by both parties and has taken account of their demeanour in giving their evidence. The Court can see no basis upon which it could prefer the complainant’s evidence to that of the respondent. The onus is on the complainant toestablishthe primary facts which he asserts.The complainant’s uncorroborated evidence of what was said at the meeting of 25th February 2003 is not, in the context of the evidence as a whole, sufficient to establish as a matter of primary fact that the respondent told the complainant that he was being made redundant because of his age. Consequently, the Court must reject the complainant’s assertion that his age was the reason given for his selection.


Selection Criterion

With regard to the point taken in relation to the selection procedure, the Court accepts that the approach adopted by the respondent was somewhat arbitrary and subjective. Whilst this is not a case based on unfair selection for redundancy per-se, the absence of a coherent and objective basis for a particular selection can be symptomatic of discrimination and could constitute a fact upon which discrimination may be assumed. However, on the facts of the instant case the Court does not consider that the deficiencies in the approach adopted by the respondent are of sufficient significance to raise an inference of discrimination.

There were no agreed or established procedures or criteria in the employment regulating selection for redundancy. Nonetheless the respondent considered selecting on the basis of last-in-first-out (LIFO). Having consulted the Department of Enterprise Trade and Employment he became satisfied that he was not required to adopt this mode of selection. Moreover, it is no part of the complainant’s case that LIFO should have been used. In evidence he expressed the view that a printer with significantly longer service than his should have been selected.

The respondent did consider the relative work performance of all printers as a possible criterion for selection. However he concluded that there was little separating them or, in the case of one person, there were countervailing factors in favour of his retention. Finally, the respondent selected the complainant because of the incident which occurred in 2002 which, he said, caused him to doubt the complainants credibility.

At the time of its occurrence this incident was not considered to be of such gravity as to warrant any form of disciplinary action. It would appear to the Court that reliance upon it some time later to select the complainant for redundancy was unfair and contrary to good practice. However, as was pointed out by O’Sullivan J inMulcahy v Minister for Justice Equality and Law Reform [2002] ELR 12, there is no rule in law or in logic to say that because a person offers a bad reason to justify a dismissal this necessarily means that the bad reason is not the real reason. Further, reliance by the respondent on an unfair ground for selection cannot avail the complainant in the present proceedings unless the ground is also discriminatory within the meaning of section 6 of the Act.

Determination.

For the reasons set out above the Court is not satisfied that the complainant has established facts from which it can be presumed that his selection for redundancy was based on his age. Accordingly his claim cannot succeed. It is the determination of the Court that the complaint herein is not well founded and the claim is dismissed.






Signed on behalf of the Labour Court



Kevin Duffy
9th Octoberber, 2003______________________
TOD.Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Tom O'Dea, Court Secretary.