Flood(Represented by SIPTU) AND Portroe Stevedores, Dublin(Represented by DAS Group)
1. DISPUTE
1.1 This dispute concerns a claim by Mr Anthony Flood that he was discriminated against by Portroe Stevedores on the ground of age contrary to the provisions of the Employment Equality Act, 1998 when he was unsuccessful in his application for a permanent post in Dublin Port.
1.2 SIPTU, on behalf of the complainant, referred a claim to the Director of Equality Investigations on 24 May 2002 under the Employment Equality Act, 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 23 July 2002 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from both parties and a joint hearing was held on 17 November 2003. Subsequent correspondence with the parties concluded on 15 December 2003.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant said he was 61 years of age and had worked as a docker for 43 years. He was initially employed on a casual basis and was made permanent in 1972. In 1992, Dublin Cargo Handling was liquidated. Following lengthy negotiations at the Labour Court, redundancy terms were agreed for most of the staff. A new company, Portroe Stevedores, was established with a small number of permanent staff. Another company was formed, Ocean Manpower Limited (OML), which was owned by Portroe Stevedores, Dublin Port Stevedores and Poolbeg Stevedoring Limited, to maintain a casual workforce upon which the three companies could call as necessary. Under the terms of the agreement reached, the complainant paid back 40% of his redundancy payment and so became part of the casual workforce ("the rack") in 1992.
2.2 The complainant said that in the following ten years he had re-skilled and re-trained with a view to being a highly skilled employee. He said he was qualified to drive an array of heavy equipment, including fork lift trucks, mechanical shovels and bobcats.
2.3 In February 2002 the respondent advertised three permanent positions. In March 2002 the respondent posted an advertisement for new employees (number unspecified). The complainant applied in response to both advertisements, but said he was never notified of the outcome. He discovered he had been unsuccessful when new employees were recruited.
2.4 The complainant said that the ages of the successful candidates were of concern to him. All of them were in their thirties, and he said they did not have the service or skill base that he had. The complainant said the consequence of his lack of success in obtaining a permanent position was that he continued to be employed on a casual basis. This had many financial implications, in that he could not be sure of his wages from week to week. It affected his pension entitlements and also impacted on his ability to take out a bank loan. He said that at this advanced point of his career he felt let down by the company, and he sought redress to counteract the discrimination he said he suffered.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent said that it employed 28-30 full-time employees and operated a casual workforce of approximately 70 people through its subsidiary OML. A very large part of its business involved loading and discharging containers to and from container vessels, which represented a large percentage of the company's income. The respondent said there were two key elements to this business: operation of Liebherr mobile cranes and container handling equipment; and competent, safe and efficient drivers for this equipment.
3.2 The respondent said it had had ongoing difficulty in finding competent drivers to operate the mobile cranes and container handling equipment. It had frequently to bring in drivers from overseas who demanded very high remuneration and whose accommodation and travel costs had to be met by the company. The respondent found this practice restrictive, unreliable and costly. In May 2001, the respondent advertised for permanent employees to undergo training in the operation of the Liebherr mobile crane and other heavy equipment. None of the original OML workforce (including the complainant) applied for the training.
3.3 In February 2002, the respondent advertised permanent positions, the duties of which would include training for and operating the heavy equipment referred to. The three successful candidates, who were aged in their thirties, had previously applied for the relevant training and agreed to undergo the necessary medical examination required for these positions.
3.4 The respondent said that all of the applicants were asked the same questions at interview: (i) do you have a problem with the hours involved?; (ii) do you have a problem working with or taking orders from any of Portroe Stevedores staff?; (iii) do you anticipate having a problem with working with the remainder of the rack?; (iv) have you any computer experience? The complainant was also asked whether a physical complaint would affect his working ability.
3.5 The respondent said that question (ii) was necessary because the complainant had been suspended on two occasions in the past because of failure to follow instructions from supervisors. Question (iii) was necessary because of certain historic difficulties in the relationship between the original OML staff (including the complainant) and new casual workers who joined after 1992. Question (iv) was necessary because all container handling equipment would be fitted with radio frequency cab-mounted keypad units. The company said that the complainant's response to the question was that he was not computer literate.
3.6 The respondent said that health and safety considerations meant that the onus was on it to hire staff with the greatest ability to use the Liebherr cranes and other "very dangerous" machines. The fact that the successful candidates had applied for and received basic training on this machinery meant that their experience, however limited, was a major consideration in their appointment. The respondent denied that age was in any way considered when making the appointments. It provided evidence of the age profile of its permanent employees at March 2002, showing that, of 31 employees with an average age of 44.2 years, 15 were aged over 50 years.
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
4.2 The complainant alleged that the respondent discriminated against him on the ground of age contrary to the provisions of the Employment Equality Act, 1998. Section 6 of the Act provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, which include age. Section 8 provides that:
(1)In relation to-
(a) access to employment...
(b) conditions of employment...
(d) promotion or re-grading...
an employer shall not discriminate against an employee or prospective
employee...
The complainant of discrimination against the complainant
4.3 In a recent claim of discrimination on the disability ground taken under the 1998 Act, the Labour Court said "It is now the established practice of this Court in all cases of alleged discrimination under the Act to apply a procedural rule similar to that prescribed in the case of gender discrimination by the European Community (Burden of Proof in Gender Discrimination Cases) Regulations (SI NO 337 of 2000). Hence, where facts are established from which discrimination may be inferred it is for the respondent to prove the contrary on the balance of probabilities." (Customer Perception Ltd and Leydon [EED0317]). I am satisfied that the same procedural rule should be applied in this claim.
4.4 The requirement therefore is for the complainant to establish those facts from which an inference of discrimination may be drawn. If he successfully achieves this, the respondent must demonstrate that discrimination did not occur.
4.5 The law relating to the issue of a presumption of discrimination or the drawing of an inference of discrimination was authoritatively considered by Quirke J in Davis v Dublin Institute of Technology (High Court, 2000, unreported). That case was an appeal to the High Court on a point of law from a Labour Court determination of a complaint of sex discrimination taken under the Employment Equality Act, 1977. The judge concluded "In cases where discrimination on grounds of sex is alleged to have occurred contrary to the provisions of section 2 (a) of the 1977 Act the fact that there is a gender difference between the successful and unsuccessful applicants for a post or for promotion does not, by itself, require tribunals such as the Labour Court to look to an employer for an explanation...A primary finding of fact by such a tribunal of discrimination or of a significant difference between the qualifications of the candidates "together with" a gender difference may give rise to such a requirement..."
4.6 In this claim, no evidence was provided by the complainant to demonstrate that he had greater skills than the successful candidates, or to dispute the respondent's claim that the successful candidates had undergone specialised training. The only fact actually established is that he was undoubtedly older than the successful candidates. However, it is not enough just to demonstrate a difference upon which one can ground a complaint under the 1998 Act, such as the fact that there is a difference in gender, marital status, sexual orientation or age between the successful candidate and the complainant. As Quirke J said in Davis, quoted above, "...the fact that there is a gender difference between the successful and unsuccessful applicants for a post or for promotion does not, by itself, require tribunals such as the Labour Court to look to an employer for an explanation..."
4.7 In considering all of the evidence adduced in this claim, it is clear that there were ongoing industrial relations issues between management and the original OML workforce. The complainant's representative suggested that these issues led management to "tar them all with the same brush" and prefer to employ new staff, by implication practicing discrimination on the age ground. While there may be an element of truth in the suggestion that the industrial relations disputes coloured management's view of the complainant, this cannot of itself constitute age discrimination. In the circumstances I cannot find that the complainant has established prima facie evidence of discrimination on the ground of age.
5. DECISION
5.1 Based on the foregoing, I find that Portroe Stevedores did not discriminate against Mr Flood on the ground of age, contrary to the provisions of the Employment Equality Act, 1998.
_____________________
Anne-Marie Lynch
Equality Officer
30 April 2004