FULL RECOMMENDATION
SECTION 77, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : BALLYCOTTON SEAFOOD (REPRESENTED BY BALLYCOTTON SEAFOOD) - AND - KAY CRONIN DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Application for redress under Section 77(2) of the Employment Equality Act, 1998.
BACKGROUND:
2. The Labour Court investigated the above matter on the 23rd April, 2004. The Court's determination is as follows:
DETERMINATION:
Ms. Kay Cronin (the complainant) was employed by Ballycotton Seafood Ltd (the respondent) as a general operative from 30th June, 2003 until 1st October, 2003, when she was dismissed. She worked part-time for approximately 20 hours per week.
The complainant contends that she was dismissed after the company had engaged non-national workers to perform the work for which she was employed and that her dismissal was on grounds of her nationality. She claims to have thereby been discriminated against in terms of section 6(2)(h) of the Employment Equality Act, 1998, (the Act).
The respondent denies that the complainant was dismissed for the reasons alleged. They contend that she was dismissed by reason of redundancy and was selected for redundancy because she worked part-time. The respondent further denies that non-national workers or any workers were engaged to undertake the work at which the complainant had been employed.
The Evidence.
The complainant told the Court that she was employed by the respondent as a general operative. She worked part-time from 8am to 1pm five days per week. Later, by agreement with the respondent, her starting time changed to 9am. She was paid the statutory minimum wage. In the area in which she was employed there was a mixture of national and non-national workers. There were other workers, both nationals and non-nationals employed elsewhere in the business. Another part-time worker (who was a student) who worked with the complainant had left the employment to return to college towards the end of September, 2003.
On 1st October, 2003 the claimant was told by Mr. McGinley, the production manager with the respondent, that she was being dismissed with immediate effect. It was the complainant’s evidence that when she asked the reason for her dismissal Mr McGinley said that things were quiet and that a number of non-national workers had been taken on. She understood this to be a reference to three non-national workers who had been taken on a few days earlier.
The complainant told the Court that the respondent provided accommodation for rent which is availed of by the non-national employees. She believed that this was a factor which influenced the respondent in retaining non-nationals in employment in preference to her.
In cross-examination the complainant accepted that she did not have the necessary skills to work as a flitter. She accepted that a sales person had also been let go around the same time. She also accepted that on one or two occasions she had been told not to report for work as there was insufficient work available.
Evidence of Ms. Diane Walsh
Ms. Diane Walsh who is a Director of the respondent gave evidence. Having outlined the nature of the respondent’s business and its development, Ms. Walsh told the Court that in August and September, 2003 orders were down and they were overstaffed in production and marketing. Following advice from their accountants and from Mr. Ronan O’Farrell, who is a food and business consultant, it was decided to dispense with part-time working. Since the complainant was unable to work full-time it was decided to terminate her employment.
Ms. Walsh said that three non-nationals had been employed on a trial basis in the week in which the complainant was dismissed. Two of them had specific skills which the complainant did not have and they were employed elsewhere in the business. In the case of the third person, the respondent had applied for and obtained a work permit in respect of this individual in April, 2003. He was taken on for a trial period by the respondent but had not been retained.
With regard to the accommodation provided to the non-national employees, the witness told the Court that two houses, which were owned by the Directors of the Company were rented to employees at a rent of €40.00 per week per person. There were currently eight persons renting this accommodation. There is no requirement that these workers rent this accommodation and the rent is not deducted from their wages.
Finally the witness told the Court that the complainant was dismissed because it was necessary to reduce the number of staff due to slack trading. The complainant was selected because she was only available to work part-time and not because of her nationality or any matter related to her nationality.
Evidence of Mr. Ronan O’Farrell.
Mr. O’ Farrell is a Food Business and Development Consultant who has been advising the respondent on various aspects of their business for upwards of three years. He said that he had advised the Directors of the Company of the need to control overheads and to eliminate any unnecessary costs. Mr. O’Farrell’s
recollection is that this advice was given in or about June, 2003. The advice had been general in nature and no specific proposals regarding staffing had been put to the Directors.
Evidence of M.r Kevin McGinley
Mr. McGinley is the production manager with the respondent. He was the complainant’s immediate manager. The production department’s main activity was the preparation and packaging of stuffed mussels. He said that in September, 2003 the production of mussels was being stockpiled due to difficulties in distribution. At that time there were five people working in production and he formed the view that they were overstaffed. As a result of a discussion with the directors of the company, Mr. McGinley informed the complainant that she was to be let go. The witness told the Court that the reason why the complainant was selected was because she worked part-time and her hours of attendance did not suit his production schedule.
The witness expressly denied having indicated to the complainant that she was selected for redundancy because non-national employees had been recruited. Mr. McGinley said that no new workers were taken on in the production department nor had the complainant been replaced.
Evidence of Ms. Karen O’Brien.
Ms. O’Brien is a member of the respondent’s administrative staff. She gave evidence of having been present when the complainant met with Ms. Walsh after her dismissal in order to have a social welfare form signed. The witness said that she heard Ms. Walsh say that she was sorry to have had to let the complainant go but that it was because business was down. Ms. Walsh had asked the complainant if she would like to come back if the business improved but the complainant said that she would not.
Conclusions of the Court.
It is the complainant’s case that her dismissal was motivated by her nationality in that the respondent preferred to retain non-nationals. In support of this contention the complainant relies mainly on her recollection of what was said to her by Mr. McGinley at the time of her dismissal and the fact that three non-national workers were employed immediately before her dismissal.
The Court accepts that two of the employees taken on before the complainant’s dismissal had skills which the complainant did not have and were assigned to specific functions which the complainant could not perform. The Court further accepts that the third employee was not retained.
There is a clear difference of recollection between the complainant and Mr. McGinley regarding what was said at the time of her dismissal . However the Court does not believe that the complainant’s own uncorroborated evidence on this point goes far enough to establish a prima facie case of discrimination on grounds of her nationality.
Having considered the evidence as a whole the Court is satisfied that the respondent decided to reduce its staff because of economic and trading considerations. It is further satisfied that the complainant was selected for dismissal because she was a part-time worker.
Whilst the manner in which the complainant was treated may have been unfair and the reason for her dismissal may have implications under other legislation, she has failed to establish a prima facie case that her treatment was motivated by her nationality. Accordingly the claim herein must fail.
Determination.
It is the determination of the Court that the respondent herein did not discriminate against the complainant on grounds of her nationality.
Signed on behalf of the Labour Court
Kevin Duffy
19th May, 2004______________________
J O'C/MB.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Joanne O'Connor, Court Secretary.