EDA0513

History of the Dispute.

The complaint was referred to the Court on 12th April 1996, pursuant to section 19 of the Employment Equality Act 1977(the Act). The Court referred the complaint to an Equality Officer for investigation and recommendation on 26th April 1996. MANDATE furnished a submission on 22nd April 1997. The respondent furnished it's submission on 8th October 2001. At that point MANDATE requested that the investigation be suspended so as to facilitate discussions with the respondent aimed at settling the matter. On 15th January 2003 MANDATE informed the Equality Officer that the matter could not be resolved and asked that an investigation proceed. A hearing took place before the Equality Officer on 8th June 2004. Further correspondence ensued between the parties and the Equality Officer up to 7th July 2004. The decision of the Equality Officer issued on 16th February 2005. Notice of appeal was lodged by MANDATE on 17th February 2005. A hearing of the appeal took place before the Court on 12th July 2005.

The Facts.

The material facts as admitted by the parties or as found by the Court are as follows:

The complaints relate to the respondent’s toy store which at the relevant time was located at the Omni Park shopping centre, Santry, Dublin. In the period leading up to Christmas 1995 the respondent established a temporary night crew to replenish merchandise on shelves. This work was normally carried out during the day by five employees all of whom were men. The work in question is referred to as merchandising. The five individuals who normally carried out the merchandising in the store were assigned to the night crew. Hence those making up this night-crew were assigned to carry out their normal duties at night rather than during the day. The members of the night-crew were paid an overtime premium. The night-crew was constituted by assignment and no other members of staff, including the complainants, were invited to apply for the positions.

On or about the time the night-crew was established the MANDATE shop-steward, Mr Murphy, placed a notice in the store informing staff that overtime opportunities would become available over Christmas and advising that the Union’s position was that all interested staff should be afforded an opportunity to avail of that overtime. After the night crew was established a number of check-out operators approached Mr Murphy to enquire as to why they had not been given an opportunity to apply for these positions.

Mr Murphy raised the matter with Mr Dillon, who was the non-food manager with the respondent. Mr Murphy asked that two of the check-out operators be assigned to the night-crew. A number of meetings ensued which culminated in Mr Dillon telling Mr Murphy that he did not intend placing women on the night shift. Mr Murphy told the Court that the representations which he made were on behalf of the check-out operators generally and not in respect of any individuals. Mr Murphy subsequently reported back to the check-out operators on the outcome of his discussions with Mr Dillon.

Ms Louise Mahady, who is one of the complainants, told the Court that she asked Mr Dillon if she could be considered for inclusion in the night crew. She was told that there were no vacancies. The matter was raised by way of a casual enquiry during a meal break. Ms Mahady told the Court that she did not consider this enquiry as an application for inclusion on the night-crew but that she might have considered accepting a position had it been offered.

Since the events giving rise to these complaints an agreement has been concluded between the Union and the respondent regulating the allocation of overtime at Christmas.

Conclusions of the Court.

The extraordinary delay in prosecuting this case has resulted in many of the central actors in the impugned events being no longer available to give evidence. All of the managers involved in establishing the night –crew are now unavailable as witnesses as are eight of the nine claimants. This has caused obvious difficulties for the Court in establishing the factual matrix in which these claims must be assessed. Nonetheless the Court must seek to reach conclusions based on such evidence as is available.

There is no evidence before the Court from which it could be held that any of the complainants sought and were refused access to the night-crew, nor is there evidence that any of them wished to undertake this work. Mr Murphy’s evidence was to the effect that he raised the question of participation by check-out staff in this work by way of a general issue and not on behalf of any individual. Ms Mahady’s evidence was that she had enquired casually about whether or not she could join the crew, but told the Court that she did not know whether or not she would have accepted this work had it been offered.

The evidence before the Court indicated that when it was decided to carry out merchandising after trading hours the group of employees who normally carried out this work during the day were allocated to do so at night. At that time the merchandiser group was made up exclusively of men and the check-out staff was made up exclusively of women. However it appears that no objection was taken to this arrangement either by the Union or by the complainants until the issue of overtime arose. Had the management acceded to Mr Murphy’s request to accommodate some of the check-out staff in this work it would have involved taking on more merchandisers than were required or redeploying some of the merchandisers out of their normal job while it was being performed on overtime. The Court has very considerable doubt as to whether the Respondent could have been required to adopt either course of action by any provision of the Act.

It appears to the Court that an underlying cause of the difficulty which arose in 1995 was the gender segregated nature of the two grades involved and the absence of any consistent or formal method of allocating overtime. If that was the situation it could have given rise to a cause of complaint under other provisions of the Act but in the circumstances of this case it could not in itself avail the individual complainants in claiming the redress which they now seek. These are, however, matters which have since been addressed by agreement between the respondent and MANDATE. Hence, it would appear to the Court, the issues raised by this aspect of the case are now moot.

Finally, the response of the named manager to the representations made by Mr Murphy could amount to prima facie evidence of a discriminatory disposition against women employees as a class. In the absence of a sustainable claim by an individual (which the Court has found not to be the position in this case) a complaint in that respect could only be presented pursuant to section 20 of the Act by the then Employment Equality Agency acting on powers deputed by the relevant Minister. Neither the Union nor the individual complainant’s could havelocus standito maintain such a complaint.

For all of the forgoing reasons the Court does not accept that the complainant’s have established a right to redress under the Act. The Court concurs with the conclusions and decision of the Equality Office and the appeal herein is disallowed.





Signed on behalf of the Labour Court



Kevin Duffy
15th August, 2005______________________
AH/JBChairman



NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.