FULL RECOMMENDATION
SECTION 77, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : JIM AHERNE TRADING AS AHERNE DENTAL (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - CHRISTINE LEFORT (REPRESENTED BY SHAUN ELDER SOLICITOR) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Application for redress under Section 77(2) of The Employment Equality Act, 1998.
BACKGROUND:
2. A Labour Court Hearing took place on the 11th March 2005. The following is the Courts Determination:
DETERMINATION:
Background:
The complainant is a dental technician of American nationality.
She was employed by Jim Aherne T/A Aherne Dental (the respondent) in mid June 2000. In June 2003, the respondent terminated her employment due to redundancy. The complainant contends that the dismissal was discriminatory on the grounds that her employer refused, failed or neglected to obtain for her a work permit or a renewal thereof and thus discriminated against her pursuant to section 6 of the Employment Equality Act, 1998 and in particular section 6 (h). She brought a complaint pursuant to Section 77 of the Employment Equality Act, 1998 claiming discrimination under the Act.
The Submissions:
The submissions made by the parties can be briefly summarised as follows: -
The Complainant:
The complainant commenced employment with Aherne Dental in June 2000, her duties included manufacturing trays, bite blocks, articulating cases, setting up teeth and waxing, pouring impressions, finishing down dentures, de-flaxing cases and packing cases for mailing. In June 2002 she was diagnosed with repetitive strain injury and was out of work for a few weeks. In September 2002 she underwent surgery for the pain in her arm and was in plaster for a period of six weeks afterwards, following which she had physiotherapy treatment. Ms. Lefort’s work permit expired on 23rd April 2003. On 10th June 2003 she reported back to work. Her medical consultant had advised her not to return to work if she still had pain however; as she was concerned about her job she decided to ignore this advice.
The respondent informed her that he needed to talk to Mr. L (the part-time employee who worked full time while standing in for her during her absence) to ascertain his reaction about returning to his part time duties. The complainant informed the respondent that she was willing to return on a part-time basis. She contends that during the course of this discussion that the respondent asked if it was possible to get a part-time work permit and that he complained about having spent the money on a work permit for the previous year when she was not at work. The complainant responded that it was her understanding that it was not possible to get a part-time work permit. Then the respondent referred to a Bulgarian gentleman who had called asking about job opportunities in the company.
On Friday 13th June 2003 when she returned to the Laboratory as organised, the respondent told her that he was not renewing her work permit. She then collected her tools and left the premises.
Having received some advice she returned on 17th June 2003 to ascertain the reason for her dismissal and was informed by the respondent that he had checked with the Departments of Social Welfare and of Enterprise Trade and Employment who had informed him that the complainant was not entitled to anything.
Based on the information he received he said: -
- “ you were on a work permit, that is a contract for one year if I chose not to renew it you don’t have any rights.Once it expires you aren’t entitled to anything”.
The complainant informed him that the advice she received was different and that he reacted angrily to being told this.
On Thursday 19th June 2003 the complainant received a letter from the respondent to the effect that he had received further advice on the matter and he was now looking into the matter of redundancy. On 25th June she received a letter with her P45 and outlying her redundancy payment.
The Solicitor for the complainant submitted the respondent had failed to produce any evidence to show that a redundancy situation existed in Aherne Dental in June 2003. He also stated that the complainant had never accepted responsibility for renewing the work permit and she denied not being concerned whether it was renewed in April 2003.
The respondent:
The respondent rejected the claim that the complainant was discriminated against on the grounds of her nationality and stated that she was dismissed by reason of redundancy due to a downturn in the work of the respondent’s business.
The Respondent stated that in response to an approach made to him he decided to take on the complainant in the business. When the complainant was interviewed for the job she explained that she needed a work permit. The respondent told the Court that he had never applied for a work permit before and was not aware of the process involved. The complainant offered to take care of it and a work permit was issued for the period June 2000 to April 2001. It was renewed in April 2001 and again in April 2002. The respondent submitted to the Court that he understood that the complainant had accepted responsibility for looking after the renewal of the work permit.
In January 2001, when the complainant sought leave to return to the States on compassionate grounds, the respondent facilitated her. She returned in February 2001. In March 2001 the complainant was out sick due to a lung complaint. She attended the Hospital every Friday from March to September 2001 and was paid full pay.
The respondent told the Court that the complainant informed him in April 2002 that she was suffering from Repetitive Strain Injury. In May 2002 she needed hospital treatment. He facilitated her with time off with no loss of pay. During this time he did not receive medical certificates from her. In June 2002 she had further treatment on her arm and from September she was out on continuous absence due to treatment on the arm.
On 7th January 2003 the respondent stated that he wrote to the complainant seeking medical certificates. Weekly medical certificates were submitted thereafter. At no stage did the respondent guarantee that there would be plenty of work when she returned.
In early April 2003 when the complainant was delivering a medical certificate the respondent reminded her that her work permit was due for renewal and suggested that she should get the paperwork ready.
She informed him that she needed to speak to her doctor first and to leave the work permit for the moment. When the renewal date passed the respondent told the Court that he became very concerned, as there was a lot of publicity at the time about the obligation on the employer in respect of work permits.
He stated that the complainant was not concerned about it and that she was of the opinion that it would not present a problem.
The following week when the complainant called in to hand in her medical certificates the respondent informed her that there was no point as the work permit had expired.
The respondent had no contact with the complainant until 10th June 2003 when she stated that she was now fit to resume work. He asked her to return in three days time, as he needed to make a few phone call to ascertain the amount of work coming into the laboratory and he needed to speak to Mr. L. The respondent told the Court that he had lost a lot of business due to staff shortages and that his clients had transferred their business to other laboratories. To illustrate that he did not have sufficient work at the time, the respondent explained that an employee from Bucharest had enquired about work for her father but he had no work available for him.
On 13th June 2003, the respondent informed the complainant that he would not be able to renew her work permit, as he did not have enough work for a full time job due to the down turn in business. When she enquired about part-time employment he raised the question whether it was possible to get a work permit for part-time hours, she replied, “I think not”. The complainant offered to pay for the work permit but he informed her that that would be against the law. As he was not in a position to offer her full time employment he indicated that her employment was consequently terminated.
With reference to the events of 17th June 2003, the respondent denied that he said that she had no rights but that he was making efforts to ascertain her entitlements from his accountant who was on holidays at the time. On 18th June 2003 he wrote to her to confirm her redundancy entitlements, which were paid directly to her when she called into the office on 25th June 2003.
The respondent indicated to the Court that since the complainant’s departure no new employees were recruited as a replacement for her.
The respondent denied that the complainant’s nationality was a factor, which influenced the decision to terminate her employment.
Findings of the Court.
It is now the accepted practice of this Court that in all cases involving discrimination the probative burden will shift to the respondent in circumstances where the complainant establishes a prima facie case of discrimination.
The test normally used in determining when and in what circumstances the burden of proof shifts to the respondent is that formulated in the case ofMitchell v Southern Health Board [2001] ELR 201. This test provided that the complainant must first prove the primary facts upon which they rely in asserting discrimination. If those facts are proved and they are regarded by the Court as of sufficient significance to raise an inference of discrimination, the burden of proving the absence of discrimination shifts to the respondent.
This test is based on the wording of the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001.
These regulations provide that the probative burden shifts where the complainantestablishes factsfrom which discrimination may be presumed. The wording used in the regulations, which is derived from Directive 97/80 EC (The Burden of Proof Directive), is now replicated in Article 8 of Council Directive 2000/43 on Equal Treatment between Persons Irrespective of Racial or Ethnic Origin.
In order to succeed the complainant must establish facts from which the Court can deduce, as a matter of probability, that the difference in treatment of her in comparison to others, is attributable to her nationality.
The material facts of this case are not seriously in dispute. It is accepted by the respondent that the complainant was employed under a contract of employment, which required a work permit. It is further accepted that the work permit was not renewed in April 2003 when it fell due. The other employees of the business who were retained were of a different nationality to the complainant. The facts presented to the Court by the complainant relating to the alleged discrimination comprised of the following:
-It was the employer’s responsibility to renew the work permit; the complainant never accepted this responsibility. He did not check out the possibility of obtaining a part-time work permit with the appropriate authorities.
-The respondent complained about the money spent on the work permit for the previous year when she was absent from work.
-On Friday 13th June 2003 the respondent stated that he was not going to renew her work permit and on 17th June 2003 he said that the complainant was not entitled to anything as she was on a work permit which was a contract for one year and that he could decide not to renew it as she did not have any rights.
-The respondent failed to produce evidence to show that a redundancy situation existed in June 2003.
From the Court’s questioning of the respondent, it is satisfied that the respondent mistakenly regarded the complainant’s contract as ‘non existent’, when her work permit expired on 24th April 2003 and she continued to be out on sick leave. However, he stated that he fully understood that on being deemed fit to return to work that he was obliged to take her back.
When questioned about selection for redundancy procedures and why Ms. Lefort was selected ahead of others in the Laboratory, the respondent explained that Ms. Lefort did not carry out repair work whereas Mr. L. and Ms. G, who had shorter service, carried out all functions, both manufacturing and repairs. He explained to the Court how he could not trust her to carry out repair work and he had had to watch over her in the past.
Ms. Lefort had arrived ‘out of the blue’ on 10th June 2003 and stated that she was now fit to resume work.
The reason for her return visit after a gap of three days was to ascertain whether there was sufficient work available for her to return to. The respondent had explained on 10th June that he needed to clarify the work situation as things had changed during her absence and a part time employee had filled in for her.
The complainant at this point offered to reduce her hours of work in order to return.
It is common case that on 13th June, the complainant was not reporting for work, but to be informed whether there was sufficient work available for her to return to. While Counsel for the complainant disputes the contention that there was not sufficient work for Ms. Lefort to return to, the Court finds that by virtue of the offer made to work part-time; Ms. Lefort was accepting that there was a reduced workload. She was prepared to accommodate and facilitate the situation. On 10th June, Ms. Lefort made no objections to the respondent when he indicated that he needed to speak to Mr. L about his working hours.
The Court is satisfied that the respondent was prepared to renew her work permit in April 2003 when it fell due. It is common case that he brought the matter up with her at the time and that she indicated that she needed to discuss the situation with her doctor first.
In such circumstances, the Court is satisfied that the non-renewal of the work permit on her return to work, was in the context of the reduced workload pertaining at the time. The Court accepts that in such circumstances it is reasonable that the work permit was not renewed and rather than being the basis of the decision, is actually a manifestation or a by-product of that decision.
The Court considers it significant that at no stage during the period April to the end of June 2003 did the complainant raise the issue of discrimination. Following her dismissal Ms. Lefort raised questions about the dismissal and stated that if there was no work then she was entitled to redundancy and if the respondent had no reason for not taking her back then it was grounds for unfair dismissal.
Conclusions
The Court is therefore of the view that the complainant failed to establish facts from which discrimmination might be inferred, that the decision to terminate the complainants employment arose because there was insufficient work for her, and as a result it was decided not to renew her work permit. The Court is of the view that the complainant has failed to establish a prima facie case of discrimmination.
Determination.
It is the determination of the Court that the respondent herein did not discriminate against the complainant on grounds of her nationality.
Accordingly the claim herein must fail.
Signed on behalf of the Labour Court
Caroline Jenkinson
26th May, 2005______________________
AH.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.