Wynne
AND
Irish Crane & Lifting Ltd
1. DISPUTE
1.1 This dispute concerns a claim by Mr Luke Wynne that he was discriminated against by Irish Crane & Lifting Ltd on the ground of age, contrary to the provisions of the Employment Equality Acts 1998 to 2007, when he was unfairly selected for dismissal.
1.2 The complainant referred a claim to the Director of the Equality Tribunal on 4 August 2004 under the Employment Equality Acts 1998 to 2007. Following an unsuccessful mediation process, and in accordance with her powers under section 75 of the Acts, the Director then delegated the case on 2 February 2006 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 Acts. Submissions were sought from the parties, and a hearing was held on 27 April 2007. There was no appearance by or on behalf of the respondent on the day of the hearing.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant, who was born on 8 March 1955, says he started work with the respondent company (which had depots in both Kerry and Dublin) on 5 August 2003. He had responded to a series of advertisements for positions as crane erectors/riggers in the Dublin depot run by the respondent in national newspapers in March 2003. The complainant had worked as a telecommunications rigger, although his experience was indoors. The position of crane erector with the respondent involved erection of cranes outdoors, with consequent effect of windspeeds etc, and the complainant says he sought and was promised training from management as he had no experience of this type of work.
2.2 The complainant says that, notwithstanding the named positions in the advertisement, it was made quite clear to him at both interviews he attended that the nature of the work could be "feast or famine" and that he could expect to spend much of his time making deliveries, collections, painting, making repairs (under supervision), offloading and loading materials. He says that at the first interview it was indicated to him that the rate for the job was approximately €12.00 per hour. He says however that he negotiated his pay before being ultimately engaged, and obtained agreement for a rate of €15.50 per hour.
2.3 The complainant says that the training promised by the Dublin director never actually materialised. The director was ill for a period of time starting in December 2003, the relevant training had become longer and more expensive and the company was no longer keen to incur the costs. The complainant says in February 2004, the Kerry director issued a memo querying the length of time a particular job had taken, and issuing instructions regarding booked hours, break times and time sheets. In response to this memo, the erection crew (of which the complainant was a member) explained there had been problems with the weather, with safety procedures, with equipment, with training and other matters.
2.4 The complainant says that the response of management to these issues was to call one member of the erection crew (Mr F) to Kerry to discuss matters on 1 March. He says this discussion extended over a couple of days, and Mr F reported back on 4 March that no changes were to take place for a period of one month to allow detailed surveying of sites. He says the response to the request for training was that not all workers would be trained as fork lift operators or crane drivers, but certainly one or two would be. In the meantime, only the member of the crew who was qualified to drive the crane was to do so. The complainant says there was no reference to redundancies. He says that he was later asked by the depot manager to move a crane and pointed out that he was not qualified. The complainant says that he was called in by the manager the next morning and handed a letter of dismissal.
2.5 The complainant says that the letter indicated that staff were being let go because of a downturn, and that their work would be carried out in future by sub-contractors. The complainant says that Mr F was retained because he was an electrician, that another staff member was let go who was known to be about to hand in his notice anyway, and that the final choice in relation to lay off was between himself and Mr M, who was aged in his mid-twenties and had been employed after the complainant.
2.6 The complainant contends that, if the respondent was facing a redundancy situation, it should have operated on the standard basis of "last in, first out". He says that he and Mr M were both engaged on the same work, neither of them being qualified crane erectors. The complainant says, however, that he had longer experience in the general sector than Mr M. Since he had never received written or verbal warnings on any aspect of his work, the complainant contends that he was selected for lay off because of discrimination on the ground of age.
2.7 The complainant notes that the respondent claims that his position was on a week-by-week or contract basis, but points out that the advertisement for the position did not indicate this. He says, further, that he had already been in full-time employment and would not have applied for the position if it had been suggested at any stage that it was not full time.
2.8 The complainant says that the only other possible explanation for his unfair selection for lay-off was that he had put himself forward for the position of Safety Representative because of concerns regarding certain health and safety issues. He suggests that his willingness to take on this position could have been seen by management as an attempt to organise the workforce and may have been deemed as union activity. The complainant suggests that such a perception may have sealed his fate, the company having been union-free for 21 years. The complainant also contends that his age and experience meant he may have been seen as less malleable than Mr M, and that therefore he was laid off. He says that from his knowledge the Dublin depot never actually closed down, and he does not believe a redundancy situation existed.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 As previously stated, the respondent did not attend the hearing of the complaint. This summary is therefore based solely on its written submissions.
3.2 The respondent says it has been in business since 1981, and its main business is the sale, service and hire of tower cranes and lifting gear to the construction and engineering sectors. It has its main office and workshop in Killarney and a storage depot and repair shop in Dublin. There are two directors of the company, each of whom takes responsibility for one of the depots.
3.3 The respondent says the Dublin director became ill before Christmas 2003, and was under doctor's care for some months. It says that the manager of the Dublin depot tendered his resignation with effect from 31 December 2003 and took up employment with a competitor, taking some established customers with him. The respondent says that, as a direct result of these two events as well as market forces pertaining at the time, business in the Dublin depot experienced a severe downturn. It says the section of the business worst affected was the erection and dismantling of its own cranes and building contractors' cranes.
3.4 The respondent says its workforce comprises various categories of qualifications with a permanent staff maintained at the Killarney depot. This staff includes qualified fitters, crane fitters, riggers/crane erectors, electricians and general operatives. The respondent says that during peak construction periods it has opened a crane erection/dismantling section at the Dublin depot on a temporary basis. It says that to staff this section it takes on crane erectors/riggers on a trial period and then on a week-to-week or contract basis thereafter. The respondent says these jobs are not permanent as the work is only available during busy periods and these employees are only used to supplement the experienced crane erectors based at the Killarney depot.
3.5 The respondent says the complainant was employed as a rigger/crane erector in August 2003 during a peak period in the construction business. It says his employment was based on an initial trial period and that he was never offered permanent employment. The respondent says the serious downturn in early 2004, already referred to, meant it had no option but to adjust the level of staff to meet the requirements of the period. The respondent says it closed the crane erection section at the Dublin depot, terminating the employment of the crane erectors/riggers. It says that it retained the employment of its service electrician (Mr F) to maintain a backup service for the cranes, and retained the services of its general operative (Mr M) to service the lifting gear end of the business. The respondent says this would not be considered suitable work for a crane erector/rigger. The respondent points out that the complainant was paid at the rate of €15.50 per hour, the rate applicable to crane erectors/riggers, whereas Mr M was paid €12.00 per hour, the general operative rate.
3.6 The respondent says that the complainant was employed for a seven-month period expiring on 12 March 2004. It denies in the strongest possible manner that it discriminated against him for any reason whatever, and especially on the ground of age as it had engaged him when he had been only seven months younger. The respondent says management in the Dublin depot had had no problems with the complainant or his work. It says the only reason his employment was terminated was that there was no further suitable work to offer him at the time.
3.7 The respondent says it has been in the business for 23 years and has experienced a number of recessions during that time. It says it has learned from experience that staff adjustments are regrettably unavoidable in a seasonal business with peaks and valleys, and it only carries them out as a last resort.
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 complainant, as well as the respondent's written submissions.
4.2 The complainant alleged that the respondent discriminated against him on the ground of age contrary to the provisions of the Employment Equality Acts 1998 to 2007. Section 6 of the Acts 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, including age. Section 8 provides that
(1)In relation to-
...(b) conditions of employment...
an employer shall not discriminate against an employee or prospective employee...
4.3 The Labour Court, in a recent determination of a claim on the gender ground, said "In order to establish a prima facie case of discrimination, the evidential burden is on the complainant to establish the primary facts on which they rely and to satisfy the Court that these facts are of sufficient significance to raise an inference of discrimination, thus shifting the burden to the respondent..." (Health Services Executive and Michael McGoldrick, Determination No EDA076).
4.4 The Labour Court has considered the particular difficulties of evidence and proof of discrimination in several decisions. Recognising that discrimination may be unintentional or subconscious, the Court said in Portroe Stevedores and Nevin, Murphy, Flood (Determination No 051) that "...a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the Court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution...it must be borne in mind that the proscribed reason need not be the sole or even the principal reason for the conduct impugned; it is enough that it is a contributing cause in the sense of being a "significant influence"..."
4.5 In this case, the failure of the respondent to attend the hearing means that I was unable to clarify several matters. It was claimed by the respondent that the complainant had been engaged for a trial period, apparently lasting three months according to some documents made available to me, and was thereafter employed on a week-to-week or contract basis. This was denied by the complainant, and no such stipulation appears in the advertisement to which he replied. The complainant was never provided with a contract of employment, which might have clarified the situation, but it does not seem to make sense that an employee would have more security of tenure during a trial period than after successfully completing it. In the absence of any evidence to the contrary, I am satisfied that the complainant's employment was intended to be full time.
4.6 It should be noted that, even if I had found the complainant to be engaged on a week-to-week or contract basis, this would not in itself invalidate his complaint of discrimination. Even if employment at the Dublin depot was of such a nature, and even if a downturn in business led to the necessity for lay offs, the respondent is still obliged not to discriminate on any of the grounds specified in the Acts when selecting staff for lay off.
4.7 From documents submitted to me by the complainant, it is clear that one particular erection crew comprised Mr M, the complainant and Mr F. As stated by both parties, Mr F was a qualified electrician. I note that the respondent argued that the complainant was employed as a crane erector and that Mr M was employed as a general operative, and that Mr M was retained for that reason. However, I found the complainant's evidence regarding his experience and his salary negotiations to be persuasive. I am satisfied that the complainant has certain experience in telecommunications rigging, but he is not a qualified crane erector. I am also satisfied that he was originally offered the rate of €12.00 per hour, but successfully negotiated an increase to €15.50 per hour. I further find that both the complainant and Mr M were required to carry out general operative duties such as painting and loading when not engaged in the assembly/disassembly of cranes, and that they were employed on the same basis. In the circumstances, I find that the complainant has established a prima facie case of discrimination on the age ground which the respondent must rebut.
4.8 In Portroe Stevedores, cited above, the Labour Court said that it had "previously found it necessary to emphasise that processes used in making selection for employment must be sufficiently transparent and examinable so as to satisfy the Court that the result was not tainted by discrimination. In [previous determinations] the Court found that the failure of the employer to maintain interview notes and assessment records was fatal to their defence against allegations of discrimination." I am satisfied that the same considerations apply to this claim, and the respondent must demonstrate that the processes used in making selection for lay off were transparent and examinable.
4.9 The Tribunal's Guide to Procedures in Employment Equality Cases, copied to all parties to a complaint, makes it clear that failure of either party to attend a hearing of a complaint may result in the case being heard and determined in their absence. The Guide says that, if the respondent does not appear, this may mean that the case is decided against them. Written material sent to the Equality Tribunal is not a sufficient basis to defend a case, unless the defence is agreed. In this case, I find that the respondent's failure to appear at the hearing has left it unable to demonstrate to my satisfaction that its processes were transparent and untainted by discrimination. I am satisfied that the respondent has failed to rebut the complainant's prima facie case of discrimination on the age ground.
5. DECISION
5.1 Based on the foregoing, I find that the respondent discriminated against the complainant on the ground of age, contrary to the provisions of the Employment Equality Acts 1998 to 2007.
5.2 I hereby order that the respondent pay the complainant the sum of €7,000 in compensation for the effects of the discrimination.
_____________________
Anne-Marie Lynch
Equality Officer
24 July 2007