THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC – E2009-043
PARTIES
Mr. Noel O’Connor
(Represented by Mr. Frank Sharpe, Citizens Information)
-V-
Bronzone Limited
File Reference: EE/2006/328
Date of Issue: 10 June 2009
1. Dispute
This dispute involves a claim by Mr. Noel O’Connor, that he was discriminated against by Bronzone Ltd. on grounds of age, in terms of section 6(2)(f) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts, in relation to discriminatory dismissal.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 and 2004 to the Equality Tribunal on 11th September 2006 alleging that the respondent had discriminated against him on grounds of age when he was made redundant from his job as a banksman on 7th April, 2006. The complainant further contends that his job as banksman was filled a short time later by a newly employed person (Mr. A) and that another new employee (Mr. B) started as Banksman when he (the complainant) was let go. The respondent rejects the complainant’s assertions and maintains that the complainant was made redundant due to a shortage of work as the site he was employed on was closing down.
2.2 In accordance with her powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 16th of January, 2009 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. A hearing on the complaint was held on the 8th of May, 2009.
3. Summary of complainant’s case
3.1 The complainant was employed by the respondent as a Banksman from 28th October 2003. The complainant states that he was made redundant on 7th April, 2006 (2yrs + 23.5 weeks) and contends it was due to his age. The complainant asserts that this was a forced redundancy situation and that it was not in his interest to take the redundancy at age 62 less than 3 years from retirement.
3.2 The Complainant states that he was previously offered redundancy in December 2005 which he declined.
3.3 The Complainant adds that on 7th April 2006 he was called to a meeting with Mr. O Reilly (Crane Co-ordinator) where he was told he was being let go and was presented with redundancy documents and a cheque. The Complainant states that the reason given by Mr. O Reilly for his being let go was “between you and me it’s your age.”
3.4 The Complainant alleges that his job as banksman was filled a short time later by Mr. A who was newly employed and was based at Windmill Lane where the Complainant had been working since January 2006 (4 months prior to his redundancy). The complainant adds that prior to January 2006 he had been working at the Red Cow Lane site. The Complainant also alleges that a new employee (Mr. B) started when he was let go and was a Banksman at the Agustin Street site.
4. Summary of respondent’s case
4.1 This respondent states that the complainant was employed by them as a Banksman from 28th October 2003 to 24th March 2006 when he was made redundant due to a shortage of work.
4.2 The respondent states that it had previously offered voluntary redundancies following submissions from SIPTU that some of their older members would welcome such redundancies. This offer was made to employees over 60 (9 in total) in December 2005, including the complainant who rejected the offer.
4.3 Mr. O’Reilly (crane co-ordinator) rejects the complainant’s version of events of 7th April and denies that he said selection was due to age. Mr. O’Reilly contends that complainant was given redundancy on 24 March 2006 (evidenced by diary entry). The Respondent accepts that this was not a voluntary redundancy.
4.3.1 The respondent states that the complainant’s redundancy situation arose when there was no more work for him on the site on which he was employed. Therespondent adds that the complainant was working at the Red Cow lane site where the crane came down on 20th March 2006 and the site was to be closed down and that 3 other employees were also let go on same date (details supplied).
4.3.2 The respondent states that prior to this the complainant was offered alternative work as a yard/stores/relief banksman with no loss of pay or skills and which would have assured his employment with the company.
4.3.3 The Respondent adds that it operates a site by site redundancy policy. The criterion for selection in this case was in the first instance skill “banksman” and seniority on a site by site basis.
4.4 The Respondent rejects the allegation that complainant was replaced by younger persons as Mr. A was previously employed from 24 May, 2004 to 15 July 2005 and rejoined on 20 November 2006 and Mr. B was employed from 8 January 2007 to 26 November 2007. This was post claim. (Evidenced byemployee printouts).
5. Conclusions of the Equality Officer
5.1 The issue for decision by me is whether Bronzone Ltd discriminated against the complainant on grounds of age, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to sections 8 of those Acts, when he was made redundant from his job as a banksman on 7th April, 2006.
In reaching my decision, I have taken into consideration all of the submissions, oral and written, made to me by the parties.
5.2 Section 85A of the Employment Equality Acts, 1998-2008 provides as follows: "(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary”.
This requires the complainant to establish, in the first instance, facts from which it can be inferred that he was treated less favourably on the basis of his age. It is only when he has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.
5.3 On the day of the hearing, it emerged that the complainant was in fact notified of the redundancy on 24th of March but was then given 2 weeks pay in lieu of notice thus the effective date of the redundancy was 7th of April, 2006.
It also emerged that the complainant had been employed at the Red Cow Lane site until 16th March 2006; this was evidenced by clock cards from the site produced by the respondent. This contradicts the complainants earlier submission which indicated that he had not worked at Red Cow lane site since before January 2006 and had instead worked at the Windmill lane site from start January to end March 06. At the hearing, the complainant conceded that he had been working at the Red Cow Lane site until March 2006 and had then worked about 2 weeks on the Windmill Lane site. The respondents indicated that the crane came down on the Red Cow Lane site on 20th March 06 after which there was no more work for the complainant on that site.
The respondent stated at the hearing that no one else had been taken on as banksman for the Red Cow lane site after the complainant’s redundancy. I am satisfied that this was in fact the case.
5.4 The respondent states that it had offered the complainant alternative work, for equal pay, as a yardsman prior to the redundancy. It further states that this offer had been made to the complainant on 2 occasions by 2 separate individuals in an effort to persuade him to accept the offer. The respondent adds that it did not advise the complainant that this offer was a means to avoid redundancy but that there was a general feeling among employees that redundancies were forthcoming. The complainant at the hearing stated that he refused this offer as it would have entailed cleaning pins for machines with diesel and diesel fumes had caused him respiratory problems in the past and which had led to his having to take time off from work. The complainant did submit a doctor’s cert to the respondent for his sick absence period however the respondent was not made aware of the link between such health problems and the Diesel fumes and indicated that had they known of this link, it would have exempted the complainant from working with Diesel. The respondent further indicated that the job of yardsman also encompassed plenty of other work such as loading and unloading trucks returning to the yard and working as a relief banksman on other sites to fill in from time to time.
5.5 The complainant queried SIPTU’s involvement in the December ’05 offer of voluntary redundancies and on the day of the hearing provided evidence in the form of a letter from SIPTU that it had not been involved in this offer. The respondent has however since provided evidence that some employees had requested that SIPTU talk to the company about early retirement.
5.6 The respondent clarified that its policy on redundancy is selection based on site first followed by trade and then seniority/length of service. The respondent further indicated that the complainant’s selection for redundancy was based on this policy. The respondent did however concede that this policy had in the past been challenged.
First, I must assess whether the complainant has succeeded in establishing a prima facie case that he was selected for redundancy because of his age. It is agreed between the parties that the complainant, who was 62, was made redundant and that the redundancy was not voluntary. I must now consider whether the treatment of the complainant was less favourable than that which would be afforded to another person in similar circumstances who was of a different age. The respondent has stated that the crane came down on the Red Cow Lane site on 20th March and that 3 other employees (details supplied) aged under 60 were also let go on the same date as the complainant. In addition, the respondent has stated that in accordance with its redundancy policy no banksman with less service than the complainant was kept on at that siteand that no other banksman was employed on the site after that date. I thus conclude that the complainant has not established a prima facie case of discrimination.
I am satisfied based on the information that the complainant has not established a prima facie case. I am also satisfied based on the evidence provided at the hearing that the complainant was dismissed in accordance with the respondent’s redundancy policy.
6. Decision of the Equality Officer
6.1 I have concluded my investigation of this complaint and hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts 1998-2008. I find that the complainant did not establish a prima facie case of discrimination in terms of Section 6(2) and contrary to the provisions of Section 8 of the Employment Equality Acts, 1998 and 2004.
___________________
Orla Jones
Equality Officer
10 June 2009