DEC-E2009-023 - Full Case Report

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2008

Decision DEC – E2009-023

PARTIES

Mr. Ciaran Duignan

(represented by Mr Edward McGarr, Solicitor)

and

Dun Laoghaire Rathdown County Council

File Reference: EE/2006/347

Date of Issue:  27^th of March 2009

Employment Equality Acts 1998 – 2008 – S. 6, 8 and 74 – age – time limits – discriminatory treatment – discriminatory dismissal - victimisation

1.  Claim

 The case concerns a claim by Mr Ciaran Duignan that Dun Laoghaire Rathdown County Council discriminated against him on the ground of age contrary to Section(s) 6(2)(f)  of the Employment Equality Acts 1998 to 2008, in terms of discriminatorily dismissing him on the day of his 65^th birthday, and in terms of access to employment, and victimisation thereafter.

The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 21 September 2006.  On 16 July 2008, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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.  On this date my investigation commenced.  As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 17 February 2009.  Further submissions were received from the complainant on 20 March 2007 and 17 January 2008.  The complainant’s submission of 17 January 2008 contained additional complaints. Submissions were received from the respondent on 3 April 2007, 9 April 2008 and 16 January 2009.  Additional evidence was requested from the respondent at the hearing and received on 10 March 2009.

1. Summary of the Complainant’s Written Submission

The complainant was employed by the respondent as an engineer.  He submits that the fact that his existent contract was ended on 5 June 2005, the day before his 65^th birthday, constitutes discriminatory dismissal on the ground of age.

 The complainant subsequently applied for another engineering position with the respondent and was placed 8^th on a panel of successful candidates.  He submits that this placement represents discrimination on the ground of age in regard to access to employment.

The complainant submitted that he was subsequently called from the panel and offered a position as Executive Engineer with the respondent.  In respect of this contract of employment, the complainant was subject to a 12-month probation period, regardless of his previous lengthy employment history with the respondent.  The complainant submits that he is the only employee of the respondent subjected to this requirement and contends that it constitutes victimisation subsequent to his complaint to the Tribunal.

The complainant further complains that he was asked to pay for the parking of his car at the respondent’s premises, and that this constitutes less favourable treatment in his conditions of employment compared to younger colleagues who, he alleges, have free car-parking.

1. Summary of the Respondent’s Written Submission

The respondent submits that since the complainant original employment ended on his retirement date of 5 June 2005, and the complainant filed his complaint with the Tribunal on 21 September 2006, his complaint of discriminatory dismissal is out of time.

 With regard to the complainant’s claim of discrimination in access to employment, the respondent submits that since the complainant was hired for the position he applied for, he has no prima facie case of being discriminated against in access to employment.

With regard to the complainant’s probation period in his new contract as Executive Engineer, the respondent submits that this is a condition of employment for all newly hired employees of the council, who are not at present permanent employees of another local authority.  In the complainant’s case, he was a temporary employee of South Dublin County Council at the material time, and hence the condition that he serve another 12 month probationary period, notwithstanding his extensive previous service with the respondent, applied to him. 

In terms of the complainant’s complaint that he was denied free car parking, the respondent submits that as an Executive Engineer, the complainant would have worked on a number of road building schemes within the respondent’s area, and the expectation was that Executive Engineers would carry out their work on the site and also park there. 

1. Conclusions of the Equality Officer

The issues for decision in this case are

a)     whether the complainant’s complaint of discriminatory dismissal on the ground of age is within time pursuant to S. 77(5) of the Acts, and if so, whether he was discriminatorily dismissed by reason of his age;

b)     whether the complainant was discriminated against on the ground of age within the meaning of the Acts in terms of access to employment; and

c)     whether the complainant was victimised after making a complaint to the Tribunal pursuant to S. 74 of the Acts.

With regard to the complainant’s case of discriminatory dismissal on the ground of age, I find that he left the employment with the respondent on which the claim is based, on 5 June 2005.  The complainant then filed a complaint with the Tribunal on 21 September 2006, more than 12 months after the termination of the employment.  The complainant’s representative submitted at the hearing of the complaint that I should interpret his client’s discrimination as ongoing until his contract with the respondent expired on 31 December 2005.  The respondent submitted that the complainant’s employment at the material time was ended in order to effect his retirement.

I am satisfied from the evidence before me that the alleged act of discrimination was the respondent’s decision to effect the complainant’s retirement, and that it ended when it was fully implemented, i.e. when the complainant ceased his relevant employment with the respondent on 5 June 2005.   I therefore find that his complaint is out of time pursuant to S. 77(5) of the Acts, and that I have no jurisdiction to investigate his claim.

In evaluating the evidence before me on the other matters complained of, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts.  The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. 

At the hearing of the complaint, it was clarified that the complainant’s employment history with the respondent, following his initial retirement in June 2005, was as follows: 

The complainant applied for a temporary engineering position with the respondent in October 2006.  He was placed 8^th on the panel of successful candidates, and took up duty on 1 December 2006.  In April 2007, he resigned from the respondent’s employment and he took up another temporary engineering position with South Dublin County Council. In July 2007, he again applied for an engineering position with the respondent.  In this competition, he was placed 3^rd on the panel of successful candidates, and subsequently appointed to a permanent position as Executive Engineer with the respondent in September 2007. These facts were undisputed between the parties. It is in relation to this employment that the complainant’s complaint of his probation period, and access to car parking and canteen facilities arose.  

With regard to the complainant’s complaint of being discriminated against on the ground of his age in access to employment, it is the complainant’s case that the respondent placed him deliberately in 8^th position on the panel to prevent him as an older person from obtaining employment.  He did not seek to argue that he should have been placed higher on the panel.  The respondent denied this allegation.  It is the respondent’s case that there were a lot of strong candidates in the October 2006 competition, and that the complainant was perhaps not performing to the best of his abilities in interview on this occasion.  However, the respondent pointed to the fact that the complainant was appointed from the panel, and that it therefore cannot be said that his place on the panel prevented his access to employment with the respondent.  Furthermore, the respondent stressed that the complainant was placed 3^rd in a competition for an engineering position held in July 2007, and was offered permanent employment shortly after. It was therefore the respondent’s contention that the composition of the field of candidates, and the complainant’s individual performance in the respective interviews, determined his placements, and that his age had no bearing on these results. The complainant did not seek to dispute any of the respondent’s evidence. 

I prefer the evidence of the respondent in this matter and am satisfied that the complainant’s age did not influence his place in the order of merit in the disputed job competition. I therefore find that he was not discriminated against by the respondent with regard to access to employment.

With regard to the complainant’s claims in respect of his period of probation, and the lack of access to car parking and canteen facilities that followed the complainant’s appointment to a permanent engineering position in July 2007, the complainant’s representative submitted at the hearing that these events constituted victimisation of his client pursuant to S. 74 of the Acts.  The complainant stated that the fact that he was on probation when he was re-hired by the respondent for a permanent position as Executive Engineer in July 2007 constitutes adverse treatment.  He felt particularly aggrieved that all of his colleagues should know of this fact.  In further oral evidence from the complainant and the representatives of the respondent, it became clear that the respondent had only advised his direct supervisor of the fact that he was on probation, and that it was the complainant who had advised his colleagues of this fact.

When questioned about the lapse of time between the filing of his complaint to the Tribunal in September 2006 and the start of the alleged adverse treatment of requesting a probation period of him in respect of renewed employment with the respondent, the complainant’s representative submitted that this should be viewed as immaterial in light of the fact that the complainant was requested to serve probation regardless of the fact that he had worked for the respondent as an engineer for many decades.

When asked about other adverse effects apart from a personal feeling of humiliation, the complainant’s representative submitted that his client could have been subjected to a potentially higher level of scrutiny in his work than a permanent employee.  The representative did not seek to aver that this was actually the case.

In response, the respondent re-stated the explanation given at paragraph 3.3above, and further stated that in doing so, it was following regulations issued by the Department of the Environment, Heritage and Local Government.  The respondent submitted a copy of these regulations in evidence to the Tribunal.

The complainant further complained that he had no access to car parking facilities when he took up duty in his role as Executive Engineer in September 2007, and no access to canteen facilities.   The respondent was able to demonstrate from emails that an application for car parking on behalf of the complainant was made in November 2007.  Some technical difficulties arose with regard to the swipe card the complainant was issued with, but these were resolved in January 2008.   The respondent further stated that all staff swipe card were enabled to permit access to canteen facilities, and that the porter would give access to staff without swipe card.  The complainant did not contest this evidence.

With regard to the complainant’s complaint of victimisation, I find that there is insufficient evidence to establish a prima facie case of victimisation within the meaning of S. 74(2) of the Acts, and that his complaint therefore fails.

1. Decision

Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that

(i) the respondent did not discriminate against the complainant on the ground of his age, pursuant to S. (6)(2)(f) of the Acts and

(ii) the respondent did not victimise the complainant pursuant to S. 74(2) of the Acts.

_________________________

Stephen Bonnlander

Equality Officer

27 March 2009