The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
E-mail: info@equalitytribunal.ie
Website: www.equalitytribunal.ie
Employment Equality Acts
1998-2008
EQUALITY OFFICER'S DECISION
NO: DEC-E2011-206
PARTIES
William Gardiner
(Represented by Richard Grogan and Associates)
- V -
Kevin Munelly Plant Ltd
File references: EE/2008/292
Date of issue: 3 November 2011
Keywords
Employment Equality Acts 1998-2011 - Discriminatory Treatment - Discriminatory Dismissal- Age - Condition of employment - Prima facie case
1. Dispute
1.1. This dispute concerns a claim by Mr. Gardiner (hereafter "the complainant") that he was subjected to discriminatory treatment and discriminatory dismissal on the grounds of his age and race by Kevin Munelly Plant Ltd (hereafter "the respondent") contrary to the Employment Equality Acts. He also referred an Equal Pay claim.
2. Background
2.1. The complainant referred his claim of discrimination to the Director of the Equality Tribunal on 7 May 2008 under the Employment Equality Acts. This claim was made on the age and race grounds. On 24 June 2011, in accordance with his powers under section 75 of the Acts, the Director then delegated these cases to me, Elaine Cassidy - 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 which date my investigation commenced. As required by Section 79(1) and as part of my investigation, an oral hearing was held 13 July 2011 and the complainant was in attendance. After the hearing the complainant's legal representative made an additional submission on 29 July. The respondent did not attend the hearing or make any written submission,
3. Case for the complainant
3.1 The complainant's legal representative withdrew the claim of equal pay and the ground of race at the start of the hearing. In his written submission the complainant stated that he had not been given a contract of employment, nor had he been given adequate Health and Safety training. However at the oral hearing he said that did not wish to pursue the H&S element of his claim any further.
3.2 The complainant, an Irish national, worked for the respondent as a machine driver. The complainant was aged 67 at the date of referral of this complaint and he had worked for the respondent since 1973. His job was to drive JCB's and trucks. During the 35+ years, he had also performed a wide variety of unpaid work for the respondent's principal at his home, including babysitting, farmhand work, housework, house-sitting and minding a garage, which was another business belonging to the respondent. The complainant also stated that he had not been paid the appropriate REA for the construction industry and that he was paid less than the national minimum wage rate.
3.3 When the complainant turned 66, he was given the State pension in accordance with his social welfare entitlements. He asked the respondent if he could continue working if he took the pension, because it was his preference to stay in work. The respondent told him he could continue working until he was 72. However in March 2008, the complainant was told by the respondent that business was bad and that there was no work for him. The respondent told him that the younger men had to pay their mortgages, so the claimant would have to be laid off temporarily. He was told that it was only temporary and they would take him back as soon as possible. He was advised to take some time off and rely on his pension. The respondent additionally told him that the insurer would not cover him to drive the machines and trucks anymore, because he was too old.
3.4 The complainant submitted that the time of his layoff, there was still work available for his specific type of driving. The work which had dried up, was the dumper driver work. At the beginning of that year, the complainant had been asked to train the dumper truck driver, Mr A, on his (the complainant's) machine. He assumed it was just giving some extra skill and training to his co-worker. However when the complainant was laid off, Mr A was given the complainant's machine because there was no more work for Mr A. The complainant submitted that it became clear to him that the respondent was just trying to get rid of him and it had been planned in advance. He submitted that Mr A was at least 20 years younger than him and had worked there for less than 3 years whereas the complainant had worked there for over 35 years. He submitted that he was the oldest employee of the respondent's.
3.5 The respondent told the complainant to tell people he was just taking some time off to rest and that he should not tell anyone that it was a layoff. The complainant submitted that he later found out that the respondent was trying to sell his business and didn't want others to know it was not doing well (hence the request to keep quiet about the layoffs). The complainant submitted that he had heard this from three other contractors who the respondent had approached to try to sell the business or part of it.
3.6 The complainant thought that the respondent had been paying into a construction industry pension scheme on his behalf and so some time later, he asked the respondent if he could formally retire and take a retirement lump sum instead of staying on the temporary lay-off. The respondent did not agree to this.
3.7 The respondent then contacted a legal representative who wrote a letter on his behalf to the respondent. As a result of the letter, the complainant was taken back for a few months, but then he was told that the business was sold to another party in December 2008 and that he was to be laid off again. He submitted that his younger co-workers worked in the new company, but the complainant was not taken back. The respondent told him to draw down his CWPS, but there was no money available and the complainant's legal representative submitted that it was her belief that the employer had not made the appropriate contributions required by the REA, which would have entitled him to a pension.
3.7 The legal representative for the complainant stated that the complainant had trusted his employer completely and believed he would be looked after with respect to his pension. Instead, he was put on a lay-off which turned into a dismissal, while younger men were still working for the respondent. The complainant's legal representative contended that although the complainant was told that the business (or part of it) was being sold, there was no evidence of a Transfer of Undertakings, and the company's status remains "normal" in the CRO.
4. Case for the respondent
4.1 The respondent did not attend the hearing or make any written submission.
5. Conclusions of the equality officer
5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....." Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows - "as between any 2 persons, ... that they are of different race, colour, nationality or national origins".
5.3 Discriminatory Treatment
The complainant's legal submission stated that he did not receive a contract of employment or training. However no evidence was offered that any other employee of a different age was treated any differently. I note the comments of the Labour Court regarding such "mere assertions" in the case of Melbury v Valpeters EDA 0917:
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule. In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."
The complainant also stated that he did not receive the correct rate of pay under the REA for the construction industry and that he was paid less than the national minimum wage. However the Equal Pay argument was withdrawn at the hearing, and no evidence was offered that any other employee was treated differently with respect to their pay.
In summary, considering the specific facts at hand and the authority of the Melbury decision, I find that the complainant has not made out a prima facie case of discriminatory treatment with respect to his conditions of employment.
5.4 Discriminatory Dismissal
The respondent was not present at the oral hearing, however I found the complainant to be a very credible witness. The complainant has stated that he was laid off around December of 2008 and that the respondent told him that it was due to the sell-off of some or all of the business to another party. However no evidence of any sale has been presented either in written or oral submissions. The respondent's status in the CRO remains unchanged. The complainant on the other hand gave convincing testimony that he was told by the respondent that he was too old and that the jobs should go to the younger men. He also submitted that the younger men remained on in employment. Specifically he gave evidence of a named co-worker who trained with him and then took over his job.
He was also told by the respondent to relax and enjoy his retirement. However there was no evidence presented by the respondent that there was a genuine retirement situation. Firstly, the complainant had no contract and no written statement of his terms relating to retirement age. Secondly there was no evidence given of any custom and practice regarding retirement age. Thirdly, the complainant submitted, without contradiction, that his employer had made no provision for his retirement, despite giving him the impression that he would be "looked after" when the time came. Finally I note that the issue about the insurance was disproved by the respondent itself, who took the complainant back on again, having previously said the insurer would not allow him to drive on account of his age. However during the few months the complainant was back at work, he was doing the same job as he had previously.
Each of the above points raises an inference that there was no actual retirement age set by the respondent and that this was not a genuine or voluntary retirement. Instead it would appear that the respondent simply wanted rid of the complainant possibly due to a shortage of work or to make his business more attractive to a third party or for some other reason. As a result the complainant was dismissed. I find that the complainant has raised a prima facie case that his dismissal was connected to his age, and the respondent has not rebutted this case.
6. Decision
6.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts: I find that the complainant has been unable to establish a prima facie case of discrimination with respect to his conditions of employment. With respect to his dismissal, I find that the complainant has established a prima facie case of discrimination on the grounds of age. The respondent has not rebutted this claim and so the complaint is successful.
In assessing the appropriate award in this case I have taken into account the complainant's long service of over 35 years with the respondent and the low level of his pay. I have also had regard to the requirement of the EU Directive that sanctions must be effective, proportionate and dissuasive. I order the respondent to pay the complainant €25,000 in compensation for the discriminatory treatment suffered. This figure, which approximates to about 20 months salary, represents compensation for infringement of his rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.
__________________
Elaine Cassidy,
Equality Officer
3 November 2011