THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC – E2015 – 046
PARTIES
Mr Noel Graham (represented by Mr Sean Sheehan)
and
Clonmore Sawmills Ltd. (represented by O’Donovan Mahon Cowen Solicitors)
File Reference: EE/2012/573
Date of Issue: 20th July 2015
Keywords: conditions of employment – short time work – age – no prima facie case.
1. Claim
1.1. The case concerns a claim by Mr Noel Graham that Clonmore Sawmills Ltd discriminated against him on the ground of age contrary to Section 6(2)(f) of the Employment Equality Acts 1998 to 2011, in terms of his conditions of employment.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 7 November 2012. A submission was received from the complainant on 6 April 2013. A submission was received from the respondent on 24 May 2013. On 2 June 2015, in accordance with his 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 16 July 2015.
2. Summary of the Complainant’s Written Submission
2.1. The complainant submits that he was employed in the respondent business as a machine operator. In January 2009, the respondent introduced short time working for all workers. After about four weeks, four workers returned to full-time work. The complainant continued to work short time. On two occasions in March and May 2012, he asked the respondent’s Managing Director to return him to full-time work, but this request was not granted. He states that he was the most senior worker employed by the respondent. He contends that this amounts to discrimination on the ground of age.
2.2. The complainant states that the respondent’s work force was split into two teams, one of which had full-time work. He further states that when the company bought a new machine, neither he nor any of the other senior workers were trained on it, but rather the most junior person on the team. He contends that the two-team setup was a preconceived idea to thwart a successful prosecution of a claim for discrimination on the ground of age, and that a professional study by an outside expert should have been carried out to determine the best workflow for the company.
3. Summary of the Respondent’s Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. It submits that the complainant was already employed by the predecessor company which also operated a sawmill. When that company went into liquidation, the complainant received a full redundancy payment and was subsequently employed by the respondent.
3.2. Up to January 2009, the company operated to separate timber processing sheds, one for softwood and one for hardwood. The complainant, who was then aged 55 and another worker who was aged 50, operated the hardwood saw. There were three workers in the softwood shed, whose ages were 56, 46, and 31.
3.3. In January 2009, all workers were given written notice of a three-day week due to a significant drop in business. As the demand for softwood recovered, the three workers in the softwood shed were restored to full-time work. The hardwood business failed to recover, and the two workers employed in it remained employed on a three-day week. In late 2010, the hardwood saw was damaged beyond repair and the company ceased its hardwood business altogether. The complainant and his co-worker in the hardwood shed transferred to the softwood shed and continued to work there on a three-day week.
3.4. In July 2012, the complainant was advised that his payments from the Department of Social Protection would be cut due to a means test, and he approached the respondent’s Managing Director about a return to full-time work. When this was denied, the present complaint was instituted.
3.5. The respondent states that at the time of the submission (May 2013) it was operating at a loss, and that all employees were employed from week to week due to a complete lack of certainty of orders. Nevertheless, the complainant was receiving full holidays and bank holiday entitlements as if he was working full-time. The other workers on part-time were treated the same.
3.6. With regard to the two-team system, the respondent rejects the contentions of the complainant and states that this system had been in operation since at least the 1990s, as it represented the most efficient way of organising the work. While the respondent acknowledges that the complainant was the most senior employee in the hardwood shed, it states that another worker was the most senior employee on the softwood team, and that he was trained in using the new machinery.
3.7. The respondent further states that when only the softwood business continued, the most sensible approach was to leave the long-established team in place and to facilitate the complainant and his co-worker from the hardwood shed with part-time work rather than terminate their employment altogether. The respondent categorically denies that the complainant’s age had anything to do with these decisions. The oldest worker employed by the respondent is in his late 60s.
4. Conclusions of the Equality Officer
4.1. The issue for decision in this case is whether the complainant was discriminatorily dismissed within the meaning of the Acts.
4.2. In evaluating the evidence before me, 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.
4.3. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.4. At the hearing of the complaint, I clarified to the parties that length of service in and by itself not a criterion for a discrimination complaint on the ground of age, but rather, the biological ages of the complainant and his or her comparators are. Age and length of service can of course occasionally be linked, like in minimum service times which can exclude younger workers, but such a situation is not at issue in this case. I further clarified that a notion that the allocation of work may have been unfair has nothing to do with a complaint of discrimination, which looks at a possible connection between less favourable treatment and a protected ground, i.e. that the complainant’s age caused the respondent to treat him less favourably.
4.5. The respondent business is a small, family-run sawmill with a total of eight employees, including the owners, who are a married couple. There is one employee of 69 years of age who carries out lorry-driving duties on a part-time basis. The complainant’s representative sought to dispute the employment status of this man, but had no evidence that he was an independent contractor. It was the evidence of the respondent’s Managing Director that the respondent company owned the lorry and that he was their employee and worked under their direction. The respondent directors also confirmed that this man is not a relative of theirs, which the complainant side did not dispute. I accept the respondent’s evidence on this matter.
4.6. The complainant’s representative also sought to question the relevance of this evidence. While it is indeed true that this worker is not a comparator for the complainant within the meaning of the Acts, I do accept that his employment by the respondent, beyond the age at which he would become entitled for the state pension, is a general sign of a positive attitude towards older workers.
4.7. Turning to the complainant’s actual comparators, then, the complainant accepted both in response to a direct question from myself and again under cross-examination, that the ages of the timber processing workers were 52, 48, 58 and 33. He further confirmed under cross-examination that he and his 52 year old colleague were on short-time working, and that his 58-year-old colleague was on full-time work. He also accepted that the teams in the hardwood and softwood sections had existed for some time, and that the owners of the respondent company did not know from week to week where their business would come from. He also accepted that he continued to receive his holiday and bank holiday entitlements as if he worked full-time.
4.8. The respondent’s Managing Director said in evidence that the respondent business, realistically, had “only four jobs for five people”, but that he did not want to terminate the employment of the two workers from the now-closed hardwood section. He also confirmed in evidence that nearly all of his workers had nearly three decades service with the company. He stated that the decision to give all three workers from the softwood section full-time hours again was made because they were a long-established team, and it would have been unfair and a potential source of difficulty to treat one of them differently.
4.9. Given the fact that the complainant and a worker who is five years younger than him are on a three-day week, and a worker who is a year older is in full-time work, and that the complainant did not put forward any other evidence that it was his age which led to this situation, I find that he has failed to establish a prima facie case of discrimination on the ground of age and that this part of his complaint must fail.
4.10. In the later part of the hearing, the complainant’s representative also brought up the fact that the youngest of all the respondent’s workers was the one trained to operate the re-conditioned and upgraded softwood saw. However, the respondent’s Managing Director said that the complainant had never approached him about being trained to operate this saw. The Managing Director further stated that this was a complicated piece of equipment which needed several months of training for a worker to operate safely and correctly. The respondent also gave evidence that the upgrading of the softwood saw happened in 2002, long before the situation of a shorter working week for some staff or the present complaint arose. Given that the within complaint was only filed in 2012, this means any potential complaint about discrimination in access to training is out of time pursuant to the provisions of S. 77(5) of the Acts, and the Tribunal does not have jurisdiction to investigate this matter.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that Clonmore Sawmills Ltd. did not discriminate against Mr Noel Graham on the ground of his age in his conditions of employment.
______________________
Stephen Bonnlander
Equality Officer
20 July 2015