EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-018
PARTIES
Toni Kavanagh
(Represented by Peter Cronin BL, instructed by Sinnott solicitors)
AND
Candle Community Trust
(Represented by A & L Goodbody Solicitors)
File reference: EE/2013/387
Date of issue: 26th January 2016
1. Complaint:
1.1 This complaint concerns a claim of discriminatory dismissal on the grounds of age. The complainant is a former employee of the respondent. The respondent is a non-governmental organisation and community project based in west Dublin.
1.2 The complainant referred a claim to the Director of the Equality Tribunal on the 31st July 2013 under the Employment Equality Acts. On the 24th June 2015, in accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Kevin Baneham, 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. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on the 29th June 2015. The complainant was represented by counsel and solicitor. The respondent was represented by solicitors and three witnesses attended on its behalf.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.
2. Summary of the complainant’s case
2.1 The complainant commenced working for the respondent on the 16th December 1998 after having volunteered in a local welfare rights organisation. She has a Diploma qualification in Social Studies. In 2008, she obtained a further qualification as a counsellor and psychotherapist. In respect of her role with the respondent, she initially carried out secretarial and book keeping duties and also answered the telephone. She later took on front-line roles, for example accompanying clients on trips and filling in for teachers. In 2004, she started working to the Finance Director as the organisation developed its funding and administrative infrastructure. She held the position of Assistant to the Director/Financial Administrator and her employment came to an end on the 31st May 2013.
2.2 At the hearing and summarising her case, the complainant said that she was discriminated on the grounds of age in being dismissed from her employment and that she was unfairly selected for redundancy. She was also never informed of the vacancy of project worker in and around the time of her dismissal from the respondent. She denied ever saying to the respondent that she could not be re-deployed or that she could not work elsewhere in the organisation. She denied saying to the respondent that they would regret the decision to dismiss her or that she would “sit on her arse”. The complainant said that she had the qualifications to take on alternative roles and would have been offered an interview had she been of younger age. She said that there was also an element of religious discrimination to how she was treated by the respondent.
2.3 Commenting on her employment with the respondent, the complainant said that she had been subjected to bullying by one of her managers and while there was mediation in relation to this problem, it continued for some years, until 2012. The current director succeeded this manager and the complainant said that she had a good relationship with him. The 2011 report by external accountants identified that the director required additional support in relation to financial matters and a named person began working for 11 hours per week. The complainant worked with this person, dealing with payroll and the funding agencies. She said that the work could be very busy when coming up to audit. The complainant said that in March 2013, she proposed to the Director that the respondent start providing courses related to addiction. She suggested a six-week course that she and a named colleague could provide. The Director said that he would consider the proposal further after Easter.
2.4 Describing the events of the 8th April 2013, the complainant said this occurred just after Easter and took place while she was working on the reconciliation of accounts. She was asked by the Director to attend a meeting and not informed of what the meeting was about. When she entered the room, she saw that the Staff Representative was already present. The Director read from a letter and told her that she was to be made redundant. The complainant said that she could not believe this and left the room, feeling that she would be sick. After ten minutes, she returned to the meeting room and met again with the Director and the Staff Representative. He read through the letter again and referred to there having been cuts. She replied that she was not accepting the letter and asked why ‘Last In, First Out’ was not being applied. The Director said that it was not a matter of ‘LIFO’. The complainant said that she then began to cry and left the meeting room, where she encountered a named colleague. He asked why she was upset and she told him that she had been dismissed. Following the meeting of the 8th April 2013, correspondence was exchanged by the parties. On the 9th April 2013, the complainant wrote to the director, seeking to appeal the decision to dismiss her. The Director responded, offering clarification of this decision. This was followed by further correspondence between the parties and a union representative of the complainant.
2.5 On the 10th April 2013, the complainant met with the Director again, who explained the basis of the redundancy. He outlined that she would only receive statutory redundancy. The complainant said that she asked whether she had done anything wrong and said that the accounts were well managed. In relation to the payment of statutory redundancy, she commented that the previous director had received payment from the respondent Reserve Fund. She said that she was the only member of staff who was member of a trade union and she believed that she had been consigned to the scrap heap as the oldest member of staff. Since her dismissal, she attended meetings with a career development service but that she had cried for three months. She acquired maternity cover at a local non-governmental organisation, where she manages trainees.
2.6 In cross-examination, the complainant said that the possibility of her re-deployment was not raised. She felt that she was not wanted and was still “in awe of the whole thing”. She outlined that she had relevant experience and qualifications for other roles with the respondent and she would have applied for the project worker role, had she been aware of it. She said that she had 25 years experience with the respondent and had gained further relevant experience in volunteer roles, in particular dealing with addiction. She also had a “D1” driving licence. Addressing the issue of her front-line experience, the complainant said that she had last worked in a front-line role in 2004 and that she had interacted with course participants in the centre. It was put to the complainant that there was a requirement imposed by funders that the respondent maintain a reserve; the complainant asked whether such a requirement existed. It was put to the complainant that there had been a round of pay cuts in 2011 following a decline in funding.
2.7 In closing submissions, the complainant said that alternatives to redundancy were never discussed with her. She said that a role of project worker was filled by the respondent in or around this time, and she was never considered for this position. She outlined that she fulfilled the criteria for this role, but was never offered an interview. The complainant stated that the failure to consider her for redeployment within the employer amounts to discrimination on grounds of age. She also complained of the lack of procedures and fairness around the selection of an employee for redundancy. She stated that the position of project worker was filled by a substantially younger worker and that she was not informed of or considered for this alternative role. These facts establish a prima facie case of discrimination, shifting the burden on the respondent to rebut the inference of discrimination.
3. Defence by the respondent:
3.1 The respondent is a community project based in west Dublin and is run by a board of trustees. It directly employs seven people and is responsible for the recruitment of a further 12 people. It provides educational and training facilities to “at risk” young people and its services are funded by various statutory agencies. In respect of the claim, the respondent denies that there was direct or indirect discrimination or that the complainant has established a prima facie case of discrimination. She has failed to discharge the burden of proof and has not shown that equal treatment was not applied to her. The respondent states that its seven employees are aged between 29 and 58 years old; the age profile of the other 12 staff is 29 to 65. It refers to its Equality Policy, which prohibits discrimination. It outlines that the complainant has not established facts from which discrimination can be inferred or shown that she has been subjected to less favourable treatment that could amount to discrimination. The respondent describes the claim as entirely speculative and no inference of made between age and redundancy.
3.2 Also in respect of the complaint, the respondent says that the dismissal was a fair one. It gives details of recent funding cuts it incurred as well as redundancies made in comparable organisations. The respondent outlined that in addressing the funding shortfall, it could not cut frontline services as this attracted earmarked funding. It refers to an independent study carried out by a firm of accountants that commented on how financial administration was carried out in the respondent. The respondent states that there was no option to redeploy the complainant within the organisation. It states that complainant said that she could not do any other role in the organisation. It says that the post of project worker advertised in May 2013 was subject to open and public competition and it could not move the complainant into the post. The complainant did not apply for this post. The respondent referred to the minutes of a care team meeting held on the 16th January 2013 where vacancy for the project worker post is minuted and the minutes indicate that the complainant attended. The Director said that there was no alternative finance and administration post to offer to the complainant. It would have been inappropriate for the respondent to raise the complainant’s qualification in addiction studies at the interview of the 8th April 2013.
3.3 The Director gave evidence at the hearing. He outlined that he commenced with the respondent in 2001 and became acting director in 2003. He returned to his original position following the appointment of a director but resumed the acting director role in 2012. When the permanent director post was advertised, he applied for the role and was successful. He was appointed to the director post in January 2013. He outlined that the respondent is a registered charity and non-governmental organisation. It is funded by statutory agencies and that all posts with the respondent were dependant on funding. Between the years of 2009 and 2014, there had been a 21% reduction in funding as well as the coming to an end of particular sources of funding. The respondent had imposed a pay freeze and pay cuts in order to address this situation and had struggled not to make a redundancy.
3.4 The Director said that in 2012, it became apparent that further reductions would be necessary. One statutory agency had imposed a 50% reduction in its allocation, necessitating action. The Director outlined that the respondent was required to break even at all times and also had to provide funders with quarterly returns. A funder raised the administration overhead in the respondent and the Director referred to correspondence issued in this regard. This situation prompted the respondent to review its services in order to remain solvent. The respondent subsequently received the report of March 2013 from an accountant. This provides that the respondent was spending too much on administration and that this function could be absorbed into existing roles. Functions could also be out-sourced, making additional savings.
3.5 The Director described the complainant as a strong advocate for young people and that she was passionate about her role. He commented that he was not aware of her qualification in addiction counselling and had not directly observed her in any front-line role. The complainant had mentioned these roles to him in conversation. In relation to the dismissal of the complainant from the employment of the respondent, the Director said that this was grounded on her redundancy. She had been selected for redundancy as certain functions had been absorbed into other roles. He said that at the meeting on the 8th April 2013, the complainant had said that she could do no other role. He acknowledged that she had been emotional at the meeting. In respect of the project worker role, the Director said that this had been created following his appointment to the post of director. The new role was first raised at a board of trustees meeting in January 2013. In respect of the complainant’s suggestion of developing addiction services, the Director said that he had responded positively in order to keep the complainant involved. Addressing the situation faced by the respondent, the Director said that it had been established by the respondent that savings were needed and a transparent approach adopted to establish the best way of finding those savings. After this process of consideration, it was determined that there were no alternatives to the redundancy of the complainant. The complainant was given the explanation of this decision. She was also facilitated with an appeal of the decision and he outlined that she had not applied for the project worker post. The respondent had also decided to end support provided by a self-employed accountant.
3.6 In cross-examination, the Director said that his knowledge of the complainant’s role related mainly to her duties in the finance area. Describing the project worker role, he outlined that this role was an educational and developmental one, working mainly with young people. It involved liaising with the judicial service and was part of the delivery of community service sentences. The post was funded from a distinct source. In respect of the meetings with the complainant, the Director said that she had initially refused to take the letter of the 8th April 2013, indicating that she was to be made redundant and that this was later delivered to her. He acknowledged that the letter does not make a reference to redeployment. He said that he wished that their conversation had been freer and acknowledged that he was not aware of her qualification in counselling.
3.7 The member of the board of trustees outlined his involvement as a trustee of the respondent. He said that the trustees had had longstanding concerns about the financial viability of the organisation. He outlined that a sub-committee had been established to address the situation. It was not a pleasant decision to make and they acted in the best interests of the client group. The Director was assigned the role of informing the complainant of the redundancy. While he was aware of the complainant’s unhappiness, he was not aware of her appeal. He outlined that the report provided to the respondent by the accountant had referred to administration costs and that the respondent had looked at the functions and roles carried out in the organisation, rather than any individual in the organisation, including the complainant.
3.8 The Staff Representative outlined that she joined the respondent in 2002 and was responsible for setting up a project working with young people. She had been elected by the staff to fill the position of Staff Representative. This entitled her to attend board of trustee meetings in order to raise the interests of staff and grievances. She said that during two board meetings, there had been presentations on the possibility of redundancies. She outlined that there had been pay cuts and a wage freeze prior to the redundancy being introduced.
4. Findings and reasoning:
4.1 This is a claim of discriminatory dismissal on the grounds of age. The complainant was a longstanding employee of the respondent and her employment ceased on the 31st May 2013. The respondent is a registered charity, providing educational and training services to young people considered to be “at risk”. It denies that claim, stating that it had no alternative to making the complainant redundant as it re-structured its administrative functions in line with budget cuts. Following the end of her employment, the complainant received her statutory redundancy.
4.2 This complaint is made pursuant to the Employment Equality Acts and not one made under neither of the Unfair Dismissals Acts, nor the Redundancy Payment Acts. My role is to determine whether the termination of the complainant’s employment was a discriminatory act grounded on her age. I do not have a role in determining such questions as whether the respondent should maintain a reserve, as was raised during the hearing. The complainant made a passing reference to discrimination on the grounds of religion, but this was not advanced with any force.
4.3 This case relates to a longstanding employee of an NGO engaged in providing education and training services to young people deemed “at risk”, including those engaging with the Probation and Welfare Service. While her former colleagues who attended the hearing were also longserving employees, the complainant worked for the respondent for a longer period. In recent years, the complainant carried out duties related to finances and administration. The respondent refers to the March 2012 report carried out by accountants, which includes amongst its recommendations that “[T]here are 2 people responsible for the financial administration of [the respondent] which, based on the volume of the work involved, would appear to be an inefficient use of resources.” The respondent submits minutes of the meetings held with the complainant in April 2013 as well as the director’s preparatory note of what he was going to say to the complainant. Coincidentally, shortly before the complainant had suggested to the director that the respondent should start programmes related to addiction. The director undertook to explore this suggestion. The witnesses for the respondent gave evidence of alternatives to redundancies that had been implemented prior to the redundancy of the complainant.
4.4 Section 85A of the Employment Equality Acts sets out the burden of proof that applies to complaints of discrimination. In the first instance, it requires the complainant to establish facts upon which they can rely in asserting that they were discriminated against. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. When investigating a complaint, the role of an Equality Officer includes probing conflicts of fact in the evidence presented by the parties to come to reasoned findings of fact.
4.5 Having considered the oral and written submissions of the parties, I find that the complaint of discriminatory dismissal is well-founded. I do so for the following reasons. In 2012/2013, the respondent faced what it described as the pressing need to adjust to reductions in statutory funding as well as the ending of certain fixed sources of income. Of course, I have no jurisdiction to second guess this decision, nor any other decision regarding the financial management of the respondent. Two things, however, are striking. The first is that the complainant, by coincidence, suggested a way for the respondent to develop it services in the area of addiction, expanding its existing services to the same client group and also an area in which she had developed an expertise. No evidence was proffered on behalf of the respondent to say that this suggestion was without merit. Also, at this time, the respondent was looking to fill a project worker role. The complainant is criticised for knowing of the forthcoming vacancy and not later applying for it. This, however, cuts both ways; the respondent knew when contemplating the complainant’s redundancy that it had a post for which she could apply for. I accept that the post had to be filled by open competition, but it is not clear why the complainant was not informed of the forthcoming vacancy when she sought to appeal her dismissal.
4.6 Furthermore, it is striking that neither the complainant’s suggestion of a new service related to addition, nor the project worker competition, led the respondent to reconsider its position and to assess alternatives to the redundancy of the complainant. On foot of the evidence presented, I believe that an inference can be drawn from the failure to consider the two alternatives, and to link this to the age of the complainant. The respondent decided to change how it carried out its finance and administrative functions in the organisation, seeking to incorporate those duties into front-line posts and to the post of director. This meant the termination of services provided part-time by a self-employed accountant. It also threatened the post occupied by the complainant. It is clear, however, from the suggestion of the complainant regarding addiction services as well as the project worker post and the director’s own evidence about her commitment to young people that the complainant was much more than an administrator or a person delivering finance administration. She was committed to the important goals of the respondent NGO in meeting the needs of “at risk” young people. While she had been exclusively allocated finance and administration roles in recent years, it was obvious that her interests and skills went beyond these duties. I infer that had the complainant been a younger person, the respondent would have considered the possibility of a front-line alternative dealing with addiction, in the same way that the Staff Representative was able to develop a specific project. There is no certainty that the proposal related to addiction would have been viable after closer consideration and there may already have been similar services available to this group of young people. The inference is drawn from the failure of the respondent to give this proposal or possibility any consideration at all, including when the complainant sought to appeal the redundancy. Moreover, the complainant might have also not been successful with an application for the project worker post. An inference is drawn from the failure of the respondent to facilitate an application for the project worker post, or even to bring this forthcoming vacancy to her attention at the time of the redundancy. I appreciate that telling the complainant of her redundancy was a difficult task for the director to deliver and hence his scripted note in advance of the April 2013 meeting. I, however, believe that the respondent, as an organisation, would have considered front-line alternatives for the complainant, had it not been to her age.
4.7 In assessing the level of award to be made to the complainant, I must consider what is proportionate in the case. Taking account of the longstanding nature of her employment, I make an award of €12,236 (equivalent to 18 weeks’ salary).
5. Decision:
5.1 I have concluded my investigation into this complaint and make the following decision in accordance with section 79(6) of the Employment Equality Acts. I find that the respondent dismissed the complainant in circumstances amounting to discrimination on the grounds of age, contrary to section 8 of the Act.
5.2 In accordance with section 82 of the Act, I order that the respondent pay the complainant €12,236, this being the equivalent of 18 weeks’ remuneration. The entire award of €12,236 is redress for the infringement of the complainant’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act, 1997 (as amended by Section 7 of the Finance Act, 2004).
_______________________________
Kevin Baneham
Adjudication Officer / Equality Officer
26th January 2016