John Staunton
(Represented by Donal T McAuliffe & Company Solicitors)
Complainant
AND
Irish Pride Bakeries (in receivership)
Respondent
File reference: et-156096-ee-15
Date of issue: 9th May 2016
1. Introduction:
1.1 On the 11th May 2015, the complainant referred a complaint regarding his discriminatory dismissal on the basis of age. On the 23rd February 2016, in accordance with 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.
1.2 The complaint was scheduled for hearing on the 29th March 2016. At the time the hearing was scheduled to commence, there was no appearance by or on behalf of the respondent. I verified that the respondent was on notice of the hearing. The respondent did not avail of the opportunity to make submissions regarding the complaint. The hearing, therefore, proceeded in the absence of the respondent. The complainant attended the hearing and was represented by Jamie McAuliffe of Donal T McAuliffe & Company Solicitors.
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. Submissions and evidence of the complainant:
2.1 The complainant outlined that he commenced employment with the respondent on the 3rd November 1969 and his employment came to an end on the 30th November 2014. The respondent was in the business of the manufacture of bread products. The complainant’s job title was Financial Controller, but his duties were broader, covering IT functions and the processing of sales. The complainant outlines that the respondent was originally an unlimited company and later subject to corporate restructuring, including the appointment of a receiver. Particular investors became involved in April 2014, leading to a greatly increased workload for the complainant as he was charged with the process of disengaging the respondent from its shared IT and sales process infrastructure from a parent company. The complainant was charged with establishing a new standalone platform for the respondent. This restructuring work was completed in October 2015. The complainant outlined that on the 1st May 2014, he had reached an agreement with the respondent that he continue in employment until the 1st May 2016. He was then 66 years of age.
2.2 The complainant outlined that on Wednesday, 28th November 2015, he received a telephone call from the respondent head office to say that his employment was coming to an end on the 30th November 2015. He said that the investors who had acquired the respondent had let it be known that all people over the age of 65 would be let go. The complainant outlined that the office he worked in had effectively been a satellite office and he was the most senior person in the office. He left employment on Friday, 30th November 2015, but responded to queries from his former colleagues in order not to leave them short.
2.3 The complainant outlined that this claim was restricted to the complainant of discrimination on grounds of age. The element related to the complainant’s dismissal had been subject to a recommendation of a Rights Commissioner, issued on the 4th January 2016.
3. Submissions and evidence of the respondent:
3.1 The respondent did not make submissions in reply to the complaint and did not attend the hearing.
4. Findings and reasoning:
4.1 The complaint relates to a claim of discrimination on the grounds of age. The complainant was aged 66, when he was effectively summarily dismissed by his employer. The complainant has pursued a claim under the Unfair Dismissals Acts and a Rights Commissioner has issued a recommendation in relation to his claim. Section 101(4) of the Employment Equality Act provides “An employee, who has been dismissed shall not be entitled to seek redress under this Part in respect of the dismissal if … in the exercise of powers under the Unfair Dismissals Acts 1977 to 2015, a rights commissioner has issued a recommendation in respect of the dismissal.” It follows that I have no jurisdiction to consider the dismissal of the complainant from his employment (see Picciau v. Salthill Court Hotel Ltd [2014.] E.L.R. 57).
4.2 Outside of his dismissal, the complainant asserts that he was discriminated against because of his age. He says that it became known that the new owners of the respondent made it known that older employees had no place or future with the respondent. The complainant outlines that he carried a heavy workload in disengaging with the respondent from the systems of a parent company to create standalone infrastructure. The complainant used his many years of experience and expertise to achieve this. Having regard to the approach of the Equality Tribunal in Mentel v. Top Heights Ltd t/a Foys Bar & Lounge (DECE2014-017), I find that the complainant was subject to discriminatory treatment in the manner in which his contribution was denigrated by the respondent, including in its telephone call of the 28th November 2015. Having taken account of the evidence and submissions before me, I find that this denigration arises from the complainant’s age and amounts to discrimination on the grounds of age, in breach of section 8 of the Employment Equality Act. Given the circumstances of this case and having regard to the fact that the dismissal element is not before me, I make an award of €17,000 to the complainant.
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 complainant was subject to discriminatory treatment on 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 €17,000. The entire award of €17,000 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).
Kevin Baneham
Adjudication Officer / Equality Officer