DEC-E2016-146

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2016-146

PARTIES

Glenn Sheppard

(Represented by Suzanne Mullally BL, instructed by Cronin & Co. Solicitors)

v

Jewel Star Designs Ltd.

File reference: et-152690-ee-15

Date of issue: 8 November, 2016

1. CLAIM

This dispute involves a claim by Mr. Glenn Sheppard (hereafter “the complainant”) that he was discriminated against by the respondent in respect of his dismissal on grounds of age in terms of section 6(2) of the Employment Equality Acts and contrary to section 8 of those Acts.

1.1 The complainant referred a complaint under the Employment Equality Acts to the Director of the Equality Tribunal on 15 January 2015. In accordance with his powers under the Acts the Director General of the Workplace Relations Commission delegated the complaint to me - Valerie Murtagh, an Adjudication Officer/Equality Officer on 29 March 2016, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Employment Equality Acts. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 26 April, 2016. This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.

2. SUMMARY OF COMPLAINANT’S CASE

2.1 The complainant is 50 years of age. He applied to the respondent company for a position and was initially informed that the position had been filled. Mr. K, MD of the respondent company subsequently made contact with the complainant and indicated that a position had become available for a goldsmith doing finishing and setting work. The complainant immediately informed the respondent both in writing and then during the interview that he had not performed any setting work for some time and would require time to get up to speed on setting work and training in pave work and also that he had not engaged in gold smithing work since 2009. The respondent, noting this, made contact with the complainant by e-mail on Saturday 8 November 2014 at 8.55 pm requesting that the complainant call in to speak with him regarding a potential opportunity that may becoming available. The complainant submits that just prior to receipt of this e-mail, the complainant missed a call on his mobile which subsequently transpired to be from the respondent. The complainant contends that the respondent indicated to him during this meeting that the role would commence after the busy Christmas period. However, shortly thereafter, the respondent then requested the complainant to start within a two week period which Mr. K then subsequently reduced to a requirement for an immediate start. As the complainant was at that time employed on a full-time basis in another role and was required to give notice to his current employer, the complainant commenced employment on 26 November 2014. The complainant noted that the respondent became quite agitated when the complainant stated that he would not be in a position to start immediately and was required to give one week’s notice to his then employer.

2.2 The complainant states that the contract of employment was subject to the following written terms and conditions;

· the role was a full-time position

· 39 hours per week, Monday to Friday 9 – 5 pm

· the role would commence on 26 November 2014

· the role would attract remuneration of €21,000 per annum to be reviewed 6 months later subject to completion of a satisfactory 6 month probationary period

· the respondent reserved the right to extend the probationary period if necessary

· the status of the application in the company was to be assessed on completion of a 6 month probation period.

The complainant submits that on or about 10 December 2014, the Director of the respondent company, Mr. K asked the complainant what age he was. The complainant responded saying “how old do you think I am” and Mr. K replied “about 39”; the complainant stated he was 48 years old. The complainant submits that Mr. K then made comments in front of two other employees to the effect that he never would have hired the complainant had he known his age at the time of hiring. Subsequently on 12 December 2014, the complainant was informed that his probationary period had been reduced to one month. The complainant states that within minutes, he was then summarily dismissed by Mr. K. The complainant was shocked and requested written reasons for his termination which the respondent refused to provide. The complainant was extremely distressed at having been dismissed and indeed without any prior notification. The complainant submits that in order to take up employment with the respondent on the terms and conditions offered, he had to terminate his other full-time role. In addition, the complainant states that as he has a young family, his summary dismissal caused considerable financial and emotional upset so close to the Christmas period. The complainant submits that given all the facts he feels that he was dismissed from the company on grounds of his age. He submitted that the age profile of the other employees including the Director were of a younger age group, i.e. in their 20’s and 30’s.

3. SUMMARY OF RESPONDENT’S CASE

3.1 The respondent submits that the complainant applied for a position within the company and subsequently said position was filled. Consequently, as a courtesy, contact was made with the complainant as the company does with all other candidates to thank them individually for their interest in the company and also to inform candidates that their CV’s will be kept on file and should a suitable opportunity arise. The respondent states that a position did become available and the post was advertised. The respondent contends that previous candidates who applied, who the company found to be of interest, were contacted including the complainant with a view to arranging interviews. In this regard, the respondent sent an e-mail to the complainant on Saturday 8 November. The complainant was called to an interview with Mr. K which took circa 45 minutes. During this interview, the complainant stated he was a skilled professional with a high level of experience in the jewellery industry. The complainant also stated there were certain areas of work where time would need to be afforded to get up to speed but other aspects of production would be no problem, for example jewellery finishing etc. The respondent states that during this interview, the complainant when describing himself stated his age and discussed his hobbies and interests.

3.2 The respondent states that there was never an intention for this position to commence after the busy period. It states it felt the best time for the complainant to observe and familiarise himself with its processes would be when they were at their busiest. The respondent contends that initially the complainant was only required to take notes and assist whilst familiarising himself with the surroundings. It states there was no agitation on its behalf for the complainant to commence work and that the complainant was not coerced or forced to take up employment as suggested. Mr. K maintains at the interview stage, he explained to the complainant that a new bench for him would be ordered and would be delivered in 2/3 weeks so in the interim he was required to observe, take notes, ask questions of the head goldsmith and assist Mr. K from time to time and familiarise himself with the company’s processes, surroundings, techniques etc. The respondent submits that the complainant would never have been asked to carry out production work that required a jeweller’s bench in the early stages as he was only familiarising himself with the processes of jewellery manufacturing. Mr. K states that he was happy for the complainant to do this for the first few weeks in order to understand the company and how it operates.

3.3 In relation to the dismissal, the respondent states that on Thursday 27 November, the complainant was late by 10 minutes for work. Mr. K states that at that point, he politely reminded the complainant of the start times. On Tuesday 2 December, the complainant was 8 minutes late for work and Mr. K once again reminded him regarding start times. On Wednesday 3 December, the complainant took 41 minutes for a lunch break; he was aware he was only entitled to 30 minutes. On Friday 5 December, Mr. K spoke to the complainant before lunch to enquire as to how he was settling in. He also wanted to express concern at the time keeping and general unwillingness to carry out requests. Mr. K states that at this point, punctuality was becoming an issue for him, especially as the complainant had only commenced employment and the fact the complainant when late was arriving with coffee in hand. Mr. K submits that at the start of the following week, Monday 8 December, he had a conversation with the complainant in which he explained the power supply needed to be turned on upon arrival so that the machinery would be ready to use when needed. Mr. K states that these are machines that require heating so the earlier they are switched on, the earlier staff can start using them. Mr. K states that the complainant never switched them on Tuesday 9th or Wednesday 10th December even though he had stressed the importance of switching them on as early as possible. Mr. K states that the complainant replied to him “get timers and don’t be annoying me”.

3.4 Mr. K submits that he would regularly have chats with members of the team individually on Fridays to discuss issues of the week. Mr. K submits that during this conversation with the complainant on Friday 12 December, he brought once again to the complainant’s attention the subject of punctuality, petulant behaviour and blatant disregard for instructions. Mr. K states that he also inquired from the complainant as to why no notes were being taken and why he was not seeking assistance from him on issues. Mr. K advised the complainant that, in his view, an interest to learn was not being expressed and he requested the complainant to show some respect for company rules and to demonstrate that he could work as part of the team and demonstrate good work ethic and initiative.

3.5 Mr. K states that the complainant initially gave him the impression of a calm disposition but when questioned regarding his performance, this could not have been further from the truth. Mr. K states that the complainant replied “Let me tell you something, who do you think you are speaking to me like that, when my transport to work is paid for I can get the same on Social Welfare”. Mr. K states that he then personally insulted him questioning his integrity and experience. Mr. K states that at this point he tried to defuse the situation by saying “Let’s talk about this later” but the complainant refused and launched a tirade of abuse towards Mr. K. Mr. K states that the complainant told him he hadn’t got a clue what he was doing. He further stated he didn’t know what Mr. K was talking about and insulted the company. Mr. K states that the complainant used other unsavoury language and insulted his appearance and was very shaken up by what happened. Mr. K states that he did make an effort to resolve the issues of lateness/failure to carry out instructions but the nastiness of the verbal tirade towards him was at best gross misconduct. Mr. K contends that he found the complainant to be extremely opinionated and delusional. At this point, Mr. K said to the complainant that at this juncture he had crossed a line and got personal when there was no need to do so. Mr. K states the complainant again reiterated that he would be as well off on social welfare and “at least he would not have to entertain this f------ shit”. Mr. K maintains that he told the complainant to leave as the situation was volatile and his employment with the company would not be sustainable. Mr. K states that the complainant replied “are you sacking me” to which Mr. K replied “Yes I am, I can’t have somebody thinking those things of the company and myself”.

3.6 The respondent argued that age would never be a factor when recruiting employees and that it was horrified to have such an accusation levelled against it. It submits that currently the company has a 65 year old employee who is exceptionally skilled and a pleasure to work with and work alongside. The respondent also submitted at the hearing that he has recruited a goldsmith who is aged 57 who will be commencing work shortly. The respondent refutes the complainant’s allegations of discrimination and submits that the allegations are completely vindictive, untrue, without foundation and completely fabricated.

4. CONCLUSIONS OF EQUALITY OFFICER

4.1 The issue for decision by me is whether or not the respondent (i) discriminated against the complainant on grounds of age, in terms of section 6(2)(f) of the Employment Equality Acts and contrary to section 8 of those Acts, in relation to his dismissal from the company. In reaching my Decision, I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing. 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. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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". Section 6(1) of the Employment Equality Acts, 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)(f) of the Acts defines the discriminatory ground of age as follows – “as between any 2 persons, ... that they are of different ages". For a complaint of discrimination under the Employment Equality Acts to be made out, the complainant must demonstrate a nexus between the alleged discriminatory treatment and his age.

4.2 On evaluation of all the evidence, I find that the complainant has established a prima facie case of discriminatory treatment on grounds of age and the burden of proof shifts to the respondent to rebut that inference. In this regard, while the respondent has argued that the complainant was arriving late to work by 8 minutes on one occasion, 10 minutes on a separate occasion and took 41 minutes for lunch instead of 30 minutes; having taken direct witness testimony on the day of hearing, I do not find the evidence from the respondent cogent or convincing and I prefer the evidence of the complainant. In my view, the complainant came across at the hearing as a mild mannered individual and respectful and on balance I do not accept that he launched into the verbal tirade and used unsavoury language and exhibited the volatile behaviour as expressed by the respondent. The respondent maintains that the complainant openly stated his age at the interview stage and he had no issue with same. However given the sequence of events, I prefer the evidence of the complainant wherein he states that a few weeks into the job, Mr. K asked him his age and made derogatory remarks about the complainant’s age in front of other staff members and within a few days he was dismissed. I find the respondent’s claims lacking in credibility and am of the view that a dismissal was a disproportionate reaction to what Mr. K stated was a result of alleged time-keeping issues, lack of knowledge of the job and volatile behaviour. The complainant was only in the job a short number of weeks and needed time to get up to speed with the role. I note that the normal probationary period is 6 months but the respondent reduced this down to one month in the case of the complainant. Overall, given the totality of the evidence adduced, I am satisfied that the dismissal was a disproportionate and unreasonable sanction given the sequence of events. Having carefully examined all of the evidence, the respondent’s case does not stack up for me and there are too many inconsistencies in its evidence. On balance, the case that the complainant has established is more cogent and convincing. I am satisfied that a few weeks into the job, the respondent asked the complainant his age and made derogatory remarks about his age in the presence of other staff members and then within a few days, the complainant was dismissed. I find that the complainant has established a nexus to his age and that of his dismissal from the respondent company. I do not accept the reasons given by the respondent that the dismissal was due to time-keeping issues, lack of knowledge of the job and the respondent’s allegation of the complaint launching a tirade of verbal abuse and volatile behaviour towards him. In addition, I find that the manner in which the respondent dismissed the complainant was a clear breach of fair procedures. In the circumstances, I find that the respondent has failed to satisfy me that its actions, insofar as the manner in which it dismissed the complainant can be objectively justified and the complainant is therefore entitled to succeed in his claim.

5. DECISION OF THE EQUALITY OFFICER

5.1 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:

(i) the complainant has established a prima facie case of discrimination on the age ground pursuant to section 6(2) of the Acts and contrary to section 8 of those Acts in relation to his dismissal from the respondent company.

In accordance with my powers under the Act, I order the respondent to pay the complainant compensation in the sum of €12,500 for the distress suffered by him as a result of the discrimination. This amount is not in the form of remuneration and is therefore not subject to the PAYE/PRSI Code.

_____________________

Valerie Murtagh

Adjudication Officer

8 November, 2016