EDA1824

This is an appeal brought on behalf of Jewelstar Designs Limited from a decision of an Equality Officer bearing reference number DEC-E2016-146 and dated 8 November 2016 in which the Equality Officer upheld Mr Sheppard’s complaints of discrimination and discriminatory dismissal on the age ground and made an award of €12,500.00 under the Employment Equality Act 1998 (‘the Act’). The Notice of Appeal was received by the Court on 19 December 2016. The Court heard the appeal in Dublin on 22 February 2018. The parties are referred to in the within determination as they were at first instance i.e. Mr Sheppard is referred to as the Complainant; Jewelstar Designs Limited as the Respondent. The Complainant gave evidence on his own behalf. The Court also heard evidence from Mr Wayne Knowles, a director of the Respondent company, and from Mr Anikesh Nunkoo, an employee of the Respondent.

The Factual Background/Parties’ Submissions

The Complainant was employed for a relatively short period by the Respondent. The duration of his employment was some 12.5 working days: from 26 November 2014 to 12 December 2014. The parties’ respective versions of the material events in issue can, therefore, be recited succinctly as follows.

The Complainant submitted a detailed curriculum vitae to the Respondent on 18 March 2014 in response to an advertisement placed by the latter seeking an internship. The Complainant was not accepted for employment on that occasion. However, the Respondent (on notice to the Complainant) retained his curriculum vitae on file with a view to making contact with him in the event that any suitable vacancy should arise in the future. Such a vacancy did arise in November of 2014. There followed an exchange of emails between the Complainant and Mr Knowles about the nature of the position on offer and the terms on which it might be offered. This culminated in the Complainant’s attending for an interview with Mr Knowles at the Respondent’s premises on 14 November 2014.

It is agreed between the parties that - on 18 November 2014 - the Complainant was offered and accepted a contract of employment to work for the Respondent at its premises in Eustace Street, Temple Bar, Dublin 2 as a full-time Production Engineer. His starting salary was €21,000.00 per annum to be reviewed six months after the start date subject to the Complainant having satisfactorily completed a six-month probationary period.

The Complainant submits that he was advised by Mr Knowles at the outset of his employment he should observe and shadow a fellow employee, Mr Ainikesh Nunkoo, so as to familiarise himself with the work and the location of tools and equipment in the workshop. In any event, the Complainant would not be able to undertake production work himself until such time as a jeweller’s workbench was in place for him. This had been ordered by the Respondent but would take a number of weeks to arrive.

The Complainant next submits that the following conversation took place between him and Mr Knowles in the workshop and within earshot of both Mr Nunkoo and another employee working there at the time but who has left the business in the meantime. The Complainant alleges that on 10 December 2014, Mr Knowles asked him what age he was. The Complaint says he replied by asking Mr Knowles what age he thought he (the Complainant) was. Mr Knowles, he told the Court, replied by suggesting that the Complainant appeared to be “About thirty-nine”. Mr Knowles replied that he was, in fact, forty-eight. The Complainant alleges that Mr Knowles then said to him, “I thought you were much younger than that. Had I known you were that age I never would have hired you”. He further alleges that Mr Knowles then turned to the two colleagues present in the workshop and said to them, “We don’t want any old people working here. Do we?”

Mr Knowles denies that any such discussion about the Complainant’s age took place on 10 December 2014, as alleged or at all. He submits that he had a very good idea of the Complainant’s age, having considered in some detail the curriculum vitae he had submitted in early March 2014. Mr Knowles acknowledges that the curriculum vitae doesn’t overtly state the Complainant’s age but that it does clearly indicate that he completed second-level education and commenced full-time employment in or around 1983. Mr Knowles also stated in evidence that both he and the Complainant discussed their respective age, family situation, interests and other matters of a personal nature for about ten or so minutes of the forty-five-minute interview that took place on 14 November 2014.

Mr Mr Nunkoo’s evidence to the Court is that he doesn’t recall Mr Knowles making any remarks about the Complainant’s age on 10 December 2014 and as far as he is concerned no such conversation ever took place. Both Mr Knowles and Mr Nunkoo gave evidence that all four members of staff, including the Complainant, went out for drinks after work on 10 December 2014 and there was no bad atmosphere on that occasion. The Complainant accepts that he had gone for drinks on an evening with his then colleagues but he couldn’t recall if this happened on 10 December 2014 or on some other date.

Two days later - on 12 December 2014 – a one-to-one meeting took place between Mr Knowles and the Complainant in Mr Knowles’s office, which appears to be adjacent to the workshop but separated it from it by a set of double doors with glass panes and a small vestibule. Apart from the fact that Mr Knowles and the Complainant both agree that the former dismissed the latter in the course of that meeting, there is a considerable divergence between their respective accounts of what transpired and was said on that occasion.

The Complainant submits that Mr Knowles told him that the six-month probationary period provided for in his contract was being reduced to one month. The Complainant also says that he questioned Mr Knowles as to why his initial instruction to him about observing and shadowing Mr Nunkoo for the first few weeks had changed on the very first day of his employment such that he was effectively engaged in full-scale production within two to three hours of starting work for the Respondent. The Complainant expressed concern, he says, that he wasn’t been given sufficient time to get up to speed with the type of work he was being asked to do. His evidence is that Mr Knowles responded by telling him that he was ‘fired’ and that he should leave immediately. The Complainant says he then went back into the workshop to collect his bag and some personal items, said goodbye to Mr Nunkoo and shook Mr Knowles’s hand before leaving while expressing his regret that things hadn’t worked out. He also told the Court that he subsequently requested a statement in writing from Mr Knowles explaining why he had been dismissed but that this had never been furnished.

Mr Knowles’s evidence is that the meeting that took place on 12 December 2014 was intended to be the usual type of one-to-one meeting that he was in the practice of having on a weekly basis with each of his employees and in the course of which he enquired as to how they were getting on in their work generally. He told the Court that he believed that what was said at that meeting could have been heard by Mr Nunkoo and the other employee in the workshop at the time because the one of the double doors from the workshop was held open by a wedge, as it usually was at all times. He denies that he told the Complainant his probationary period was being shortened to one month. His version of events is that he told the Complainant that they would have a chat about a month later about how he was settling in at that stage. Mr Knowles said that he enquired of the Complainant why he hadn’t been taking notes while observing Mr Nunkoo at work. He also suggested to the Complainant that he had made a number of ‘smart’ comments to Mr Nunkoo and had been late on a number of mornings and once after lunch. This, he said, was like showing a red rag to a bull because the Complainant responded by asking him, “Who the f*** do you think you are, speaking to me like that? When my travel costs are taken into account, I would have more on social welfare”. Mr Knowles claims that the Complainant then stepped towards him and asked him if he was sacking him to which he replied that there was very little future for the Complainant in the Respondent’s business and he had little option but to ask him to leave. He says that as the Complainant was leaving the premises he turned and referred to him (Mr Knowles) as ‘a f***ing pr**k’, before banging the door and asking to be let out of the premises. Mr Knowles was adamant in his evidence that his decision to terminate the Complainant’s employment had nothing to do with his age and everything to do with his attitude.

Mr Nunkoo’s evidence is that Mr Knowles instructed him to demonstrate to the Complainant the various processes that were employed in the business which the Complainant was to observe for the first number of weeks. The witness said that from time to time he gave the Complainant minor tasks to do, such as polishing a ring, but that he didn’t ask time to do any advanced work. In any event, he says the Complainant wasn’t in a position to do any complex work because he was still awaiting delivery of a jeweller’s workbench which was an essential requirement for such work. He also gave evidence of the Complainant’s lack of punctuality on a number of occasions, consistent with the evidence that had been given in this respect by Mr Knowles. Mr Nunkoo also told the Court that the Complainant told him a number of times that he already knew how to do the job and didn’t require to have the basics explained to him. It was Mr Nunkoo’s opinion, he said in evidence, that the Complainant didn’t appear particularly interested in the work and certainly didn’t take notes as he had been instructed to do by Mr Knowles. Mr Nunkoo says that the double doors between the workshop and the vestibule outside Mr Knowles’s office were closed for the duration of the meeting on 12 December 2014 but, nevertheless, he could hear at least part of the conversation that took place between Mr Knowles and the Complainant. In particular, he recalls hearing the Complainant asking Mr Knowles in a raised voice, “Are you firing me?” He then saw the Complainant banging on the exit door (which is kept locked at all times because of the nature of the Respondent’s business) and shouting ‘Let me out’. The witness denies that the Complainant came back into the workshop or spoke to him before leaving.

Discussion and Decision

In relation to the ageist remarks allegedly made by Mr Knowles on 10 December 2014, the Court finds that the Complainant has established aprima faciecase which has not been rebutted by the Respondent. The Court does not find Mr Nunkoo’s evidence in relation to the conversation that occurred in the workshop on that occasion to be either consistent or reliable. Mr Knowles’s position is that he was fully aware of the Complainant’s age at all material times as that was a matter that was easily inferred from the latter’s curriculum vitae and, therefore, there would have been no occasion for him to be surprised to discover the Complainant’s actual age was 48 in 2014. While it is undoubtedly the case that a close reading of the Complainant’s curriculum vitae would have indicated what the Complainant’s age group was, Mr Knowles did not offer any convincing evidence that he had reread the curriculum vitae in any detail or at all after he initially received it some months before the events at issue. The Court also places some weight on the divergent accounts given by the Complainant and Mr Knowles of the interview that took place on 14 November 2014. The Complainant’s evidence was that no discussion took place between him and Mr Knowles in the course of the interview about personal matters such as family, hobbies, etc. The Court finds, having regard to the evidence adduced in respect of the events that allegedly occurred in the Respondent’s workshop on 10 December 2014, on the balance of probabilities, Mr Knowles did make the remarks about the Complainant’s age as alleged.

The Court, however, does not find that the Complainant has made out a convincing case in relation to the conversation that took place in Mr Knowles’s office on 12 December 2014. Having regard to the evidence before the Court about the Complainant’s apparent lack of interest in shadowing Mr Nunkoo for the initial few weeks of his employment, the Court is inclined to conclude that the Complainant quickly formed the view that he had little or nothing to learn from his colleague and most likely came to regret his decision to resign his previous employment in order to take on employment with the Respondent at a relatively modest salary. In all the circumstances, therefore, the Court determines that Mr Knowles’s explanation to the effect that he dismissed the Complainant because of his attitude holds more water than the account proffered by the Complainant. For that reason, the Court finds that no case of discriminatory dismissal has been made out.

Having regard to the foregoing, the Court determines that the appropriate redress due to the Complainant in respect of the discriminatory remarks made in relation to his age on 10 December 2014 is compensation of €6,000.00.

The decision of the Adjudication Officer is varied accordingly.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
CR______________________
03 April, 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.