EDA1844

The Respondent’s complaint was presented to the Workplace Relations Commission on 7^thJune 2017 and the decision under appeal was issued on 16^thFebruary 2018. The within Appeal was received by the Court on 13^thMarch 2018.

The case

The Respondent was employed by the Appellant as a tour driver on two tours in August 2016. She worked from approximately 11^thAugust until 16^thAugust and again on 25^thAugust 2016. She applied for a position as a tour driver with the Appellant in March 2017 but was not asked to attend for interview and was not offered employment. She contends that the reason she was not offered employment in 2017 was her gender and that she was discriminated against within the meaning of the act.

Summary position of the Respondent

The Respondent submitted that she had worked for the Appellant in 2016 and had not been advised of any issues with her performance. She said that her final engagement with the Appellant in 2016 was the pick up of a tour at Dublin airport which she was programmed to drive for a number of days. She maintained that she was expected to act as a Guide on the tour which role she was not employed to carry out. She submitted that the client’s tour leader had assaulted her on the tour and that she had left that tour on the first day. She applied once again for employment with the Appellant in March 2017 but received no response from the Appellant. She submitted that she had contacted the Appellant on a number of occasions in March 2017 by telephone and had spoken to Ms NH. She submitted that Ms NH had advised her that her build was not suitable for engagement as driver because she would not be able to lift luggage and that the Appellant was seeking to recruit men.

Summary testimony on behalf of the Respondent

Mr MB gave evidence that he was a tour bus driver. He stated that he had contacted the Appellant in March 2017 and made enquiries about employment. He stated that he was asked on the phone by ‘Jeff’ whether he had a suitable licence. He stated that he was asked to attend the Appellant premises for a ‘chat’ and was told that the Appellant would try to ‘push work his way’.

On cross examination he said that he had never attended the Appellant premises following his initial telephone conversation.

Summary position of the Appellant

The Appellant submitted that it had not discriminated against the Respondent on grounds of her gender. The Appellant submitted that the Respondent had not been offered employment in 2017 because of the unsatisfactory nature of her performance on two tours in 2016. The Appellant submitted that it had received complaints as regards the performance of the Respondent from the client on the first tour she worked on and that she had walked away from the second tour on the first day of that tour. The Appellant submitted that this latter behaviour was not acceptable from a tour bus driver. The Appellant submitted that Ms NH had no role in the recruitment of drivers and in any event did not and would never have advised the Respondent that her build was not suitable or that the Appellant was recruiting male drivers. The Appellant submitted that, at the material time, it employed three female drivers and 83 male drivers. The Appellant submitted that this pattern reflected the industry and the low rate of application for driving positions from women. It submitted that in the first four months of 2017 it received 37 applications for the position of driver from males and one from a female. The Appellant submitted that its female drivers were valued drivers who were deployed on important tours.

Summary testimony on behalf of the Appellant

Mr JC, operations Director of the Appellant, gave evidence as to events which occurred during the employment of the Respondent in 2016 as a seasonal tour bus driver. He stated that, following the first tour upon which she was employed, the Appellant had received a complaint from an important client as regards her performance which resulted in the Appellant making a compensatory payment to the client. That complaint had not been received during the employment of the Respondent in 2016 but was received in September 2016. He stated that the Managing Director of the Appellant Company had raised concerns with him by e-mail in August 2016 as regards the driving of the Respondent with particular reference to idling statistics. He stated that on the first day of her second tour in August 2016 she had left the tour and that this was totally unacceptable to the Appellant and not acceptable in the industry generally. He stated in evidence that he decided that the Appellant would not make work available to the Respondent in 2017 because of her performance while employed for a number of days in 2016. He said that he took that decision and conveyed it to members of his small team who were involved in recruitment in 2017. He stated that the Respondent’s gender was not a factor in his decision and that he took the decision solely on the basis of her performance while employed in 2016.

He said that there was a high probability that Mr MB was, in 2017, invited to attend for interview at the Appellant premises as he had stated in evidence. He said that it would be normal to seek a potential recruit to attend for interview and driving test at the Appellant premises. He stated that the witness had not, in the event, attended at the Appellant premises at any time.

Ms NH, travel manager of the Appellant, gave evidence as regards her interaction with the Respondent during her employment in 2016. She stated that she had been involved in the difficulty which arose on the first day of the Respondent’s second tour in August 2016 when the Respondent indicated that she would not continue with the tour. She said that she could not recall having spoken to the Respondent since that time. She accepted that she may have taken a call or calls from the Respondent at the time of her application for employment in March 2017. She stated that she had no role in the recruitment of drivers and that her role on the receipt of a phone call from any prospective driver was to convey the call to the appropriate person or to take a message if that was not possible. She stated that she could see no reason to differentiate between male and female drivers and that she was aware that a number of female drivers were employed by the Appellant. She stated that she had never said to the Respondent or to anybody that the Appellant was recruiting male drivers only in 2017.

MS SK, Managing Director of the Appellant gave evidence. She said that the Appellant was an equal opportunity employer employing persons from all over the world and of both genders. She said that very few female drivers were employed because very few female drivers applied for positions when advertised.

Burden of Proof

Section 85A(1) of the Acts provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

• “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

• “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

  It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

• “…Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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.”

Discussion and conclusions

The Court has heard evidence and received submissions to the effect that the Appellant was dissatisfied with the performance of the Respondent during the period of her employment in 2016. The Court has heard evidence from the operations director of the Appellant that this dissatisfaction was the only reason for the decision not to offer employment to the Respondent in 2017.

The Court has received a submission from the Respondent wherein she asserts that she was discriminated against by the Appellant on grounds of her gender in the refusal to offer her employment. She asserted in her submission that Ms NH had told her in a phone call on an unspecified date in March 2017 that the Appellant would not recruit her because of her unsuitable build and because it was recruiting only male drivers. Ms NH has, in contrast, given evidence to the Court that she never advised anybody that the Appellant was recruiting only males in 2017.

Evidence from Mr MB on behalf of the Respondent was to the effect that he had phoned the Appellant in March 2017 and enquired about employment. He states that he was invited to attend at the Appellant’s premises. The evidence of the witness in those respects is undisputed by the Appellant. It appears to the Court that the experience of the Respondent’s witness does not differ substantially from the Appellant’s own experience in 2016 when she contacted the Appellant seeking employment and in which endeavour she was successful.

The Respondent in the within matter bears the burden of establishing primary facts from which it can be inferred that discrimination has occurred. It is common case that the Respondent was employed by the Appellant on two occasions in August 2016. The Appellant has confirmed that it decided in 2017 not to offer employment to the Appellant and has set out reasons for that decision. The Respondent asserts that she was told that the Appellant was not recruiting male drivers in 2017.

It is well settled law that mere assertion cannot be elevated to the status of evidence. In this case the Respondent, who was recruited as a driver by the Appellant in 2016, asserts that the Appellant discriminated against her in 2017 in refusing to afford her access to employment. In support of that assertion the Respondent submits that an employee of the Appellant who, on the uncontested evidence, was not involved in driver recruitment, advised her that the Appellant was employing male drivers only in 2017.

The Court has considered the submissions of the parties and the evidence of the Appellant as regards the events of August 2016. The Court has also considered the evidence of Ms NH which is to the effect that she did not make a statement to the Respondent that the Appellant was recruiting only male drivers in 2017. Taking all of these matters into consideration the Court finds that the Respondent has failed to discharge the initial burden of proof which rests upon her to establish primary facts from which discrimination could be inferred.

Determination

The Court determines that the Appellant did not discriminate against the Respondent on the grounds of gender in terms of Section 6(2) of the Acts and contrary to section 8 of the Acts. The appeal succeeds and the decision of the Adjudication Officer is set aside.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
19th October 2018______________________
SCChairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.