SECTION 77, EMPLOYMENT EQUALITY ACT, 1998
PRK LOGISTICS LIMITED
(REPRESENTED BY MANAGEMENT SUPPORT SERVICES (IRELAND) LIMITED
- AND -
(REPRESENTED BY THE EQUALITY AUTHORITY)
Chairman: Mr Duffy
Employer Member: Mr Pierce
Worker Member: Ms Ni Mhurchu
1. Alleged unfair dismissal under Section 77 of The Employment Equality Act, 1998.
2. The worker referred her case to the Labour Court on the 7th of May, 2002, in accordance with Section 77 of the Employment Equality Act, 1998. A Labour Court hearing took place on the 20th of June, 2003. The following is the Court's determination:
Ms Mary Conroy (the complainant) was dismissed by PRK Logistics Limited (the respondent) on 9th of November, 2001. She claims that her dismissal arose from factors relating to her gender and constitutes discrimination contrary to the Employment Equality Act, 1998.
The complainant was originally employed by Interlink Ireland which operated the Interlink franchise in the west of Ireland. Her employment commenced on 20th March, 2001. This business was subsequently taken over by the respondent on 3rd November, 2001. The complainant’s employment was continued in accordance with the European Communities (Safeguarding of Employees' Rights on Transfer of Undertakings) Regulations, 1980 and 2000. On 9th of November, 2001, Mr Kavanagh, who is the principal of the respondent, informed the complainant that she was being dismissed with immediate effect. Another driver, Mr Padraig Conneally was also dismissed on the same date.
Position of the Parties.
The position of the parties can be summarised as follows:
The Complainant’s Case
The complainant told the Court in evidence that in the week leading up to her dismissal she was assigned to transport heavy television sets. She said that she had difficulties in lifting them and required assistance. She said that when she returned to her base on Friday 9th of November, 2001, she was approached by Mr Kavanagh who indicated that he wished to talk to her. The complainant told the Court that in the ensuing discussion she was told by Mr Kavanagh that she was being let go. When she enquired as to the reason she was told that she was unable to carry heavy loads and was totally unsuitable on that account. She claimed that shortly after her dismissal another driver was employed by the respondent. The complainant denied that she was ever told that her dismissal was on grounds of redundancy or that her selection was because she had the least service.
The complainant said that she asked Mr Kavanagh for a letter stating the reason for her dismissal which she required for the purpose of claiming social welfare benefit. She said that Mr Kavanagh promised to furnish such a letter. No letter was subsequently provided.
Mr Conneally also gave evidence on the circumstances leading to his dismissal. He told the Court that on the 5th of November he had a discussion with Mr Kavanagh in relation to the maintenance of the van which he was driving. In the course of this discussion, he told Mr Kavanagh that the van was owned by the former owner of the business and was not part of the leased fleet which the respondent had taken over. He said that on being so informed Mr Kavanagh told him that he would return the van to its owner and let him (Mr Conneally) go. The witness said that redundancy was never mentioned in the course of this conversation nor was it indicated that his dismissal related to his length of service. Mr Conneally said that he was not the most junior driver and that three drivers (including the complainant) had started with the Company after him.
The Respondent's Case.
It was the respondent’s case that on taking over the business it became apparent that costs would have to be reduced as a matter of urgency. To achieve savings it was decided to reduce the number of vans used in the business by two and to make two drivers redundant. The complainant and Mr Conneally were selected on the basis of last-in, first-out.
Mr Kavanagh told the Court in evidence that when he acquired the business there were eight vans in service and eight drivers. He said that on taking over the business the respondent had difficulties in getting quotations for insurance. There were also difficulties in obtaining employer liability insurance, the costs of which had increased significantly.
Mr Kavanagh said that he decided to reduce costs by making two drivers redundant and disposing of the vehicles which they drove. The service profile of the staff at the material time was that one employee had five years' service and the service of the remaining employees ranged from four to eighteen months. The previous owners of the business had supplied details of the commencement dates of the staff and this information showed that the complainant and Mr Conneally had the least service. On that basis he resolved to make both of them redundant.
Mr Kavanagh told the Court that he met with both employees separately and told them that he was reorganising the business and that they were being made redundant. He said that they were also told the reason for their selection. He said that the complainant had indicated to him that she did not consider herself able for the job and that she was not unhappy at being let go. Both employees were paid in lieu of notice, which they were not required to work.
In relation to the letter requested by the complainant, Mr Kavanagh told the Court that he had received a telephone enquiry from the local social welfare office concerning the circumstances of the complainant's dismissal and, having explained those circumstances, there was no need for a letter.
Mr Kavanagh denied that the decision to terminate the complainant’s employment was in any way influenced by her gender or was for any reason other than redundancy.
Mr Kavanagh accepted that following the complainant's dismissal another driver was employed but this was for one week only. He also told the Court that the vehicles used by Mr Conneally and the complainant were disposed of within ten days of their dismissal.
Conclusions of the Court.
Having reviewed the evidence as a whole, the Court has reached the following conclusions:
The Court accepts that the respondent was faced with a situation in which it was necessary to reduce costs and improve the viability of the business. It is further accepted that to this end it was decided to reduce the number of vehicles used in the business, and this in turn necessitated a reduction in the number of drivers employed.
Whilst the respondent may have thought that the selection was being made on a last in first out basis this was not in fact the case. Mr Conneally had longer service than appeared on the records available and two other drivers (excluding the complainant) had shorter service. It appears to the Court that if Mr Kavanagh was correct in his recollection of having explained to Mr Conneally that he was being let go because he was one of the last into the Company, the true position would have been pointed out to him by Mr Conneally.
The Court found Mr Conneally to be a particularly reliable witness who had a clear and consistent recollection of the events on which he gave evidence. Thus the Court accepts, as a matter of probability, that Mr Conneally’s recollection of the conversation preceding his dismissal is to be preferred. In the Court’s view, Mr Conneally’s recollection is corroborative of the complainant's version of the events preceding the dismissals.
The complainant was the last person taken on by the previous owner of the business. However, it emerged in evidence that one of the respondent’s fleet of vans was being used on a part-time basis and that its driver, who worked part-time, was not directly employed by the respondent. It also emerged that shortly after the complainant was dismissed, this driver left the employment and was replaced with a full-time direct employee.
From these findings a number of questions arise which were not fully answered. It seems strange that the respondent, who was anxious to reduce the insurance costs of the fleet of vehicles, would have retained a van and its driver which was being used at half its capacity whilst disposing of a van which was being used to full capacity. Further, in industrial relations terms, the complainant would have had a better claim to being retained in employment than the driver who was not then on the Company’s books. Also, if the complainant’s departure from the employment had been as amicable as was claimed, it might reasonably have been expected that the respondent would have offered her re-employment when a vacancy arose some weeks later.
There was a sharp conflict between the recollection of the complainant and the respondent in relation to what was said at the meeting between them at which the complainant was told that she was to be dismissed. The complainant gave evidence that she had been told that she was unsuitable because she experienced difficulty lifting heavy weights. The respondent's evidence was that he did not know of any such difficulties and that he had never made the comments alleged. It later emerged, in response to questions from a member of the Court, that the witness did know that the complainant had experienced difficulties lifting a television set some days before her dismissal and that another employee had to be sent out to assist her.
On balance, the Court prefers the evidence of the complainant to that of the respondent. The Court is thus satisfied that the complainant was told that her inability to lift heavy weights unaided rendered her unsuitable for retention. The evidence further established that male employees experienced similar difficulties. It appears that the respondent either failed to make sufficient enquiries to establish that this was the case or attached less significance to these difficulties in the case of men. The Court is satisfied as a matter of probability that the respondent did draw an unwarranted connection between the complainant's difficulty in lifting weights and her gender. This, prima facie, indicates that the complainant's gender was a factor which influenced her selection for redundancy.
Burden of Proof.
The Burden of Proof borne by the parties in this case is regulated by the European Communities (Burden of Proof in gender discrimination cases) Regulations 2001(S.I. No. 337 of 2001). These regulations provide that at regulations 3(1)
- “where in any proceedings facts are established by or on behalf of a person from which it may be presumed that there has been direct or indirect discrimination in relation to him or her, it shall be for the other persons to prove to the contrary.”
In considering if the burden of proof has shifted to the respondent, the Court has had regard to the conclusions, recited above, which it has reached on the evidence as a whole. Whilst these conclusions do not in themselves establish the existence of discrimination they are, in the Court's view, of sufficient significance to shift the probative burden on to the respondent to establish that there was no infringement of the principle of equal treatment.
Having so found, it is for the respondent to refute, as a matter of probability, the veracity of the complainant's contention that her difficulties in lifting certain goods influenced her selection for redundancy, and that those difficulties were regarded as referable to her gender. The Court is not satisfied that the respondent has discharged that burden. Accordingly, the complainant is entitled to succeed.
The Court is satisfied that the appropriate form of redress is an award of compensation. The Court has had regard to the distress caused to the complainant and also to the limited financial loss which she suffered in consequence of the discrimination. In so doing, the Court measures the compensation which is fair and equitable in all the circumstances of the case at €5,000.
The respondent is ordered to pay to the complainant compensation in that amount.
Signed on behalf of the Labour Court
7th July, 2003______________________
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.