THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 042
Ms Irene Bohan
(represented by Purdy Legal, Solicitors)
Ms Emer Murray, t/a Goyas
(represented by D.M. O'Connor & Co., Solicitors)
File Reference: EE/2007/563
Date of Issue: 29th March 2010
1.1. The case concerns a claim by Ms Irene Bohan that Goyas discriminated against her on the ground of age contrary to Section(s) 6(2)(f) of the Employment Equality Acts 1998 to 2008, in terms of effecting her discriminatory constructive dismissal following an ageist remark.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 26 October 2007. A submission was received from the complainant on 2 September 2008. A submission was received from the respondent on 8 October 2008. On 28 August 2009, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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 this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 24 March 2010.
2. Summary of the Complainant's Written Submission
2.1. The complainant submits that she had been employed by the respondent for more than ten years when on 17 July 2007, a manager of the respondent's took her aside and said: "Perhaps your time in this business is up." The complainant took this to mean that she was too old to continue in her position. The complainant felt undermined by this remark, and felt she had no alternative but to resign her position. Accordingly, her claim is for discriminatory constructive dismissal on the ground of age.
3. Summary of the Respondent's Written Submission
3.1. The respondent denies making the alleged remark. It states that work practices were changed because a senior employee had resigned to relocate to another county, and that her work had been re-distributed among the remaining staff. The respondent submits that it had noted that the complainant was not happy with these new arrangements. On the day in question, Ms M. for the respondent approached the complainant to discuss the matter, saying that the arrangements agreed to were not working out, and what was wrong? According to the respondent, the complainant simply broke down in tears and refused to discuss the matter. On the following day, the respondent received a medical certificate.
3.2. The respondent submits that it does not know why the complainant left her employment, and that the complainant never complained about any aspect of her work over the course of a ten year working relationship.
4. Conclusions of the Equality Officer
4.1. The issue for decision in this case is whether the complainant was discriminatorily dismissed on the ground of age within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent.
4.3. At the hearing of the complaint, the complainant specified that the respondent said to her: "Maybe you have reached your threshold in catering. Maybe you are burnt out." The complainant confirmed that she left the respondent's business in tears and did not return to work. The complainant sent a letter of resignation to the respondent on 13 July 2007, making reference to "work related stress and deplorable working conditions". She made no reference to the alleged remark in the letter.
4.4. With regard to the date of the letter and the alleged date of the incident, it was accepted that there had been an error made on the complaint form, and that the conversation between complainant and respondent had taken place some days prior to 13 July 2007. There was no dispute between the parties that a conversation had taken place, which resulted in the complainant breaking down in tears and leaving the respondent's premises.
4.5. The complainant further confirmed that she had had no direct personal contact with the respondent after leaving the premises on that day, and that she never discussed with the respondent why the alleged remark upset her so much. According to the complainant, she felt unable to face the respondent. The complainant also specified that while working conditions had been stressful following some staff changes, this was not part of the matter of her complaint to the Tribunal. She confirmed that she had never complained to the respondent about the stress at work she was experiencing.
4.6. Under cross-examination, the complainant also accepted that the respondent had facilitated her request for seven week's leave, some of it unpaid, from October to December 2007, with the view of the complainant travelling to Australia with some family members. The complainant was facilitated with this leave request in May 2007, some two months before the working relationship ended.
4.7. The respondent is a sole trader who runs a café and cake shop in Galway. She stated in evidence that work had to be re-structured after another long-time employee left the business to return to her home county. Specifically, it was the production of the business's signature cake that fell to the complainant from then on. According to the respondent, she had observed that this new arrangement did not work well, and she approached the complainant to have a discussion about the matter. The respondent could not remember the exact words she used to open the conversation, but strongly disputed using either the words "threshold" or "burnout". The respondent further disputed alleged ageism and pointed out that she is older than the complainant (the age difference between the respondent and the complainant is five years.)
4.8. The respondent stated that she attempted to make contact with the complainant by mobile phone following the complainant's exit from the premises, but had no success. There was some dispute between the parties at the number of attempts that the respondent made to contact the complainant, but the complainant accepted that at least one attempt had been made.
4.9. The Labour Court, in the case An Employer v. A Worker (Mr O)(No. 2) [EED0410], has addressed the issue of constructive dismissal under the Acts comprehensively. It set out the main applicable tests, these being the "contract" test and the "reasonableness" test, and held that these tests may be used either in combination or in the alternative. I find that in the case on hand, the reasonableness test is the relevant one. This test asks whether the employer conducts its affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer. What can be regarded as reasonable or unreasonable depends on the circumstances of each case. However, it is an important element of the reasonableness test that the employer has an opportunity to address an employee's grievance or complaint.
4.10. Applying this test to the facts on hand, I find that the events that took place are not significant enough to meet the reasonableness test. The complainant may well have perceived the respondent's remark, whatever it was, as ageist, but a single remark in the context of a working relationship that had lasted close to ten years at that point, cannot be said to amount to conduct that is so unreasonable that a worker cannot expect to put up with it any longer. In this context, I also note the facilitation of the complainant's leave request, only a few weeks before the conversation (para 4.6 above), which supports the respondent's contention that she conducted herself reasonably with regard to the complainant's employment.
4.11. I further note that there is no dispute that complainant did not approach the respondent to clarify the matter in any way prior to her resignation, and therefore did not provide the respondent with an opportunity to address her grievance, and did not respond to the respondent's attempt or attempts to contact her.
4.12. For all of these reasons, I find that the circumstances which brought an end to the complainant's employment with the respondent do not amount to discriminatory constructive dismissal within the meaning of the Acts, and that her complaint must therefore fail.
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that Ms Emer Murray, t/a Goyas, did not discriminatorily dismiss the complainant on the ground of age pursuant to S. 6(2)(f), contrary to S. 8(6) of the Acts.
29 March 2010