SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015
JEWEL STAR DESIGNS LTD
(REPRESENTED BY VENETIA TAYLOR, B.L., INSTRUCTED BY MICHAEL TRACEY & CO. SOLICITORS)
- AND -
Chairman: Ms O'Donnell
Employer Member: Ms Connolly
Worker Member: Mr McCarthy
1. Appeal of Rights Commissioner's Decision DEC-E2016.
2. The Respondent appealed the Rights Commissioner's Decision to the Labour Court on the 19th December 2016, and a Labour Court hearing took place on the 4thApril 2019.
This is an appeal by Jewel Star Designs Ltd (the Respondent) against decision DEC-E2016-146 of an Adjudication Officer which issued on the 8thNovember 2016. Glenn Sheppard (the Complainant) made a complaint of discrimination and discriminatory dismissal on the grounds of age pursuant to the Employment Equality Acts 1998-2015 (the Act). The Adjudication Officer upheld the complaint and awarded the Complainant compensation of €12,500. The Notice of Appeal was received by the Court on the 19thDecember 2016. The parties are referred to in the within determination as they were at first instance.
The Complainant commenced employment with the Respondent on the 26thday of November 2014 and his employment terminated on the 12thDecember 2014. It is agreed between the parties that the Complainant was offered and accepted a contract of employment to work for the Respondent as a full-time Production Engineer on the 18thNovember 2014. The Complainant’s place of employment was the Respondent’s premises in Eustace Street, Temple Bar, Dublin 2. His starting salary was €21,000 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 gave evidence on his own behalf and submitted to the Court that he was informed that initially he would be taking notes, observing and familiarising himself with the surroundings but that is not what occurred. It was his evidence that after the first day he was told by Mr Knowles a director of the Respondent company to stop taking notes and concentrate fully on what he Mr Knowles was saying. He was also instructed to stop asking other members of staff what they were doing and just get on with his own work.
It is the Complainant’s evidence that he was told that a jeweller’s bench had been ordered and that it would take approximately three weeks for it to arrive. He stated that he was directed by Mr Knowles to carry out manufacturing duties without the assistance of a jeweller’s bench.
The Complainant submitted to the Court that on the 10thDecember 2014 Mr Knowles asked him how old he was and said he thought he was thirty-nine. It is the Complainant’s evidence that he told Mr Knowles that he was forty-eight. At that point the Complainant alleges that Mr Knowles stated “if I had known your age I would not have hired you, I think Glen is too old to work here we don’t want old people”
The Complainant further submitted that on the 12thDecember he was called into the office and told by Mr Knowles that his probationary period was being reduced to one month. He was also told that there were other applicants for the position he was in.
The Complainant queried with Mr Knowles why he was in full production and had not received any training or a settling in period.
It is the Complainant’s evidence that at that stage Mr Knowles asked him to leave and said, “we don’t want you working here anymore”. He then asked if he was being fired and Mr Knowles said yes.
It is the Complainant’s evidence that he then asked Mr Knowles to clarify in writing the reason for firing him and that Mr Knowles refused to do so. The Complainant then went back into the workshop collected his things and said goodbye to the other worker and walked out.
In the course of cross examination, the Complainant accepted that he had chased this particular job and that the Respondent would have known his age from his C.V. It was also put to him that the initial interview had lasted forty-five minutes and that they had discussed non-work-related issues including discussing both their families. The Complainant accepted this.
It was put to him in cross examination that there were issues with his timekeeping in the short time that he worked for the Respondent. The Complainant denied this and stated that he had a good relationship with Mr Nunkoo who was head Goldsmith and his supervisor.
In relation to the incident on the 10thDecember 2014 the Complainant stated in response to a question that he was working on the bench alongside Mr Nunkoo when the incident happened. However, when the conversation was over, and Mr Knowles walked away he did not discuss it with Mr Nunkoo nor did he raise it the next day. In relation to the incident on the 12thDecember 2014 it was the Complainant’s evidence that he was called into the office around lunchtime or just after lunch. Both himself and Mr Knowles were sitting down when Mr Knowles said, “you’re finished”. He the Complainant was shocked, but he collected his things and left.
Mr Knowles managing director of the Respondent and Mr Nunkoo the Respondent’s chief Goldsmith both gave evidence on behalf of the Respondent.
Mr Knowles in his evidence to the Court confirmed that he had interviewed the Complainant. The interview had taken place in his office and had been informal. He had gone through the Complainant’s CV with the Complainant and outlined what they work would entail. It was his submission to the Court that he had informed the Complainant that initially he would not be working on “production” that he would be involved in preparing jewellery for polishing, taking notes, taking instruction in simple tasks and familiarising himself with the various tools.
It was Mr Knowles evidence that there were two serious contenders for the job at the final stage and that he had selected Mr Knowles as he felt he was a good fit for the business. It was Mr Knowles evidence that he was always aware of Mr Knowles age but that it was not relevant. In support of his statement that age was not an issue for him he informed the Court that the unsuccessful applicant for the job had been younger than the Complainant.
It was Mr Knowles evidence to the Court that issues in relation to the Complainant’s timekeeping arose as early as the second day of his employment when he was ten minutes late arriving for work. A few days later on the 2nd December 2014 he was eight minutes late for work and on the 3rdDecember 2014, he was 11 minutes late returning from lunch. On the 5thDecember 2014 Mr Knowles spoke to the Complainant about his time keeping and stressed the importance of being on time. It is Mr Knowles evidence that by this time Mr Nunkoo had raised some concerns with him in relation to the Complainant taking an interest in the processes he was being showed.
In relation to the incident of the 10thDecember 2014 Mr Knowles has no recollection of any engagement/discussion on that day or any other day in relation to the age of the Complainant and denies that he made the statement being attributed to him.
Mr Knowles confirmed to the Court that he had called the Complainant into his office on the 12thDecember 2014. It was his normal practise to have a one-on-one chat with staff on a Friday. When the Complainant came into the office he asked him how he thought he was getting on and it was Mr Knowles evidence that the only answer he received was a grunt. It is Mr Knowles evidence to the Court that he raised the issue of Complainant’s time keeping and an issue relating to timers that had occurred earlier in the week. In response the Complainant said, “who do you think you are speaking to me like that, when transport is paid for I would be better off on social welfare.” It is Mr Knowles evidence that the Complainant then leant forward towards him. Mr Knowles then told the Complainant to calm down. The Complainant asked him if he was sacking him and the Complainant stormed out banging doors. It was Mr Knowles evidence that he sacked the Complainant because of his aggressive behaviour in the office.
The Complainant then cross-examined Mr Knowles in relation to his evidence and put it to Mr Knowles that he had not acted aggressively or in the manner described. Mr Knowles stood by his evidence. In response to a question from the Court Mr Knowles stated that the meeting was informal and that they were both standing up but after about five minutes the mood of the meeting changes when the Complainant became aggressive.
Mr Nunkoo the Respondent’s chief goldsmith in his evidence stated that the Complainant did not do any production work. However, he would have practiced on some defective pieces. It was Mr Nunkoo’s evidence that the Complainant did not show much interest in the work and spent a lot of time on his phone and drinking coffee.
Mr Nunkoo had no recollection of the incident on the 10thDecember 2014 or any discussion in relation to the Complainant’s age.
In respect of the incident on the 12thDecember 2014 Mr Nunkoo could hear the Complainant and Mr Knowles arguing but could not hear exactly what they were saying. It was his evidence that both voices were raised, and that the Complainant was swearing. Mr Nunkoo then heard the Complainant running up the stairs and saying, “let me out”. He presumed that was because for security reasons the doors are kept locked.
The Complainant had no cross examination for Mr Nunkoo.
It is the Respondent’s case that the Complainant was dismissed because of his aggressive behaviour and that there was no issue in relation to his age.
The applicable law
Section 85A of the Act provides for the allocation of the probative burden as between parties. Subsection (1) of that section provides: -
- “(1) 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 established test for deciding if the probative burden shifts by application of this subsection is that formulated by this Court inSouthern Health Board v Mitchell E.L.R. 201. Here the Court considered the extent of the evidential burden that a Complainant must discharge before the respondent is fixed with the burden of proof. The Court held: -
- “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”.
The Court later elaborated on the application of that test in Determination EDA0821,Cork City Council v McCarthyand commented as follows:
- “The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”
The Complainants submitted to the Court that the statement on the 10th December 2014 indicated a bias by the Respondent in relation to age when the Complainant told Mr Knowles his age. There is a clear disagreement between the parties as to whether the incident on the 10th ever occurred. Mr Nunkoo who the Complainant states he was sitting beside at the time of the incident has no recollection of the alleged exchange. No other age incident apart from the dismissal itself was cited by the Complainant. In relation to the dismissal the Complainant in his evidence did not identify any link between his age and his dismissal.
As set out by the Court in Southern Health Board v Mitchell  E.L.R. 201 cited above it is for the Complainant to establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. It is the opinion of the Court in the instant case, no such facts were established. As the Complainant, has failed to establish a prima facie case of discrimination on the grounds of age the appeal must fail.
For the reasons set out herein, the Court is satisfied that the Complainant was not discriminatorily dismissed on the grounds of age. The Respondent’s appeal succeeds. The Decision of the Adjudication Officer is overturned.
The Court so decides.
Signed on behalf of the Labour Court
13th May 2019Deputy Chairman
Enquiries concerning this Determination should be addressed to Carol Hennessy, Court Secretary.