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July News from the courts

Age discrimination claim over severance deal ruled ‘out of time’

Legal actions alleging discrimination, brought by two former employees of Dundalk Packaging, a Diageo Group plant which closed in 2001, have been dismissed by the Equality Tribunal.

The claimants alleged that they had been disadvantaged by the terms of the redundancy agreement concluded at the time on the ground of age and that they were subjected to a form of continuing discrimination.

“The only form of actionable discrimination of which the complainant could complain is in relation to the conditions of his employment. Logically, such discrimination could only arise when a complainant is actually in employment. In this case, the Complainant ceased to be employed by the respondent on 23 February 2003 and any discrimination upon which he could ground a claim for redress under the Act could only have occurred before that date. This would clearly place his claim outside the time limit.”

The claimants, Davy Byrne and Aidan O’Hanlon, availed of a redundancy package arising out of the closure of Dundalk Packaging in 2001. The terms of the package varied depending on the age of the employee. One set of arrangements applied to employees who had reached the age of 45 by the end of 2002. Those aged between 45 and 49 as at December 31, 2002, received full VHI and medical benefit until they became eligible for a pension at age 50. They were entitled to choose between a number of options in relation to their pensions.

All other employees – the claimants included – received a lump sum payment based on service and a deferred pension at retirement age. Mr Byrne received a lump sum of just under €182,000 while Mr O’Hanlon received just over €178,000.

The claimants contended that the facts disclosed prima facie discrimination on the grounds of age. The respondent failed to afford the same treatment to them and continued to do so.

The respondent accepted that victimisation could occur after the employment relationship has ended (for example, through the supply of poor job references), but pointed out that in this case, the claimants had withdrawn their victimisation claims.

It was pointed out that section 34 of the Acts must be construed in the light of Article 6 of the Framework Directive, where it is stated that difference in treatment on the grounds of age will not constitute discrimination where it is “objectively and reasonably justified by a legitimate employment policy and vocational training objectives, and if the means of achieving that aim are proportionate and necessary.”

Bus driver’s unfair dismissal claim over €20 shortfall rejected

A bus driver who took cash from customers without issuing tickets, leaving his employer with a shortfall of €20, has lost his unfair dismissal claim.

According to the Employment Appeals Tribunal, the evidence of the claimant, Paul McGarrigle, was “imprecise, inconsistent and implausible”.

It added: “The Tribunal is critical of the practice whereby the Respondent’s drivers are required to handle cash in this manner. But this is of secondary importance in this case.”

“The Tribunal is also unhappy with the failure of the Respondent to interview its two Inspectors (the people who discovered the cash discrepancy) before reaching a decision to dismiss the claimant. However, in light of the fact that the Claimant did not take issue with the contents of the inspectors’ reports, this shortcoming is not significant.”

The EAT concluded that it was satisfied that the claimant “acted in a grossly improper manner and that this behaviour gave rise to a breach of trust and confidence which gave the Respondent no option but to dismiss him”.

The claimant was employed by Dublin Bus in 2000. The first ten years or so of his employment were “uneventful”. On June 14, 2010, the claimant was operating the 53B bus route between the North Wall ferry port and Busaras, when two inspectors boarded it. As the route is geared to ferries, it is an irregular service. As a result, it is operated by drivers on a voluntary overtime basis.

Another unusual feature is that the fare is not put directly by passengers into a cash box, but is tendered to the driver who will, if it is available, give change to customers. Passengers are supposed to be given a ticket by the driver as they board the bus.

When the chief inspector checked the ticket machine, it revealed the issue of 19 tickets in the course of the journey. A check of the 35 passengers confirmed that 16 of them had not been issued with tickets. All of the 16 told the inspector that they had paid and had received change.

The driver said that he had not given tickets to all the passengers as they were owed change. Six of the 16 then approached the claimant, who issued them with tickets without any money changing hands.

Once all the passengers had alighted, the chief inspector informed the claimant that he was suspended with pay with immediate effect for taking cash and not issuing tickets. The claimant declined to count the money until a Garda was present.

The count revealed a total of €135.50, of which half was from the previous journey, leaving a balance of €67 from the 35 passengers. This represented a shortfall of some €20.

A disciplinary meeting was conducted by the area operations manager. The claimant’s position was that he had received insufficient training in the handling of cash, and of foreign currency, in particular.

The operations manager ascertained that the claimant had done the ferry overtime on 16 occasions over the previous ten months. The operations manager concluded that the claimant had “deliberately defrauded” the company and that it was a “blatant case of gross misconduct”.