Mr Martin Sweeney (Represented by the Equality Authority) vs John McHale Ltd (Represented by Howley Carter & Co., Solicitors)
1. BACKGROUND
Mr Sweeney believes his application for a position as a sawmill worker at John McHale Ltd.'s sawmill was rejected because he is a member of the Traveller community. The Equality Authority, although not having at the time decided on the grant of representation to Mr Sweeney, referred a complaint on his behalf under the Employment Equality Act, 1998 to the Director of Equality Investigations on 5th April, 2001. The Director delegated the complaint for investigation and decision to Raymund Walsh, Equality Officer on 18th April, 2001. The Equality Authority indicated on 10th January, 2002 that it would represent Mr Sweeney and on 19th June, 2002 furnished a submission on his behalf. The respondent's submission was received on 22nd August, 2002 and a hearing was held on 21st February, 2003. Further correspondence ensued up to 14th May, 2003, including correspondence with the employment agency involved in handling Mr Sweeney's job application.
2. SUMMARY OF COMPLAINANT'S CASE
The complainant responded to an advertisement (included at Appendix 1) with FÁS (the state employment agency) for vacancies as saw mill workers in the Sligo area. FÁS referred Mr Sweeney to a private recruitment agency (Atlanco Services) retained by the respondent to fill the vacancies, to whom he sent his CV. When Mr Sweeney contacted the employment agency some time later he was informed that his CV had been forwarded to the respondent but that the respondent remarked to the effect that the complainant was one of the Sweeney's from Sligo and was not acceptable for work with the sawmill. In subsequent correspondence with the Equality Authority, the employment agency stated that it would not have forwarded Mr Sweeney's CV to the respondent if it did not consider that he was suitable for the position. The Equality Authority at the hearing rejected the respondent's defence that it was looking for foreign workers and stated that the respondent could not present another discriminatory ground as a reason for not considering Mr Sweeney's application.
3. SUMMARY OF THE RESPONDENT'S CASE
The respondent states that it is a saw mill of long standing and that it has found local labour unsuitable for the work at the saw mill. The work is laborious and repetitive with a high turnover of staff and it was not unusual for local job applicants not to turn up for interview. The respondent states that it was aware from its contacts in the industry that other saw mills were recruiting foreign workers who settled into the work very well and that it was in this context that it retained the services of the employment agency with specific instructions to recruit foreign workers, with or without sawmill experience. The respondent had in mind workers from Latvia and other non-EU countries. The respondent states that the employment agency acted outside its instructions in placing a notice with FÁS and that if it had wanted to recruit local workers it could have placed an advertisement with FÁS itself. The saw mill subsequently retained the services of another employment agency and has recruited several foreign workers, mainly from Latvia, who had previous timber experience. The respondent found them very hard working and able to do the tasks allotted to them. The respondent states that they were employed on one year work permits.
4. CONCLUSION
4.1 Having heard the evidence in the above complaint I am satisfied that, on the balance of probabilities, the complainant was summarily turned down for a position with the respondent saw mill because of his membership of the Traveller community. The representative of the employment agency who dealt with Mr Sweeney at the time of his job application no longer works there, nor had the employment agency any record of instructions it had received from the respondent with regard to how the vacancies were to be filled or of its dealings with Mr Sweeney. I am satisfied however that when the employment agency registered the vacancies with the FÁS office in Sligo it sought to recruit applicants in the area. In any event I consider it untenable that a respondent should effectively seek to rely on another discriminatory ground under the Act i.e. the race ground, for its reason for not recruiting a member of the Traveller community. The respondent has stated that it wanted to recruit foreign workers either with or without experience and there is no evidence that the respondent looked into Mr Sweeney's previous experience or suitability for the job. The respondent produced no evidence to suggest that Mr Sweeney would not have been suitable for the position.
4.2 I am satisfied that the complainant has adduced prima facie evidence that the reason for the rejection of his job application by the respondent was his membership of the Traveller community and that the burden of proof must shift to the respondent to show that there were other non-discriminatory reasons for the rejection. I am satisfied that the respondent has failed to discharge that burden.
5. DECISION
5.1 I find that the respondent discriminated against Mr Sweeney on grounds of his membership of the Traveller community contrary to Employment Equality Act, 1998 when it failed to consider his application for the position of saw mill worker.
5.2 I order that the respondent pay to the complainant compensation in the amount of €3,000 for the distress that he has suffered because of the discrimination. In deciding on a compensation amount I am bearing in mind that the vacancy in question was an unskilled labouring position.
Raymund Walsh
Equality Officer
11 November, 2003