Ms. Leslie (complainant) Represented by SIPTU vs Dublin Airport Authority (formerly Aer Rianta) (respondent) Represented by IBEC
Equality Officer Decision DEC-E2005-050 (Coyle G.) 18th October, 2005
Employment Equality Act, 1998 Sections 6, 8 and 74(2) - Employment - Promotion - Age - Victimisation
Background:
The complainant is an employee of the respondent organisation attached to the Operations Business Data Section. She applied for the promotion position of Senior Administrator in the Operations Business Data Section but was unsuccessful in her application. The complainant alleges that the reason for her failure to be appointed to the promotion position was because of her age. The respondent denies this allegation. The complainant further alleges that she was subjected to bullying, harassment, intimidation and discrimination after she referred her claim of age discrimination to the Equality Tribunal. She set out a number of examples of this bullying, harassment, intimidation and discrimination. The respondent also denies these further allegations and notes that the complainant failed to raise these complaints through its 'Respect and Dignity at Work' policy.
Conclusions and Decision:
The Equality Officer found that the complainant had failed to establish a prima facie case of discrimination on the grounds of age when she was unsuccessful in her application for promotion to the position of Senior Administrator in the Operations Business Data Section of the respondent organisation. The Equality Officer noted that her allegation of bullying, harassment, intimidation and discrimination which occurred after the complainant referred her allegation of age discrimination to the Equality Tribunal was in fact a claim of victimisation in terms of Section 74(2) of the Employment Equality Act, 1998 (and in some instances the Employment Equality Acts, 1998 and 2004) which took the form of bullying, harassment, intimidation and discrimination. The Equality Officer held that the complainant failed to establish a prima facie claim of victimisation.
Cases Cited:
Labour Court Determination - Waterford Institute of Technology and Kathleen Moore-Walsh - EDA042
1. DISPUTE
1.1 The dispute concerns a claim by SIPTU, on behalf of Ms. Leslie, against the Dublin Airport Authority (formerly Aer Rianta) that she has been discriminated against on the grounds of age within the meaning of Sections 6(1) and 6(2)(f) of the Employment Equality Act, 1998 and in contravention of Section 8 of that Act when she was not appointed to the position of Senior Administrator in the respondent organisation. She also alleges that she was subjected to bullying, harassment, intimidation and discrimination under the provisions of the Employment Equality Act, 1998 and 2004.
2. BACKGROUND
2.1 The complainant is an employee of the respondent organisation attached to the Operations Business Data Section. She applied for the promotion position of Senior Administrator in the Operations Business Data Section but was unsuccessful in her application. The complainant alleges that the reason for her failure to be appointed to the promotion position was because of her age. The respondent denies this allegation. The complainant further alleges that she was subjected to bullying, harassment, intimidation and discrimination after she referred her claim of age discrimination to the Equality Tribunal. She set out a number of examples of this bullying, harassment, intimidation and discrimination. The respondent also denies these further allegations and notes that the complainant failed to raise these complaints through its 'Respect and Dignity at Work' policy.
2.2 The complainant referred her complaint of discriminatory treatment on the grounds of age to the Director of Equality Investigations on 15th October, 2003 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the claim to Gerardine Coyle, Equality Officer on 13th October, 2004 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. In her submission the complainant made allegations of bullying, harassment, intimidation and discrimination which resulted from her making a claim of age discrimination to the Equality Tribunal. Following receipt of both submissions a joint hearing took place on 27th September, 2005. Additional information was received from the parties and the final information was received on 12th October, 2005.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant commenced her employment career in the Civil Service in 1965. She was employed there for 25 years starting in a Clerical capacity and getting promoted to a management position. After 25 years service the complainant had to give up work for family reasons. Then in 1998 she joined the respondent organisation being employed initially on a contract basis and then on a permanent basis from 2000. It is the complainant's submission that she outlined her management experience to the Human Resources Recruitment Manager upon taking up employment.
3.2 The complainant noted that she applied for promotion by competition for a number of staff vacancies but she was unsuccessful in her applications. However when she was unsuccessful in her application for the position of Recruitment and Selection Officer she began to question the transparency of the respondent's promotion system. According to the complainant the person appointed to the Recruitment and Selection Officer position had relatively little experience of Human Resource practices. The complainant says that this lack of fairness and transparency in interviews was further compounded when she discovered that, in another competition, none of the twelve applicants were deemed suitable thus enabling the Manager to actively pursue candidates of her choice for promotion. The complainant contends that this mechanism of promotion only fosters a climate where discrimination can flourish.
3.3 It is the complainant's submission that on 14th May, 2003 she was asked by the Operations Business Data Manager to read a Staff Vacancy Notice (SVN) for the position of Senior Administrator. The complainant states that she referred to the use of the word 'supervisor' as being outdated practice. According to the complainant the Operations Business Data Manager said that it was a supervisor of work and not of people that he envisaged. The complainant says that she asked the Operations Business Data Manager how he saw the Senior Administrator post developing and he stated "I see the role suiting a young dynamic person who wants to make a name for themselves in the Company".
3.4 According to the complainant she returned to her office and informed the other staff of her conversation with the Operations Business Data Manager and the general consensus was that she was wasting her time going for interview. The complainant applied for the Senior Administrator position and notes that she was the only applicant with experience in the area. The complainant was unsuccessful in her application and, according to herself, the successful candidate fitted the profile of being young and dynamic. The successful candidate was, fifteen months later, promoted to a Manager II post.
3.5 The complainant attended an interview feedback meeting with one of the interviewers. She was unhappy with the feedback comments in relation to unacceptable levels of Staff Leadership, planning the work of others, reporting expertise and system development. Following her feedback meeting the complainant wrote to the respondent requesting interview notes under the provisions of the Employment Equality Act, 1998 but this information was not forthcoming. The complainant refers to the respondent's policy on the development of skills as outlined in its Employee Handbook and notes that one of the suggested learning and development processes is through work experience. In this regard the complainant notes that she has sought a transfer to other areas of the organisation and has been told that transfers can only be facilitated through internal vacancy competitions. The complainant contends that she was discriminated against in this process.
3.6 The complainant also alleges that she has been subjected to bullying, harassment, intimidation and discrimination (after she referred her claim of age discrimination to the Equality Tribunal) in the following ways:
(i) Departmental/Procedural Changes
The removal of a sense of responsibility and management of a particular airline account by the Operations Business Data Manager with daily work being passed to the Senior Administrator for checking purposes with the added stipulation of inserting commencement and completion times. The complainant submits that this procedure had all the hallmarks of undermining ability.
(ii) Annual Leave
It is the complainant's view that there was evidence of bullying in the Operations Business Data Manager's controlled domination response to even simple requests. In relation to the taking of annual leave the complainant states that requests for annual leave had to be directed to the Senior Administrator. When the complainant sought a day's leave the Senior Administrator told her that she would revert to her in a couple of days after consulting with the Operations Business Data Manager. Furthermore when the complainant sought leave to attend a family funeral she had to email Human Resources in the matter when it appeared to her that this leave might not be approved. It is the complainant's contention that the granting of leave was a big issue for her and another staff member who had just returned from maternity leave. However newer staff members, who had been approached to join the area by the Operations Business Data Manager, were allowed to do as they pleased.
(iii) Office Radio
The complainant states that another incident of bullying related to the provision of a radio in the office. A staff member suggested that the office ought to have a radio and a request was made to the Operations Business Data Manager who agreed to the request on condition that it was used for background music. According to the complainant the radio was tuned into FM104 and played loudly from early morning until close of business. As a result she constantly went home suffering from blinding headaches.
(iv) Overcharging Error
The complainant says that on 22nd June, 2004 the Operations Business Data Manager came into the office at 2.30p.m. and approached her desk. He handed her a copy of an email and he loudly proclaimed that she had made an error and because of the fiscal amount involved a written explanation would be required to be passed to a higher level. According to the complainant his tone of voice and whole demeanour was not, in her opinion, conducive to a harmonious working relationship. She notes that no other staff member has been asked to provide a written explanation when they made mistakes.
(v) Incident of Intimidation
The complainant states that on 1st and 2nd September, 2004 there was an incident of intimidation. The Operations Business Data Manager sat at a vacant desk beside her where he proceeded to work on the computer. The position of the computer on the desk meant that the Operations Business Data Manager had his back to her. However he moved the computer in such a way that he faced the complainant. She says that when he was not working on the computer he was sitting with his arms folded staring at her. According to the complainant this happened on a number of occasions over the two days and she found it very intimidating.
(vi) Withholding work
The complainant also states that there have been a number of incidences of discrimination in work not been assigned to her.
3.7 The complainant states that in October, 2004 she met with the respondent's Equality Officer whom she alleges told her that, as she had not followed company procedures in relation to the bullying/harassment issues, her case would fall. It is the complainant's submission that when she told the respondent's Equality Officer that she had taken legal advice on the harassment issue the respondent's Equality Officer said that if she followed the legal route she would have to pay her own and the company's costs. The complainant alleges that the respondent's Equality Officer's demeanour was one of intimidation rather than counselling. According to the complainant the respondent's Equality Officer suggested that she seek redeployment. The complainant states that she was surprised at this given the respondent's refusal on previous occasions to accede to this request.
3.8 The complainant states that the respondent did offer her another position in a new area of work at her existing grade. It is the complainant's submission that the respondent had previously stated that redeployment would only be considered if the promotion claim was dropped. The complainant met with the manager over the new work area and following a discussion with her considered the work to be data input and filing. Having visited the work area the complainant declined the offer of redeployment to this position. Subsequently in November, 2004 the complainant met with the Director of the respondent organisation at his request to discuss her refusal of the redeployment offer. It was agreed that the Director would furnish, in writing, the career path that would be available to the complainant in the new work area if she accepted redeployment. It is the complainant's submission that other staff seeking transfers/redeployments have been given a number of options to choose from and have been accommodated in the areas of their choice even if it meant surplus staff in the area.
3.9 The complainant notes that, at no time, in her career in the respondent organisation has she been told that her work was unsatisfactory. In terms of redress the complainant asks to be upgraded to a management role retrospectively to, at least, May, 2003. In addition she is seeking compensatory redress as a consequence of the bullying, harassment, intimidation and discrimination.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent rejects the complainant's allegations that she was discriminated against on the grounds of her age. The respondent notes that the position of Senior Administrator was filled by the respondent through an internal recruitment process involving both a competency based structured interview conducted by the Operations Business Data Manager and the Employment Administration Manager and an aptitude test. The respondent states that all candidates were scored, weighted and ranked in accordance with their performances during the process. The applicant ranked first was appointed to the position and the complainant was ranked in sixth position.
4.2 The respondent says that the Operations Business Data Manager shortly after his assignment to this position, engaged in a discussion with the complainant about the work area in general. During the discussion the respondent states that the complainant informed the Operations Business Data Manager that she did not wish to remain in this area but she would wish to pursue a career in Human Resources because she had recently completed a degree in Sociology. According to the respondent the complainant expressed disappointment at the feedback she received following her unsuccessful application for the position of Recruitment and Selection Officer. At her request the Operations Business Data Manager reviewed the written feedback and they discussed some of the negative comments. The respondent states that the Operations Business Data Manager offered to assist the complainant in whatever way possible including the development of her presentation skills.
4.3 Shortly after his appointment the Operations Business Data Manager identified the need for a senior administration role to oversee the day-to-day workings of the area and to allow him to take a more strategic role within the Section. Having received approval for the role a suitable Staff Vacancy Notice (SVN) was drafted. The Operations Business Data Manager decided to discuss the contents of the SVN with the complainant because of her years of experience in the area and he considered that she could provide valuable and important views on the content of the notice.
4.4 On 14th May, 2003 the respondent says that the Operations Business Data Manager invited the complainant to a meeting to discuss the SVN. The complainant agreed but reminded the Operations Business Data Manager of her interest in pursuing a career outside this work area. She also informed the Operations Business Data Manager that she would not be applying for the Senior Administrator position. According to the respondent the complainant made some suggestions on the SVN and following this the conversation moved to a broader discussion of the position.
4.5 Issues discussed included how the complainant would feel about being responsible to the successful applicant and she saw no difficulty with this. The supervisory style appropriate to the Senior Administrator position was discussed, etc. The Operations Business Data Manager explained that he envisaged the successful applicant working long hours for the initial 6 months in the role. The respondent says that the complainant disagreed with staff working long hours due to the potential effects on family life. She explained that, in her view, the Senior Administrator role would suit a "young dynamic person". The complainant noted that she herself had to meet a series of deadlines earlier in the year and she believed that the pressure of achieving them had affected her health. In response the respondent says that the Operations Business Data Manager expressed his view that a person's health should not be put at risk to meet deadlines and in the light of the complainant's experience he could see why she formed the view that the role would suit a "young dynamic person". The respondent says that the Operations Business Data Manager asked the complainant to consider assisting him in developing a training programme for new staff to the area. He felt that this would provide the complainant with an opportunity of developing her presentation skills and she agreed to consider the request.
4.6 After the position was advertised the respondent says that a colleague in the Operations Business Data Section mentioned the fact in the presence of the Operations Business Data Manager and the complainant. The complainant remarked 'yes, we are looking for a young dynamic person, aren't we, John?" (this reference to John was to the Operations Business Data Manager) and in response the Operations Business Data Manager commented 'your words, not mine, Mary" (back to the complainant). The complainant, despite having said that she was not interested in remaining in the Operations Business Data Section and that she was not interested in the Senior Administrator post, did apply for the position. She told the Operations Business Data Manager that the reason she applied was that if she didn't, Human Resources might view this in a negative way.
4.7 Prior to the commencement of the recruitment process the respondent says that the interview board members (i.e. the Operations Business Data Manager and the Employment Administration Manager) met to discuss the selection process. They agreed to utilise an aptitude test to examine accuracy and attention to detail and a competency based structured interview. The following seven key competencies were identified as being key to the successful performance of the role, namely:
(a) Commitment/Interest
(b) Staff Leadership/Supervision
(c) Deadline Orientated
(d) Systems Development
(e) Procedures
(f) Reporting Expertise
(g) PC Skills
The interview board members attached various weightings to the competencies depending on their importance to the role with greater weightings being given to (c), (d) and (e) above. Each candidate would be scored, weighted and ranked in accordance with the answers provided to both the questions asked at the interview and their performance at the aptitude test.
4.8 There were a total of seven applications for the post. One candidate withdrew their application subsequently. At interview all candidates were examined against the pre-established criteria/competencies and all were asked the same questions. The interview structure for all candidates was the same with the Employment Administration Manager welcoming the candidate, outlining the order of the questions and explaining to the candidate how a competency based structured interview operated before proceeding with the pre-prepared questions.
4.9 The respondent notes that the complainant at the end of her interview put one question to each of the interviewers. She asked the Employment Administration Manager about the usefulness of the competency based structured interviews. Then she asked the Operations Business Data Manager "what part of the job requires someone who is young and dynamic ... what part would I not be able to do with my zimmer frame?" According to the respondent the Operations Business Data Manager stated that he had never said that the job required a 'young' person.
4.10 Following the selection process the Senior Administrator position was offered to the highest marked candidate. The complainant was ranked last of the six candidates. She attended a feedback session with the Employment Administration Manager. At this feedback session the complainant was informed of both the positive and negative aspects of her performance and she was provided with a written summary in this regard. The respondent says that during the feedback session the complainant expressed the view that there was no need for a Senior Administrator post in the Section and she also stated that she did not wish to remain in the Section. According to the respondent the complainant outlined her disappointment with the feedback. The Employment Administration Manager discussed various developmental options with the complainant and advised her to speak with her manager regarding the implementation of these. In conclusion, therefore, the respondent denies that it discriminated against the complainant on the grounds of age.
4.11 In relation to the complainant's allegation of bullying, harassment, intimidation and discrimination the respondent noted that these allegations were made since the referral of the claim alleging age discrimination. The respondent notes that it was not aware of these further allegations until after receipt of the complainant's submission. As a result these allegations were not processed through the respondent's 'Respect and Dignity at Work' policy.
4.12 In relation to each of the complaints made the respondent makes the following response (see Summary of the Complainant's Submission, paragraph 3.6 above refers):
(i) Departmental/Procedural Changes
The respondent says that to address the various problems identified within the Operations Business Data Section the newly appointed Manager found it necessary to develop and enhance existing procedures as well as introduce new ones. These procedures were developed in consultation with staff and had the objective of improving the controlling and monitoring of the data and ensuring that all data was accurate, complete and passed into billing and other systems in a timely fashion. The checking of data by the Senior Administrator and by the staff was a further validation and monitoring of data to ensure accuracy and quality and was not a means of monitoring staff performance. According to the respondent the introduction of the procedures has worked well resulting in a 60% reduction on 31+ days debt, reduced airline customer queries and has substantially improved customer confidence in the charging process. The respondent notes that none of the staff, including the complainant, raised any concerns with the new procedures. It is the respondent's view that the procedural changes were necessary and cannot be considered to be 'bullying, harassment, intimidation and discrimination'.
(ii) Annual Leave
The respondent says that decisions on the granting of requests for annual leave are made having regard to the Business Needs of the Section. Annual leave is granted to staff as long as reasonable notice is given, the Section is otherwise sufficiently resourced and the leave sought does not fall on days already identified as critical periods e.g. year-end, go-live, system upgrades, system testing. According to the respondent the complainant has been accommodated with annual leave requests and on a number of occasions at short notice. The respondent says that on 29th September, 2003 the Operations Business Data Manager asked all staff to provide details of their intended annual leave until the end of the year and the complainant failed to respond. Yet, on the last working day before that Christmas she sought leave for the entire Christmas and New Year period and this leave was granted. The respondent says that on 24th February, 2004 the complainant sought to take leave the following day and this clashed with a 'go-live' day for a system upgrade. According to the respondent other staff had been refused leave for that day and the respondent is satisfied that the complainant was well aware of the 'go-live' date as it had been changed from the 24th to 25th February to facilitate her attendance at a ½ day Stress Management course. On her return from the course at 2.15p.m she requested a day's leave for the following day from the System Administrator who indicated that because it was a 'go-live' day she would have to check with the Operations Business Data Manager when he returned for a meeting. The respondent says that at 2.55p.m. the complainant repeated her request and indicated that she had to attend a funeral. The System Administrator then emailed the Operations Business Data Manager about the request but he was still detained at a meeting. The Operations Business Data Manger returned from the meeting at approximately 3.00p.m. and responded to the email approving the leave. According to the respondent the complainant has never been refused a request for annual leave and the respondent organisation has endeavoured to accommodate her even at short notice. The respondent considers this complaint to be without foundation and it cannot be considered to be 'bullying, harassment, intimidation or discrimination.
(iii) Office Radio
The respondent states that a member of the Section staff requested permission, on behalf of the Section, for a radio. The Operations Business Data Manager granted the request and set out in writing guidelines for its use. It was clear that the radio was to be introduced initially on a trial basis to air background music. If the radio posed a problem or caused friction it was made clear that it would be removed. The respondent notes that the complainant never made any complaints about the radio, the volume at which it was set or the fact that it was causing her headaches of an extreme nature. It is the respondent's view that this allegation is without foundation and cannot be considered to be 'bullying, harassment, intimidation and discrimination'.
(iv) Overcharging Error
The respondent states that on 9th June, 2004 the complainant incorrectly entered details of a new Aer Lingus aircraft into the Company Billing System. She inputted the weight of the aircraft as 230 tonnes instead of 74 tonnes resulting in Air Lingus being overcharged to the amount of €16,000. Given this amount the Company procedures requires the signature of the Director of the Airport on a credit memo to rectify the overcharge. Prior to seeking the Director's signature a written explanation was sought from the complainant. In circumstances such as these the respondent says that written explanations are sought on why the error occurred and to ensure, as far as possible, that similar errors do not arise in the future. Having received her explanation the respondent says that the matter was pursued no further with her. In seeking an explanation from the complainant the Operations Business Data Manager denies that he raised his voice to her and he is satisfied that his tone and demeanour were not in any way remarkable and the complainant did not comment on or object to his approach at the time. The respondent takes the view that the manner in which the matter was dealt with was entirely appropriate and cannot be considered to be 'bullying, harassment, intimidation and discrimination'.
(v) Incident of Intimidation
The respondent states that the Operations Business Data Manager received a request for very specific and complex data from a senior manager on 31st August, 2004. The data was required for a high level management meeting 3 days later. It was necessary for the Operations Business Data Manager and the Senior Administrator to dedicate themselves exclusively and intensely to this task. According to the respondent the Operations Business Data Manger was required to work closely with and in close proximity to the Senior Administrator. Hence over a 2 day period the Operations Business Data Manager based himself in the general office and occupied a vacant desk, which was next to the complainant, convenient to the System Administrator and beside a specific printer he needed to use. The computer on the desk was positioned to the left with the mouse on the right (a typical position for a right-handed person). As the Operations Business Data Manager is left-handed he re-arranged the position of the computer to suit his natural preference. Given the nature of the work the Operations Business Data Manager did not use the computer continuously but had periods of quiet reflection and thought given the complex and precise nature of the work involved. The respondent states that the Operations Business Data Manager objects in the strongest terms to assertions that he was doing anything other than compiling, under serious time pressure, complex specific data. It is the respondent's view that the Operations Business Data Manager's actions have been misrepresented by the complainant and cannot be considered as being intimidation.
(vi) Withholding Work
The respondent notes that the duties and responsibilities within the Operations Business Data Section are distributed appropriately and equitably to all staff within the Section. As the complainant has failed to provide specific examples the respondent states that it can only comment generally and it is satisfied that it has acted properly and appropriately in this regard at all times.
4.13 In relation to the complainant's meeting with the Equality Development Manager the respondent says that the Equality Development Manager outlined the respondent's procedures for processing complaints of a bullying/ harassment nature. However the complainant indicated that she had taken legal advice and given the impending investigation at the Equality Tribunal she did not want to discuss the issue further. According to the respondent the Equality Development Manager asked the complainant if there was anything she could do for her and she stated that she would welcome redeployment to another Section. The Equality Development Manager agreed to raise the matter with Human Resources which she did via email on 11th October, 2004. According to the respondent it is the Equality Development Officer's firm position that, at no stage during the meeting, did she refer to the complainant's case, the potential outcome of the case or legal costs. Furthermore the Equality Development Manager denies that she suggested that the complainant should seek redeployment, rather it was the complainant who raised the issue of redeployment.
4.14 The respondent states that it has never stated that the complainant's redeployment was contingent on her not pursuing her claim. According to the respondent it has engaged with the complainant and her Union regarding an alternative position in the Airport Search Unit and the complainant has visited the Section and met with the relevant Manager. A number of meetings have been held between the complainant, her Union and the Director of the respondent organisation. Although the complainant was initially hesitant it is the respondent's understanding that, following clarification on certain matters, the position is still being considered by her at the time of writing this submission. The respondent strenuously denies that the complainant has been pressurised in any way into accepting an alternative position.
4.15 In conclusion the respondent denies that it discriminated against the complainant on the grounds of age in relation to the Senior Administrator competition. It further denies that the complainant was subjected to 'bullying, harassment, intimidation and discrimination' in any way.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision in this claim is whether or not the complainant was discriminated against by the respondent on the grounds of her age within the meaning of Sections 6(1) and 6(2)(f) of the Employment Equality Act, 1998 when she was not offered the promotion position of Senior Administrator in the Organisation Business Data Section of the respondent organisation. A decision is also required on the issue of bullying, harassment, intimidation and discrimination as alleged by the complainant in her submission. In making my decision in this claim I have taken into account all the submissions, both written and oral, from the parties.
Allegation of Age Discrimination
5.2 The complainant alleges that she was discriminated against by the respondent on the grounds of her age when she was not appointed to the promotion position of Senior Administrator in the Organisation Business Data Section. It is her contention that she was the only person of all those who applied with experience in the area given that she already worked in the Section. The respondent has denied the allegation.
5.3 The position of Senior Administrator was advertised internally in the respondent organisation and applications were invited. The complainant was one of seven applicants for the position. One candidate withdrew their application. The six remaining candidates undertook aptitude tests and a competency based interview. Each candidate was interviewed by the Operations Business Data Manager and the Employment Administration Manager who is attached to the respondent's Human Resource Department. I note that each candidate was asked the same questions at interview. Furthermore each interview board member made notes of the answers to each question during the course of the interviews. Agreed marks were awarded to candidates on their performance at interview under each of the competencies examined. I am satisfied that the competencies (as set out in paragraph 4.7 above) were objective and unrelated to the age of any of the candidates. Overall I, therefore, find that the interview process was impartial and independent and age was not an aspect of that process.
5.4 The complainant has contended that one of the interview board members (the Operations Business Data Manager) indicated to her, prior to the position being advertised, that he was looking for a 'young dynamic person' to fill the position of Senior Administrator. I note that there were no witnesses to this conversation. The Operations Business Data Manager has denied that he made this statement and his version of the conversation is set out in paragraphs 4.5 and 4.6 above. I note that, at the hearing of this claim, the complainant denied in its totality the Operations Business Data Manager's version of that conversation. The complainant further denied that she ever indicated to the Operations Business Data Manager that she was not interested in the position. I note that the complainant accepts that she informed both the Operations Business Data Manager (in advance of the competition being advertised) and the Employment Administration Manager (at the interview feedback session) that she did not wish to remain in the Operations Business Data Section but she denies that she indicated that she would welcome a redeployment/transfer to Human Resources. In a situation where there is total conflict between the parties the onus is on me to decide on the balance of probabilities which version of events is more credible.
5.5 At the end of the complainant's interview the complainant asked two questions, one of each of the interview board members. She asked the Employment Administration Manager about the merits of the competency based interview and she asked the Operations Business Data Manager 'what part of the job requires someone who is young and dynamic ... what part would I not be able to do with my zimmer frame'. The complainant denied that she asked this latter question in this manner. At the hearing of this claim she stated that, in the context of her earlier conversation with the Operations Business Data Manager in which he stated that he was seeking a 'young dynamic person' for the position, she asked him 'what part of the job requires someone who is young and dynamic'. There are two things worth noting about this. Firstly the detail of the questions put by the complainant was recorded by the Employment Administration Manager at the end of her notes on the complainant's answers to the questions asked at interview. At the hearing of this claim the respondent showed me a copy of the original notes made by the Employment Administration Manager. Having examined those notes I was satisfied that the detail of those questions were made using the same pen as that used for recording the complainant's answers to the questions posed. There was a suggestion by the complainant that the notes could have been recorded at any time after the interview. However the complainant herself indicated that, during the course of her interview, both interview board members took notes and that the Employment Administration Manager made more notes than the Operations Business Data Manager. I am satisfied that this evidence was consistent with the level of detail in each set of notes. Secondly at the hearing of this claim I asked the complainant if the Operations Business Data Manager had denied at the interview that he had stated that the job required 'a young person'. Her immediate response to that question was 'no'. Subsequently at the hearing when this same question was put to the complainant by the respondent's representative she stated that the Operations Business Data Manager, in response to her question, hesitated and then said that he did deny that had previously made this statement. Having regard to all of the above I find that the respondent's version of events is more credible than the complainant's version of events. On that basis I am satisfied that the complainant has failed to establish a prima facie claim of discrimination on the grounds of age in relation to her failure to be promoted to the position of Senior Administrator.
5.6 In the context of this allegation other issues were raised which warrant mention as follows:
- According to the complainant there had been a person filling the position of Senior Administrator in the Operations Business Data Section previously and she had opted for redundancy. This person had indicated that her position would not be filled. I am satisfied that it is a matter for the respondent's management to decide what positions need to be filled having regard to the business needs of the organisation.
- The complainant alleged that other managers in the respondent organisation hand picked employees for positions without any competition. As an example she named a colleague and she also referred to the filling by the Operations Business Data Manager of two temporary positions. She further alleged that in a particular instance one manager had decided that no suitable candidate had presented for interview and an employee was then picked for the position. While practices of this nature would not be open and transparent and could result in possible discrimination on a number of grounds, these allegations do not arise in the context of the claim before me for investigation.
- It is accepted by both parties that the complainant had indicated her wish to leave the section and the respondent questioned her motive in applying for the promotion competition. Again I am satisfied that this issue is irrelevant as the complainant was entitled to and did apply for the promotion competition and my remit is to examine that process to establish if it was discriminatory on the grounds of age as alleged.
- The complainant queried the marks allocated to some candidates in relation to one of the competencies and in the context of her knowledge of these candidates she indicated that the marks awarded did not make sense. As stated by me at the hearing of this claim it is not for me to decide on the merits or otherwise of the candidates under each or any of the competencies. This too has been the approach of the Labour Court .
- The complainant also queried why she received 20% for her aptitude test while she received 50% for an aptitude test she had undertaken previously. It was unclear if the complainant had completed the same aptitude tests. The respondent further explained that the score a candidate received on the aptitude test was compared to a norm group because in each competition the level of candidates will be different. Hence there are different norm groups for different competitions and the 20% received by the complainant was not an indicated that she scored 20% of the questions on the aptitude test correctly but it was a marking which reflected her performance as regards other candidates having regard to the norm group for that competition. I am satisfied that there is no evidence here of victimisation of the complainant as alleged.
Allegation of Victimisation
5.7 The complainant has alleged that she was subjected to bullying, harassment, intimidation and discrimination after she referred her claim of alleged discrimination on the grounds of age to the Equality Tribunal on 15th October, 2003. I am satisfied that this is a claim of alleged victimisation in terms of Section 74(2) of the Employment Equality Act, 1998 (and in some instances under the Employment Equality Acts, 1998 and 2004) which took the form of bullying, harassment, intimidation and discrimination. The complainant has alleged that she was subjected to victimisation in relation to a number of issues as set out in the Summary of her Submission at paragraph 3.6 above and responded to by the respondent in the Summary of its Submission at paragraph 4.12 above.
5.8 In relation to each of the allegations I make the following findings:
(i) Departmental/Procedural Changes (1998 Act)
The complainant considered that procedures put in place by the Operations Business Data Manager whereby her work containing commencement and completion times would be checked by the Senior Administrator had the effect of undermining her abilities. I note that the procedures put in place by the Operations Business Data Manager were applied to all staff, not just the complainant. I am satisfied that the respondent is entitled to decide on what it considers are best practices and procedures for the running of its business. There is no evidence that the changes in procedures implemented by the Operations Business Data Manager were so implemented to undermine the complainant in her work because she had referred a claim of discrimination on the grounds of age. On this basis I find that the complainant was not subject to victimisation in relation to departmental/procedural changes.
(ii) Annual Leave (1998 Act)
The complainant alleges that there was evidence of bullying in the Operations Business Data Manager's controlled domination response to even simple requests for annual leave. There is no evidence that the complainant was treated any differently to any other staff member in relation to annual leave. All her leave requests were granted even those requested at short notice despite the requirement that reasonable notice be given. I note that the complainant was critical of the Senior Administrator for having to refer to the Operations Business Data Manager about a request for a day's leave to attend a funeral. It is the respondent's contention that the complainant did not initially indicate that the reason she was seeking the leave was to attend a funeral and the complainant denies this. Irrespective of the conflict in that evidence I note that the day the complainant sought leave for was a 'go-live' day and other colleagues had been refused leave on that day. In those circumstances I can understand why the Senior Administrator wanted to put the complainant's request to the Operations Business Data Manager. On the basis of the foregoing I find that the respondent did not subject the complainant to victimisation in relation to annual leave resulting from her referring a claim of alleged discrimination on the grounds of age.
(iii) Office Radio (1998 Act)
I am fully satisfied that there is no evidence of victimisation of the complainant in relation to the provision of an office radio to staff in the Operations Business Data Section. The terms on which the radio was provided were clearly set out by the Operations Business Data Manager in writing to all staff. In this communication he stated that if he received any complaints about the radio he would remove it. The respondent states that no complaints were made about the radio and as a result it was not removed. At the hearing of this claim the complainant submitted a copy of an email which she had sent to a Worker Director complaining about the radio. I note that the Worker Director was a Shop Steward in the respondent organisation and he advised the complainant to bring the matter to the attention of her Union (who represented her in this claim). I am satisfied that the respondent was not made aware of the contents of this email or of the fact that the radio was causing a problem for the complainant. In those circumstances the respondent could not have subjected the complainant to victimisation as alleged in relation to the office radio.
(iv) Overcharging Error (1998 Act)
The complainant accepts that she did make an error but she did not accept that it was a significant error despite it resulting in an overcharge amounting to €16,000. I consider that the respondent is entitled to seek an explanation for such an error in circumstances where the signature of the Director of the respondent organisation is required on a credit memo to rectify the overcharge. The complainant stated that she had not made such an error previously and she was not aware of any colleague who had made such an error. In those circumstances it is not possible to compare how an error of this nature was handled with how this error by the complainant was handled by the Operations Business Data Manager. The complainant has alleged that the Operations Business Data Manager's tone of voice and whole demeanour was not, in her opinion, conducive to a harmonious working relationship. I note that there was no evidence to support the complainant's opinion in this regard.
(v) Incident of Intimidation (1998 and 2004 Acts)
The respondent submitted documentary evidence of the request that was made to the Operations Business Data Manager for information and the urgency with which it was required. I note that the Operations Business Data Manager chose to undertake this task in the office where his staff worked so that he could be close to the Senior Administrator who was also working on this task and so that he could be beside a printer he needed to use. The movement of the computer on the desk was motivated by a desire to ease its use given that the Operations Business Data Manager is left-handed. I note the complainant's argument that the Operations Business Data Manager did not need to move the computer but could have moved the mouse only. I consider that this argument does not provide any evidence that the purpose in moving the computer was to afford the Operations Business Data Manager the opportunity to spend two days staring at the complainant in order to intimidate her.
(vi) Withholding Work (1998 Act)
In her submission the complainant made the allegation that work was withheld from her but she gave no specific examples. At the hearing of this claim the complainant stated that both herself and a colleague were by-passed by the Senior Administrator in relation to work on five to six occasions in early 2004. The complainant states that on one occasion she asked for work and was given a small task which was completed in 10 minutes. I am satisfied that there is no evidence that the complainant was subjected to victimisation in this regard for having brought a claim of alleged discrimination on the grounds of age.
5.9 In conclusion I find that the complainant has failed to establish a prima facie case of discrimination on the grounds of age when she was not promoted to the position of Senior Administrator in the Operations Business Data Section of the respondent organisation. I further find that the complainant also failed to establish a prima facie case of victimisation in terms of Section 74(2) of the Employment Equality Act, 1998.
6. DECISION
6.1 In view of the foregoing I find that the Dublin Airport Authority did not discriminate against Ms. Leslie on the grounds of her age within the meaning of Sections 6(1) and 6(2)(f) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act when she was unsuccessful in her application for promotion to the position of Senior Administrator in the Operations Business Data Section of the respondent organisation.
6.2 I further find that the Dublin Airport Authority did not subject the complainant to victimisation in terms of Section 74(2) of the Employment Equality Act, 1998 (and in some instances under the Employment Equality Acts, 1998 and 2004) for having referred a claim of alleged discrimination on the grounds of age.
______________________
Gerardine Coyle
Equality Officer
18th October, 2005