The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
EQUALITY OFFICER’S DECISION DEC-E2009-010
PARTIES
Mr Stephen McDevitt
(Represented by TEEU)
AND
HSE West
File reference: EE/2006/222
Date of issue: 18 February 2009
1. DISPUTE
1.1 This dispute concerns a claim by Mr Stephen McDevitt that he was discriminated against by the HSE West on the grounds of disability contrary to section 6(2)(g) of the Employment Equality Acts 1998-2008 in relation to promotion and discriminatory dismissal in terms of section 8 of the Acts, that he was harassed in terms of section 14A of the Acts and that he was victimised in terms of section 74 (2) of the Acts.
1.2 The complainant referred his claim of discriminatory treatment to the Director of the Equality Tribunal on 28 June 2006 under the Employment Equality Acts, 1998 and 2004. On 5 October 2007, in accordance with her powers under section 75 of the Acts, the Director delegated the case to Hugh Lonsdale, 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 which date my investigation commenced. Submissions were sought and received from the parties, a hearing was held on 27 June 2008 and further information was submitted by both parties, the last of which was received on 26 November 2008.
2. SUMMARY OF THE COMPLAINANT’S CASE
The complainant submits that he was on a rehabilitative training programme delivered by Taca Training And Supported Employment Service under the auspices of the then North Western Health board from 13 September 1999 until February 2001. On 5 February 2001 he started an electrical apprenticeship with the Health Board based in Letterkenny. The complainant submits that he suffered harassment by a number of maintenance staff between October 1999 and July 2002. The complainant further submits that following these and other difficulties he had during his apprenticeship the HSE terminated his apprenticeship in May 2004. He made attempts to complete his apprenticeship but he was not able to and he finally left their employment in March 2006. The complainant submits that this amounted to a discriminatory dismissal. Shortly before leaving the respondent’s employment he applied for a permanent position in the Maintenance Department and he was not shortlisted and this amounted to discriminatory treatment and victimisation.
3. HARASSMENT ON THE GROUNDS OF DISABILITY
The respondent carried out an investigation into the complainant’s allegations of harassment which was completed in May 2004. The respondent submitted that any allegations are out of date as the report was issued in May 2004 and the complaint was not made until 28 June 2006. At the hearing the complainant adduced no evidence of any events relating to his allegations of harassment subsequent to May 2004. The claimant’s case on harassment on the grounds of disability referred to alleged incidents which occurred on or before May 2004 and as this was more than a year before referral of the complaint, in accordance with section 77(5) of the Acts, I have no jurisdiction to hear this claim.
4. DISCRIMINATORY DISMISSAL
The complainant submitted that he suffered discriminatory dismissal when the HSE terminated his apprenticeship in May 2004. The HSE submitted that they reached an agreement with the complainant to return to his apprenticeship in June 2005 and in October 2005 the complainant was given a six months contract to allow him to complete his apprenticeship. However the apprenticeship was not completed. The complainant referred a claim under the Unfair Dismissals Acts, 1997 to 2001 to the Employment Appeals Tribunal (EAT). The EAT heard the claim and issued a Determination in January 2008. Therefore, in accordance with section 101 (4) (c) of the Acts, the complainant is not entitled to seek redress under the Employment Equality Acts, 1998-2008.
5. PROMOTION - MAINTENANCE FOREMAN COMPETITION
SUMMARY OF THE COMPLAINANT'S CASE
5.1 The complainant submits that after seeing an advert on a staff notice board he applied for the position of Maintenance Officer on 3 March 2006. He was advised that the position had been incorrectly advertised and should have been for Maintenance Foreman. The complainant continued with his application.
5.2 The complainant submits that he satisfied both the qualifications and work experience criteria set down for the position, in that he had a sheet metal welding qualification and over 15 years work experience. However, he was not called for interview and he submits that this was because of his disability, as he suffers from depression.
5.3 He submits that he appealed the decision not to be called for interview but was just told that he did not meet the criteria. However, the complainant did not accept the explanation and feels that something was going on through the rumour mill that was related to his disability and this caused him not to be called for interview.
SUMMARY OF THE RESPONDENT’S CASE
5.4 The respondent recognises that the complainant has a disability but submits that no discrimination took place.
5.5 The respondent submits that the position was incorrectly advertised as Maintenance Officer but all applicants were then told that the position was for a Maintenance Foreman. The Job Specification stated that candidates needed to have completed a recognised apprenticeship or technical training and to have a minimum of five years experience in his/her trade; that is five years post-qualification work experience.
5.6 The respondent submits that the qualifications listed by the complainant on his application form were obtained in Australia and he did not provide any evidence that they were up to craftsman status. Furthermore, his time with the HSE was either on the Taca placement or on an apprenticeship and therefore could not be considered as ‘experience in his/her trade’. His application form showed only four years and nine months work experience that could have been considered if the complainant’s qualifications had met the criteria. Therefore as they considered that he had not met either criterion the complainant was not shortlisted for interview.
5.7 The respondent submits that when the complainant appealed this decision they wrote on 5 May and 17 May 2006 and explained the reasons. Furthermore, in November 2006 the HSE tried to arrange a meeting with the complainant to discuss the situation but he decided not to avail of this opportunity.
5.8 The respondent denies any discrimination and submits that the short listing took place solely on the criteria for the position.
6. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
6.1 The issue for decision is whether the complainant was discriminated against by the HSE West on the grounds of disability when he was not offered an interview for the position of Maintenance Foreman and whether he suffered victimisation arising from his application for this position. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties.
6.2 This case rests on whether the complainant’s disability was a consideration in him not being shortlisted for the position of Maintenance Manager. The respondent set two criteria for this position:
· Received a good general education and have completed a recognised apprenticeship or technical training, and
· A minimum of 5 years experience in his/her trade;
The complainant claims he met these criteria. The respondent claims his application was treated the same as all other candidates. They assessed the information that the complainant put on his application form and decided that he did not meet the criteria set out for the position.
6.3 The first criterion required applicants to have completed a recognised apprenticeship or technical training. At the time he applied the complainant had not finished his apprenticeship with the HSE and therefore he could not rely on this training. On his application form he lists four courses in welding and metal fabrication that he had completed whilst living in Australia and contended that they were technical training that should be recognised by the respondent as suitable for the position of Maintenance Foreman. The complainant gave no indication of the standing of these qualifications in relation to Irish qualifications and did not provide a copy of the certificates with his application form. At the hearing the respondent contended that they had contacted FAS about the complainant’s qualifications and their assessment was that the qualifications did not meet the criteria for the advertised position. I therefore accept that as far as the respondent could reasonably assess from his application form the complainant did not have the necessary qualifications for the position of Maintenance Foreman.
6.4 The second criterion required applicants to have a minimum of five years experience in his/her trade; that is five years work experience after they have qualified. The complainant only listed a total of four years and nine months work experience on his application form other than his time with the HSE. As his time with the HSE was either on the Taca placement or on an apprenticeship this could not be counted. Therefore, regardless of his qualifications, when the respondent assessed his application the complainant did not meet this criterion. In a post-hearing submission the complainant submitted a copy of an application form for another unrelated position which listed considerably more experience. However, I accept that as far as the respondent could reasonably assess from his application form the complainant did not meet the experience criterion for the position of Maintenance Foreman.
6.5 I conclude that the respondent acted reasonably in assessing the complainant’s suitability from the information he provided on the application form. Accordingly I find the respondent treated the complainant objectively in accordance with the criteria for the position and that no inference of discrimination can be made.
6.6 The complainant adduced no evidence in relation to his claim of victimisation arising from his application for the Maintenance Foreman position.
7. DECISION
I have investigated the above complainant and make the following decisions in accordance with section 79 of the Acts:
1. that the claim in relation to harassment on the grounds of disability is out of time in accordance with section 77(5) of the Employment Equality Acts, 1998–2008,
2. that the claim in relation to discriminatory dismissal is dismissed in accordance with section 101 (4) (c) of the Employment Equality Acts, 1998-2008,
3. that the respondent did not discriminate against the complainant in relation to promotion contrary to S. 8(1)(b) of the Acts on the ground of disability,
4. that the complainant did not suffer victimization in accordance with S. 74 (2) of the Acts.
_________________
Hugh Lonsdale
Equality Officer
18 February 2009