EDA0914

Background.

The Complainant applied for placement on the Respondent’s scheme in or about January 2005. He met with the scheme supervisor and asked for employment on the scheme. The supervisor told the Complainant that no suitable vacancies then existed.

The Complainant again contacted the supervisor of the scheme in or about September 2006 and asked for a letter confirming the status of his application. He received a letter stating that he had applied for employment on the scheme but that he was unsuccessful. The Complainant took issue with the statement that he had been unsuccessful. He contended that he was on a list for employment. The Complainant sought an explanation from the supervisor for his refusal to offer him employment. None was given.

Position of the parties

The parties confirmed to the Court that their respective positions are fully and accurately recorded in the decision of the Equality Officer.

The Complainant

As appears from that decision the Complainant’s position is as follows: -

In January 2005 the complainant approached the supervisor of the respondent community employment scheme with a view to obtaining employment. The supervisor discussed this and the retention of the complainant’s disability allowance/benefit. It was discussed further the following day when the complainant returned with his PPS number. The Supervisor completed a form for the Department of Social and Family Affairs in Longford. The complainant’s understanding was that when a response was received from the Department the Supervisor would contact him. He also understood that the Supervisor had no vacancies at that time and that if one should arise he would contact the complainant. The complainant’s request was for general operative employment. It was his understanding that he was on a list of some sort waiting for a vacancy to arise and although he called in a couple of times there were no vacancies.

In 2006 the complainant had a further illness and following this he checked with his doctor who told him that work on the scheme would in fact be good for him. The complainant called in to the Supervisor of the scheme in September 2006. He asked for a letter to show that he had sought work with the scheme which he collected the following morning, 13th September 2006. He took the letter to the FAS Community Employment Officer visiting the town that day. The letter stated “[the complainant] applied for a position on the above scheme in 2005 and was not successful in his application.” When the FAS officer pointed out that there was no information in the letter the complainant returned to the Supervisor. He was upset that the letter said he was unsuccessful as he understood as above that he was on a list. He indicated to the Supervisor that he would pursue the matter and the reply was “I don’t care if you go to Michael Martin.” When the complainant asked for a reason why he was unsuccessful the reply was that “If I told you that you would have me up.” The complainant immediately drove to the FAS office in Cork city and subsequently entered a lengthy complaints process with FAS including FOI requests and appeals, approaches to the sponsors of the scheme locally, in addition to this complaint.

The Respondent

The Respondent’s position is: -

The purpose of the scheme is to provide employment and in particular to provide training for participants to help get them back into employment. Participants are given a fixed-term contract running until the following October as FAS funding runs from October to October. Participants are usually referred from a number of sources such as FAS, dole officers, probation officers, Traveller representatives, disability groups, single parents, Headway and sometimes unemployed people can approach the scheme directly.
The Supervisor of the respondent scheme stated that there was no formal interview of the complainant with an interview panel. It is his practice to sit down with applicants and take the necessary information from them. He must first establish what type of employment is sought and that an applicant is eligible. The form that the complainant referred to is in fact a form that must be completed by the participant themselves and only when a place on the scheme has been secured. Therefore at the time of the meeting the form did not apply to the complainant. The Supervisor agreed that the two meetings took place in January 2005 but was clear that the work requested was caretaker and that other types of work were ruled out by the complainant. The Supervisor gave evidence that the complainant indicated that he was unable to work outdoors due to his disability and that the type of position he sought was caretaker. His hearing difficulties meant that it would be unsafe for him to operate a lawn mower. The Supervisor indicated that the respondent scheme did not have any caretaker positions at all but should one arise the complainant would be considered. The Supervisor, during the 2005 meetings, referred the complainant to a number of other scheme supervisors and his response was that he had already spoken to one, Supervisor A and he would not work with the others.

The respondent scheme supervisor stated that the complainant was treated exactly as any other person, in that he took his details, checked eligibility, established what type of work was acceptable and checked if a vacancy was available.

Between one and two years later the complainant contacted him and requested a letter. The Supervisor often gets such requests and had no difficulty in providing such support as he assumed it was in support of the complainant’s disability benefit. He kept the letter simple as he did not want to draw attention to the fact that the complainant refused to do certain types of work in case this could be. His letter indicated that the complainant had applied for work and that he was not successful. When the complainant returned, in an aggressive manner, looking for a reason why he was unsuccessful the Supervisor told him that it was not unusual for employers not to indicate a reason.
The respondent does not have a formal reception process for applicant information. Information recorded includes the name, address and other contact details and is held in the supervisor’s filofax. The record relating to the complainant was presented at the hearing.

Evidence

Evidence was received from Mr Frank Keenan and Mr Patrick Flynn, both of whom were called by the Complainant. Both witnesses told the Court that had been employed on the Respondent’s Social Employment Scheme. They gave evidence to the effect that there were no formalities observed in the selection process operated by the Respondent. Both witnesses testified that they had simply met with the Scheme Supervisor, asked for employment and were employed. Both witnesses confirmed that they had indicated a willingness to undertake any form of work available.

Conclusion of the Court.

Following the hearing the Complainant supplied the Court with a substantial file of documents relating to his case. The contents of this file, together with the submissions made at the hearing of the appeal, have been fully considered by the Court.

The Court has first to consider the date on which the act alleged to constitute discrimination occurred. It is clear that the Complainant applied for employment with the Respondent in the month of January 2005. He was not offered employment at that time. His complaint was presented to the Equality Tribunal on 12th February 2007. If the act complained of was the Respondent’s failure to offer the Complainant employment in 2005, his complaint was clearly presented outside the time limit prescribed by s. 77 of the Act. However, the Complainant contends that his complaint relates to the letter furnished to him by the Respondent in September 2006. If that is the subject matter of his complaint the matter is in time.

The Respondent contended that the letter of September 2006 merely confirmed what had occurred in January 2005. In the Court’s view, however, the letter is capable of being construed as a final refusal to employ the Complainant. The Court is prepared to adopt that construction for the purpose of allowing the substantive case to proceed.

This case is before the Court pursuant to the Employment Equality Acts 1998 -2008. The Court is solely concerned with establishing if the Complainant suffered discrimination on grounds off his disability. It is clear to the Court that the Complainant is seriously aggrieved at not been allocated a place on the Respondent’s Social Employment Scheme. In advancing his case the Complainant relied on what he considers to be irregularities in the recruitment process of the Respondent.

The crux of the case appears to be that the Respondent understood that the Complainant was only interested in working as a caretaker or in some similar role. The Respondent accepts that placements were available at the material time involving a variety of other work. The Respondent contends that the Complainant indicated an unwillingness to undertake the type of work available. The Complainant flatly denies that he limited himself to a caretaker role in seeking placement on the scheme. He told the Court that he was willing and able to undertake any form of work and would have been prepared to take any of the jobs then available with Respondent.

On this point the Respondent gave evidence that work was available at the material time and was freely offered to all eligible candidates for placement who were willing to undertake that work. According to the Respondent the only reason why the Complainant was not placed on the scheme was the limitation which he had placed on the work that he was willing to perform. The Court can see no reason as to why the Respondent would have refused the Complainant a placement on the scheme if he had been prepared to undertake the work available. Furthermore, the evidence given by Mr Keenan and Mr Flynn is largely collaborative of the Respondent’s version of events. This evidence confirms that the Respondent freely allocated work to all eligible applicants willing to perform that work. Accordingly the Court is of the view that the Respondent’s recollection of the discussions is more probable. In any event there is no evidence whatsoever to link the Complainant’s failure to obtain a placement on the scheme with his disability.

For these reasons the Court is satisfied that the decision of the Equality Officer is correct and ought to be upheld.

Determination

The appeal is disallowed and the decision of the equality Tribunal is affirmed.



Signed on behalf of the Labour Court



Kevin Duffy
16th June, 2009______________________
DNChairman



NOTE

Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.