THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2010-111
PARTIES
Ovidiu Augustin Matiut
and
Dublin City Council
(represented by Byrne Wallace Solicitors)
File Reference: EE/2007/514
Date of Issue: 29th June, 2010
Keywords: Employment Equality Acts, 1998 to 2008 - Section 8 - Access to Employment - Section 6(2)(h) - Race - Failure to establish a prima facie case
1. Dispute
1.1 This case concerns a complaint by the complainant, Mr. Ovidiu Augustin Matiut, that he was subjected to discrimination by the respondent, Dublin City Council, on the grounds of his race contrary to section 6(2)(h) and section 8 of the Employment Equality Acts, 1998 to 2008 in terms of access to employment.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 2nd October, 2007. In accordance with her powers under section 75 of the Employment Equality Acts, the Director delegated the cases on 18th August, 2009 to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2008. This is the date I commenced my investigation. A written submission was received from the complainant on 27th August, 2008 and from the respondent on 14th November, 2008. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 25th May, 2010.
3. Summary of the Complainant's case
3.1 The complainant is a Romanian national and he has been residing in Ireland for a period in excess of ten years. He applied to the respondent for the position of Sports Development Officer which was advertised on 16th November, 2006. The complainant stated that he received a letter from the respondent on 6th September, 2007 informing him that he was ineligible to participate in the competition for this position on the basis that he did not satisfy the relevant qualification criteria i.e. (a) that he did not hold a relevant qualification and/or proven track record in the Community/Youth Work Filed and (b) that he did not have experience of working in a sport or recreation related environment. The complainant stated that he disputed the respondent's assessment of his application and he claims that he did, in fact, have the required levels of experience of working in the Community Development area and within a sport and recreational environment in order to meet the relevant qualification criteria for the position.
3.2 The complainant stated that he was not satisfied with this response and he subsequently sent an e-mail to the respondent on 11th September, 2007 seeking further clarification regarding the reasons for the refusal of his application. The complainant received a reply from the respondent on 24th September, 2007 in which it was indicated that his work experience as an Integration Officer and Community Development worker was not of a sufficient duration to establish a proven track record in the Community Development field and it was also indicated that in order to meet the requirement at (b) above, candidates were required to have experience of working in a sport or recreation environment on a full-time basis. The complainant was informed that the respondent's original decision remained unchanged on the basis that he did not satisfy the relevant qualification requirements for the position.
3.3 The complainant stated that he subsequently had a further exchange of correspondence and e-mails (including a Freedom of Information request) with the respondent regarding this matter as he was still not satisfied that his application had been properly evaluated in terms of his experience in the abovementioned areas. The complainant stated that he was subsequently informed by the respondent that his application had, in fact, been deemed as having satisfied the "proven track record in the community development/youth work field" (criterion (a) above) and that it had been an administrative error when he was initially informed that he did not satisfy this particular criterion. However, the respondent still maintained its position that his application was unsuccessful on the basis that he did not hold a recognised relevant qualification and that he did not have experience of working in a sport or recreation related environment (i.e. criterion (b) above). The complainant stated that the respondent had provided him with inaccurate information when he queried the reasons for the refusal of his application by initially stating that he had not met criterion (a). He submitted it was possible that the respondent could also have made a mistake in the assessment of his application under the other criteria for the position (i.e. criterion (b)).
3.4 The complainant disputes the respondent's assessment that he did not have the required level of experience of working in a recreation related environment and he submitted that he had better experience in this area than some of the other candidates who were short-listed for interview for the position. The complainant stated that he applied for a similar position with the respondent in 2005 and that he was called to interview in relation to that application. He submitted that the respondent's failure to shortlist him for interview in relation to the present position, in circumstances where it had called him for interview for a similar position in 2005, constitutes further evidence that he has been subjected to discrimination. The complainant submitted that the only reason why the respondent could have deemed his application ineligible to proceed to the interview stage was because of his Romanian nationality.
4. Summary of the Respondent's case
4.1 The respondent stated that it advertised for applications for the position of Sports Development Officer on 16th November, 2006. The qualification requirements and job specification for the position were set out on the application form and it was stipulated that each candidate must (a) hold a recognised relevant qualification and/or a proven track record in the community development/youth work field and (b) have experience of working in a sport or recreation related environment. The respondent stated that it received eighty nine applications for this position and following the initial screening process, fifty candidates were invited to attend for interview whereas thirty three candidates (including the complainant) were deemed ineligible on the basis that they did not meet the relevant qualification criteria and therefore their applications did not proceed to interview. The respondent stated that six internal applicants also applied for this position and subsequently applied for the position as Senior Sports Development Officer and as a result these candidates were not required to go forward to interview stage for this competition.
4.2 The respondent stated that following the initial screening process the complainant's application was deemed ineligible to proceed to the interview stage on the basis that he did not hold a recognised relevant qualification and did not have experience of working in a sport and recreation related environment. The respondent submitted that the position to be filled was a Manager's role for which person's with occupational experience of managing groups of people, dealing with the public and leadership experience were considered to have a more relevant level of experience to progress to interview stage. The respondent stated that the applicants who proceeded to the interview stage were people who had occupational experience in sports development and were people who had chosen sports development as a career rather than a recreational interest. The respondent submitted that the complainant did not have occupational experience in dealing with the public or in managing groups and that his experience was not considered sufficient as it was undertaken on a voluntary and in some cases, short-term basis.
4.3 The respondent accepts that when the complainant sought clarification regarding the reasons for the rejection of his application he was inadvertently informed that he was deemed not to have met either of the aforementioned qualification criteria (a) or (b). The respondent stated that this was an administrative error and it confirmed that the complainant had, in fact, been scored successfully on criterion (a) by the selection panel whereas he had been deemed not to have met criterion (b). The respondent stated that this administrative error occurred in September, 2007 i.e. approx. six months after the selection panel had completed the short-listing process for the position and therefore it did not have any impact upon the decision made in respect of his application. The respondent stated that the complainant's application was ultimately deemed unsuccessful by the selection panel because he did not meet the obligatory qualification criterion (b) i.e. his experience of working in a sport or recreation related environment was considered insufficient for the position.
4.4 The respondent stated that the complainant's application was considered by the selection panel under the same criteria as all of the other applications for the position and it submitted that the same criteria applied equally to all applicants irrespective of whether they were Irish or non-Irish nationals. The respondent stated that of the eighty nine applications that were received for the position, eighty three applications were received from Irish nationals and six were from non-Irish nationals. The respondent stated that three of the six non-Irish nationals who applied for the position proceeded to the interview stage and that one of these non-Irish nationals (a Ukrainian national) was ultimately placed on the panel of successful candidates for appointment to the position. The respondent stated that the complainant's nationality was not a factor which was taken into consideration as part of the assessment of his application and it submitted that the reason he was deemed ineligible to proceed to interview was because he did not meet the relevant qualification criteria for the position. The respondent totally refutes the allegation that it discriminated against the complainant on the grounds of his race.
4.5 The respondent disputes the complainant's contention that he applied to it for a similar position in 2005 and that he had been called for interview on that occasion. The respondent stated that the position which the complainant applied for on this occasion related to a different employer and it confirmed that its only involvement in relation to this position was that it supplied a member of its staff to participate on the interview board.
5. Conclusions of the Equality Officer
5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....." Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows - "as between any 2 persons, ... that they are of different race, colour, nationality or national origins".
5.3 The issue for decision by me in this case, then, is whether or not the respondent discriminated against the complainant on grounds of race, in terms of section 6 of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts on the basis of its decision that his application did not satisfy the relevant qualification criteria for the position of Sports Development Officer. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence of the parties at the Hearing.
Initial assessment of the applications for the position
5.4 In considering the alleged discrimination in this case, I am obliged to examine the manner in which the selection process for the position was conducted by the respondent in order to establish if there is any evidence to suggest that this process was applied in a less favourable or discriminatory manner towards the complainant on the grounds of his nationality. The respondent gave evidence that it received a total of eighty nine applications for the position of Sports Development Officer and that it appointed a selection panel to carry out an initial screening process of these applications in order to shortlist candidates who were deemed to have satisfied the relevant qualification criteria for the position. The respondent stated that candidates were assessed on the basis of the information supplied on their application forms and those candidates who were deemed to have satisfied the relevant qualification criteria were allowed to proceed to interview stage.
5.5 In considering the issue as to whether or not the complainant was subjected to discrimination in terms of the manner in which this selection process was carried out, I have taken cognisance of the case of Galway City Partnership -v- Josephine O'Halloran where the Labour Court held as follows: "On the evidence the Court is satisfied that the interview board was properly constituted and conducted its business in line with accepted good practice. The Court has previously held that where this is found to be the case, and in the absence of clear evidence of unfairness or manifest irrationality in the result, the Court will not seek to undertake its own assessment of the candidates or substitute its views on their relative merits for those arrived at by the interview board ..... On the evidence before it the Court can find nothing to indicate any element of irregularity or unfairness in the selection process as it was applied to the complainant ".
5.6 In applying the reasoning of the Labour Court to the circumstances of the present case, I note that the respondent appointed a selection panel to assess the applications of all of the applicants who had applied for the position for the purpose of short-listing the candidates who were deemed to have satisfied the relevant qualification criteria for the position. Having regard to the evidence adduced, I am satisfied that this selection panel was properly constituted and that it conducted its business in accordance with good practice. I note that the respondent submitted, in evidence, the scoring sheet that was used by the selection panel to assess the applications of all candidates during the initial screening process. I am satisfied that the information contained on this scoring sheet demonstrates that the relevant qualification criteria (as outlined in para. 4.1 above) were applied uniformly to all applicants for the position, including the complainant. Furthermore, I am satisfied that I have not been presented with any evidence from which I could reasonably conclude that there was any element of unfairness or irregularity in terms of the manner in which these qualification criteria were applied to the complainant's application during the initial screening process. Having regard to the evidence adduced, I fully accept the respondent's evidence that the reason the complainant was deemed ineligible to proceed to interview stage was because of the fact that the selection panel came to the conclusion that his application did not satisfy the requirements stipulated in criterion (b) i.e. that he did not have sufficient experience of working in a sport or recreation environment and that this decision was in no way influenced or attributable to his Romanian nationality.
5.7 The respondent also submitted copies of the applications of nine of the applicants who were deemed to have met the requirements of criterion (b) i.e. of having sufficient experience of working in a sport or recreation environment. These applicants were deemed to have met the qualification criteria for the position and were allowed to proceed to the interview stage. I note the complainant submitted in evidence that he was of the opinion that his experience of working in a sport or recreation environment was of an equal or better standard than a number of these applicants. In considering this issue, I have taken cognisance of the case of Client Logic Logic t/a UCAL -v- Kulwant Gill where the Labour Court held as follows: "Finally, the Court has previously held that in cases alleging an infringement of equality law in the filling of posts, it is not the function of the Court to substitute its views on the relative merits of candidates for those of the designated decision makers. Rather, its role is to ensure that the selection process is not tainted by unlawful discrimination. Consequently, the court will not normally look behind a decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result".
5.8 Having regard to the reasoning of the Labour Court in this case, there is no obligation upon me to carry out an assessment regarding the relevant merits of the complainant's application as opposed to the applications of the other applicants unless there is evidence adduced to suggest that the manner in which the selection process was conducted has been tainted by unfairness or unlawful discrimination towards the complainant. As I have already stated, I am satisfied that the complainant has not adduced any evidence to suggest that he was treated less favourably than other applicants, on the grounds of his nationality, in terms of the manner in which selection process was conducted by the respondent. Therefore, I am not obliged to carry out an assessment of the relevant merits of the complainant's application as opposed to the applications of the other applicants who were deemed to have the required level of experience of working in a sport or recreation environment. However, notwithstanding the foregoing and for the sake of completeness, having assessed the applications of the aforementioned applicants, I cannot concur with the complainant's contention that his experience of working in a sport or recreation environment was of an equal or better standard than that of those applicants.
5.9 I have also taken into consideration the respondent's evidence that three of the non-Irish nationals who applied for the position were deemed to have met the relevant qualification criteria following the initial screening process and accordingly they were allowed to proceed to the interview stage. Indeed, I also note that one of these applicants was ultimately successful at the interview stage and this applicant was subsequently placed on a panel of successful applicants for appointment to the position.
5.10 Having regard to the totality of the evidence adduced, I find that the complainant has failed to raise a prima facie case of discrimination on the grounds of race in terms of the respondent's decision that his application did not satisfy the relevant qualification criteria for the position of Sports Development Officer.
Issue regarding the provision of incorrect information to the complainant regarding the reasons for the refusal of his application
5.11 The complainant also raised an issue that he was provided with incorrect information by the respondent regarding the reasons why his application was deemed ineligible to proceed to the interview stage following the initial screening process of applications. In considering this issue, I note the respondent accepted that the complainant had been provided with incorrect information when he queried the reasons for the refusal of his application. The respondent stated that it replied to the complainant's query for information and informed him by letter dated 24th September, 2007 that his application had been refused on the basis that he was deemed not to have met either of the qualification criteria (a) and (b). The respondent stated that the complainant had, in fact, been deemed to have met qualification criterion (a) by the selection panel when it carried out the assessment of his application in February, 2007; however, he was subsequently informed as a result of an administrative error that he had not met criterion (a) when he queried the reasons for the refusal of his application.
5.12 In considering this issue, I am satisfied that it is clear from the scoring sheet which was completed by the selection panel whilst assessing the applications in February, 2007 that the complainant had, in fact, been scored successfully on both criterion (a) i.e. that he was deemed to have a proven track record in the community development/youth work field and also in relation to criterion (b). I note that this incorrect information was provided to the complainant in September, 2007 which was approx. 7 months after the selection process had been completed. I accept the respondent's evidence that the provision of the incorrect information arose as a result of an administrative error. Furthermore, I am satisfied that this administrative error occurred after the short-listing process had been completed and therefore, that it did not have any impact upon the decision made by the selection panel in respect of the complainant's application. In the circumstances, I am satisfied that I have not been presented with any evidence to suggest that this administrative error arose as a result of any discriminatory intent against the complainant on the grounds of his nationality.
Issue in relation to the previous position which the complainant applied for in 2005
5.13 The complainant also submitted that he applied for a similar position with the respondent in 2005 and that he was called to interview in relation to that application. He submitted that the respondent's failure to shortlist him for interview in relation to the present position, in circumstances where it had called him for interview for a similar position in 2005, constitutes further evidence that he has been subjected to discrimination. In considering this issue, I accept the respondent's evidence that the position which the complainant applied for in 2005 was under the auspices of a different employer and therefore, it did not have any authority in relation to this position. In the circumstances, I am satisfied that the issue raised by the complainant in this regard does not have any relevance to the alleged discrimination in the present case.
6.1 Decision
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that the respondent did not discriminate against the complainant regarding access to employment contrary to section 8 (1)(a) of the Acts. Accordingly, I find in favour of the respondent in this case.
______________
Enda Murphy
Equality Officer
29th June, 2010