THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011-115
PARTIES
Eugene Glover
(represented by SIPTU)
-V-
FÁS
(represented by William Fry Solicitors)
File Reference: EE/2008/420
Date of Issue: 16th June 2011
Decision DEC - E2011-115
Eugene Glover
(represented by SIPTU)
-V-
FÁS
(represented by William Fry Solicitors)
Keywords
Employment Equality Acts 1998-2008, Section 6(1) - less favourable treatment, Section 6(2)(h) - race, Section 8(1)) - access to employment, Section 75(5)(a) - time limit for referring claim, Section 75(5)(b)- extension of time limit, no reasonable cause shown, no jurisdiction.
1. Dispute
1.1 This dispute concerns a claim by a complainant that he was discriminated against by the above named respondent on the race ground, in terms of Sections 6(1), 6(2)(h) of the Employment Equality Acts 1998-2008 and contrary to section 8(1)(a) in relation to access to employment.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 25th July 2008 alleging that the respondent discriminated against him contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 8th February 2011 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from the complainant on the 16th June 2009 and from the respondent on the 29th July 2009. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 15th April, 2011.
3. Summary of the Complainant's Case
3.1 The complainant is originally from Northern Ireland was employed by FÁS as an instructor in the Tralee Training centre on a series of fixed term contracts from April 2003 until April 2007. He is a qualified carpenter and has formal qualifications from the City and Guilds of London Institute. The complainant applied on two occasions for a permanent instructor post. On the first occasion in September 2006, FÁS decided following interviews and a trade test not to complete the competition and no appointment was made. In May 2007 a second competition was run by FÁS for a permanent position as a carpentry and joinery instructor. The advertisement specified a number of essential requirements, and among those requirements were that the candidate must hold a formal recognised qualification in carpentry and joinery. The complainant said that he was well qualified for the post and had such qualifications from the City & Guilds in London when he applied for the post. He did an interview on the 22nd June 2007 and then a trade test and a final interview on the 15th August 2007. He said that at the first interview he was repeatedly asked about his qualifications. When he got through to the second interview he compiled a document on his qualifications and the relevance of the City and Guilds qualifications. He said he gave this to the interview panel but he was again asked about his qualifications and if he was sure that his qualifications are equivalent to Irish qualifications.
3.2 The complainant did not get the job and he submits that he believes he was discriminated against on the nationality ground in that he is from Northern Ireland holding qualifications from there, whereas the successful candidate was from the locality and he did not have the formal recognised qualifications which were specified as essential requirements in the advertisement. The results of the competition did not issue until the 9th of November 2007 even though the final interview was on the 15th August 2007. On the 2nd of January 2008 SIPTU wrote to the Assistant Director General of FÁS raising a number of questions and issues about the conduct of the competition and pointing out that the complainant believed he was treated in a discriminatory manner in comparison to the way that the successful candidate was treated. A response dated the 17th of January 2008 was received by SIPTU in which the Assistant Director of FÁS said amongst other matters that he was satisfied that the position was filled by the most suitable candidate. SIPTU's Chief Shop Steward stated in evidence that he sent a further letter to FÁS on the 3rd of April 2008 stating that the outcome of the review of the recruitment process carried out by FÁS was unacceptable and advising that the complaint would be referred to the Equality Tribunal. No further response was received from FÁS.
4. Summary of the Respondent's case
4.1 The respondent submitted that the complainant has referred the complaint outside the statutory 6 months period in accordance with Section 77(5) of the Employment Equality Acts. The respondent advertised the post of Apprentice Carpentry & Joinery Instructor and the complainant applied and he got through the first interview. He attended the second interview on the 27th of August 2007 and he was informed by letter dated the 9th of November 2007 that he was unsuccessful. The respondent submitted that the complainant referred his complaint to the Equality Tribunal on 25th July 2008 which is outside the six 6 month time limit in the Act.
4.2 The respondent also submitted that without prejudice to the foregoing argument they reject the contention that the complainant was discriminated against in relation to the interview on the race ground. They submit that the complainant scored the highest in the paper screening exercise and got through to the first interview where he again scored well and he was put through to the final interview. It was submitted that all the candidates were asked about their educational qualifications at both interviews and that any candidate who did not meet the requirements were ruled out at the screening stage. The respondent selected eleven applicants for the final interview. The candidates were assessed under five criteria including education and training and the complainant scored the same under this heading as the successful candidate and only one other candidate scored higher under education and training. The successful candidate scored higher than the complainant under the four other criteria which were motivation, work experience, communication and the presentation.
4.3 The respondent submitted that they have many instructors who hold the same craft certificate from the City & Guilds London Institute in Northern Ireland as the complainant. They also have instructors who hold craft certificates from both the Northern Ireland Institute and the United Kingdom Institute. The successful candidate did not hold a Craft Certificate but he did hold qualifications as a shipwright which was an equivalent qualification in carpentry and joinery and before taking up the position he was awarded a National Craft Certificate by Sligo IT. The candidate who was placed second had City and Guild qualifications. The respondent rejects the complainant's contention that they disregarded his City & Guild qualifications and stated that the successful candidate performed better at the final interview that the complainant.
5. Conclusions of the Equality Officer
5.1 The issue for decision in this case is whether or not the respondent discriminated against the complainant on the race ground, in terms of section 6(1) of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts as regards access to employment. However before making a decision on the substantive issue I must be satisfied that the complaint is properly and validly before the Tribunal. Section 77(5)(a) of the Acts provides:
"Subject to paragraph (b), a claim for redress in respect of
discrimination or victimisation may not be referred under
this section after the end of the period of 6 months from
the date of occurrence of the discrimination or victimisation
to which the case relates or, as the case may be, the
date of its most recent occurrence."
5.2 Therefore I have to examine the evidence to establish the most recent date of the alleged discrimination. The interview took place on the 27th of August 2007 and the complainant was notified by letter dated the 9th of November 2007 of the result of the interview and the complaint was received by the Tribunal on the 25 of July 2008. Therefore the 9th of November 2007 is the most recent occurrence of the alleged discrimination and in order to comply with the statutory time frame the complaint should have been received by the Tribunal on the 8th of May 2008. The complainant's union representative argued the most recent occurrence of the discrimination was the 26 of January 2008, the date the complainant received a response to their letter of the 7th of January 2008. This letter was dated the 17th of January 2008 and it is in response to issues raised by the complainant in relation to the interview process. I am satisfied that the letters between the parties do not raise a new act of alleged discriminatory treatment. Therefore the 9th of November 2007 is the relevant date for the purposes of calculating the 6 month reference period. I am satisfied therefore that the complaint was referred to the Tribunal outside of the six month time limit provided for in section 77(5)(a) of the Acts. I find that the complaint is not validly before me
5.3 Section 77(5)(b) of the Acts provides that an extension of time may be granted in certain circumstances. The Act states:
77(5)(b) "On application by a complainant the Director or Circuit
Court, as the case may be, may, for reasonable cause,
direct that in relation to the complainant paragraph (a)
shall have effect as if for the reference to a period of 6
months there were substituted a reference to such period
not exceeding 12 months as is specified in the direction;
and, where such a direction is given, this Part shall have
effect accordingly."
The complainant did not apply for an extension of the statutory period for referring a complaint. Nevertheless I have examined whether or not there is reasonable cause for extending the time limit as provided for in Section 77(5)(b) cited above. I note that the complainant relied on a letter from the respondent dated the 17th of January 2008 as the date the last occurrence of the alleged discrimination. He provided no reason for waiting until the 25th of July 2008 to refer the complaint other than to say that his union representative wrote to the respondent on the 3rd of April 2008 and received no response. I am not convinced by the evidence that this letter was ever sent to the respondent. Even if the letter was sent the absence of a reply from the respondent is not sufficient evidence to establish "reasonable cause" to extend the time limit. Therefore, I am satisfied that there was no evidence adduced at the hearing which would justify an extension of the statutory time limit of 6 months for the referral of a complaint to this Tribunal.
6. Decision
6.1 I find that the complainant referred his complaint outside the six month time limit prescribed at Section 77(5)(a) of the Employment Equality Acts, 1998-2008. I also find that the complainant has failed to show that there was reasonable cause for referring the complaint outside the six month time limit and therefore an extension of the time limit of six months is not warranted in the circumstances under section 77(5)(b) of the Acts. Accordingly I find that the complaint is not validly before the Tribunal and I have no jurisdiction in the matter.
________________________
Marian Duffy
Equality Officer
16th June 2011