THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011-091
PARTIES
Pierrot Gadi
-V-
Yeria Ltd t/a Dún na nÓg
File Reference: EE/2008/626
Date of Issue: 10th May 2011
Decision DEC - E2011-091
Pierrot Gadi
-V-
Yeria Ltd t/a Dún na nÓg
Keywords
Employment Equality Acts 1998-2008, Section 6(1) - less favourable treatment, Section 6(2)(h) - race, Section 8(1)) - access to employment, burden of proof - Section 85A, prima facie case.
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 26th September 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 20th May 2009 and from the respondent on the 9th July 2009. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 4th April, 2011.
3. Summary of the Complainant's Case
3.1 The complainant is from the Congo and has Irish citizenship since 2000. He applied for the post of Director of Services with the respondent in June 2008. On the 28th of August 2008 he was informed that he was selected for interview and that the respondent would be interviewing for the post on the 24th of September 2008. He said that he accepted the invitation to the interview and prepared the presentation requested for presentation at the interview. The complainant said that he sent two emails confirming his attendance and also enquiring about the time of the interview. He said that he received no response. He was working in Cardiff at the time and he booked a return flight and arrived in Ireland on the 23rd September 2008. He said that before he left Cardiff he telephoned the respondent and spoke to a director of the company to find out the time and location of the interview but she was out of Ireland on business and he did not get a satisfactory response. On the morning of the 24th of September he again telephoned the respondent and he learned that the interviews had been cancelled. He denied that the respondent sent him an email in early September informing him that they had cancelled the interviews because it was decided not to fill the position at that time. The complainant accepted that he was never given a time or location for the interview. He said that he should have been notified of the cancellation before he travelled to Ireland.
3.2 He submits that he was discriminated against on the race ground because he believes that he was the only applicant who was not informed of the cancellation. He said that the respondent, when they saw his name, knew that he was not Irish they decided for their own reasons to ignore him and not inform him that the interview was cancelled. He states that he was treated less favourably than the other candidates who were all told that the interview was cancelled.
4. Summary of the Respondent's case
4.1 The respondent denies that the complainant was discriminated against in relation to the interview on the race ground. The respondent is a private residential care provider for young people. The referrals are made by the HSE and any posts have to be approved by them. They advertised for the position of Director of Services and they received 17 applications. They selected 13 including the complainant for interview. They wrote to the all the applicants selected for interview stating that they would be holding interviews on the 24th of September 2008. In the letter to the complainant he was asked to confirm if the date was suitable and then they would organise a time for the interview. The complainant confirmed he was available on the 24th of September. On the 2nd of September the respondent decided at a board meeting due to uncertainties about referrals not to proceed with the post at that time. At the meeting a director undertook to email all the applicants and she did so on the 3rd of September 2008.
4.2 On the 23rd of September the complainant emailed the director of the company he was dealing with, but she was out of the country and did not get it. On the 24th of September the complainant telephoned the director and she informed him that the interviews were not taking place. He became very upset and asked for money for his flight and hotel expenses. The respondent submits that while the complainant was notified of the intention to hold interviews on the 24th of September the interviews were not formally set up in that no time or venue was given to the complainant.
5. Conclusions of the Equality Officer
5.1 The issues 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 notification of an interview for employment. Section 6 of the Acts inter alia provides:
6. -- (1) "For the purposes of this Act and without prejudice to its
provisions relating to discrimination occurring in particular circumstances,
discrimination shall be taken to occur where --
(a) 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) (in this
Act referred to as the ''discriminatory grounds'') which --
(2) As between any 2 persons, the discriminatory grounds (and
the descriptions of those grounds for the purposes of this Act) are --
......
(h) that they are of different race, colour, nationality or ethnic
or national origins (in this Act referred to as ''the ground
of race''),"
and Section 85A of the Acts provides:
"(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary".
5.2 This requires the Complainants to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only when they have discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. If the complainant does not discharge the initial probative burden required of him his case cannot succeed. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.3 The complainant submits that he was discriminated against on the race ground when the respondent failed to notify him of the cancellation of the interview. The respondent's case is that all the applicants short listed for interview were notified by email that they were not going to fill the post at that time. Notwithstanding this they also submit that the interviews were never formally arranged in that no time or venue for the interview had been notified to the complainant. The letter of the 28th of August 2008 clearly stated that he would receive such a notification if he was available for interview on the 24th of September and therefore he should not have travelled to Ireland without first confirming these details. I note that there were 17 applicants for the post and 13 were short listed for interview. I note that of the 13 short listed, 3 including the complainant were not Irish and the 4 who were not short listed were all Irish. Likewise I note that the respondent cancelled the recruitment process for the post and informed all the applicants by email. Even if the complainant did not get the email as he stated, I am satisfied that there was no formal interview set up giving the complainant the time and date of the interview and an inadvertent failure to notify him about the cancellation of the recruitment process would not in my view constitute discriminatory treatment. I find therefore that the complainant has failed to establish that he was treated less favourably than an Irish person or another person of a different nationality was treated or would have been treated in similar circumstances. Accordingly, I find that the complainant failed to establish a prima facie case of discrimination on the race ground.
6. Decision
6.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
(i) the respondent did not discriminate against the complainant on the race ground pursuant to sections 6(1)and 6(2)(h) of the Acts and contrary to section 8(1)(a) of the Acts in respect of access to employment.
________________________________
Marian Duffy
Equality Officer
10th May 2011