FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : GREENCAPS LTD (PLATINUM AIRPORT SERVICES) (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - VYTAUTAS JURSKA DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2008.
BACKGROUND:
2. The Worker appealed the decision of the Equality Officer to the Labour Court on 27th January, 2012. A Labour Court hearing took place on the 7th June, 2012. The following is the Court's Determination:
DETERMINATION:
- This is an appeal by Vytautas Jurska (the Complainant) against the decision of the Equality Tribunal in his claim of discrimination against Greencaps Ltd (the Respondent). The claims are made under the Employment Equality Acts 1998 – 2011 and are on grounds of gender and race. They relate to the filling of a job vacancy by the Respondent at Dublin Airport.
The Equality Tribunal found that the claims were not well founded. The Complainant appealed to this Court.
Facts
The material facts giving rise to these claims are not in dispute and can be briefly stated.
The Respondent is an organisation which is primarily concerned with placing persons who are long-term unemployed in employment. Its main catchment area is located in Ballymun. The Respondent provides customer services agents to the Dublin Airport Authority who are engaged in assisting U.S. immigration officials in pre-checking documentation.
In or about January 2008 an employee of the Respondent placed an advertisement on a FÁS web site inviting applications for a‘female customer services agent’. The advertisement also stated that‘foreign nationals must have police clearance.’On seeing the advertisement the Complainant contacted the person to whom applications were to be addressed to enquire about the vacancy. He was told that it was for female applicants only.
Nevertheless the Complainant sent his CV to the Respondent by e-mail and indicated that he wished to be considered for the vacancy. The Complainant received an e-mail from the Respondent on 14thMarch 2008 informing him that his application was unsuccessful.
Position of the parties
The Complainant contends that he was qualified for the position. He submitted that the Court should infer from all the surrounding circumstances that his application was rejected because of his gender or because he is not Irish. He says that the position was filled by a woman who is from Ireland. The Complainant relies on the content of the job advertisement and on being told verbally that the positions was reserved for a woman in advancing his claim of discrimination on gender grounds.
The Complainant further relies upon a conversation which he claims to have had with a named representative of the Respondent in relation to the job vacancies in which he claims to have been told that before he could be considered for employment he would have to obtain a security check certificate and that it takes three weeks for foreign nationals to obtain such a certificate. The Complainant relies on this requirement in advancing his claim of indirect discrimination on race grounds.
In his written submission to the Court the Complainant particularised four claims of discriminatory treatment as follows: -
1StIncident: – The placing of the advertisement specifying that a female customer services agent was required constituted an act of discrimination against him
2ndIncident: - Being told by a named representative of the Respondent that the vacancy was reserved for a woman was a further act of discrimination
3rdIncident: Being told, after he sent in his CV, that the Respondent was seeking only female candidates, was also discrimination.
4thIncident: Being informed that a foreign applicant for employment required security check certificate which took three weeks to obtain was an act of indirect discrimination on the grounds of race
The Respondent
The Respondent accepts the offending advertisement was placed by one of its employees. It fully accepts that when the content of the advertisement was discovered it had already been posted on the FAS website. Evidence was given by Mr Martin Breen who is a Director of the Respondent. He said that a short list of applicants had been prepared by a named employee from CVs received. There were a large number of applicants and they included men and women as well as Irish and non-Irish applicants. According to Mr Breen a son of the employee who compiled the shortlist was included on it but that this candidate was not successful. A woman of German nationality was eventually selected. The witness accepted that in the course of the hearing before the Equality Officer he said that a Irish woman had been employed.
This witness told the Court that men and women were interviewed by him as were candidates of various nationalities.
Conclusion
The Respondent fairly accepts that the placing of the discriminatory advertisement is a fact from which discrimination can be inferred. Consequently the Respondent accepts that it bears the onus of proving the absence of unlawful discrimination against the Complainant in filling the vacancy in issue.
The Court has considered the direct evidence given by the person who conducted the interviews for the post. The Court accepts that this witness gave honest and reliable evidence to the best of his recollection. That evidence disclosed that both men and women were interviewed for the vacancy. The Court further accepts that those interviewed comprised candidates of both Irish and non-Irish nationality. The Court further accepts that the person appointed was not Irish.
In these circumstances the Court has concluded that, notwithstanding the content of the advertisement, the Respondent did not in fact confine the competition for the vacancy to women candidates. Rather, it is clear that both men and women were considered. Hence the Court is satisfied, on the balance of probabilities, that the reason why the Complainant’s application was unsuccessful was unrelated to his gender. Having accepted that the successful candidate was not Irish the Court likewise accepts that the Complainant’s nationality was unconnected with the decision not to short-list him for interview.
Determination
Having so concluded the Court disallows the Complainant’s appeal and affirms the decision of the Equality Tribunal.
Signed on behalf of the Labour Court
Kevin Duffy
5th July, 2012______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.