The Equality Tribunal
Employment Equality Acts 2000 to 2011
EQUALITY OFFICER'S DECISION
NO: DEC-E2012-031
Parties
Gary Tramba
(Represented by Mr. Michael MacNamee BL on the instructions of Patrick W. Boland Solicitors)
V
Riverbank Arts Centre Limited
(Represented by Reidy Stafford Solicitors)
File No. EE/2009/399
Date of Issue: 20 March 2012
Keywords:
Employment Equality Acts - Access to employment - Race - Prima Facie Case
1. Dispute and delegation
1.1 This dispute concerns a complaint by Mr. Gary Tramba (hereafter "the complainant") that he was subjected to discriminatory treatment by Riverbank Theatre Company Limited (hereafter "the respondent") on the ground of his nationality. The complainant maintains that he ought to have been selected for interview in a competition for an 'Arts Centre Venue Manager'. The complainant submitted that the respondent refused, omitted or neglected to properly assess his C.V. and that this refusal omission or neglect arouse because the complainant's theatre specific experience was acquired outside this jurisdiction.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 8 October 2009 under the Employment Equality Acts. On 17 November 2011 in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 3 February 2011. A copy of the job advertisement and job description were received on 7 February 2012. A reply from the complainant in relation to the job description was received on 16 March 2012.
2. Case for the complainant
2.1. The complainant is an Austrian national. He has resided in Ireland for a number of years and accumulated management experience from a variety of sectors. Prior to his relocation to Ireland, the complainant has acquired a Diploma in Stage and Light management and had worked as a Stage Manager for 13 years in one of the world's leading theatre companies in Vienna. The complainant received notification that the respondent was recruiting for, inter alia, Arts Centre Venue Manager. As the complainant considered that he had an appropriate background for this role, he sent in his application.
2.2. The complainant, who emphasised that he was not accusing the respondent of racism, maintains that with his experience and qualifications he ought to have been short-listed for interview. The complainant submitted that the reason why had not been called for an interview was because the respondent had failed or omitted to take into consideration his education and experience from Austria.
2.3. The complainant queried why the short-listing for interview process did not contain any consideration for catering related experience as per the job advertisement?
3. Case for the respondent
3.1. The respondent denied that the complainant's nationality had any bearing on the respondent's decision not to call him for interview. It was also denied that the complainant's application had not been properly assessed and/or that the complainant was not afforded recognition for his work experience and qualifications in Austria.
3.2. The respondent relied on Client Logic t/a UCA+L v Kulwant Gill EDA0817. Here the Labour Court acknowledged that the qualifications and criteria which are to be expected of each candidate in filling an employment vacancy is a matter for the employer in every case. It was submitted that unless the complainant can demonstrate manifest irrationality and/or clear evidence of unfairness in the selection process it is not a matter for this Tribunal to look behind the respondent's decision to select another candidate.
3.3. It was submitted that the recruitment of staff with the respondent was based on a clear set of criteria. The respondent had a number of vacancies at the time and the selection criteria for each role had been decided in advance of any assessments. Each applicant was scored in accordance with the C.V. submitted.
3.4. The respondent received 23 applications for the disputed post. Three persons assessed the received applications and C.V.s against predetermined criteria. As it had been decided that the interview board would sit for one day in relation to this role, the initial assessment needed to identify 8 of the most suitable candidates. The strongest candidates scored between 142 and 216 points (out of 300). The complainant had scored 117 points.
3.5. It was acknowledged that an exception had been made in relation to one candidate. While she did not score as well as the eight strongest candidates had scored on the C.V. assessment exercise, her application had been viewed as exceptional. Because the application 'stood out' a decision had been by the assessors to offer this candidate an opportunity to attend an interview. This offer to attend the interview had been declined by the applicant and thus only eight interviews, as originally planned, went ahead.
3.6. The complainant was notified by letter dated 14 April 2009 that he was not short-listed for an interview. Subsequently, having received the complainant's complaint letter, the respondent wrote to the complainant informing him that the article he was citing in a named local newsletter was erroneous in naming a person as the new manager of the arts centre. The article was referring to the Chair of the Board of Directors for the respondent.
3.7. The respondent objected to the complainant's request to have access to the applications that had been deemed suitable for interview stating that this was a fishing exercise on behalf of the complainant. The respondent relied on section 76(4) of the Acts stating that it had no duty to furnish or disclose any reference or report relating to the character or suitability for employment of any person.
3.8. It was submitted that the complainant had not established a prima facie case and therefore there was no duty on the respondent to rebut the complainant's case. The respondent relied on Melbury v. Valpeters EDA0917 and stated that the complainant was making mere assertions - without supporting evidence - linking his nationality with the respondent's decision not to call him for an interview.
4. Conclusion of the equality officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. 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. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
4.2. I It is well established in law that in considering the question of whether or not a complainant has been discriminated against in respect of appointment to a particular post, it is not for this Tribunal to form any view on the merits of the complainant or his/her suitability for appointment, rather it is to determine whether or not the respondent's decision was tainted by unlawful discrimination on the ground advanced. It is not the role of this Tribunal to step into the shoes of the interview board/selection committee in order to determine the most suitable candidate.
4.3. The Labour Court has noted in A Government Department and An Employee EDA062 that there is no exhaustive list of factors which can give rise to an inference of discrimination. However, in cases involving access to employment, a lack of transparency and/or manifest irrationality in the decision making process is sufficient for an inference of discrimination to arise. In HSE v A Worker EDA1011 the Labour Court held that "the qualifications or criteria which is to be expected of candidates is a matter for the employer in every case" provided the qualifications and/or criteria are not indirectly discriminatory on any of the proscribed grounds.
4.4. Manifest irrationality will arise in circumstances where on its face a successful comparator is clearly less qualified and/or experienced than the complainant. The complainant provided no evidence to support such an assertion. It is clear that the complainant had mistaken the successful candidate's identity initially. No case was made supporting an argument that the successful candidate was clearly less qualified than the complainant. I appreciate that the complainant had sought information pertaining to successful candidates in the context of this investigation and a request at the hearing had been made to open the successful candidates' C.V. to the investigation. The respondent objected to this stating that this was merely a fishing expedition by the complainant where the complainant was hoping to stumble upon something that could be used in his claim. Furthermore, reliance on section 76(4) was sought. I find that section 76(4) relates to the complainant's right to information prior to the initiation of an equality investigation. It is clear that no employer has a duty to furnish disclose any reference or report relating to the character or suitability for employment of any person and that I cannot take any inference from such refusal prior to the actual investigation itself. I do find that the Acts provide me with the jurisdiction to order the disclosure of such documents to a private and confidential investigation provided that I am satisfied that there is at least an inference of unlawful discrimination contrary to these Acts. Having heard the full facts of this case I am not satisfied that the complainant's case was sufficient enough to give rise for such an order.
4.5. It is clear to me, having heard the respondent witness, that all the applicants for the disputed post were assessed on 4 broad areas in the initial short-listing exercise. These criteria objectively appear to be relevant for the position. They relate to education, relevant experience (artistic, theatre and general management), general management experience (Financial planning, HR, Health and Safety, Voluntary Board Service, Team leadership and Arts experience) and communication (Marketing, Artistic Achievement and Community). I have found no evidence that any of the above criteria used are indirectly discriminatory on the nationality/race ground.
4.6. Having investigated the matter I am left with no doubt that complainant's C.V. was assessed against the above criteria. I note that the complainant believes that he ought to have scored higher grades in certain areas but there is nothing to support an assertion that the grades were influenced by the complainant's nationality. I also note that even with the complainant's own corrections to the assessment process his grade would not have improved sufficiently enough to reach the top eight.
4.7 The complainant submitted at the hearing that the selection criteria used did not match the job advertisement that he had received. He claimed that the job specification had also referred for catering related experience as the complex also has a coffee shop/restaurant. As no copy of the job advertisement was available to the investigation I requested that the respondent submit same to me. A reply period was also extended to the complainant. Having perused the advertisement/job description thoroughly I am satisfied that it contains no reference to catering.
4.8. I have found no evidence to suggest that the decision not to call the complainant for an interview had any nexus with the protected ground. I am satisfied that the short-listing process in this case was not tainted by unlawful discrimination.
4.9. A further complaint relating to freedom of expression - clearly outside this Tribunal's jurisdiction- was not pursued at the hearing.
5. Decision
5.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the complainant has not established a prima facie case of discrimination on the race ground.
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Tara Coogan
Equality Officer
20 March 2012