FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : KERRY COUNTY COUNCIL (REPRESENTED BY LGMA) - AND - KAMIL JURCZEWSKI DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.
BACKGROUND:
2. This case is an appeal under Section 83 of the Employment Equality Acts 1998 to 2011. A Labour Court hearing took place on 5th October, 2012.
The following is the Court's Determination:
DETERMINATION:
This is a an appeal by Kerry County Council (the Respondent) against a decision of the Equality Tribunal DEC-E2012-115 issued on 4th September, 2012. The Tribunal decided that a complaint made by Mr Kamil Jurczewski, (the Complainant) a Polish national, that he was, on the race ground, contrary to section 6(2)(h) of the Employment Equality Acts 1998-2011, denied access to employment, contrary to section 8(1)(a) of the Acts, was well founded. The Tribunal awarded the Complainant compensation in the sum of €7,500. The Respondent appealed against the Decision to this Court.
Background
In early 2008 Kerry County Council placed a public advertisement seeking applications for a number of vacancies for life guards for the summer season. The Complainant, who is a Polish national and was then resident in Poland, responded to the advertisement. He was, together with all other applicants, invited to attend at venue in Tralee Co. Kerry on the 3rdMay 2008 to undergo a practical test of both his landside and pool side skills. The test was administered on behalf of Kerry County Council by personnel from the Irish Water Safety(IWS). In addition the Complainant was required attend at Ballyhaigue beach on the 4thApril 2008 to undergo an open water skills test set by the Irish Water Safety. This latter test was mandatory for all applicants that did not hold current certification with IWS . In the event all of the Irish applicants for the posts held current certification. The three applicants from Poland did not and were scheduled to undergo testing on the 4thMay 2008.
It is common case that the Complainant was greeted in Tralee by an official of Kerry County Council who then invited all of the “travellers” to step forward. It is common case that this invitation elicited general laughter from those present. The Complainant took offence at this comment as he considered it a term of abuse. Nevertheless he stepped forward along with another applicant that had travelled with him from Poland.
He was placed in a group for testing. The test was in three parts. The first part was a pool based test in which the Complainant scored 101 marks out of a possible 150 marks. The second test was a land side resuscitation test.
Candidates were required to achieve a total mark of 25 to pass this test. Four distinct skills were tested. The skills did not carry equal weight. Marks were awarded to each candidate under each of the headings. A pass mark was achieved if the sum total of the marks awarded in respect of each of the skills was 25 or greater. The combined total of the marks awarded to the Complainant was 25. Subsequently the examiner reviewed the overall mark and decided to reduce the total to 24; a decision that had the effect of failing the candidate.
The Complainant had expected to travel to Ballyhaigue beach the following day to undertake the open water test. However he was told that the test, at the request of the Irish Water Safety, had deferred the test until 17 April 2008. The Council told the Court that the Irish Water Safety considered it unsafe and inappropriate to proceed with the open water test with those candidates at that time. The Complainant was told that he should return to Kerry on 17thMay to undergo the test.
The Complainant returned to Poland with the intention of returning to undergo the open water test on the 17thMay as scheduled. He subsequently exchanged emails with Kerry County Council regarding his application for employment. In the course of that exchange Kerry County Council advised him that he had failed the pool side and resuscitation test and that he did not now qualify for appointment and should not now take the open water test.
He sought copies of the marks he had been awarded in the pool and resuscitation tests. He discovered that the marks he had been awarded had been reduced from 25 to 24, in effect from a pass to a fail. He also observed that he had been awarded no marks for the certificate in first aid that he held despite a provision in the job advertisement that such a certificate would attract additional marks. He learned that his colleague that had attended the test in Tralee with him had also failed the pool and resuscitation test and had not been called back for the open water test. He later learned that another Polish applicant had been advised by email on the 15th May 2008 that he had been successful in the pool and resuscitation test and was required to attend in Kerry on the 17th May to take the open water test. That candidate advised Kerry County Council that this was insufficient notice and sought an alternative test date. The Council wrote back to him on 28 May advising him that it would set another date. However no new date was set and the applicant subsequently decided not to proceed further with his application for employment.
The Complainant then submitted a complaint of discrimination on the Race ground under the Act.
Complainant's Case
The Complainant submits that as a citizen of the European Union he is entitled to apply for and to work in any member state. He submits that he applied for an advertised vacancy as a life guard with Kerry County Council in 2008. He submits that he prepared for the interview by acquiring a certificate in First Aid from the relevant water safety authority in Poland. The course was conducted by the Red Cross that he submits is a reputable international body. He submits that he was a competent swimmer having trained with the University of Warsaw swim team. He submits that he and a colleague had trained while studying in Warsaw University in preparation for the tests that Kerry County Council had planned. He submits that as part of their preparation they had reviewed the safety standards required of life guards by both Kerry County Council and Irish Water Safety.
He submits that he was advised that he was required to undergo both pool rescue and resuscitation tests in Tralee on 3rd May 2008 and an open water test in Ballyhaigue beach on the following day the 4th May. He submits that he made travel arrangements to meet these requirements at considerable personal expense. He submits that on arrival in Tralee he was greeted as a "traveller". He submits that he was aware that the term “traveller” was sometimes used as a colloquial term of abuse in Ireland. He submits that when he was called a "traveller" it was a cause of laughter amongst the other applicants congregated around the swimming pool. He submits that he successfully completed the tests that were set for him. However despite securing a pass mark he subsequently discovered that the marks were altered with the effect of failing him in the test. He submits that the marks awarded to him were not consistent with the competence he displayed in the resuscitation course he successfully completed in Poland shortly before travelling to Ireland. He submits that he was awarded no marks for the first aid certificate he held despite the express provision in the public advertisement to the effect that possession of such a certificate would attract additional marks. He submits that the open water test originally scheduled for May 4thwas rescheduled for no good reason. He submits that this had considerable cost implications for him as he had to travel back from Poland on another day to take the test. He submits that the decision to disqualify him from the open water test on foot of the decision to fail him in the pool rescue and resuscitation tests was inconsistent with the terms of the public advertisement of the vacancy. He submits that his colleague was treated in a similar manner. He was tested and failed by the same examiner in the poolside and resuscitation tests. He submits that the examiner in question failed no Irish candidate in that test. He submits that he had served as a senior lifeguard in 2007 with Donegal County Council at Fintra beach. He submits that this demonstrates that he had the necessary skills to undertake the work of a lifeguard in Ireland. He submits that Donegal County Council provided him with excellent references that had been supplied to Kerry County Council as part of his application for the post. He submits that the third Polish candidate was successful in the pool rescue and resuscitation tests but had been unfairly notified on the 15th of April of a postponed open water test in Kerry scheduled to take place on the 17th of April. He submits that there were 39 candidates for 32 posts. Thirty six of the candidates were Irish; 3 were Polish He submits that none of the Polish candidates were successful in the competition. He submits that the Polish candidates had considerably longer experience in water rescue and resuscitation techniques than a number of successful Irish candidates. He submits that, when considered as a whole, his treatment by Kerry County Council reveals a race based bias against his that is contrary to law.
The Complainant requested that the Court, in accordance with the provisions of Council Regulation (EC) No 1206/2001, arrange for a court in Poland take evidence from another Polish applicant for the post, a Mr Bartosz Ostrowski. He told the Court that Mr Ostrowski would give evidence
•That he and the Complainant prepared together for the recruitment process during the academic year 2007/2008 whilst on an Erasmus scholarship at Warsaw University.•Of his view of the Complainant's performance in the tests conducted by Kerry County Council compared to several Irish candidates that were tested on the same day.
•That they were both addressed as “travellers” by an official of Kerry County Council on the morning of their arrival in Tralee.
•That the recruitment procedure consisted of two parts viz. a pool and resuscitation test and open water test
•That the date of the outdoor test was changed from the 4thMay to the 17thMay without notice.
•That none of the Polish candidates was successful in their applications for appointment
•That he had serious reservations about the impartiality or fairness of the test
•That, to his knowledge, the Complainant had a thorough knowledge of the Irish Water Safety Council lifeguard and first aid standards
•That, to his knowledge, the Complainant was a proficient lifeguard.
Respondent's Case
The Respondent submits that the Complainant applied for a vacancy as a lifeguard but did not display sufficient competence in the pool rescue and resuscitation test to merit appointment to the post. It submits that Irish Water Safety is the statutory body charged with the supervision of water safety in Ireland. It submits that it conducted a fair and impartial assessment of the applicant's skills in pool rescue and resuscitation test and concluded that he was not of a sufficient standard to warrant a pass mark in the test. It submits that an official of Kerry County Council welcomed the Complainant to the venue in Tralee on the 3rd of May 2008. It submits that many people had travelled a long distance to undergo the tests. It submits that the official sought to identify those that had travelled long distances so as to accommodate them with an early test to facilitate an early return home. It submits that the official used the term "traveller" in that context and that no other meaning was intended. It submits that all applicants that had not renewed their Irish certification with Irish Water Safety within two years of the date of the interview were required to undergo an open water test. It submits that all of the Irish candidates were in possession of current certification. It submits that none of the Polish candidates had current Irish certification and accordingly were required to undergo open water testing. It submits that Kerry County Council, on the advice of the Irish Water Safety, on safety grounds, deferred the open water tests until the 17th May. It submits that the Complainant was advised of his marks in an exchange of emails with the Council following his return to Poland after the initial tests had been completed. As the Complainant had failed to pass the pool rescue and resuscitation tests the Council considered it pointless to call him back to undergo an open water test when his application could not be successful no matter how well he performed in that test. It submits that the practice of the Council is to award marks to candidates who held a certificate in first aid in circumstances where two candidates are otherwise scored equally in the overall competition. It is not the practice to award additional marks in other circumstances. Accordingly the Complainant was not awarded marks on this occasion. It submits that notification sent on the 15th May to the third Polish candidate requiring him to attend in Kerry on the 17th May to undergo an open water test was the result of administrative error that was corrected when he contacted the Council. It submits that that person was notified on the 28th May that a further date for the test would be arranged and inviting him to contact the Council for that purpose. In the event he did not contact the Council to set another date. Instead he effectively withdrew from the competition. It submits that 39 applicants applied for 32 positions. Three Polish candidates applied. It submits that they were treated no differently to any other candidate save in respect of the open water test for reasons outlined earlier. It submits that two of the candidates did not meet the standards required. It submits that the standards required apply equally to all applicants. It submits that the Water Safety Authority assessors were well experienced professionals who operated in the interest of the Council, the candidates and potential victims that might rely on the capacity of the lifeguard to save their lives in adverse and dangerous conditions. Nationality or race was not a factor in such an assessment.
Findings of the Court
Section 6 of the Act states:
[(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—
- (i) exists,
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned,
- (i) exists,
- (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),
(1) Subject to subsection (2) , for the purposes of this Act , in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if—
- (a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work,
- (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—
8. (1) In relation to—
- (a) access to employment,
an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.“Burden of proof
(2)Thissectionis without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.
The Court finds that the Complainant established facts that were of sufficient significance to give rise to an inference of discrimination in this case. Specifically he established the following facts
The application form required him to identify that he was not a citizen of Ireland but instead a citizen of the EEA. The Complainant worked as a senior lifeguard in Co. Donegal in 2006, was tested by the Water Safety Council of Ireland and declared competent for appointment, had successfully completed a Polish Red Cross course in resuscitation techniques that was recognised by the Statutory water safety authority in Poland, had been invited to distinguish himself as a "traveller" when he arrived in Tralee, had successfully completed the pool rescue and resuscitation tests set for him by the Water Safety Association of Ireland, his marks were subsequently reduced with the effect of causing him to fail the test, both Polish applicants were failed by the tester involved, no Irish applicant was failed by the tester, he was awarded no marks for holding a first aid certificate despite the clear statement in the advertisement that such marks would be awarded, all Polish applicants were required to undergo open water testing a requirement that was imposed on no Irish applicant, the date of the open water test was unilaterally changed from 4th April to 17th April, new conditions for the conduct of the examination were introduced and he was not invited to attend for an open water test as he had failed the pool rescue and resuscitation test, a third Polish candidate that had passed the pool rescue and resuscitation test was notified on the 15th April that he was required to attend in Kerry on the 17th April for an open water test, when Kerry County Council was notified that this date was unsuitable no new date was set, an email sent to that candidate on the 28th April did not set another date, none of the Polish applicants were successful in the competition, 39 candidates applied for the 32 posts, 32 Irish candidates were successful, 3 Polish candidates applied and none completed the testing process and none was successful in the competition.
The Court finds that taken together these facts taken together are sufficient to raise an inference of discrimination in this case.
In particular the Court finds that the explanation, offered by the Respondent, for the decision to reschedule the open water test was unconvincing, particularly in light of the fact that the Irish Water Safety Association was conducting beach lifeguard tests on Ballyhaigue beach on the day in question.
The burden of proof of compliance with the Act therefore shifts to the Respondent.
The Council failed to give a convincing explanation for the requirement for an applicant lifeguard to state his nationality on the application form. The Court understands that an employer must establish that a candidate for appointment must be entitled to work in Ireland. However citizenship of this state is irrelevant to the appointment. It would be sufficient that candidates identify that they are citizens of an E.U. state and are entitled to work in this country. To do otherwise is to require a candidate to distinguish himself from Irish applicants and thereby raise the possibility of discrimination based on nationality contrary to the provisions of the Act.
This situation was exacerbated by the greeting issued to the Polish candidates on their arrival in Tralee. The Court notes that a number of people had travelled from various locations across the country and the Council was anxious to accommodate them with an early test to allow them make their way home. However the manner in which this was done was such that the Polish candidates were easily distinguishable from all other travellers on the day.
The Court accepts the Council Official's explanation that the term traveller was used in this case to identify people that had travelled a distance to take part in the competition for appointment.
The Council argued that the pool side testing was impartial. However it could not explain adequately the tester's decision to alter marks he awarded during the test under each of the headings set out by the examiners. He stated that he felt overall that he could not stand over the candidate. However he gave no reason for this other than a feeling he had based on his experience as a tester.
The Court finds that explanation fundamentally unsatisfactory.
The candidate had clearly passed the examination having acquired sufficient marks under each of the headings set out by the examiners. Had the tester any doubts about these marks he could and should have arranged for a second examination of the candidate by a different tester against the criteria established for the conduct of the test. Moreover the tester could not identify the area of competence in which the Complainant was deficient. Rather, he rejected the arithmetic of his own assessment and reduced the Complainants marks from pass to fail with consequences for his entire engagement with the appointment process.
The Council failed to give an adequate explanation for the decision to alter the date for the open water test scheduled for the 4th April 2008. The Council states that Irish Water Safety officials had recommended the change on the morning of the interviews. However the Council also told the Court that the dates for the pool and outdoor testing had been arranged in advance with that body. Moreover the Court notes that Irish Water Safety conducted open water tests for beach lifeguards on the 4th April at Ballyhaigue beach. Accordingly there appears to have been no good reason for the change of date of the test.
The Court notes that the Polish candidates alone were required to undergo the open water test. However the Court accepts the council's explanation that none of those candidates had had their certification renewed within two years of the date of the competition for appointment. The Court also accepts the Council's submission that all of the Irish candidates had current certification with the Irish Water Safety Authority and accordingly were not required to undergo an open water test.
The Court does not accept the Council's explanation for its refusal to allow the candidate additional marks for the First Aid Certificate he held. The job advertisement and other documents clearly state that candidates will be awarded points for such certificates. The Council states that it only gave such additional points to separate equally qualified candidates in the competition. However no evidence of this practice was presented to the Court.
The Court does not accept the Council's explanation for the email notification to the third Polish candidate on the 15th April calling him to an open water test on the 17th April. The Council submitted that this was an error and that it was corrected and the candidate offered another date. However the candidate was not offered another date. He was written to again on the 28th April inviting him to get in further contact with the Council to suggest a date. At this time the start of the season is fast approaching and no offer of employment was being made subject to him successfully completing the open water test. Accordingly the Court takes the view that it is difficult to avoid the conclusion that this second email on the 28th April amounted to a delaying tactic designed to put off the candidate from further engagement with the competition. In the event that is precisely what it did.
The Court notes that the Council was aware from the Complainant's application form that he had served as a senior life guard in Donegal in 2006. Accordingly the Council could have been in no reasonable doubt as to the candidate’s capacity to discharge the functions of the post.
The Court also notes that 32 posts were advertised, 36 Irish people applied and 32 were appointed. 3 Polish candidates applied, 1 failed the pool rescue and resuscitation test, 1 passed it but was subsequently re-graded to a fail and the third was treated in an unfair manner in respect of the open water test.
The Court did not accede to the Complainant's requestunder Council Regulation (EC) No 1206/2006 to have Mr Ostrowski’s evidence taken by a Court in Poland. The Court put the witnesses proposed evidence to the Council. The Council told the Court that it did not dispute the facts of the proposed evidence. Accordingly the Court found that no purpose would be served by acceding to the request as all of the relevant facts were admitted by the Council. The Complainant agreed with the approach taken by the Court.
In all the circumstances the Court finds that the Council has failed to discharge the burden of proving that race was not a factor in the unfair manner in which the Complainant was treated in relation to access to employment as a lifeguard in 2008.
Determination
The Court finds that the respondent discriminated against the complainant on the race ground with respect to access to employment, pursuant to section 6(2)(h) of the Acts and contrary to Section 8(1)(a) of the Acts.
In accordance with Section 82 of the Acts, the Court orders that the Respondent pay to the complainant compensation in the sum of €10,000 in respect of the discrimination.
The Equality Officer's Decision is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
15th May, 2013______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.