ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000107

Complaint for Resolution:

Date of Adjudication Hearing: 17/12/2015

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Complainant’s Submission and Presentation:

The complainant was employed as an Orchestral Assistant (henceforward OA) on a casual basis since 2001. In 2008 when the Senior Orchestral Assistant position was advertised he applied but. He was unsuccessful. He says he was told then that he was the second best candidate.

 Since then he worked as an OA when called upon and in September 2014, after the Senior OA retired, he filled the position of Orchestral Assistant up until May 2015. Apart from one other named employee he felt he was the most qualified and experienced candidate for the role of Senior Orchestral Assistant.

There were two competitions to fill posts in 2015.

The complainant believes he was overlooked for the position of Senior Orchestral Assistant as a result of discrimination based on his nationality, (he is Irish). He also claims indirect victimisation which he says is a consequence of his relationship with past and present members of the grade of OA’s.

He also felt that proposed changes in Orchestral Assistants’ "Terms and Conditions" by management affected his selection for the vacated position.

He expressed a belief that the orchestra Manager was prejudiced against him on the nationality ground as evidenced by her allegedly asking a non Irish national to work free of charge as Orchestral Assistant.

He says that there can be no reason other than race/nationality to explain the appointment of the Latvian candidate to the positon of Senior OA in June 2015.

The claim under the Equal Status Act was not pursued. No evidence was adduced of victimisation.

Respondent’s Submission and Presentation:

The respondent submitted that in September 2104 when the Senior Orchestral Assistant retired it restructured the positon; dividing those former duties between the Orchestra Manager and two OA’s on an interim basis.

The complainant was engaged through a contractor to fill one of the OA roles.

However this arrangement was unsatisfactory and it was decided to advertise the position in March 2015. The applicants comprised five Irish citizens, one Australian and two from the UK.

Objective criteria were set which were detailed in evidence at the hearing and an Interview Board set up and interviews were held. A scoring system was used. They showed the complainant scores to be the lowest by some distance; scoring 2/20 in relation to Supervising and Problem Solving, for example. He scored 46/100 compared to 91/100 achieved by two other candidates.

One of these (an Irish citizen) was offered the position but eventually declined thereby requiring a second competition.

In the interim the complainant was offered work as an OA but declined. He requested and was given feedback on the first interview by the HR Manager who gave direct evidence. A Latvian National AN was appointed to the role as OA in which he had no previous experience but did have other relevant experience in concert and event management.

The second competition took place in June 2015 and this produced three candidates including the complainant and AN who had been acting as an AO. The complainant scored lowest of the three candidates and AN was appointed.

DW the orchestra manager and who was a member of the interview board gave detailed evidence on the four specific areas on which candidates were questioned, and the venue layout test which was put to them. There were questions on maintaining the safety of instruments and on general Health and Safety issues. She gave detailed evidence on the scoring by each candidate under the four headings and on the nature of the answers given by the candidates.

The respondent says that of the three competitions for Senior AO in which the complainant competed two of the successful candidates were Irish nationals.

It rejects the specific complaint of bias against a named manager on the basis that the person named did not have the final role in decision making for orchestra appointments.

The decision as to who would be recommended for the position was made by the interview board, and not the sole individual alleged by the complainant to have been prejudiced against him, although no evidence was offered to support this.

The orchestra manager also gave evidence as to the different levels of responsibility between the OA and Senior OA.

Finally, the respondent made legal submissions on the burden of proof, relying on the principles enunciated in Mitchell v Southern Health Board (CUP) (AEE/99/8) and the requirement to establish sufficient facts on which a presumption of discrimination might be inferred, and the circumstances in which the burden of proof transferred to the respondent.

It further relied on the Labour Court decision in County Limerick VEC v John Cotter (EDA 0910) wherein it was decided that a simple difference in status cannot, of itself give rise to a presumption of discrimination of discrimination

Findings and Conclusions

I have considered all the relevant evidence, oral and written that was laid before me.

The complainant’s submission could be reduced to his statement that ‘he could see no other reason’ to explain the success of the successful, Latvian candidate. I find that he has failed by some way to establish a prima facie case of discrimination.

I find that the respondent conducted the interview process in respect of both competitions in 2015 to a high standard of best practise and integrity and that the interview board made its recommendations to the final decision maker based on the outcome of a rigorous, objective process which could not be faulted.

The complainant failed to challenge any of the evidence offered by the respondent as to its conduct of the competitions.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

For the reasons outlined in my findings I dismiss the complaints.

Dated:   25^th February 2016