Complainant

Respondent

Parties

Mercy Okooboh Ebenade

City Jet                                            Designated Activity Company

Representatives

Richard Grogan                                            Richard Grogan & Associates

Lefre De Burgh                            Penninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00022894-001

25/10/2018

The Complainant herein has referred a matter for adjudication as provided for under Section 77 of the 1998 Act (as amended). In particular the Complainant (as set out in her Workplace Relations Complaint Form dated 25th of October 2018) seeks redress from the Respondent in circumstances where she claims the prospective Employer/Respondent behaved unlawfully and discriminated against her in the course of the process of securing a job with the Respondent and that she was treated less favourably than another person has or would have been treated in a comparable situation on the grounds of her race (as detailed in Section 6 of the 1998 Act (as amended)).

The Complaint has been brought within the six months from the date of the occurrence and therefore within time limits.

Section 6 of the Employment Equality Act 1998 (as amended) where

Sub Section (1) For the purpose of this Act…discrimination shall be taken to have 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) (the “discriminatory grounds”)….

Sub Section (2) As between any 2 persons the discriminatory grounds..are…

(b)    That they are of a different race, colour, nationality or ethnic or national origins …(“The Ground of Race”)…

It is noted that in Section 8 of the Employment Equality Act 1998 - the employer shall not discriminate against an employee or prospective employee in relation to access to employment.

In the event that the Complainant is successful it is open to me to make an award of compensation and /or give direction on a course of action which might eliminate such an occurrence in the future (per Section 82 of the 1998 Employment Equality Act).

The Complainant did not give direct evidence. The Complainant relied on the statement she submitted along with her Workplace Relations Complaint Form.

The Complainant is relying on a series of email communications which she asserts when taken at face value (or to have their ordinary meaning) present a Prima Facie case that she was offered a job which was subsequently withdrawn by reason of her having being identified as not being a good “culture fit” for the company.

The Respondent vehemently rejects any and all allegation of discrimination and I heard from a number of Respondent witnesses together with a third party agent witness in support of the Respondent’s case that whilst a very regrettable series of events may have arisen it is not correct to draw an inference of discrimination therefrom. The Respondent provided me with a submission wherein the following points are made:

1.      If the Claimant cannot discharge the initial probative burden required of her, her case is incapable of succeeding. Furthermore, it is the Respondent’s position that the Claimant cannot possibly discharge her initial probative burden, as the facts which putatively underpin her claim simply never happened, at all.

2.      It is insufficient for the claimant to make mere assertions in order to discharge her initial probative burden. The Respondent refers to the decision of Melbury Developments v Arthur Valpetters (EDA0917) where the Labour Court, whilst examining the circumstances in which the probative burden of proof operates held as follows –

"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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.”

3.      It is submitted that the Claimant has speculated and made mere assertions only, as to the reasons she believes she was not offered a job and has not established any facts substantiated by any evidence. It is asserted by the Respondent that that Claimant’s speculations and assertions are without foundation.

4.      The Respondent further submits that the Claimant has entirely failed in the first instance to establish a prima facia case with regards her reasons for believing she was not offered the job as being discriminatory, specifically relating to race.

I have carefully considered the evidence adduced in the course of two days of hearing. The first date was terminated to allow for a witness from a recruitment agency provide crucial evidence and I am grateful to said witness for making himself available.

The Respondent company was seeking to recruit a high-level Organisation Development Manager and had reached out to a Mr. V who provided recruiting services. It was Mr. V who put the Complainant forward for interview for the position. On the 3rd of September 2018 the Complainant had a rigorous two hour interview with the HR Manager Mr. B of the Respondent company. I absolutely accept that the Complainant believed that this would be a one-step interview process (per Mr. V email on the 20th of August 2018) so that when she heard back form Mr. V on the 6th of September that she had been successful she quite rightly in the circumstances believed that the job was hers. I accept therefore that as far as the Complainant was concerned, the subsequent proposed informal chat was not intended to operate as a second interview.

However it is an unavoidable truth that the proposed Employer who is also the Respondent herein had not made any final decision regarding the filling of this post and on the 6th of February had written to two recruitment agencies (of which Mr. V represented one) looking for two potential candidates (one of whom was the Complainant ) to make themselves available to met with two other members of the HR tream:

“..for a 45 minute casual chat prior to any potential offer being made.” Per letter from Mr. B written on the 6th of September.

As previously stated, I sought the opportunity to hear the evidence of Mr. V first hand. He presented on the second day of hearing and he confirmed that he had made a mistake in writing to the Complainant stating she had the job as it was a misrepresentation of what was patently clear from the letter from Mr. B. This was a profound and far reaching mistake on the part of Mr. V who created the impression that the Complainant had been successful.

I have to accept that even though the second meeting was described as a casual chat there was undoubtedly an expectation of presentation which, of itself, implied an element of assessment. Therefore, although the Complainant believed herself to be the only candidate left, she should have known that this meeting would be no less important for the purpose of securing this position.

The Complainant attended the proposed casual chat and was clearly faced with a meeting somewhat different to what she had anticipated.

After the second round of interviews conducted by two HR personnel for the Respondent Company (on or about the 10th of September) it became clear that there was no job offer and the Complainant wrote to Mr. V (on September 13th ) stating that she was finding it difficult to understand why the job offer had been withdrawn.

At a point unknown but before the 17th of September and presumably after the 10th of September the Complainant says that Mr. V said to her that the offer had been withdrawn because she was not a good “culture fit”. This accusation was not something Mr. V addressed in his contemporaneous and limited correspondence with the Complainant but he vehemently denied it in the course of evidence. I have been asked to consider the failure by Mr. V immediately to challenge this phrase being used as some sort of admission or confirmation that the phrase had been used by the Respondent.

There is no doubt that if the Complainant had had either a job offer withdrawn or a job not offered by reason of an assessment of her not being a good “culture fit” then she would clearly have established a Prima Facie case of discrimination and the burden of proof would have shifted, with the onus now on the Respondent toadduce evidence to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant (principle enunciated in Dyflin Publications v Invana Spasic (EDA 823).

I find I have a huge amount of sympathy for the Complainant. However, I must determine whether she, in the context of her relationship with the named Respondent herein, is a disappointed job interviewee or a discriminated against job interviewee. It has been put to me that the Employer/Respondent is somehow responsible for all the Acts and utterances of the Recruitment Officer Mr. V, but I cannot accept this can be an absolute responsibility. For example, Mr. V clearly acted outside of his written instructions, and offered the job when he should not have done so. Mr. V raised expectations where he should not have done so. In giving evidence Mr. V did not appear to me to have much insight into how damaging his role had been.

At the heart of this case is whether or not I believe that the Employer herein – through a member of its HR staff decided not to employ the Complainant by reason of her cultural background. Unfortunately for the Complainant I cannot find that this case has been made out. The phrase “culture fit” was introduced by the Complainant arising out of a conversation she had with Mr. V who she says alleges he was told this by someone in Respondent HR. This amounts to the Complainant’s account of a conversation between two parties both of whom deny such a thing was ever said or suggested or contemplated. The Complainant is asking me to believe her version of a conversation to which she was not a party. I have difficulty with this. I also have difficulty with drawing inferences of wrongdoing because Mr. V did not deny the use of the words at the time. And in any event that alleged failure does not reflect on the Respondant.

I cannot find that the Respondent has behaved unlawfully or otherwise discriminated against the Complainant.

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00022894-001 – This claim fails