ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00018470
Parties:
| Complainant | Respondent |
Parties | Magdalena Pudlak | The Carambola Ltd |
Representatives | Aine Feeney SIPTU Workers Rights Centre | John Barry Management Support Services (Ireland) Ltd |
Complaint(s):
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-00023662-001 | 30/11/2018 |
Date of Adjudication Hearing: September 14th 2020
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The Complainant alleged that she has been discriminated against by the company on grounds of her gender. The Complainant maintains the alleged discrimination relates to not securing a promotional position after being interviewed by the company and the position being awarded to a male. A prior Hearing on the matter in October 2019 resulted in a compromise being agreed between the parties regarding training for implementation over a period of time, however the Complainant sought a further Hearing in June 2020 and a decision on the matter. |
Summary of Complainant’s Case:
The Complainant commenced employment with the Respondent on the 24th May, 2009, in the position of General Operative. The Complainant has been in continuous employment with the Respondent company since that date. On commencement in employment the Complainant was assigned to the Packing Room and remained here to on or about Aug 2010 when she was transferred to the Warehouse. This remained the case for a period of two months due to service demands and throughout this time the Complainant carried out all tasks as required. The Complainant was then transferred to the office for a period of approximately one month and then she returned to the Packing Room. In the course of 2010 the Complainant applied for a position as a Vice Supervisor and the Complainant was unsuccessful. No rationale was provided by the company at the time, however a male candidate was successful. In 2015 the Complainant again applied for a position which became available as a Vice Supervisor/ Line Leader and again she was unsuccessful. Again, no interview feedback was supplied by the company and further on this occasion a man who was only 4 months with the company was successful. On the 20th August 2018 the Complainant applied for promotion, which had been advertised internally, again to the position of Supervisor with the Respondent for the position as advertised. A list of Skills and Characteristics were outlined as being skills which the candidates should have. On the 29th August 2019 the Complainant attended for interview with the Respondent. In the course of the interview the panel suggested that the Complainant would be unable to carry out the physical aspects of the job. This was disputed by the Complainant due to the fact that she has carried out such tasks in the past and further given that all staff have had Health & Safety Training which would deal with any concerns vis a vis Manual Handling. It was submitted at the Hearing that the remarks made by the interview panel directly related to the Gender of the complainant. On or about the 5th September the Complainant was advised by a friend that the position had been advertised externally when she immediately contacted the HR department, who confirmed that she had not been successful. It was submitted that the position was filled by a male candidate in or about October 2018 who had no previous experience in the Company of the Respondent. It was further submitted at the Hearing that the internal candidates for the position were both female and an inference can be drawn from the ultimate recruitment decision, coupled with the fact that the candidate appointed had no previous experience working for the Respondent Company, underpinned by the fact that the Complainant had 9.5 years service across a number of areas within the respondent company and had proven herself to be a respected member of staff. It was submitted that the Respondent did not appropriately respond to questions raised by the complainant under the prescribed form Under SI 321/1999. Further the Respondent confirmed that no marking criteria was used in the process. It was submitted that the Respondent failed to promote the Complainant as a direct result of her Gender. It was further submitted that the actions and omissions of the Respondent Company identified constitute direct discrimination arising from the complainant’s gender and are as such in contravention of the Employment Equality Acts and in particular Section 6 & 8 thereof. The Respondent in their reply to the request under SI 321/1999 clearly stated that the reason for the selection of the successful candidate was based on “his previous experience in staff management” however the Complainant maintained that this experience was not in the sector in which the Respondent company operates and was not in this jurisdiction. The Complainant maintained that Staff management was not one of the criteria listed in the Skills and Characteristics which were furnished to the candidates prior to the interview process. Only when the position was advertised externally was reference made to “ideally having previous people management experience” but it was not a pre requisite of the position. It was submitted that at the interview on the 29th August 2019 much weight appears to have been given to issues around the physical aspect of the position and that the Respondent Company had not provided any basis for the decision reached and indeed had confirmed that “no marking criteria was used in the process”. The Respondent Company’s Handbook clearly states at 2.2 that the Company is an “equal opportunities employer. A job description will be drawn up for each job to be filled, detailing core responsibilities and tasks. This will be given to all candidates presenting for interview. A person profile will be drafted for each post to be filled, describing the experience, skills, qualifications, knowledge and personal qualities required. These will serve as the criteria against which candidates are assessed. Shortlisting and interviewing of candidates will be carried out by a minimum of two people. Gender balance will be maintained within interview panels as much as is possible. Written record will be kept of candidates assessment” The Complainants Representative submitted that the company failed to observe their own procedure as set out above in that the criteria for internal recruitment and the external advertisement do not match and that in the circumstances equal treatment was not provided to the external and internal candidates for the position. The Representative also alleged that the Respondent have sought to rely on the General Data Protection Regulations with regard to their failure to disclose the assessment of the candidates, despite the fact that they could have redacted the document appropriately had there been any systemic independent assessment of the candidates on a fair and unbiased basis. In the matter of Pamela Brennan -v- BOM Scoil Mhuire agus Iosaf Junior school (Appendix 7) “it is not a matter for the WRC or the Labour Court to determine who was the most meritorious candidate for the disputed position. The role of the WRC is to establish if the selection was tainted by unlawful discrimination”. The Complainant submitted that in this case the selection was tainted with unlawful discrimination and that the Complainant was discriminated against on the basis of her Gender. It was also alleged that the Complainant has a superior standard of both oral and written English to the successful candidate and that if any criteria should have been given a greater weighting that this and not the ability to be involved in “continuous lifting and moving heavy products” should have prevailed. The Complainant submitted that in the matter of Brennan -v- BOM Scoil Mhuire the Adjudicator went on to notethat this t case had similar features to EDA0715 and stated that the Labour Court determined as follows in relation to the burden shifting to the respondent with regard to the burden of proof shifting to the Respondent : “Article 2 of Directive 2002/73 EC on a Framework for Equal Treatment in Employment and Occupations provides that the principle of equal treatment means that there shall be no direct or indirect discrimination whatsoever on the grounds of sex. It is well settled that in interpreting national law the Court must do so in light of the wording and purpose a Directive so as to achieve the result envisaged by the Directive (see Marleasing S.A. v La Commercial Internacional de Malimentacion S.A.ECR 4135).” The Complainant submitted that it was necessary for the Respondent to prove on the balance of probabilities that its decision not to offer the Complainant the promotion to the position of Supervisor, despite repeated applications, was in no sense whatsoever based on her gender. The Complainant referred to the decision in Von Colson and Kamann v Land Nordrhein -Westfalen 1984 ECR 1819 and submitted that the requirement for compensation is effective, proportionate and dissuasive- the sanction is required to have a real deterrent effect. The Complainant submitted that in the circumstances the Complainant is entitled to the maximum that can be awarded and seek that in the alternative that the Complainant be awarded the differential in Salary, from the date of the appointment of the Supervisor to date, on the basis of the clear discrimination on the ground of Gender. It was submitted that the Complainant is a long standing employee and highly regarded but in the course of the recruitment of a person to the position of Production Supervisor undue emphasis was placed on one criteria in the list of 10 required for the position. This was emphasised in the course of the interview and despite the fact that two women applied for the position, the said position was advertised externally, and a male was recruited for the position. The successful candidate did not have many of the criteria listed, however the company assessed that his staff management experience was the basis for the decision. This is notwithstanding the fact that it was not in this jurisdiction and indeed not in the commercial sector. Further it was confirmed to the Complainant that there was no marking criteria, making the entire process flawed and unverifiable vis a vis equal treatment before the law. The Complainant submitted that she has been discriminated on the basis of Gender contrary to the Employment Equality Acts. |
Summary of Respondent’s Case:
The Respondent is a food distributor and Complainant commenced employment with the company in 2009 as a general operator. In August 2018, the company advertised, both internally and externally, positions for a packing room Supervisor and two packing room Vice Supervisors. The responsibility of the packing room Supervisor was to manage the packing room area, which included ensuring that production volumes were achieved in accordance with the daily schedule, that staff were properly supervised and rostered appropriately, dealing with staff queries from day to day, involved in daily toolbox talks, managing stock rotation and overseeing the scheduling of production runs. The Job Description places emphasis of the packing room Supervisor is to ensure that the work performed was to the highest efficiency levels and that staff are managed in such way that production targets are achieved.
The role of Supervisor would be responsible for managing all staff and would be working on shift, operating from Sunday through to Thursdays commencing at 7am and finishing around 5pm in the evening. The Complainant applied for the packing room supervisor position and was one of 4 people. There were 2 female applicants and 2 male applicants, one of the males being an external applicant. Interviews for the supervisor position was held on 29th August 2018 with two internal Managers.
The interviewers used a set form of questions for all candidates and a copy of the Complainant’s interview sheet was provided to the Hearing. During the course of this interview the different questions were put to the candidates, who provided answers and these were noted on individual sheets. Whilst the Complainant had spent a lot of time in the packing room as a packing operative, at no time had she any experience in managing people and this was actually acknowledged by the Complainant herself during the course of her interview.
One of the matters that was also raised at interview related to the fact that the position would involve, repetitive lifting of heavy loads and working outside of hours in emergency situations. This question was included on the recommendation of a safety services consultancy company who provide support to the company by conducting safety audits throughout the operation. The Respondent stated that this aspect of the work was raised during the course of the interview with the Complainant, who was asked for her observations as to did she understand the fact that the Supervisors work also included this work element. The Complainant’s response indicated that did she did not believe that there was much lifting as this was what she had observed from the supervisor who was currently carrying out those duties. The Respondent maintained that this was an incorrect observation, as it was known to both interviewers that the supervisor was not only involved in stepping in to provide support/cover to the team if necessary, which could involve the lifting of heavy weights, on a constant basis, and regular repetitive lifting was involved in the warehouse, where again duties of this nature can arise from time to time.
The Respondent maintained that it had been required to include this in the Job Description, so that anybody applying for the job would be in a position to appreciate that there would be lifting from time to time so as to ensure that they had the opportunity of making the company aware if there would be a need to change working practices or facilities to assist them, especially, if they were suffering from some form of disability.
The Respondent stated that in the claim form submitted by the Complainant to the WRC. it was very clear that the Complainant interpreted this conversation as suggesting that her ability to lift heavy articles was an essential requirement for securing the position. In this regard the Complainant suggested that the interview panel had indicated that she would not be able to carry out these physical aspects of the work because she was a female.
The Complainant, in support of her argument, indicates the fact that a male person was appointed to the role meant there had been actual discrimination, on grounds of gender by the company against the Complainant.
The interview panel, after completing the interviews decided to offer the external candidate the position as Supervisor and that he came to the company with experience in supervision, as he had been involved in a manufacturing environment supervising production staff. In addition, he had held this position for a number of years, had been involved in the management of people throughout this period of time and came to the company with excellent references.
The Respondent stated that the interview panel formed the view that the nature of the role required someone with the Supervisory experience the successful candidate had, and by appointing this candidate it was believed that this supervisor, who was taking over the role from a Supervisor who was leaving the company, would be able to fit into the role and take up the responsibilities and implement the appropriate operational requirements over a reasonably quick period of time, which was important as the company, being September, had started into its production season again. As a consequence, the Complainant was notified on 5th September, that she had been unsuccessful in her application for the role of supervisor. It was stated that the Complainant had not submitted an application for the role of a Vice Supervisor position and candidates for those positions were separately interviewed.
The law requires that the Complainant has the initial obligation to discharge the burden of proof. The Labour Court, in the case of Southern Health Board V Mitchel (2001) outlined the test which the Complainant must meet in order to shift the burden of proof to the company it stated “the test requires the complainant to prove the primary facts upon which he or she relies in seeking to raise an influence of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principles of equal treatment passes to the respondent. If the complainant does not discharge the initial burden which he bares, his case cannot succeed”
The Respondent submitted that in the further case of Cork City Council V Kieran McCarthy EDA0821the Court went on to further state that the Complainant must demonstrate that the primary facts grounding his complaint are of sufficient significance to raise an influence of discrimination. The Respondent also submitted that in the case of Graham Anthony & Co Limited V Mary Margretts EDA038 the mere membership of a protective class is insufficient of itself to ground a complaint of discrimination and an additional element is required that being “the complainant must produce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred”
The Respondent maintained that the Act clearly sets out that in order to establish that an act of discrimination has taken place, the Complainant is required to demonstrate that she was treated less favorably as compared to another person in a similar position. In this case the successful male candidate.
The Respondent stated that the Complainant appears to be basing her claim of discrimination on a discussion regarding the lifting. The Complainant has the responsibility, in the first instance, to establish that there is Prima Facie evidence that she was discriminated against. The Complainant is relying upon a discussion regarding the need for a person to be able to be involved in constant lifting and turning, of weights, as part of the job as the Prime Facie evidence of discrimination. The Respondent again stated that the reference to this particular activity was recommended by the health and safety consultants, so as to ensure that any person applying for the job would feel they were in a position to be involved in such activities or, if they were to be involved in such activities and were successful in securing the position that it may be necessary to identify accommodations to facilitate them carrying out their duties.
The Respondent submitted that the idea of the wording was not a suggestion of the employer but an independent advisor and certainly was not put there in order to ensure that a female would be unable to fulfill this role. At no time has it ever been indicated that the lifting would be of such nature and that it would specifically exclude females nor any suggestion that if there was a better way to improve the lifting and turning, that would not be engaged by the employer. What was being identified was that at this point in time there was a very particular activity which could, in some cases, cause people, both male and female, a difficulty in carrying out that part of the job. Thus and, in such circumstances, it was only right and appropriate that applicants were made aware of this element of the job and secondly that the employer would be put on notice if someone, who wanted to do that job, found that they may need some form of assistance or accommodation which could then be evaluated.
It was also stated by the Respondent that the job primarily involved the management and supervision of a department and staff in an area with the objective of achieving efficient production, completed in a timely manner, which involved the necessity to correctly rostering people, managing people and dealing with unforeseen eventualities, as they would arise. The Respondent contended this was a significant part, if not the primary part, of the job involved, as this person would be the person on the floor managing those people on a day to day basis, reacting quickly to problems as they may arise. The Respondent stated that the Complainant, by her own admission during the course of the interview, indicated that she had no such experience.
In evaluating the issue regarding the importance of experience the Respondent noted that the production season had only recently begun due to the fact that the company is a seasonal business linked to school terms. This meant production was coming into season at that time and employees were coming back from being off work for a number of months and also, of course, employing new people which meant that the supervisory team are very important in ensuring that everybody is brought back up to speed at the earliest opportunity and with production levels achieved and maintained from day one. This being the case the Respondent argued that that the benefit of a supervisor, with a number of years’ experience as a supervisor prior to joining the company, and secondly coming with excellent references in relation to his supervisory role, was seen to be a far more suitable person for this role than someone who had confirmed that they had no such experience at all.
The Respondent stated that should the Adjudicator be of the view that an inference has been established and thus transferring the burden of responsibility of proof to the company, the company’s position on this manner is as follows. As already indicated, the company was looking for a supervisor to manage the staff in an area, which also requires the need to have assistant supervisors, and the Complainant did not indicate at any time that she wished to be considered for the junior role of assistant supervisor. During the course of the selection process one candidate, male, stepped down, leaving two females to go for the position along with one male. The Complainant is clearly identifying the successful candidate as the comparator. In this regard, the Adjudicator must be satisfied that the identified comparator was treated more favourably in the circumstances than the Complainant. The Respondent stated that he was not treated more favorably, as his supervisory skills and background were more consistent and appropriate to the position being considered rather than that of the Complainant, who admitted that she did not have any supervisory or management skills. Taking this in conjunction with the job specification which clearly focusses on the management functions of the position and not on lifting, it is very clear that previous experience as a Supervisor must be far more valuable to an applicant when being considered for a role where supervisory and management skills are the primary areas of responsibility.
Based on these facts the Respondent contended that they have provided a reasonable explanation as to why the Complainant was not successful in applying for the position of Supervisor.
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Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
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Dated: 20th October 2020
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Key Words:
Gender |