Complainant

Respondent

Parties

Leon  O'Connor

Uisce Éireann , Irish Water

Representatives

No Appearance by or on behalf of the Complainant   

 Mr Neil Hanley, Director of Human Resources

Act

Complaint Reference No.

Date of Receipt

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

CA-00054539-001

12/01/2023

On 12 January 2023, the Complainant submitted a complaint of discrimination on religious grounds against the Respondent, Uisce Eireann.

The Complainant introduced himself as a lay litigant and in the details of his complaint added:

“I am enclosing a copy of all pertinent communications with this Respondent and specifically note that I am readily available to testify before the courts so as to substantiate all allegations of legal ethical and moral breaches being carried into effect by this respondent, Irish Water. “

On 12 January,2023, the complaint was acknowledged and forwarded to the Respondent.

On 16 March 2023, the Respondent filed a rebuttal of the claim via the Employee Relations Manager.

The Respondent outlined that during an application for the post of senior Finance Analyst in July 2022, Mr. O’Connor was not short listed for interview. The rebuttal outlined that religion was not mentioned on the CV or in any inter party correspondence.

The Respondent did not dispute the right held by the complainant to complain and awaited “further correspondence “

On 8 June 2023, both parties were invited to attend a hearing on 28 July 2023 at 11 am in Cork.

The Respondent filed a submission in defence of the claim which was shared with the complainant on receipt.

On 17 July 2023, I wrote to the complainant seeking a chronological outline submission in the case.

I did not receive a reply.

There was no appearance by or on behalf of the complainant at hearing.

The Respondent was represented by Mr. Neil Hanley, who presented at hearing on July 28, 2023.

The complainant outlined a complaint of religious discrimination in the context of getting a job. He recorded the most recent date of discrimination as 30 September 2022.

He wrote that he had applied for a job opportunity with the Respondent in July 2022 and was declined based on discriminatory grounds. He confirmed that he had referred a separate matter for the attention of a Garda Siochana.

The Complainant wrote that the complaint was fundamentally against the Irish and other governments.

The Complainant attached some emails of inter party correspondence dated 20 to 30 September 2022.

The complainant did not accept an invitation to attend the scheduled hearing. He did not file a response to the respondent submission.

The Respondent operates Irish Water renamed as Use Eireann in January 2023.

Mr Hanley outlined that the Respondent prided themselves on best practice recruitment practices and denied any discrimination on religious grounds.

On inquiry, he confirmed that a Garda Siochana had not followed up any related complaint from the complainant with the respondent.

By means of written submission, the respondent confirmed that in July 2022, they conducted a recruitment for the position of Senior Finance Analyst.

There were 41 applicants, inclusive of the complainant. Following a universal screening process based on three set criteria, the complainant was deemed to have insufficient relevant experience for the vacancy and was advised accordingly on 20 September 2023.

The complainant expressed a disappointment in the decision and sought criteria accompanying the decision alongside a stated intention to bring the matter to the WRC for breach of equality legislation.

The Respondent provided the requested criteria for the complainant.

The Complainant proceeded to submit complaints to the WRC and other bodies.

The Respondent submitted that the burden of proof rested with the complainant in the case. Mr Hanly informed the hearing that the respondent was prepared to defend the claim as the organisation held recruitment practice standards very highly and rebutted discrimination on religious grounds.

I have been requested to reach a decision in respect of the complaint lodged on 10 January 2023. Of immediate interest and relevance, was the insertion of a declaration of intent by the complainant to “I am readily available to testify before the Courts “

In arriving at my decision, I have read the complainants submission of complaint. I have also read the Respondent rebuttal submission. I listened to Mr Hanlys brief opening remarks at hearing.

I am satisfied that the Complainant was on proper notice of hearing. I wrote to him on 17 July 2023 seeking preparatory submissions for hearing.

This address was the same address relied on by the Complainant on his complaint form of January 2023.

My jurisdiction in these cases arises from a delegated power from the Director General WRC, in accordance with Section 75 of the Act, which empowers me to issue a decision in the case.

Section 79 sets out the pathway for that process.

79.— (1) Where a case which has been referred to the Director General of the Workplace Relations Commission under section 77—

(a) does not fall to be dealt with by way of mediation under section 78, or

(b) falls to be dealt with under this section by virtue of section 78(7),

the Director General of the Workplace Relations Commission shall investigate the case and may, as part of that investigation and if the Director General of the Workplace Relations Commission considers it appropriate, hear persons appearing to the Director General of the Workplace Relations Commission to be interested.

(1A) (a) Claims to have been discriminated against on more than one of the discriminatory grounds shall be investigated as a single case, and

(b) claims both to have been discriminated against on one or more than one of such grounds and to have been penalised in circumstances amounting to victimisation may, in an appropriate case, be so investigated,

but a decision shall be made on each of the claims.

(2) An investigation under this section shall be held in public unless the Director General of the Workplace Relations Commission, of his or her own motion or upon the application by or on behalf of any party, determines that, due to the existence of special circumstances, the investigation (or part thereof) should be held otherwise than in public.

Burden of proof.

85A.— (1) Where in any proceeding’s facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is 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.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section "discrimination" includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

To that end, Section 85A of the Act on burden of proof is a necessary first step in the process.

In the seminal case of Dr Teresa Mitchell and Southern Health Board [2001] 12 ELR 201, the Labour Court expanded on the burden of proof required by a complainant.

It is necessary, however, to consider the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. The first requirement of Article 4 of the Directive is that the claimant must ‘establish facts’ from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her sex. If she does not, her case cannot succeed.

The complaint in the instant case refers to a complaint of discrimination on grounds of religion for a prospective employee.

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

Discrimination for the purposes of this Act.

6.— (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,

(b) a person who is associated with another person—

The Complainant did not present at hearing, to open his case or to ventilate the circumstances of the complaint. He did not provide me with details of his chosen comparator.

I am satisfied that he was on notice of the hearing and did not afford an excuse for or an explanation to cover his absence. I have waited the 5 days allowed post hearing just in case an extraordinary circumstance covered the complainant’s absence.

I have not received any such explanation for his absence. I am puzzled by the inconsistency between the declaration of the complainant’s availability set out on the complaint form and his absence at hearing.

I must conclude that the Complainant is a no show in his own case. Consequently, he has not satisfied the burden of proof set down in section 85 A of the Act.

I am satisfied that the Complainant was provided with a hearing and an opportunity to present evidence in his case.

I have found his nonappearance to be unreasonable.

The Respondent has disputed the complaint.

The Complainant did not attend the hearing to give evidence in this complaint. I would have liked to have met with the complainant .

The Respondent travelled a long distance to attend the hearing and answer the case made .

I note that the Respondent confirmed that a Garda Siochana had not contacted Uisce Ireland in pursuance of the parallel issues referred to on the presiding WRC complaint form.

The Complainant was not discriminated on religious grounds, as described in section 6(2) (e) and contrary to section 8 of the Act.

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.

I find that the complainant failed to make an appearance to give evidence in his own case. He did not afford an explanation or excuse for this nonappearance either on the hearing day or within the 5 days immediately afterwards, or indeed since then.

I find that the complainant has not secured the burden of proof required in the case. The complainant was not discriminated against on religious grounds as described in section 6(2) (e) and contrary to section 8 of the Act.

Non-Appearance by the Complainant at hearing . Discrimination  on grounds of religion. Prospective Employee .