ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00039736

Parties:

Complaint:

Date of Adjudication Hearing:  05/10/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 - 2015,   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 complaint.

Background:

The Complainant contends that she was discriminated against on ground of age when she applied for a position in the Respondent’s employment.

Summary of Complainant’s Case:

The Complainant stated that she applied for a position in the Respondent’s Nursing Home.  The position she applied for was on the ‘Twilight Shift’.  Her application was sent to the Respondent on 27th May 2022.  She received a phone call on 1st June 2022 to arrange an interview.  On 6th June 2022 she presented herself at the premises and waited for an hour to be called.  While she was there, no one else presented for interview.  She felt that the interview went very well and stated a number of times how well she performed at interview.  At the end, the CNM informed her she was successful and she was asked to fill in some forms after the interview.  As she had to indicate that she finished her Leaving Cert in 1986 and the form also included her date of birth, when she was later informed she was not successful, the Complainant subsequently formed the view that she had been excluded on the basis of age.  Having been told she was successful, she received a number of emails stating that due to the high quality of applicants her application was not being proceeded with.  This upset her greatly as she knew she had scored 90% on almost all interview questions.

Summary of Respondent’s Case:

Having been notified of the date, time and platform for the interview, the Respondent failed to attend or send any message regarding their non attendance.  A solicitor attended the opening of the hearing to state that he had been unable to make contact with the Respondent.

Findings and Conclusions:

The findings and conclusions are based on the uncontested evidence of the Complainant.

The applicable law

Burden of proof

In the first instance, I examine the issue of burden of proof.

Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:

“(1) Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to her or her, it is for the Respondent to prove the contrary.”

Put simply, the onus in the first instance lies with the Complainant to establish the primary facts from which it may be inferred that discrimination has occurred.  If these facts are established substantiated by evidence, the burden of proof then shifts to the Respondent to prove that discrimination did not occur.

The extent of evidential burden has been established by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 where the Court found that the Complainant 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”.

In Elephant Haulage Ltd v Garbacevs The Labour Court stressed that facts based on credible evidence were necessary to prove a prima facie case of discrimination and that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”  The Court observed that the language of Section 85A admitted of no exceptions to the evidential rule laid down.

The formulation of the test by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 was described by the Court in HSE North Eastern Area v Sheridan EDA0820 involving a three step process of analysis:

First, the Complainant must prove the primary facts upon which he or she relies in alleging discrimination.

Second, the Court or Tribunal (or in this case, Adjudicator) must evaluate these facts and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination.

Third, if the Complainant fails at stage 1 or 2, he or she cannot succeed.  However, if the Complainant succeeds at stages 1 and 2, the presumption of discrimination comes into play and the onus shifts to the Respondent to prove, on the balance of probabilities, that there is no discrimination.

In this instant case, the evidence shows:

The Complainant gave honest and cogent evidence that she had been directly informed post interview that she was successful.  She obtained the interview results which marked her around 90% in her scores.  She proceeded with filling out the relevant forms to progress her application and at a later stage she was informed that she was not successful.  The Complainant has offered the reason for this as discrimination of the ‘age ground’.   The Respondent did not attend the hearing to rebut this argument.   In the circumstances, based on the uncontested evidence of the Complainant. I find her complaint that she was discriminated against on the age ground to be well founded.  I require the Respondent to pay to the Complainant the sum of €5,000 compensation for the effects of the discrimination.

Decision:

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

Based on the uncontested evidence of the Complainant, I have decided that she was discriminated against by the Respondent on the age ground.  I require the Respondent to pay to the Complainant the sum of €5,000 compensation for the effects of the discrimination.

Dated:   13/12/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: