Complainant

Respondent

Parties

Mehmet  Yesil

The National University of Ireland Maynooth

Representatives

  Self-represented

Lian Rooney IBEC

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-00068645-001

15/01/2025

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and two witnesses for the respondent gave their evidence under affirmation.  Cross examination was facilitated.

At the completion of the hearing, I took the time to review all the oral evidence together with the written submissions made by the parties. The respective positions of the parties are noted, and a broad outline of the evidence and cross examination is provided.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”.

The complainant took a case against the respondent on the basis that he was discriminated against on grounds of family status and race in relation to obtaining employment. The complainant is an assistant professor in mathematics and he was seeking a position with the respondent. He submitted that he was discriminated against by the respondent since January 2023 in relation to 5 recruitment campaigns. He submitted that these amounted to a chain of discrimination and provided detail in relation to all of these events. He submitted that he considered an award of €500,000 is proportionate given the serious and ongoing impact these practises have had on his career, finances, and personal life.

In evidence the complainant outlined how he applied for five separate promotion competitions with the respondent. He confirmed that he was offered a position arising from three of the promotion competitions and confirmed that the last promotion competition related to a period that fell within the 12 months that could be considered under the provisions of the Act.

He stated that in relation to role #5, he only received a general e-mail inviting him to apply for the job, while the two successful candidates received an e-mail directly from the professor who was head of department. He stated that he was discriminated against on the basis that his mother tongue was not English and indicated that he thinks this discrimination is because of his nationality. He stated that he was only provided feedback by way of a sheet of points and not given a feedback report. He confirmed that he was not aware if anybody else received a feedback report from this promotion competition. He submitted that he should have been appointed to the job because his experience was better than the two successful candidates. He cited a number of published papers and research positions that he had undertaken to support this contention. He feels that his experience was minimised while others experience was maximised. He stated that criticism of his interview performance was misplaced in that the advertised role did not relate to teaching large classes. He stated that he did not receive the panels evaluation but simply received notes from one of the panel members, the head of the department. He stated that he was not aware if any other unsuccessful candidates received more favourable feedback or not. He suggested that all things taken together show a process of discrimination against him on the basis of his nationality.

In relation to role #1, he confirmed that he was appointed to that role but noted that all he was offered was a 5-month contract. This took place in 2022. He stated that nobody else went for the position in Role #4 and that was why he was appointed to that position. He confirmed that of the previous 5 recruitment competitions he went for, he was offered a position in relation to the 1st, 3rd and 4th recruitment competitions.

Under cross examination he confirmed that he was successful in the 1st Role that he applied for. He confirmed that his race or nationality was never raised in relation to the process but at some point he was asked whether he had an employment permit to work in Ireland.  It was put to him that race or nationality was not a part of the second recruitment competition, and he confirmed that this was the case. He also confirmed that he was shortlisted for that competition.

When asked was race or nationality a factor in relation to the third recruitment competition, he stated that it was never mentioned apart from when he was asked whether he had a work permit, or whether he was locally based. He confirmed that he did not know whether they decided to hire him because he was local or not and he accepted the offer of employment when it came. However, he confirmed that he subsequently declined the offer of employment in order to accept a contract that had been offered to him in relation to the 4th recruitment competition.

In relation to the 4th recruitment competition, the complainant confirmed that he was offered and accepted a role arising from this. He stated that he never sought feedback, and it was never offered but it was put to him that he was given informal feedback from the professor who was head of department. He stated he could not recall this.

In relation to the 5th vacancy, which was advertised in the summer of 2024, he said that he was employed with the respondent at the time and received the general e-mail notifying of the Employment Opportunity. He confirmed he was never told that he could not apply for the position and confirmed that race or nationality was never mentioned. As part of the recruitment process, he was required to make a presentation regarding a high-level proposal concerning a specific research area of his. He confirmed that the interview consisted of competency-based questions. He confirmed that he was placed on the panel and when it was put to him that he was ranked 4th on the panel and that the positions went to those who were appointed 1st and 2nd on the panel he confirmed that he was aware of this.

He also stated that on the day he undertook the interview a computer was removed from the room that he was using. He stated that he used the room at least twice a week. He confirmed that he made an assumption that the computer was moved due to his being unsuccessful in the competition.

This was put to him that he was unsuccessful in the interview because other candidates performed better during interview, but he indicated that this was not enough of an explanation as to why the other candidates were scored higher than he was. He confirmed that the scoring framework was shared with him but noted that he was more experienced than the other candidates and he couldn't understand how the candidates were placed higher on the panel than he was. It was put to him that the presentation he gave was used as an assessment of his teaching ability.

The complainant was asked whether he had any evidence to back up his claim or was it merely an assumption with no factual basis. He stated that he deserved the position more than the successful candidates.

It was also put to him that any informal offers made throughout the five employment campaigns (both to him and other candidates) were only made after the formal processes had been exhausted. He replied that he could understand having to undergo the employment process for the first role as he was unknown to the university at that time but that this was not the case for the later employment competitions, he stated that some of the people appointed did not have to go through the formal employment process.

The respondent denied discriminating against the complainant on the grounds of family status or race or indeed at all. The respondent submitted that the complainant was successful in three of the five employment competitions that he entered and that this did not demonstrate that he was discriminated against. The respondent conceded that certain members of staff had been appointed on an informal basis but noted that this was only done when the formal process had been exhausted and there was no time to begin a new process before the semester started. The respondent submitted that it was standard procedure to try and encourage applications for the various roles that it advertised and that this was done both through the various websites it engaged with but also through passing word around colleagues within the institution and at other universities. It was submitted that the professor sent the e-mail invitation to two former colleagues who no longer had access to the universities database and therefore would not have received notification of the vacancies.

The respondent submitted that the complainant has not offered anything by way of evidence to support his claim of discrimination other than speculation. It was submitted that roles #1 to #4 fell outside the cognizable period of the Act and that there was no connection such as to establish a chain of discrimination. It was submitted that the complainants’ allegations regarding discrimination and the 5th employment process amounted to mere speculation which is not enough to meet the threshold required under the Employment Equality Act. It denied that the outcome was predetermined and it was noted that the two candidates contacted directly by the professor only happened when he understood that they did not have any access to vacancy system.

As regards to removal of computer equipment, the respondent submitted that the office that the complainant had access to was occupied by a lecturer who was out on a sabbatical but was returning and that the complainant was only ever to have temporary access to that office.

The respondent submitted that the complainant has not made out prima facie case of discrimination as required under the Act.

The first witness for the respondent was the Professor who headed the maths and statistics department during the time in question. He outlined the recruitment process is followed by the department were in line with the regulations for recruitment to positions in the civil and public service. He stated that in respect of each of the competitions, where possible, the formal route was followed.  Only when that route was exhausted were people appointed to positions on an informal basis. He also outlined that in one instance he was told at short notice that one of his colleagues was retiring on medical grounds and he was obliged to make an appointment in a matter of weeks on an informal basis in order to have a lecture in position for the start of the semester.

He stated that following the 4th recruitment process, where the complainant was successful, he gave the complainant informal feedback regarding the interview. He stated that the complainant needed to answer the questions being asked of him not simply just provide the information that he thought should be brought to the Interview Board's attention. He was told that he had repeatedly not answered specific questions. The witness stated that notwithstanding this, he had supported the complainant’s candidacy in order to fill the role.

The witness stated that in relation to the 5th recruitment process there were two elements to the interview, a presentation and the competency framework questions. He stated that the presentation was used to ascertain a candidate’s ability to teach a specific subject to advanced students. He stated that the complainant's performance on the day was not particularly good, in that he simply read all off the contents of the slides, and the slides were particularly wordy. He said that this did not give a good impression of the complainant. He then stated that when the complainant was answering his questions he did so in a monotone and did not seem to create any enthusiasm for the subject in the listener. He confirmed that the complainant was qualified, being placed fourth on a panel of four. He also confirmed that the first two candidates accepted the job offers and therefore the other places on the panel were not reached.

The witness clarified that when it came to teaching experience the panel agreed that a certain level of experience was required both in terms of lecturing and teaching, the latter relating to the provision of tutorials as well. He confirmed that the major difference between the candidates was how they performed at interview and in relation to their presentation.

Under cross examination the witness was asked why the other candidates outscored the complainant and he pointed out that the qualification element for teaching and lecturing was dealt with by way of benchmark. He outlined that once the candidates had a certain amount of experience, they were considered to be good enough to do the job. He reiterated that the presentation and communication skills demonstrated in the interview were the most important elements in the final scoring. It was put to him that the complainant did not receive notes from all of the panel, but he indicated that as he was not the chairperson, he was not aware of why this would be.

The witness was asked how the other candidates outscored the complainant given that he had more research papers written and the witness noted that consideration was given to the recentness of the research papers. He confirmed that the complainant had 6 published papers in the six years since he received his PhD and that the 2 successful candidates had one published paper each in the several months since they had received their PhD’s. He noted that after a while the amount of published papers levels out. He confirmed that he did not treat the complainant any differently to the others and that the only reason he emailed the two candidates was that he understood that they no longer had access to their university accounts.

It was put to the witness that it should have been the candidate's responsibility to follow various vacancies, but he noted that he considered that it was his job and the job of everyone in the department to let as wide a range of candidates no about the existence of vacancy opportunity. He stated that in general in relating to vacancies, they were notified to colleagues both internal and external, who may be interested or may have recently graduated students who might be interested in various positions. He stated this was particularly relevant when it came to vacancies in the statistical area of the department's it was quite difficult to retain staff in this area.

The second witness for the respondent was the Deputy Director of HR. He noted that the formal approach to recruitment was via the universities website.  However he noted that sometimes contingencies arise where the positions were for six months or less and the guidelines issued by the department provided for a reduced or informal process to be followed in these situations, for example where the delay of an appointee in starting a new position may lead to a short term need to recruit somebody for a role. He also outlined that where sabbatical leave arises, there may be a need to provide for short term filling of roles.

The witness was asked about the existence of a grievance procedure, and he stated that it is in place and available to all staff. He confirmed that he never received a grievance from the complainant in relation to any of the recruitment competitions.

Under cross examination he was asked whether there were other candidates for Role #3, but stated that he was not aware of any other candidates as he did not have the paperwork to hand.

The complainant has put forward the proposition that he was discriminated against by the respondent over a series of employment competitions.

The respondent submitted that for the Commission to consider if it has jurisdiction to hear this complaint, it must only examine events that occurred within the cognisable period of the complaint, which is from 15 July 2024 to 15 January 2025, that being the six months prior to the referral of the complaint to the Workplace Relations Commission (WRC) on the 15 January 2025. For it to consider an event or events outside of this cognisable period, a continuum of discrimination must be determined which requires that they must first determine if an act of discrimination occurred during the cognisable period.

The respondent submitted a number of cases in support of its contention.  The first of which is sufficient to outline the precedent approach taken by the Court.  In Cork County VEC v Hurley (EDA1124), the Court in considering a contention that events which occurred outside the cognisable period for the complaint made, could be considered as part of a regime or continuum and thus within the jurisdiction of the Court. In that case, the Court decided: “the Court must conclude that no acts capable of constituting victimisation occurred in the period of six-months ending on the date on which she presented her claim to the Equality Tribunal. Accordingly, even if the Complainant’s case were to be taken at its height in relation to all other incidents relied upon, they are outside the time limit prescribed by s.77(5) and are statute barred.”

The most recent of the recruitment competitions falls within the cognizable time frame outlined in the Act. Consideration of the employment process for the first four roles which the complainant applied for can only be given if the complainant establishes that he was discriminated against within the time frame comprehended by the Act.

The respondent submitted that in the case of Cisco Systems Internetworking (Ireland) Limited v Olumide Smith EDA 1829, the Labour Court concluded:  “The Court therefore, consistent with its approach in Cork County VEC, must first consider whether an act or acts of discrimination occurred within the cognisable period for the within complaint, before it can consider whether events outside of that period can be considered to be part of a continuum or regime of discrimination and within the jurisdiction of the Court. It is only if the Court forms such a conclusion that it can consider events which occurred prior to the cognisable period”.

Arising from the foregoing, the complainant must initially establish that discrimination occurred during the fifth recruitment competition and then, if this is established, he may pursue the contention that there was a chain of events to establish facts from which discrimination may be interred.

Section 85A of the Act deals with the Burden of Proof in Employment Equality cases.  Section (1) states as follows:

85A.—(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 him or her, it is for the respondent to prove the contrary.

Having regard to the foregoing, the onus is on the complainant to produce evidence that demonstrates, or from which it is possible to presume, that discrimination has occurred.

The complainant has not adduced any evidence whatsoever that he was discriminated against on the basis of family status.  Accordingly, this element of the complaint has not been established by the complainant.

As regards the suggestion that the complainant has been discriminated against on the grounds of race, the complainant confined his submissions and oral evidence to this aspect of the complaint.  The respondent submitted that this amounted to ‘mere speculation’ and was not enough to meet the threshold in establishing facts of discrimination.

The respondent referenced the case of Melbury Developments v Arturs Valpeters EDA/0917, where the Labour Court, while examining the circumstances in which the probative burden of proof operates stated that a 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.” It added that “…the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Having regard to the contentions of the complainant, he put forward his argument that he was discriminated against by suggesting that his experience and qualification were not taken into account, and he thought that this was on the basis of his nationality.  He did not provide any evidence, documentary or otherwise, of having been discriminated against.   He was adamant that his qualifications and experience was better than the successful candidates and accordingly he should have been appointed to the job.  It became apparent from the evidence of the parties that the complainant did not perform sufficiently in the interview process to score highly enough to be place in the first two places on the panel of merit.  The interview board did place him on the panel in fourth place, but that place was not reached.  Having regard to all of the foregoing, I find that the complainant’s contentions amount to ‘mere speculation’ only.

Having regard to all of the foregoing, I am not satisfied that the complainant has established facts from which discrimination may be inferred.  Therefore, I find that he was not discriminated against in accordance with the legislation.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant was not discriminated against.

Employment Equality – Burden of Proof – no facts established – mere speculation – fact of discrimination not established.