Case Number: ADJ-00000107. Workplace Relations Commission

• Docket Number: ADJ-00000107
• Date: 25 February 2016
• Court: Workplace Relations Commission
• Parties: An Employee v An Employer

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000107

Complaint for Resolution:

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-00000143-001	08/10/2015

Date of Adjudication Hearing: 17/12/2015

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000 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 complaints.

Complainant’s Submission and Presentation:

The complainant was employed as an Orchestral Assistant (henceforward OA) on a casual basis since 2001. In 2008 when the Senior Orchestral Assistant position was advertised he applied but. He was unsuccessful. He says he was told then that he was the second best candidate.

Since then he worked as an OA when called upon and in September 2014, after the Senior OA retired, he filled the position of Orchestral Assistant up until May 2015. Apart from one other named employee he felt he was the most qualified and experienced candidate for the role of Senior Orchestral Assistant.

There were two competitions to fill posts in 2015.

The complainant believes he was overlooked for the position of Senior Orchestral Assistant as a result of discrimination based on his nationality, (he is Irish). He also claims indirect victimisation which he says is a consequence of his relationship with past and present members of the grade of OA’s.

He also felt that proposed changes in Orchestral Assistants’ "Terms and Conditions" by management affected his selection for the vacated position.

He expressed a belief that the orchestra Manager was prejudiced against him on the nationality ground as evidenced by her allegedly asking a non Irish national to work free of charge as Orchestral Assistant.

He says that there can be no reason other than race/nationality to explain the appointment of the Latvian candidate to the positon of Senior OA in June 2015.

The claim under the Equal Status Act was not pursued. No evidence was adduced of victimisation.

Respondent’s Submission and Presentation:

The respondent submitted that in September 2104 when the Senior Orchestral Assistant retired it restructured the positon; dividing those former duties between the Orchestra Manager and two OA’s on an interim basis.

The complainant was engaged through a contractor to fill one of the OA roles.

However this arrangement was unsatisfactory and it was decided to advertise the position in March 2015. The applicants comprised five Irish citizens, one Australian and two from the UK.

Objective criteria were set which were detailed in evidence at the hearing and an Interview Board set up and interviews were held. A scoring system was used. They showed the complainant scores to be the lowest by some distance; scoring 2/20 in relation to Supervising and Problem Solving, for example. He scored 46/100 compared to 91/100 achieved by two other candidates.

One of these (an Irish citizen) was offered the position but eventually declined thereby requiring a second competition.

In the interim the complainant was offered work as an OA but declined. He requested and was given feedback on the first interview by the HR Manager who gave direct evidence. A Latvian National AN was appointed to the role as OA in which he had no previous experience but did have other relevant experience in concert and event management.

The second competition took place in June 2015 and this produced three candidates including the complainant and AN who had been acting as an AO. The complainant scored lowest of the three candidates and AN was appointed.

DW the orchestra manager and who was a member of the interview board gave detailed evidence on the four specific areas on which candidates were questioned, and the venue layout test which was put to them. There were questions on maintaining the safety of instruments and on general Health and Safety issues. She gave detailed evidence on the...