Case Number: DEC-E2016-044. Workplace Relations Commission

• Court: Workplace Relations Commission
• Judgment Date: 01 March 2016
• Docket Number: DEC-E2016-044
• Parties: An Applicant for Employment -v- A Youth Organisation

EMPLOYMENT EQUALITY ACTS DECISION NO. DEC-E2016-044 PARTIES An Applicant for Employment AND A Youth Organisation (Represented by IBEC) File Reference: EE/2013/512 Date of Issue: 10th March 2016 1. DISPUTE

1.1 This dispute concerns a claim by the Complainant that he was discriminated against by the Respondent on the grounds of disability contrary to Section 6(2)(g) and Section 8(1)(a) of the Employment Equality Acts (hereinafter also referred to as ‘the Acts’) in relation to his non-selection for interview/employment.

1.2 The Complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 1st October 2013. On 2nd September 2015, in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Aideen Collard, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions had been sought and received from the Parties. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 9th September 2015. The Complainant represented himself and IBEC represented the Respondent. The Respondent’s CEO and a number of witnesses attended to give evidence on its behalf. All written and oral evidence and submissions presented including documentation submitted before and during the hearing have been taken into consideration when coming to this decision. I also indicated that I would be relying upon the key statutory provisions and relevant case law in my consideration of this matter.

1.3 This decision is issued by me following the establishment of the Workplace Relations Commission (hereinafter ‘WRC’) on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83 of the Workplace Relations Act 2015.

2. SUMMARY OF THE COMPLAINANT'S SUBMISSIONS & EVIDENCE

2.1 The Complainant was born with one hand and there is no issue that he has a disability within the meaning of the Acts. His disability has never impeded him in life and he has an impressive record of prior achievements including a First Dan (Black Belt) in Judo. Although personal circumstances have not allowed the Complainant an opportunity to obtain third level qualifications, over the years he has built up an extensive list of other qualifications and skills relevant to the work of the Respondent.

2.2 The Complainant was employed by the Respondent as one of two part-time Group Support Facilitators in one of the Provinces from 2008-2011. In 2010, the Respondent’s Board of Management decided to merge these two roles into one full-time position. In 2010, the Complainant applied for and was interviewed for the new position of full-time Group Support Facilitator for the same region along with the other part-time holder. His disability had never hindered him in undertaking this role although he submitted that he was the brunt of occasional jokes. He had an excellent work record and believed that he was the most suitable of the two candidates for the position in question, and so felt it very unfair when he was not selected. When his existing contract came to an end in 2011, he continued to work for the Respondent in a voluntary capacity. He submitted that in or around the same time, an employee of a different race had also been made redundant as indicative of the Respondent’s discriminatory attitude.

2.3 In 2012, two paid full-time positions with the Respondent became available in one of the Provinces for a Group Support Facilitator and a Provisional Support Officer. Although the job description stated that applicants from a particular region were preferred, the Complainant who lived in a different region had indicated his willingness to move. He applied for both positions but received a letter dated 20th September 2012 from the Respondent’s CEO confirming that he had not been short-listed for interview in respect of either position stating: “I regret to inform you that you have not been shortlisted for interview for the above vacancy, as other candidates more closely matched the skills and experience we were seeking for the appointment.” By emails dated 9th October 2012 and 25th October 2012, the Complainant wrote to the CEO requesting the selection criteria used along with any additional notes in order to understand the reasons why he was not shortlisted for interview but did not receive a response.

2.4 In early 2013, another paid position for a Group Support Facilitator with the Respondent became available in the Province where the Complainant resided, also being the same area where he had worked previously. Believing that he was well positioned to undertake this role, he applied for this position. He was shocked when he received a letter dated 3rd April 2013 from the Respondent’s CEO, using identical wording to the previous refusals confirming that yet again, he had not been short-listed for interview.

2.5 The Complainant proffered a number of reasons as to why he believed he had not been selected for any of the aforementioned positions including discrimination on the grounds of disability and an unfair recruitment and selection process. He also surmised that historic inter-personal differences could have militated against him. In particular, he stated: “I feel that having been born with one hand, [the Respondent]did not view me as fitting the mould, being the only person at the time with a disability.” Both the 2012 and 2013 competitions required candidates to have: “A 3rd level qualification in a relevant discipline or have the equivalent professional experience to efficiently discharge the functions of the appointment.” Despite not having any third level qualifications, the Complainant felt that given his extensive prior experience with the Respondent, he was more than qualified for the positions in question and should have at least been offered an interview. He also felt that the absence of a response to his request for the selection criteria relied upon in shortlisting the candidates for interview was further evidence of an unfair process. Overall, he felt that he had been overlooked by the Respondent in relation to the positions in question owing to his disability and therefore he was discriminated against by the Respondent in relation to access to employment on the grounds of disability...