THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 035
Mr David Glynn
(represented by AHCPS)
Garda Siochana Ombudsman Commission
(represented by Arthur Cox Solicitors)
File Reference: EE/2008/034
Date of Issue: 22nd March 2010
1.1. The case concerns a claim by Mr David Glynn that the Garda Síochána Ombudsman Commission discriminated against him on the ground of age contrary to Section(s) 6(2)(f) of the Employment Equality Acts 1998 to 2008, in terms of access to employment and harassment.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 22 January 2008. A submission was received from the complainant on 11 October 2008. A submission was received from the respondent on 5 December 2008. On 20 October 2009, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an 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 this date my investigation commenced. A supplementary submission was received from the complainant on 25 November 2009. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 3 March 2010.
2. Summary of the Complainant's Written Submission
2.1. The complainant submits that he was assigned a position with the respondent on the Dublin CAF, a facility within the Government's Decentralisation Programme for officials of decentralising departments who wished to remain in Dublin. The complainant contends that the respondent failed to effect the transfer from his former department within agreed timeframes. The respondent proposed to interview the complainant for the position, something the complainant declined to do, citing rules on decentralisation as laid down by the Department of Finance. According to the complainant, the position for which he was assigned was eventually suppressed and remained unfilled.
2.2. In his submission, the complainant does not identify a comparator of a different age, who was treated more favourably by the respondent than he was, or indeed does not state any connection between events as they happened and his age.
2.3. The complainant further alleges that the respondent's Commissioner said to member of the Management Advisory Committee (MAC) of his former department that he, the complainant, had remarked to her previously that he "was going down there to retire". The complainant contends that this is an ageist remark and constitutes harassment of him.
3. Summary of the Respondent's Written Submission
3.1. The respondent contends that the complainant's claim is out of time pursuant to S. 77(5) of the Acts, as events around his appointment unfolded in April/May 2007, and he only lodged his complaint in January 2008, without making an application to the Director on an extension of time.
3.2. The respondent also denies the complainant's allegations of discrimination and harassment, and submits that the complainant, in his submission to the Tribunal, has not met the burden of proof to establish a prima facie case of discrimination or harassment.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complaint was brought in time pursuant to the provisions of S. 77(5) of the Acts, and if so, whether the complainant was discriminated against and harassed on the ground of age within the meaning of the Acts.
4.2. With regard to the timeliness of the complaints being referred, I propose to deal with the complaint of access to employment first, then with the complaint of harassment. With regard to access to employment, I note from the respondent's own evidence that the complainant was advised on 20 December 2007 that the position which he sought was not established. I therefore take 20 December 2007 to be the date on which the complainant learned about the outcome of his application, and find that his complaint of discrimination in relation to access to employment, which was referred to the Tribunal on 22 January 2008, is therefore within the time limits specified in S. 77(5) of the Acts.
4.3. With regard to his complaint of harassment, it emerged at the hearing, and was not in dispute between the parties, that the remarks allegedly constituting harassment were made in a telephone conversation that took place in May 2007. This is outside the time limits specified in S. 77(5) of the Acts, and therefore I have no jurisdiction to investigate this issue.
4.4. In this context, I wish to note that at no time between 22 January 2008, when the complaint was filed, and the hearing on 3 March 2010 did the complainant or his representative seek to make representations to the Director for an extension of time pursuant to S. 77(5)(b) of the Acts. Therefore I find I am bound in this matter by the decision of the Supreme Court in The State (Aer Lingus Teo) v. Labour Court (No. 1) [1987 ILRM 373], where it was held that S. 19(5) of the Employment Equality Act of 1977, being the equivalent provision to S. 77(5) of the Acts, obliged the courts to interpret the time limit strictly where reasonable cause for extension had not been shown. I further note the finding of the High Court in The Minister for Finance v. The Civil and Public Service Union and others [2006 IEHC 145], which upheld, inter alia, a finding by the Labour Court that the onus is on the party wishing to avail of an extension of time pursuant to the provisions of S. 19(5) or S. 77(5), respectively, to make an application to this end to the court or judicial body seized of the matter.
4.5. Turning to the complainant's complaint of discrimination in access to employment, I note that in evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent.
4.6. Furthermore, during the hearing of the complaint, I called the complainant's attention to the finding of the Labour Court in Melbury Developments v. Valpeters [EDA0917], that
Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the 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. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
4.7. With regard to the specific circumstances that relate to the complaint, I find that the undisputed fact that the position he was seeking was suppressed and nobody was appointed to it, to be fatal to the complainant's case. Since nobody was appointed, it is not possible that more favourable treatment of someone of a different age to that of the complainant can have occurred in relation to this appointment.
4.8. Another aspect of the appointment process that the complainant went through before the position was abolished was that the respondent sought to interview the complainant before confirming his appointment. There is no dispute between the parties about this request for an interview. Therefore, at the hearing of the complaint, the complainant sought to argue in the alternative, that he was aware of younger persons who had been appointed to the respondent without an interview being requested of them. However the complainant was not in a position to adduce evidence, or to call the relevant persons as witnesses, to support this contention. Accordingly, I find that the complainant has not established a prima facie case of discrimination on the ground of age, with regard to access to employment pursuant to S. 8(1) of the Acts, and that his complaint must therefore fail.
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that I have no jurisdiction to investigate the complainant's complaint of harassment due to the fact that it has been brought outside the time limits specified in S. 77(5) of the Acts, and that no application for an extension of time pursuant to the Acts has been made.
5.2. I further find that the respondent did not discriminate against the complainant on the ground of age pursuant to S. 6(2)(f) of the Employment Equality Acts 1998 to 2008
22 March 2010