Complainant

Respondent

Parties

Wayne  Murphy

ESB

Complainant

Respondent

Anonymised Parties

Representatives

Janice Kavanagh,                                        In-house legal           

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-00063816-001

29/05/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my function, and I made all relevant inquiries in the usual way.

In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021), I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice.  I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 29th of May 2024. In general terms, I will therefore be looking at issues that have arisen in the six-month period directly preceding this date.

At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the written submissions made by the parties. I have noted the respective position of the parties.  I am not required to provide a line-by-line assessment of all the evidence and submissions that I have considered. Any matter not specifically addressed is 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 was not represented and made his own case. When it came time to hear the Complainant’s evidence, the Complainant agreed to make an Affirmation to tell the truth. The Complainant additionally relied on the submission set out in the Workplace Relations Complaint Form which read as follows:

I applied for a job as an electrician with ESB and I had an online interview on the 14th of November 2023. Despite having worked previously for ESB as a linesman over 20 years ago and completing an Electrical Craft/Trade Apprenticeship with them in 2005 and having subsequent 20 years post ESB experience as an electrician and achieving one of the highest scores at the online interview I was still unsuccessful in obtaining the position of an electrician with ESB.

Of course, I was both devastated and confused as to why I was unsuccessful in obtaining one of 4 positions advertised. 2 in Enniscorthy and 2 in Arklow. As I did not get the position, I deemed it no harm in me directly contacting one of the two interviewers on the interview panel as I could not be disqualified for canvassing as my application for the aforementioned position was unsuccessful. The person I contacted is named Liam Carley, who I worked with when I worked directly for ESB pre-2005. Liam was as shocked as I was when I told him I did not get the position and it was Liam who told me I scored very highly during the online interview and that he was even going to call me the next day to congratulate me on how well I had done but he didn't have my number and due to his high work load he forgot and he just assumed it would only be a matter of time before he was welcoming me back into the fold.

 Unfortunately, none of this happened and here I am making this complaint. I then contacted the ESB Talent Acquisition Team directly to resolve the matter and I was contacted by Michelle Doyle from ESB who could not answer my questions satisfactorily. Of the candidates who were successful in being awarded the positions none had the ESB work experience I had, none were as qualified as, nor had the experience I had as working as an electrician for over 20 years, So, I asked Michelle, what then can I or must I do to improve my chances in future of being successful and to be awarded a position in ESB, she just said the volume and calibre of applicants was very high this year and that unfortunately I was unsuccessful at this time. When I asked what were the ages of the applicants who were successful she could not answer me and said she could not give out those details. Of course, the only logical explanation, is my age, I am 47 years old, 48 this June the 14th, on all other aspects of my application I not only passed but exceeded expectations and no other candidate was a better choice only on age.

I surmise, me being 47 was not at all an attractive proposition for ESB and I have either been discriminated for the position due to my age or due to the fact I brought ESB to the employment appeals tribunal shortly after being let go back in 2005. Either way, I have most definitely been discriminated against in this instance.

The Complainant therefore alleges that he was discriminated against in the getting of a job with the Respondent Company.

The Complainant’s evidence was challenged as appropriate by the Respondent Representative.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent was represented by it’s own legal personnel. The Respondent provided me with written submissions dated the 24th of December 2024. I have additionally heard from one witness for the Respondent - the HR Business Partner. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation. The Respondent witnesses was questioned by the Complainant.

The Respondent rejects that there has been any Discrimination.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered the evidence adduced in the course of this hearing. The Complainant is a highly skilled electrician. In and around October of 2023 the Complainant answered an advertisement posted by the ESB wherein they were looking to recruit qualified Electricians. The advertisement stated:

ESB Networks is responsible for the operation, maintenance and construction of the electricity network. We are seeking dynamic highly skilled people to join the company to help deliver work programmes as part of our Brighter Futures Strategy

The Complainant had worked with the ESB for a period of nine years some two decades earlier. He had been made Redundant from the ESB but thereafter continued to work as an electrician in the intervening years.

The Complainant felt that he had performed very well at the interview. He was thereafter very shocked that he did not get recruited. His surprise was heightened after he had approached one of the interview panel, who suggested to the Complainant that he thought his interview had gone very well. I understand that this individual rejects the suggestion that he had thought the Complainant would definitely be recruited.

The Complainant gave evidence as to why he believes he was not recruited. Firstly, he believes his age – he was 47- mitigated against him. Secondly, he suspects a confrontation between himself and the ESB which involved a trip to the Employment Appeals Tribunal (twenty years previously) had caused him to be blacklisted.

After the disappointment of not being recruited, the Complainant communicated with the Talent Acquisition Team who had processed the recruitment process. Having been told there was a "high volume of applicants" of a very high calibre, he went on to ask MD of that team if age had been a factor? He also asked about the ages of the successful candidates. The refusal by MD to give this information was perceived by the Complainant to be suspicious. I note that the Complainant agreed, when asked by the Respondent representative in cross examination, that in fact no questions had been asked of him in the course of the interview process which might have appeared to put his age or the issue of age into focus.

It is common case that the Complainant did score quite highly but the Respondent asserts that others had scored higher still. As part of the process of preparing for the hearing before the WRC the Respondent did disclose the ages of the four successful candidates against whom the Complainant was directly competing. The ages are accepted by me as being 47, 40, 37 and 18. It is clear therefore that one of the successful candidates against whom he was competing was, like the Complainant, 47 years of age.

It is important to note that the Complainant stated in his evidence that had MD told him the actual ages of the successful candidates when he had made preliminary inquiries, he might not have felt inclined to process this claim. He was therefore blaming MD for not providing information that she was not entitled to disclose. This is a perverse logic.

Although beyond the scope of a claim for Discrimination on the grounds of Age, the ESB made the case that the interview panel would not have known anything about the Complainant’s prehistory with the Respondent. In fact, the ESB contended that any papers relating to a twenty-year-old hearing in the EAT are undoubtedly destroyed.

The legal representative said she wanted it to go on the record that: "Nobody in the ESB who was involved in this process had any awareness Mr Murphy had any prior claim with the ESB. Any files – it’s almost 20 years ago – have been shredded."

A Ms AGR gave evidence on Affirmation on behalf of the Respondent. She had been involved in the shortlisting of the 532 applicants for the jobs advertised. There were 90 positions to be filled across the country. Ms AGR put together the interview panel. She acknowledged that the Complainant’s overhead lines experience was useful, but that the company wanted a whole range of technical expertise to be brought on board. Ms AGR confirmed that age is not a consideration and that it was not even a part of the application form. She further confirmed that there are plenty of employees with the ESB who are aged 47 and over. Of the 90 people recruited the ages ranged from 18 to mid-60s. Ms AGR confirmed that she had no knowledge of any blacklisting of the Complainant prior to, and during this recruitment process.

In the course of evidence it was disclosed that the Complainant had scored an average of 24.5 points out of 30, meaning he had "scored quite highly" in the interview process.

It seems to me, having heard both sides, that the Complainant has conflated a sense Grievance that he has about not being recruited with an assumption that he had to have been discriminated against. He stated in evidence:

"I’ve been blacklisted by the ESB. I know it and they know it, and it’s wrong, simple as that, black and white as far as I’m concerned. It might not be age discrimination, but I have been discriminated against,"

I questioned the Complainant about a series of Facebook posts which had been raised in the ESB’s legal submissions. These were offensive and borderline sinister though the Complainant stated that they were "only supposed to be for my family and friends".

Ms AGR gave evidence that these posts had been concerning for staff in the ESB. I accept that this was the case.

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00063816-001  - Having considered all the evidence I am not satisfied that the Complainant herein has made out a case of Discrimination on the grounds of Age. In the circumstances I am dismissing this claim in its entirety.