The ESB has denied operating a blacklist after a former lineman claimed his involvement in a labour dispute nearly two decades ago may have been the reason he was not re-hired by the State utility.
At the Workplace Relations Commission today, an adjudicator said she was "alarmed" by posts the complainant made on social media about "pushing the tip of a spear through the cold black heart of the ESB".
The worker, Wayne Murphy, said it was "just a metaphor" and that he had no idea Facebook posts he intended for his family and friends were being passed to the company by persons unknown – but that he made no apology for them.
Mr Murphy, who is 47, had brought a complaint under the Equal Status Act 2000 alleging discrimination on age grounds when he was unsuccessful in an application for a position in the ESB in Arklow, Co Wicklow more recently.
However, he told the hearing that he believed that in his recent job application, he was "either discriminated against for bringing a case to the EAT [Employment Appeals Tribunal] 20 years ago, or I was discriminated against for age".
This original dispute related to getting employment with the ESB following the completion of an apprenticeship, he told the tribunal.
In the current dispute, Mr Murphy said a line manager had recommended him personally for a position that arose in the ESB. Mr Murphy said this manager was "very surprised" that he was not accepted.
The complainant said that he phoned the utility's HR department to ask for feedback on his interview. Having been told there was a "high volume of applicants", he asked the HR officer he spoke with for the ages of the successful candidates stating that he felt he had been discriminated against on age grounds, he said. The HR officer refused to disclose the information, he said.
"If she told me their ages on the phone, we wouldn’t be here now," he said. Mr Murphy said he had learned from "a whistleblower, a good source, boots on the ground" that one of the successful candidates was 27 – but that when the ESB had replied to his claim before the WRC, the ages given for the successful candidates were between 34 and 40.
"Either the ESB have made a clerical error or have falsified the evidence; shuffled the deck to strengthen their hand," Mr Murphy said. He said none of the successful candidates had the overhead line experience he had, or the personal recommendation of a line manager.
"Obviously I’m being discriminated against if that’s not being taken into account," he said.
"On grounds that don’t relate to age," said the adjudication officer hearing the case, Penelope McGrath.
"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," Mr Murphy said.
Ms McGrath then questioned Mr Murphy about a series of Facebook posts which had been raised in the ESB’s legal submissions. Mr Murphy said they were "only supposed to be for my family and friends".
"If one of those persons in the ESB was screenshotting them and sending them to the ESB, I didn’t realise that. If I’d known that, I wouldn’t have posted them," he said.
"Is that an apology of some sort," Ms McGrath asked.
"No, not at all… we live in a free state where we still have free speech," the complainant said.
"Pushing the tip of a spear through the cold black heart of the ESB," she said, quoting from the material before her.
"That’s just a metaphor," Mr Murphy said.
"I am going to f-*-*-k you in your ass, ESB," Ms McGrath continued. "These are phrases that I’m a little bit alarmed about.
"I don’t apologise for that," Mr Murphy said. He said he was "making light" of his situation for family and friends. "I lived the ESB, I thought I was a dead cert to get back into the ESB, but I was set up to fail. They just went through the motions to cover their asses legally-wise," he said.
Referring to the previous dispute, he said: "A scab has been pulled off that wound, and it’s not going to close until I get justice."
The ESB’s in-house solicitor, Janice Kavanagh, put it to Mr Murphy that with an average of 24.5 points out of 30, he had "scored quite highly" in the interview process.
"Obviously not," he said.
Counsel asked the complainant whether he would have pursued an equality claim if the HR officer had told him the ages of the successful candidates.
"I wouldn’t have," Mr Murphy said. He said his view was that "discrimination is discrimination". Mr Murphy said he believed the ESB’s legal papers had given accurate ages for three of the successful candidates, but not a fourth.
Ms Kavanagh 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."
Anne Gaskin-Roe, an ESB HR officer who was involved in shortlisting candidates, gave evidence and denied any awareness of a prior legal complaint by Mr Murphy against the ESB. She swore to the accuracy of the ages given for the successful candidates in the ESB legal submissions.
"Is there any sort of blacklist in relation to Mr Murphy," Ms Kavanagh asked.
"Absolutely not, no, I’ve never come across his name previously," the witness said.
Ms McGrath moved to close the hearing and told the parties her decision would be given by email.
