DEE032

• “Save only where reasonable cause can be shown, a reference under this section shall be lodged not later than six months from the date of the first occurrence of the act alleged to constitute the discrimination”

• 
  “I find that under Section 27(4) of the 1997 Act, the complainants are out of time and the Rights Commissioner had no jurisdiction to entertain any complaint relating to contravention of the Applicant’s annual leave obligations and obligations in respect of public holidays owed to the Respondents arising during the leave year 1999-2000.”

• “The Labour Court had no jurisdiction to take the respondent’s entitlement to annual leave and in respect of public holidays into account in the complaint made by the respondent in respect of the leave year 1999-2000”.

• “Both parties were content to have the matter dealt with by the Labour Court on what amounted to an admission of the relevant facts which would constitute discrimination. That being the case it is not open to the High Court judge to proceed on the basis that the facts had to be proved before him.”

• “If a party appealing the recommendations of a Equality Officer to the Labour Court seeks to put in issue any of the facts so found [by the Equality Officer] they should unequivocally do so in their notice of appeal and, in turn, the Labour Court upon the conclusion of its hearing should in an unambiguous fashion state the facts which it has found and the evidence upon which it found them”.

Conclusions of the Court.

There are three important questions which arise for consideration in this case:

1. Did the Court finally determine the admissibility of the complaint herein when it referred the dispute to an Equality Officer?
2. Does the reference of a complaint outside the time limit prescribed by section 19(5) of the Act, and in the absence of a finding of reasonable cause, deprive the Court of jurisdiction to deal with the complaint in any way. Alternatively, should the subsection be regarded as a statute of limitations which the respondent may invoke to bar a claimant’s claim but does not deprive the Court of jurisdiction to deal with the case?
3. What is the date of occurrence of the act alleged to constitute the discrimination?

• “What Aer Lingus submits is that the Labour Court must initially make a determination that the complaint is receivable before making the administrative decision to try to settle the dispute or refer it for investigation. This would mean it would first have to have a hearing with submissions from both sides to decide whether the act complained of (or the first occurrence thereof) occurred within the six month period prior to lodging the complaint, and if not whether there was a reasonable cause for the delay.
  • In my opinion that is not correct. Whether the act complained of prima facie occurred within the six months before a lodgement or not, there is no need to make a preliminary determination. The Equality Officer must investigate whether or not the act was discriminatory and make a recommendation. He has no function to deal with the question of the time bar. If the employer claims that the complaint is not
    receivable because of the time bar then the Court must make a decision, having regard to any claim by the employee to the contrary or that reasonable cause has been shown why reference was not made earlier. But it is not necessary that the Labour Court should hold a preliminary inquiry to make the determination. The Labour Court can decide on receivability at the same hearing as it determines the question of discrimination. That is not to say that the Labour Court may not hear a preliminary point on receivability and decide whether the complaint is out of time or whether there is a reasonable cause for delay (as it did in the early stages of this dispute) before referring the matter to the Equality Officer but it is not obliged to do so, any more than a Court is obliged to hear a claim on whether a claim is statute barred or not”.

• • “The Equality Officer has no function to deal with any matter concerning the question of the time bar and therefore any finding he makes is strictly without prejudice to what the Labour Court may decide about the latter point”

• • “A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”.

• • A dispute concerning an alleged act of discrimination more than six months old may still be a genuine and serious dispute and it appears to me that the Court would clearly have jurisdiction to refer it to an industrial relations officer under
    section 19 subsection (2) to assist in effecting a settlement. But if the Court would have jurisdiction to refer it to an industrial relations officer it would also have jurisdiction to refer it to an equality officer in the event of an industrial relations officer failing to effect a settlement. It therefore appears to me that the Court would also have jurisdiction to refer it to an equality officer in the first instance.
    
    Subsection (5) should, therefore, in my opinion, be regarded as a statute of limitations which the respondent may invoke to bar the claim but which does not deprive the Court of jurisdiction to deal with
    the case.

Substantive Case.

Background to the Dispute:

The dispute concerns the filling of a post of Locum Matron / Director of Nursing at the Regional Hospital Complex in Limerick. The locum position arose from the impending absence of the Matron / Director of Nursing (hereafter the Matron) for a period of six months. At the material time the claimant held the post of Deputy Matron at the hospital, a post which she had held continuously since 1996. She had previously held a similar post in a temporary capacity between 1989 and 1993.

Rather than appointing the claimant to act in place of the Matron during her absence the respondents decided to fill the post by confined competition. In August 1998 the respondent placed an advertisement inviting applications for the acting post. At that time the Union, together with another Union representing nurses at the hospital, objected to the proposed mode of filling the post. They claimed that a decision not to appoint the Deputy Matron to fill the vacancy was unacceptable and without precedent. The Unions sought to refer the dispute concerning the filling of the post to a Rights Commissioner. This course of action was not acceptable to the respondent.

Whilst the claimant was aggrieved at the decision to open the post to competition she nonetheless applied in the normal way and participated in the competition. There were two other candidates, one male and one female. The three candidates were interviewed on the 11th September 1998. On the 14th September 1998 the complainant was formerly advised that she had been unsuccessful.

Case on behalf of the Claimant:

It was submitted on behalf of the claimant that the post of Deputy Matron existed so as to provide cover for the Matron while she is absent from duty. The Union contends that the claimant was in effect forced to reapply for her own job. They say that the decision to hold a competition for the post was taken by the then Acting General Manager of the respondent despite opposition from the claimant’s Union and another Union representing nurses at the hospital. They say that this manager then sat as Chairperson of the interview board. The Union further contend that whilst approximately 95% of all nurses are women a disproportionate proportion of men occupy management nursing posts.

The Union also submitted that it is common in the health sector for the holders of deputy posts to act up in the substantive post for periods significantly in excess of the period of absence in this case (details of the position in other hospitals were provided to the Court).

It is the Union’s case that taking all these factors in combination there is a strong prima facie case of discrimination on grounds of gender. They say that in the absence of a creditable explanation for the decision to effectively displace the claimant and to appoint a man in her place, the correct inference to be drawn is that she was discriminated against.

The Respondents Case:

It is the respondent’s case that the claimant was employed as Assistant Matron at the Regional Hospital in Limerick and that she holds the acting up post of Deputy Matron at that hospital. They said that the Matron at the Regional Hospital Complex, unlike the Deputy Matron, also has responsibility for St. Munchins Maternity Hospital and Croom Orthopaedic Hospital. They said that when the Matron position was becoming vacant for a six-month period it was decided to open up the competition so as to ensure that the best possible candidate was appointed to cover this absence.

It was the respondent’s case that the decision was primarily influenced by the duration of the absence and their understanding that the Deputy Matron did not have responsibility for acting in place of the Matron in respect of the maternity or orthopaedic hospitals. They submitted that the position which was being filled was a different job to that held by the claimant in that it was intended to cover the entire complex. The respondent further asserted that the competition was carried out fairly and in accordance with best practice. They said that the gender of the claimant never entered their consideration in either deciding to advertise the post or in awarding it to the successful candidate.


Burden of Proof:

The parties are agreed that the correct test for deciding if the burden of proof shifts to the respondents in this case is that formulated by this Court in the case ofSouthern Health Board v Dr. Theresa Mitchell [2001] ELR 201. Thus, it is for the claimant to prove, on the balance of probabilities, the primary facts on which she relies in making her case of discrimination. It is then a matter for the Court to decide if those facts are of sufficient significance to raise a presumption of discrimination. If the Court is so satisfied the onus is shifted to the respondent to prove, on the same standard, that there has been no infringement of the principle of equal treatment.

The principal factual issue in contention between the parties concerns the range and scope of the deputising functions attaching to the post of Deputy Matron. A central assertion in the claimant’s case is that by virtue of holding that post she should have been automatically appointed to act in place of the Matron during the absence at issue. The onus of proving this assertion rests with the claimant.

The Evidence.
In her evidence to the Court the claimant said that she always understood that she was deputy to the Matron at the Regional Hospital and that her range of duties while acting in place of the Matron were exactly the same as those of the Matron herself. She said that she never had reason to believe that the Matron had a different understanding of the position. The claimant also said that on each previous occasion when the Matron was absent, for whatever reason, she acted in her place in every respect.

The claimant told the Court that her designation was that of Deputy Matron at the Regional Hospital Limerick and that the Matrons designation was that of Matron /Director of Nursing at the Regional Hospital, Limerick. She said that her understanding was that the post of Matron / Director of Nursing at the Regional Hospital also carried responsibility for the maternity and orthopaedic hospitals. She had never been informed that the scope of her position of Deputy Matron was in anyway different to that of the substantive post for which she deputised.


On behalf of the respondent, evidence was given by Mr Hourigan who was, at the material time, Acting General Manager at the Regional Hospital. Mr Hourigan reported directly to the Assistant Chief Executive Officer of the respondent. The Matron /Director of Nursing at the hospital reported to this witness.

The witness took up his appointment with the respondent in June 1998. He told the Court that when he was informed of the impending absences of the Matron he was concerned to ensure that the most competent person available was appointed to act in her place. He said that he took the decision to open the post to competition rather than to appoint the claimant after consultation with his own deputy and with the Matron.

The witness was influenced by the duration of the impending absence and his understanding that the deputy did not have responsibility for the other two hospitals in the complex. However, the witness accepted that he had no direct knowledge of the circumstances surrounding the appointment of the claimant as Deputy Matron or of the range of duties which had been assigned to her on previous occasions. The witness said he had no concerns about the claimant’s capacity to deputise for the Matron and the decision to advertise the post was purely for the purpose of giving other qualified personnel the opportunity to apply. The witness categorically denied that the claimant’s sex was a factor which entered his consideration.

Mr Hourigan said that the interview board for the competition consisted of himself as Chairman, the Matron and another woman from outside the Hospital. This witness also told the Court that it never occurred to him that there might be a conflict between his stance in relation to the filling of the post by open competition and his participation as Chairman on the interview board. The Board met for approximately 30 minutes before the commencement of the interviews. They decided their approach to the interviews and allocated responsibility for questions on different topics as amongst themselves. All candidates were asked broadly the same questions.

The witness said that marks were allocated against a pre-determined list of criteria. 50 marks were allocated for education qualifications, 100 marks were allocated for nursing experience, including the value derived from it, and 250 marks were allocated for management and administrative capacity, personality and general suitability. After each candidate was interviewed the board discussed their performance and agreed an overall mark against each criteria. The members of the board did not mark individually. The witness agreed that no interview notes were retained from the interview, nor were there any notes of the questions asked of the candidates.

The witness told the Court that in the competition the successful candidate emerged as competent and a very good to excellent candidate. The claimant emerged as a competent to fair candidate. He said that she was weak in respect of industrial relations and budgetary matters. The witness told the Court that the claimant was extremely good at bed management.

Mr Monigle, who is the Deputy General Manager at the hospital, also gave evidence in relation to the nurse management and the structure which was in place within the hospital complex. He said that historically the regional, maternity and orthopaedic hospital each had its own matron. He said that around 1991 the position of matron at the orthopaedic hospital became vacant and was not filled. In 1996 the position of matron at the maternity hospital also became vacant and was not filled.

The witness said that it had been decided at that time to appoint a single matron/director of nursing for the entire complex. The witness accepted that this was before the current Matron was appointed. The witness also accepted that the advertisement for the post of Matron, to which the current Matron was appointed, referred only to the Regional Hospital. The witness agreed that this was the same description as applied to the post of Deputy Matron to which the claimant was appointed.

Mr Monigle told the Court that the senior nurse managers at both the maternity and orthopaedic hospitals would assume responsibility for the functions normally exercised by the Matron in respect of those hospitals during her absence. He said that they would report directly to him on such occasions.

This witness told the Court he did not know how a person holding a deputy position would assume that they had an automatic right to act up in the event of a temporary vacancy in the substantive post. He did accept however that he himself automatically acted up in the post to which he was deputy.

The Divisional Nurse Manager at the Croom Orthopaedic Hospital, Mr Moynihan, gave evidence. This witness was also the successful candidate for the Locum Director of Nursing post, which is the subject of this dispute. This witness told the Court that it was his understanding that the claimant did not have any function in respect of the orthopaedic hospital where he held the post of Divisional Nurse Manager. He said that in the absence of the Matron he would assume responsibility for nursing issues at that hospital and would report to the Deputy Manager. The witness said that the Matron would visit that hospital periodically but that he did not recall the claimant having ever visited the hospital while acting as Matron.

The witness gave evidence that during his own period as Locum Director of Nursing he had responsibility for the whole complex but that in his absence the Divisional Nurse Managers at the maternity and orthopaedic hospitals acted in respect of these hospitals. The witness accepted that the maternity and orthopaedic hospitals were relatively self-contained in the sense that nursing issues arising at those hospitals would not intrude upon the time of the Director of Nursing to any great extent. The witness accepted that approximately 70% of his time, as Locum Director of Nursing, would have been spent dealing with matters related to the Regional Hospital.

The witness was referred to a letter which he had written during his period as Locum Director of Nursing advising various management personnel of his intention to take annual leave. In this letter the witness advised that the claimant would act in his place during his absence. The witness said this was intended to refer only to the Regional Hospital. He did accept that the letter was sent to the Nurse Managers at the maternity and orthopaedic hospitals and that the letter did not contain any qualification as to the scope of the claimants acting up responsibilities.


Conclusions of the Court

Normally, when a person is appointed to a deputy post the scope of their deputising responsibility would be the same as that of the substantive post. Whilst the respondent understood the claimant’s position to be different, there is nothing in the documentation relating to either the substantive post or deputy post which can confirm this. The current Matron was appointed following an advertisement for “Matron Regional Hospital, Dooradoyle, Limerick”. It is accepted that the letter of appointment which the Matron subsequently received similarly described her position. The claimant was appointed as “Deputy Matron Regional Hospital, Dooradoyle, Limerick”.

Witnesses who gave evidence on behalf of the respondent told the Court that it was always their understanding that the claimant’s deputising functions did not extend beyond the Regional Hospital. They were, however, uncertain as to the source of that understanding, which did not appear to have been documented anywhere.

The current Matron was not called to give evidence and, consequently, the Court did not have the benefit of her understanding of the role of her deputy. However, in her evidence to the Court the claimant was quite certain that she related to the Matron as her deputy in all respects. She told the Court that she had never been told that her role was in anyway curtailed relative to that of the matron herself.

The Court accepts that it would be quite unusual for a person holding a deputy position to have a different range of responsibilities while acting up to that of the person for whom they were deputising. The Court believes that if such was the reality in the instant case some records to that effect would exist and that this limitation would have been communicated to the claimant at the time of her appointment as Deputy Matron.

The claimant’s position as Deputy Matron was confirmed after the current Matron was appointed. It is, therefore, noteworthy that the letter confirming her appointment did not indicate that the scope of the deputy position was in anyway different to that of the substantive position. The Court also considers it noteworthy that the Locum Director of Nursing confirmed, without qualification, that the claimant would be acting in his place while he was on leave during March / April 1999,

Taking account of all the evidence the Court is satisfied, on the balance of probabilities, that the terms of the claimants appointment were such that her deputising role extended over the same range of functions which attached to the substantive post of Matron / Director of Nursing.

It follows that the created post of Locum Director of Nursing , effectively usurped the role and functions of the job which the claimant already held. In the Court’s view, taken in the context of the whole case, this is a fact of sufficient significance to raise a presumption of discrimination.

There are other aspects of the case which reinforce that conclusion. The respondent has always maintained that the decision to open the locum post to competition was predicated on the belief that the claimant as Deputy Matron did not have an entitlement to act up for the Matron in the circumstances then arising. The claimant and the Unions representing nurses at the Hospital did not share this view. The factual position could have been established and the dispute resolved in an industrial relations context by reference of the dispute to a Rights Commissioner, as was suggested by the Unions. The Court regards it as strange that the respondent was unwilling to adopt this course.

Further, the then Acting General Manager was centrally involved in the decision to open the disputed post to competition and in the subsequent refusal to have that decision reviewed by a Rights Commissioner. Against that background, the appropriateness of his decision to chair the interview board was, at best, questionable. Moreover, in the Court's view, the manner in which the interview process was conducted was less than satisfactory. The marking system used gave significant weighting to subjective assessment of the candidates against the agreed criteria. The individual members did not mark candidates but arrived at a common mark after each interview. Finally, the absence of any records relating to the performance of candidates, apart from the final marking sheet, makes it difficult to verify the integrity of the process.

Having taken the evidence as a whole the Court is satisfied that the claimant has established a sufficient factual basis from which discrimination may be inferred. Consequently, the onus shifts to the respondent to put forward a convincing reason, unrelated to her gender, for the sequence of events which culminated in the claimant being displaced by the successful male candidate.


The Respondent’s Defence.

In the proceedings before the Equality Officer and in the course of this appeal the respondent has explained the impugned decision by reference to the anticipated duration of the vacancy at issue and the desire to make a selection from a broad pool of suitable candidates. There is an inherent frailty in that explanation. The duration of the vacancy could only be relevant if the respondent had some reservations or concerns at the claimant’s capacity to adequately take on the duties of the Matron over an extended period. Both witnesses, who participated in the decision to create a competition, were emphatic that they were not influenced by any such concerns.

The Court also has difficulty in accepting that the respondent could have had a realistic expectation that a broad pool of candidates would be available from which to fill the vacancy. Only three candidates applied, including the claimant. One of these candidates turned out not to be qualified. In that regard, the witnesses who participated in the decision to hold a competition accepted that they were not surprised at the small number of applications which were received in the competition.

Finding.
For the reasons set out above the Court is not satisfied that the respondent has discharged the onus of rebutting the presumption of discrimination which the claimant has established in this case. Accordingly the claimant is entitled to succeed.

Redress:

The Court has considered the redress recommended by the Equality Officer and the submissions made by the parties in relation thereto. The Court notes that the Equality Officer recommended that the claimant should be entitled to act in place of the Matron in respect of all future vacancies. The Court does not accept that this recommendation is appropriate.

If the claimant were to be displaced again in circumstances amounting to discrimination or victimisation she would have an adequate remedy in law. The recommendation of the Equality Officer, if endorsed by the Court, would add nothing to her existing legal rights. If, however, she was displaced in circumstances which did not amount to discrimination the Employment Equality Act would have no application and any resulting dispute could be dealt with as an industrial relations matter or as a contractual issue. In either event the Court does not consider it appropriate to anticipate events into the future.

The Court also notes that the Equality Officer recommended the payment of compensation in the amount of £3,000 (€3809.21) in addition to compensation for the loss of earnings suffered in consequence of the discrimination. In the circumstances of the case the Court is of the view that compensation for the effects of the discrimination should be increased to €6000.

Conclusion
Subject to these modifications set out above the Recommendation of the Equality Officer is upheld and the appeal herein is dismissed.













Signed on behalf of the Labour Court



Kevin Duffy
2nd April 2003______________________
CMCM./MB./JBDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Carmel McManus, Court Secretary.