FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2007 PARTIES : COUNTY LIMERICK VEC (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - JOHN COTTER DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2007
BACKGROUND:
2. The worker referred his case to the Labour Court on the 21st October, 2008, in accordance with Section 83(1) of the Employment Equality Act, 1998. A Labour Court hearing took place on the 22nd April, 2009, in Limerick. The following is the Court's Determination:
DETERMINATION:
This ia an appeal against the decision of the Equality Tribunal in his claim of discrimination on the age ground against County Limerick VEC. The claim is grounded in the provisions of the Employment Equality Act, 1998 to 2007 (the Act). In this determination the parties are referred to using the designation provided for at Section 77(4) of the Act. Accordingly Mr. Cotter is referred to as the Complaninat and County Limerick VEC is referred to as the Respondent.
Background.
The Complainant is a teacher employed at Abbeyfeale Vocational School. He applied for promotion to the post of assistant principal of the school. He was interviewed for the post on 24th October 2005 but was unsuccessful. A younger candidate was appointed. The Complainant appealed against the outcome of the competition under a scheme of arbitration agreed between the Teachers Union of Ireland and the Irish Vocational Education Association. An arbitrator appointed under the scheme heard the appeal. The arbitrator found that the selection process was not properly conducted. In accordance with the scheme of arbitration the arbitrator set aside the declared result of the selection process and she directed that fresh interviews be undertaken.
In the re-run of the competition the Complainant was again unsuccessful and the result was the same as in the earlier nullified competition. The Complainant again appealed but, on that occasion, the arbitrator upheld the result.
The Complainant referred a complaint of discrimination on the age ground to the Equality Tribunal in relation to the first competition the result of which was set aside by the Arbitrator. The claim was investigated by an Equality Officer who found that the Complainant had not suffered discrimination. The Complainant appealed against that decision to this Court.
Position of the parties
The arguments advanced by the parties can be summarised as follows:
The Complainant
The Complainant presented a substantial written submission of some 116 pages and several appendices, which he augmented with oral argument.The first point taken by the Complainant is that in the course of her findings the Arbitrator found that the process of selection for the impugned appointment was tainted with ageism. The Complainant submitted that since the findings of the Arbitrator were not challenged by the Respondent it is now estopped from denying that which the Arbitrator found to be true.
Without prejudice to his contention in that regard the Complainant went on to assail the decision of the Equality Officer on a total of 21 grounds, each of which were expanded upon in his submissions to the Court. The gist of the submissions was that the selection process was unfair and the outcome was perverse. While the Complainant’s submissions were presented with considerable particularity, the gravamen of his case is that the selection board awarded him reduced marks because (a) his references were not of recent origin, (b) he had not recently undertaken in-service training and (c) his limited involvement in school events.
The Complainant contended that placing less value on a reference of older origin disadvantaged older candidates. He further contended that giving weight to recent participation in in-service training relative to earlier training advantages younger candidates, since such training is normally undertaken in the earlier part of a teachers career. It was further submitted that younger teachers tend to participate in school activities to a greater extent than older teachers and the weighting given to this criterion by the selection board operated to the disadvantage of the Complainant on grounds of his age.
The Complainant further impugned the selection process on the basis that the board failed to maintain interview notes. He also relied upon what he regarded as themala fidesof the Respondent in defending the within claim before the Equality Officer, this Court and in the arbitration proceedings concerning the result of the selection process. The Complainant further assailed the selection process on grounds of irrationality, asserting that on any objective assessment he was the better qualified candidate.
The Respondent
The Respondent’s representative told the Court that the impugned competition was held in accordance with the rules prescribed by the Department of Education and Science and set out in Circular Letter 43/00. Under these rules the interview board must consist of three persons – a personnel specialist, a VEC member and an education specialist. The board which conducted the interviews in this case was so constituted. The Court was told that four candidates, including the Complainant, applied for the vacant post. The year of birth of the candidates was given as follows: -
•Complainant –1954 (ranked second)
•Successful candidate – 1969
•Candidate ranked third – 1970
•Candidate ranked fourth – 1972.
The selection board met prior to the interviews and agreed the approach to be taken in the competition. The marks to be awarded in the competition were predetermined in Circular Letter 43/00, as follows: -
•50%- Capacity to meet the needs of the School
•30%- Service to the VEC Scheme
•20%-Experience of a professional nature in the field of education and involvement in the school.
Each of the candidates was questioned by the members of the selection board and were invited to add anything else of relevance not covered in the interview. Candidates were also asked if they were satisfied with the manner in which the interviews were conducted.
Following the interviews the selection board discussed the merits of the candidates and agreed a mark under each of the predetermined criteria. The secretary to the board then informed it of the number of marks which should be added for service in the case of each candidate. The Complainant obtained the maximum mark (30) under this heading.
The Court was provided with details of the marks awarded to the Complainant and the successful candidate in respect of each of the criterion identified by the selection board.
The Court was told that as part of the of the selection process candidates were required to provided references and were also required to list the in-service courses which they had taken. The Complainant provided two references both of which were written in 1993. The Complainant listed a number of in-service courses that he had undertaken, the most recent of which was in 1999. It was accepted that the longevity of the references and the absence of more recent in-service training was taken into account by the selection board to the Complainant’s detriment. The Court was told that after the outcome of the competition was announced the Complainant appealed under the agreed scheme of arbitration. The appeal was successful and the Respondent was directed to re-run the competition. The outcome was the same as in the first competition. The Complainant again appealed but was unsuccessful.
The Respondent submitted that the Complainant had failed to disclose any facts from which discrimination could be inferred and, on the proper application of the test formulated inMitchell v Southern Health Board[2001] ELR 201, he could not succeed. The Respondent also pointed out that the general scheme under which the impugned competition was held allowed for an allocation of marks based on service to the VEC. The Complainant benefited from this criterion in obtaining the maximum marks possible. It was submitted that the criterion of length of service operates to the benefit of older candidates but the Complainant took advantage of this criterion while seeking to portray other criteria which operated against him as ageist.
Conclusion of the Court
Estoppel
The Complainant contended that he is entitled to succeed on the basis of the findings made by the Arbitrator in the appeal against the outcome of the impugned competition. In relevant part the findings of the Arbitrator are as follows: -
- “ Issues 3,11and 12: again as these issues relate to the application of Criterion 3) I shall deal with them together. In relation to Criterion 3) there were headings in the application form under which candidates could set out in-service courses undertaken and plans for further study. A teacher’s involvement in in-service training and further study and development of their professional qualifications must surely be dependant on factors such as the stage they are at in their career and the personal circumstances outside of their job, as well as opportunities actually open to them. I consider that the Selection Board’s state [sic] approach in taking into account “the lack of recent involvement in relevant initiatives” to be under this indicative area. I do not consider that the Board properly applied the Criterion in relation to this aspect of it. I have a similar difficulty with the Board’s approach in relation to the Appellant’s membership of the Board of Management and involvement in organisation of school events etc. I believe that the Appellant has correctly identified the approach of the Board as ageist. Such an approach cannot be proper or fair in a selection process and, as stated already, is not, in my view, a proper application of the Criteria.”
The decision of the Supreme Court inDublin Corporation v Building and Allied Trades Union[1996] 1 IR 468 is authority for the proposition that the findings of an arbitrator can give rise to an estoppel by application of the doctrine ofres judicata. Such an estoppel can arise where there is an identity of issue between earlier and later proceedings even where the cause of action is different (see Judgement of Diplock LJ (as he then was) inThoady v Thoady[1964] 1 All ER 341). It has been held that an issue estoppel arises where there is (a) a final determination of the same issue in previous proceedings by a Court [or tribunal] of competent jurisdiction and (b) the parties bound by the decision were the same parties as are sought to be estopped in the later proceedings or their privies ( seeShaw v Sloan[ 1982] NI 393). What is contended for in this case, although the Complainant did not say so in terms, is an issue estoppel.
However, in order to give rise to an estoppel the issue in question must be identical with an issue decided in the previous proceedings. In addition, it must also be shown that in the previous proceedings, the issue actually arose for decision, and that it was necessarily determined by the Court [or tribunal] as a matter fundamental to its decision.
As the Court understands it the Arbitrator was dealing with a claim that the approach of the selection board involved an improper application of the criteria prescribed for competitions of the type at issue. The question of whether or not there was discrimination on grounds of age did not arise for decision and it was not a matter which had to be determined as being fundamental to the decision. In that regard the Court regards the statement of the Arbitrator relied upon as being in the nature of a passing comment or observation rather than a fundamental finding of fact on an issue central to the question before her.
There is a further consideration of some relevance to this aspect of the case. It appears that the scheme of arbitration at issue was conducted outside the ambit of the Arbitration Acts 1954-1998, since employment related matters do not come within the scope of those Acts. In these circumstances it is not clear if the findings of the Arbitrator have the necessary degree of finality and legal enforceability so as to give rise to an estoppel. However, in light of the conclusion that the Court has reached on the particular point raised it is unnecessary to go into this matter further.
Accordingly, the Court cannot accept that the Respondent is estopped from denying that the Complainant was discriminated against by reason of the Arbitrators findings.
Burden of Proof
Section 85A of the Act now provides for the allocation of the burden of proof in cases of discrimination. The test for the application of the provision of that Section is that formulated by this Court inMitchell v Southern Health Board [2001] ELR 201. That is a three-stage test which requires the Complainant to firstly prove the primary facts upon which he or she seeks to rely in asserting that discrimination occurred. The Court must then be satisfied that the facts proved are of sufficient significance to raise a presumption of discrimination. If these two aspects of the test are satisfied the probative burden passes to the Respondent who must then prove the absence of discrimination.
In his submission to the Court the Complainant pointed to the difficulties that complainants inevitably face in adducing evidence of discrimination. These difficulties are recognised by the Court and are reflected in the approach encapsulated in the Mitchell test. The rationale for that approach was explained inMassinde Ntoko v Citibank[2004] 15 ELR 116, as follows: -
- This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant's power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of antidiscrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondents capacity of proof.
The Complainant has placed reliance on a number of facts, which are acknowledged as such by the Respondent. These relate to the attitude taken by the selection board in relation to the reference that he provided, the extent of his in-service training and his lack of participation in school activity. The Court does not consider that these matters, either in themselves or cumulatively, when viewed in the context of the case as a whole, are of sufficient significance to raise a presumption of discrimination. To that extent this Court differs from the conclusion reached by the Equality Officer.
The Court cannot accept that the preference of the selection board for a recent reference could imply a discriminatory disposition. Nor could it be logically asserted that such a preference places older candidates at a disadvantage relative to younger candidates. Similarly, giving greater weight to more recent participation in in-service training would not, in the Court’s view, imply discrimination nor could it be regarded as a practice which places older candidates at a particular disadvantage. With regard to participation in school activities, this is an entirely age neutral criterion which could not have any discriminatory connotation.
There are other grounds upon which the Complainant urged the Court to hold that he was the victim of discrimination. He claimed that the Respondent was duplicitous in defending this claim before the Equality Officer and this Court. There is some limited authority for the proposition that the post hoc conduct of a respondent can properly be taken into account in considering ifa prima faciecase of discrimination has been made out. For example, inKing v The Great Britain-China Centre[1991] IRLR 513the Court of Appeal for England and Wales held that an evasive or equivocal reply to a questionnaire can be relied upon as indicative of discrimination. However, in the instant case the Court is fully satisfied that there was no element ofmala fidesor duplicity in the manner in which the Respondent presented its defence to the within claim. Accordingly, this ground must also be rejected.
The Complainant also placed reliance on the failure of the selection board to retain interview notes. He submitted that the selection board were under a legal duty to maintain notes of the interviews and cited the Judgment of O’Neill J. inBecker v Duggan[2005] IEHC 376 as authority for that proposition. The Court has read the Judgment of Mr Justice O’Neill in that case with great care. It could find nothing in the Judgment to support the conclusion contended for by the Complainant. As far as interview notes are concerned what arises from the case is that where such notes exist, and are relied upon by a party in presenting its claim to an arbitrator, they should be made available to other side on request.
Nonetheless, this Court has frequently pointed out the necessity for interview boards to maintain records showing the rationale of their marking scheme. This is a requirement of good practice and the absence of interview notes can place an employer at a particular disadvantage in rebutting an inference of discrimination where the Complainant succeeds in establishing aprima faciecase. However, in the instant case, the marking sheets were produced in evidence and a full explanation was available to the Court as to the basis upon which marks were awarded. In these circumstances the absence of interview notes is not a fact from which the Court is prepared to infer discrimination
Finally, the Complainant urged the Court to conclude that he was the better candidate and that the decision not to appoint him to the disputed post is not sustainable. In Determination EDA042,Moore-Walsh v Waterford Institute of Technologythe Court held that in the absence of clear evidence of unfairness or manifest irrationality in the result, the Court will not seek to undertake its own assessment of the candidates or substitute its views on their relevant merits for those arrived at by the interview board. The Court cannot see any basis upon which it could hold that the conditions identified in that case were present in the instant case.
Determination
For all of the foregoing reasons the Court does not accept that the Complainant has established facts upon which discrimination could properly be inferred. Accordingly, on the test established inMitchell v SouthernHealth Board, the Complainant cannot succeed. Accordingly, the Court finds that the Complainant was not discriminated against as alleged.
The decision of the Equality Tribunal is affirmed and the appeal herein is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
15th May, 2009______________________
CONChairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.