FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : DUBLIN INSTITUTE OF TECHNOLOGY (REPRESENTED BY ARTHUR COX SOLICITORS) - AND - GWENDOLIN MANGWI NGONGBAN (REPRESENTED BY T.P. ROBINSON SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 - 2008.
BACKGROUND:
2. The Complainant appealed the decision of the Equality Officer to the Labour Court on the 26th August, 2011. A Labour Court hearing took place on the 31st January and 5th October, 2012, and 28th February, 2013. The following is the Court's Determination:
DETERMINATION:
This matter came before the Court by way of an appeal by Ms Gwendolin Mangwi Ngongban (hereafter the Complainant) against the decision of the Equality Tribunal in her claim against Dublin Institute of Technology (hereafter the Respondent) of discrimination on race grounds.
The facts
The Complainant was born in Cameroon. She was granted Irish Citizenship on or about 18thAugust 2006. She applied to the Respondent was a place on a course of study leading to an MSc in Pharmaceutical Quality Assurance and Biotechnology. She was told that she would be charged a tuition fee of €11,000 because she was classified as a Non-EU national. Under the Respondent’s admissions policy citizens of EU Member States qualify for significantly reduced fees.
The Equality Officer of the Equality Tribunal found that the course in issue was not a course of vocational training within the meaning of s.12(2) of the Act and that he lacked jurisdiction to entertain the claim.
The Appeal
The appeal was opened before the Court on 31stJanuary 2012 and submissions were made by the parties on the legal issues involved. The matter was adjourned on a number of occasions for various reasons. The adjourned hearing came before the Court on 5thOctober 2012. It was further adjourned for the purpose of adducing oral evidence from the Complainant and witnesses to be tendered by the Respondent. The case was to have come on for hearing in December 2012. The Court was informed that the Complainant had emigrated to Canada and could not attend at to give evidence at that time. The matter was scheduled for hearing on 28thFebruary 2013 and 1stMarch 2013 for the purpose of taking evidence. The final adjournment was on a peremptory basis against the Complainant.
At the adjourned hearing the Complainant was not present and the Court was informed that she had lost her passport and was unable to travel. Counsel for the Complainant applied for a further adjournment. This application was opposed by the Respondent. Having considered the submissions of the parties the Court refused to grant a further adjournment.
The Court decided to determine the appeal on the basis of the legal submissions made by the parties.
Determination
Section 12(2) of the Act defines Vocational Training as: -
- In this section “vocational training” means any system of instruction which enables a person being instructed to acquire, maintain, bring up to date or perfect the knowledge or technical capacity required for the carrying on of an occupational activity and which may be considered as exclusively concerned with training for such an activity.
The Court is satisfied on the admitted facts that the course for which the Complainant applied does not come within that statutory definition and is not a course of vocational training for the purpose of the Act.
Section 12(7)(a)(i) of the Act provides: -
- Without prejudice to section 3 of the Refugee Act 1996 nothing] in subsection (1) shall make unlawful discrimination on the age ground or the ground of race in respect of any course of vocational training offered by [an educational] or training body where—
(a) it provides different treatment in relation to—- (i) the fees for admission or attendance at any such course by persons who are citizens of Ireland or nationals of another Member State of the European Union,
There is no evidence before the Court to suggest that the reason why the Respondent proposed to charge the Complainant the impugned tuition fee was other than that her nationality was assumed to be that of a country which is not a Member State of the European Union. Section 12(7) of the Act provides the Respondent with a complete defence to her claim.
In the absence of any evidence from the Complainant concerning the circumstances grounding her claim which could give rise to a conclusion that the relevant statutory provisions are not applicable, the Court finds that her claim cannot succeed. The decision of the Equality Tribunal is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
4th March, 2013______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.