THE HIGH COURT
1988 No.242Sp
IN THE MATTER OF THE EMPLOYMENT EQUALITY ACT 1977
BETWEEN
THE BOARD OF MANAGEMENT OF THE MODEL SCHOOL LIMERICK
PLAINTIFF
AND
BEETIE CULLOO
DEFENDANT

TRANSCRIPT OF JUDGMENT DELIVERED BY THE HONOURABLE MR JUSTICE DECLAN COSTELLO ON 11TH MAY 1989
The Minister for Education is the patron of a national school in Limerick known as The Model School. The Minister does not manage the school but has, in accordance with departmental regulations, nominated persons to manage it. Those so nominated from time to time constitute the Board of Management of the school.

A dispute arose about the appointment of the school's principal in June 1986. Miss Beetie Culloo, a teacher in the school, complainer' of discrimination against her contrary to the provisions of the Employment Equality Act 1977. The dispute was referred by the Labour Court for investigation by an equality officer under the provisions of section 19(2) of the Act. The equality officer, in effect, found in Miss Culloo's favour and on 1st; December 1987 issued a recommendation directing the Board of Management to pay her £11,000.
A meeting of the Board of Management was held on 9th December 1987 and it is the proceedings at or subsequent to that meeting which form the basis for the claim which is now before me.

The 1977 Act provides for an appeal to the Labour Court against a recommendation made by an equality officer and provides that an appeal must be brought within 42 days of the date of the recommendation. By a notice dated 8th January 1988 an officer of the Department of Education appealed against the recommendation on behalf of the Board of Management. On 12th January 1988 a second notice of appeal was sent by the Chief State Solicitor on behalf of the Board of Management.	

On 2nd March	1988 the appeals came before the Labour Court. On that date the Labour Court made a decision which was communicated to the Chief State solicitor on 4th March. The decision of the Labour Court was in the form of a statement which reads as follows:
"The Court finds as a matter of fact that the Board of Management of Model School, Limerick did not decide to lodge an appeal in this case.
"As the document dated 12th January 1988, signed by Louis J. Dockery states '...that the Board of Management appeals against the whole of the Equality Officers Recommendation... it is incorrect and is not therefore a proper appeal.
"As the document dated 8th January 1988 and signed by Deasun O'Lochlainn states that '...the Board of Management, Model School, Limerick, hereby appeals...' it too is incorrect and is not therefore a proper appeal.
"As there is no other notice of appeal against the Equality Officer's Recommendation lodged with the Court within 42 days the Court will not deal with the appeal on behalf of Ms. Culloo."

It is against that decision that the present appeal has been taken.
Section 21(1) of the Act provides that a party to a dispute determined by the Labour Court may appeal to the High Court on a point of law. The point of law in this case, I am told, is that there was no evidence before the Labour Court which would justify it in reaching the conclusion that the Board of Management did not decide to lodge an appeal in this case.

There is a dispute before me on affidavit evidence as to what occurred at the meeting and after the meeting of the Board of Management on 9th December 1987 and also as to what occurred at the meeting of the Labour Court on 2nd March 1988. There are, however, enough undisputed facts about the hearing before the Labour Court to enable this appeal before me to be determined.

I am not required to decide what happened on 9th December 1987. What I have to decide is whether there was any evidence before the Labour Court on 2nd March 1988 to justify its decision.

The Defendant, Miss Culloo, had made a written submission of considerable detail supported by a written statement to the effect that no valid decision to appeal had been taken by the Board of Management. The Board of Management was represented at the hearing. In addition, the Labour Court heard statements from Mr Chadwick, the Board's Chairman, and Mr Prendergast, a member of the Board. On the material before it the Labour Court was, in my judgment, entitled to conclude
(a) that the notice convening the meeting of 9th December 1987 contained an agenda which did not contain any reference to a proposal that the recommendation of the equality officer would be discussed at the meeting;
(b) that some of the members of the Board of Management left the meeting when the business stated on the agenda was concluded;
(c) that the Board's Chairman requested three members of the Board to remain behind with him;
 (d) that the Board's Chairman then discussed with the three members of the      Board who remained behind at his request the recommendation of the equality officer and the advisability of an appeal;	
(e)that no formal decision was taken by the four members of the Board that the Board of Management should appeal and no record of such a decision was included in the Board's minutes 
(f) that the notices of appeal were sent on the direction of the Board's Chairman who is an official of the Department of Education.

It is not now submitted that the appeal to the Labour Court was authorised by the Minister for Education in the Minister's capacity as patron of the school as the Minister had clearly not terminated the managerial powers of the Committee of Management.

Nor is it submitted, as apparently it had been before the Labour Court:, that a meeting of those members of the Board of Management, who were members at the time of the original dispute, could have authorised the appeal and that they did so. It is clear that a decision to appeal to the Labour Court could only have been authorised by a properly constituted meeting of the members of the Board of Management who held office on 9th December 1987.

It was, in my view, open on the evidence before it for the Labour Court to conclude (1) that no valid decision could have been taken to appeal by those members of the Board of Management who remained behind at the invitation of the Chairman after the business for which the meeting had been convened had concluded, or (2) that no decision to appeal was in fact made by those members who had remained behind. If the Labour Court reached these conclusions, it would follow that the Chairman of the Board of Management had no authority to direct that notices of appeal be served.
I myself am not required to express any view on the facts of the case. Once I am satisfied that there was evidence on which the Labour Court was entitled to reach the conclusions of fact which did reach I must then dismiss this appeal.

Yesterday in the course of discussion there was reference to the INTO being in some way involved in the case. I heard no reference to the Employment Equality Agency being involved. I do not think I should decide whether or not Miss Culloo is being assisted in any way in relation to the costs of this appeal.

It seems to me that the justice of the case requires that I should make a special order under the section. This case was brought on a very narrow ground, namely, whether or not the Labour Court. had material and evidence before it which would justify its findings. In my view it was an issue of fact which the Defendant had a considerable interest in contesting. She has successfully contested the issue and I think it would be unjust to deprive her of the costs which she has had to incur in successfully justifying the action taken by the Labour Court. It would have been open to the Minister to defend the decision of the Labour Court but the Minister decided not to defend it.

In those circumstances there are, it seems to me, special reasons, why I should direct that the costs of this appeal be paid by the Board of Management of the Model School, Limerick.