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URL: http://www.bailii.org/ie/cases/IEHC/2003/104.html
Cite as: [2003] IEHC 104
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2003 No 169SP
IN THE MATTER OF THE EMPLOYMENT EQUALITY ACT, 1977
AND IN THE MATTER OF AN APPEAL FROM DETERMINATION NO DEE032 OF THE LABOUR COURT
AND IN THE MATTER OF AN APPEAL BY THE MID WESTERN HEALTH BOARD
Between/
-Plaintiff
-Defendant
JUDGMENT of Mr. Justice Paul Butler delivered the 28th day of November, 2003
The Defendant (hereinafter referred to as "the Claimant") was appointed Acting Deputy Matron of Limerick Regional Hospital in 1996. In 1998 the matron of the Hospital was due to go on maternity leave. The Plaintiff (hereinafter referred to as "the Plaintiff" or "the Respondent" or the Board") advertised the post of "Acting Matron/Locum Director of Nursing". The Claimant was one of three applicants for the advertised post and in September of 1998 the Respondent appointed a male applicant thereto. The Claimant invoked the provisions of s. 2(a) of the Employment Equality Act, 1997 claiming that she had been discriminated against by the Respondent on the grounds of her gender in filling the post of Acting Matron/Locum Director of Nursing.
On the 12th March, 1999 the Claimant lodged her claim and on the 24th August, 2000 the Equality Officer appointed by the Labour Court found that she, the Claimant, had been discriminated against as alleged and recommended:-
(1) That the Respondent should pay the Claimant the difference in pay which she would have received had she been appointed to the disputed post.
(2) That the Respondent pay the Plaintiff compensation in the amount of IR£3,000 (€3,809.21) and
(3) That in all future cases when the matron is absence from duties the Claimant, while holding the post of Deputy Matron, should deputise for her, the Matron.
The Respondent duly appealed the said findings and recommendations of the Equality Officer to the Labour Court.
On the 2nd April, 2003 the Labour Court issued its determination whereby, subject to certain modifications therein mentioned, it upheld the recommendation of the Equality Officer and it dismissed the Respondent's appeal.
In these proceedings, initiated by special summons dated the 17th April, 2003 the Plaintiff seeks:-
(1) An order that there was no evidence before the Labour Court on which the court could properly find that the Plaintiff (so referred to in the title to these proceedings but referred to as "the appellant" in the special endorsement of claim) was guilty of discrimination on grounds of sex.
(2) An order that there was no evidence before the Labour Court on which the Court could properly find that the Plaintiff's decision to create a position of Locum Director of Nursing raised a presumption of discrimination on grounds of sex.
(3) An order that the Labour Court erred in law in finding that the Plaintiff's decision to create the position of Locum Director of Nursing raised a presumption of discrimination on grounds of sex.
(4) An order that there was no evidence before the Labour Court on which the Court could properly find that the Claimant's deputising role extended over the same range or functions which attracted to the substantive post of Director of Nursing.
(5) An order that there was no evidence before the Labour Court on which the court could properly find that the creation of the post of Locum Director of Nursing effectively usurped the role and functions of the Claimant's job.
(6) An order that the Labour Court erred in law in holding that it had jurisdiction to deal with an appeal to deal with an appeal from the recommendation from the Equality Officer in circumstances where the Claimant before the Labour Court had been lodged by the Claimant outside of a period of six months from the date of the alleged discrimination.
(7) An order that there was no evidence before the Labour Court on which the Court could properly find that the complaint was lodged within the time limits permitted by s. 19 (5) of the Employment Equality Act, 1977.
(8) An order that the Labour Court erred in law in finding that the Claimant's complaint was lodged within the time limit committed by s. 19 (5) of the Employment Equality Act, 1977 and that the Plaintiff's decision to create a position of Locum Director of nursing raised a presumption of discrimination on grounds of sex in circumstances where that decision was made in excess of six months from the date of which the Respondent lodged her complaint.
(9) An order that the Labour Court erred in Law in finding that the claimant failed to rebut the presumption of discrimination.
(10) An order directing that the claim of the claimant pursuant to the Employment Equality Act, 1977 be returned to the Labour Court with directions as to the proper application of the law to the effects of the case.
The Claimant submitted to the Equality Officer and to the Labour Court that, not later than 14th August of 1998 the Claimant advertised for the position of Acting Matron for Limerick Regional Hospital. The said hospital is a three hospital complex consisting of the Regional Hospital, Dooradoyle, the Regional Maternity Hospital, Limerick and the Regional Orthopaedic Hospital, Croom. The vacancy arose as a result of the impending period of absence on the part of the Director of Nursing/Matron, who had responsibility for all three hospitals. Both the Irish Nurses' Organisation and SIPTU objected to this position being advertised as they claimed that the Respondent, who held the position of Assistant Matron in the Regional Hospital, Dooradoyle, was "acting up" in the post of Deputy Matron in the hospital. The trade unions claimed that the Claimant took the roles and responsibilities of the Director of Nursing/Matron whenever she was on leave, which responsibilities included the two outlying hospitals to the three hospital complex.
The Board took the view that as the Director's position involved responsibility over the three hospital complex rather than simply over the Regional Hospital, the Claimant was not entitled as of rights to "act up" in that position during the Director's prolonged absence. The Board also had regard to the length of time for which the Director was expected to be absent and the desirability of opening up the competition for the position so as to ensure that the best possible candidate was appointed to cover this lengthy period of absence. The unions asked the board to agree to a Rights Commissioner investigation of the issue but this request was declined. The interview process then proceeded without further objection by the Claimant or the unions.
The Claimant and two other candidates were called for interview and the interviews were held on the 11th of September, 2002. There were two female candidates for interview, including the Claimant, and one male candidate.
The Interview Board comprised of the Director of Nursing/Matron of the Regional Hospital Complex (female), the General Manager, Regional Hospital Complex (male) and a former Matron of Cork University Hospital (female). The composition of the Interview Board was in line with the board's equal opportunities policy. Each candidate was marked on the basis of assessment criteria. After each candidate was interviewed the members of the Interview Board discussed the candidate and his or her performance in interview and they arrived at a common mark based upon the said criteria.
Having assessed the overall marks achieved by each candidate, the members of the Interview Board placed the male candidate first in the interview, the Respondent second and declined to qualify the third candidate.
By letter dated the 14th September, 1998 the Claimant was advised of the outcome of the interview and of the fact that her name had been included on a panel from which vacancies during the life of the panel might be filled. The Labour Court in its determination, stated as follows:
"Taking account of all of the evidence the Court is satisfied, on the balance of probability, that the terms of the claimant's appointment were such that her deputising role extended over the same range of functions which attach 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 of the hospital did not share this view. This actual 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 union. 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 their 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, as 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".
In the said determination the Labour Court went on to state that it was not satisfied that the board had discharged the onus of rebutting the presumption of discrimination which the Claimant had established in the case.
THE TIME ISSUE
The first issue raised by the Board on appeal to this Court was whether the Labour Court erred in law in its interpretation of the time limits applicable to a claim under s. 19 (5) of the Employment Equality Act, 1977 and that the same was a matter of decent and not one of jurisdiction.
Section 19 (5) of the Employment Equality Act, 1977 provides that:-
"Save only where a reasonable cause can be shown, a reference earned at this section shall be lodged not later than six months from the date of the first occurrence of the act alleged to constitute discrimination"
While much time has been devoted to this issue it seems to me, on the facts of this case, that it is clear that the reference was lodged within the six month period. While it is contended that an attempt was made at an earlier stage to usurp the Claimant's position no allegation of discrimination on grounds of gender could have arisen before the appointment of a male to the disputed position. That appointment constituted the first occurrence of the act alleged to constitute the discrimination and that act took place (just) within the six month period.
THE LABOUR COURT'S FINDING OF FACT
The Claimant was one of three candidate's interviewed for the position of the Locum Matron/Director of Nursing. It was submitted on behalf of the Claimant that her existing post was there to provide cover for the Matron/Director of Nursing while she was absent from duty. It was contended on her behalf that whilst 95% of all nurses are women a disproportionate portion of men occupy management nursing posts. It appears that this assertion was not contested. It was further submitted on behalf of the Claimant that it is common in the health sector for holders of deputy posts to "act up" in the substantive posts for periods longer than the periods of absence in the present case.
I am satisfied that the findings of fact by the Labour Court that the creation of the "new" post effectively usurped the role and functions of the job the Claimant already held and that "taken in the context of the whole case" the same was a fact of sufficiency difficult to raise a presumption of discrimination was based on evidence and was a finding peculiarly within the confidence of the Labour Court.
I have been referred to the judgment of Lavan J. in Royal Life Assurance Limited -v- Macken and Ors (Unreported 15th November, 2002) wherein he sated, inter alia:
"The Oireachtas has entrusted to the Labour Court the determination of all issues of fact and law arising out of claims such as that made by the applicant. The conclusion arrived at by the Labour Court in the present case involves a determination by it of a mixed question of law and fact; in the absence of unsustainable findings of fact or manifest errors of law, this Court would be very reluctant to interfere with a decision of the Labour Court given the specialist expertise identified in the field of industrial and employer/employee relations".
I respectively agree with the foregoing and I find that there are no grounds in the present case justifying an interference with the above referred to findings of the Labour Court.
The foregoing leads me to the final issue in this case, namely the Plaintiff's contention that the Labour Court erred in law in finding that the Claimant had failed to discharge the onus of rebutting the presumption of discrimination.
Under this heading it was submitted that the Labour Court failed to give any weight to (or reject as a lie) the evidence as to why the Claimant was not automatically permitted to act up in the post of Matron/Director of Nursing but rather a decision reached to hold a competition for that position. In my view it is manifest that the Labour Court did give weight to the evidence on both sides on this issue. Similarly the Plaintiff complains that no weight was given to the evidence as to the impartial conduct of the interview process which ranked the respondent second in that process. In the body of the Labour Court's decision the evidence of all of the witnesses is referred to. I can find no basis for finding that the Court did not give weight to it.
I am satisfied that the Labour Courts determination was based upon sustainable findings of fact. It is not the function of this Court to substitute it's view of the facts (if, indeed, it differs).
Accordingly, I dismiss the Plaintiff's claim.