Davis v DIT

JurisdictionIreland
JudgeMr. Justice Quirke
Judgment Date23 June 2000
Neutral Citation2000 WJSC-HC 1906
CourtHigh Court
Docket NumberNo. 493SpCt5/1999
Date23 June 2000

2000 WJSC-HC 1906

THE HIGH COURT

No. 493SpCt5/1999
DAVIS v. DUBLIN INSTITUTE OF TECHNOLOGY
IN THE MATTER OF THE EMPLOYMENT EQUALITY ACT 1977

BETWEEN

MARY HELEN DAVIS
APPLICANT

AND

DUBLIN INSTITUTE OF TECHNOLOGY
RESPONDENT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
NOTICE PARTY

Citations:

EMPLOYMENT EQUALITY ACT 1977 S21(4)

EMPLOYMENT EQUALITY ACT 1977 S2(A)

EMPLOYMENT EQUALITY ACT 1977 S3

EMPLOYMENT EQUALITY ACT 1977 S3(1)

EMPLOYMENT EQUALITY ACT 1977 S2

EMPLOYMENT EQUALITY ACT 1977 S1

EMPLOYMENT EQUALITY ACT 1977 S19

EMPLOYMENT EQUALITY ACT 1977 S21(1)

EMPLOYMENT EQUALITY ACT 1977 S21(4)

DENNY V MIN FOR SOCIAL WELFARE 1998 1 IR 34

MARA V HUMMINGBIRD 1982 ILRM 421

FAULKNER V MIN FOR INDUSTRY & COMMERCE 1997 ELR 107

O'KEEFFE V BOARD PLEANALA 1992 ILRM 237

WALLACE V SOUTH EASTERN EDUCATION & LIBRARY BOARD 1980 NI 38

KING V GREAT BRITAIN-CHINA CENTRE 1992 ICR 516

GLASGOW CITY COUNCIL V ZAFAR 1998 2 AER 953

NORT WEST THANES REGIONAL HEALTH AUTHORITY V NOON 1988 ICR 813

Abstract:

Labour law - Employment law - Equality - Discrimination on the basis of gender - Whether decision not to appoint applicant irrational - Whether findings of fact by Labour Court supported by evidence - Whether decision of Labour Court erroneous - Employment Equality Act, 1977 (No 16).

The applicant, a female, had applied for the position of the head of library services with her current employer. The applicant, who possessed a number of relevant qualifications, was shortlisted for the job but was ultimately unsuccessful and a male candidate was appointed. The applicant presented a claim of discrimination on the basis of gender to the Labour Court which was assessed by an equality officer. The equality officer issued a recommendation which found that the applicant had not been discriminated against and the decision was upheld by the Labour Court. The applicant issued proceedings seeking declarations that the decision by her employer not to appoint her to the position was unlawful and sought to reverse the determination of the Labour Court. Quirke J held that both the equality officer and the Labour Court had carried out comprehensive investigations into the complaint. In addition the findings of facts made by the Labour Court and inferences drawn from them were reasonable based upon the evidence before it. The applicant had not discharged the onus of proving that the Labour Court had erred in law and the relief which the applicant was seeking was refused.

1

Mr. Justice Quirke delivered the 23rd day of June, 2000

2

This is an appeal pursuant to the provisions of Section 21 (4) of the Employment, Equality Act 1977(hereafter "the 1977 Act") on a point of law against a determination of the Labour Court bearing the number DEE994 and dated the 2nd day of November, 1999 whereby the Labour Court upheld an earlier recommendation of an Equality Officer and determined that the Respondent herein (hereafter referred to as the Institute) did not discriminate against the Applicant Ms. Davis in and about the selection of a suitable candidate for the position of Head of Library Services at the Institute.

HISTORY
3

In March of 1997 the Institute placed an advertisement in a number of newspapers inviting applications for the newly created position of Head of Library Services in the Institute.

4

The terms of the advertisement provided inter alia that;

"Applicants should have an honours degree and relevant library and post graduate qualifications, together with an appropriate professional experience and an ability to integrate modern information technology into a plan for library services… This is a senior management post and it is expected that the Head of Library Services will have the stature, strength of character and communication skills to present complex issues clearly and command authority in an organisation with high calibre personnel."

5

Ms. Davis who had been employed as a Senior Librarian Grade VI with the Institute for some 13 years and who prior to her employment with the Institute had 6 years experience as Librarian Grade V in a public library (following 3 months as Assistant Librarian) applied on the 27th March, 1997 for the position advertised (Head of Library Services).

6

In support of her application Ms. Davis furnished the Institute with her Curriculum Vitae which inter alia confirmed that her qualifications included a B.Sc (2.1), a post graduate diploma in Library Studies and a Masters Degree in Library and Information Studies (M.L.I.S.).

7

There were 17 applications received by the Institute for the position and from those 17 applicants (of whom 8 were male and 9 were female) 4 persons (one of whom was Ms. Davis) were invited by the Institute to attend for interview before a selection panel (hereafter referred to as the Interview Board) comprising senior officers of the Institute so that the Interview Board could assess the suitability of those four applicants for the position which had been advertised.

8

The four applicants (of whom two were male and two were female and who included Ms. Davis) who were invited by the Institute to attend were all interviewed by the Interview Board and on the 27th June 1997 Ms. Davis was notified that her application had been unsuccessful and that a male candidate had been appointed to the position.

9

On the 23rd December, 1997 Ms. Davis presented a claim to the Labour Court which referred the matter to an Equality Officer for investigation and recommendation and after the receipt of submissions from both parties a joint hearing was conducted on the 7th January, 1999 and thereafter, having considered the evidence adduced at that hearing and additional documentation, a Recommendation was issued by the Equality Officer dated the 25th February, 1999 in the following terms:

"…I find that Dublin Institute of Technology did not discriminate against Ms. Mary Helen Davis on the basis of her sex in terms of Section 2(a) and in contravention of the provisions of Section 3 of the Employment Equality Act, 1977."

10

In the document dated the 25th February, 1999 the Equality Officer set out in detail the reasons which gave rise to his Recommendation and the "basis" upon which that Recommendation was made.

11

On the 31st March, 1999 Ms. Davis appealed the Recommendation of the Equality Officer to the Labour Court and on the 20th July, 1999 that appeal was heard by the Labour Court which considered detailed submissions made on behalf of Ms. Davis and on behalf of the Institute and additional arguments and documentation.

12

The Determination of the Labour Court dated the 2nd November, 1999 upheld the Recommendation of the Equality Officer and dismissed the appeal of Ms. Davis.

13

In these proceedings Ms. Davis seeks relief including:

14

(a) an Order declaring that her treatment by the Institute constituted unlawful discrimination contrary to the provisions of the Employment Equality Act, 1977,

15

(b) an Order reversing the Determination of the Labour Court, and

16

(c) an Order remitting the matter to the Labour Court to be determined in accordance with finding to made by this Court.

THE LAW
17

Section 3 of the 1977 Act provides inter alia that;

18

2 "(1) A person who is an employer… shall not discriminate against an employee or a prospective employee… in relation to access to employment, conditions of employment.... promotion or re-grading in employment or classification of posts in employment."

19

Section 2 of the 1977 Act provides inter alia that;

"For the purposes of this Act, discrimination shall be taken to occur in any of the following cases - "

20

a "(a) where by reason of his sex a person is treated less favourably than a person of the other sex."

21

For the purposes of the 1977 Act the Labour Court is defined as "the Court" (see Section 1 thereof).

22

Section 19 of the 1977 Act provides inter alia that disputes in relation to discrimination "…may be referred by any person concerned to the Court…" which in turn may "… refer the dispute to an equality officer for investigation and recommendation.…"

23

The section requires the Equality Officer to investigate and to issue a recommendation which must be conveyed to the Labour Court and to the parties to the dispute.

24

Section 21 of the 1977 Act provides inter alia that:

25

2 "(1) A person… may appeal to the Court against a recommendation under section 19…"

26

The Section requires the Labour Court to hear and determine such an appeal and to convey its determination to the persons concerned in the appeal."

27

Sub-section (4) of section 21 provides that:

"A party to a dispute determined by the Court under sub-section (2)… or a person concerned may appeal to the High Court on a point of law."

28

The effect of section 21(4) of the 1977 Act is to confine Ms. Davis to an appeal to this court "… on a point of law". It has been argued on her behalf that the Determination of the Labour Court was irrational in that no administrative body, having examined all of the relevant evidence before it and having directed itself properly as to the facts and to the law could reasonably or fairly have made such a determination and that accordingly the Labour Court in that respect erred in law.

29

In Henry Denny & Sons (Ireland) Ltd -v- The Minister for Social Welfare [1998] 1 I.R. 34 of the Supreme Court (Keane J. at p. 47) referred with approval to the following extract from the decision of the same Court (Kenny J.) in the case of Mara (Inspector of Taxes -v- Hummingbird Ltd [1982] I.L.R.M. 421 at p. 426):

"A case stated consists in part of findings on questions of primary fact.... These findings on primary facts should...

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