Faulkner v Min Industry and Commerce

JurisdictionIreland
CourtSupreme Court
JudgeO'Flaherty J.
Judgment Date10 December 1996
Neutral Citation1997 WJSC-SC 962
Date10 December 1996
Docket Number(228/93)

1997 WJSC-SC 962

THE SUPREME COURT

Hamilton C.J. ,

O'Flaherty J. ,

Barrington J. ,

(228/93)
FAULKNER V. MIN INDUSTRY AND COMMERCE
MARY FAULKNER
Appellant
.v.
THE MINISTER FOR INDUSTRY AND COMMERCE
Respondent

Citations:

O'KEEFFE V BORD PLEANALA 1992 ILRM 237

NORTH WESTERN HEALTH BOARD V MARTYN 1987 IR 565

EMPLOYMENT EQUALITY ACT 1977 S21

CREEDON, STATE V CRIMINAL INJURIES COMPENSATION TRIBUNAL 1988 IR 51

LYNCH, STATE V COONEY 1982 IR 337

Citations:

MENTAL TREATMENT ACT 1945 S265(1)

MENTAL TREATMENT ACT 1945 S265(2)

HEALTH ACT 1970 PART II

MENTAL HOSPITALS (OFFICERS & SERVANTS) ORDER 1946 S R & O 203/1946 ART 33

EMPLOYMENT EQUALITY ACT 1977 S17(2)(c)

EMPLOYMENT EQUALITY ACT 1977 S17(2)(d)

EUROPEAN COMMUNITIES (EMPLOYMENT EQUALITY) REGS 1982 SI 302/1982

EEC DIR 76/207 ART 1.1

EEC DIR 76/207 ART 2.1

EEC DIR 76/207 ART 2.2

EEC DIR 76/207 ART 5.1

EEC DIR 76/207 ART 5.2

EEC DIR 76/207 ART 6

EEC DIR 76/207 ART 9.1

EEC DIR 76/207 ART 9.2

STATE FINANCIAL TRANSACTIONS (SPECIAL PROVISIONS) ACT 1984 (S3) ORDER 1985 SI 33/1985

MENTAL HOSPITAL (OFFICERS & SERVANTS) ORDER 1946 S R & O 203/1946 ART 13(2)(i)

MENTAL HOSPITALS (OFFICERS & SERVANTS) ORDER 1946 S R & O 203/1946 ART33(2)

HEALTH SERVICES ACT 1981 S7

PUBLICO MINSTERO V RATTI 1979 ECR 1629

JOHNSON V CHIEF CONSTABLE OF THE ROYAL ULSTER CONSTABULARY 1986 ECR 1651

VON COLSON & KAMANN V LAND NORDRHEIN-WESTFALAN 1984 ECR 1891

HARZ V DEUTSCHE TRADAX 1984 ECR 1921

TREATY OF ROME ART 189

EMPLOYMENT EQUALITY ACT 1977 S17

Synopsis:

EMPLOYMENT LAW

Appeal - job promotion - equality - whether discrimination on grounds of sex - discrimination found by Equality Officer - opposite finding by Labour Court - whether reasons for decision of Labour Court adequate - whether judicial review more appropriate procedure - Held: Appeal dismissed - (Supreme Court: Hamilton C.J., O'Flaherty J., Barrington J. - 10/12/1996)

|Faulkner v. Minister for Industry & Commerce|

Synopsis:

EMPLOYMENT LAW

Equality - Council Directive 76/207/EEC - s.265(1) Mental Treatment Act, 1945 forbidding male nurses from caring for female patients in mental institutions - plaintiff male nurses claiming breach of this statutory duty - whether s.265(1) contrary to directive - Held: S.265(1) discriminatory - no application in domestic law - (High Court: Carroll J. - 06/12/1996)

|Fennelly & Ors. v. Midland Health Board|

O'Flaherty J.
[NEM DISS]
1

This is an appeal brought by Mary Faulkner from the judgment and order of the High Court (Murphy J.) of the 25th June, 1993.

Background
2

The appellant was appointed an executive officer in the Department of Industry and Commerce in April, 1979. In 1981, she became eligible for promotion to the post of higher executive officer. In April, 1989, a vacancy existed for that post but a male executive officer was selected instead of the other two short-listed candidates, the appellant and another woman candidate. Ms. Kearns.

Equality Officer
3

The matter was investigated by Miss Deirdre Lynch, Equality Officer, appointed by the Labour Court, who concluded that Ms. Kearns would have been promoted to this vacancy but for discrimination on the grounds of sex. However, the Equality Officer went on to conclude that the appellant should have received a "strong recommendation" for the position and that she was discriminated against in this regard. The Equality Officer recommended that Ms. Keams and the appellant be awarded £600 by way of payment for distress, damage to confidence and injury to feeling as a result of that discrimination.

4

There is no doubt that the Equality Officer carried out a very thorough investigation. She held three joint hearings and two separate hearings with each side and received extensive oral and written submissions from both sides. She considered all aspects of the evidence; both written and oral, which was presented to her in the course of her investigation.

5

The Department's position, as it emerged in the course of that investigation, was that there was a short list of three officers drawn up. These were the male executive officer, who was promoted, the claimant as well as Ms. Kearns. The merits and demerits of each of the three officers were discussed. One principal officer reported on the claimant which report, in turn, was based on a report of her former principal officer, who had stated that he had reported that the improvement in her work was continuing and that she was very suitable for promotion but that she was not exceptional. Her then principal officer indicated at the promotion conference that her colleague, Ms. Kearns, was the stronger of the two executive officers about whom he was reporting. The discussion then centred around Ms. Kearns and the male executive officer, following which the male executive officer was promoted. He was considered more suitable than the claimant. He had performed his work with distinction since he started work in the Department in 1980.

6

Having analysed the ratio of promotions male: female, the Equality Officer considered that this raised a strong inference of unlawful discrimination and consequently it was necessary for the Department to give an objective explanation for this.

7

The Equality Officer then went on to hold that the only reason put forward as to why the appellant did not receive a strong recommendation at the April, 1989, promotion conference was that she had a problem with her writing (by which was meant her ability to express herself in documents) which had been resolved but that the promotion conference needed to be assured that this improvement would be sustained. The Equality Officer asked herself whether this was a genuine objective reason and concluded that it was not.

8

The learned trial judge thought this was a very far reaching decision. He said:-

"It would seem to me that it would necessarily imply dishonesty and indeed a malicious abuse of power by Ms. Faulkner's superior officers. However, the burden of making the onerous and difficult judgment fell to Ms. Lynch and it is not a matter for review by this Court. It is sufficient to note that Ms. Lynch made her judgment on that issue balancing the probabilities of conflicting claims. Clearly she recognised that there was an alternative, if less probable, conclusion."

Labour Court
9

The Minister then appealed to the Labour Court, which by its determination dated the 18th August, 1992, allowed the appeal. In the course of its determination the Court stated that it was satisfied that the history of promotions in the Department placed an onus on the Department to prove that the claimant was not discriminated against in this case. It went on to...

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