Morgan v The Labour Court; Morgan v The Labour Court

• Jurisdiction: Ireland
• Judge: Mr. Justice Cian Ferriter
• Judgment Date: 01 June 2022
• Neutral Citation: [2022] IEHC 362
• Docket Number: [2021/37 MCA]
• Court: High Court
• Year: 2022

Between

Deirdre Morgan

Appellant

and

The Labour Court

Respondent

and

Kildare and Wicklow Education and Training Board

Notice Party

Between

Deirdre Morgan

Appellant

and

The Labour Court

Respondent

and

Kildare and Wicklow Education and Training Board

Notice Party

[2022] IEHC 362

[2021/37 MCA]

[2021/38 MCA]

THE HIGH COURT

Discrimination – Victimisation – Point of law – Appellant appealing on a point of law from determinations of the respondent – Whether an error of law had been demonstrated

Facts: The appellant, Ms Morgan, appealed to the High Court on a point of law from determinations of the respondent, the Labour Court, dated 9 February 2021. The Labour Court in its determinations dismissed appeals from a decision of an adjudication officer (AO) of the Workplace Relations Commission (WRC) dated 23 October 2019. The AO’s decision dismissed complaints lodged by the appellant with the WRC to the effect that the notice party, Kildare and Wicklow Education and Training Board (KWETB), had discriminated against her contrary to s. 77 of the Employment Equality Act 1988 as amended and contrary to s. 81E of the Pensions Act 1990 as amended. The substance of the appellant’s first ground of appeal was that the decision “uses words to communicate as if it had conducted the hearing of the substantial matters rather than preliminary ones”. The second ground of appeal essentially alleged that the appellant did not get a chance to make submissions during the course of the remote hearing.

Held by Ferriter J that, having carefully considered the affidavit material and the submissions legitimately directed towards the points of law sought to be advanced in the appeals before him, he was quite satisfied that no error of law had been demonstrated.

Ferriter J dismissed the two appeals.

Appeals dismissed.

JUDGMENT of Mr. Justice Cian Ferriter delivered on the 1 ^st day of June 2022

Introduction

1 These two appeals are appeals on a point of law from determinations of the Labour Court dated 9 February 2021. The Labour Court in its determinations dismissed appeals from a decision of an adjudication officer (AO) of the Workplace Relations Commission (WRC) dated 23 October 2019. The AO's decision dismissed complaints lodged by the appellant with the WRC to the effect that the notice party (KWETB) had discriminated against her contrary to s.77 Employment Equality Act 1988 as amended (“s.77”) and contrary to s.81E Pensions Act 1990 as amended (“s.81E”).

2 S.77 addresses, inter alia, claims by persons who claim to have been discriminated against or subjected to victimisation in the course of their employment or who claim to have been dismissed in circumstances amounting to discrimination or victimisation.

3 S.81E addresses claims by persons who claim not to be receiving, or not to have received, equal pension treatment in accordance with the provisions of the Pensions Act or to have been penalised in circumstances amounting to victimisation.

The Appellant's complaints

4 The appellant's complaints as lodged with the WRC on 15 April 2019 were as follows:

“My complaint here of 15 ^th April 2019 follows on almost 6 months in time from an earlier complaint I made against Kildare and Wicklow ETB dated 6 ^th November 2018 under the Employment Equality Acts and the Pensions Act.

2) In the hearing of that earlier complaint which took place in February, the KWETB asserted that my complaint was out of time because my employment had been terminated in 2015. This worried me and I wrote to the KWETB seeking clarification on this assertion. As it has not responded and as this matter has already been discussed at the Labour Court in 2018 it can only mean that that their assertion that my contract has terminated was incorrect and was just a defence tactic as opposed to being the legal position. Otherwise, if it is a retrospective termination of my contract then it has been done in reaction to my complaint to the WRC dated 6 ^th November [2018] and it is therefore victimisation. (the Employment Equality act even protects terminated workers at section 2). It also protects prospective employees and those removed from office and in contract.

3) Since July/Aug 2017 I am unable to access the injury allowance/gratuity of my pension or to get any information on how to access it. I seek this in order to get treatment for severe stress at the Equality Tribunal in 2012 when my school principal who was a barrister tested my evidence that I was feeling victimised by him and the VEC.

In recent years I have been getting worse not better. I have been getting lost and having accidents. I am caring for a drug/alcohol dependent adult on my own at present for work and I find I am not able to deal with certain aggressive sexual acts. I am not coping generally. I have also been very upset in recent days because the teaching council sent me a survey seeking my input in its social media guidelines. Adult Male X and others had abused a female child at the school where I taught last and they uploaded a video of the female child being abused to Facebook. The Sexual Harassment by Adult male X was referred by Co Wicklow WEC to the Equality Tribunal in December 2009 in response to a complaint I made against it in March 2009.

I would like the injury allowance to get treatment for my stress. I believe that not giving me access to the injury allowance or any information on it is the opposite of appropriate measures as per section 16 of the Employment Equality Act and Article 5 of Council Directive 2000/78/EC Equal Treatment in Employment where it states “advance in employment”. I was 46 when I first made my request I will be 48 in a few weeks time. All things being normal I should be healthy and be in my prime as a teacher. Year after year my students results were among the best if not “the” best in the school. The reason why my students did so well was because I asserted a high standard of sexual respect contrary to my principal.

4) I retired from teaching on 20 ^th November 2018. I have no pension because it is being held up because of ex gratia payments that the Minister made to KWETB. Those ex gratia payments and the resulting hold up to my pension which they are causing is current live victimisation contrary to the orders of Equality Officer O'Doherty in 2012.

5) The KWETB knows from my written submission to the Labour Court and the hearing that took place in 2018 at the court that I do not want to retire and that I want to get better and return to teaching.

6) Overarchingly there is a regime/practice of female teacher early retirement/resignation. 37.5 female teachers of Abbey CC has to retire early on ill health or resignation due to the principal's treatment of them (actual or perceived) this is gender discrimination. This compares with no males. I am the latest female to go under this regime. My comparator is Neilus Young for gender and disability.

7) The Minister for Education has been acting with victimisation towards me and discrimination for years. The KWETB are vicariously liable for the Minister and they have procured the victimisation and discrimination by the Minister contrary to the orders of the Equality Officer.

8) This complaint is not res Judicata because the Adjudication Officer was dealing only with a complaint up to 6 ^th November 2018. My complaint is of what happened to me from November to today, it is not out of time as explained above.”

The AO's Decision

5 The AO ruled on the appellant's complaints as follows:

“ I am satisfied that, in removing her from office, the Minister's intention was to dismiss the complainant from a job as a teacher with the ETB and that this is what occurred on June 15, 2015. I find that there is no substance to the complainant's contention that she was dismissed on February 10, 2019 at the hearing at the WRC or, that this was the first occasion on which she was informed that she was dismissed. The complainant was professionally represented by her trade union and legally represented by her solicitor at the enquiry that resulted in her dismissal and I do not accept that she is not aware that her point with the ETB was terminated in June 2015.”

6 The AO went on to state:

“ having been dismissed in June 2015, in September 2016, the complainant submitted a complaint to the WRC against this respondent on the ground of discrimination. The AO decided that the complaint was out of time. In November 2018, she submitted similar complaints against...