O'Dwyer v. McDonagh [1996] IEHC 21 (14th October, 1996)

1. The applicant is a Staff Officer employed by the fifth respondent (the College). She has been employed for twenty-two years by it and its predecessors. The first respondent is the Director of the College which was established pursuant to the provisions of the Regional Technical Colleges Act, 1992. It was previously known as the Limerick College of Art, Commerce and Technology. The first respondent was principal of that institution for fifteen and a half years at the time when it became the Regional Technical College, Limerick and he has continued as Director since then. The second named respondent (Ms. Costello) is Administration Officer of the College and at all times material to these proceedings she was the applicant's immediately superior. The third named respondent (Ms. McDonnell) is the chairperson of the Board of Governors of the College. She also was in November, 1993 the chairperson of the Limerick Chamber of Commerce. The fourth respondent is a chartered accountant in private practice in Limerick. He is not a member of the College Board. The hierarchy of clercial/administrative grades within the College is, in order, clerk/typist; clerical officer; assistant staff officer; staff officer; senior staff officer; administrative officer; personnel, finance and administration officers (the latter are the same grade and have similar levels of remuneration).

2. Soon after the College was re-structured and became an RTC the Department of Education sanctioned a range of promotional posts at grades III, IV, V, VII and administrative officer. Ms. Costello, who was a senior staff officer, applied for the position of Administration Officer and was duly appointed to that position. A number of staff members applied for the other posts which had been created. The applicant, who was then a Grade IV assistant staff officer, applied for the posts of Grade VII administrative officer and Grade V staff officer. Three others also applied for the Grade VII post, i.e., Margaret Ryan who then held a Grade IV post; Phyllis Hogan and Anne O'Donovan then holders of Grade III posts.

3. A Selection Board was duly set up under the provisions of Section 11(1)(b) of the Regional Technical Colleges Act, 1992 and rules made thereunder. The latter provides that in regard to the selection of non-academic staff, there shall be a four person Selection Board comprising a member of the Governing Body nominated by the chairperson in consultation with the Director; the Director or a nominee of the Director; the appropriate Head of Department/Head of Function and an appropriate external specialist. Ms. McDonnell, chairperson of the Governing Body, decided to act personally on the Selection Board which was set up to interview the candidates for the various posts, all of which were non-academic. The other members were the Director; Ms. Costello as Head of Function and

5. The Interview Board sat on 3rd November, 1993 and interviewed candidates for the posts from Grade III to Grade VII. The end result of the interviewing process was that Anne O'Donovan was recommended by the Board for appointment to the Grade VII post and the applicant was selected for appointment to the Grade V post as staff officer. Subsequently, Ms. Phyllis Hogan was furnished in confidence by Ms. McDonnell with some information about the selection process relating to the Grade VII appointment. Ms. Hogan informed the applicant that the two external members of the Board had initially considered that the applicant was the most suitable person for the post but that they had been dissuaded from that view by the Director who informed them that the applicant was "a trouble-maker and did not get on with people". No such point had been taken at the interview and did not arise as a reasonable inference from the applicant's conduct during the interview. It also appears that she was informed by Ms. Hogan that Ms. McDonnell and Mr. Milne were prevailed upon by the Director and/or Ms. Costello not to appoint the applicant nor the candidate which was their second choice to the Grade VII post of administrative officer. She also alleged that it was apparent from the conduct of the Director and Ms. Costello that they had adopted an entrenched position of opposition to the applicant in connection with that particular post and that they had already decided before the interview that she should not be appointed. The Director and Ms. Costello have sworn affidavits in which they deny all of the allegations made against them. The Director set out his version of events in paragraphs 6 to 9 inclusive as follows:-

7. In reference to paragraph 5 of Mary O'Dwyer's said affidavit, I say in response that the procedure adopted by the said Selection Board on the 3rd November, 1993, was to interview all candidates including the applicant before any discussion took place, and I would confirm that this is the usual procedure. I say also that this is what occurred on the 3rd November, 1993, and during the course of the said deliberations, Janette McDonnell expressed the opinion that Margaret Ryan and Mary O'Dwyer should be considered for the said post and this view was also shared by Gordon Milne. I say I have a personal knowledge of the four candidates which extends for over a period of sixteen years. I accordingly gave my assessment of the candidates to my fellow Board members. I was of the view that Anne O'Donovan would be the best person for the said post, (which is a view I continue to hold) and I explained to the Board that in my opinion, Mary O'Dwyer had not displayed the necessary qualities of leadership or management of people which were essential requirements of such an appointment. I elaborated on this topic by stating that I had reservations in relation to the applicant's ability to relate to people, and I explained that the working environment in the Administration Office when Ms. Costello was assigned there in March 1986, left a lot to be desired in that it was characterised by organisational difficulties and tensions between staff and a general unhappiness which were manifested by poor co-operation. I should say that the applicant was the most senior person in the General Office at the time of Ms. Costello's appointment. I informed the Board that Ms. Costello had succeeded in re-organising the office and resolving these difficulties, with a good rapport between all staff. I would stress that while the applicant had never been reprimanded for any shortcomings (and this was made clear to the Board), it was my perception that the applicant lacked inter-personal skills and I advised the Board in these terms. I did not state that the applicant was a trouble-maker as alleged by both the applicant and Phyllis Hogan, and I totally refute the averment that I referred to her in such terms. I say further that during a period in 1992, when the applicant was on maternity leave, Anne O'Donovan was promoted by the VEC to act in Grade IV while the applicant was absent. I say that it was my impression at that time that the office ran very smoothly and I believe that my view was also shared by colleagues.

8. In further reference to paragraph 5 of the applicant's affidavit, I say that all the opinions which I expressed to the Board on the 3rd November, 1993 relating to the several candidates, were genuinely held views and were advanced by me in the best interests of the College and with the objective of securing the best candidate for a given position. I say further that I approached the interview and selection process with an open mind and without pre-conception, and I reject completely the assertion that either Ms. Costello or I prevailed upon Ms. McDonnell or Mr. Milne, and this allegation is not merely untrue but offensive particularly having regard to the expertise which both Ms. McDonnell and Mr. Milne brought to bear. I say also that Ms. McDonnell and Mr. Milne did not express astonishment at any time during the Board's deliberations on the applicant's candidacy as implied by the applicant and this simply did not happen.

9. I beg to refer once again to paragraph 5 of the applicant's affidavit and I reject the assertion that Ms. McDonnell and Mr. Milne were somehow afforded less opportunity to persevere with their opinions during the said deliberations by virtue of the requirement that the Board reach a unanimous decision. I say that this is untrue, while the applicant's description of my position as "entrenched", is a distortion and does not represent my approach to the said appointment, the inference in this paragraph of the applicant's affidavit is to the effect that Ms. McDonnell and Mr. Milne were incapable of exercising independent judgment and that they slavishly endorsed my views simply because they were anxious to avoid dissent. Ms. McDonnell and Mr. Milne could properly have disagreed with my assessment and I reject the applicant's basic tenet that I manipulated or stage-managed the selection process in order to secure the appointment of Ms. O'Donovan."

"3. I say that the applicant's substantial contention in her proceedings herein to the effect that I was guilty of favouritism in the context of the said Selection Board, is unfounded, and I say further that the allegation that my inclusion in the Selection Board was somehow contrived or unwarranted is simply untrue. I say and so believe that in my position as administration officer in the said College, I am Head of Administration, and accordingly I believe that I satisfy the relevant criteria for inclusion on the said Selection Board which I understand was constituted in accordance with Ministerial requirements while I am aware from my own knowledge that the Representative Trade Union, IMPACT was satisfied with the Board's said composition.

4. In reference to paragraph 5 of the applicant's affidavit I deny that there was any collusion between myself and the first named respondent, James McDonagh, in relation to the interview of (sic) selection processes. I would confirm that I have had an extensive working association with all the candidates and I believe that I am and was well placed to assess the relative merits of each individual. I say further that I had reservations as to whether the applicant would be able to discharge the duties of the Grade VII post, and I so advised my colleagues on the Selection Board. I would stress that I had supervised the applicant for over seven and a half years prior to the said interview and I believe that I was in a good position to evaluate her suitability for the said promotion.

5. In further reference to paragraph 5 of the applicant's affidavit, I say that the procedure adopted by the said Selection Board on the 3rd November, 1993 was to interview all the candidates (including the applicant) and it was only after the interview had been conducted that discussions took place on their candidacy...... I say that I too was of the view that Anne O'Donovan was the best candidate for the said post, which view I continue to hold. I agree with the averments at paragraph 7 of James McDonagh's affidavit wherein he avers that he advised the Selection Board that the applicant had not displayed the necessary qualities of leadership or management of people which were essential requirements of the appointment in question, while I recall James McDonagh stating that he had reservations on the applicant's ability to relate to people. In further reference to James McDonagh's criticism of the working environment in the Administration Office in March 1986 when I was assigned there as referred to in paragraph 7 of his affidavit, I concur with his assessment and I confirm that there were serious difficulties and tensions between members of staff at that time. I say also that there was a poor level of co-operation in the Administration Office in 1986 and James McDonagh related these matters to the Selection Board while he also stated that the applicant lacked inter-personal skills. I say that I agree with James McDonagh's perception of the applicant, and I say further that there was no reference by James McDonagh (or any other member of the Selection Board) to the applicant being a trouble-maker as alleged both by the applicant and Phyllis Hogan. I would finally confirm that Anne O'Donovan was promoted by the VEC to act in Grade IV while the applicant was absent on maternity leave in 1992, and I say that the office operated very well during this period.

6. In further reference to paragraph 5 of the applicant's affidavit, I say that the averment therein to the effect that both myself and James McDonagh prevailed upon the third and fourth named respondents not to appoint the applicant or Margaret Ryan to the Grade VII position is false and I reject the contention that the third and fourth named respondents were somehow constrained to agree with the choice of Anne O'Donovan for the appointment for the reasons advanced in her said affidavit. I further reject as misconceived the applicant's inference that I was in an entrenched position so as to be irrevocably opposed to the applicant's candidacy. The position is that I believed Anne O'Donovan was a more suitable appointee and my view was and is a genuine one. Similarly, I approached the selection process in good faith and without pre-conception, and I deny the averment to the contrary effect in the applicant's affidavit. I say also that Ms. McDonnell and Mr. Milne did not express astonishment at the said meeting as averred to at paragraph 5 of the applicant's affidavit and I say that this is pure speculation on the applicant's part......

8. In reference to paragraph 7 of the applicant's affidavit, I deny the applicant's averment that I have a difficulty with regard to the appointment of married women to posts in the College and I believe that my record in this regard is inconsistent with this assertion. Thus I have supported the applicant's candidacy for promotion together with the promotion of the following married women, that is Kathleen Cahill, Phyllis Hogan and Madeline Daly, while I have also been actively involved in the recruitment of married women with children. I believe my views on equality in the work place are well known and I fully support any woman, whether she is married or single, in her pursuit of a career. I should say that I believe that my relations with all staff in the Regional Technical College Limerick are cordial. I deny that I ever stated to the applicant and Phyllis Hogan that married women with children should not be given important positions because of their family commitments and I say that this averment is untrue. I would emphasise that there is no suggestion that the applicant was either a poor time-keeper or that she permitted her child rearing commitments to impinge on her employment, and I am unable to see the relevance of these assertions in the context of the applicant's alleged claim. I deny however the applicant's assertion that Ms. O'Donovan's time-keeping record was not considered satisfactory, and I say that Ms. O'Donovan's competence and expertise compare more than favourably with that of the applicant's."

5. I say further that James McDonagh and Mary Costello expressed their views on the candidates during the Selection Board's deliberations and their assessments were furnished on the basis of their working experience. Mary Costello in particular stated that she had reservations as to the whether the Applicant would be able to discharge the duties of a Grade VII post and indicated that in her opinion, Anne O'Donovan was the best candidate. I agree with the averments at paragraph 7 of James McDonagh's affidavit wherein he avers that he advised the Selection Board that the applicant had not displayed the necessary qualities of leadership or management of people which he contended were essential requirements for the particular appointment, while James McDonagh also stated that he had reservations pertaining to the applicant's ability to relate to people. Mr. McDonagh further stressed that in his view, the applicant lacked inter-personal skills. I say finally that James McDonagh did not refer to the applicant as being a trouble-maker as alleged by the applicant and Phyllis Hogan.

6. In further reference to paragraph 5 of the applicant's affidavit, I deny that James McDonagh and Mary Costello prevailed upon me not to appoint the applicant or Margaret Ryan to the Grade VII position. I say that after listening at length to the views expressed at the said meeting, I gave full consideration to the same and it is my belief that James McDonagh and Mary Costello were providing a frank and reasoned appraisal of the merits of the candidates and that their views were sincerely held. I was also of the view that James McDonagh and Mary Costello did not harbour any ill will or dislike towards the applicant and it was my impression that they were desirous that only the best candidate be appointed to the said position. I say finally that I remain satisfied that James McDonagh and Mary Costello were acting in the best interests of the College and that Anne O'Donovan was a more suitable candidate for the appointment and for the reasons which are severally set out in the affidavits of James McDonagh and Mary Costello. I say also that neither myself nor Mr. Milne expressed astonishment at the said meeting at any comment attributed to James McDonagh as averred to in paragraph 5 of the applicant's affidavit, while I repeat that I was not constrained by the fact that any selection by the Board should be unanimous. However, I was surprised that James McDonagh's assessment of the candidates differed so much from my original thoughts.

8. In reference to paragraph 4 of the affidavit of Phyllis Hogan, I agree that I had a telephone conversation with Ms. Hogan on or about the 28th November, 1993 and while I did make reference to the proceedings of the Selection Board, I did not state to Ms. Hogan that the applicant had been described as a trouble-maker by James McDonagh. I accept that it is likely that I commented that Mary Costello and James McDonagh had stated that the applicant had difficulty in getting on well with people, since this was related to the meeting of the Selection Board. I was also at pains to stress that this conversation was strictly confidential and I am disappointed that this confidence has been flagrantly breached by Ms. Hogan. Ms. Hogan further averred that I stated that both Mr. Milne and this deponent deferred to the views of James McDonagh and Mary Costello and I believe that this averment is correct in so far as we were undoubtedly influenced by what was related to us by James McDonagh and Mary Costello although I reject the notion that we slavishly submitted to their views since for my own part, I carefully considered everything that was debated by the Selection Board in conjunction with the information which emerged at the said interviews before making a final decision. I deny that I stated to Phyllis Hogan that the first and second named respondents were operating a separate agenda although I expressed regret that the applicant was disappointed. I say finally that I did suggest that the applicant should apply for the next position in Finance in view of her service and her background since she might well succeed in such an application.

8. In the light of the foregoing averments in Ms. McDonnell's affidavit, it emerges that there is no basis for the allegations made by the applicant as to the conduct or attitude of the Director and Ms. Costello at the meeting of the interview board on 3rd November, 1993. Ms. McDonnell also bears out the bona fides and propriety of Mr. McDonagh and Ms.Costello as to their conduct at the meeting of the Selection Board and in particular regarding the Grade VII appointment. In the course of the hearing Mr. Matthews S.C. for the applicant made clear on her behalf that no mal fides on the part of the Director or Ms. Costello was alleged by her; nor was she alleging actual or subjective bias against her by the first and second respondents. The applicant's case as presented at the hearing was threefold. First, the views of the Director and Ms. Costello about the applicant expressed by them to their colleagues on the Selection Board amounted to an unfair blocking or interference with the ultimate decision of the Board as to the Grade VII appointment. Secondly, their attitude towards the applicant's candidacy as expressed at the Selection Board meeting and their recommendation of Ms. Anne O'Donovan for the post indicated that before the meeting they had already decided who should be appointed and that this amounted to a form of objective bias which vitiated in law the appointment process. Thirdly, the grounds for the opinions of the Director and Ms. Costello that the applicant lacked leadership and personnel management qualities necessary for the job ought to have been put to the applicant at her interview so that she might have an opportunity to answer them. Mr. Matthews relied on several judicial authorities in support of his argument, including Rajah v. Royal College of Surgeons in Ireland and Others [1994] 1 I.L.R.M 233 and O'Reilly v. His Honour Judge Cassidy and Others [1995] 1 I.L.R.M. 306. In Rajah (which concerned an appellate procedure where a student's college membership has been discontinued for twice failing annual examinations) Keane J. held, inter alia, that "there is an obligation on bodies which exercise functions of a judicial or quasi-judicial nature determining legal rights and obligations to give reasons for their decisions and this requirement may even extend to bodies exercising purely administrative functions". Rajah's case involved the termination of a student's enrolment with a medical school and the appellate procedure complained of was quasi-judicial in nature involving, as it did, potential loss of career prospects through ultimate graduation from a particular professional institution. The Selection Board in the matter under review was not exercising a judicial or quasi-judicial function, nor was it determining legal rights or obligations as envisaged by Keane J. Furthermore, it would be singularly inappropriate to require such a body to give reasons why it favoured the appointment of one particular candidate and not others. The publication of the reasons why one or more members of a selection board believed that a candidate was unsuitable for a particular post would be gratuitously unfair and perhaps offensive to the latter and would serve no useful purpose. This is obvious in the instant case where the applicant is and was at all material times in the employment of the College and its predecessor and has been appointed to a more senior position, but not the top post for which she had applied.

9. The point in O'Reilly's case relied on by Mr. Matthews is the question adopted by O'Flaherty J., i.e. "would reasonable persons have an apprehension of bias having regard to all the surrounding circumstances of [the] case?" If that question is posed in relation to the conduct of the Selection Board in the matter under review, I have no doubt in the light of the depositions of Ms. McDonnell, the Director and Ms. Costello that it should be answered emphatically "No". There is not sufficient reason to disbelieve their account of what transpired. The Director and Ms. Costello through long association with all four candidates for the Grade VII post were patently in a better position than Ms. McDonnell and Mr. Milne to assess the suitability of each one for the particular appointment. Not only had they known and worked with the candidates for years, but they also had detailed knowledge as to the nature of the post in all its aspects, including knowledge of the other staff members with whom the appointee would be required to work in close liaison. Ms. McDonnell and Mr. Milne had never met the applicant before the Selection Board meetings. They had no prior knowledge of, nor had they the degree of detailed information as to the Grade VII post possessed by the Director and Ms. Costello.

10. Mr. McDonagh and Ms. Costello, acting bona fide (which is conceded) and in what they perceived to be the best interest of the College, were entitled to express views in favour of a particular candidate and also opinions as to why they did not regard other candidates as suitable for the job. In the absence of mal fides, it is not the function of the Court to investigate whether the opinions of the Director and Ms. Costello were well founded. There is no evidence to suggest that they expressed their opinions at the meeting oppressively or unfairly or that the minds of the other two members of the Selection Board were thereby overborne. On the contrary, Ms. McDonnell has rejected that contention.

11. The remaining criticism made by the applicant is that she should have been given an opportunity at the interview to answer the criticisms made of her by the Director and Ms. Costello. In fact the procedure adopted by the Selection Board, which was in accordance with established practice, did not admit of that possibility as no discussion about the suitability of candidates took place until all had been interviewed by the Board. It is not for the Court to decide whether or not the procedure adopted was the best one. It has no function in the matter unless it is established that the procedure was so flawed as to vitiate the validity of the selection process. No such case has been established. On the contrary, there is a substantial argument to be made that if the Director and Ms. Costello were obliged to put to the applicant at her interview the reasons why they believed that she was not the most suitable candidate for the Grade VII post, it would be unlikely to achieve any useful purpose and could give rise to pointless acrimony, including the possibility of unsustained allegations being made against one or other or both of them, the effect of which would be to sour the relationship between the applicant and the College, which appears to have been a satisfactory one for upwards of twenty-two years. There does not seem to be anything the applicant might have said in response to the Director and Ms. Costello which would cause them to change their opinions which were not based on a single matter or event on which they might have been mistaken, but on their perception of the performance of the applicant and her capacity to relate to others at work over a period of years.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O'Dwyer v. McDonagh [1996] IEHC 21 (14th October, 1996) URL: http://www.bailii.org/ie/cases/IEHC/1996/21.html Cite as: [1996] IEHC 21

High Court of Ireland Decisions

O'Dwyer v. McDonagh [1996] IEHC 21 (14th October, 1996)