THE HIGH COURT 

1999 No. 12341P

BETWEEN/

BERNADETTE McLAUGHLIN  

PLAINTIFF
And

  COUNTY DUBLIN VOCATIONAL EDUCATION COMMITTEE

DEFENDANT

And

By Order
TUI, JOHN O’REILLY, MICHAEL STANLEY AND PATRICIA DEAN,

NOTICE PARTIES

Judgment delivered by Miss Justice Laffoy on the 27th February, 2004.

The factual situation from the plaintiff’s perspective

The plaintiff is a teacher in Riversdale Community College, Corduff, Blanchardstown, Co. Dublin.  In 1998, having been the holder of a ‘B’ post, which I understand to be a post of responsibility, she opted into the revised in-school management structures agreed under the Programme for Competitiveness and Work (PCW), her post being thenceforth designated as ‘Special Duties Teacher’.
In 1998 the plaintiff applied for the position of Assistant Principal (Day) (Permanent) in Riversdale Community College.  It appears from a letter dated 22nd May, 1998 from Mr. Pat O’Connor, the then Acting Chief Executive Officer of the County Dublin Vocational Education Committee (the VEC), to the principal of Riversdale Community College that there were two such positions to be filled.  These posts were new to the school, arising from the PCW Agreement.  All posts and appointments were subject to the approval and sanction of the Department of Education & Science (the Department).  
The interviews for the positions which are relevant for present purposes were held in mid-November, 1998.  The plaintiff’s recollection is that her interview was held on 18th November, 1998.  
By letter dated 27th November, 1998 Mr. O’Connor advised the plaintiff that she had been appointed to the post of Assistant Principal (Day) (Permanent) subject to the terms set out.  The terms specified were that the appointment was subject to -
(a)	the terms of Circular Letter 30/97 (CL 30/97); and
(b)	the approval of the Department.  
It was made clear that an unsuccessful candidate might appeal the appointment pursuant to the provisions of Circular Letter 27/98 (CL 27/98) and, if such appeal were to be lodged and upheld, the appointment might be cancelled.  It was also made clear that the appointment might be taken up immediately, on an interim basis, subject to confirmation of the appointment.
In a further letter dated 7th December, 1998 from Mr. O’Connor, the plaintiff was informed that an appeal against the Selection Board’s recommendations had been received from each of three of the other candidates for the position and that, accordingly, it would not be possible to have the proposed appointments sanctioned pending the outcome of the appeal process.  However, the plaintiff might carry out the duties of the post on an interim basis.  The letter concluded with the promise that Mr. O’Connor would revert to the plaintiff in the matter in due course.  
The plaintiff heard nothing further about the matter.  However, some time in April, 1999 a colleague of hers gave her a copy of a letter dated 8th April, 1999, from Mr. O’Connor to Mr. Kevin Gilmore, Branch Secretary of the County Dublin Branch of the Teachers’ Union of Ireland (TUI).  The plaintiff is a member of the TUI.  On the face of it, the letter of 8th April, 1999 was in response to a letter from Mr. Gilmore.  From the evidence, it would appear that the letter was in response to a letter of 22nd (not 29th) March, 1999 from Mr. Gilmore to Mr. O’Connor, requesting clarification of the then current VEC position in relation to an appeals procedure for interview candidates.  In the letter of 8th April, 1999, Mr. O’Connor stated as follows: 
(a)	The appeals procedure set out in CL 30/97 applied to all Vocational Schools only, and that it had been established and accepted by the parties to the original agreement (presumably meaning the agreement under the PCW) that it did not cover Community Colleges;
(b)	An agreement for Community Colleges would require endorsement by the “Religious Trustees”, the VEC, the Department, IVEA (Irish Vocational Education Association, which is the representative body of the thirty three Vocational Education Committees in the State), the TUI and ASTI;
(c)	Arising from the error, which I understand to be the erroneous assumption that CL 30/97 applied to Community Colleges, candidates in a number of Community Colleges had presented for interview believing they had access to the appeals process.  Mr. O’Connor, “after consideration of all sides of the issue” had agreed to support the processing of the appeals lodged to date;
(d)	Accordingly appeals lodged in relation to specified Community Colleges, including Riversdale Community Collegehad been forwarded to the Arbitrator prior to Easter 1999; and
(e)	A difficulty then currently existed in relation to the filling of future and existing vacancies in Community Colleges, and, as things stood, no agreed marking criteria or appeals mechanism existed for these colleges.
The plaintiff was perturbed by the contents of that letter.  In her evidence she laid specific emphasis on the fact that the letter stated that there had been ‘consideration of all sides of the issue’.  Her view was that there had not been consideration of her side.  In any event, she instructed her solicitor who wrote to the VEC on 20th April, 1999, contending that, in the light of the disclosure contained in the letter of 8th April, 1999, her appointment was not subject to any appeals procedure and she was entitled to have the appointment referred for approval to the Department.  Immediate confirmation that this course would be adopted was sought.  Neither the plaintiff nor the plaintiff’s solicitors ever obtained a substantive reply to that letter.  
These proceedings were initiated by a plenary summons which issued on 7th December, 1999 in which the plaintiff sought, inter alia, the following reliefs:
(a)	a declaration that the appeals procedure set out in CL 30/97 does not apply to the appointment of persons to positions in Community Schools, reference to Community Colleges, presumably, being intended;
(b)	a declaration that the VEC had erroneously implemented that appeals procedure in relation to the plaintiff’s appointment to the post of Assistant Principal (Day) (Permanent) at Riversdale Community College;
(c)	an injunction restraining the defendant from proceeding with any such appeals procedure in relation to the plaintiff’s appointment at Riversdale Community College;
(d)	a declaration that the plaintiff was properly appointed to the post of Assistant Principal at Riversdale Community College on 29th November, 1998 subject to the approval of the Minister for Education and Science (the Minister); and 
(e)	an order directing the VEC to forward the plaintiff’s name to the Department for approval of her appointment.
The plaintiff has been performing the duties of Assistant Principal since 27th November, 1997.  I am satisfied on the evidence that she has been remunerated accordingly.
In her evidence, the plaintiff said that the letter of 27th November, 1998 accorded with her expectations.  She understood at the time that the filling of the post of Assistant Principal was subject to the appeals procedure.  At a union meeting prior to the competition for the post she had heard in a general way of the measures agreed under the PCW in relation to promotions.
When she received the letter of 7th December, 1998 she was, as she put it herself, “unsurprised”.  It accorded with what she believed to be the position.

Joinder of Notice Parties
	The plaintiff brought an interlocutory motion returnable for 17th January, 2000.  Eventually, that motion was struck out and I am not concerned with it.  However, on the return date, 17th January, 2000, an order was made by this Court (McCracken J.) ordering the joinder of the following parties as notice parties to the proceedings: TUI; John O’Reilly, Michael Stanley and Patricia Dean.  The pleadings as subsequently delivered between the parties do not name TUI as a notice party.  I am treating the TUI as a notice party in accordance with the order of 17th January, 2000.  
What emerged from the evidence is that there were five candidates for the post: Mr. O’Reilly, Mr. Stanley, Ms. Dean, Dave Anderson and the plaintiff.  The Selection Board ranked Dave Anderson first.  He received letters from the VEC in identical terms to the letters of 27th November, 1998 and 7th December, 1998 received by the plaintiff.  
	An undertaking was given to this Court early in 2000 that the processing of the appeals of Mr. O’Reilly, Mr. Stanley and Ms. Dean would be put on hold pending the outcome of these proceedings.  

The factual situation from the perspective of the candidates other than the plaintiff.
	Mr. Anderson, one of the successful candidates, testified that he accepted the position as outlined in the letters of 27th November, 1998 and 7th December, 1998 and, in particular, he accepted that the appeal system applied to the competition and applied to his appointment.  Each of the unsuccessful candidates, Ms. Dean, Mr. O’Reilly and Mr. Stanley, testified that they were aware of the appeals procedure when the applied for the post and applied on that basis.  

The factual situation from the perspective of the VEC.
	I propose now outlining in chronological order my understanding of how the introduction of the PCW innovations in relation to filling posts on promotion in the vocational sector developed, which is based on the evidence of Mr. O’Connor but also draws on the evidence of Mr. Declan Glynn, the Assistant General Secretary of the TUI.
	As part of the PWC negotiations three aspects of the selection process in relation to promotions in the vocational sector were under consideration:
(1)	the composition of the selection board;
(2)	the criteria for selection and the weighting to be given to each element of the criteria; and
(3)	the availability of an appeals process for disappointed candidates.
In the case of Vocational Schools the composition of the Selection Board gave rise to dissension because, traditionally, members of the VEC had sat on Selection Boards.  The negotiations broke down and it was agreed that, in the absence of agreement, the Minister would determine the procedure for Vocational Schools and Community Colleges.  
	In June, 1997 the Department issued CL 30/97, which was headed: “Appointments to Assistant Principal and Special Duties Teacher Posts in Vocational Schools” and dealt with the three aspects which had been under consideration, including the appeals process.  In relation to the composition of the Selection Board there was a reference to another Circular Letter of June, 1997 which dealt with that issue – CL 29/97.  
	CL 29/97 and CL 30/97 were before the VEC at its plenary meeting on 12th June, 1997.  Mr. O’Connor’s evidence is that he was present at the meeting and that CL 30/97 was adopted in relation to all schools under the aegis of the VEC, including Community Colleges.  That, however, is not clear from the minute of the meeting.  The minute discloses that CL 29/97, which dealt with the contentious issue of Selection Boards for Vocational Schools, was put to a vote and adopted.
In any event, it would appear that thereafter it was assumed by the VEC personnel that CL 30/97 applied to all second level institutions under the aegis of a Vocational Education Committee, namely, Vocational Schools and Community Colleges.  This is consistent with the approach adopted by the VEC.  On 4th February, 1998 Mr. O’Connor wrote to Mr. Shane Foley, TUI representative, apropos of promotional posts in Community Colleges, stating that all such posts were filled in accordance with the criteria set out in CL 30/97, including the appeals procedure which would apply to any appeal by a candidate against the outcome of the selection process.  A copy of CL 30/97 was enclosed.  Subsequently, on 8th May, 1998, Mr. O’Connor wrote again to Mr. Foley enclosing the documentation which had been adopted by the VEC for use in interviews for Assistant Principal posts, which was based on CL 30/97.  
On the evidence, it would appear that the applicability of CL 30/97 to Community Colleges was first questioned in a letter of 11th November, 1998 from the General Secretary of IVEA to the Chief Executive Officers of all Vocational Education Committees in relation to a proposed meeting with the Department.  The purpose of the meeting was to give consideration “to the extension, on a formal basis” of the marking system and the related appeals process to “the deed of trust Community Colleges”.  Observations were invited.  Mr. O’Connor, on behalf of the VEC, sent his observations in a letter of 13th November, 1998.  He stated explicitly that, in adopting CL 30/97, the VEC had also decided to use the criteria outlined therein for selection for the appointment of Assistant Principal and Special Duties Teacher posts in the Community Colleges under its management and had also agreed to accept and apply the appeal procedure proposed in CL 30/97, as expanded in CL 27/98.  Mr. O’Connor also stated that a number of appeals had been made by teachers in Community Colleges and that there were being processed at the time in accordance with the procedures outlined in CL 27/98.  
	Why, in the light of the foregoing, Mr. O’Connor was so emphatic in his letter of 8th April, 1999 that CL 30/97 did not cover Community Colleges and that there was no agreed appeals mechanism for Community Colleges is puzzling.  What is clear from the evidence, however, is that the County Dublin Branch of the TUI did not accept the position as outlined in that letter, that CL 30/97 did not apply to all promotions in all institutions under the aegis of the VEC, including Community Colleges.  In a notice of 15th April, 1999, the Branch Officers invited the members to protest outside the meeting of the VEC to be held on the following Monday, 19th April.  Subsequently meetings were held on 30th April, 1999 and in May, 1999 between Mr. O’Connor and the representatives of the TUI.  The evidence of both Mr. O’Connor and Mr. Glynn is that at the meeting on 30th April, 1999 Mr. O’Connor resiled from the position adopted in the letter of 8th April, 1999.  Mr. O’Connor’s position is that his statement in that letter that CL 30/97 did not apply to Community Colleges was simply wrong.  He had acted on advice which IVEA had obtained from its legal advisers, which he subsequently came to see was erroneous.  
However, nobody apprised the plaintiff that the position as outlined in the letter of 8th April, 1999 no longer represented the position of the VEC before these proceedings were instituted.  It was submitted that the letter was a private letter from Mr. O’Connor to Mr. Gilmore, that it was not intended for dissemination and that the plaintiff acted in an opportunistic manner in invoking and relying on it.  I do not think that such criticism is fair.  The letter was a letter from the plaintiff’s employer to the trade union of which she was a member.  Ex facie it affected her.  She raised the matter through her solicitor.  In my view, she should have been apprised that the position as outlined in the letter no longer represented the views of the VEC at an early stage and, in any event, long before positions could become entrenched in the context of legal proceedings in this Court.  
	In the context of these proceedings the views of the Department were elicited.  The Department’s position, which is referred to in the written submission of the VEC, was outlined in a letter of 6th December, 2000 from the Department to Mr. O’Connor.  In that letter it was stated that the Department was of the view that CL 30/97 applied to Vocational Schools only.  However, this did not preclude individual Vocational Education Committees adopting such a procedure in making appointments to designated Community Colleges.  The statement in the letter of 27th November, 1998 to the plaintiff that her appointment was subject to the terms of CL 30/97, while in formal terms incorrect, was correct in substance.  This conclusion was based on information supplied by Mr. O’Connor to the Department that the procedure under CL 30/97 had been applied by the VEC to designated Community Colleges under its aegis.
	On 10th January, 2001 Mr. O’Connor wrote to Mr. Glynn informing him of the contents of the letter of 6th December, 2000 and advising him that, on the basis of legal advice, appeals in relation to Community Colleges other than Riversdale Community College, could proceed.  The appeal in relation to Riversdale Community College could not proceed because of the undertaking given to this Court in these proceedings that the appeal would not be proceeded with pending the outcome of these proceedings.  The evidence is that the other appeals have been disposed of in the interim.
	Finally, there has been put in evidence a print of a document entitled “Community Colleges in the Archdiocese of Dublin” which has been presented as being the template for governance of Community Colleges under the aegis of the VEC.  The document contains two parts:
(a)	a part entitled “Instrument of Management”, which sets out the constituency of the Board of the College; and
(b)	a part entitled “Articles of Management”, which states that the College shall be managed by a sub-committee established under s. 21(1) of the Vocational Education Act, 1930, which, it would appear, corresponds with the Board.
The provisions of the Articles of Management which deal with selection and appointment of staff are silent on the issue of an appeal from the decision of the Selection Board.  
 
The factual situation from the perspective of the Union.
	As I have indicated, Mr. Glynn’s evidence was that, as regards the letter of 8th April, 1999, Mr. O’Connor saw the error of his ways at the meeting of 30th April, 1999.  The position of the TUI was that the VEC had committed to filling promotional posts in accordance with the provisions of CL 30/97.  Mr. Glynn put the position of the TUI very succinctly in stating that CL 30/97 had been validly applied to Community Colleges where the employer agreed it should be so applied.
	The plaintiff attended a union meeting in Riversdale Community College in March, 2001 and should have been aware of the correct position as a result of that meeting.

Pleadings
	In its defence the VEC, in addition to traversing the allegations made by the plaintiff, pleaded that it was at all material times known to the applicants for the posts in issue that the interview, selection and appointment process was being carried out in accordance with the provisions of CL 30/97 and CL 27/98, that the plaintiff did not object at any time to the process being carried out in accordance with those provisions and that, in the premises, the plaintiff was estopped from denying that those procedures applied to her appointment.  It was also pleaded that, as the plaintiff made no objection to the pursuit of the appeals of the notice parties, of which she was informed by the letter of 7th December, 1998, until April 1999 and only commenced these proceedings at the end of 1999, the Court should exercise its discretion to refuse the relief sought.  
	The plaintiff did not seek particulars of any matter raised in the defence of the VEC and, in particular, did not raise any particulars of the denial that the VEC had expressly acknowledged that the appeals procedure was not properly applicable to the plaintiff’s appointment.  However, after the action had been first listed for hearing and adjourned because of non-availability of a judge, in the context of justifying a request for voluntary discovery, in a letter of 5th December, 2003, the solicitors for the VEC informed the plaintiff’s solicitors that Mr. O’Connor was erroneously advised that CL 30/97 did not apply to Community Colleges and that at two meetings subsequent to the letter of 8th April, 1999, one in April, 1999 and the other in May, 1999, he advised the representatives of the TUI that CL 30/97 did in fact apply to appointments within Community Colleges and that the letter of 8th April, 1999, which was based on erroneous advice, was withdrawn.

Conclusions
	The plaintiff has called in issue the applicability of CL 30/97 generally to Community Colleges.  I have outlined in some detail earlier the evidence adduced in relation to the imposition of the provisions of that circular and the various prevailing views as to its applicability to Community Colleges.  It would appear that there are “stakeholders”, using that expression in its widest sense, in relation to the subject matter of the circular, whose views are not before the Court.  By way of example, I would mention other Vocational Education Committees, the persons referred to as “the Religious Trustees” in the letters of 11th November, 1998 and 8th April, 1999, and possibly, ASTI, which is mentioned in the letter of 8th April, 1999.  In the circumstances, I am of the view that it would not be appropriate to express any view on the applicability of CL 30/97 to Community Colleges in general.  
	I consider that the proper course is to have a much narrower focus in relation to the applicability of the procedures contained in CL 30/97 and to limit consideration of its applicability to the competition for the two posts in Riversdale Community College at issue in these proceedings.  On the evidence, I have no doubt that it was the intention of all of the parties involved in the competition that the appeals procedure provided for in CL 30/97 would apply and that the competition was conducted in accordance with those intentions.  That this was the case is manifested as follows:
(1)  The letters dated 4th February, 1998 and 18th May, 1998 from Mr. O’Connor to Mr. Foley, the TUI representative, explicitly envisaged such a competition being conducted in accordance with the criteria, and subject to the appeal process, set out in CL 30/97.  
(2)  The form and layout of the application form submitted by the plaintiff specifically sought information in relation to the candidate by reference to the criteria set out in CL 30/97.
(3)  It is clear from Mr. O’Connor’s evidence that it was the intention of the VEC that it should be so and there is no evidence that the intention of the Board of Riversdale Community College, which, in any event, was subordinate to the VEC by virtue of s. 21 of the Act of 1930, was any different.
(4)  The evidence clearly establishes that the understanding of all five candidates for the post, including the plaintiff, was that the competition was subject to an appeal of the type envisaged in CL 30/97.
(5)  The letters of 27th November, 1998 and 7th December, 1998 to the two successful candidates, including the plaintiff, confirmed what was already the understanding of all the candidates.
	It seems to me that, in participating in the competition for promotion, the plaintiff was representing by her conduct that she would be bound by the rules which all the players – the employer and all of the candidates – understood to be applicable.  The only reasonable inference is that all of the other players relied on that representation.  It would be unfair to the three unsuccessful candidates and to the employer, who is answerable to the three unsuccessful candidates, if the plaintiff were allowed to resile from that representation.  Therefore, in my view, the plaintiff is estopped from requiring that the competition be brought to a conclusion other than in accordance with the rules to which all of the players subscribed, that is to say, in accordance with the outcome of the appeals of the three unsuccessful candidates.
	There is another way of looking at the matter.  It was submitted on behalf of the plaintiff that, absent a record in a minute of a meeting of a decision of the VEC adopting CL 30/97, the competition at issue here could not have been validly held in accordance with the requirements of that circular.  If that is a correct statement of the law, and I express no view on the necessity of the existence of a minute recording a decision of the VEC, the purported conduct of the competition in accordance with the requirements of the circular was invalid.  If that is the case, then the competition as conducted thus far is null and void.  The players did not participate in the competition on any basis other than that it would be conducted in accordance with the requirements of the circular.  If its conduct thus far is null and void, there can be no result.  Therefore, in order to fill the posts there would have to be a competition de novo.
	Having regard to the foregoing, in my view, the plaintiff is not entitled to any of the reliefs specifically relating to the competition in Riversdale Community College which she has sought.  
	I consider that it is regrettable that the issue which arose between the plaintiff and her employer was not resolved in a manner which would have avoided these proceedings.

Decision
The plaintiff’s claim is dismissed.