A first Secretary in the Department of Foreign Affairs yesterday failed to get a High Court order directing the Labour Court to review its decision preventing him bringing a claim for discrimination against the Department.
Mr Darach Mac Fhoinnbhairr was posted to Vienna from 1978 to 1981 and to Moscow between 1986 and 1989. He claimed that during those periods his wife and children did not accompany him but he was paid allowances at the rate of a married man with children.
Mr Mac Fhoinnbhairr and his wife had been living apart since 1986. He was posted to The Hague in 1993 and alleged the Department at that time disputed his entitlement to receive allowances other than the rates payable to a single man with no children.
In court yesterday, Mr Edmund Honohan SC, for Mr Mac Fhoinnbhairr, said his client was being treated as a single person for remuneration purposes because he was separated. That appeared to be blatant discrimination in relation to other persons of marital status.
Mr Mac Fhoinnbhairr began a High Court action against the Department in 1993 which came before the court in May 1996. Mr Justice Kelly decided his claim of discrimination should be dealt with, in the first instance, by the Labour Court. The Labour Court found that Mr Mac Fhoinnbhairr had not filed his complaint with that court within the stipulated six months from the date when the discrimination was alleged to have first taken place. The court decided he had not shown "reasonable" cause for the delay.
Yesterday, Mr Honohan applied for permission to seek a High Court order quashing the Labour Court's finding.
He accused the Department of "sharp practice", claiming that when the matter was before the Mr Justice Kelly in 1996 the Department invited the judge to refer the matter to the Labour Court. Mr Mac Fhoinnbhairr understood the State would, in good faith, co-operate in deciding the issue before the Labour Court.
Mr Honohan said that during the Labour Court hearing the Department chose to do "an about-turn" and had argued his client was out of time in making his application.
Mr Mark Sanfey, for the Department, said there was no suggestion there had been procedural irregularities in the case or that there was a breach of natural or constitutional justice or that Mr Mac Fhoinnbhairr was not given an opportunity to make his case.
Mr Sanfey said Mr Honohan's use of "inflammatory language" in relation to the Department's attitude was rejected by his clients. His clients also rejected any allegations that they acted in any way other than properly.
Refusing the application for leave for judicial review, Mr Justice McCracken said Mr Mac Fhoinnbhairr could have pursued his High Court and Labour Court claims at the same time and did not do so.
The judge said he could not substitute his own belief as to what would or would not be "reasonable", because the grounds on which the Labour Court decision was made were based on a proper consideration of the facts.