Xvs

Professor Roger Ellul Micallef asRector of the University of Malta &

Chairman of the Board of Selection

of the University of Malta

First Hall, Civil Court

Judge

Lino Farrugia Sacco

6 December 2006

The plaintiff claimed that, in 2001, there were two openings at the University of Malta in a particular department. He was well qualified, had a PhD, had worked as a lecturer in the same department for eight years and had many years of experience in the field. He applied for these jobs since he had all the necessary qualifications for the posts.

After the plaintiff was interviewed by the selection board, he was not chosen for any of the vacancies, allegedly because of his age. Comments about his age were made before and after the selection board was set up and also indirectly during the interview.

Age was not one of the requirements for applications. Hence the plaintiff alleged that the board’s decision was not only abusive and illegal but discriminatory and ultra vires because the decision not to choose him was based on irrelevant considerations in terms of Article 469A of the Code of Organisation and Civil Procedure (Chapter 12). The selection board ultimately chose two candidates who were less experienced and qualified than the plaintiff but were younger.

The plaintiff had requested the defendants to alter their decision, but this never happened.

The plaintiff requested the Court to:

1. Declare the decision as abusive, illegal, discriminatory and ultra vires.

2. Declare the decision as null, invalid and without effect.

3. Order that plaintiff be appointed to one of the posts in question.

Defendants

1. The selection board has no legal personality and hence had no legal standing (locus standi).

2. The Court had no jurisdiction over the selections made by the university.

3. The choice of lecturers was not deemed to be an administrative act in terms of Article 469(A)

4. There was nothing irregular or discriminatory in the choice made by university and such a decision was made in the light of valid and relevant criteria.

5. The age factor was not a determining factor at all

6. The plaintiff’s claims were unfounded in fact and at law.

When the plaintiff applied, he was working at the university as a part-timer. He claimed that before the call for applications was made, one of the members of the selection board had actually commented to him that he wanted to recruit young people. In the call for applications, there was no age-limit mentioned. During his interview he was asked whether he could handle working a lot. About a month after his interview, another board member commented that younger lecturers were a good idea.

The people who were chosen had master’s degrees, while he had a PhD.

The defendant claimed that there were more specialised people than the plaintiff in the area. He stated that he had adopted a procedure whereby a list of criteria was drawn up and each member of the board would assess the candidate for such criteria. He claimed that the decision as to the people appointed was unanimous.

He added that the criteria were always regarding qualifications, references, personality and communication skills in general and, during the interview, ideas and experience in the field. He also mentioned the vision of the candidate as being one criterion. He went on to say that the department’s needs and future developments were also a consideration.

The defendant could not remember the questions that the plaintiff was asked during his interview. No records of such questions are kept.

Age did not feature in the list of criteria that the board members considered. All the witnesses agreed that age was not a factor that should be at the basis of a selection. The witnesses all gave an idea of how the selection takes place, yet none provided the Court with the actual breakdown of the scores attributed to the plaintiff that led to his not being chosen. They all gave very general comments. They claimed that the people chosen for the posts were more suitable.

One question posed during the plaintiff’s interview was how he projected the future. The plaintiff felt that this question set him back because of his age. The claim that a board member had indirectly mentioned age was denied by all parties present, who claimed not to remember such a comment being passed.

The Court stated that the university has legal standing. It claimed that it has always believed that qualifications are one of the most important elements. The plaintiff was clearly more qualified than the chosen applicants. He definitely had experience in the field and the Court added that his experience in a particular area could definitely not have been outshone considering the positions the plaintiff had held in the past, which led to his participation in various conferences overseas. The Court condemned the university for not filing the records of the applicants’ scores.

The Court felt that this decision was indeed discriminatory. The Court referred to a Tribunal decision (2001) – Hili vs Chairman BOV et where it was stated that there is a case of discrimination when people in similar situations are treated in different ways without any reasonable or objective justification.

The Court felt that the decision breached Article 469A 1 (b) (ii) and (iv) of the Code of Organisation and Civil Procedure and declared the said decision as null, void and without effect.

Regarding the plaintiff’s plea to the Court to order that he be given one of the appointments, the Court claimed that although it had the competence to ensure that a public authority acted legally, it did not have the competence to substitute the authority’s discretion.