clr/1987/1987_3_337.pdf

(1987)recommend the engagement of all members of the regular staff except the applicant inwhose placetheyrecommended theinterested partyonaccount of better qualitiesand stage performance No reports were asked and none wassubmitted on the actingqualitiesof the casual staff including the interested party who had been casually employed since 1980 Finally the Board of the respondent, guided by the advice of the artistic committee and the recommendations of the Director (respondent 2) decided to re-appoint all regular members except the applicant, inwhose place theyappointed theinterested party 5 Theomission tosubmitareporton the interested partywasnot due toany 1 0 lackofknowledge onbehalf ofthe Directorastohisqualities buttofailure by the respondents to seek such information The report made about the interested party for 1985/1986 hardly coincided with the picture that the Director painted in giving evidence A comparison of this report with the report on applicant which wasbefore therespondents revealstheapplicant 15 asmarginally better Held annullingthe subjudicedecision

(1)Hadareportbeenprepared on the acting qualities of the interested party, itisunlikely that the respondents would have preferred the interested partytothe applicant

(2)The failure of the respondents to seek from the most official sourcetheir Director a report on the acting qualities of the interested party left a lacunaintheirinquiryastothesuitabilityofthetwocandidatesinquestion 20

(3)In the light of this gap in their inquiry, it is very probable that the respondents misconceived thefactsrelevanttotheactingqualitiesofthetwo contestants 25 Subjudice decision annulled No orderas tocosts Recourse. Recourseagainstthedecisionoftherespondentstoappointon 30 contracttothepostofactorintheCyprusTheatncalOrganization theinterested partyinpreference andinsteadoftheapplicant .A Marhdes, fortheapplicant L Koursoumba(Mrs), fortherespondents Cur. adv.vult 35 338 3 C.L.R. Antoniadou v. CyprusTheatrical Organization P1KISJ read the following judgment The Cyprus Theatncal Organization, known with its acronym (Greek) Θ Ο Κ, is a statutory body charged with the promotion of the theatrical ideal and thestagingof theatricalproductions Itismanaged by a Board 5 of Directors responsible for policy and overseeing of management, aided in the accomplishment of its cultural objectives by an artistic committee with an advisory role The Director is thechief executive organ of Θ ΟΚ A number of actors and actresses are employed on a regular 10 basis for theatncal productions Though employed on a contractual basis of fixed duration, their contracts are as a rule renewed so muchso thatthey are treatedas theregular theatncal personnel of the Organization Regular actors and actresses are required to perform roles assigned to them from time to time 15 according to the exigencies of the theatncal programme In additiontotheregular personnel,anumberofactorsand actresses are employed onwhat is descnbed as a casual basisaccording to therequirementsof thestageprogramme Casual personnel,too, is employed on acontractualbasis albeit for penods shorter than 20 twelve months Unlike regular actors they cannot look to the renewal of theircontractsas a matterof course Pitsa Antoniadou, the applicant, had long co-operation with Θ O.K. dating back to the early days of its formation She was casually employed for long penods of time upto 1974 when her 25 collaboration was interrupted on account of illness but was later resumed when her health was restored In May, 1985, the applicant was appointed member of the regular theatncalstaff of the respondents in a vacancy thatoccurred with the departure of a member of theregular personnel She was chosen from among 30 four casual actors,including the interested party, namely Chnstos Chnstofakis. She was given a five-month contract expinng on 30/9/85inordertocoincidewiththeexpiration of thecontractsof the remaining 22 regular actors and actresses of Θ O.K. So applicantbecame oneof the23 regular actorsandactresses of the 35 Organization. In July, 1985, the Board of the respondents met anew to consider the needs of the Organization for the ensuing theatncal year commencingmOctober, 1985 They requested theDirector 339 Pikis J. Antoniadou v. CyprusTheatricalOrganization

(1987)tosubmit reports ontheregular personnelandreferred, inthefirst place, the matterof choice of personnel totheartisticcommittee for their views and advice. The Director reported to the artistic committeeon the23 regular members of thestaff, reading over to them the reports he prepared on them in the prescribed form. In 5 making their selection they considered, apart from regular personnel, ten other actors and actresses casually employed by Θ.Ο.Κ. Notwithstanding the co-operation of casual personnel with the Organization, no reports were asked and none was submitted on the acting qualities of thecasual staff. The interested 10 party, it must be noted, had been casually employed by Θ.Ο.Κ. since 1980. The artistic committee decided to recommend the renewal of the contractsof all members of theregular staff with the exception of the applicant.Forthe23rdposttheyrecommendedby majority 15 the engagement of the interested party in the place of the applicant on the ground of better acting qualities and stage personality. The recommendations of the artistic committee, though of an advisory character constitute, as laid down in the Law*, a weighty factor to be duly bom in mind by the Board in 20 making its decision. Finally, the Board of therespondents meton 29/7/85 to make their selection. As in the case of the artistic committee,theDirectorconfined hisreportsandevaluation onthe 23 regular members of the staff. Guided by the reports of the Director and the recommendations of the artistic committee,the 25 respondents decided, again by majority, torenew thecontractsof all regular members with the exception of the applicant. In her place they appointed the interested party. The dissenting members supported the appointment of the applicant on the ground, inter alia, that the theatrical programme of the 30 Organization required a female member. The challenge of the applicant tothedecision centres primarily on theinadequacy of theinquiry heldby therespondents resulting in a misconception of the facts respecting the rival merits of the applicant and interested party. In evidence before me the 35 applicantspoke ofherlongand,asshebelievedittobe,fruitful co­ operation with Θ.Ο.Κ., andthevarietyof roles she performed on '(see,s.5

(4). 340 3 C.L.R. Antoniadou v. CyprusTheatrical Organization Plkis J. stage over the years. Herexclusion from the permanentstaff she regards asunfairandasanactofinjustice tohertheatrical qualities. 5 10 15 20 25 The Director, Mr.EvisGavrielides, testified attherequest ofthe respondents with a view to illuminating the background and circumstancesleading tothesubjudice decision.Hewas unableto give us further details to those indicated in the minutes of the respondents.Mostly, hetried tosurmise thereasons thatledtothe appointmentof theinterested partyinpreference totheapplicant. The omission tosubmit a report on the qualities of the interested party was not due to any lack of knowledge on his part as to his qualities, but on the failure of the respondents to seek such information. Nonetheless,areportwas prepared ontheinterested party the following year in the context of reporting upon regular actors and actresses of the Organization. As he told the Courtthe report on the interested party for the years 1985 and 1986 also reflected the value of his services and acting qualities for the previous years. Thereportontheinterestedpartyhardly coincides with the picture Mr.Gavrielides painted of the acting qualities of the interested party. Inthe report he is portrayed as a mediocre actor with little prospect for improvement. Furthermore, there is nothingonrecordtosuggestthatthechoiceof theinterestedparty hadanything todowith theneeds of Θ.Ο.Κ. intermsof thesex of the regular personnel, a view ventured by Mr. Gavrielides as a possiblereason for thechoiceoftheinterestedparty. Infact, some members, as earlier noted, thought that a female actor was needed. Had a report been prepared on the acting qualities of the interested party, it is unlikely that the respondents would have preferred the interested party to the applicant. A comparison of 30 the two reports reveals the applicant as marginally better, at least so far as humanrelations are concerned,whereas thefact thatshe was a regular member of the staff would no doubt prima facie entitlehertopreference, all otherfactors being equal. Itbecomes apparent thatthefailure of therespondentstoseekfrom themost 35 official source — theDirector— areportontheactingqualities of theinterested party,left alacuna intheirinquiries onthe suitability of the two candidates for selection. Inview of thisserious gap in their inquiry, it is very probable that they misconceived the facts relevant to the acting qualities of the two contestants. The only 40 way to remedy this inadequacy and, possibly, correct the 341 PlklsJ. Antoniadouv.CyprusTheatricalOrganization

(1987)misconceptionoffacts,istoarinulthedecisionandthusaffordthe respondents an opportunity to reflect on the matter anew after properlyapprisingthemselvesofallrelevantfacts. PursuanttotheprovisionsofArticle146.4(b)oftheConstitution the decision is hereby declared null and void and of no effect 5 whatsoever. Lettherebenoorderastocosts. Subjudicedecision annulled. Noorder astocosts. 10 342