Dillon v CUS [2019] IEHC 658 (08 October 2019)

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Cite as: [2019] IEHC 658

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THE HIGH COURT
JUDICIAL REVIEW
[2019] IEHC 658
[2015 No. 665 J.R.]
BETWEEN
PIERCE DILLON
APPLICANT
AND
THE BOARD OF MANAGEMENT OF CATHOLIC UNIVERSTY SCHOOL
RESPONDENT
JUDGMENT of Ms. Justice Murphy delivered on the 8th day of October 2019
1.       This application is a complex one, both as a matter of law and as a matter of fact. The
applicant is seeking an order of certiorari of a finding by the respondent at the conclusion
of a Complaints Procedure, that the applicant had engaged in inappropriate behaviour and
language in relation to a student. He is also seeking an order of certiorari of a decision to
issue him with a “final written warning” in respect of the alleged inappropriate behaviour
and language which issued pursuant to the provisions of the Disciplinary Procedures set
out in a departmental circular known as DES 60/2009. This decision followed on from the
finding made by the Board of Management at the conclusion of the Complaints Procedure.
Thirdly, he seeks an order of certiorari quashing the decision of the respondent refusing
to permit him to appeal against the decision that he had engaged in inappropriate
behaviour and language in relation to a student. This refusal was communicated to him by
letter dated the 17th September 2015. The applicant is claiming various ancillary reliefs
including declaratory reliefs.
2.       The respondent has raised a number of preliminary issues including that the relevant
decisions are not judicially reviewable and that the applications in respect of the Board of
Management’s finding in the Complaints Procedure and the sanction issued in the
Disciplinary Procedure are out of time.
3.       In order to comprehend and contextualise the events which occurred, one has to
understand the genesis of the complaint/disciplinary procedures and the evolution of the
disciplinary aspect of those procedures.
The procedures
4.       On the 1st September 2000, ASTI and the joint managerial body for voluntary secondary
schools agreed procedures for the processing of complaints made by parents/guardians or
students (who have reached the age of eighteen years) against a teacher. On the same
date, the bodies agreed a disciplinary procedure for use by school management against a
teacher in a voluntary secondary school. Both of these procedures are non – statutory but
were adopted by both teachers and management as part of their contractual
arrangements. The Complaint and Disciplinary Procedures of the 1st September 2000, as
we shall see, are interlinked.
The Complaints Procedure
5.       The document is a two-and-a-half-page document and reads as follows: -
“Introduction:
Page 2 ⇓
Procedures are necessary to ensure fair treatment for all in the school and
acceptable procedures should be known, agreed, and observed in the interest of
good industrial relations and harmony in the school environment. Periodic review
of all procedures should take place to ensure practices are good and adhere to any
developments in employment legislation or other legislation or case law.
Purpose of Complaints Procedure
a) To provide a fair, consistent and equitable mechanism for processing
complaints by parents/guardians or students (who have reached the age of
18 years) against teachers.
b) To do so in a manner that affords all concerned full rights in accordance with
natural justice.
c) To outline the procedures which should be followed by all – employer,
employees and their representatives - in the event of complaints being made
against teachers.
Exclusions
(a) When complaints are deemed by the Principal/Manager/Board of
Management to be: -
(i) on matters of professional competence which cannot be dealt with at
school level and which are to be referred to the Department of
Education and Science for investigation;
(ii) frivolous, vexatious or anonymous complaints and complaints which do
not impinge on the work of a teacher in a school;
(iii) complaints in which either party has had recourse to law or to another
standard procedure;
they shall be excluded from the scope of this procedure.
(b) Verbal complaints may be processed informally through Stage 1 of the
procedure. Where the complaint is made in writing initially, the complaint
should be processed through Stage 1 but a copy of the complaint should be
given to the teacher at Stage 1. Only those complaints which are written and
signed by the complainants may be investigated through stage two and stage
three of the procedure.
Procedures
Stage 1
1.      1 A parent/guardian/student who wishes to make a complaint should, unless there
are local arrangements to the contrary, make an appointment and discuss the
matter with the teacher with a view to resolving the complaint.
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1.      2 Where the parent/guardian/student is unable to resolve the complaint with the
teacher, she/he should approach the Principal with a view to resolving it.
1.      3 The resolution and outcome of Stages 1.1 and 1.2 should be communicated
verbally to both parties.
1.      4 If after Stage 1.2 the complaint is still unresolved, the parent/guardian/student
should be advised that they may raise the matter formally with the Board of
Management as set out at Stage 2 with a view to resolving it.
1.      5 In the case of a complaint against a Principal, the parent/guardian/student should
discuss the complaint with the Principal in the first instance. If the
parent/guardian/student is unable to resolve the complaint with the Principal, the
complaint may be processed as provided for at Stages 2 and 3 of this procedure.
Stage 2
2.      1 If the issue is not resolved at Stage 1 then the parent/guardian/student should
lodge the complaint in writing with the Board of Management.
2.      2 The Board should acknowledge receipt of the complaint, note it formally and
appoint two authorised representatives, one of whom may be the Principal, to deal
with the matter.
2.      3 The authorised representatives should, subject to the general authorisation of the
board: -
(a) supply the teacher with a copy of the written complaint, and
(b) arrange a meeting with the teacher and, where applicable, the Principal and the
complainant, with a view to resolving the complaint. Such a meeting should take
place within 10 school days of receipt of the written complaint as specified at 2.1
2.      4 The teacher may be accompanied by a colleague or the ASTI School Steward at this
stage of the procedure.
2.      5 The authorised representatives should convey the outcome of these discussions /
investigation, in writing, to the teacher, complainant and the Board of Management
and indicate whether or not the matter has been resolved to the satisfaction of all
parties.
2.      6 If the complaint has not been resolved at this stage and the complainant wishes to
proceed to Stage 3 s/he shall indicate this in writing to the Board of Management
within 10 school days of receipt of the letter referred to in 2.5.
Stage 3
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3.      1 If the Board of Management considers the complaint is not substantiated, the
teacher and the complainant should be so informed within three days of the Board
meeting.
3.      2 If the Board of Management considers that the complaint warrants further
investigation, it should proceed as follows:
(a) the teacher should be informed that the investigation is proceeding to the
next stage;
(b) the teacher should be supplied with a copy of any written evidence relevant
to the complaint;
(c) the teacher should be requested to supply a written statement to the Board
of Management in response to the complaint;
(d) the teacher should be afforded an opportunity to make a formal presentation
of their case to the Board of Management. The teacher would be entitled to
be accompanied and assisted by a colleague or union representative at any
such meeting, and
(e) the Board of Management may arrange a meeting with the complainant. The
complainant would be entitled to be accompanied and assisted by a friend at
any such meeting, and
(f) the meeting/hearing of the Board of Management referred to in 3.2(d) and
3.      2(e) will take place within 15 days of the meeting referred to in 2.3(b).
3.      3 When the Board of Management has completed its investigation, the decision of the
Board of Management should be conveyed in writing to the teacher and the
complainant within five school days of the decision being taken.
3.      4 The decision of the Board of Management shall be final, except in respect of
matters governed by appeals procedures in the Education Act 1998.
3.      5 In the case of a complaint which is upheld the matter may be dealt with by the
Board under the provisions of Stage 3 of the agreed Disciplinary Procedures. In
such circumstances, members of the Board who have acted as authorised
representatives in the investigation of the complaint should not participate in the
decisions of the Board relating to the application of disciplinary action.
Notes
(i) In this procedure a school day means a day on which the school is in
operation.
(ii) At all stages of the Complaints Procedure a written record should be
kept of
a. the investigation undertaken;
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b. communications to BOM/Parent/Guardian/Student and Teacher, and
c. the steps and /or decision taken.
Copies of this written record may be made available for inspection to
the parties to the complaint and to the teacher(s) concerned.
(iii) The Complaints Procedure shall be reviewed by the parties every three
years or at the request of any one of the parties.
6.       On the evidence before the court, it appears that the complaints procedure has not been
reviewed since the date of its agreement on the 1st September 2000, nor it appears on
the evidence has there been any request by either of the parties for a review of the
complaints procedure. The linked disciplinary procedure agreed on the same day, the 1st
September 2000, is headed “Procedure for use by school management against a teacher
in a voluntary secondary school”.
“Introduction
a) A Code of Practice for Disciplinary procedures was issued by the Minister for
Enterprise and Employment in May 1996 under the terms of the Industrial Relations
Act, 1990.
b) The Code of Practice states: -
“procedures are necessary to ensure both that discipline is maintained in the
workplace and that disciplinary measures can be applied in a fair and
consistent manner. Apart from considerations of equity and natural justice,
the maintenance of a good industrial relations atmosphere at workplace level
requires that acceptable procedures be in place and be observed”.
“Such procedures serve a dual purpose in that they provide a framework
which enables management to maintain satisfactory standards and
employees to have access to procedures whereby alleged failures to comply
with these standards may be fairly and sensitively addressed”.
“The essential elements of any procedures for dealing with disciplinary issues
are that they be rational and fair, that the basis for disciplinary action is
clear, that the range of penalties that can be imposed is well-defined and that
an internal appeal mechanism is available”.
c) The Code of Practice also states that: -
“The procedures applied must comply with the general principles of natural
justice and fair procedures which include:
(a) that details of the allegations, complaints or issues of professional
competence be put to the employee concerned;
Page 6 ⇓
(b) that the employee concerned be given the opportunity to respond fully to any
such allegations or complaints;
(c) that the employee concerned is given the opportunity to avail of
representation;
(d) that the employee concerned has the right to a fair and impartial examination
of the issues being investigated, taking into account the allegations or
complaints themselves, the response of the employee concerned to them,
any representations made by or on behalf of the employee concerned and
any other relevant or appropriate evidence, factors or circumstances”.
d) The following procedure, based on the principles set out above, has been agreed
between the ASTI and the JMB for the processing of disciplinary matters relating to
the employment of a teacher or teachers in a voluntary secondary school.
Scope of this procedure
(a) this procedure should be used to investigate serious charges against a
teacher of neglect of professional duties, or other serious charges relating to
the schoolwork of the teacher, made by school management.
(b) the procedure should be used to determine the appropriate disciplinary action
in circumstances where an investigation by another agency or another
procedure indicated that such action might be warranted.
The upholding of a complaint under the complaints procedure seems to the court to be a
procedure envisaged by this provision.
(c) the following matters are specifically excluded from the scope of this
procedure:
(a) Matters of professional competence which cannot be dealt with a school level
and which are referred to the Department of Education and Science for
investigation, except as provided in (c) below;
(b) Frivolous, vexatious or anonymous complaints and complaints which do not
impinge on the work of the teacher in the school;
(c) Complaints in which either party has recourse to law or to another more
appropriate standard procedure.
Procedures
Stage 1.
1.      1 The principal shall discuss the charge with the teacher with a view to resolving it.
Page 7 ⇓
1.      2 If no resolution follows, the principal shall put the charge in writing to the teacher,
stating the nature of the charge and advising the teacher in question that, if the
situation is not satisfactory within a reasonable period, which must be specified, the
principal will invoke Stage 2.
Stage 2.
2.      1 If the issue is not resolved at Stage 1, then the principal should lodge the charge in
writing with the Board of Management.
2.      2 The board shall acknowledge receipt of the charge and note the charge and appoint
an investigating committee which does not contain members of the Board, to deal
with the matter.
2.      3 The investigating committee should subject to the general authorisation of the
board;
(a) Provide the teacher with a copy of the written charge;
(b) Seek a report from the principal;
(c) Arrange a meeting with the teacher with a view to resolving the charge. Such
a meeting should take place within ten school days of receipt of the written
charge as specified at 2.1. If the investigating committee deems it
appropriate, the principal may be invited to attend such a meeting. The
teacher may be accompanied by a colleague or union representative at this
stage of the procedure.
2.      4 The investigating committee shall consider the views conveyed to them and any
other evidence adduced in support of the views and shall prepare a written
statement of findings on the outcome of the investigation.
2.      5 The investigating committee should convey the outcome of the investigation in
writing to the teacher and to the Board of Management and indicate whether or not
the matter has been resolved to the satisfaction of all parties.
2.      6 If the matter has not been resolved at this stage, and the principal or the aggrieved
party wishes to proceed to Stage 3, she/he shall indicate this in writing to the
Board of Management within ten school days of the receipt of the letter setting out
the outcome of the investigation referred to in 2.5.
Stage 3.
3.      1 If the Board of Management considers the charge is not substantiated, the teacher
should be so informed within three school days of the Board meeting. The principal
should also be notified.
Page 8 ⇓
3.      2 If the Board of Management considers that the charge warrants further
investigation, it should proceed as follows: -
(a) The teacher should be informed that the investigation is proceeding to Stage
3, which involves a formal hearing of the Board and may lead to disciplinary
action up to and including dismissal;
(b) The teacher should be supplied with a copy of any written evidence relevant
to the charge;
(c) The teacher should be requested to supply a written statement to the Board
of Management in response to the charge;
(d) The teacher should be afforded an opportunity to make a formal presentation
of the case to the Board of Management. The teacher will be entitled to be
accompanied and/or represented by a colleague or union representative at
any such meeting;
(e) The Board of Management may also arrange a meeting with any other party
involved if it considers such to be warranted;
(f) The principal may only attend at a Board of Management meeting in order to
give evidence and should not be present at the meeting during the Board’s
deliberations on its decision.
(g) The meeting/hearing of the Board of Management referred to in 3.2 (d) and
3.      2 (e) will take place within 20 school days of the meeting referred to in 2.3
(c).
3.      3 Decision of the Board
When the Board of Management has completed its investigation, the decision of the
Board of Management should be conveyed in writing to the teacher within five
school days of the decision being taken.
3.      4 The Board may decide that the charge is unjustified, or is unproven or is
substantiated and accordingly take no action or take disciplinary action as set out in
s. 3.5
3.      5. Disciplinary action
If the charge is upheld, the Board of Management may implement disciplinary action.
Disciplinary action may include: -
(a) An oral warning;
(b) A written warning,
Page 9 ⇓
(c) A final written warning;
(d) Suspension with pay;
(e) Suspension without pay;
(f) Demotion;
(g) Other disciplinary action short of dismissal;
(h) Dismissal.
3.      6 Implementation of disciplinary action
The steps in the implementation of disciplinary action should be progressive. For
example, an oral warning should be followed by a written warning, and then a final
written warning before further sanction. However, there may be instances where
more serious action, including dismissal, is warranted at an earlier stage. A teacher
may be suspended on full pay pending the outcome of the investigation into the
alleged serious breach of discipline. Written warnings may be placed on a teachers’
record within the school. They should be removed after a specified period of time
and the teacher advised accordingly.
3.      7 Decision of the Board.
The decision of the Board of Management shall be final and binding. This is without
prejudice to the right of a teacher to have a recourse to the law to protect his/her
employment or to appeal to the patron (Trustees) under contractual arrangements.
Notes
(i)
The disciplinary procedure shall be reviewed after three years, or
more often, at the request of either party.
(ii) At all stages of the procedure a written record shall be kept of:
(a) The investigation undertaken;
(b) Communications between the principal, Board of Management and the
teacher, and
(c) The steps and/or decision taken.
The record shall be retained on a confidential basis on behalf of the Board of
Management for one year after the conclusion of the investigation.
Copies of the written record shall be made available to the teacher or the teacher’s
representative, on request.
Page 10 ⇓
(ii)
In this procedure a school day is a day on which the school is in
operation.
(iv) The investigating committee at Stage 2 should consist of:
(a) A teacher from another school, and
(b) A Board of Management representative from another school.
(v) In the case of a charge against a principal, the chairperson of the
Board of Management shall undertake the role of the principal as set
out in the various stages of the procedure. The investigating committee
in this context shall include a principal from another school and a Board
of Management representative from another school.”
7.       Pausing for a moment to consider these procedures, it is clear that the 2000 Complaint
and Disciplinary Procedures are parallel, complementary procedures which dovetail with
eachother. In the event that a complaint is upheld, i.e. that the matter complained of is
found to have occurred, 3.5 of the complaints procedure grants a discretion to the Board
of Management to transfer the matter to Stage 3 of the Disciplinary Procedure, if it
considers it warranted.
8.       If that occurs, then at Stage 3 of the disciplinary procedure the teacher is charged with
the offending conduct. That charge of misconduct is to be determined by the Board of
Management in accordance with para. 3 of the disciplinary procedure. It is not for the
Board of Management to reach a finding of inappropriate behaviour or misconduct at the
conclusion of the Complaints Procedure. The discretion afforded them is to conclude that
there is a prima facie case of misconduct with which the teacher can be charged under
Part 3 of the disciplinary proceedings. (emphasis added)
9.       The Board of Management must decide whether the complaint which has been upheld
does or does not amount to a serious charge. If they conclude that the complaint though
upheld does not amount to a serious charge, they can in effect dismiss it. If, however,
they consider that the conduct which has been found to have occurred warrants further
investigation then they must follow the procedures set out in para. 3.2 of the disciplinary
code. The teacher is entitled to have a written copy of the charge laid against him. He
would be entitled to argue that the complaint which had been upheld did not amount to
misconduct or that the incident was trivial and did not warrant any sanction. Having taken
all of the steps set out in 3.2 of the disciplinary procedure, the Board of Management
could conclude that the charge is unjustified or unproven or that the behaviour and
conduct found to have occurred amounts to misconduct and impose one of the eight
sanctions available, ranging from an oral warning to dismissal.
10.       A teacher facing a serious charge under the 2000 disciplinary process had a specified
contractual right to have recourse to law to protect his employment. Thus, a teacher who
considers that he is or has been unfairly treated, had a contractual right to seek relief
from the courts. In the 2000 disciplinary procedure the decision of the Board of
Management was to be final, subject only to law.
Page 11 ⇓
New disciplinary procedures – Department of Education and Science circular 60/2009
11.       Section 15(2) of the Education Act, 1998 states, in respect of a board of management of
a school, that:
“A board shall perform the functions conferred on it and on a school by this Act and
in carrying out its functions the board shall –
(a) Do so in accordance with the policies by the Minister from time to time”
12.       Section 24(3) of the Education Act 1998 provides that: -
“A board shall appoint teachers and other staff, who are to be paid from monies
provided by the Oireachtas, and may suspend or dismiss such teachers and staff, in
accordance with procedures agreed from time to time between the Minister, the
patron, recognised school management organisations and any recognised trade
union and staff association representing teachers or other staff as appropriate”.
13.       The DES circular 60/2009 was brought into effect by the Minister for Education and
Science in September 2009. It was issued under the provisions of s. 24(3) of the
Education Act 1998. The circular contains detailed provisions in respect of disciplinary
matters concerning teachers. It is specified to be made under s. 24(3) of the Education
Act (1998) and it is argued has the force of law as an instrument of ministerial policy in
relation to the disciplining of teachers.
14.       DES circular 60/2009 replaces the disciplinary procedure of the 1st September 2000. It
states: -
“This disciplinary procedure supersedes all existing local and national disciplinary
procedures. Principals, teachers and boards of management will be made aware of
and be made fully conversant with this procedure and adhere to its terms.”
15.       The 2009 procedures encompass procedures relating to professional competence issues,
which had previously been reserved to the Department and separately contains
procedures relating to work, conduct and matters other than professional competence. It
is the latter which concerns us here. At Chapter 2, the circular sets out general principles
underpinning the disciplinary procedures. It provides inter alia: -
“Every teacher is personally accountable for his/her own behaviour and work
performance. Early intervention at the appropriate level to address perceived
inappropriate behaviour is desirable for all parties so as to minimise the risk of
having to escalate sanctions as provided for in these procedures.
Every effort will be made by the Principal to address alleged or perceived
shortcomings in work and conduct through informal means without invoking the
formal disciplinary procedure.
Page 12 ⇓
Where circumstances warrant, a teacher may be placed on administrative leave
with full pay pending an investigation, or pending the outcome of an investigation,
a disciplinary hearing/meeting or the outcome of a disciplinary hearing/meeting.
The procedures are intended to comply with the general principles of natural justice
and provide:
• that there will be a presumption of innocence. No decision regarding disciplinary
action can be made until a formal disciplinary meeting has been convened and
the employee has been afforded the opportunity to respond to the allegations
raised
• that the employee will be advised in writing in advance of a disciplinary meeting
of the precise nature of the matters concerned and will be given copies of all
relevant documentation. In the case of a complaint, this detail will include the
source and text of the complaint as received. A complaint should be in writing.
• that details of the allegations, complaints or issues of professional competence
be put to the teacher concerned
• that the right of a teacher concerned to have access to and to view his/her
personnel file (to include all records in relation to the teacher in hardcopy or
electronic format, held by the school) will be fully respected
• that the teacher concerned be given the opportunity to respond fully to any such
allegations, complaints or issues of professional competence
• that the teacher concerned is given the opportunity to avail of representation by
a work colleague or trade union representative/s
• that the teacher concerned has the right to examine and challenge all evidence
available and to call witnesses or persons providing such evidence for
questioning.
• that the teacher concerned has the right to a fair and impartial examination of
the issues being investigated, taking into account the allegations or complaints
themselves, the response of the teacher concerned to them, any representations
made by or on behalf of the teacher concerned and any other relevant or
appropriate evidence, factors or circumstances
• that the Board of Management, as employer, has a duty to act reasonably and
fairly in all interactions with staff and to deal with issues relating to conduct or
professional competence in a confidential manner which protects the dignity of
the teacher.
• that all matters relating to the disciplinary procedure are strictly confidential to
the parties and their representatives
Page 13 ⇓
• that it will be considered a disciplinary offence for any person to intimidate or
exert inappropriate pressure on any person who may be required to attend as a
witness.
• that where a decision is taken to impose a disciplinary sanction, the sanction
imposed will be in proportion to the nature of the
conduct/behaviour/performance that has resulted in the sanction being imposed.
• These procedures are without prejudice to the right of a teacher to have
recourse to the law to protect his/her employment
16.       In that part of the circular dealing with the disciplinary procedures for teachers in
primary, voluntary secondary, and community and comprehensive schools, the preamble
states: -
“This disciplinary procedure for teachers employed in primary, community and
comprehensive, and voluntary secondary schools was developed and agreed
following discussions between the Department of Education and Science, school
managerial bodies and recognised teacher unions representing teachers in these
sectors. It takes account of employment legislation and the Labour Relation
Commission’s Code of Practice on Disciplinary Procedures. This disciplinary
procedure supersedes all existing local and national disciplinary procedures.
Principals, teachers and boards of management will be made aware of and be made
fully conversant with this procedure and adhere to its terms”.
17.       In the introductory section, the circular acknowledges that the significant majority of
teachers do their work in a competent and efficient way and the disciplinary procedures
are therefore geared towards a minority of individuals within the profession: -
“It is also the case that any such process must recognise the reality that such
matters are often of a transient nature and may have their origin in issues of a
personal or professional nature which are of relatively short time duration. Isolated
issues or omissions of a minor nature will where possible be dealt with informally”.
The introduction advises that generally the approach to dealing with matters of work and
conduct “. . . should involve a number of stages moving from informal stages to formal
stages”. There is however the caveat that although disciplinary action will normally follow
the progressive stages, the procedure may be commenced by the school at any stage of
the process if the alleged misconduct warrants such an approach. The circular then sets
out the different stages of the disciplinary process.
18.       The first is an informal stage which is essentially a chat between the teacher and the
principal concerning any unsatisfactory conduct and the required improvement. If the
teacher’s conduct does not meet the required standards despite this informal intervention,
then the disciplinary procedure is gradually escalated.
Page 14 ⇓
19.       The first escalation is referred to as Stage 1 and consists of a verbal warning. Stage 1
states:
“A formal disciplinary meeting with the teacher will be convened by the Principal.
The teacher will be given at least five school days’ written notice of the meeting,
the notice should state the purpose of the meeting and the specific nature of the
complaint together with any supporting documentation. The teacher concerned may
be accompanied at any such meeting by his/her trade union representative or a
work colleague.
At the meeting the teacher will be given an opportunity to respond and state
his/her case fully and to challenge any evidence that is being relied upon for a
decision. Having considered the response the Principal will decide on the
appropriate action to be taken. Where it is decided that no action is warranted the
teacher will be so informed in writing within five school days. Where it is decided
that disciplinary action at this stage is warranted the Principal will inform the
teacher that he/she is being given a verbal warning. Where a verbal warning is
given it should state clearly the improvement required and the timescale for
improvement. The warning should inform the teacher that further disciplinary action
may be considered if there is no sustained satisfactory improvement. The teacher
will be advised of his/her right to appeal against the disciplinary action being taken
and the appeal process.”
20.       The verbal warning will be active for a period of 6 months, and will cease following
satisfactory completion of this time period.
21.       The next stage of the disciplinary process is a written warning. This comes into play if,
having received a verbal warning, the teacher’s conduct is perceived by the Principal to be
less than satisfactory. Stage 2 states that:
“If, having received a verbal warning, the teacher’s conduct is perceived by the
Principal to be less than satisfactory in relation to that required at Stage 1 a
meeting will be arranged between the teacher and the Principal and a nominee of
the board of management. The teacher will be given at least seven school days
written notice of the meeting, the notice should state the purpose of the meeting
and the specific nature of the complaint together with any supporting
documentation. The teacher concerned may be accompanied at any such meeting
by his/her trade union representative/s or a colleague/s subject to an overall
maximum of two.
At the meeting, the teacher should be given a clear statement of the areas/s where
his or her conduct is perceived as unsatisfactory. The teacher will be given an
opportunity to respond and state his/her case fully and to challenge any evidence
that is being relied upon for a decision and be given an opportunity to respond.
Having considered the response the Principal and nominee of the board of
management will decide on the appropriate action to be taken. Where it is decided
Page 15 ⇓
that no action is warranted the teacher will be so informed in writing within five
school days. Where it is decided that disciplinary action at this stage is warranted
the teacher will be informed that he/she is being given a written warning. Where a
written warning is given it should state clearly the improvement required and the
timescale for improvement. The written warning should inform the teacher that
further disciplinary action may be considered if there is no sustained satisfactory
improvement. The teacher will be advised of his/her right to appeal against the
disciplinary action being taken and the appeal process.”
22.       A Stage 2 written warning is active for a period of nine months.
23.       Stage 3 is referred to as a final written warning. This part of the disciplinary process may
be invoked either following unsatisfactory conduct after a written warning, or, there is an
occurrence of a more serious offence. Stage 3 states:
“If having received a written warning, the Principal perceives that the teacher’s
conduct remains less than satisfactory or there is an occurrence of a more serious
offence a meeting will be arranged between the teacher and the Principal and a
nominee of the Board of Management. The teacher should be given at least seven
school days’ written notice of the meeting. The notice should state the purpose of
the meeting and the specific nature of the complaint together with any supporting
documentation. The teacher concerned may be accompanied at any such meeting
by his/her trade union representative/s or a colleague/s subject to a maximum of
two.
At the meeting the teacher should be given a clear statement of the areas/s where
his or her conduct is perceived as unsatisfactory. The teacher will be given an
opportunity to respond and state his/her case fully and to challenge any evidence
that is being relied upon for a decision and be given an opportunity to respond.
Having considered the response the Principal and the nominee of the board of
management will decide on the appropriate action to be taken. Where it is decided
that no action is warranted the teacher will be so informed in writing within five
school days. Where it is decided that disciplinary action at this stage is warranted
the teacher will be informed that he/she is being given a final written warning.
Where a final written warning is given it should state clearly the improvement
required and the timescale for improvement. The final written warning should
inform the teacher that further disciplinary action may be considered if there is no
sustained satisfactory improvement. The teacher will be advised of his/her right to
appeal against the disciplinary action being taken and the appeal process.”
24.       A final written warning will be active for a period not exceeding twelve months. The
record will be removed from the file after the twelve-month period subject to satisfactory
improvement during the period.
25.       The Stage 4 process is stated as follows: -
Page 16 ⇓
“If it is perceived that the poor work or conduct has continued after the final written
warning has issued or the work or conduct issue is of a serious nature a
comprehensive report on the facts of the case will be prepared by the Principal and
forwarded to the board of management. A copy will be given to the teacher.
The board of management will consider the matter and will seek the views of the
teacher in writing on the report prepared by the Principal. The board of
management shall afford the teacher an opportunity to make a formal presentation
of his/her case. The teacher should be given at least ten school days’ written notice
of the meeting. The notice should state the purpose of the meeting and the specific
nature of the complaint and any supporting documentation will be furnished to the
teacher. The teacher concerned may be accompanied at any such meeting by
his/her trade union representative/s or a colleague/s subject to a maximum of two.
The teacher will be given an opportunity to respond and state his/her case fully and
to challenge any evidence that is being relied upon for a decision and be given an
opportunity to respond. Having considered the response the board of management
will decide on the appropriate action to be taken. Where it is decided that no action
is warranted the teacher will be so informed in writing within five school days.
Where following the hearing it is decided that further disciplinary action is
warranted the board of management may avail any of the following options;
• deferral of an increment
• withdrawal of an increment or increments
• demotion (loss of post of responsibility)
• other disciplinary action short of suspension or dismissal
• suspension (for a limited period and/or specific purpose) with pay
• suspension (for a limited period and/or specific purpose) without pay
• dismissal.
The board of management will act reasonably in all cases when deciding on
appropriate disciplinary action. The nature of the disciplinary action should be
proportionate to the nature of the issue of work or conduct issue that has resulted
in the sanction being imposed.”
Appeal
26.       Scope for appeal of any decision made under the DES Circular 60/2009 is laid out within
the Circular. It states: -
“It will be open to the teacher to appeal against the proposed disciplinary action. In
the case of a sanction being imposed at Stage 1 the appeal will be to a nominee of
the board of management. In the case of a sanction being imposed at Stage 2
and/or Stage 3 of these procedures the appeal will be heard by the board of
Page 17 ⇓
management. In the case of a sanction being imposed under Stage 4 of the
procedure, an appeal will be to a disciplinary appeal panel appointed by the board
of management.”
27.       Accordingly, in the instant case, the applicant’s appeal would lie to the Board of
Management – the same Board of Management which had already made a finding of
inappropriate behaviour against him. The circular states specifically that it seeks to
address perceived inappropriate behaviour. One of the general principles set out is that
every teacher is personally accountable for his/her own behaviour and work performance.
28.       Early intervention at the appropriate level to address perceived inappropriate behaviour is
desirable for all parties so as to minimise the risk of having to escalate sanctions as
provided for in these procedures. The general principles underpinning the procedures also
states that every effort will be made by the principal to address alleged or perceives
shortcomings in work and conduct through informal means without invoking the formal
disciplinary procedures.
29.       While the disciplinary procedures set out in Circular 60/2009 supersede the earlier
disciplinary procedures of 2000, the procedures for complaints by parents or students
agreed in 2000 appear to be still extant. There is a misalignment between the two
procedures. The complaints procedure and the disciplinary procedure in 2000 are
perfectly aligned. If a complaint is upheld, then a charge could be levelled against the
teacher under the disciplinary code.
30.       The scope of the 2000 disciplinary procedures was for the investigation of serious charges
against a teacher of neglect of professional duties or other serious charges relating to the
schoolwork of the teacher made by school management. If following the upholding of a
complaint, a charge of serious misconduct or inappropriate behaviour is to be made, that
falls to be dealt with under stage 3 of the disciplinary procedures 2000. Under that
section in 2000, the charge would have to come before the board of management and the
persons who had conducted the investigation into the complaint would be excluded from
the board of management considering the charge.
31.       Under Stage 3 of the 2000 proceedings the board would have to consider whether the
conduct which the teacher had engaged in amounted to inappropriate behaviour. The
board could conclude that it did not amount to inappropriate behaviour or it could
conclude that the charge of inappropriate behaviour warranted further investigation. 3.2
requires that the teacher should be informed that the investigation is proceeding to Stage
3 which involves a formal hearing of the board and may lead to disciplinary action up to
and including dismissal.
32.       The teacher should be supplied with a copy of any written evidence relevant to the charge
of inappropriate behaviour. The teacher should be requested to supply a written
statement to the board of management in response to the charge. The teacher should be
afforded an opportunity to make a formal presentation of the case to the board of
Page 18 ⇓
management. The board of management may also arrange a meeting with any other
party involved if it considers such to be warranted.
33.       The principal may only attend at a board of management meeting in order to give
evidence and should not be present at the meeting during the board’s deliberation on its
decision. In short, what should happen following the upholding of a complaint, is a
decision to charge a teacher under the disciplinary code and where the concern of the
board would be to decide whether or not the conduct found to have been engaged in by
the teacher amounts to inappropriate behaviour, it is open to the board to decide that the
charge is unjustified, or is unproven or is substantiated, and accordingly take no action,
or take disciplinary action, as set out in s. 3.5. If the charge of inappropriate behaviour is
upheld, the board of management may implement disciplinary action which may include:
an oral warning, a written warning, a final written warning, suspension with pay,
suspension without pay, demotion, other disciplinary action short of dismissal, or
dismissal. The steps in the implementation of disciplinary action should be progressive.
Thus, having found the complaint to be justified, a range of sanctions was open to the
board, under the 2000 disciplinary procedures.
34.       In such a hearing, it would have been open to the applicant to argue that the conduct
found as a matter of fact to have occurred, did not amount to inappropriate behaviour.
Stage 3 of the 2009 proceedings are markedly different. There is only one sanction at
issue, that being a final warning letter. None of the other less draconian sanctions are
available.
35.       The main changes effected by the Disciplinary Procedures of 2009 is to put the
procedures on a statutory footing and to afford the teacher the right to an internal appeal
mechanism at each stage of the Disciplinary Process. The Disciplinary Procedures no
longer refer to a “charge” but rather to allegations or complaints of “inappropriate
behaviour”. No-one appears to have adverted to the potential difficulties which might
arise from the disconnection of the Complaints Procedure from the Disciplinary Procedure.
Chronology of Events, Facts and Findings
36.       These proceeding centre around incidents which occurred on the Thursday 8th May 2014
in which the applicant is alleged to have called a 15-year-old student “AB” a “little bitch”.
A further incident is alleged to have occurred between the applicant and “AB” occurred on
the Friday 9th May 2014.
37.       On Monday 12th May 2015 “AB”’s mother rang the school to register a complaint against
Mr Dillon. This complaint outlined that “AB” had been called an offensive name and set
out details of the incidents. Mr Dillon has at all times stated that he did not use the
offensive term.
38.       On learning of the complaint, the Deputy Principal, according to his statement, called the
mother back to inform her that there was a Complaints Procedure for parents when they
had a difficulty with a teacher and he asked her without prejudice to her right to use this
if she would prefer that either the Deputy Principal or the Principal pursue the matter.
Page 19 ⇓
According to the statement she was amenable to that course. The Deputy Principal told
her that she could always go back to the Complaints Procedure if necessary.
39.       Later that morning, according to his note, the Deputy Principal interviewed “AB”.
According to his statement “AB” outlined the events as follows: -
““AB” said that on Thursday Mr Dillon called him a “little bitch”. He was late for late
for class. He had been talking to Mr Brett. AB said he was sorry for being late and
got given out to. He had no paper to write on and asked “CD” for some paper. He
was given out to again for disrupting the class. Mr Dillon asked a question and
Harry felt ignored. He had his hand up and said he knew the answer. Mr Dillon said
‘you little bitch’ and sent him to the study hall about 10 minutes into class. He said
“CD” heard this.
On Friday, CSPE was about to start. Mr. Dillon called “AB” aside and told him that
he would be kicked out of his lass for the next three weeks because his behaviour
was disgraceful. “AB” said to Mr. Dillon that he was not allowed to call him a “little
bitch”. Mr. Dillon said he did not and “AB” told Mr. Dillon that he was a coward. He
shut the door in his face.
“AB” said he was a bit of a messer in class but Mr. Dillon makes jokes and people
react in different ways, but he feels picked on.”
40.       The deputy headmaster according to his statement then interviewed another boy, “CD”, in
the class and asked him had he heard any teacher say anything to AB. “CD” said that on
Thursday he heard Mr. Dillon say to AB “to stop whining you little bitch”. At the time, it
was said he thought it was funny, but he thought it was a very strange thing for a teacher
to say. AB was sent out of the class.
41.       His statement further stated that, on Friday, he heard AB arguing with the teacher at the
door and the teacher was saying it was no way to enter his classroom. This was in the
prefabs. AB said to the teacher “You called me a bitch”, and the teacher replied that he
did not, and then AB said to the teacher “you are acting as a coward”. He feels the
teacher in question does pick on AB and does not treat all the boys equally.
Stage 1 of the Complaints Procedure
42.       On the morning of the 21st May, the applicant and one of his teaching colleagues, who is
the teacher’s representative on the Board of Management, met the principal of the school
to discuss the oral complaint made by “AB”’s mother.
43.       On the 26th May, a meeting took place between the principal and the two parents of AB
in the principals’ office and the applicant complains that he has received no
contemporaneous date or memo of such meeting. On the 26th May, there was a meeting
between the parents of AB and the applicant who was accompanied by the same teaching
colleague, with a view to resolving the complaint in accordance with Stage 1 of the
complaints procedure. It appears that then and at the later stage, Stage 2, the parents
were seeking an apology for the remarks made. It is agreed that the complaint was not
Page 20 ⇓
resolved because Mr. Dillon the applicant denied that he used the expression alleged by
the pupil.
Stage 2 Complaints Procedure
44.       On the 8th June 2014, the parents wrote to the secretary of the Board of Management in
accordance with 1.4 of the complaints procedure, pointing out that the complaint had not
been resolved because of the applicants’ denial of the use of the language alleged. The
parents invoked Stage 2 of the complaints procedure and attached to the letter of the 8th
June were details of the incidents with “AB” and the applicant on the 8th May 2014 and
the 9th May 2014. The formal details lodged with the Board of Management state: -
“On Thursday the 8th May 2014, AB and another boy had arrived late to CSPE class
because he was talking to his history teacher Mr. Brett prior to class. AB apologised
to Mr. Dillon for being late to class, and Mr. Dillon gave out to AB but said nothing
to the other boy. After AB sat down, Mr. Dillon told the class to take out a piece of
paper, “AB” asked another boy for some paper, as he had left his copybook in his
locker. Mr. Dillon shouted at AB that he was disrupting the class. Mr. Dillon then
asked the class a question about the Dáil, none of the class knew the answer and
nobody except “AB” had their hand up. Mr. Dillon ignored him and “AB” said the
answer out loud to the class. Mr. Dillon then told “AB” never to speak without being
asked, then he said to “AB” that he was he was continually disrupting the class and
that “AB” was always moaning and that he was ‘a little bitch’ and told him to leave
the class. “AB” left the class and went to the study hall”.
9th May 2014
On the 9th May 2014, “AB” was leaving school early to play for the school cricket
team. “AB” went to Mr. Dillon before CSPE class to tell him that he would not be in
class as he was playing cricket for the school team. Mr. Dillon called “AB” aside at
the back of the class and told “AB” that he would be kicked out of the class for the
next three weeks because his behaviour was disgraceful. “AB” then said to Mr.
Dillon that he was not allowed to call him “little bitch”. Mr. Dillon said he did not,
and “AB” told Mr. Dillon that he was a coward. Mr. Dillon then shut the door in
“AB’s” face.
Previously I had spoken to Mr. Dillon at a parent teacher meeting where Mr. Dillon
had called “AB” a “stupid twat”. Mr. Dillon denied using this expression but did say
that he did call students “twits”. Mr. Dillon over the last three years had regularly
mispronounced “AB’s” surname and found this quite amusing. Again, I spoke with
him at the parent teacher meeting but Mr. Dillon denied this.
45.       On the 10th June, the principal of the school wrote to the applicant, attaching a copy of
the letter of complaint received from the parents and notifying the applicant that the
matter would be brought to the attention of the Board of Management that evening,
Tuesday the 10th June at a special meeting. He was also informed that no discussion
would take place of either the content of the complaint or complainant. The Board would
Page 21 ⇓
be solely discussing the matter in reference to the agreed complaints procedure. The
applicant was later furnished with an email of the same letter, of which he is most
suspicious because he does not have an email.
46.       The minutes of the Board meeting of Tuesday the 10th June records:
“M. Daly (principal) advised the Board that he had received a letter dated the 8th
June 2014, from (AB’s parents), asking that a matter concerning their son, (AB),
and Mr. Pierce Dillon, be investigated under Stage 2 of the complaints procedure.
M. Daly read out the letter to the Board, and the record provided by the parents,
and said that this material had also been forwarded to Mr. Dillon by email and by
hard copy. M. Daly distributed a copy of the Complaints Procedure to each member
of the Board. The chair went through the various stages and asked if the Board was
happy that the matter should be dealt with under Stage 2 of the procedures. The
Board agreed that the matter should be dealt with under Stage 2. The Board then
agreed that Mr. Declan Mowlds and Mrs. Margaret Gavin should constitute the
representatives authorised by the Board to address the matter under Stage 2.3 of
the procedure.”
47.       On the 19th August 2014, the authorised representatives wrote to the applicant, Mr.
Dillon, advising that they were now ready to have a meeting as provided for in 2.3 (b) of
the complaints procedure, and advising him that he had already been furnished with a
copy of the complaint and the procedures. The suggested meeting date was Wednesday
27th August 2014.
48.       For reasons not explained on affidavit, the meeting appears to have occurred on the 3rd
September at the Conrad Hotel. The notes of the meeting exhibited show that the
authorised representatives met first with the applicant Mr. Dillon at 2 p.m. and thereafter
met with the parents at 3:15 p.m. According to the notes of the meeting, the applicant
flatly denied that he had used the phrase complained of. He also complained that he was
not being afforded fair procedures in that he did not get a copy of the original phone call
from AB’s parents and he objected to what he termed, the parallel investigation carried
out by the deputy principal. He pointed out that only one student was alleged to have
heard the comment from a class of 24. The parents were adamant that the remark had
been made; that their son had a very good memory, and that he had been backed up by
another student. The parents sought an admission that the phrase was used, and an
apology for their son.
49.       On the 10th September 2014, the authorised representatives of the CUS Board of
Management wrote to the applicant in accordance with stage 2.5 of the complaints
procedure. They set out the fact of the meeting. They confirmed that they had not been
able to resolve the issue pursuant to Stage 2 of the complaints procedure. They thanked
the applicant for his attendance, and acknowledged the difficulty of his position and
recorded appreciation for his cooperation in the process. Finally, they advised him that
they intended to inform the Board of Management that they were unable to resolve the
matter.
Page 22 ⇓
50.       On the 17th September 2014, “AB’s” parents wrote to the Board of Management referring
to the unsuccessful attempted resolution at Stage 2 and requesting that the complaint be
progressed to Stage 3 of the complaints procedure. This letter was sent within ten school
days of being notified of the lack of resolution of the complaint process at Stage 2.
Stage 3 Complaints Procedure
51.       On the 25th September 2015, the principal and secretary of the Board of Management,
Martin Daly, wrote to the applicant advising him that the parents had invoked Stage 3 of
the complaint process and further advising him that the Board would consider that
request at its meeting on Monday 6th October.
52.       On the 1st October 2014, the applicant wrote a lengthy letter to Mr. Frank Daly,
chairperson of the Board of Management. He wrongly refers to the letter of the 10th
September from the authorised representatives as having been sent to him by the
chairperson of the Board of Management. He then, despite having cooperated with the
process up to that point, sets out a number of complaints about the process, maintaining
that the complaints procedure of 2000 had not been adhered to. He identified what he
considered to be procedural flaws in the process. He complained, wrongly in the court’s
view, that the letter of complaint of the 8th June was not signed. He complained that
documents furnished to him on the 8th June 2014 differed from the document that he
was handed at the Stage 2 hearing in September 2014. He complained that there were
two versions of the complaint, and therefore he did not know what complaint it was he
had to answer. He complained that the enquiries made by the deputy principal, amounted
to a parallel investigation, which tainted and prejudiced the complaints procedure. His
letter lists six complaints: -
(i) The complaint was not lodged with the complainant with the Board of Management
as per Stage 2, procedure 2.1
(ii) The authorised representatives did not furnish me with a copy of the written
complaint as per Stage 2, procedure 2.3.
(iii) There was no compliance with Stage 2, procedure 2.3 due to the failure to comply
with procedures 2.2 and 2.1 above.
(iv) A copy of the written and signed complaint was only furnished to me at the Stage 2
hearing on the 3rd September 2014. This is totally contrary to the complaints
procedure which provided that: -
“Only those complaints which are written and signed by the complainants
may be investigated through stage two and stage three”. It follows that the
stage two should not have commenced until the written complaint was
furnished to me in total.
(v) The verbal complaint was made on the 12th May 2014, yet I was not informed
about the complaint until the 21st May 2014. It should not have taken nine days to
notify me about the complaints. This constitutes serious delay.
Page 23 ⇓
(vi) It emerged at the hearing on the 3rd September 2014 that there was in existence
on the file other communications relevant to the complaint against me and that
these were never made available to me in advance of the hearing and indeed were
only furnished to me after the hearing when I received a letter dated the 5th
September 2014 from Fr. Martin Daly, principal. (The court takes it that this is a
reference to the note of the deputy principals’ conversation with a second student
who had allegedly witnessed the events.) This is another breach of the rules of
natural justice which make it incumbent on the authorised representatives to
provide me with a copy of everything that it was going to put to me and rely on, in
investigating the complaints against me.
53.       The applicant went on to describe the investigation that had happened to date as
resembling the operation of a kangaroo court. He alleged that he had been seriously
prejudiced and that he was reserving his rights against the school and Board of
Management “for the manner in which it conducted the investigation of the complaint
against me”. He further alleged that as the entire process was fundamentally flawed, it
could move to Stage 3 without contaminating that part of the process as well. He asked
the chairman to treat the letter as a “reservation of rights letter”. He concludes by saying
Please also take notice that if this investigation proceeds to Stage 3 of the complaints
procedure, I will seek to have any findings judicially reviewed on the grounds that the
whole basis of the investigation to date is flawed and is a breach of the complaints
procedure and the rules of natural justice”.
54.       The Board of Management considered the request of the parents to have the complaint
progressed to Stage 3, and the applicants’ letter of complaint of the 1st October 2014 at
its meeting on the 6th October 2014. The teachers’ representative on the Board was
asked to leave the meeting as he had been the person who had attended with the
applicant both at the Stage 1 and Stage 2 hearings. The teachers’ representative was
unwilling to leave and an issue about legal advice was raised.
55.       By letter dated the 17th November 2014, the chair of the Board of Management replied to
the applicants’ letter of the 1st October. Puzzlement was expressed that the applicant
having complied fully with Stages 1 and 2 of the complaints procedure was now objecting
to the entire process. His complaints of failure to comply with the complaints procedure
was rejected, as was the allegation of some parallel investigation by the deputy principal.
The letter then specifically addressed the six points raised by the applicant in his
correspondence and rejected them, giving reasons. The applicant suggests that the
reference in the last paragraph of that letter by the chairman, to the fact that the
applicant had made no reference at any point to the serious complaints that had been
made against him, was indicative of prejudice or bias on behalf of the chair towards him.
56.       On the same date, a board meeting was held at which the question of a conflict of interest
of the teachers’ representative on the Board was again discussed. The teachers’
representative had accompanied the applicant to various meetings including the Stage 1
and Stage 2 meetings, and the concern was that that might give rise to at least a
Page 24 ⇓
perception of bias on his part in dealing with the complaint as a member of the Board of
Management. The teachers’ representative was not persuaded, but he left the meeting
reserving his position. Thereafter, a decision was taken that the complaint should be
progressed to Stage 3 of the complaints procedure.
57.       On the 27th November, the chairman of the Board of Management again wrote to Mr.
Dillon notifying him that at its Board meeting of Monday the 17th November 2014 the
Board of Management had considered the request from the parents of AB to proceed to
Stage 3 of the complaints procedure and had concluded that the complaint warrants
further investigation and was notifying him that the investigation was then proceeding to
the next stage in accordance with Stage 3.2 of the procedure, the applicant was
requested to supply a written statement to the Board in response to the complaint. The
Board of Management also offered him the opportunity to make a formal presentation of
his case to the Board at its next meeting which was due to take place on Tuesday the
27th January 2015. The letter also notified him of his entitlement to be accompanied by a
colleague or union representative at any such meeting. The letter also referred to the fact
that all relevant documentation was enclosed. The applicant was asked to confirm his
attendance at the meeting by Friday the 9th January 2015.
58.       By letter dated the 12th December 2014, the applicant issued a rejoinder letter to the
letters sent by the chairman on the 17th November. In the course of the letter he again
complains of breach of fair procedures and states that he would not be participating
further in “your procedure” and he again reserves his rights in that regard. In respect of
the letter of the 27th November 2014, notifying the applicant of the Stage 3 meeting on
the 27th January 2015, the applicant made no reply until the 24th January 2015. That
letter points out a list of alleged discrepancies in documentation furnished to him, and a
list of allegedly missing documents. The letter also points out that 3.2 (f) states that the
meeting/hearing of the Board of Management at the Stage 3 process will take place within
fifteen days of the meeting referred to in Stage 2.3, that is the meeting with the
authorised representatives.
59.       The applicant in his letter characterises the time limit as mandatory, whereas in fact the
word “must” is not used in the procedures. The applicant also complains of the removal of
the teacher representative from the Board dealing with the Stage 3 process. The Stage 3
complaint hearing scheduled for the 27th January was deferred until the 24th February
2015.       The court has no evidence before it as to the precise reason for deferral. In any
event, on the 9th February 2015, the applicant was notified by letter that the Stage 3
hearing would take place on Tuesday the 24th February at 7:45 p.m.
60.       The applicant was again invited to make a formal presentation of his case to the Board at
the meeting of the Board of Management. He was also advised that should be wished to
do so, he was entitled to be accompanied and assisted by a colleague or friend at the
meeting. He was asked to confirm his attendance by the 13th February 2015.
61.       On the 16th February 2015, the chairman of the Board replied to the applicants’ letter of
complaint of the 24th January about discrepancies in documentation and missing
Page 25 ⇓
documentation. Explanations were offered in respect of all issues raised and in respect of
the time limits in the complaints procedure. It was contended that the time limits are not
strict, and it was suggested that much of the delay which had occurred had been caused
by the need to reply to queries which the applicant had raised. In this letter of the 16th,
the applicant was advised that the meeting would take place on the 24th February at
7:45 p.m. He was urged to reconsider the position he had taken and to attend the
meeting as he was entitled to do, so that he could present in person his account and
understanding of what took place and his response to the complaint. The applicant was
specifically advised that in the event that he decided not to attend the meeting it would
not be adjourned and would proceed in his absence. On the 17th February 2015, the
applicant wrote to the chair of the Board stating: -
“Due to the failure of the Board of Management of CUS to furnish me with all
relevant documentation as requested in my registered letters of 12th December
2014 and 24th January 2015, which is my right under the agreed complaints
procedure and in natural justice and the continuation of the unlawful exclusion of
the teacher representative Mr. Vincent McMorrow from the Board meeting on the
24th February 2015, I am not in a position to make a full and informed
presentation to the Board at its scheduled meeting on the 24th February 2015.
Further, it will be approximately 90 days since the complaint was lodged to the
Board and as the agreed complaints procedure states at 3.2 (f) the Board of
Management must hold the meeting/hearing within fifteen days which clearly is at
total variance to the agreed complaints procedure and the Board of CUS have
utterly failed to date to give any valid explanation as to the reason for this
inordinate and inexplicable delay which is a serious breach of the agreed complaints
procedure and once again I believe strongly in the legal idiom ‘justice delayed is
justice denied’”.
The court notes that the applicant misquotes rule 3.2(f) for a second time in this letter,
asserting that the time limits are mandatory.
62.       By letter dated Monday the 23rd February 2015, the day before the Stage 3 Complaints
Procedure Board meeting, Mr. Dillon sent a further letter to the chair of the Board of
Management. In this letter, he complains that he only got the letter of the 16th February
on Sunday the 22nd February because he was away during the midterm break. He asked
that the Board would only correspond with him during school days and not during school
holidays. He again complains about alleged discrepancies in the documentation. He
maintains a right to see and cross-examine any witness statement of the independent
witness to the events. He complains that the initial redaction and later unveiling of the
name of the student witness and the use of this evidence, rendered the process
unconstitutional.
63.       In this correspondence, the applicant again sets out his complaint about a discrepancy in
the documents, pointing out that on the 5th September 2014 he was handed a 28 – page
document and on the 27th November 2014, he received a 39 – page document.
Page 26 ⇓
64.       He also complains that on the 16th February he was provided with notes from the
investigating committee for the first time. He asserted a right to see and cross–examine
any witness statement of the student who corroborated “AB’s” complaint. He asserts that
the fact that the identity of the student was first of all redacted and then revealed
indicated that the evidence was to be used against the applicant in the complaint
procedure. He asserted that he had been “reliably informed” that the complaint procedure
is now unconstitutional in these circumstances. He challenged the absence of
contemporaneous notes of a meeting between the principal and the complainants on the
21st May 2014 and asserted that this was contrary to school policy. He complained that
the failure to provide him with the minutes of relevant Board of Management meetings in
respect of the complaint prior to February was contrary to his rights under the agreed
complaint procedure and under the Data Protection Act. He challenged the copy of an
email dated the 10th June 2014 furnished to him on the 23rd January 2015, as not being
a true copy. He complained that all documents were not furnished to him in good faith but
were fed to him in a slow fashion and on a “need to request basis”. He complained that
out of a class of 24 students, the deputy principal only identified one witness who he
complained was a scholarship student recommended by the deputy principal. Finally, he
again complained of the delay in processing the complaint which he attributes to the
Board of Management of CUS. This delay he complained had seriously prejudiced his right
to a fair hearing. Once again, he reserved his position and stated that he will seek to have
any findings judicially reviewed on the grounds that the whole basis of the investigation to
date was seriously flawed and was a breach of the complaints procedure and the rules of
natural justice.
Board of Management Hearing of Parent’s Complaint
65.       The meeting of the Board of Management took place on the 24th February 2015.
According to the minutes of that meeting, the teacher member of the board was absent,
the chair, Frank Daly, explained that it was a single item agenda – complaints procedure,
Stage 3, in regard to the complaint of the parents of AB about the applicant Mr. Dillon.
The state:
The chair outlined the complaints procedure and explained the purpose of the
meeting. He outlined the history of the matter and that a resolution had not been
achieved under Stage 1 or Stage 2. He indicated that the board would be meeting
the parents but that the applicant had declined to attend the meeting.
The Board of Management was supplied with all correspondence/submissions up to
and including a submission from Mr. Dillon dated 23rd February 2015 and was
given time to read the submissions. In his role of secretary, M. Daly (the principal)
went through the various submissions and correspondence and outlined the
sequence of same.
The Board then invited the parents of AB to attend the meeting. They were asked
to outline the sequences of events from their point of view on the 8th and 9th May
2014 and were also offered the opportunity to elaborate if they needed to on the
complaint of the 8th June 2014. The chair outlined to the parents and the Board
Page 27 ⇓
that the Board would only be concerning themselves with what happened on the
8th and 9th of May and the Board would not be relying upon or discussing any
matters relating to reported witnesses.
After (parents of AB) had outlined their complaint, they left the meeting and the
Board considered whether or not the complaint was substantiated. Following some
further clarifications and discussions, it was agreed unanimously that the complaint
dated the 8th June 2014 from (parents of AB) was substantiated and that Mr. Dillon
engaged in inappropriate behaviour and language in relation to AB on the 8th and
9th May 2014. The Board also directed that the matter be taken up under Stage 3
of the disciplinary proceedings. The Board agreed that the chair would make a
decision regarding a nominee of the Board to such a disciplinary committee in
accordance with those procedures.”
66.       While the court is satisfied that the Complaint Procedure agreed between the teacher
union and the secretariat of Boards of Management was never intended to be as legalistic
as Mr. Dillon contends, the court is however, satisfied, that there are some deficiencies in
the process as conducted by the Board of Management.
67.       First of all, they reached a conclusion on the facts without having any direct evidence of
the events giving rise to the complaint. While it is understandable that the adults would
not want to involve a fifteen-year-old in the complaints process, it should have been
possible for the board to have direct evidence from “AB” either in person or in the form of
an attested written statement which could have been furnished to the applicant. Instead,
they proceeded on the basis of the hearsay evidence of his parents. According to the
minutes of the Board meeting, the Board specifically discounted the potentially
corroborative evidence of the second student who allegedly witnessed the interactions
between the applicant, Mr. Dillon, and AB.
68.       A more serious defect, it appears to the court, is that the Board of Management exceeded
its powers under 3.5 of the Complaints Procedure. That provision empowers the Board of
Management to either uphold or reject the complaint. If, as the Board did, they uphold
the complaint, that is simply a finding of fact that the matters complained of occurred. It
appears to the court that the Board fell into error by going further than merely upholding
the complaint. It made a finding that the applicant had engaged in inappropriate
behaviour and language in relation to AB on the 8th and 9th of May 2014. This was
outside their powers under the Complaints Procedure. What 3.5 of the Complaints
Procedure authorised the Board to do was that in the event that they concluded that the
upheld complaint prima facie amounted to inappropriate behaviour and language, was to
transfer that charge to the disciplinary process for investigation as to whether or not the
facts found amounted to inappropriate behaviour and language.
69.       As we have seen, the scope of the 2000 Disciplinary Procedures included the use of the
disciplinary procedures to determine the appropriate disciplinary action in circumstances
where an investigation by another agency or another procedure indicated that such action
might be warranted. Under Stage 3 of the disciplinary procedures of 2000, the applicant
Page 28 ⇓
would be charged with inappropriate behaviour and inappropriate language before the
Board of Management. While in the circumstances of this case, it would not be open to
him to challenge the finding of fact made, it would be open to him to argue that those
facts did not amount to inappropriate behaviour or inappropriate language. As we have
seen, the Stage 3 procedure under the 2000 disciplinary procedures required the board
first of all to consider whether the charge warranted further investigation. If it did, then
having taken all of the steps set out at 3.2 and having excluded the principal from its
deliberations as required by 3.2(f), the Board could decide that the charge was unjustified
or unproven and take no action, or alternatively, if the charge of inappropriate behaviour
and language was made out, and the charge was upheld, then the Board could implement
disciplinary action ranging from an oral warning to dismissal.
70.       In the Disciplinary Procedures of 2009 the Stage 3 process is completely different to
Stage 3 of the 2000 Disciplinary Procedures. The 2009 procedures refer to the giving of a
final written warning. The 2000 Procedures refer to an investigation by the Board of
Management. The Board of Management ignored this difference and simply referred the
matter to stage 3 of the new Disciplinary Procedures 2009. All other things being equal, it
appears to the court that this might not have been fatal if they had referred it as an
allegation of inappropriate behaviour, because stage 3 of the 2009 disciplinary procedures
permits a final written warning to be invoked where there is an occurrence of a more
serious offence, but there is no escaping the fact that Stage 3 of the 2000 Disciplinary
Procedures required that a teacher be charged with an offence rather than entering the
disciplinary process with a finding of guilt already made against him.
71.       In any event, on the 26th February 2015, the applicant was notified by letter that the
Board of Management considered the complaint of AB to have been substantiated and
that the applicant “engaged in inappropriate behaviour and language in relation to AB on
the 8th and 9th May 2014 and that in accordance with s. 3.5 of the Complaints Procedure,
the Board has directed that the matter will now be dealt with under the provisions of
Stage 3 of the disciplinary procedures.”
Inappropriate Behaviour
72.       The applicant avers that he was disturbed and deeply upset to read that the Board of
Management had found him guilty of “inappropriate behaviour and language in relation to
AB on the 8th of May and 9th of May 2014” and contends that inappropriate behaviour in
relation to a student in the context of a student/teacher relationship has a sinister
connotation. He avers that it suggests, or is likely to be understood as referring to,
serious wrongdoing of an abusive kind. The court disagrees that the phrase “inappropriate
behaviour” has such sinister connotations. In fact, the general principles underpinning the
2009 procedures refers specifically to “inappropriate behaviour” in the fourth paragraph of
the general principles of the 2009 procedures. It states: -
“Every teacher is personally accountable for his/her own behaviour and work
performance. Early intervention at the appropriate level to address perceived
inappropriate behaviour is desirable for all parties so as to minimise the risk of
having to escalate sanctions as provided for in these procedures”.
Page 29 ⇓
73.       The very purpose of the disciplinary procedures is to address “inappropriate behaviour”.
The range of potential inappropriate behaviour is wide. It would probably be inappropriate
behaviour for a teacher to light up a cigarette in front of his class. It would probably be
inappropriate behaviour for a teacher to conduct a class under the influence of alcohol or
drugs. It would probably be inappropriate behaviour for a teacher to give a student a
cigarette or alcohol. It would probably be inappropriate behaviour for a teacher to refuse
to correct a student’s homework, or to ban a child from class without cause. The court
merely offers these examples to illustrate that “inappropriate behaviour” does not have
the sinister connotations attributed to it by the applicant and that it is in fact
inappropriate behaviour that the disciplinary code of 2009 is designed to regulate.
74.       Having been informed of the finding of the Board, the applicant sought and received the
minutes of the Board of Management meeting of the 24th February 2015. Despite the
applicants’ assertions of unconstitutionality, lack of fair procedures and natural justice, his
assertion that the complaints hearing was a kangaroo court and his repeated statement of
intent to judicially review any adverse findings against him, the applicant did nothing
upon receipt of the decision of the Board of Management.
75.       It appears to the court that the complaints procedure, unlike the disciplinary procedure
contained in DES Circular 60/2009 is a matter of contract and not a matter of public law,
and while the applicant would not have been entitled to a judicial review, it was certainly
open to him if he felt aggrieved by the process and the outcome, to seek injunctive and
declaratory relief by way of plenary action, to inter alia, to prevent the matter proceeding
to disciplinary action. He chose not to do so.
Disciplinary Process
76.       On the 13th March 2015, a letter was hand delivered by the principal notifying the
applicant that further to the decision of the Board of Management of the 26th February
2015, he was being invited to a meeting under Stage 3 (final written warning) of the
Disciplinary Procedures, on Friday the 27th March 2015 at 1:00 p.m. The 2009
procedures say that the principal and a nominee of the Board of Management shall
attend. Mary McPhilips had been nominated by the Board of Management. Arrangements
were made to have his class supervised to facilitate the meeting. The letter then states: -
“The purpose of the meeting is to discuss what if any disciplinary action at this
stage is warranted in light of the Board of Management’s decision to substantiate
the complaint made by (parents of AB) on the 8th June 2014”.
The letter notified Mr. Dillon that he was entitled to be accompanied by a trade union
representative or colleagues of his choice to a maximum of two, and he was asked to
confirm his attendance and to indicate who would be accompanying him. The content of
the letter suggests that the disciplinary panel was open to an argument that no
disciplinary action was required.
77.       The applicant wrote back on the 18th March complaining that the letter of the 13th was
delivered to him in class and he asserted that that was done for the purpose of
Page 30 ⇓
embarrassing him. Again, the court considers that the applicant may be being
oversensitive in this regard, as no one in the class could have been aware of the content
of the letter. He complained about the delay of seventeen days in notifying him of the
disciplinary hearing. He complains that he had not yet been furnished with the notes of
the Board of Management meeting of the 24th February and he complains that a copy of
the Disciplinary Procedure was not attached. He asserted that the agreed procedure does
not indicate a facility for a final written warning and once again asserts that the
investigation of the complaint is “seriously flawed and in breach of the complaint
procedure and the rules of natural justice”.
78.       By letter dated the 20th March 2015, the applicant wrote to confirm that he would be
attending the disciplinary meeting on Friday the 27th March and notifying the chairman of
the Board of Management that he would be accompanied by his union representative. At
the conclusion of the letter he states: -
“Please note that I will be attending WITHOUT PREJUDICE to my common law right
to natural justice and I still reserve my position in this seriously flawed procedure”.
79.       On the 24th March 2015, the applicants’ union representative wrote to the chairman of
the Board of Management referencing the remarks in the minutes of the Board of
Management meeting which stated, “following some further clarifications and discussions
it was agreed unanimously that the complaint dated the 8th June 2014 was substantiated.
The applicants’ union representative asked who had provided the clarifications and who
had engaged in the discussions in questions, on which the Board concluded that Mr. Dillon
engaged in inappropriate behaviour and language in relation to AB on the 8th and 9th
May 2014”.
80.       Two days before the proposed disciplinary meeting the applicant again wrote to the chair
of the Board of Management reminding him that one of the general principles of natural
justice set out at p. 3 of the DES Circular 60/2009 provide that the disciplinary
procedures are without prejudice to the right of a teacher to have recourse under law to
protect his/her employment. He states that he fully intends to protect his employment
and again criticised the complaints procedure, stating: - “This so – called complaints
procedure which you have run is a shambolic exercise which does not even pay lip service
to the agreed guidelines and I fully intend to expose it and all who endorsed it”. He raised
an issue again about the signing of the complaint made by the parents of AB and again
suggests that the complaints procedure was not properly complied with.
81.       The court has very little evidence as to what transpired at the formal disciplinary meeting
of the 27th March. The complainant avers that he attended the meeting convened by the
school pursuant to Stage 3 (final written warning) of the DES Circular 60/2009 with the
principal and a nominee of the board on the 27th March. He says that the format of the
meeting did not, and was not designed to, address any of the deficiencies specified in his
statement of grounds. Essentially his complaints in the statement of grounds was that the
disciplinary action was not taken in accordance with the DES Circular 60/2009; that he
was not advised in advance of the disciplinary meeting in writing of the precise nature of
Page 31 ⇓
the matters concerned and nor was he given copies of all relevant documentation; that he
was not given the opportunity to examine and challenge all evidence available and call
witnesses or persons providing such evidence for questioning; that he was not given a fair
and impartial examination of the issues being investigated taking into account the
allegations or complaints themselves, the response of the teacher concerned, any
representations made on behalf of the teacher concerned, and any other relevant or
appropriate evidence, factors or circumstances.
82.       The applicant has averred that while he sought to participate as fully as reasonably
possible in the circumstances, it was clear that the hearing was not convened for the
purpose of addressing any of his underlying concerns or of addressing the substantial
procedural deficiencies which stemmed from the fact that no disciplinary hearing/meeting
had taken place pursuant to DES Circular 60/2009. He avers that instead the hearing was
limited to the question of what sanction was to be imposed by the Board of Management.
It doesn’t appear on the evidence that Mr Dillon or his Union representative engaged with
that issue or made submissions to the effect that the conduct complained of was trivial.
He further avers that insofar as the decision-making process regarding the imposition of
sanction was concerned, he believes that the decision to impose a final written warning
had, in reality, been reached.
83.       Unfortunately, the court has no evidence at all from the respondent as to how the formal
disciplinary hearing has been conducted the respondents’ affidavit baldly states that
disciplinary sanction, a final written warning, was imposed following full compliance with
the provisions of the disciplinary procedure and that that decision was not appealed by
the applicant. The respondents’ affidavit is silent as to the manner in which compliance
with the disciplinary procedure was achieved. The court notes that the parties conducting
the disciplinary hearing were Martin Daly, and Mary McPhilips, nominee of the Board of
Management. The court further notes that both parties were in attendance and
participated in the Board of Management meeting which purported to find the applicant
guilty of inappropriate behaviour and inappropriate language and had supported that
decision.
The Aftermath
84.       Two letters issued to the applicant on the 21st April 2015. One was from the chairman of
the Board of Management dealing with the issue raised by the applicant in his letter of the
18th March of the absence of any link or cross–reference in the parents’ Complaints
Procedure of 2000 to the Disciplinary Procedures of 2009. The chairman states: - “As you
are aware there was such a link to the previous disciplinary procedure. In particular,
Clause 3.5 of the complaints procedure states that ‘in the case of a complaint which is
upheld, the matter may be dealt with by the Board under the provisions of Stage 3 of the
agreed disciplinary procedures’”.
85.       The letter goes on to state the previous disciplinary procedure was replaced in 2009 with
a new disciplinary procedure. The letter stated:
Page 32 ⇓
“Stage 3 of the old disciplinary procedure dealt with how a Board of Management
deals with a disciplinary issue, and this section has in effect been replaced with
Stage 4 of the new disciplinary procedure. However, the decision was taken that, in
the case of the current complaint, Stage 4 would not be appropriate as the normal
sanction at Stage 4 is dismissal. Accordingly, it was decided to proceed by way of
Stage 3. However, as the Board had already reached a conclusion in relation to the
complaint, there would have been no point in discussing whether the complaint was
or was not well founded at Stage 3.”
86.       The second letter sent to the applicant on the 21st April was from Martin Daly the
principal and Mary McPhilips, nominee of the Board. It states as follows: -
“The Board, at its meeting of 24th February 2015, agreed unanimously that the
complaint dated the 8th June 2014 from [Parents of AB] was substantiated and that
you engaged in inappropriate behaviour and language in relation to AB on the 8th
and 9th May 2014. The purpose of the meeting, as per the disciplinary procedures
Stage 3, para. (d) was to consider what if any disciplinary action at this stage is
warranted.
As you know, pursuant to Stage 3 of the disciplinary procedures, the nominee of
the Board, Ms. Mary McPhilips, and I met with you and your union representative,
Ms. Maura Collins, on Friday the 27th March 2015. We have given careful
consideration to all that you and Ms. Collins have said to us. The Board of
Management had previously decided that the complaint of [Parents of AB] was well
– founded. Our decision is that you should be given a final written warning. You are
therefore warned that it is expected that there will be no further incidents of this
nature involving you and pupils. It is expected that this will be the case henceforth.
If there is a repetition of this or similar conduct in the future you will face further
disciplinary action, up to and including dismissal.
CUS is a Marist Catholic School which as its mission statement says, has always
been known for the kindness and humanity with which it treats the pupils and for
the high value it places on the quality of relationships. Your behaviour and language
in regard to AB fell far short of what is expected of a teacher in Catholic University
School. We expect that you will relate to all of the pupils in the school in a
respectful and professional manner and that this will be evident in the manner in
which you address them, in your use of language in doing so and in your behaviour
towards them. It is expected that you will follow the procedures of the school in
dealing with any matters that may arise between you and pupils, either in regard to
their performance, or their interaction with you about any matter in the school.
The final written warning will be active for a period of twelve months, and subject
to satisfactory service, will expire at the end of the twelve-month period. You are
entitled to appeal this decision. A decision to appeal should be communicated to the
secretary of the Board within ten working days of receipt of this letter. We hope
that there will be no further reoccurrence of this language or behaviour, and that
Page 33 ⇓
we can expect the highest levels of professionalism and a quality of relating to
pupils consistent with the mission statement and ethos of the school”.
87.       The letter is signed by both the principal, Martin Daly, and the Boards’ nominee, Mary
McPhilips. On the 10th May 2015 by registered post, the applicant wrote not to the
secretary of the Board, but to the chairman of the Board, Mr. Frank Daly. It reads: -
“Dear Mr. Daly,
I refer to your letter dated the 21st April 2015 received at my home address on
Monday 27th April 2015 by ordinary paid post. I wish to register in writing my
decision to appeal the decision of the Board of Management of CUS within the ten
school days of receipt of this decision as stated in the agreed complaint procedure”.
88.       There was much debate in the course of the hearing about the meaning of this letter. The
letter is addressed to the chairman of the Board of Management and specifically refers to
the agreed complaints procedure. The respondent points out that under the agreed
complaints procedure there is no appeal and the decision of the Board of Management is
final. The applicant avers that his reference to the agreed procedure was a slip and that it
was clear that his intention was to appeal the decision made under the disciplinary
procedure provided for by DES circular 60/2009. On balance, the court considers that the
interpretation of the respondent is correct as a matter of probability. The letter is
addressed to Mr. Frank Daly, chairperson of the Board of Management who had written to
the applicant on the 21st April 2015 about the Complains Procedure and its interaction
with the disciplinary procedure. He did not write to the secretary of the Board of
Management who was the person nominated to receive an appeal against the disciplinary
sanction. Secondly, the decision which the applicant asks to appeal is the decision of the
Board of Management of CUS and not the decision of disciplinary panel.
89.       That said, it is clear that the applicant expressed a wish to appeal and under the
disciplinary procedure, he was entitled to appeal and notice of his wish to appeal was
given within the ten working days of the pronouncement of the decision of the disciplinary
body. The applicants’ letter was sent within the school term, and had it been answered
promptly, the court has no doubt that the applicant would have availed of such appeal as
he was entitled to under the disciplinary procedures. The school chose not to reply to the
letter of the 10th May until the 17th September 2015, more than four months later. The
respondents’ explanation for this delay is that the applicant had stated that he did not
wish to receive correspondence during school holidays. The court considers this to be a
spurious reason, particularly in circumstances where other correspondence had been
handed to the applicant in his classroom as recently as the 13th March 2015. The letter of
the 17th September is a two – line letter which states: -
“I refer to your letter of the 10th May 2015.
In accordance with Stage 3.4 of the complaints procedure, the decision of the
Board of Management is final.
Page 34 ⇓
Yours Sincerely,
Martin Daly, secretary CUS Board of Management”.
In this context too, the court observes that the letter of the 21st April 2015 notifying the
applicant of the outcome of the disciplinary procedures does not strictly speaking conform
with Stage 3 of the disciplinary procedures. Stage 3 provides that: -
“The teacher will be advised of his/her right to appeal against the disciplinary action
being taken and the appeal process”.
90.       The applicant was merely told that his decision to appeal should be communicated to the
secretary of the Board. He was not advised of the nature of the appeal process. The court
notes that under the disciplinary procedures, in DES 60/2009, the appeal process against
a Stage 3 (final warning letter) sanction is that the appeal will be heard by the Board of
Management. Thus, the applicants’ appeal from the disciplinary sanction imposed by the
principal, Martin Daly and Mary McPhilips, nominee of the Board, would be to the very
Board of Management that had unanimously already found him guilty of inappropriate
behaviour and inappropriate language and of which both members of the disciplinary
panel were members.
91.       Following receipt of the letter of the 17th September, there was some further
correspondence and some legal jousting between the solicitors representing each party.
The respondent continued to maintain that the applicant was out of time to appeal the
disciplinary sanction and the applicant’s lawyer maintained the disciplinary procedure was
not complete and he was still entitled to his appeals process. Eventually an application
was made ex parte to the High Court on the 30th November 2015 and on Monday the 7th
December 2015, by order of Humphries J., leave was granted to the applicant to apply by
way of judicial review for the following reliefs: -
(i) An order of certiorari quashing the decisions of the respondent that the applicant
engaged in inappropriate behaviour and language in relation to a student on the
8th of May and 9th of May 2014 and imposing a final written warning upon him.
(ii) An order of certiorari quashing the decision of the decision of the respondent
refusing to permit the applicant to appeal against the decision that he had engaged
in inappropriate behaviour and language in relation to a student which refusal was
communicated to the applicant by letter dated the 17th September 2015.
(iii) An extension of time within which to challenge the decision at (D)(i) above.
(iv) A declaration that the disciplinary process conducted by the respondent was carried
out in breach of the DES circular 60/2009 and in breach of the applicants’ right to
natural justice and fair procedures.
(v) A declaration that the decision to impose a final warning upon the applicant was
disproportionate in all of the circumstances.
Page 35 ⇓
(vi) An order restraining the respondent its servants or agents or any other person
having notice of this order from communicating (or permitting to be communicated)
to any third party a statement to the effect, or bearing the meaning, that the
applicant engaged in inappropriate behaviour and language in relation to a student.
(vii) Such further orders as this honourable court may deem appropriate in relation to
the conduct of any disciplinary proceedings arising from the complaint in respect of
the applicants’ alleged conduct on the 8th of May and 9th of May 2014, including
the conduct of any appeal pursuant to DES circular 60/2009.
Submissions on Behalf of the Applicant
92.       The applicant states that the respondent school has failed to abide by the provisions of
the Department of Education and Science Circular 60/2009 (“DES Circular 60/2009”) in its
implementation of a disciplinary process.
DES Circular 60/2009
93.       The applicant argues that the board of management of the school is bound to act in
accordance with current Ministerial policy pursuant to section 15(2) of the Education Act
1998 states in respect of a board of management of a school, that: -
“A board shall perform the functions conferred on it and on a school by this Act and
in carrying out its functions the board shall –
do so in accordance with the policies determined by the Minister from time to time”
94.       The DES Circular 60/2009 was brought into effect under the provisions of Section 24(3) of
the Education Act 1998 which provides that: -
“(3) A board shall appoint teachers and other staff, who are to be paid from monies
provided by the Oireachtas, and may suspend or dismiss such teachers and staff, in
accordance with procedures agreed from time to time between the Minister, the
patron, recognised school management organisations and any recognised trade
union and staff association representing teachers or other staff as appropriate.”
95.       This Circular mandates that the drafting of disciplinary procedures must be done following
a consultation period with all interested parties. The DES Circular 60/2009 also contains
detailed provisions relating to disciplinary matters. It specifically makes reference to a
right of appeal at all stages of the disciplinary process. As such, the applicant submits
that there was a legal duty on the Respondent to afford the Applicant a right of appeal.
Procedures Applying to DES Circular 60/2009
96.       Prior to the enactment of the DES Circular 60/2009 procedures in respect of disciplinary
matters were dealt with by a “Disciplinary Procedure” run in conjunction with a
“Complaints Procedure” both dated the 1st September 2000. These procedures were
created by way of a bilateral agreement between the Secretariat of Secondary Schools
and the Association of Secondary Teachers in Ireland.
Page 36 ⇓
97.       The Complaints Procedure is comprised of a 3-stage process. Stages 1 & 2 are informal
and provide for the consensual resolution of complaints. If these stages fail, stage 3 of
the Complaints Procedure makes provision for a hearing before the Board of Management
of the relevant school. The details of this process are set out at paragraph 3.2. Similarly
Stage 3.2 of the Disciplinary Process provided for a disciplinary hearing convened by the
board of management of a school. The two procedures share a great deal of similarities.
98.       The relationship between the two procedures is set out at paragraph 3.5 of the
Complaints Procedure, which states: -
“In the case of a complaint which is upheld the matter may be dealt with by the
Bard under the provisions of Stage 3 of the Agreed Disciplinary Procedures. In such
circumstance, members of the Board who have acted as authorised representatives
in the investigation of the complaint should not participate in the decisions of the
Board relating to the application of the disciplinary action.”
99.       The Complaints Procedure states that the decision of the Board of Management “shall be
final, except in respect of matters governed by appeals procedures in the Education Act
1998.      ” It is also highlighted that paragraph 3.7 states that “The decision of the Board of
Management shall be binding and final.” The applicant argues that the system in the
Complaints Procedure and the Disciplinary Procedure are in marked contrast to those
provided for by DES Circular 60/2009.
The Procedures Provided for by DES Circular 60/2009
100.       The DES Circular 60/2009 replaces the Disciplinary Procedure of 1st September 2000 n its
totality. It states that “[t]his disciplinary procedure supersedes all existing local and
national disciplinary procedures.”
101.       DES Circular 60/2009 makes no reference to, or provision for interaction with the
Complaints Procedure. There has also been no amendment to the Complaints Procedure
in light of the DES Circular 60/2009. Given that paragraph 3.5 of the Complaints
Procedure still makes reference to the now obsolete Disciplinary Procedure, the applicant
submits that the connection between the two processes has now been severed.
102.       Under the current framework, the teacher is entitled to exercise a right to appeal at all
stages. This is repeatedly stated throughout the DES Circular 60/2009. It is expressly
stated at under the heading “General Principles” at page 2 of the DES Circular 60/2009, it
states:-
“The essential elements of any procedures for dealing with disciplinary issues are
that they be rational and fair, that the basis for disciplinary action is clear, that the
range of penalties that can be imposed is well-defined and that an internal appeal
mechanism is available.”
Inappropriate Behaviour in Relation to a Student
Page 37 ⇓
103.       The applicant argues that a finding of “inappropriate behaviour” in relation to a student
has grave connotations. It is submitted that this finding was unjustified and was
damaging to the Applicant’s student-teacher relationships.
Denial of Right to Appeal – Breach of DES Circular 60/2009
104.       Given the right to appeal under the DES Circular 60/2009, the applicant submits that the
Respondent in not allowing his appeal, has failed in their obligations.
105.       The applicant argues that the Respondent did not facilitate his right to appeal. The
applicant relies on the letter sent the 10th of May 2015 as evidence of his desire to
appeal. The applicant submits that since the Complaints procedure had concluded they
had moved into a set of procedures which was governed by the DES Circular 60/2009.
106.       The applicant argues that his reference to the Complaints Procedure rather than the DES
Circular 60/2009 in his letter of the 10th May 2015 should not be damaging to his case.
The applicant received a response 4 months later to this letter on the 17th September
2015 denying his right to appeal under the Complaints Procedure.
107.       The applicant submits that the case had already moved into the remit of the DES Circular
60/2009 and given that there is no right to appeal under the Complaints Procedure, it was
clear that he meant the DES Circular 60/2009 as it was the only line of appeal available to
him.
108.       The right to appeal is an essential element for the procedure for dealing with disciplinary
issues. Therefore, the respondent’s refusal to allow such an appeal is in breach of the
Applicant’s right to fair procedures as provided for by the Circular. Furthermore, the
applicant argues that the Respondent could have easily sought clarification as to whether
he meant the appeals procedure under the DES Circular 60/2009. Furthermore, the
respondent’s delay in responding was also in breach of their obligations to facilitate the
appeals process.
109.       The applicant cites the judgement of Hardiman J in Dellway v NAMA [2011] 4 IR 1. When
discussing the duty to act fairly Hardiman J states at paragraph 299: -
“Dealing with the present position De Smith's internationally used work on Judicial
Review of Administrative Action (6th ed., 2009, Sweet & Maxwell) by Woolf, Jowell
and Le Sueur has this to say at p. 356, para. 7-003:-
"The term 'natural justice' has largely been replaced by a general duty to act
fairly which is a key element of procedural propriety. On occasion, the term
'due process' has been invoked. Whichever term is used, the entitlement to
fair procedures no longer depends upon the adjudicative analogy, nor
whether the authority is required or empowered to decide matters analogous
to a legal action between two parties. The law has moved on; not to the state
where the entitlement to procedural protection can be extracted with
certainty from a computer, but to where the courts are able to insist upon
some degree of participation in reaching most official decisions by those
Page 38 ⇓
whom the decisions will affect in widely different situations, subject only to
well established exceptions”
110.       At paragraph 301 Hardiman J continued and stated:
“I agree with the De Smith formulation and would be prepared to adopt it as a
statement of the position in Ireland.”
111.       The applicant states that the Education Act 1998 (where the DES Circular 60/2009
derives from) has been considered, albeit in different circumstances, by the Supreme
Court in The Board of Management of Scoil Molaga’s National School v The General
Secretary of the Department of Education and Science [2010] IESC 57. In her judgement
Denham J considered the word “appeal”. At paragraph 29 she stated that the word
“appeal”:
“… has a plain meaning in relation to procedures. The concept of an appeal is a full
hearing on the merits with the jurisdiction to make a determination on the issues
raised.”
112.       The applicant argues that in line with Denham J’s position, that as a matter of procedural
fairness, the right to appeal enshrined under the DES Circular 60/2009 had to be upheld.
Fundamental Misunderstanding and Misapplication of DES Circular 60/2009
113.       The applicant submits that the respondent misunderstood the disciplinary process that it
was bound to apply. This assertion is based on the respondent’s reference to the now
obsolete Disciplinary Process of 1st September 2000 rather than the DES Circular
60/2009, in a letter dated 26th February 2015. The respondent advised the Applicant that
In accordance with Section 3.5 of the Complaints Procedure, the Board has directed that
the matter will now be dealt with under the provisions of Stage 3 of the Disciplinary
Procedures.”
114.       Given that Stage 3 of the DES Circular 60/2009 is described as “Stage 3 – Final Written
Warning” while stage 3 of the Disciplinary Procedure, which is referenced at Section 3.5 of
the Complaints Procedure, allows for a range of punitive measures to be considered, the
applicant submits that there has been a clear misapplication.
115.       The applicant points to the range of mistakes seen in the letter dated 21st April 2015. The
letter received stated: -
“You have raised as an issue the absence of any like or cross reference in the
Parent’s Complaints Procedure to the current Disciplinary Procedures. As you are
aware there was such a link in the previous disciplinary procedure. In particular
clause 3.5 of the Complaints Procedure states that “in the case of a complaint
which is upheld the matter may be dealt with by the Board under the provisions of
Stage 3 of the agreed disciplinary procedures.
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The previous disciplinary procedure was replaced in 2008 with a new disciplinary
procedure. Stage 3 of the old disciplinary procedure dealt with how a Board of
Management deals with a disciplinary issue and this has in effect been replaced
with Stage 4 of the new disciplinary procedure. However, the decision was taken
that in case of the current complaint Stage 4 would not be appropriate as the
normal sanction at Stage 4 is dismissal. Accordingly, it was decided to proceed by
way of Stage 3. However, as the Board had already reached a conclusion in relation
to the complaint there would have been no point in discussing whether the
complaint was or was not well founded at Stage 3.”
116.       The applicant submits that this letter contains many significant errors. Firstly, it is
submitted that Stage 4 of the DES Circular did not effectively replace Stage 3 of the
Disciplinary Procedure. Stage 4 of the DES Circular is the final part of a 4 stage
disciplinary process, in which at each stage teacher is entitled to a disciplinary hearing to
challenge all evidence against them and to exercise a subsequent right of appeal.
117.       Secondly, the applicant argues that it is extraordinary for the chairman of the Board of
Management to suggest that the normal sanction at Stage 4 is dismissal. Stage 4 states:
“If it is decided to take disciplinary action, the board of management may avail of
any of the following range of sanctions:
a) Final written censure
b) deferral of an increment
c) withdrawal of an increment or increments
d) Suspension (for a limited period and/or specific purpose) with pay
e) Suspension (for a limited period and/or specific purpose) without pay
f) Dismissal.
The board of management will act reasonably in all cases when deciding on the
appropriate disciplinary action. The nature of the disciplinary action should be
proportionate to the nature of the issue of professional competence.”
118.       Thirdly, the letter dated the 21st of April 2015 demonstrates that in reality the
Respondent had no regard to the basic requirements of DES Circular 60/2009. This is
based on the fact that the board stated that it had already “reached a conclusion”. This
meant that the position taken by the board was that irrespective of the DES Circular
60/2009 that it had already made a decision which, in effect, made the rest of the
process redundant.
No Disciplinary Hearing Convened Pursuant to DES Circular 60/2009 – No Opportunity
to Challenge Factual Allegations
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119.       The applicant submits that the respondent did not conduct a disciplinary hearing as
required by DES Circular 60/2009 and as mandated by the essential requirements of
procedural fairness. The Circular specifically provides at pages 2 and 3 (general
principles) that: -
“No decision regarding disciplinary action can be made until a formal disciplinary
meeting has been convened and the employee has been afforded the opportunity to
respond to the allegations raised”
And
“that the teacher concerned has the right to examine and challenge all evidence
available and call witnesses or persons providing such evidence for questioning”
120.       The specific provisions of Stage 3 DES Circular 60/2009 state that:
“The teacher will be given an opportunity to respond and state his/her case fully
and to challenge any evidence that is being relied upon for a decision and be given
an opportunity to respond. Having considered the response the Principal and the
nominee of the board of management will decide on the appropriate action to be
taken. Where it is decided that no action is warranted the teacher will be so
informed in writing within five school days. Where it is decided that disciplinary
action at this stage is warranted the teacher will be informed that he/she is being
given a final written warning.”
121.       In this case the hearing convened pursuant to Stage 3 of the DES Circular 60/2009 took
place in circumstances where, as appears from the letter of 21st April 2015, the Board of
Management had already decided that a final written warning would be imposed.
122.       The applicant argues the opportunity to examine and challenge all evidence was not
provided. Instead, the hearing proceeded on the basis that a factual determination of
inappropriate behaviour and language” had already been made against him pursuant to
the Complaints Procedure.
123.       At the hearing convened pursuant to the Complaints no provision was in place for testing
the version of events advanced by AB. In fact, AB, who as the complainant in the case,
was not called to be present. His parents were present at that meeting, as appears from
exhibit PD11 to the Applicant’s First Affidavit. However, the process put in place by the
Respondent provided no practical way in which the Applicant could have challenged the
allegations made against him. In addition, the only other purported witness to the alleged
events, a student referred to as CD, was not called to be present for the hearing
convened pursuant to the Complaints Procedure. As a result, it is submitted that the
hearing convened pursuant to the Complaints Procedure, such as it was, never had the
potential to vindicate the Applicant’s legal entitlements.
124.       Thereafter the disciplinary meeting convened pursuant to Stage 3 of DES Circular
60/2009 was one at which the conclusions reached under the Complaints Procedure were
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treated as findings of fact and where the sanction to be applied had already been decided
upon by the Board of Management.
125.       Accordingly, it is submitted that the Respondent acted in breach of the Applicant’s legal
entitlements by failing to convene a disciplinary meeting of the type mandated by DES
Circular 60/2009 and by well-established tenets of procedural justice.
Failure to notify Applicant of any Charge of Inappropriate Behaviour
126.       Under the heading “Scope” at page 12 DES Circular 60/2009 provides that “This
procedure relates to work and conduct issues and matters other than professional
competence and applies to all teachers other than those serving in a probationary
capacity”
127.       Under the heading “Informal Stage”, also on page 12, the Circular states:
“Where a teacher’s work or conduct does not meet the required standards despite
informal intervention as set out above the matter will be dealt with under the
following disciplinary procedure.”
128.       That procedure then provides for a 4 stage process: Stage 1: Verbal Warning, Stage 2:
Written Warning, Stage 3: Final Written Warning and Stage 4.
129.       In this case the Applicant was requested to attend a meeting of the Board of Management
pursuant to the Complaints Procedure on 24th February 2015 at which he was invited to
make a formal presentation of his case. The Applicant declined to attend for reasons
which are set out in his letter dated 23rd February 2015. At the meeting of the Board of
Management held pursuant to the Complaints Procedure it was determined that the
Applicant had engaged in “inappropriate behaviour and language in relation to AB”.
130.       This determination came as a significant shock to the Applicant as he had never been
accused prior to the meeting of the Board of Management the Applicant of “inappropriate
behaviour” in relation to a student, an allegation which had no foundation whatsoever as
a matter of fact and which carries with it the most damaging of connotations. As appears
from Exhibit ‘PD3’ the Applicant was accused of name calling in respect of AB. According
to the complaint filed by AB’s parent the response of the student was to accuse the
Applicant in class of being “a coward”. No allegation of “inappropriate behaviour”, as
distinct from inappropriate language has ever been made against the Applicant.
131.       It is axiomatic that a person is entitled to know the specific charge alleged against him or
her in disciplinary proceedings. This entitlement applies a fortiori where the allegation is
one of misconduct which may impact upon the reputation of a professional person, such
as the Applicant in this case.
132.       In Mooney v An Post [1998] 4 IR 288 Barrington J held at page 298 that:
“Certainly the minimum he is entitled to is to be informed of the charge against him
and to be given an opportunity to answer it and make submissions.”
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133.       Similarly in Flanagan v University College Dublin [1988] 1 IR 724 Barron J held in respect
of an allegation of plagiarism at page 731 that:
“The applicant should have received in writing details of the precise charge being
made and the basic facts alleged to constitute the alleged offence”
134.       More recently, in McMahon v the Law Society [2009] IEHC 339 Herbert J held at page 18
that:
“The applicant, as a matter of the most basic fair procedures, was entitled to be
expressly informed of the precise nature of the investigation being conducted by
the Committee”
135.       This obligation to specify the precise charge made is reflected in DES Circular 60/2009
which specifically provides that:
“The employee will be advised in writing in advance of a disciplinary meeting of the
precise nature of the matters concerned and will be given copies of all relevant
documentation”
136.       In this case the substance of the allegation made against the Applicant was that he used
inappropriate language in respect of a student. At no time was it suggested that he
engaged in “inappropriate behaviour”. This precise charge, or anything reasonably
approximating it, was not made against him. Inexplicably, having failed to charge the
Applicant with inappropriate behaviour the Respondent proceeded to find him guilty of
inappropriate language and inappropriate behaviour. This finding was therefore reached in
breach of a fundamental precept of fair procedures, the outcome of which is that the
Applicant’s good name and reputation has been unfairly traduced. Accordingly, it is
submitted that this finding cannot be permitted to stand.
137.       In light of the serious issues raised in these submissions to date, it is respectfully
submitted that the reliefs claimed at paragraphs D (i), (ii), (iv) and (vi) of the Statement
of Grounds are appropriate.
Proportionality
138.       In addition, and without prejudice to all the foregoing, DES Circular 60/2009 demands
that there be proportionality between the wrongdoing and the punishment imposed.
Under the heading ‘General Principles Underpinning these procedures” at page 3 the
circular states:
“where a decision is taken to impose a disciplinary sanction, the sanction imposed
will be in proportion to the nature of the conduct/behaviour/performance that has
resulted in the sanction being imposed.”
139.       In this case it is submitted that the wrong alleged against the Applicant in the written
complaint submitted by the parents of AB does not mandate a final written warning. In
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this regard, it is apposite to note that DES Circular 60/2009 states at page 11 in relation
to issues of conduct in schools that:
“It is also the case that any such process must recognise the reality that such
matters are often of a transient nature and may have their origin in issues of a
personal or professional nature which are of relatively short time duration. Isolated
issues or omissions of a minor nature will where possible be dealt with informally.”
140.       In Kelly v Board of Management of St Joseph’s School [2013] IEHC 392 O’Malley J noted
at paragraph 107 that:
“It is an express requirement that the Board act reasonably in all cases when
deciding on appropriate disciplinary action. The nature of the action should be
proportionate to the conduct issue that has resulted in the sanction being imposed.”
141.       At paragraph 164 the Court concluded as follows:
“Finally, I am firmly of the view that the sanction imposed was unfair and irrational
in the sense that it was disproportionate. I do not think that the Board understood
that the Circular was to be read as a whole. They saw the reference to failure to
comply with an instruction and saw that such behaviour could result in dismissal.
They therefore considered that they were being fair to the applicant in mitigating
that penalty down to demotion. They did not consider the fact that the Circular
envisages that even stage 4 proceedings do not necessarily require a heavy
sanction.”
142.       In this case, it is submitted that the Respondent fell into a similar error as the respondent
school in Kelly. As is abundantly obvious from the letter from the Chairman of the Board
dated 21st April 2015 the Respondent was erroneously under the impression that the
normal sanction at Stage 4 was dismissal. In common with the respondent school in Kelly
the respondent in this case has failed to understand that the Circular is to be read as a
whole and that the provision dealing with matters of a “transient nature” is the most
relevant and appropriate to the situation that arose in this case.
143.       In this context, it is submitted that the combined effect of the finding and sanction
imposed upon the Applicant has been entirely out of kilter with the wrong alleged and
that the Court ought, in those circumstances, grant the relied sought at paragraph D(v) of
the Statement of Grounds.
Respondent Submissions
144.       The respondent argues that the applicant is out of time having regard to the amended
terms of Order 84 and no proper basis has been advanced for the grant of an extension of
time. The respondent also submits that these proceedings do not warrant the High Court’s
intervention with regard to the legal maxim de minimis non curat lex. The respondent
argues that the applicant has been guilty of unreasonable and unconscionable delay in
commencing the within proceedings.
Page 44 ⇓
145.       The respondent argues that the Applicant is seeking to quash a decision made pursuant to
the complaints procedure rather than one governed by the DES Circular 60/2009. The
respondent submits that the decision to impose a final written warning upon the applicant
was reasonable and proportionate in all of the circumstances. Given that the imposition
arose directly from the contract of employment between the applicant and the
Respondent it is not amenable to judicial review.
Application of Judicial Review
146.       The respondent submits in the instant case that the issue in dispute between the parties
herein is an issue arising from and governed by the Contract of Employment between the
parties and accordingly it is not amenable to be Judicially Reviewed.
147.       In Murphy v the Turf Club [1989] 1 IR 171 Barr J, dealing with a case relating to the
revocation of a horse trainers licence put the matter in the following terms: -
“The root issue in the present case is whether the respondent is a "legal authority"
as postulated by Lord Atkin and whether its decision to revoke the applicant's
licence is one which may be quashed by this court as having been made by the
respondent in excess of its legal authority. It is well settled that for this purpose
"legal authority" generally means statutory authority. Certiorari or prohibition will
not issue to a body which derives its jurisdiction from contract or to a voluntary
association or domestic tribunal which derives its jurisdiction solely from or with the
consent of its member.”
148.       Barr J, at page 174 went on to make his finding in that case as follows: -
“I have no doubt that the relationship between the applicant and the respondent
derives from contract and that the statutory provisions relating to the respondent
to which I have been referred by Mr. de Bruir are not relevant to the issue before
me. I am also satisfied that the respondent's duty to regulate the sport of horse-
racing in Ireland, though having a public dimension, is not a public duty as
envisaged by the Court of Appeal in Reg. v. Take-over Panel, ex p. Datafin Plc.
[1987] Q.B. 815 and in purporting to revoke the applicant's training licence the
respondent was not exercising a public law function. On the contrary, its decision
was that of a domestic tribunal exercising a regulatory function over the applicant,
being an interested person who had voluntarily submitted to its jurisdiction.”
149.       The decision of the Supreme Court in Geoghegan v The Institute of Chartered
Accountants in Ireland & others [1995] 3 IR 86 deals, inter alia, with whether or not the
decision of the disciplinary committee of the Institute might be subject to judicial review.
Denham J dealt with this aspect of the case at page 130 as follows: -
“On appeal before this Court, the Institute submitted that the learned trial judge
was correct in his view and emphasised that there is not sufficient public element in
the affairs of the Institute to make it amenable to judicial review. The applicant, on
the other hand, distinguished this case from those situations relating to sport and
Page 45 ⇓
submitted that judicial review in the form set out in O. 84 of the Rules of the
Superior Courts, 1986, did run to the Institute.
In view of the public nature of the source of the Institute, the functions of the
Institute, and the nature of the contract between the applicant and the Institute,
the subject of judicial review becomes part of the question of constitutional justice
of the relationship. There are a number of important factors:—
(a) This case relates to a major profession, important in the community, with a
special connection to the judicial organ of Government in the courts in areas
such as receivership, liquidation, examinership, as well as having special
auditing responsibilities.
(b) The original source of the powers of the Institute is the Charter: through that
and legislation and the procedure to alter and amend the bye-laws, the
Institute has a nexus with two branches of the Government of the State.
(c) The functions of the Institute and its members come within the public domain
of the State.
(d) The method by which the contractual relationship between the Institute and
the applicant was created is an important factor as it was necessary for the
individual to agree in a "form" contract to the disciplinary process to gain
entrance to membership of the Institute.
(e) The consequences of the domestic tribunal's decision may be very serious for
a member.
(f) The proceedings before the Disciplinary Committee must be fair and in
accordance with the principles of natural justice, it must act judicially.
In these circumstances, I am satisfied that a decision of the Disciplinary Committee
may be the subject of judicial review pursuant to O. 84 of the Rules of the Superior
Courts, 1986.”
Judicial Review in the Education Sector
150.       In Mary Becker v Board of Managament St Dominicks’s Secondary School Cabra
[2005] IEHC 169 the issue which fell to be considered was whether or not judicial review lay
against the Board of the school in relation to the application of a disciplinary sanction on
the applicant who was a teacher. The applicant in the case sought to rely on the decisions
in Rafferty v Bus Eireann [1997] 2 IR 424 and in Geoghegan. The respondent sought to
rely, inter alia, on Murphy v the Turf Club, Rajah v Royal College of Surgeons of Ireland
[1994] 1 IR 384 and Murtagh v Board of Governers of St Emer’s School [1991] 1 IR 482.
Peart J set out his conclusions as follows: -
“I have set out these matters in some detail in order to highlight the extensive
public nature of education. However, it is not sufficient for the applicant simply to
Page 46 ⇓
show that the nature of the job she performs is of such importance to the
advancement and development of society as a whole in order to bring her present
claim within the reach of judicial review. There is a distinction to be drawn between
the wider aspects of education, and the statutory provisions, such as those to which
I have referred, and the narrower aspects of this particular case, such as the
employer/employee relationship between her and the respondent which is based,
as has been pointed out, solely on a contract of employment entered into between
the parties. The decision sought to be impugned in this case, namely one to give
her a written warning, is one made by her employer as part of a disciplinary
procedure applicable in the school. The applicant has a grievance in relation to that
decision to issue a warning letter. The merits of that dispute are not in issue in this
case at this stage. What is at issue is simply whether the applicant is confined to a
purely private law remedy, rather than remedy by way of judicial review. Let us
suppose that she had been dismissed, and not simply warned in writing. In such a
situation, would the decision to dismiss her be amenable to judicial review or must
she rely on her private law remedy? The answer must be that the dispute is not
amenable to judicial review, as lacking that public law element which is essential to
judicial review relief.
I draw an important distinction between the various public functions of the school
which are involved in the provision of education to the public, and what I might
describe as the private functions of that body, such as the hiring and firing of a
teacher. One could think of other private functions of a school, such as entering
into a contract for the supply of food, or school books, or the building of an
extension to the school, which have a similar private law element to the hiring and
firing of a teacher. Disputes arising in such private contracts are to be dealt with
under private law remedies, such as breach of contract, unless there is some
particular public law element to the dispute.
Simply because a school may be established, and its functions and obligations set
forth, in an Act of the Oireachtas, is not of itself sufficient to bring every dispute
emanating from the school's activities within the reach of judicial review. Simply
because s.15(2) is couched as it is, does not mean that everything which the
Board, or the Principal duly appointed, does in relation to the management of the
school is amenable to judicial review.”
151.       In Kelly v Board of Management of St Joseph’s National School, Vallymount, Co Wicklow
[2013] IEHC 392 O’Malley J came to a different conclusion but that was in relation to the
demotion of a principal of the school effected under the disciplinary procedures mandated
by the Minister under the Act. In her judgement she referred to Geogheghan; O’Donnell v
Tipperary (South Riding) County Council [2005] ILRM 168; Beirne v Commissioner of An
Garda Siochana [1993] ILRM 1; Tobin v Mayfield Community School, unreported Kearns J,
21 March 2000; Campiagn to Separate the Church and State v Minister for Education,
Unreported Costello J; and Mary Becker. She noted that Becker was considered and
distinguished in Brown v The Board of Management of Rathfarnham NS [2006] IEHC 178.
Page 47 ⇓
She also referred to Hand v Ludlow, unreported O’Keefe J, 18 December 2009 and
McSorley v Minister for Education and Skills, unreported Hedigan J, April 2012. Having
considered all of the foregoing case law the Learned Trial Judge adopted the analysis of
Quirke J in Brown as to the public importance of the teaching profession and as to the
statutory source for procedures within the sector and at paragraph 137 she made the
following observation: -
“I do not wish to be taken as saying that every aspect of school disciplinary
procedures is a suitable matter for judicial review. There is a very significant
difference between, for example, the giving of an oral or written warning, as in
Becker, and the appointment, demotion or dismissal of a principal. This is so partly
because of the profoundly more serious consequences for the individual concerned,
but also because of the wider, public implications for the whole school and the
community which it serves.
I therefore conclude that the applicant is entitled to seek judicial review in this
matter.”
152.       In the recent case of Conroy v Board of Gorey Community School [2015] IEHC 103 the
Court dealt with a dispute which arose in relation to the employment of a school Chaplain.
Baker J adopted the analysis of O’Malley J in Kelly when at paragraph 31 of the
judgement she stated: -
“I adopt the analysis of O'Malley J. in Kelly v. Board of Management of St. Joseph's
National School and in particular note that the combination of the provisions in the
trust deed and the statutory provision has the effect, as she described it, of
incorporating the procedures from the Act into any disciplinary process engaged in
by the school. As O'Malley J. said at para. 134:-
“Every aspect of the procedure which must be followed derives its authority from
statute rather than from contract.”
153.       Baker J then went on to refer to inter alia, Catholic University School v Dooley,
unreported 20 July 2010; and Blackrock College v Mary Brown [2013] IEHC 602 and then
also to Brown. Baker J then concluded that the decision to remove a person as a Chaplin
to a school is not one amenable to judicial review but that the decision to employ a
person as teacher of religion in school is one with a sufficient public law element to attract
review.
154.       The foregoing cases show that there is no absolute position in respect of teachers who are
typically appointed pursuant to provisions of the Education Act, are paid by the State and
who undoubtedly perform duties which are mandated by Statute and not merely the
contractual provisions relating to their employment. However, applying the Becker and
Kelly line of authority, it is submitted that in circumstances where the sanction imposed
was merely a final written warning, to remain on file for a period of two years (now
expired), these proceedings are not amenable to Judicial Review.
Page 48 ⇓
155.       The fact that the Respondent’s powers may initially derive from statute is removed and
indirect to the consideration of the instant case.
156.       In all circumstances it is respectfully submitted on behalf of the Respondent that the
jurisdiction of the Board of Management to impose a disciplinary sanction under the
Disciplinary Procedure, was directly related to a matter covered by the Contract of
Employment between the parties and in those circumstances, being a private law matter,
is not amenable to judicial review.
Delay
156.       Rule 21 of Order 84 provides that an application for leave to apply for Judicial Review
shall be made within three months from the date when grounds to the application first
arose. It is clear from the affidavits in this case and the facts as summarised heretofore
that the application herein was long out of time.
157.       It is respectfully submitted that the rules relating to the extension of time are mandatory
and that in circumstances where, as in the instant case no cogent reasons are offered
that this Honourable Court should dismiss the application on this basis alone. The time
limit for Judicial Review is regarded as akin to a statutory time limit. This issue was
considered by Clarke J giving the judgement of the Supreme Court in Shell E & P Ireland
Limited v McGrath and ors [2013] IESC 1. At para 57 he stated as follows:
“The rules of court are, of course, a form of secondary legislation. They are made
with the authority of the Oireachtas in the form of the enabling provisions of the
Courts of Justice Acts 1924-36 and the Courts (Supplemental Provisions) Act 1961
(“the Courts Acts”). That does not, of course, give the rules-making authority carte
blanche. It is possible that an argument might be made that measures adopted in
the rules go beyond the legitimate delegated powers of rules-making authorities. It
might also be, as the trial judge correctly pointed out, that limitations, whether to
be found in legislation or in the rules, which affect the ability of a party to maintain
or defend proceedings in a reasonable way, might amount to a breach of the rights
of such party either to access to the court or to the fair conduct of proceedings (as
to the distinction between which see Farrell v. Bank of Ireland [2012] IESC 42).”
158.       He went on to say at paragraph 59 that the Rules have the force of law: -
“On that basis the rules have the force of law and have the same status as time
limits to be found in primary legislation except, of course, that the rule-making
authorities do not have the power to depart from those time limits which are
specified in primary legislation. It is, of course, the case that the type of legislation
which has been adopted in recent times in the planning and immigration fields, for
example, not only imposes a statutory time limit for the commencement of
proceedings but also prevents any question as to the validity of relevant measures
being raised save by judicial review. There is no similar provision in respect of
challenges outside those fields which have been the subject of specific legislation.
No such restriction applies to a challenge in respect of measures such as the CAOs
Page 49 ⇓
and the consent which are at the heart of these proceedings. However, it remains
the case that a judicial review challenge to those measures would be required, as a
matter of law, to be taken within the time limits specified in the rules of court or in
such extended time as the court might provide. It seems to me to necessarily
follow that permitting such a challenge to be brought in a manner which would
entirely circumvent those rules would amount to permitting rules which have the
force of law as secondary legislation to be circumvented in an inappropriate way. It
seems to me to follow that a valid exercise by the rule-making authority of its
power to impose, by rule of court, time limits for the bringing of judicial review
applications necessarily implies, by analogy, that those rules are applicable to such
challenges in whatever way, as a matter of procedure, the challenge concerned
may be brought.”
159.       It is submitted that the Applicant has been guilty of inordinate and inexcusable delay and
in the circumstances, this Honourable Court should not extend the time for the Applicant
to appeal against any decision made pursuant to the Complaints Procedure or otherwise.
The Complaints Procedure
160.       It is submitted by the Respondent that the decision made that the Applicant had engaged
in inappropriate behaviour and language in relation to a named pupil on the 8th and 9 of
May 2014 was made by the Respondent in accordance with the nationally agreed
Complaints Procedure.
161.       The relevant Complaints Procedure has been set out earlier in this judgement.
162.       It is submitted by the respondent that Complaints Procedure expressly provides that the
decision of the Respondent in such matters is final. The applicant at no time sought to
appeal any decision which was made pursuant to the provisions the Disciplinary Procedure
and, in fact, the only appeal lodged by the Applicant was against the original decision of
the Board of Management made pursuant to the Complaints procedure.
163.       In such circumstances, where no appeal lies pursuant to the provisions of the Complaints
Procedure against a decision of the Respondent, it is respectfully submitted that it is not
open to this Honourable Court to quash such a decision merely because of the alleged
denial of an appeal.
164.       Furthermore, it is submitted that the Disciplinary Process conducted by the Respondent
was carried out in conformity with DES Circular 60/2009 and the Applicant’s right to
natural justice and fair procedures. In any event, it is respectfully submitted, decisions
made pursuant to the Complaint Procedure, which Complaints Procedure is not a
procedure governed by or effected by the provisions of Circular 60/2009, are not
amenable to judicial review.
165.       It is submitted on behalf of the Respondent that the matters of complaint in relation to
the behaviour of teachers towards pupils properly fails to be adjudicated upon pursuant to
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the Nationally agreed procedure dealing with complaints, that being the Complaints
Procedure referred to herein.
166.       For the purpose of clarity, it is submitted on behalf of the Respondent that insofar as
Circular 60/2009 had any application in the within matter, there was full conformity
therewith in circumstances whereby the Applicant was invited, on or about 13 March 2015
to attend a meeting on 27 March and was advised that the purpose of that meeting was
to discuss what, if any, disciplinary action was warranted in light of the Respondent’s
decision to substantiate the claim made on or about the 8 June 2014 pursuant to the
Complaints Procedure and the Applicant was advised of all of his rights in relation to the
said meeting. The applicant acquiesced in and did not object to the procedure followed
and cannot now raise any issue in that regard.
De Minimis Non Curat Lex
167.       It is respectfully submitted that these proceedings do not warrant the intervention of the
High Court by way of Judicial Review having regard to the legal maxim de minimis non
curat lex.
168.       The imposition of a final written warning, to remain on the Applicant’s file for a period of
two years, is not a matter that should trouble the High Court, in particular in
circumstances whereby the period for which it was to remain on his personnel file has
now, in fact expired.
169.       The dicta of Hederman J in Murtagh is instructive in this regard where he stated:
“A three day suspension of a pupil from a national school either by the principal or
the Board of Management of that school is not a matter for judicial review. It is not
an adjudication on, or determining of any rights, or the imposing of any liability. It
is simply the application of ordinary disciplinary procedures inherent in the school
authorities and granted to them by the parents who have entrusted the pupil to the
school.
A three day suspension for an admitted breach of discipline would be no more
reviewable by the High Court, than for example, the ordering of a pupil as a
sanction to stay in school for an extra half hour to write out lines, or to write out
lines while he is at home.”
168.       Similarly, in the instant case, the warning imposed was warranted in the circumstances. It
was to remain on the Applicant’s personnel file for a period of two years, which has now
expired and therefore, applying the maxim de minimis non curat lex, ought not be the
subject of Judicial Review proceedings.
Applicant’s Replying Submissions
169.       In the Respondent’s Statement of Opposition it is alleged that the Applicant is disentitled
to relief on a number of grounds, which include the following:
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• The dispute relates purely to a contract of employment and is not therefore
amenable to Judicial Review;
• The proceedings do not warrant the intervention of the Court having regard to a
legal maxim referred to de minimus non curat lex;
• The applicant delayed in bringing these proceedings;
• Circular 60/2009 does not apply to all disciplinary issues and does not apply to
adverse findings made against teachers pursuant to the Complaints Procedure.
It is proposed to deal with each of these contentions in turn.
Amenability to Judicial Review
170.       At paragraph 1 of the Respondent’s Notice of Opposition it is asserted that the dispute
between the parties relates solely to a contract of employment between the Applicant and
the Respondent and is not therefore amenable to judicial review.
171.       The board of management of the school is a body corporate established pursuant to the
provisions of section 14 of the Education Act, 1998. In this regard, section 14(6) of the
Act provides that:
“The Minister, with the agreement of the patron, national associations of parents,
recognised school management organisations and recognised trade unions and staff
associations representing teachers, shall prescribe matters relating to the
appointment of a board.”
172.       As noted earlier in these submissions, pursuant to section 15 of the Education Act 1998
the board of management is obliged to act in accordance with Ministerial policy as
determined by the Minister for Education and Science.
173.       DES Circular 60/2009 was brought into effect by the Minister for Education and Science in
September 2009. This Circular was issued under the provisions of s.24(3) of the
Education Act, 1998, which mandates the drafting of disciplinary procedures following a
consultation procedure involving all the parties in the education sector.
174.       Having regard to the foregoing, it is respectfully submitted the introduction of Des
Circular 60/2009, the effect of which was to supersede all pre-existing disciplinary
procedures, was the culmination of a process which was statutory in nature.
175.       In Beirne v The Commissioner of An Garda Siochana [1993] ILRM 1 the Garda
Commissioner contended that the contract of the Applicant, a trainee Garda, was purely a
matter of private law and was therefore not amenable to judicial review. In rejecting this
submission, and ultimately granting an order of certiorari Finlay CJ made the following
observations in relation to scope of the remedy at page 3:
“The principle which, in general, excludes from the ambit of judicial review
decisions made in the realm of private law by persons or tribunals whose authority
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derives from contract is, I am quite satisfied, confined to cases or instances where
the duty being performed by the decision-making authority is manifestly a private
duty and where his right to make it derives solely from contract or solely from
consent or the agreement of the parties affected.
Where the duty being carried out by a decision-making authority, as occurs in this
case, is of a nature which might ordinarily be seen as coming within the public
domain, that decision can only be excluded from the reach of the jurisdiction in
judicial review if it can be shown that it solely and exclusively derived from an
individual contract made in private law.”
176.       The nature and character of DES Circular 60/2009 has recently been considered by
O’Malley J in Kelly v Board of Management of St Joseph’s National School [2013] IEHC 392.
That case concerned the demotion of a primary school principal pursuant to the
provisions of DES Circular 60/2009. In her judgment O’Malley J referred with approval to
the judgement of Quirke J in Brown v The Board of Management of Rathfarnham National
School [2008] 1 IR 70. In that case Quirke J considered the following factors to be
relevant:
“1. this case relates to a major profession, important in the community, which is
responsible for the provision of primary education for children within the State
pursuant to policies implemented by successive governments with the sanction of
the Oireachtas;
2.       the original source of the power to appoint the principal teacher of a national school
is the Act of 1998 and in particular s. 23 thereof. The power is conferred upon the
first respondent and may only be exercised "… subject to such terms and conditions
as may be determined from time to time by the Minister with the consent of the
Minister for Finance" and "in accordance with procedures agreed from time to time
between the Minister, the patron …etc.";
3.       the functions of the first respondent have a statutory genesis. The decision sought
to be impugned was made by the first respondent in exercise of a power conferred
upon it by the provisions of s. 23 of the Act of 1998. Those facts strongly, inter alia,
suggest that the decision can be said to come within the public domain;
4.       the method by which the contractual relationship between the first respondent and
the notice party was created is expressly regulated by a statutory regime.
177.       At paragraphs 133 and 134 of her judgement O’Malley J reached the following
conclusions:
“I am satisfied that the dispute between the parties meets the criteria set out in
Beirne and O'Donnell and cannot in any reasonable sense be described as arising
solely out of a private contractual relationship.
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I adopt the analysis of Quirke J. in Brown as to the public importance of the
teaching profession and as to the statutory source for procedures within the
sector.”
178.       While the judgement of the Court in Kelly related to the demotion of a teacher, it is
respectfully submitted that the reasoning derived from Beirne and Brown applies with
equal force to the imposition of a final written warning such as arises in this case. DES
Circular 60/2009 was the outcome of a statutory process and it derived from Ministerial
policy which superseded on a compulsory national basis all pre-existing disciplinary
procedures. Accordingly, it cannot be said that the matters in issue in these proceedings
stem entirely from a private contract of employment.
179.       In this regard it will be noted that in the earlier case of Becker v Duggan [2009] 4 IR 1
the High Court considered the nature and effect of DES Circular 5/98, a circular which
predated the enactment of section 24 of the Education Act, 1998. In that case O’Neill J
granted certiorari to an applicant for a teaching position by reason of procedural breaches
on part of an appeals board established pursuant to DES Circular 5/98. The Court
reiterated the test established in Beirne that, for a decision making process to be
excluded from the scope of judicial review on the basis of the contractual relationship
between the decision maker and the person affected, the contract had to be the sole
source of the power exercised.
180.       In rejecting the argument made on behalf of the nominee of the appeals board O’Neill J
had to say in relation to DES Circular 5/98 at paragraphs 43 to 47 inclusive:
“[43] Apart from the foregoing, there are many indicia of a public law element, otherwise
present. Firstly, circular 5/98, notwithstanding the fact that it reflects an agreement
between the A.S.T.I., the joint management board on behalf of their members and
the Minister for Education, is nonetheless, in my view, a governmental act, being a
promulgation by the Minister for Education.
[44] Secondly, the provisions of the circular are not confined to the applicant but affect
all of the thousands of secondary school teachers in Ireland. Thus, its provisions
apply to a very large professional group throughout Ireland.
[45] All secondary school teachers have a personal and public interest in the proper
discharge by the respondent of his duties as provided for in para. 4 of the circular.
[46] Thirdly, the appointments, as provided for in the circular, are of an immediate and
intense interest to the tens of thousands of parents who have children attending
secondary schools and who have a public interest in the proper discharge by the
respondent of his functions as provided for in para. 4 of the circular.
[47] Fourthly, whilst circular 5/98 was promulgated shortly before the enactment of s.
24 subss. (5) and (6) of the Education Act 1998, I would be of opinion that, having
regard to the mandatory nature of these subsections, the continuance in force of
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the provisions of circular 5/98 after the enactment of the Education Act 1998 was
necessarily dependent on and, by virtue of the authority of, subss. 5 and 6 of s. 24
of that Act. Thus, in my opinion, always material to the matters in issue in these
proceedings, the source of the provisions of this circular was statutory or as was
perhaps more accurately expressed by Shanley J. in Eogan v. University College
Dublin [1996] 1 I.R. 390 where he says at p. 398: -
"[W]hither the decision is being made by a decision maker whose powers,
though not directly based on statute, depend on approval by the legislature
or the Government for their continued exercise."
181.       Having regard to all the foregoing it is submitted that the applicant of a disciplinary
process which results in the imposition of a final written warning, which is undertaken
pursuant to Stage 3 of DES Circular 60/2009, is not something which could be described
as arising solely from a private contractual relationship. Consequently, it is respectfully
submitted that there is no basis whatsoever for the issue raised at paragraph 1 of the
Notice of Opposition and that the issues arising in these proceedings are amenable to
judicial review.
De Minimis non Curat Lex
182.       At paragraph 2 of the Notice of Opposition it is alleged that the intervention of the Court
is not warranted based upon the maxim de minimis non curat lex. This expression is
defined in Murdoch’s Dictionary of Irish Law as meaning “the law does not concern itself
with trifles” and it is a principle which is generally understood to be of application in
relation to statutory interpretation where it is argued that a slight deviation from the
literal text may be permitted.
183.       In this context, Henchy J had this to say in Monaghan UDC v Alf-a-Bet Promotions
[1980] ILRM 64:
“In such circumstances, what the Legislature has, either immediately in the Act or
mediately in the regulations, nominated as being obligatory may not be depreciated
to the level of a mere direction except on the application of the de minimis rule. In
other words, what the Legislature has prescribed, or allowed to be prescribed, in
such circumstances as necessary should be treated by the courts as nothing short
of necessary, and any deviation from the requirements must, before it can be
overlooked, be shown, by the person seeking to have it excused, to be so trivial, or
so technical, or so peripheral, or otherwise so insubstantial that, on the principle
that it is the spirit rather than the letter of the law that matters, the prescribed
obligation has been substantially, and therefore adequately, complied with.”
184.       Accordingly, it is submitted that rely on the de minimis rule would be necessary for the
Respondent to demonstrate that the breach complained of was so trivial, technical,
peripheral or insubstantial as to disentitle the Applicant to any relief. It is respectfully
submitted that the invocation of this maxim is misguided on the part of the Respondent
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and, that from the Applicant’s perspective as a teacher, the issues arising in these
proceeding could not possibly be characterised as trivial, technical or peripheral.
185.       In Corr v Director of Military Prosecutions [2014] IEHC 631 a soldier holding the rank of
private was charged with disobeying orders and absenting himself from his post without
leave. It was found that the charges were proved and the soldier was fined two days’ pay.
Judicial review proceedings were brought in which the applicant sought to quash the
findings made against him on the basis that the decision to charge the applicant had been
made without jurisdiction. In contesting the applicant’s entitlement to the reliefs sought
the Respondents relied on the maxim de minimis non curat let on the basis that the
punishment awarded was modest and the determination would not affect the applicant’s
service record (although this issue was disputed) and this no real prejudice accrued to the
applicant.
186.       In granting an order of certiorari, Noon J found that the charges of insubordination and
absenting a post without leave had the potential to be very serious for an army private.
Accordingly, the court concluded that de minimis non curat lex could not apply to such
charges, irrespective of the relatively modest nature of the penalty imposed.
187.       In Bane v Garda Representative Association [1997] 2 IR 449 the applicants were
members of the Garda Representative Association (‘GRA’). They were charged with
misconduct arising from testimony given in earlier legal proceeding. The applicant’s
declined to attend the hearings convened against them and the charges were upheld in
their absence. All applicants were then disbarred from holding office in, and expelled
from, the GRA for varying period.
188.       The applicants brought judicial review proceedings based inter alia upon an allegation of
objective bias on the part of members of the GRA executive. The respondent argued that
judicial review was an inappropriate remedy. At page 477 of the report this argument is
explained in the following terms:
“It is said that it would now be inappropriate to grant an order of certiorari to the
applicants for the following reasons. First, they have departed from the first
respondent and have no intention of ever rejoining. The question is, therefore, one
of academic interest.”
189.       Kelly J had no hesitation in rejecting this argument, holding at page 477 that:
“…even though the applicants are no longer members of the first respondent, the
fact remains that the record of that association contains findings of guilt concerning
serious misconduct on their part. Even though they may have no intention of ever
again becoming involved in membership of the first respondent, that mark remains
against them.”
190.       Accordingly, even though the applicant’s sought relief in respect of an organisation in
which they no longer had any intention of future involvement, the Court had no doubt
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that it was appropriate to grant the relief sought due to the findings of serious misconduct
that had been made against them.
191.       In this case, it is submitted that there could be little doubt that a finding of “inappropriate
behaviour” in respect of a student on the part of a teacher is anything other than a
serious matter. It is plainly a serious issue for the Applicant. It is a finding which engages
the most significant of reputational issues for a person who has spent his entire career
working in the teaching profession with young people. The effect of this finding is
illustrated by the exchange detailed at paragraph 44 of the Applicant’s grounding
affidavit, where he explains that a parent of a pupil in the Respondent school approached
him to ask whether it was true that he had been found guilty of inappropriate behaviour
towards a student.
192.       At paragraph 33 of his grounding affidavit the Applicant further explains that if the finding
is undisturbed his prospects of obtaining future alternative employment in another school
would be remote. Notably, this averment does not appear to be contested in the replying
filed on behalf of the Respondent. In addition to this the Applicant explains in his
grounding affidavit that the finding has placed a serious strain on his well-being. Equally,
it is noted that this averment is not contested in the affidavit filed on behalf of the
Respondent.
193.       In addition, the Applicant’s affidavit explains at paragraphs 32 and 33 that he fears the
potentially serious negative consequences that any further disciplinary issues may carry
for him if the existing finding of inappropriate behaviour is not addressed. The response of
the Respondent to this issue is limited to stating at paragraph 12 of the replying affidavit
that “subject to satisfactory service [the warning] will expire at the end of that 12 month
period”. However, at this point in the proceedings the Applicant is not aware of whether
his performance has been deemed satisfactory and has received no notification from the
Respondent to confirm whether the warning has expired or not.
194.       Notwithstanding this, even if satisfactory service were confirmed the mere expiry of the
warning will not wash away the damaging finding of “inappropriate behaviour” against the
Applicant. The Applicant is entitled to have his good name and reputation as a teacher
vindicated irrespective of whether the warning is deemed to have expired. In addition, the
mere expiry of the warning (if such were confirmed) would scarcely prove adequate to a
prospective employer in another school and accordingly the continu8ed existence of the
finding, whether expired or not, is liable to adversely affect the Applicant’s right to earn a
livelihood in his chosen career.
195.       In this context, it is respectfully submitted that the Applicant’s constitutional rights are at
issue. In this regard, Article 40.3.2 provides:
“The State shall, in particular, by its laws protect as best it may from unjust attack
and, in the case of injustice done, vindicate the life, person, good name, and
property rights of every citizen.”
Page 57 ⇓
196.       Furthermore, it is submitted that the Respondent cannot realistically suggest that the
finding made against the Applicant is anything other than a serious one. In fact, by letter
dated 17th November 2014 the Chairman of the board of management specifically
characterises the issue as being serious in nature stating in the final paragraph that:
“We note that in your letter there is no reference to the serious complaints that
have been made against you.”
197.       This characterisation of the issue is in keeping with the fact that a final written warning
was imposed by the Respondent, rather than an oral warning or simply a written warning
as provided for at Stages 1 and 2 of DES Circular 60/2009.
198.       In all of these circumstances it is submitted that the de minimis principle has no
application to the Applicant’s case. Not only is the finding of inappropriate behaviour a
very serious one for the Applicant, the entitlements which he seeks to assert pursuant to
DES Circular 60/2009 could not possibly be described as trifling, trivial, technical or
peripheral. Consequently de minimis non curat lex is not relevant in this case.
199.       In addition to the foregoing, it is apposite to note that the pretext upon which the
Applicant has been denied the right to an appeal – namely the disallowance of his notice
seeking appeal – has all the hallmarks of technicality and triviality. In truth, the
proximate reason for the existence of these proceedings stems from the Respondent’s
willing to resort to technicality as a basis upon which to deprive the Applicant of his rights
under DES Circular 60/2009. Having created the necessity for these proceedings by doing
so, the Respondent can scarcely complain that the Courts should not now interfere in its
affairs.
Delay
200.       At paragraph 3 and 4 of its Notice of Opposition the Respondent asserts that the Applicant
has delayed in bringing these proceedings nor that the proceedings were commenced
outside of the 3 month period provided for by Order 84, rule 21 as amended.
201.       It is respectfully submitted that these objections are unmeritorious and opportunistic.
While it is the case that the Applicant was advised of the finding of inappropriate
behaviour and language towards a student by letter dated 26 February 2016 the matter
then proceeded to Stage 3 of DES Circular 60/2009.The Applicant was notified of the
decision reached at this stage of the process by letter dated 21 April 2015, which was
received by post Monday 27th April 2015. The Applicant notified the Respondent of his
intention to appeal by letter dated 10 May 2015. That letter received no response for over
4 months – until the Respondent replied by letter of 17 September 2015. During this
period, the Applicant was entitled to believe that he invoked an appeal process. He was
not notified that his request for an appeal had been declined until he received the letter of
17 September 2015. Accordingly, this is the point from which time began to run.
202.       The applicant sought the leave of the Court to bring these proceedings on 30 November
2015 as appears from the Applicant’s ex parte docket. The Order granting leave is dated
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7 December and the Order provides, to the extent necessary, that the time for making an
application be extended p to and until that date. Without prejudice to the foregoing it is
clear that the Applicant sought leave of this Honourable Court well within the 3 Month
period provided for by Order 84, rule 21.
203.       If the Applicant had sought to bring judicial review proceedings prior to 17 September
2015 his application could properly have been met with the objection that his proceedings
were premature. Having requested the facility of an appeal, as he was entitled to do, on
10 May 2015 the Applicant had no further control over the process. In these
circumstances, the delay of over 4 months which subsequently elapsed could not be
attributed to the Applicant. Accordingly, it is submitted that the objections raised t
paragraphs 3 and 4 of the Notice of Opposition are without substance.
204.       In Kelly v Board of Management of St. Joseph’s National School the respondent took an
objection to alleged delay on the part of the applicant in similar terms to those raised in
this case. In rejecting that objection O’Malley J held as follows at paragraphs 143 and
144:
“143. The applicant submits she engaged in a statutory process which involved a number
of stages. Had she moved for judicial review after the first stage she would have
been met with the argument that she had an alternative remedy. In any event, the
time taken by the appeal process and the remittal of the decision back to the Board
was a matter that was not within her control.
144.       I agree with the submission on behalf of the applicant. The process under
consideration is not analogous to, for example, an appeal from the District Court to
the Circuit Court. A person who is convicted after a flawed hearing in the District
Court has the option of appealing or taking judicial review. If he or she appeals,
and is then convicted after a proper hearing in the Circuit Court, there is no point in
challenging the District Court hearing. However, the process engaged in by the
parties in the instant case is quite different. If the principal appeals, there will be at
least two stages after the original decision by the Board. As the Dap
recommendation is not final the matter will always have to be remitted to the
board, for either reconsideration in the light of the recommendation or the
implementation of the proposed sanction. The process may well take more than
three months to reach the conclusion of the third stage, as it did in this case. That
is not a matter within the control of the applicant. Furthermore, I do not consider
that the policy behind the time limits for judicial review (which, as counsel for the
Board argues, is to ensure that public law disputes are dealt with when they are
ripe) should be understood to incentivise parties to litigate prematurely.”
205.       It is respectfully submitted that this aspect of the judgement in Kelly is on all fours with
the situation which arises in this case and accordingly the objections taken by the
Respondent on grounds of delay and/or Order 84, rule 21 of the Rules of the Superior
Courts must be rejected.
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Circular DES 60/2009 Does not Apply to All Disciplinary Issues and Does Not Apply to
Adverse Findings Made against Teachers Pursuant to the Complaints Procedure
206.       It is respectfully submitted that this proposition is deeply misconceived and, in many
respects, stems from the fundamental misunderstanding on the part of the Respondent as
to the nature of the DES Circular 60/2009. In this regard, the discussion of that
fundamental misunderstanding, as set out at paragraphs 46-54 above are repeated.
207.       It is submitted that DES Circular 60/2009 is clearly a self-contained process designed for
dealing with all disciplinary and competence issues, from the most trivial to the most
serious. The Circular is of statutory origin and is stated to supersede all pre-existing
disciplinary procedure. In this context there is no room for a shadow or parallel
disciplinary procedure of uncertain scope to continue to exist. While not exactly
comparable, the observations of Clarke J in Mavior v Zrko [2013] 3 IR 268 are relevant.
Clarke J cited the judgement of Murray CJ in G McG v W [2000] 4 IR 1 and had this to say
at paragraph 17 of his judgement:
“It seems to me that what Murray J. cautioned against in the passages cited was
the creation of parallel jurisdictions for resolving much the same area of
controversy, founded on, on the one hand, existing law and, on the other hand, an
asserted inherent jurisdiction.”
208.       In this case the comparable “existing law” referred to by Clarke J is that provided for
pursuant to DES Circular 60/2009. Where such a legal framework exists by way of DES
Circular 60/2009 it is not permissible for an alternative or parallel system to exist in
tandem.
209.       Notwithstanding the obvious correctness of this position, the Respondent has erroneously
interpreted Circular 60/2009 as being capable of partially co-existing with an alternative
disciplinary process which it contends at paragraph 12 of the Statement of Opposition
continues to apply to “some disciplinary issues”. No explanation is advanced as to how
this might operate, nor is there any justification for this proposition to be found in DES
Circular 60/2009. Furthermore, this contention is illogical in circumstances where the
Applicant’s case plainly moved out of the Complaints Procedure and into DES Circular
60/2009, thereby undermining any argument that DES Circular 60/2009 did not apply.
Consequently, it is respectfully submitted that this proposition, which is confusing and
uncertain in scope, must be rejected.
Decision
210.       This case provides ample illustration of how unwise it is to alter one element of
established procedures without ensuring that it dovetails with other established
procedures. As of the 1st September 2000 by agreement between the teachers’ union and
the Board of Management, there were clear, concise and cogent procedures for dealing
with complaints by parents and/or eligible students about the conduct of teachers as well
as clear and cogent procedures for the laying of charges against a teacher.
211.       The two procedures dovetailed in that where a complaint made by a parent or student
was upheld by a board of management, that complaint could form the basis of a charge of
Page 60 ⇓
misbehaviour or misconduct against a teacher to be dealt with pursuant to Stage 3 of the
disciplinary procedures. In the event that a complaint was upheld by the Board of
Management, a discretion was conferred on it to lay a charge of misconduct against a
teacher pursuant to Stage 3 of the disciplinary procedures. If a charge of misconduct
were laid on the basis of the facts as found it was open to the teacher to argue that the
facts as found did not constitute misbehaviour or misconduct or inappropriate behaviour.
The charge was to be determined by the Board of Management, but those who had
investigated the complaint could not participate in the determination of the charge.
212.       The procedure also provided that the principal could not sit on the Board of Management
when determining the charge but could if required, give evidence. The Board would
decide whether the charge was upheld and if so upheld would decide on the appropriate
penalty ranging from an oral warning to dismissal. Both the complaint procedure and the
disciplinary procedure of September 2000 as agreed by the teachers’ union and the
management formed part of a teachers’ contract with the Board of Management. The
procedures were specifically made subject to a teachers’ right to have recourse to law to
protect his employment.
213.       In 2009, as part of a policy called “Towards 2016” new disciplinary procedures were
agreed. The new procedures are expressed to be made pursuant to s. 24(3) of the
Education Act 1998. The statutory underpinning of the new disciplinary procedures which
are contained in a Department of Education and Science circular 60/2009, brings the new
disciplinary procedures out of the private law area and into the public law area.
214.       While the procedures are stated to supersede all disciplinary procedures in existence prior
to the agreement, they do not in the courts’ view, oust or override the nationally agreed
complaints procedure of the 1st September 2000. That procedure is a separate and
distinct procedure whereby parents or eligible students can make a complaint about a
teachers’ behaviour. This leads to a most unsatisfactory situation in which the complaints
procedure for parents and eligible students is a matter of private law agreed on behalf of
teachers with management, and which forms part of the contractual obligations and rights
of teachers, while the disciplinary procedure is a matter of public law which is potentially
reviewable by the courts.
215.       It is indeed regrettable that neither management nor unions appears to have adverted to
the need to review the complaints procedure to ensure that it dovetailed with the new
disciplinary procedures as it had with the 2000 disciplinary procedures. It appears to the
court that the only section which required review was s. 3.5 of the complaints procedure.
It could for example have been revised to provide that in the event that a complaint is
upheld if the conduct the subject matter of the complaint is conduct of a serious nature
which might give rise to a finding of inappropriate behaviour, then the matter can be
transferred by the Board to Stage 3 of the disciplinary process to have the matter dealt
with as an allegation of a serious offence. Were that to occur, it would be open to the
teacher within the disciplinary process to argue that the conduct giving rise to the
complaint which had been upheld was a trivial matter, or a transient event and something
Page 61 ⇓
which did not warrant the imposition of a warning. As I say, unfortunately, neither
management nor the unions addressed this issue and the complaints procedure continues
to mandate a referral to the agreed contractual disciplinary procedures of September
2000.      
216.       As stated earlier, the court is satisfied that the Board of Management exceeded its
powers. It was entitled to hold as a matter of fact that the events of which AB complained
had occurred. It was not however entitled to hold that that conduct amounted to
inappropriate behaviour or inappropriate language. Such a finding could only be made
following an allegation of such an offence being put to the plaintiff in a properly
constituted disciplinary process.
217.       The fact that the Board of Management overstepped its role in the complaints process by
finding that the applicant had engaged in inappropriate behaviour and language, has
knock on effects of the disciplinary process. While, as already stated, the court has very
little evidence as to what precisely transpired at the disciplinary hearing, it does appear
that that hearing was not an enquiry as to whether the conduct found to have occurred
amounted to a serious offence, but rather proceeded on the basis that the applicant was
guilty of inappropriate behaviour and inappropriate language. It appears that the
applicant was afforded no opportunity to argue that the conduct complained of was a
trivial matter or events of a transient nature as provided for in the introduction to the
disciplinary procedures. The fact that he came before the disciplinary hearing already
convicted of inappropriate behaviour and inappropriate language meant that he was
deprived of all of the principles of natural justice set out at Chapter 2 of DES circular
60/2009. There was no presumption of innocence. There was no complaint that his
conduct towards AB amounted to inappropriate behaviour and language. The hearing
appears to have proceeded on the basis that all of that was established.
218.       Another deficiency in the disciplinary hearing which arises from the skewed interaction
between the complaints procedure and the new disciplinary procedure, is that the formal
disciplinary hearing was conducted by two people who had formed part of the Board of
Management who had already unanimously concluded that the applicant had engaged in
inappropriate behaviour and language. To put it mildly, this does not meet the standards
of an impartial inquiry.
219.       Another notable deficiency in the disciplinary process engaged in by the respondent is
that any appeal which the applicant might have is to the very Board of Management
which had just found him guilty of inappropriate behaviour and language. All of these
difficulties in the disciplinary process derive from two facts: -
(a) That the Board overstepped its mark in concluding in the Complaint’s Process that
he was guilty of a serious charge, and
(b) The Boards’ misplaced attempt to shoehorn the upheld complaint of AB into the
new disciplinary process.
Page 62 ⇓
Delay
220.       The respondents maintain that the finding of the Board in relation to the complaints
procedure is final, and unappealable as per the agreed procedures. They also maintain
that it is non – reviewable being a matter of private law. Alternatively, they argue that
any attempt to review is out of time, that decision having been taken on the 24th
February 2015 and leave to seek judicial review not having been initiated until the end of
November 2015.
221.       In relation to the disciplinary hearing the respondents maintain that the applicant did not
invoke his right of appeal from the disciplinary finding within the appropriate time or at
all. For reasons set out below I am satisfied that the respondent is correct that the
complaints procedure is not reviewable and that if reviewable, the time for such review
pursuant to O. 84, r. 21 expired on the 23rd May 2015. Insofar as the application to
judicially review the disciplinary sanction of a final warning letter, the court does not
consider that the application is out of time for the following reasons.
222.       The letter of the 21st April 2015 notifying the applicant of the imposition of a sanction
informed him of a right of appeal, but he was not specifically notified, as required by the
disciplinary procedures of 2009, of the appeal process. He is simply told to write to the
secretary of the Board of Management. The procedure requires that he be told that
pursuant to a sanction being imposed under Stage 3, that any appeal will be heard by the
Board of Management - the same Board of Management that earlier found that he had
engaged in inappropriate behaviour and inappropriate language. To set out the appeal
process in writing would only highlight the deficiencies between the interaction of the
complaints procedure and the new disciplinary procedures. It is certainly arguable that
time to challenge the sanction imposed of a final written warning does not begin to run
until he is told not merely of a right to appeal, but of the process of appeal.
223.       Secondly, while the applicants’ letter of the 10th May 2015 was in the courts’ view
directed to the unappealable complaints procedure and was for that reason directed to the
chairman of the Board of Management, and while the court is not persuaded by the
applicants’ explanation that this was a mere slip, the letter does evidence an intention to
appeal and the only matter capable of appeal was the sanction of a final written warning
imposed on him on the 21st April and apparently notified to him on the 27th April. The
school should have responded to this letter but did not do so for a period of four months.
224.       Their explanation that the applicant in his correspondence had said that he did not wish to
receive correspondence during holiday periods rings hollow. The 10th May was still within
term time and on an earlier occasion the school had seen fit to hand deliver a letter to the
applicant in his classroom. The school were at all material times aware of the applicants’
desire to appeal and of the fact that an appeal lay from the imposition of the final warning
letter sanction.
225.       In these circumstances, the court is satisfied that the time for bringing judicial review of
the disciplinary sanction runs from the letter of the 17th September 2015 when the
attitude of the school to an appeal first became clear.
Page 63 ⇓
226.       Turning then to the various reliefs claimed: -
i. An order of certiorari quashing the decisions of the respondent that the applicant
engaged in inappropriate behaviour and language in relation to a student on the
8th of May and 9th of May 2014.
227.       The court does not propose to grant such an order. This was a finding made by the Board
of Management following a hearing at stage 3 of the complaints procedure. The
complaints procedure is part of nationally agreed procedures between teachers’ unions
and Boards of Management. As we have seen in his correspondence the applicant
repeatedly refers to the agreed procedures. The complaints procedure is part of the
contractual arrangement between the applicant and the respondent. It does not have a
public law element capable of being judicially reviewed.
228.       Were the court wrong in so holding and the complaints procedure were capable of being
judicially reviewed, the court would still refuse to quash the order because of the
applicants’ conduct in and about the processing of the complaint.
229.       The applicant was contractually obliged to engage with the complaints procedure. He did
so at stage 1 and 2, but when it moved to stage 3 he engaged in extensive legalistic
arguments as to why in his view the process was flawed. He threatened judicial review
but did nothing. Instead of attending with his union representative or a colleague, and
denying the substance of a complaint before the Board, he absented himself from the
process. Those who do not participate in agreed procedures for the resolution of issues
cannot later come crying to the courts because they do not like the outcome of the
process. Even if the concerns expressed by the applicant were genuinely held, that was
no bar to him attending at the board of management meeting to put his case which was
apparently a denial that he had called AB “a little bitch”. When the outcome of the
complaints process became known, he took no action despite his repeated threats of
having recourse to law to protect his employment. He allowed the findings of the Board to
be processed through the disciplinary procedure without objection, merely reserving his
rights in the situation. In these circumstances, even if this were a matter which were
amenable to judicial review (which the court holds it is not) the court would hold that the
applicant by his behaviour had disentitled himself to such relief.
ii. An order of certiorari of the final warning letter sanction imposed pursuant to the
disciplinary procedures contained in DES circular 60/2009.
230.       As already head the respondent Board of Management fell into error, firstly, in concluding
at Stage 3 of the complaints procedure that the conduct which it found the applicant to
have engaged in, amounted to inappropriate behaviour and language. Thereafter, it erred
in attempting to shoehorn that finding into the new disciplinary procedures which post –
dated the agreed Complaints Procedure. This resulted in the applicant coming before the
disciplinary process as a person found to have committed an offence rather than a person
charged with an offence and furthermore placed him at a point in the disciplinary
procedure different to that which had been agreed in the complaints procedure.
Page 64 ⇓
231.       The net effect was that the applicant was denied a proper disciplinary process. The court
is conscious that the applicant appears to have acquiesced in that procedure in that he
entered it merely reserving his rights, however, that in the courts’ view is not sufficient to
validate the defective process which in fact occurred. The court will therefore grant an
order of certiorari of the final letter of warning issued by the respondent on the 21st April
2015 on the grounds that the process which led to the issuing of the final warning letter
was deficient for the reasons already stated. Having so found, it appears to the court that
no further orders or declarations are required, but the court will hear the parties in
relation to that finding.
232.       Finally, the court would urge the ASTI and Boards of Management to amend the parents
and students’ complaints procedure to reflect the contents of the disciplinary procedure
set out in DES circular 60/2009.


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