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Judicial Review

Board of Management of School and Disciplinary Action

Judicial Review, Board of Management of School and Disciplinary Action


The case of Kelly -v- Board of Management of St Joseph’s National School, Valleymount, Co Wicklow [2013] IEHC 392 concerned an application for judicial review and dealt with a series of issues including disciplinary processes and appeals procedures.

Background

The applicant in this case was the principal of St. Joseph’s National School in Valleymount, Co. Wicklow. The respondent Board of Management decided on the 22nd November 2012 to demote her from that position to the grade of “mainstream”, or ordinary, teacher. This decision was made on the basis that the applicant was guilty of “serious misconduct”. An appeal to a Disciplinary Appeal Panel recommended that the disciplinary process should recommence at the informal stage of the disciplinary procedure; should warn the applicant as to her conduct and should ask her for an apology for her behaviour. The Board did not accept the recommendation and confirmed its original decision on the 12th March, 2013.

In essence it was decided by the Board to commence disciplinary action against the applicant for failure to carry out a legitimate instruction i.e. that she failed to prepare a fixed term contract for a substitute employee. The disciplinary process relating to school principals was governed by DES Circular 60/2009. A report was compiled and furnished to the applicant which provided that the report

“…arises from longstanding concerns about her conduct, particularly in relation to her dealings with Boards of Management and others over a number of years. These matters have “come to a head” in recent weeks and are now having serious consequences affecting the pupils in the school directly“.

The report referred to the seniority problem as being “the major issue which has given rise to conflict between the Principal and Boards of Management” and stated

“The current seniority list was established by the Board of Management in June 2009. At that time and consistently and persistently since then the Principal has objected to it. Despite masses of correspondence and lengthy discussions at Board meetings at which this listing has been upheld the Principal refuses to accept the established position. Incidentally, the Board’s position on seniority has been endorsed as correct by legal advice received, by the Education Secretariat of the Archdiocese and by the Department of Education.

The report also detailed other examples of behaviour by the applicant such as refusing to comply with legitimate, specific, instructions from the Board of Management on a number of occasions with serious consequences and concluded by stating that the Board had been left with no option but to invoke the disciplinary procedures set down in Circular 60/2009 and to move immediately to Stage 4 of that process which deals with such serious matters.

The applicant furnished a detailed reply to the report including responding to the issue of the fixed term contract by stating that she could not do this because it was not in accordance with DES advice/policy and CPSMA guidelines. The applicant also dealt with the various additional allegations raised and refuted these in the strongest terms.

The Board met on four evenings to conduct the hearing the 16th October, 22nd October, 7th November and 22nd November. The applicant was represented by the Deputy General Secretary of the Irish National Teachers Organisation. When the hearing concluded on the 22nd November, the Board (not including the chairman) deliberated for about an hour and it was subsequently agreed by the Board that disciplinary action should be taken which was ultimately reduced to demotion (loss of principal’s allowance) and in addition the applicant as principal was not permitted to serve on the school’s Board of Management in the future as a Teachers Representative. It was also agreed that the applicant’s performance/behaviour would be reviewed after 6 months from date of sanction. At the subsequent appeal hearing , the chairperson submitted that the sanction was perfectly justifiable and that he and his fellow Board members would resign from the Board if the Disciplinary Appeals Panel (DAP) did not find in their favour.

The DAP recommended inter alia that the Board consider the application of the Informal Stage as outlined on C60/2009. The Board however chose not to accept the DAP recommendation and wrote to the applicant stating that the Board had decided not to accept the appeal panel recommendation and to proceed with implementation of the sanction of demotion as determined at the meeting of the 22nd November meeting. The Board contended that the applicant was not entitled to seek judicial review.

Judicial Review and Relevant Authorities

The Court provided that the assessment for the amenability to judicial review of disputes are set out in the judgment of the Supreme Court in Geoghegan v. The Institute of Chartered Accountants [1995] 3 IR 86. The applicant relied on the Supreme Court decisions in Beirne v. Commissioner of An Garda Síochána [1993] ILRM 1 and O’Donnell v. Tipperary (South Riding) County Council [2005] 2 ILRM 168 in relation to the applicability of judicial review procedures to certain types of employment-related issues.

Justice O’Malley noted that the judgments concerning the employment of teachers yielded a variety of outcomes. In date order, the first was Tobin v. Mayfield Community School (unrep., Kearns J., 21st March, 2000).The applicant was a full-time, permanent vocational teacher in a community school and Kearns J.ultimately considered that the requisite public law element was present. In Becker v The Board of Management St Dominick’s (unrep., Peart J., 14th April, 2005) the applicant was a secondary school teacher who found herself the subject of a complaint by a fellow teacher. Peart J. said that there was

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.

Becker was considered and distinguished in Brown v. The Board of Management of Rathfarnham N.S. [2008] 1 I.R. 70 where the issue arose from the selection process for the position of principal. T Citing the principles set out in Geoghegan, Quirke J. considered the following to be the relevant factors:

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 on 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 the 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 respondent and the notice party was created is expressly regulated by a statutory regime.”

Quirke J. distinguished it on the basis that it had concerned a disciplinary procedure adopted privately by the school, rather than the application of rules and procedures which had a statutory derivation and which were imposed pursuant to a public policy sanctioned by the Oireachtas. In Hand v. Ludlow (unrep., O’Keeffe J., 18th December, 2009)the applicant was the principal of a primary school to which a manager had been appointed, under statutory power, in place of a Board of Management. The applicant sought to prohibit the manager from conducting a disciplinary process against him. On the facts of the case before him, O’Keefe J found the decision in Becker to be more appropriate and concluded that the dispute should be governed by a private law remedy.

Justice O’Malley concluded that the applicant was entitled to seek judicial review and that she was 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……….Having regard to the provisions of that circular, which is part of the statutory regime established by the Education Act, I do not feel that the hiring and firing of teachers pursuant to procedures prescribed by the Act can now be described as a private contractual issue“.

November Decision

The applicant sought an extension of time to challenge the November decision and the Court referred to Order 84 rule 21 of the Rules of the Superior Courts which provide that an application for judicial review shall be made within three months from the date when grounds for the application first arose.

The respondent contended that the applicant did not satisfy the criteria set out in rule 21 and that the broader discretion enjoyed by the court under the rule before the 2011 amendment to extend time “for good and sufficient reason” was now confined by sub-rule 3(b). The respondent also argued that, having appealed the decision to the Disciplinary Appeal Panel, the applicant must be taken to have accepted the legal validity of the November decision and cannot now impugn it. The applicant submitted that she engaged in a statutory process which involved a number of stages and 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. Justice O’Malley agreed with the applicant and noted “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 incentivize parties to litigate prematurely.

Conclusion

The Court stated that it was concerned with……”the process by which the board reached the decision to demote her and the rationality of that decision“. It referred to the voluntary role of the members and noted “….it is incumbent on the staff to respect the voluntary effort of the board members, to accept that the board has the job of management and in particular to respect the role of the board as their employer“.

Justice O’Malley noted that in respect of teacher x, “…..there is no doubt that her preoccupation with the issue led her to forget her duty of respect for the Board. Her tone in dealing with the Board, as evidenced by her emails and, indeed, her presentations to the disciplinary hearing, is on occasion both chiding and truculent. She did not accept that her manner in meetings or in one-to-one situations was aggressive but it is clear that the Board members’ perception was to the contrary.

Rather than confront the issues, the Court noted that the attitude of the Board was to suffer in silence in the hope that the applicant would change and “….In terms of management, this was a recipe for disaster“. It further noted “…the Board allowed the situation to deteriorate to the point where they lost a sense of perspective regarding their role as an employer. Then, having finally decided to take action, they launched a disciplinary process at the most serious stage“.

The court noted that the disciplinary process, as carried out by the Board, did not accord with the dictates of fairness or rationality and that:

1. The charges against the applicant were laid in such general terms that even now it is not possible to say whether it was contended that the applicant had refused to comply with more than one instruction.
2. The issue of misconduct regarding the general behaviour of the applicant became entangled in arguments about events of years gone by which had never been the subject of complaint at the time. It is not fair or rational to accuse an employee of serious misconduct and then go looking for evidence from people whose connection with the school had ceased and who had never made complaints at the time. It is not fair or rational to accuse an employee of serious misconduct on the basis of a pattern of behaviour that was never called into question even on an informal basis
“.

Finally the court concluded that it was of the view that the sanction imposed was unfair and irrational in the sense that it was disproportionate. O’Malley J noted “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. They did not consider at all the financial consequences to the applicant. It was also considered that the approach of the Board to the Disciplinary Appeals phase of the process did not appear to be open-minded…..While a board is not bound to carry out its recommendation, it should in my view depart from it only for very good reasons“.

The Court concluded by proposing to quash both decisions of the respondent Board.