high court

Teacher Refused Judicial Review in High Court Seeking to Stop Disciplinary Case Against Her

Are you a teacher?

A recent decision of the High Court may be of interest to you as it involved a teacher commencing High Court legal proceedings as a consequence of being asked to attend a disciplinary hearing.

Background

The allegation against the teacher concerned her conduct towards school staff including the school Principal. The procedures for the suspension and dismissal of teachers provide for the Principal to deal with the issue at Stage 1.

The teacher complained that as the allegation against her concerned her conduct towards the Principal the Principal should not be involved in the procedure. The Board of Management did not agree but eventually it was decided that the Principal would step aside and an independent person would be asked to deal with the stage 1 procedure.

So, the teacher went to the High Court seeking to prevent the disciplinary procedure from going ahead on two broad grounds:

The Principal was biased and had prejudged the issue
The teacher also argued that the procedures did not apply to her as they required the concurrence of the Minister for Finance

The Board of Management’s position was that they were merely applying the well-established, negotiated procedures which were agreed between teachers, unions, the Patrons and management bodies, and the Department of Education.

The Board also took the view that this was a matter with which the High Court should not involve itself as it was a minor matter which, at worst, would result in a verbal warning which would disappear of the teacher’s record after 6 months.

The Board also argued that section 24 of the Education Act, 1998 allows the Department of Education to determine the terms and conditions of employment of teachers and a board of management can suspend and dismiss teacher in accordance with the procedures agreed between the Minister of Education, the boards of management, the patron bodies, and the trade unions.

24.—(1) Subject to this section, a board may appoint such and so many persons as teachers and other staff of a school as the board from time to time thinks necessary for the performance of its powers and functions under this Act.

(2) The numbers and qualifications of teachers and other staff of a school, who are to be paid from monies provided by the Oireachtas, shall be subject to the approval of the Minister, with the concurrence of the Minister for Finance.

(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.

(4) Pending the agreement of procedures provided for in subsection (3), the procedures applied in the appointment, suspension and dismissal of teachers or other staff immediately before the commencement of this section shall, after such commencement, continue to be applied.

(5) The terms and conditions of employment of teachers and other staff of a school appointed by a board and who are to be paid from monies provided by the Oireachtas shall be determined by the Minister, with the concurrence of the Minister for Finance.

(6) Where all or part of the remuneration and superannuation of teachers and other staff of a school is paid or is to be paid from monies provided by the Oireachtas, such remuneration or superannuation shall be determined from time to time by the Minister, with the concurrence of the Minister for Finance.

(7) Where, at the commencement of this section the employer of the teachers or other staff in a post-primary school is a person or body of persons other than the board of the school, then subsections (1), (3) and (5) shall apply as if the person who or the body which, at such commencement and from time to time thereafter, is such employer, is substituted for the board as therein referred to.

(8) Except in the case of an agreement as provided for in subsection (3), nothing in this Act shall have the effect of altering, after the commencement of this Act, the terms and conditions of teachers and other staff of a school under which they were employed before such commencement.

(9) This section shall not apply to teachers or other staff of a school which is established or maintained by a vocational education committee.

The Judge in the High Court held that any perception or allegation of bias or absence of fair procedures was adequately dealt with by the appointment of an independent person to investigate.

He also held that the procedures agreed between unions and boards of management formed part of the teacher’s contract of employment and were applicable and in force until they were changed by the Department of Education or were held to be invalid in legal proceedings.

Judge Binchy also noted that a verbal warning was a minor penalty and, provided there was no problem with her conduct, would be gone off her record after 6 months.

In conclusion the High Court held that the matter was of such a minor nature that the procedures adopted by the Board of Management were not amenable to judicial review and he refused the application.

High Court Has No Jurisdiction in Employment Claim to Workplace Relations Commission

If you have ever been dissatisfied or critical of the Workplace Relations Commission in relation to an employment dispute and you have wondered whether you are able to canvas your complaints in the Civil courts a recent (June 2019) High Court decision clarifies the matter.

In Maurice Power v HSE [2019] IEHC 462 Mr. Power asked the High Court to step in and prevent his removal by his employer, the HSE, from his role as CEO of Saolta University Healthcare Group. Importantly from the perspective of the sought High Court intervention Mr Power had already submitted a complaint to the WRC (Workplace Relations Commission) seeking an order that he was entitled to a CID (contract of indefinite duration).

The question then arose as to whether the High Court could interfere in the case or was it obliged to let the WRC deal with the matter.

Background to Mr Power’s case

Mr Power had been employed by the HSE since 1999. In 2014 he was asked to take on the role of interim Chief Executive Officer of the Saolta University Healthcare Group. In 2018 the HSE decided to hold a competition to appoint a permanent CEO and held a competition in which Mr Power was unsuccessful.

Mr Power then claimed he was entitled to a contract of indefinite duration (‘CID’) pursuant to the Protection of Employees (Fixed-Term Work) Act 2003 by reason of his employment on a series of fixed term contracts. He brought a claim to the WRC for an order that he was entitled to a CID.

High Court

Before Mr Power’s complaint was heard by the WRC he sought an order from the High Court preventing his removal from the post and preventing the appointment of anyone else to the position.

The High Court took the view that as Mr Power’s rights under the Protection of Employees (Fixed-Term Work) Act 2003 were statutory rights the correct venue to uphold those rights was the WRC. For this reason, the High Court decided it had no jurisdiction in the matter and could not make the order sought by Mr Power.

Mr Justice Allen held that the administrative tribunals such as the WRC and Labour Court were appointed by the Oireachtas to enforce these statutory rights and the High Court could not interfere.

The Court also held that the orders sought by Mr Power were intended to shape the decision of the WRC when the hearing was held and that even if he was unsuccessful at the WRC he would not lose his job but revert to a previous role. The Court also held that if he was successful damages would be an adequate remedy for Mr Power.

For these reasons the application for an injunction failed.

Disciplinary Procedures in the Workplace-3 Interesting High Court Decisions About Fair Procedures

Are you an employer or employee involved in a disciplinary procedure in the workplace?

If you are you need to be clear about the rules that should apply to such procedures, including at the investigatory stage and the ultimate disciplinary procedure where a sanction may be imposed.

The High Court has recently handed down three decisions in relation to internal investigations and disciplinary procedures in the workplace.

And, unfortunately, the principles that you would like to be crystal clear about in relation to carrying out a disciplinary procedure in the workplace are not entirely settled.

Let’s take a look at the three cases, all of which are dealt with in the High Court over a short period of time in the first part of 2017, and you will see what I mean.

The first case is Lyons v Longford Westmeath Education and Training Board . Mr. Lyons is a teacher with the Longford Westmeath Education and Training Board and certain allegations were levelled against him. The employer engaged the services of an external HR company who carried out an investigation into the allegations.

However, the HR company went further than merely carrying out an investigation-it also issued a report, presumably because they were requested to do so by the employer, and found against Mr. Lyons with respect to the bullying allegation made against him.

Mr. Lyons then brought an action in the High Court arguing that

He should have been allowed legal representation during the investigation, and
His legal representative should have been allowed to cross examine any witnesses.

The High Court held in his favour, which surprised many observers as it was generally understood that the full panoply of fair procedures and natural justice need not be afforded in the preliminary investigation stage of a disciplinary procedure, and it was sufficient if the employee had representation and could cross examine at the disciplinary hearing stage where dismissal was a possibility.

What distinguished this case from others, perhaps, is the fact that the investigation resulted in a report being issued and an adverse finding against Mr. Lyons. If the investigation simply investigated the allegations and decided whether there was a case to answer or not, and stopped there, then Mr. Lyons it may have been held by the High Court that he was not entitled to legal representation and to cross examine witnesses.

Justice Eager held, inter alia,

It is quite clear to this Court that the proceedings adopted by Graphite Recruitment HRM Ltd. is in breach of Article 40(3)(1) and (2) of the Constitution of Ireland by the refusal to allow legal representatives to appear on behalf of the applicant. The processes adopted by Graphite Recruitment HRM Ltd. failed to vindicate the good name of the applicant, in their refusal to hold an appropriate hearing, whereby the applicant through solicitor or counsel may have cross-examined the complainant..Equally, the complainant ought be entitled to then cross-examine the applicant.

And

The Court is clear that in circumstances where a complaint is made which could result in an individual’s dismissal, or where it impinges on the individual’s right to a good name, the individual is entitled to fair procedures, as outlined by the Supreme Court in the case law quoted above.

The second case worth looking at is E.G. v The Society of Actuaries in Ireland.

E.G. was an actuary and there was allegations against him of wrongdoing. The Society of Actuaries in Ireland, in responding to the complaints against E.G., set up an investigative committee who were to investigate the allegations and decide whether he had a case to answer, that is, whether there was prima facie evidence of wrongdoing.

The committee found there was prima facie evidence of wrongdoing and E.G. then sought an order from the High Court that he was entitled to natural justice and the finding of the committee should be set aside.

In this case the High Court decided that as the committee was only in the preliminary stages of a procedure involving an investigation, and did not have the power to make adverse findings against E.G., and the full panoply of fair procedures and natural justice was not necessary. It would only be in the formal disciplinary enquiry, where E.G. may have serious adverse findings made against him and sanctions imposed, that he would be entitled to legal representation and to cross examine witnesses.

The Court made a clear distinction between the preliminary investigation and the later formal disciplinary procedure.

The High Court relied on a High Court case, later upheld in the Supreme Court, involving the Law Society of Ireland, O’Sullivan v Law Society of Ireland [2009] IEHC 632.

Justice McDermott held:

In the courts view it was not necessary for the first named respondent to afford to the applicant the full panoply of natural justice rights in the course of any investigation into his conduct (outside of and/or in parallel with, any s. 8 or s. 9 process that may also have been underway) prior to their invocation of s. 17. They were of course, obliged to treat him fairly but they were entitled to adopt less formal and more abridged procedures than in circumstances where s. 17 had actually been invoked.”
85. The Supreme Court in dismissing an appeal against the judgment of Edwards J. [2012] IESC 21 was satisfied that the full panoply of natural justice rights does not inexorably apply at every phase of an investigative process. An appropriate standard of fair procedures must be applied at all stages of a tiered process. There may be situations in which a stronger degree of procedural protection may be required having regard to the decision to be taken at an investigative stage or its potential consequences.

And

A full oral hearing will be required before the Disciplinary Tribunal following the referral in the course of which the full panoply of rights will be available as set out in the Scheme as already described.

The third case was also, like Lyons above, in the education sector, N.M. v Limerick and Clare Education and Training Board.

The teacher in this case sought an injunction preventing the employer from carrying the disciplinary procedure to a conclusion. The Court considered whether the employee would have been entitled to cross examine witnesses at the investigation stage, even though this stage had already completed by the time the case came to the High Court.

Even though the investigation was tasked with making findings of fact the High Court found that because it could not make findings of fact which were final or binding, that is, the findings were only made as part of the investigation stage of the procedure.The Court held therefore, that the employee was not entitled to the full range of fair procedures/natural justice.

It also held that, therefore, that he was not entitled to cross examine witnesses and reiterated the principle arising from O’Sullivan v Law Society of Ireland [2009] IEHC 632 that the full range of fair procedures and natural justice is required at the disciplinary stage of the procedure, and not earlier in the investigation.

Conclusion

It remains to be seen whether the decision in the Lyons v Longford Westmeath Education and Training Board case is followed or not. From an employers perspective it seems to be a prudent course of action to ensure that the investigation that is carried out does not make final binding findings of fact and is strictly a fact finding exercise, and leaves final binding findings of fact to the disciplinary stage of the procedure.