This school principal went to the High Court to seek an order
quashing the decision by the Board of Management of a national school from
terminating her employment as a school principal and teacher.
The allegations against the school principal involved
allegations of inappropriate behaviour towards two pupils, made against her by
a special needs assistant. The school was a small one with only two teachers, including
The school principal had been dismissed in March 2018 and appealed
the decision to the Disciplinary Appeals Panel. The Disciplinary Appeals Panel
(DAP) recommended that the teacher be immediately reinstated to her position as
principal. The Board of Management rejected this recommendation.
The teacher’s case to the High Court was that the
investigation leading up to, and the decision to terminate her employment was
fundamentally flawed and legally indefensible. The core of her argument,
however, was that the failure by the Board of Management to give any, or any
adequate, reasons for the decision to dismiss her was irrational and unreasonable.
She argued that there was no proper evaluation of the
evidence against her, nor had she been told what allegations had actually been
found as having been proven against her.
Thus, she argued that the decision was bad at law for having
failed to giver reasons for the decision.
She also argued that the decision to ignore the
recommendation of the DAP was bad at law having regard to the established case
law as to the circumstances where a Board could lawfully depart from the
recommendations of the DAP.
High Court Decision
The High Court, Barr J, held that the Board of Management
had acted rationally and fairly in the investigation and disciplinary stage of
Where it went wrong, however, was in engaging with the
evidence against the Principal and deciding which, if any, allegations were
proven against her. The Board had to engage with the evidence in a fair and
rational manner and this could only be shown if they could give reasons for
They had failed to do this.
They also failed to give due regard to the recommendation of
the DAP and there was no logical or constructive engagement with the DAP
recommendation. For these reasons the High Court set aside the decision of the
Board to terminate the Principal’s employment and quashed the decision.
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.
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
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
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
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.
If you appeal a decision of the WRC to the Labour Court and you are still dissatisfied with the outcome you have two options that may be open to you:
A statutory appeal to the High Court on a point of law
A judicial review
A judicial review is appropriate where your case has been handled so badly that you can reasonably argue that you have not had a fair hearing in the first instance-for example at the WRC. An example of a failure by a statutory body, the Employment Appeals Tribunal, to exercise its power properly was in Mythen v Employment Appeals Tribunal  E.L.R. 1. In this case the High Court held that Mythen should not be expected to appeal the decision of the EAT to the Circuit Court when it had failed to hear the case on a mistaken basis thus failing to exercise its statutory power.
In Board of Management Blackrock College v Mary Browne  I.E.H.C. 607 Ms Browne argued that the Board of Management Blackrock College should have proceeded by way of judicial review, not by way of a statutory appeal against the decision of the Labour Court.
The High Court held that the Board of Management Blackrock College was correct in going by way of statutory appeal as it argued that the Labour Court erred in law in reaching its decision and there was a particular statutory appeal provided for on the statute books for this type of circumstance.
The High Court has held that the default position is clear: a party must pursue a statutory appeal rather than a judicial review as the Oireachtas set up such a procedure and put it on the statute books for those dissatisfied with an initial decision. See Koczan v Financial Services Ombudsman  I.E.H.C 407.
The High Court in Koczan v Financial Services Ombudsman  I.E.H.C 407 gave some guidance as to when a judicial review might be appropriate:
A total lack of subject matter jurisdiction
The integrity or basic fairness of the decision making process
Cases touching on the constitutionality of legislation or validity of statutory instruments, where the legal issue cannot properly be raised by way of appeal
These cases must be regarded as exceptions, however, rather than the rule.
Where a lower court falls into error in respect of jurisdiction, or acted outside its jurisdiction, or failed to exercise its jurisdiction (eg Mythen case above), bringing a judicial review is the way to proceed. Also where a lower court have permitted unfair procedures.
Otherwise, there is a fair degree of curial deference and respect shown by the High Court to the Labour Court and a presumption that it will act within jurisdiction.
The High Court has a limited role in dealing with a statutory appeal from a decision of the Labour Court. The appeal must be based on a point of law or an unsustainable finding of fact, as stated in An Post v Monaghan  I.E.H.C. 404
The High Court cannot weigh strengths or weaknesses of arguments put forward or the Labour Court’s decision thereon.
Order 84C of the Rules of the Superior Courts sets out the rules for a statutory appeal to the High Court which is done by way of an Originating Notice of Motion. There is a time limit of 21 days from the notification of the deciding body’s decision, unless this is extended for ‘good and sufficient reason’ and no injustice is done to any other person.
Where the High Court finds that a lower body has fallen into an error of law-either on its application of the law to the facts or its analysis of the facts-it will send the case back to the lower body to be reheard.
How the High Court Deals with Statutory Appeals and Judicial Reviews
The approach of the High Court is set out in the Henry Denny & Sons (Ireland) Limited v Minister for Social Welfare  1 IR 34 and is to the effect that the Superior Courts should be slow to interfere with the decisions of expert administrative tribunals, unless ‘conclusions are based upon an identifiable error of law or an unsustainable finding of fact by a tribunal’.
Thus, the circumstances where the Superior Courts will interfere are where there is
An identifiable error of law
No relevant material to support a finding of fact
An irrational or illogical finding of fact
An absence of fair procedures and constitutional justice in how the lower tribunal carried out its hearing
The Supreme Court, in Burke v Miley, Miley and Devils Glen Equestrian Centre Limited  1 IR 343, held that the Employment Appeals Tribunal should have immunity from costs orders except in cases where there was evidence of mala fides.
However, in employment cases the likelihood is that the two parties in the original dispute will be involved in the judicial review in which case either party can be held liable for costs, depending on the Judge.
In statutory appeal cases costs are more likely to be awarded to one or other of the parties, at the discretion of the Judge.