Enoch Burke was dismissed yesterday from his employment as a secondary school teacher with Wilson’s Hospital School in Westmeath. Mr Burke can appeal this decision within ten days of the decision to terminate.
The dispute has generated a great deal of publicity and media attention with frequent visits to the High Court. And those appearances at the High Court are not finalised yet, not by a long shot.
In the coming week, for example, the High Court is to give its decision regarding the school’s application for a sequestration of Mr Burke’s assets, an application described as “nefarious” by Mr Burke.
And Mr Burke’s application for an order that the whole disciplinary process embarked upon by the school has infringed his constitutional rights to natural justice, fair procedures, freedom of expression, freedom in respect of his religious rights has yet to be heard by the High Court in a full hearing.
Let’s park those issues for the moment and take a look at some employment law issues which arise in this case as there has been a great deal of commentary online on social media sites and elsewhere.
A school’s rights and obligations
A school is entitled to determine its ethos and implement policies and procedures in the school that are lawful and in keeping with the school’s ethos. The ethos will come from the school’s patron.
Once a board of management does this it is entitled to expect that teachers, SNAs, and other staff will follow reasonable direction from the board and the Principal who is responsible for the day to day running of the school.
The school also has obligations in respect of health and safety and has rights (and obligations) to maintain order in the school and workplace and exercise a duty of care to pupils and staff.
The school also has the right to investigate and discipline employees, when necessary.
And to ensure dignity and respect for all employees and pupils, and the right to deliver an education to the pupils of the school.
Pupils have a right to an education and the support and assistance of their school and its staff.
Teachers, and other staff in any school, have rights arising from their contract of employment, statute law, and the constitution to name the most important sources.
But legal and constitutional rights are not absolute.
They come into conflict often with the rights of others. And a court then has to weigh up the conflicting rights and make a decision.
Anyone with a passing interest in the constitution, Bunreacht na hEireann, will know that all the personal rights are qualified.
For example, the right to freedom of expression is “subject to public order and morality”.
Rights in respect of private property are subject to
2° The State, accordingly, may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good.
Rights to form associations and unions are subject to
The right of the citizens to form associations and unions.
Laws, however, may be enacted for the regulation and control in the public interest of the exercise of the foregoing right.
There are primary school teachers who have strong religious beliefs.
There are also agnostic and atheist primary school teachers who help prepare their pupils for first holy communion and confirmation.
Because that is the job they signed up for. They can still hold their beliefs or choose not to have any religious beliefs.
But their contract obliges them to follow reasonable directions of the employer and make themselves amenable to disciplinary procedures.
This is a fundamental of the employment relationship generally.
Disciplinary procedures in the education system in Ireland
All schools in the State have a great deal of assistance with respect to procedures and policies in the workplace from the Department of Education.
The Department of Education provides policies and procedures to schools to ensure discipline, dignity at work, discrimination, bullying, grievances, and so on are dealt with in accordance with the law and best practice.
You will also have employee handbooks and contracts of employment.
Any employee in a school who has a complaint or issue to raise would be expected to follow the grievance procedure in the workplace in the first instance. They can also bring that complaint to the Workplace Relations Commission if they are not satisfied with the outcome of the internal process.
The Department also issues circular letters, lots of them, to boards of management dealing with all kinds of things that might arise in a school on a regular basis.
Many schools will also have a body to which they pay an annual subscription/fee, depending on how many pupils in the school, and to whom they can turn for further assistance when problems arise.
In the primary sector, for example, you will have CPSMA (Catholic Primary Schools Management Association) and there are similar bodies in the secondary sector.
The teaching professions also have large, strong, powerful unions such as the TUI, INTO, ASTI etc. representing teachers and other staff working in schools.
And there is a long, well-established tradition in the education sector of representation for employees, policies, and procedures to reflect changes in employment law etc.
That’s not to say that in any individual case mistakes cannot be made or one party or the other may be at fault and compound matters by digging in.
But when an employee comes to me for legal advice, and I learn that they are an employee in the education sector, I immediately know that the environment in which they work is not like a small employment scenario in the private sector.
I know she comes from a well organised, structured sector of the employment community and the likelihood of the employee having a justiciable claim on the basis of absence of procedures/policies is much less than an employee coming from a small, private sector employment such as a small, one-man band outside Enfield who has one employee and a couple of part timers.
When you dispel a lot of the heat and hot air around the Enoch Burke case you realise that it is simply an employment law dispute that has gone wrong.
And for that reason, it is worth our while to remind ourselves of certain fundamental principles of employment law.
In any legal dispute there are competing rights. The rights on each side are not unconditional or absolute.
This case is no different.