An Bord Banistíochta and Another v The Labour Court

• Jurisdiction: Ireland
• Judge: Mr. Justice Cregan
• Judgment Date: 14 July 2023
• Neutral Citation: [2023] IEHC 484
• Court: High Court
• Docket Number: [2022/178 MCA]

In Re the Unfair Dismissals Act, 1977 as Amended – An Appeal Pursuant to Section 46 of the Workplace Relations Commission Act, 2015 as Amended

Between

An Bord Banistíochta, Gaelscoil Moshíológ

Appellant

and

The Labour Court

Respondent

Aodhagán O'Suird

Notice Party

[2023] IEHC 484

[2022/178 MCA]

THE HIGH COURT

JUDGMENT of Mr. Justice Cregan delivered on the 14 ^th of July, 2023

Introduction

1 . This case is a shocking story of a terrible injustice done to Mr. Ó Suird. It resulted in his odyssey through the school disciplinary process, the unfair dismissal process, and the legal system in order to clear his name and to be reinstated as Principal of the school he helped to establish. However, unlike the Odyssey, which only lasted ten years, Mr. O'Suird has had to endure this injustice for over eleven and a half years – all because of the unreasonable actions of Ms. Ni Dhuinn, the chairperson of the Board of Management, and other members of the Board of Management, of the school in question.

2 . A summary of this case is as follows. On or about 20 ^th January 2012 — over eleven and a half years ago — Mr. O'Suird was put on administrative leave from his position as principal of the primary school in respect of a single child incident which occurred on 10 ^th January, 2012. The parents of the child regarded it as a “minor incident”; a HSE investigation concluded in November 2012 that the matter did not rise to the level of physical abuse of a child and recommended the school carry out its own investigation. However Ms. Ni Dhuinn did not do so. Instead she began to investigate other issues relating to enrolment figures which were returned to the Department of Education and Skills (“the Department”). As a result, Mr. O'Suird was kept on administrative leave and then suspended in May 2013. A disciplinary hearing of the Board of Management was conducted, prosecuted by Ms. Ni Dhuinn, and, in August 2015, he was dismissed from his position as principal with effect from 30 ^th November 2015. He appealed to the Disciplinary Appeal Panel which upheld the dismissal. He appealed to the Workplace Relations Commission (“WRC”) which found his dismissal was unfair, and ordered his re-engagement. The Board of Management appealed to the Labour Court which also found he was unfairly dismissed and ordered his re-engagement. The Board then appealed to the High Court.

The parties

3 . The appellant in this matter is An Bord Banistiochta, Gaelscoil Moshiolog which I will refer to in this judgment as the “Board of Management “or “the Board”.

4 . The respondent is the Labour Court which took no part in these proceedings.

5 . The notice party is Mr. O'Suird, the school principal.

6 . It is important for the purposes of this judgment to introduce the main parties in this dispute. The two main parties are Mr. O'Suird, the principal of the school, and Ms. Melanie Ní Dhuinn, the chairperson of the Board of Management. Another important figure is Mr. Malcolm Byrne, a member of the Board and the chairman of the Board's Disciplinary Panel which heard Mr. O'Suird's case.

7 . Mr. O'Suird was born in Gorey on 5 ^th February, 1960 and is 63 years of age. He grew up in Wexford and attended St. Patricks College, Dublin where he qualified as a teacher. Subsequently he studied in the evenings for a B.A. in UCD. He also holds an M.A. from the Open University, an M.Sc. from Dublin City University and a Diploma in Educational Management from NUI Maynooth.

8 . Mr. O'Suird began teaching at St. Pius X National School in Terenure. Then, between 1986 and 1998 he was a school principal at Boolavogue national school in County Wexford. He was appointed to that position at the age of 26. From 1998 to 2002 he was a teacher at a gaelscoil in Wexford town.

9 . Mr. O'Suird had a dream of opening an inter-denominational gaelscoil in Gorey and he was centrally involved in the establishment of the new school which is at the centre of these proceedings — Gaelscoil Moshiolog. This new school opened in 2002 in Gorey. Mr. O'Suird said in his evidence on affidavit to this court that he was a “ very hands-on school principal and spent a lot of my spare time in the school's early years trying to assist with its establishment and growth. My three sons also attended the school. I am extremely proud of the school and the central role which I played in its establishment”.

10 . The other main party in this case is Ms. Melanie Ni Dhuinn. Ms. Ni Dhuinn is a qualified post-primary teacher and an Assistant Professor of Education at Trinity College Dublin. She is also a director of the Professional Master of Education programme there. She was invited by Mr. O'Suird to become chairperson of the new incoming Board of Management in December 2011.

The Board of Management

11 . The school at the centre of this case was founded in 2002. From the start, it had its own Board of Management. It appears that Mr. O'Suird had very good relationships with each member of the Board of Management from the foundation of the school in 2002 until January 2012. However an entirely new Board of Management was appointed in or about November 2011 and took up office in December 2011. Ms. Ni Dhuinn was elected chairperson of this Board of Management in December 2011.

12 . Mr. O'Suird met the new Board once – at its monthly Board meeting on 9 January, 2012. Then on 20 ^th January 2012, he was put on administrative leave by Ms. Ní Dhuinn.

The legal status of the Board of Management

13 . Section 14 of the Education Act, 1998, sets out the nature and powers of a Board of Management.

14 . Section 14 (1) provides as follows:

“14.—(1) It shall be the duty of a patron, for the purposes of ensuring that a recognised school is managed in a spirit of partnership, to appoint where practicable a Board of Management …..”

15 . Section 14 (2) provides:

“A board established in accordance with subsection (1) shall fulfil in respect of the school the functions assigned to that school by this Act, and, except in the case of a school established or maintained by a vocational education committee, each board shall be a body corporate with perpetual succession and power to sue and be sued in its corporate name.”

16 . It is important to note that Section 14 (2) of the 1998 Act provides that each Board of Management shall be a “body corporate with perpetual succession”. Therefore, although personnel of the board may change from year to year, the board itself is a legal body with perpetual succession. This is important in the context of this dispute.

Chronology of events

17 . Given the extraordinary length of time this case has taken to come to the High Court and the convoluted route which it has taken, it would be helpful to set out a thumbnail sketch of some of the key dates in the history of this case. The landmark dates are as follows –

— 11 ^th January, 2012 – single child incident (which will be dealt with in greater detail below).

— 20 ^th January, 2012 – Ms. Ní Dhuinn puts Mr. Ó Suird on administrative leave.

— 26 ^th January, 2012 — the Board of Management put Mr. O'Suird on administrative leave arising out of the single child incident;

— 13 ^th March, 2013—Board of Management decided to keep Mr. O'Suird on continued administrative leave for reasons identified in its investigation into enrolment figures;

— 29 ^th May, 2013 – Ms. Ní Dhuinn, chairperson of the Board of Management, writes setting out allegations against Mr. O'Suird and suspending him on full pay;

— 5 ^th November, 2014, 8 ^th April, 2015, 3 ^rd June, 2015 – three days of disciplinary hearings before the Board of Management;

— 31 ^st August, 2015 — letter dismissing Mr. O'Suird from the school with effect from 30 ^th November, 2015;

— 9 ^th November, 2015 — hearing before the Disciplinary Appeal Panel (which appeal was dismissed);

— 30 ^th November, 2015 — Mr. O'Suird dismissed;

— 8 ^th February, 2016 — Mr. O'Suird makes complaint of unfair dismissal to the Workplace Relations Commission;

— June 2016 — the post of principal of the school advertised;

— 1 ^st July, 2016 — new principal appointed to that position;

— 4 ^th December, 2017 – hearing before the Workplace Relations Commission (“WRC”);

— 25 ^th April, 2018 — WRC issues a finding that Mr. O'Suird had been unfairly dismissed and directing reengagement with effect from 1 ^st January, 2018;

— 15 ^th June, 2018 — the Board of Management appealed the decision to the Labour Court;

— November 2018 — July 2021 — eleven days of hearings before the Labour Court;

— 3 ^rd June, 2022 — Labour Court decision that Mr. O'Suird had been unfairly dismissed and directing reengagement with effect from 1 ^st September, 2017;

— July 2022 — Appeal to the High Court from the Labour Court decision;

— 27 March – 29 March 2023 – Hearing before High Court.

Appeal to High Court

18 . The Board of Management has appealed to the High Court on a point of law pursuant to s. 46 of the Workplace Relations Commission Act, 2015 as amended (the “2015 Act”) seeking:

• (1.) A declaration that the Labour Court erred in law in its decision wherein it made the finding that Mr. O'Suird was unfairly dismissed and awarded reengagement with effect from 1 ^st September, 2017 and

• (2.) An order setting aside the decision of the Labour Court and remitting the matter to the Labour Court.

Applicable legal principles governing such appeals

19 . There was no great dispute between the parties about the applicable legal principles governing such an appeal.

20 . In ESB v. Minister for Social Community and Family Affairs [2006] IEHC 59 Gilligan J. set out the legal principles applicable to an application of this kind stating as follows (at page 12):

“ In ( Deely v. Information Commissioner Unreported, High Court, 11th May, 2001) McKechnie J. noted at p. 17 that the remit of the Court in an appeal on a point of law encompassed the following:

(a) it cannot set aside findings...