Becker v Board of Management of St Dominics Secondary School Cabra

• Jurisdiction: Ireland
• Judge: Mr Justice Michael
• Judgment Date: 14 April 2005
• Neutral Citation: [2005] IEHC 169
• Court: High Court
• Date: 14 April 2005

BECKER v BOARD OF MANAGEMENT OF ST DOMINICS SECONDARY SCHOOL CABRA

Between:

Mary Becker

Applicant

And

The Board of Management St. Dominick's Secondary School Cabra

Respondent

[2005] IEHC 169

Record Number: No 517 JR/2003

THE HIGH COURT

Abstract:

Judicial review - Justiciable issues by way of judicial review - Whether disciplinary matter governed solely by terms of contract - Whether public law remedy available - Education Act 1998

Facts: The applicant applied for judicial review of a disciplinary warning. The respondent contended that this was a matter of private law involving a relationship between the parties which was dependent entirely upon a contractual relationship and therefore that the dispute could not properly be the subject of judicial review proceedings at all. The applicant submitted that the respondent Board was susceptible to judicial review and relied inter alia on the provisions of the Education Act 1998.

Held by Peart J. in refusing the application that the case could not be regarded as one appropriate to relief by way of judicial review. Simply because a school may be established and its functions and obligations set forth in an Act of the Oireachtas, was not of itself sufficient to bring every dispute emanating from the school’s activities within the reach of judicial review.

Reporter: R.W.

EDUCATION ACT 1998 S22

EDUCATION ACT 1998 PART IV

EDUCATION ACT 1998 S24(3)

EDUCATION ACT 1998 S15(2)(a)

RAFFERTY v BUS EIREANN 1997 2 IR 424

TRANSPORT (RE-ORGANISATION OF CORAS IOMPAIR EIREANN) ACT 1986

GEOGHEGAN v INSTITUTE OF CHARTERED ACCOUNTANTS IN IRELAND 1995 3 IR 86

MURPHY v TURF CLUB 1989 IR 171

R v TAKEOVER PANEL & MERGERS, EX PARTE DATAFIN PLC & ORS 1987 QB 815

RAJAH v ROYAL COLLEGE OF SURGEONS 1994 1 IR 384

MURTAGH v ST EMER'S SCHOOL 1991 1 IR 482 1991 ILRM 549

O'NEILL v BEAUMONT HOSPITAL 1990 ILRM 419

O'NEILL v IARNROD EIREANN 1991 IRLM 129

EDUCATION ACT 1998 S6

EDUCATION ACT 1998 S7

EDUCATION ACT 1998 PART II

EDUCATION ACT 1998 PART III

EDUCATION ACT 1998 S14(2)

EDUCATION ACT 1998 S23(2)

EDUCATION ACT 1998 S33

EDUCATION ACT 1998 S9

1 Mr Justice Michael Peart delivered on the 14th day of April 2005 :

2 It must be a matter of great regret that the whiff of litigation now pervades the corridors of an institution whose purpose is to assist in the nurturing and development of young minds and hearts to adulthood for the ultimate benefit of society as a whole. Hopefully the classroom itself has remained isolated from such contamination, so that the important work which takes place within it can be pursued in an atmosphere conducive to its important and worthy objectives.

3 The applicant has been a teacher at the respondent secondary school for the past twenty five years. There is nothing in the affidavits filed in this case to suggest that for most of that long period of teaching the relationship between the applicant and the management of the school where she teaches was other than it should be. But it appears that from about 1999 matters took a turn for the worse.

4 The applicant in her grounding affidavit marks the beginning of that deterioration as occurring in March 1999 after she challenged a decision by the Board of Management to promote a certain teacher at the school to the post of Assistant principal, in circumstances where such appointments were normally made on the basis of seniority, and where there were three other members of staff who were more senior than the person actually appointed. The applicant now alleges that the Chairperson of the Board of Management (who is not a teacher in the respondent school) has never forgiven her for so challenging this appointment and is now biased against her.

5 The applicant also states that her relationship with the Principal at the school was good up to about May 2000, but that from that date the relationship began to deteriorate. The background to that appears to have involved some investigation into a security difficulty with the server to the computer network in the school, leading in some way to allegations of harassment and bullying of another teacher made in writing to the school principal against the applicant. The applicant categorically denied the allegations which caused her much stress, and she wanted an opportunity to be heard about them so that she could answer them. She sought such an opportunity, as well as a copy of the submission containing the allegations, but she says that this was denied to her. It was instead suggested that she invoke the school's Grievance Procedure, but she regarded that as inappropriate in relation to disputes between teachers.

6 However, following advice from her Union and legal advisers, she in fact invoked that Grievance Procedure by letter dated 13th September 2001. She avers that none of the grievances complained of have yet been advanced beyond Stage Two of the Grievance Procedure.

7 The applicant also says in her affidavit that she has not been appointed to the post of Assistant Principal, inspite of four separate applications made by her for that position pursuant to the Revised Guidelines for the Implementation of the Post of Responsibility Structure in Voluntary Secondary Schools dated September 2000. She is of the view that on the basis of seniority she should have been appointed to the post. She also complains that she is being systematically excluded from the affairs of the school's IT Department which, she says, is now in the hands of the Principal, whose appointment she had challenged, and also the person who made the complaint against her of bullying and harassment to which I have referred. According to her affidavit she has also commenced proceedings in the High Court arising out of what she calls the "Principal's continuous bullying and harassment of [her] and the Board of Management's failure to provide a safe and healthy work environment in the school."

8 The next significant matter forming the background to the present application is the introduction into the school of a document dated 8th October 2002 entitled: Professional Charter and Policy on Dignity in the Workplace" hereinafter referred to as "the Charter"). It appears that there was a process of consultation amongst the staff of the school prior to the implementation of this policy document. The applicant, however, states that during the consultation process she raised a number of questions seeking to clarify certain matters in the document to which she was strongly opposed. She goes on to state that despite the fact that the school Principal had asked her to furnish her questions, they were not dealt with prior to the introduction of the policy document on the 8th October 2002.

9 It appears that on the very day that the document was introduced, one of the teachers involved in its compilation made a written complaint of repeated harassment against the applicant under the terms of the document. The incidents of alleged harassment cover a period from November 2001 to the 8th October 2002. The applicant denies the allegations and is very surprised that they are being made, since she feels that her communications with that complainant were confined to seeking clarification as to whether her correspondence was received and dealt with by the Board of Management. She is also of the view that prior to the introduction of the policy document, it was indicated by the principal of the school that it would not operate retrospectively - in other words in respect of alleged incidents which predate the operation of the policy document.

10 She makes the point also in her affidavit that there is in fact no agreed procedure to resolve inter-teacher disputes in the school, and that in her view this is the reason why the principal of the school indicated that the complaints would be dealt with under Stage 2 of Charter procedures. But she goes on to state that Stage 1 of the Charter procedures has been by-passed in favour of proceeding directly to the “formal” procedures of Stage 2, which provides as follows:

"Staff members subjected to bullying/harassment shall make a formal complaint to the Principal who will be responsible, on behalf of management, for investigating such complaints and recommending action."

11 In this regard the applicant states that the Principal is a person against whom the applicant had invoked three separate grievance procedures none of which had been allowed to progress, as well as the person whom the applicant believes was instrumental in thwarting her attempts to achieve the post of Assistant Principal at the school, as already referred to.

12 Stage 1 on the other hand is an informal procedure which envisages that it may be possible in the first instance to settle matters by some form of informal contact either personally or through a "contact person" who is recommended to use the guidelines set out in the document when dealing with the matter. At the conclusion of the Stage 1 section of the document it states the following:

"Attempts should be made to resolve the matter informally. If this is not possible the formal approach, as outlined in Stage Two may be adopted."

13 The applicant proceeds to make complaint that, even if it might be considered that it was permissible to proceed directly under the formal procedure of Stage Two, the respondent has failed to adhere to the procedures set forth therein. It appears that the Board of Management appointed an Investigating Committee, from whom the applicant received a letter dated 24th October 2002 informing her that the complaints would be dealt with under the Charter and requested a meeting with her to hear her response to the complaints, and said also that it would be helpful if in advance of that meeting she could respond in writing in advance of the meeting. The...