Becker v St. Dominic's Secondary School

• Jurisdiction: Ireland
• Judgment Date: 15 April 2005
• Neutral Citation: [2005] IEHC 122
• Date: 15 April 2005
• Docket Number: [2005 No. 1260 P],[2005 No. 1260P]
• Court: High Court

BETWEEN

MARY BECKER

PLAINTIFF

AND

THE BOARD OF MANAGEMENT ST. DOMINIC'S SECONDARY SCHOOL CABRA

DEFENDANT

[2005] IEHC 122

[2005 No. 1260P]

THE HIGH COURT

Abstract:

Employment law - Interlocutory relief - Suspension on full pay pending psychiatric examination - Allegation that defendant acting mala fides - Fair issue to be tried - Adequacy of damages - Balance of convenience

Facts: The plaintiff was a teacher in a school run by the defendant board of management. She instituted three sets of proceedings relating to her employment. The defendant attempted to have the plaintiff assessed by a psychiatrist. The plaintiff failed to attend her appointment and proffered a sick certificate. The defendant suspended the plaintiff on full pay pending her independent medical assessment. The plaintiff sought injunctive relief relating to her suspension from duties and applied for interlocutory relief. The plaintiff alleged that the defendant was acting mala fides.

Held by Clarke J. in refusing the interlocutory relief sought that there was a fair issue to be tried as to whether the defendant was acting legitimately either as a matter of law or on the facts and damages would not be an adequate remedy. However, the balance of convenience favoured the defendant being entitled to continue to require the plaintiff to absent herself from work until a medical report was received.

Reporter: R.W.

1 JUDGMENT of Mr. Justice Clarke delivered 15th April, 2005.

2 The plaintiff is a teacher at St. Dominic's Secondary School which is run by the defendant Board of Management ("the Board"). She teaches geography and information technology.

3 In these proceedings she seeks injunctive relief relating to her suspension from duties. However, as she points out in her grounding affidavit, there is a protracted background to the application. Much of that background is either not in itself relevant to this application or, where relevant is contentious, and not such as can be resolved on an interlocutory application such as this. However it is important to note that there are already in being three sets of proceedings arising out of the plaintiff's employment with the Board.

4 The first set of proceedings were instituted for the purposes of seeking to quash the imposition of a sanction on the Plaintiff by the Defendant as a result of a grievance procedure invoked against her pursuant to a "Dignity at Work Charter" by a member of the board of management and a teaching colleague. Judgment is awaited in that matter.

5 The second set of proceedings does not directly involve the Board but relates to a determination of an independent arbitrator who was asked to adjudicate upon the circumstances in which the plaintiff failed to be appointed to a post of responsibility. The plaintiff was dissatisfied with the determination of the arbitrator and has instituted proceedings seeking to have same quashed. The Board is not a party to those proceedings in that the interests of the employer in such proceedings are represented by a body representative of the boards of management of all catholic secondary schools. Judgment is also awaited in those proceedings.

6 In the third set of proceedings the plaintiff claims damages for negligence as against the board in circumstances where she contends that she suffered harassment, intimidation and the infliction of mental and emotional distress. Those proceedings remain at an early stage.

7 At least partly in the context of those personal injury proceedings an attempt was made on behalf of the Board to have the Plaintiff assessed by a psychiatrist nominated by the Board. It will be necessary later in the course of this judgment to deal with the extent to which that request was also one which should be viewed as a request arising in the context of the Plaintiff's contract of employment. However one way or another great difficulties were encountered in reaching agreement as to the terms and circumstances in which such a psychiatric assessment could take place and the identity of the person who might carry out such assessment on the part of the Board. It will also be necessary to address those difficulties later in the course of this judgment.

8 Eventually an agreed appointment for such an assessment was made for 22nd March, 2005. On the morning of the previous day the Plaintiff's solicitors telephoned the Defendants solicitors to advise them of the plaintiff's inability to attend the

9 appointment and also proffered a sick certificate from the Plaintiff's general practitioner.

10 In those circumstances the Defendants sent a letter to the Plaintiff which while dated the 24th March was delivered on 31st March and which required the Plaintiff to absent herself from school with immediate effect until the independent medical assessment had been received by the board. It is made clear that the suspension is on full pay and it is also indicated that the assessment can now take place on Tuesday April 26th.

11 The letter makes it clear that the basis for the suspension is stated to be for the reasons as set out in paragraph 3 of that letter as follows:

12 "The Board has already expressed its serious concern about your previous absences relating to "stress" the board is very concerned now about your pattern of further absences. You are aware of a complaint you have made recently against a member of staff and of complaints recently against you from certain colleagues. The Principal also recently gave you complaints against you from a parent, a student and one of your classes. All these complaints will obviously require to be investigated, but you will understand that all of the matters set out above, coupled with the fact that you have previously issued court proceedings against the school claiming (amongst other things) stress injury, are a major concern to the Board. The Board believes that, having regard to the school's duty of care to you and all concerned the school must get the benefit of urgent independent medical advice on your fitness for work at this time."

13 The letter also makes brief reference to the history of the attempts to arrange for such a medical inspection in the past.

14 It is therefore clear that the reason given by the Board for the suspension is that, in its view, it was necessary to obtain an urgent medical view on the plaintiff's fitness for work and that pending receipt of such a view and a short opportunity to consider same it was inappropriate that the Plaintiff should attend for duties.

15 In those circumstances the Plaintiff through her solicitors immediately wrote to the Board making complaint against her suspension. In the events that occurred she in fact attended for work on the following Monday morning (being the first day of the new term) but was, at an early stage, asked to leave. She immediately instituted proceedings and brought the interlocutory application now before the court which has, thankfully, come on for hearing in a very short period of time.

16 In substance the Plaintiff makes two substantive points in her argument in favour of her contention that her suspension is unlawful.

17 Firstly she contends that there is no proper legal basis for a suspension of the type which has occurred in this case.

18 Secondly there are very many accusations contained in her affidavits which amount to a suggestion that the actions of the Board are not bona fide and are contrived. In one case these accusations amount to an insinuation of an involvement in the wrongful actions of the Board on the part of the Defendants solicitors and certain psychiatrists who have been nominated from time to time to carry out assessments on the part of the Board and other schools. I should note that in the course of his submissions to the Court Counsel for the Board made it clear that the latter contentions (which were contained in a replying affidavit sworn by the Plaintiff immediately prior to the hearing and served on the morning thereof) were not replied to by a further affidavit on the part of the Board as to do so would have necessitated an adjournment of the applications. It was nonetheless noted that the accusations

19 were strenuously denied. It should also be noted that certain of the documentation exhibited (including certain reports or letters from the plaintiff's own psychiatrist), make not dissimilar accusations.

20 It must be understood that at this stage of the proceedings and after a relatively short hearing based on affidavit alone it would be both impossible and inappropriate for the court to express any views on the merits or otherwise of such contentions. Insofar as they may become relevant to the ultimate disposal of these, or any other, proceedings they would necessarily have to be the subject of significant oral evidence and a detailed consideration.

21 Against that background it is necessary to assess the state of the case at this stage against the traditional criteria applied in the grant or refusal of an interlocutory injunction adapted, as per the established authorities, to cases involving...