Burke v O Longain and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Diqnam
• Judgment Date: 15 February 2024
• Neutral Citation: [2024] IEHC 207
• Docket Number: [Record No.] 2023 3330 P

Enoch Burke

Plaintiff

and

Seán Ó Longáin, Kieran Christie & Jack Cleary

Defendant

[2024] IEHC 207

[Record No.] 2023 3330 P

THE HIGH COURT

Judgment of Mr. Justice Diqnam delivered on the 15 ^th day of February 2024 .

Introduction

1 This is my judgment in respect of the plaintiff's application for an injunction restraining the defendants from holding a Disciplinary Appeal Panel hearing of his appeal against a decision of his employer to dismiss him.

2 The injunction is sought on the basis of alleged apparent, perceived or objective (these terms being used interchangeably in the authorities) bias of one of the members of the Disciplinary Appeal Panel (“the Appeal Panel”). The tone, tenor and some of the substance of the submissions made by Mr. Burke are more like allegations of actual bias against this member but the case that was stated as being made was that of objective bias and I have determined the application on that basis.

3 This is one of several written judgments arising from the same underlying dispute between the plaintiff and his employer, one of which I delivered on 17 ^th January 2023. Very many of the background facts are set out in detail in those judgments and it is therefore not necessary for me to set out the background facts at any length. I will have to refer to some factual matters in detail during the course of this judgment.

4 I will refer to the plaintiff as Mr. Burke and the individual defendants by their respective surnames.

Background

5 Mr. Burke was dismissed from his employment at Wilsons Hospital School (“the school”), by a decision of the school's board of management following a meeting on the 19 ^th January 2023. He has appealed against that dismissal. In summary, the background to his dismissal is as follows.

6 On the 9 ^th May 2022, staff at the school, including Mr. Burke, received an e-mail from the principal of the school, informing them that a third-year student would be making a social transition in their gender identity from the next day and stating that from then on the student would become known by a different name and that “they” should be used in place of the pronoun that had been used up to that point.

7 Mr. Burke immediately objected to the principal's instruction and there was an exchange of emails the following day in which Mr. Burke made his objection clear. These emails are quoted in my earlier judgment of the 17 ^th January 2023 ( Board of Management of Wilson's Hospital School v Burke [2023] IEHC 22).

8 Later that day, there was a scheduled staff meeting and Mr. Burke raised the matter at the meeting. The school is of the view that Mr. Burke acted wholly inappropriately in the timing and manner in which he raised the matter. Mr. Burke is of the view that he acted appropriately. This divergence of views was noted by Birmingham P in his judgment in the Court of Appeal in Board of Management of Wilsons Hospital School v Burke [2023] IECA 52 at paragraph 7. These matters are a part of the underlying disciplinary process which includes the appeal the subject of these proceedings and are not matters to be resolved on this application.

9 There was a meeting on the 19 ^th May between Mr. Burke, the principal and the deputy principal to discuss the issue.

10 On the 27 ^th May, the principal emailed Mr. Burke. The full text of the letter is set out in earlier judgments. It concluded by recognising that while it may be challenging for him in light of his religious beliefs, the principal expected that Mr. Burke would communicate with the student in accordance with the wishes of the student and the student's parents.

11 Mr. Burke replied on the 27 ^th May stating, inter alia, that he had previously made his position clear at the meetings of the 10 ^th and 19 ^th May.

12 On the 21 ^st June, a service was held in the school chapel followed by a dinner in the school dining hall. These are also the subject of the underlying disciplinary process and were a core part of the decision to dismiss Mr. Burke. Again, there is a dispute between the parties about what happened. I do not need to make any findings about precisely what happened at the service or immediately thereafter for the purpose of this application. It will be noted that Owens J in his judgment in Board of Management of Wilsons Hospital School v Burke [2023] IEHC 288 did make findings in respect of these events. What does not appear to be in dispute is that the service was attended by some past students, staff, board members, parents, clergy and some sixth-year students. Towards the end of the service Mr. Burke stood up and spoke, setting out that he would not accept what he called “ transgenderism” and putting it to the principal to withdraw her instruction of the 9 ^th May. The service was followed by a dinner in the dining hall and at a point during or immediately after the event Mr. Burke raised the issue again with the principal. A central part of the dispute between Mr. Burke and the school and a central part of the board of management's decision (as will be seen) is the appropriateness of Mr. Burke raising the matter on these public occasions and the manner in which he conducted himself in doing so. This dispute was described by Birmingham P at paragraph 11 of his judgment in the Court of Appeal.

13 On the 15 ^th August 2022, the principal of the school instigated Stage 4 of the applicable disciplinary procedures. I set out these procedures below. Mr. Burke was suspended on full pay following a meeting of the board of management on the 22 ^nd August 2022. He is heavily critical of this meeting.

14 Notwithstanding this suspension on full pay, Mr. Burke attended at the school and the school then issued High Court proceedings against him on the 30 ^th August 2022 ( Board of Management of Wilsons Hospital School v Burke (Record No. 2022/4507 P). Ultimately the school obtained an injunction against Mr. Burke restraining him from attending at the school but he persisted in doing so and was found to be in contempt of court and was imprisoned for contempt. I return to these matters below in light of a preliminary objection raised by the defendants and, if necessary, when considering the balance of justice.

15 The next step in the disciplinary process was that the board of management proposed to hold the disciplinary meeting on the 14 ^th September. Mr. Burke applied for an injunction to restrain the holding of the meeting. On the return date of the motion for that injunction (11 ^th September) the board of management gave an undertaking not to hold the meeting on the 14 ^th September and that no such meeting would take place without three clear days' notice to Mr. Burke.

16 The school then wrote to the defendant on the 22 ^nd December 2022 giving him notice that a disciplinary meeting would be held on the 19 ^th January 2023 and he then sought an injunction restraining the holding of that meeting.

17 That application was heard on the 11 ^th and 12 ^th January 2023 and judgment was delivered on the 17 ^th January 2023 refusing the application on the basis that while the plaintiff had made out a strong case (the applicable threshold given the nature of the relief sought), he was not entitled to relief from the Court in circumstances where he had stated his intention to continue to breach earlier Court orders and where the Court gave him time to consider whether he would comply with those orders and he did not indicate that he would so comply. Mr. Burke did not appeal against this decision.

18 The disciplinary meeting of the board of management went ahead on the 19 ^th January 2023 and Mr. Burke was informed by letter of the 20 ^th January 2023 that he was dismissed. He is also very critical of this meeting and, indeed, claims that the entire disciplinary process is unconstitutional, unlawful, flawed and invalid.

19 He appealed the decision of the board to the Teacher's Disciplinary Appeal Panel on the 2 ^nd February 2023. I will refer to the notice of appeal in greater detail below. A hearing was scheduled for the 7 ^th July 2023. On the 20 ^th June 2023, Mr. Burke became aware that the members of the Appeal Panel for this hearing were Mr. Sean Ó Longáin (Chair), Kieran Christie (Union Representative) and Jack Cleary (Management Body Representative). No issue is raised in relation to how these members came to be appointed and I therefore proceed on the basis that they were appointed in accordance with the disciplinary/appeal procedures.

20 By letter of the 30 ^th June 2023 Mr. Burke requested that Mr. Christie and Mr. Cleary not be members of the Appeal Panel. He said:

“Mr. Christie is a promoter of transgenderism in the ASTI, has awarded those who advance transgenderism in schools, and has worked closely with TENI (Transgender Equality Network Ireland) over many years. It is not appropriate that Mr Christie be a panel member in this Appeal.

I am also aware that Mr. Jack Cleary has been nominated to the Appeal Panel. Mr. Cleary is an Advisor with the JMB which advocates on behalf of TENI, works with TENI in promoting transgenderism in schools, and seeks to further the influence of TENI within the area of education. It is not appropriate that Mr. Cleary be a panel member in this Appeal.

Please confirm as a matter of urgency that Mr. Christie and Mr. Cleary will not be members of the Appeal Panel and that those who are nominated to the Panel will not be activists for transgenderism.”

21 I will, of course, have to return to the basis for the objection to the composition of the Panel. For some unexplained reason (particularly given the language used in this letter in respect of Mr. Cleary) Mr. Burke has not proceeded with his objection to Mr. Cleary being on the committee.

22 By letter of the 4 ^th July 2023 the Department of Education informed Mr. Burke, inter alia:

“Having been appointed by the Board of Management of the school in accordance...