Crowley v Ireland

JurisdictionIreland
JudgeKENNY J.:,O'HIGGINS C.J.
Judgment Date01 January 1980
Neutral Citation1978 WJSC-SC 2561
Docket Number1977/1945 P,[1977 No. 1945 P.]
CourtSupreme Court
Date01 January 1980

1978 WJSC-SC 2561

THE SUPREME COURT

O'Higgins C.J.

Henchy J.

Griffin J.

Kenny J.

Parke J.

1977/1945 P
262/1978
CROWLEY v. IRELAND
CROWLEY AND ORS
v.
IRELAND AND ORS
1

JUDGMENT delivered the 1st day of October 1979by O'HIGGINS C.J.

2

As a result of a decision taken by the Irish National Teachers"Organisation (hereinafter referred to as the INTO) which is a registered trade union representing the vast majority of national teachers in Ireland, all the teachers, with one exception, in the three national schools in Drimoleague in the County of Cork, absented themselves from work on the 1st April 1976 and have not reported for duty since that date. This decision was communicated to Father Crowley, the Parish Priest of Drimoleague and the Chairman of the Boards of Management of the schools, by letter dated the 16th March 1976. The schools in question are the school at Drimoleague, which had on its rolls 133 children and a staff of four, including the Principal, the school at Knock Bui, which had 27 children and two teachers, and the school at Castledonovan which had 38 children and twoteachers. The only teacher who did not absent himself from duty was the then acting Principal at Drimoleague, Mr. Nicholas McCarthy. The dispute which led to the withdrawal of services or strike by the teachers at the three schools related to the appointment of Mr. McCarthy, in the first instance as acting or temporary Principal, and later as permanent Principal at Drimoleague. The post of Principal at Drimoleague had been advertised on two occasions. On each occasion Mr. McCarthy had been an applicant. He was, however, ineligible for appointment because at the time he had not five years" teaching experience (Rules for National Schools). While other applicants on both occasions were eligible they were not regarded as suitable by the Department of Education. Accordingly, no appointment was made on either occasion and the Department required the post to be advertised a third time. This procedure was in accordance with the Rules for National Schools already mentioned. It seems clear that Father Crowley who was then the Manager of the school and who claimed to be acting on the instructions of hisBishop,Dr. Lucey, was determined to appoint Mr. McCarthy despite the fact that he had not five years" service as a teacher. In the summer of 1975 the Department indicated that pending the re-advertising of the post it would agree to the appointment of a temporary Principal to be nominated by Father Crowley. This proposal was made because of the imminent commencement of the school year. The Department, however, indicated that sanction for a temporary appointment would be "on the clear understanding that the person concerned will have no claim to appointment in a permanent capacity by virtue of his being given temporary recognition" (See letter from Department to Fr. Crowley 14 Lúnasa 1975). Following receipt of the sanction conveyed by this letter, Father Crowley appointed Mr. McCarthy as temporary or acting Principal at Drimoleague, and Mr. McCarthy took up duty, as such, on September 1st, 1975. In the ensuing months, Father Crowley was, on a number of occasions, reminded by the Department of the necessity to re-advertise the post of Principal, so that it could be filled on a permanent basis. It seems clear, however, that FatherCrowley and the Board of Management which had, in the meantime, come into existence, were determined to delay this appointment for as long as possible. Their object was to defer the advertising of the post until the end of the then current school year. Mr. McCarthy at that time had four years" completed school service and his service as temporary Principal for the completion of the then current school year would have given him five years" service as a teacher and would have enabled him to become eligible for appointment to the permanent position. The INTO had, at this stage, become directly involved in the affair. It is understandable that this Organisation should regard the tactics adopted by Father Crowley and the Board of Management as a blatant attempt to flout the Rules already mentioned, and to give in the process discriminatory preference to Mr. McCarthy over other members of the Organisation. For this reason many efforts were made without success to persuade Father Crowley, and through him, the Board of Management, to advertise the filling of the post on a permanent basis before the end of the school year. As indicated, these efforts, which were also extendedtointerviews with the Bishop, failed. Eventually the INTO, as already indicated, having failed in all these efforts and having held a ballot amongst its members, decided upon strike action by requiring the teachers in the three schools mentioned to absent themselves from duty. The aim of this strike was to close down the three schools and thereby to compel Father Crowley and the Board of Management to advertise the post of Principal and to fill it on a permanent basis before the end of the school year It was clearly the purpose and aim of the action then taken to prevent the appointment of Mr. McCarthy because he had applied and had been preferred, while he was ineligible for the permanent appointment. In fact this aim was not realised. Father Crowley and the Board of Management were not diverted from their fixed intention. Despite the absence of the striking teachers they carried on until the end of the school year. The post of principal at Drimoleague National School was then advertised. Mr. McCarthy again applied and was on the 23rd July 1976 appointed in a permanent capacity with the sanctionofthe Department of Education. That the appointment of Mr. McCarthy would thus have been sanctioned despite the express terms upon which he was appointed to the temporary position seems strange. Stranger still, in fact, that no explanation of why it was done has ever been given. The strike therefore failed in its primary objective. The objection had been to Mr. McCarthy and the object was to prevent his appointment. He was now the permanent Principal having been duly appointed and duly confirmed by the Department of Education. Although the strike had failed it had, however, other consequences - consequences of a harmful and lasting nature - which has led to these proceedings and to which I will refer in a few moments. Before doing so, however, it is necessary to refer to another step which was taken by the INTO in pursuance of their dispute with Father Crowley and the Board of Management. On the 20th August 1976, after the primary objective of their strike had failed and after the appointment of Mr. McCarthy in a permanent capacity, the INTO issued a directive to all the teachers in the schoolsadjoining Drimoleague parish. This directive instructed all these teachers not to enrol Drimoleague pupils. These were the children who had already been deprived of the services of the striking teachers. One can only speculate at the motives which inspired this directive. Whatever these motives may have been they cannot have been worthy of a responsible organisation concerned for and with the education of young children. Those who decided upon this directive or caused it to be issued were no doubt angered a the unsuccessful outcome of their efforts to prevent the appointment of Mr. McCarthy. This feeling of anger or resentment may have been justified in the circumstances attendant on that appointment. Where, however, can justification be found for their seeking to harm, not those who made the appointment to which objection was taken, but innocent children who had nothing whatsoever to do with it. Subsequent to the commencement of these proceedings and no doubt as a result thereof, this directive was withdrawn by the INTO. It had, however, been in operation until June of 1977, and the fact that it had been issued and hadbeen so in operation and had been acted upon are facts which cannot be either overlooked or forgotten in these proceedings.

3

The immediate effect of the strike of the teachers at Drimoleague was that organised schooling in the three effected schools came to an end from the month of April 1976. Mr. McCarthy continued to teach three classes in the larger school in Drimoleague as he had been doing prior to the strike. In the other schools and in relation to the other children the parents, initially, attempted to provide some form of teaching. This was during the immediate post-strike period. Later unqualified teachers, mainly girls who had obtained their Leaving Certificates, under the charge of a retired teacher, were engaged and paid out of money contributed by the parents or raised locally. In this manner a form of rudimentary schooling was maintained or provided from April 1976 to the end of that year and was resumed in the following year. This continued until January 1978 when the Department provided buses to bring many of the affected childrenother schools in adjoining parishes.

4

The provision of these buses resulted from an Order made by Mr. Justice McWilliam in the High Court. The Plaintiffs having commenced these proceedings sought, pending the trial of their action, a mandatory injunction directing the Minister for Education to provide for them free primary education. Mr. Justice Mcwilliam on the hearing of this application directed as a temporary measure that transport be provided to bring the children to neighbouring schools. He was influenced in so ordering by the fact that the INTO directive of August 20th 1976, which I have already mentioned, had then been withdrawn. Against this Order appeals had been lodged in this Court, both by the two Defendants affected (Ireland and the Minister for Education), and also by the Plaintiffs, who felt that the Order did not sufficiently vindicate what they claimed to be their constitutional rights. A compromise, however, was reached under which the...

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