Dillon v Board of Management of Catholic University School

• Jurisdiction: Ireland
• Judge: Mr. Justice Twomey
• Judgment Date: 23 November 2016
• Neutral Citation: [2016] IEHC 674
• Docket Number: [2015 No. 665JR]
• Court: High Court
• Date: 23 November 2016

[2016] IEHC 674

THE HIGH COURT

JUDICIAL REVIEW

Twomey J.

[2015 No. 665JR]

BETWEEN:

PIERCE DILLON

APPLICANT

-AND-

BOARD OF MANAGEMENT OF CATHOLIC UNIVERSITY SCHOOL

RESPONDENT

Employment – Disciplinary action – Findings of inappropriate behaviour – Refusal to permit remedy of appeal – Judicial review – Mootness – Rational of filing judicial review – de minimis principle

Facts: The applicant sought an order of certiorari against the decision of the respondent for making the findings that the applicant behaved improperly with a student and also a certiorari against the decision to issue a final written warning to the applicant. The applicant contended that the respondent had erred in law by refusing him to file an appeal against the findings regarding indulgence in inappropriate behaviour.

Mr. Justice Twomey refused to grant the desired relief to the applicant. The Court held that since the time period for which the final written warning was issued had already expired, the issue became moot and thus, there was no reason for the present proceedings to continue. The Court found that the applicant was not prejudiced by the issuance of that written warning as it did not form a part of the employment records of the applicant and thus, it did not amount to the imposition of any penalty or liability so as to put the reputation of the applicant at stake. The Court opined that the remedy of judicial review was not available for de minimis things and that the time and scant resources of the Court were not utilized judiciously.

JUDGMENT of Mr. Justice Twomey delivered on the 23rd day of November, 2016

Introduction

1 This case involves a challenge to a finding by the Board of Management of the respondent school on the 24th February, 2015, that the applicant teacher had engaged in inappropriate behaviour towards a student (who, for the purposes of this judgment, is called AB). The finding which is the subject of these proceedings is the finding by the Board of Management of the school that the applicant teacher had engaged in inappropriate behaviour, namely by calling AB a “ little bitch”. As a result of this finding, a disciplinary procedure was held by the principal of the school and a nominee of the Board of Management. This led to a meeting on the 27th March, 2015, between the principal, the nominee of the Board and the applicant to discuss disciplinary action. This meeting resulted in the issue of a final written warning from the school to the applicant dated 21st April, 2015.

2 The applicant seeks orders of certiorari quashing the original finding of the Board of Management dated 24th February, 2015, as well as certiorari of the issue of the final written warning on the 21st April, 2015. The applicant also seeks an order of certiorari of the decision of the respondent to refuse to permit him an appeal against the decision that he engaged in inappropriate behaviour.

3 For the reasons set out in this decision, this Court concludes that this is not a matter which should be dealt with by means of judicial review in the High Court.

Background

4 The final written warning was issued by a letter signed by the principal of the school and a nominee of the Board of Management on the 21st April, 2015, and insofar as relevant it states:-

‘The Board of Management had previously decided that the complaint of [AB's parents] was well founded. Our decision is that you should be given a final written warning. You are therefore warned that it is expected that there will be no further incidents of this nature involving you and pupils. It is expected that this will be the case henceforth. If there is a repetition of this or similar conduct in the future you will face further disciplinary action, up and including dismissal. […] The final written warning will be active for a period of twelve months and subject to satisfactory service will expire at the end of the twelve month period. You are entitled to appeal this decision.’

5 It is relevant to note that under the express terms of this warning letter dated 21st April, 2015, it was to expire after 12 months and thus it seems that by 21st April, 2016, this final written warming letter would have prima facie expired.

6 On the 30th November, 2015, the applicant applied ex parte for, and was granted, leave by Humphreys J. to take these judicial review proceedings. The substantive proceedings opened before this Court on the 28th June, 2016, and, due to other court hearings scheduled during that period, had to be adjourned until the new law term, when they resumed on the 2nd November, 2016.

7 When the matter was in for mention on the 18th July, 2016, to fix a date for the resumption of the hearing, this Court suggested to the parties that, as this case was in essence a dispute about alleged “name calling” and since the final written warning appeared to have prima facie expired, they might wish to consider whether it would be useful to mediate their dispute in the time-period between July 2016 and the resumption of the hearing in the new term.

8 On the 2nd November, 2016, the hearing resumed and the Court was advised that mediation had taken place with a senior counsel, but that this mediation had been unsuccessful. This was a particular disappointment, since it appeared to this Court that this was a case that was suitable for resolution with the help of an independent objective mediator.

9 During the resumed hearing, correspondence between the lawyers during the Court vacation was also disclosed to the Court. On the 27th July, 2016, solicitors for the applicant wrote to solicitors for the respondent in the following terms:-

‘..when this matter was before the Court on 18 July it was stated on behalf of your client that the 12 month final written warning period has expired. While it is, of course, the case that a period in excess of 12 months has now elapsed since the date our client's final written warning letter was imposed you will be aware that our client has never received confirmation that the warning imposed upon him has ceased to have effect. This is significant in the circumstances and we would therefore ask you to state, on behalf of your client, whether the warning has ceased to have effect and to confirm that our client's service has been satisfactory.’

In reply, on the 2nd August, 2016, solicitors for the respondent stated:-

‘As regards your query in relation to the final written warning, the DES Circular No 60/2009 which contains the nationally agreed disciplinary procedures, under Stage 3: Final Written Warning, states:

“A copy of the final written warning will be retained on the personnel file by the Principal and a copy will be given to the teacher. The final written warning will be active for a period not exceeding 12 months and subject to satisfactory service will cease to have effect following the expiry of the 12 month period. The record will be removed from the file after the twelve month period subject to satisfactory improvement during the period.”

We understand that the date of the final written warning was April 2015, and accordingly the said twelve month period expired in April, 2016. While at this time there is no finding that your client's service during the twelve month period was other than satisfactory, your client is aware that a further complaint against him was received in November/December 2015 and your client was furnished with a copy of same on 7th December 2015. Your client went on sick leave the...