Dillon v Cus
| Jurisdiction | Ireland |
| Judge | Ms. Justice Murphy |
| Judgment Date | 08 October 2019 |
| Neutral Citation | [2019] IEHC 658 |
| Docket Number | [2015 No. 665 J.R.] |
| Court | High Court |
| Date | 08 October 2019 |
[2019] IEHC 658
THE HIGH COURT
JUDICIAL REVIEW
Murphy
[2015 No. 665 J.R.]
Judicial review – Complaints procedure – Disciplinary procedure – Applicant seeking an order of certiorari of a decision made under a complaints procedure – Whether the complaints procedure was capable of being judicially reviewed
Facts: The applicant, Mr Dillon, applied to the High Court seeking an order of certiorari of a finding by the respondent, the Board of Management of Catholic University School, at the conclusion of a Complaints Procedure that the applicant had engaged in inappropriate behaviour and language in relation to a student. He also sought an order of certiorari of a decision to issue him with a “final written warning” in respect of the alleged inappropriate behaviour and language which issued pursuant to the provisions of the Disciplinary Procedures set out in a departmental circular known as DES 60/2009. This decision followed on from the finding made by the Board of Management at the conclusion of the Complaints Procedure. Thirdly, he sought an order of certiorari quashing the decision of the respondent refusing to permit him to appeal against the decision that he had engaged in inappropriate behaviour and language in relation to a student. This refusal was communicated to him by letter dated the 17th September 2015. The applicant claimed various ancillary reliefs including declaratory reliefs.
Held by Murphy J that the Complaints Procedure was part of the contractual arrangement between the applicant and the respondent; it did not have a public law element capable of being judicially reviewed. Murphy J held that, were the court wrong in so holding and the Complaints Procedure was capable of being judicially reviewed, the court would still refuse to quash the order because of the applicants’ conduct in and about the processing of the complaint. Murphy J held that the applicant was denied a proper disciplinary process. The court was conscious that the applicant appeared to have acquiesced in that procedure in that he entered it merely reserving his rights, however that in the courts’ view was not sufficient to validate the defective process which in fact occurred.
Murphy J held that the Court would not grant an order of certiorari of the decision made under the Complaints Procedure, but would grant an order of certiorari of the final written warning under the Disciplinary Procedure.
Application granted in part.
This application is a complex one, both as a matter of law and as a matter of fact. The applicant is seeking an order of certiorari of a finding by the respondent at the conclusion of a Complaints Procedure, that the applicant had engaged in inappropriate behaviour and language in relation to a student. He is also seeking an order of certiorari of a decision to issue him with a “final written warning” in respect of the alleged inappropriate behaviour and language which issued pursuant to the provisions of the Disciplinary Procedures set out in a departmental circular known as DES 60/2009. This decision followed on from the finding made by the Board of Management at the conclusion of the Complaints Procedure. Thirdly, he seeks an order of certiorari quashing the decision of the respondent refusing to permit him to appeal against the decision that he had engaged in inappropriate behaviour and language in relation to a student. This refusal was communicated to him by letter dated the 17th September 2015. The applicant is claiming various ancillary reliefs including declaratory reliefs.
The respondent has raised a number of preliminary issues including that the relevant decisions are not judicially reviewable and that the applications in respect of the Board of Management's finding in the Complaints Procedure and the sanction issued in the Disciplinary Procedure are out of time.
In order to comprehend and contextualise the events which occurred, one has to understand the genesis of the complaint/disciplinary procedures and the evolution of the disciplinary aspect of those procedures.
On the 1st September 2000, ASTI and the joint managerial body for voluntary secondary schools agreed procedures for the processing of complaints made by parents/guardians or students (who have reached the age of eighteen years) against a teacher. On the same date, the bodies agreed a disciplinary procedure for use by school management against a teacher in a voluntary secondary school. Both of these procedures are non – statutory but were adopted by both teachers and management as part of their contractual arrangements. The Complaint and Disciplinary Procedures of the 1st September 2000, as we shall see, are interlinked.
The document is a two-and-a-half-page document and reads as follows: -
“Introduction:
Procedures are necessary to ensure fair treatment for all in the school and acceptable procedures should be known, agreed, and observed in the interest of good industrial relations and harmony in the school environment. Periodic review of all procedures should take place to ensure practices are good and adhere to any developments in employment legislation or other legislation or case law.
Purpose of Complaints Procedure
a) To provide a fair, consistent and equitable mechanism for processing complaints by parents/guardians or students (who have reached the age of 18 years) against teachers.
b) To do so in a manner that affords all concerned full rights in accordance with natural justice.
c) To outline the procedures which should be followed by all – employer, employees and their representatives - in the event of complaints being made against teachers.
Exclusions
(a) When complaints are deemed by the Principal/Manager/Board of Management to be: -
(i) on matters of professional competence which cannot be dealt with at school level and which are to be referred to the Department of Education and Science for investigation;
(ii) frivolous, vexatious or anonymous complaints and complaints which do not impinge on the work of a teacher in a school;
(iii) complaints in which either party has had recourse to law or to another standard procedure;
they shall be excluded from the scope of this procedure.
(b) Verbal complaints may be processed informally through Stage 1 of the procedure. Where the complaint is made in writing initially, the complaint should be processed through Stage 1 but a copy of the complaint should be given to the teacher at Stage 1. Only those complaints which are written and signed by the complainants may be investigated through stage two and stage three of the procedure.
Procedures
Stage 1
1.1 A parent/guardian/student who wishes to make a complaint should, unless there are local arrangements to the contrary, make an appointment and discuss the matter with the teacher with a view to resolving the complaint.
1.2 Where the parent/guardian/student is unable to resolve the complaint with the teacher, she/he should approach the Principal with a view to resolving it.
1.3 The resolution and outcome of Stages 1.1 and 1.2 should be communicated verbally to both parties.
1.4 If after Stage 1.2 the complaint is still unresolved, the parent/guardian/student should be advised that they may raise the matter formally with the Board of Management as set out at Stage 2 with a view to resolving it.
1.5 In the case of a complaint against a Principal, the parent/guardian/student should discuss the complaint with the Principal in the first instance. If the parent/guardian/student is unable to resolve the complaint with the Principal, the complaint may be processed as provided for at Stages 2 and 3 of this procedure.
Stage 2
2.1 If the issue is not resolved at Stage 1 then the parent/guardian/student should lodge the complaint in writing with the Board of Management.
2.2 The Board should acknowledge receipt of the complaint, note it formally and appoint two authorised representatives, one of whom may be the Principal, to deal with the matter.
2.3 The authorised representatives should, subject to the general authorisation of the board: -
(a) supply the teacher with a copy of the written complaint, and
(b) arrange a meeting with the teacher and, where applicable, the Principal and the complainant, with a view to resolving the complaint. Such a meeting should take place within 10 school days of receipt of the written complaint as specified at 2.1
2.4 The teacher may be accompanied by a colleague or the ASTI School Steward at this stage of the procedure.
2.5 The authorised representatives should convey the outcome of these discussions / investigation, in writing, to the teacher, complainant and the Board of Management and indicate whether or not the matter has been resolved to the satisfaction of all parties.
2.6 If the complaint has not been resolved at this stage and the complainant wishes to proceed to Stage 3 s/he shall indicate this in writing to the Board of Management within 10 school days of receipt of the letter referred to in 2.5.
Stage 3
3.1 If the Board of Management considers the complaint is not substantiated, the teacher and the complainant should be so informed within three days of the Board meeting.
3.2 If the Board of Management considers that the complaint warrants further investigation, it should proceed as follows:
(a) the teacher should be informed that the investigation is proceeding to the next stage;
(b) the teacher should be supplied with a copy of any written evidence relevant to the complaint;
(c) the teacher should be requested to supply a written statement to the Board of Management in response to the complaint;
(d) the teacher should be afforded an...
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