Dillon v The Board of Management of Catholic University School

• Jurisdiction: Ireland
• Judge: Birmingham P.,Mr. Justice Gerard Hogan
• Judgment Date: 27 August 2018
• Neutral Citation: [2018] IECA 292
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 292 Record No. 2016/573,[C.A. No. 573 of 2016]
• Date: 27 August 2018

[2018] IECA 292

THE COURT OF APPEAL

Birmingham P.

Hogan J.

Birmingham P.

Hogan J.

Whelan J.

Neutral Citation Number: [2018] IECA 292

[2016 No. 573]

Record No. 2016/573

BETWEEN

PIERCE DILLON

APPLICANT/ APPELLANT

AND

THE BOARD OF MANAGEMENT OF CATHOLIC UNIVERSITY SCHOOL

RESPONDENTS/RESPONDENTS

Judicial review – Moot – De minimis – Appellant seeking judicial review – Whether the proceedings were moot

Facts: The appellant, Mr Dillon, was a secondary school teacher employed by Catholic University School (CUS) from 1992 to 2017. A finding that the appellant had engaged in inappropriate behaviour towards a student was made by the respondent, the Board of Management of CUS, at a meeting held on the 24th February 2015. As a result of that finding a disciplinary procedure was conducted by the principal of the school and a nominee of the Board of Management culminating in the decision of CUS to impose a final written warning upon the appellant by decision dated the 21st April 2015. The appellant sought orders quashing the original finding of the Board of Management as well as the decision to impose a final warning. The High Court (Twomey J) delivered a reserved judgment on the 23rd November 2016 rejecting the applicant's application for judicial review. Twomey J found that the proceedings were moot and that the Court should not interfere by reason of the principle of de minimis non curat lex. The appellant appealed to the Court of Appeal against that decision.

Held by Hogan J that Twomey J was wrong in law when he concluded that the application should be dismissed in limine on the grounds of mootness and by reason of the fact that the issues raised were de minimis. Hogan J held that the terms of the final warning had potentially significant reputational implications for the good name and employment prospects of the appellant; this in itself was sufficient to justify the conclusion that the proceedings were neither moot nor de minimis.

Hogan J held that he would allow the appellant's appeal and remit the matter to the High Court for a fresh determination on the merits of the arguments of procedural unfairness and failure to adhere to the terms of the relevant agreed disciplinary procedures.

Appeal allowed.

CONCURRING JUDGMENT of Birmingham P. delivered on the 27th day of August 2018

1 I have had an opportunity of reading in draft the judgment just delivered by Hogan J. I agree with that judgment and with the order he proposes. I agree, however, only with extreme reluctance and because I feel compelled to do so. I feel so compelled because I cannot go along fully with the trial judge in the views he formed in relation to the issue of mootness. In my view, it is a step too far to suggest that because the period during which the warning was to remain live on the file had expired, assuming that was the case, that the issue became moot. I accept the argument that the fact that such a warning was placed on the file could, in certain circumstances, have long-term effects. I would also have a concern that if it became established that once a warning period had expired that the issue was moot and not amenable to review, that might serve to encourage early resorts to litigation which is the last thing that I would want to see.

2 I also have a concern about categorising a final warning as de minimis. In my view, issuing a final warning should be a matter of great moment; it should not happen lightly and cannot properly be regarded as a 'trifle'. It is for this reason that I feel that the appeal must be allowed. I do so despite my strongly-held view that disciplinary issues, certainly falling short of dismissal, arising in an industrial relations context should rarely find their way to the courts.

3 My general dislike for resorting to the courts in cases such as this is reinforced in the circumstances of the present case. In this case, the appellant and his representatives were invited to attend a meeting convened in accordance with Stage 3 of the complaints procedure. They declined to do so despite a deferral of the meeting in order to facilitate attendance. Thereafter, matters were dealt with under Stage 3 of the disciplinary procedure. A meeting was convened between the appellant and the respondent's Principal and a nominee of the respondent, which meeting took place on 27th March 2015. The decision was to issue a final written warning.

4 At that stage, the appellant wrote to the Principal advising of an intention to appeal the decision of the respondent as stated in the agreed complaints procedure. He indicated that it was his intention to do this despite the fact that the complaints procedure states that the decision of the Board of Management 'shall be final' and the appellant was so advised. The appellant did not at any point articulate an intention to appeal the disciplinary sanction of a final written warning.

5 In my view, there was an element here of playing fast and loose with the procedures and a failure to engage in the way one would expect of a long-term professional employee. While I will wait to hear what the parties have to say in relation to costs and other ancillary matters, I think it only right that I should indicate at this stage that I will have to consider carefully whether this is a case for departing from the usual rule in relation to costs.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 27th day of August 2018

1 The appellant is a secondary school teacher who was employed by the respondent school ('CUS') from 1992 to 2017. During that period he was a teacher of history and civic, social and political education. In these judicial review proceedings the appellant has sought to challenge the legality of a disciplinary process conducted by the school as a result of which it had been found that he had engaged which was described as 'inappropriate behaviour' towards a particular student. In order to protect the anonymity of a minor, I shall term the student as 'AB'. That finding of inappropriate behaviour had been made by the Board of Management of CUS at a meeting held on the 24th February 2015.

2 As a result of that finding a disciplinary procedure was conducted by the principal of the school and a nominee of the Board of Management. A meeting was held on the 27th March 2015 between the principal, the nominee of the Board and the applicant (who was accompanied by a trade union representative) to discuss this finding. This process culminated in the decision of CUS to impose a final written warning upon the appellant by decision dated the 21st April 2015. The 'inappropriate behaviour' in question was said to have been the calling of the student by an unpleasant and offensive name. The appellant now seeks orders quashing the original finding of the Board of Management as well as the decision to impose a final warning.

3 In the High Court Twomey J. delivered a reserved judgment on the 23rd November 2016 in which he rejected the applicant's application for judicial review, saying that this was not 'a matter which should be dealt with by means of judicial review in the High Court': see Dillon v. Board of Management of Catholic University School [2016] IEHC 674. In effect, Twomey J. found that the proceedings were moot and, furthermore, that the Court should not interfere by reason of the principle of de minimis non curat lex ('the law does not concern itself with trifles'). Before considering these matters it is appropriate to say something about the nature of the finding and the effect of the final warning.

The background to the proceedings

4 Following two incidents which took place apparently in the school between AB and the applicant on the 8th May 2014 and the 9th May 2014, AB's parents made a complaint in writing on the 12th May 2014 to the Board of Management. This complaint was to the effect that their son had been called this offensive name and it set out the details of the two incidents. It is only fair to say that at all times Mr. Dillon had denied using this term.

5 Attempts to resolve the issue informally were unsuccessful. As a result the matter proceeded to Stage 3 of the Complaints Procedure. The appellant was requested to attend a meeting of the Board of Management pursuant to Stage 3 of the Complaints Procedure on the 24th February 2015. By letter dated the 26th February 2016 the appellant was informed that 'In accordance with Section 3.5 of the Complaints Procedure, the Board has directed that the matter will now be dealt with under the provisions of Stage 3 of the Disciplinary Procedures.'

6 The disciplinary procedures referred to a national agreed disciplinary procedure for secondary school teachers contained in the Department of Education and Science's Circular 60/2009.

7 The final written warning which 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 was in the following terms:

'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.'

8 In response the appellant notified CUS of his desire to appeal by letter dated the 10th May 2015. This letter stated as follows:

'I wish to register in writing my decision to appeal the decision of the Board of Management of C.U.S. within the ten school days of...