Dunne v Board of Management of Little Angels

• Jurisdiction: Ireland
• Judge: Ms. Justice Butler
• Judgment Date: 12 June 2023
• Neutral Citation: [2023] IEHC 312
• Court: High Court
• Docket Number: High Court Record Number: 2021/6198 P

Between

Ailbhe Dunne

Plaintiff

and

The Board of Management of Little Angels Special School

Defendant

[2023] IEHC 312

Butler J.

High Court Record Number: 2021/6198 P

THE HIGH COURT

Judgment of Ms. Justice Butler delivered on 12 ^th day of June 2023

Introduction

1 . This case concerns the principal of a national school who is facing a disciplinary inquiry into complaints made against her by the chairperson of the Board of Management of the school. The principal (or plaintiff) is seeking an interlocutory injunction to restrain a disciplinary hearing pending the conclusion of proceedings which she has instituted seeking to restrain the process in its entirety.

2 . The plaintiff acknowledges that the Board of Management of the school is entitled to conduct a disciplinary investigation into her as their employee but contends that in this case the process has gone irredeemably wrong such that it is now incapable of reaching a legally sustainable conclusion, no matter what that conclusion might be. The Board of Management (or defendant) disagrees arguing that no decision has yet been made and that the plaintiff will be afforded the full panoply of fair procedures at the intended disciplinary hearing. Separately, the defendant argues that insofar as many of the plaintiff's complaints concern what is termed a comprehensive report prepared by the chairperson and sent to her on 2 June 2021 and the decision to commence disciplinary action at stage 4 of the applicable procedures, she was already outside the time limit permitted under O.84, r.21 of the Rules of the Superior Courts when she instituted her proceedings on 9 November 2021.

3 . Behind these legal arguments there lies what can only be characterised as a very difficult working relationship between the plaintiff and the Board of Management. That difficult working relationship is compounded by the fact that the school in question is a special school catering for pupils with moderate to severe and profound learning disabilities which presents its own challenges and the fact that much of the time-span covered by the chairperson's report coincided with the Covid 19 pandemic. The pandemic and the effect of the consequent measures taken for public health reasons, including a series of lockdowns, were particularly challenging for the education sector and no doubt all the more so in the case of a school catering exclusively to pupils with special educational needs.

4 . It is not the function of the court when hearing an interlocutory injunction application to determine the disputed facts underlying the substantive proceedings much less to make any assessment of the merits of the allegations which will be in issue in the disciplinary process should it ultimately be permitted to continue. The task of the court at this stage is to decide whether the plaintiff has made out a sufficient case to merit the grant of an interlocutory injunction and whether the balance of justice lies in favour of or against such grant. The parties were agreed that the threshold the plaintiff must meet in order to justify the grant of such relief when challenging an ongoing disciplinary process in an employment context is different to and higher than that which applies generally to interlocutory injunctions. I will return to the applicable legal standards in due course.

5 . In this particular instance I must determine not only whether the threshold has been met but also whether the argument made by the defendant to the effect that the plaintiff is out of time to institute her proceedings is one which should be conclusively determined now. If the argument is accepted it would most likely preclude the grant of an injunction. However, if that issue is not to be conclusively determined until the substantive proceedings are reached it would remain something that should be considered in assessing the strength of the plaintiff's case.

6 . In order to address these issues, I propose, firstly, to look briefly at the factual background against which the proceedings have been instituted bearing in mind that there is a substantial factual disagreement on many of the issues and the court cannot determine disputed facts at this interlocutory stage. I will also look at the Departmental Circular 0049/2018 under which any disciplinary process involving teachers and principals in recognised schools must take place. I will then outline the legal principles applicable to the case in order to identify the relevant threshold against which this application for an interlocutory injunction is to be assessed and, finally, I will apply those principles to the facts of this case.

Factual Background — General

7 . The plaintiff is a qualified primary school teacher who from an early stage in her career became involved in the teaching of children with special educational needs. She moved to teach in a special school and obtained a post graduate qualification in the area. She then lectured to teachers on special educational needs and worked with the Department of Education in the design and delivery of professional development to teachers in this area. She returned to the special school in which she had previously worked as deputy principal until the summer of 2018 when she was appointed principal of the defendant school, taking up that post in October 2018. The plaintiff has never been the subject of any disciplinary sanction during her teaching career. Undoubtedly, the plaintiff is someone who is seriously committed to the education of children with special needs and has both extensive experience and appropriate qualifications for the post to which she was appointed in 2018.

8 . The school caters for in excess of 100 pupils with moderate, severe and profound learning difficulties of various types. Because of the nature of the school, it has a large staff cohort including some 21 teachers and 45 Special Needs Assistants (SNAs).

9 . It is a feature of the education system in Ireland that although public schools are funded by the Department of Education, each school is privately owned and managed. Under Part II of the Education Act 1998 each primary school has a patron which, under s.8(6) is charged with carrying out the functions and exercising the powers conferred upon a patron under the 1998 Act. Whilst most primary schools are under the patronage of religious bodies, others such as Gaelscoileanna and Education Together schools operate under patron bodies established to promote their particular ethos. A smaller subset, including the defendant school, have a patron that is particular to the individual school. In this case the patron of the defendant school is a company limited by guarantee incorporated on the establishment of the school in 1984. Given the extent to which the inter-personal relations between the plaintiff and some members of the Board of Management feature in the factual background to this case, it is relevant to note that the school was founded by a group of people which included the current chairperson's father and, at the time this application was heard, both the chairperson and his father were directors of the patron company.

10 . The defendant school is managed by a Board of Management pursuant to Part IV of the 1998 Act. Whilst the act permits some variation in the composition of a Board of Management this one is typical in that it includes parent nominees, community representatives and a nominee of the patron. The plaintiff, as principal, is also a member of and acts as secretary to the Board of Management. The functions of the Board of Management are set out in s.15 of the 1998 Act and include the management of the school on behalf of the patron and for the benefit of the students and their parents and to provide an appropriate education for each student at the school. This is distinct from the “ day-to-day management of the school” which, under s.23(1)(a) is a function conferred upon the principal.

11 . In much the same way as I have acknowledged the commitment of the plaintiff, the commitment and input of the members of the Board of Management should also be acknowledged. Members of a Board of Management such as this one serve in a voluntary capacity and in doing so undertake time-consuming and difficult duties. As a Board of Management is intended to represent the community which the school serves, individual members may or may not have particular qualifications or experience in the field of education and may or may not have experience as employers. Instead, it is their cumulative experience as members of the community served by the school which informs the way in which they carry out their role. The difficulties arising from the interplay between a Board of Management and the staff of a school were acknowledged by O'Malley J. in Kelly v. St. Josephs National School, Valleymount [2013] IEHC 392. She stated:

“151. .… However, it is a model that does place burdens on those involved. The voluntary members of the board will often be people without any particular experience in the range of matters, from budgeting to health and safety to management of staff, for which they must take responsibility. It is necessary for the board to respect the expertise of its staff, while ensuring that it does not abdicate its responsibilities.

152. Equally, it is incumbent on the staff to respect the voluntary effort of the board members, to accept that the board has the job of management and in particular to respect the role of the board as their employer.”

Significantly, for the purposes of the issues in this case, the Board of Management is the employer of the staff in the school including the plaintiff as principal.

12 . Although the plaintiff commenced her employment in the school in October 2018, the issues now raised against her seems to date from August 2019 onwards. I do not propose to set out the chairperson's complaints nor...