Kathleen Fitzpatrick v Board of Management of St. Mary's Touraneena National School and Another

• Jurisdiction: Ireland
• Judge: Denham C.J.,Mr. Justice William M. McKechnie,Mr. Justice John MacMenamin
• Judgment Date: 19 December 2013
• Neutral Citation: [2013] IESC 62
• Court: Supreme Court
• Date: 19 December 2013

[2013] IESC 62

THE SUPREME COURT

Denham C.J.

McKechnie J.

MacMenamin J.

Appeal No: 298/2008

[S.C. No. 298 of 2008]

Fitzpatrick v Board of Management of St Mary's Touraneena National School & Min for Education

Between/

Kathleen Fitzpatrick

Applicant/Appellant

and

The Board of Management of St. Mary's Touraneena National School and the Minister for Education and Science

Respondents

Respondents/Respondents

DELANEY v CENTRAL BANK 2012 ELR 117

EDUCATION ACT 1998 S15

RSC O.84 r23(1)

RSC O.84

MCCORMACK v GARDA SIOCHANA COMPLAINTS BOARD & ORS 1997 2 IR 489

KEEGAN v GARDA SIOCHANA OMBUDSMAN COMMISSION 2012 2 IR 570

ANALOG DEVICES BV & ORS v ZURICH INSURANCE CO & ORS 2002 1 IR 272

INVESTORS COMPENSATION SCHEME LTD v WEST BROMWICH BUILDING SOCIETY v HOPKIN & SONS & ORS 1998 1 WLR 896

CASSIDY & ORS v MIN FOR INDUSTRY & COMMERCE 1978 IR 297

KENNEDY v LAW SOCIETY OF IRELAND & ORS 2000 2 IR 104

DIRECTOR OF CORPORATE ENFORCEMENT v DCC PLC & ORS 2009 1 IR 464

GLOVER v BLN LTD & ORS 1973 IR 388

LOFINMAKIN (A MINOR) & ORS v MIN FOR JUSTICE UNREP SUPREME 20.11.2013 2013 IESC 49

RULES OF THE SUPERIOR COURTS (MEDIATION & CONCILIATION) SI 502/2010

EMPLOYMENT

Judicial review

Appeal - Fitness to work - Independent medical assessment - Board of management - Local medical advisor - Sick leave scheme - Contractual interpretation - Public law element - Improper purpose - Mootness - Whether board erred in law in nominating medical specialist - Whether breach of fair procedures in furnishing documentation to nominated medical specialist - Whether subsequent referral of applicant by local medical advisor to independent specialist remedied position - Delaney v Central Bank [2011] IEHC 212, (Unrep, Laffoy J, 15/4/2011) distinguished - McCormack v The Garda Síochána Complaints Board & Ors [1997] 2 IR 489; Keegan v Garda Síochána Ombudsman Commission [2012] IESC 29, [2012] 2 IR 570; Analog Devices BV & Ors v Zurich Insurance Company & Ors [2002] 1 IR 272; Investors Compensation Scheme Ltd v West Bromwich Building Society; Same v Hopkin & Sons (a firm) & Ors [1998] 1 WLR 896; Cassidy & Ors v Minister for Industry and Commerce [1978] IR 297; Kennedy v The Law Society of Ireland & Ors [2000] 2 IR 104; The Director of Corporate Enforcement v DCC Plc & Ors [2008] IEHC 260, [2009] 1 IR 464; Glover v BLN Ltd & Ors [1973] IR 388 and Lofinmakin (a minor) & Ors v The Minister for Justice, Equality and Law Reform & Ors [2013] IESC 49, (Unrep, SC, 20/11/2013) considered - Education Act 1998 (No 51), s 15 - Rules of the Superior Courts 1986 (SI 15/1986), O 84, r 23(1) - Rules of the Superior Courts (Mediation and Conciliation) 2010 (SI 502/2010) - Appeal dismissed (298/08 - SC - 19/12/2013) [2013] IESC 62

Fitzpatrick v Board of Management of St Mary's Touraneena National School

The appellant was an employee at St Mary's Touraneena National School who brought judicial review proceedings against the first named respondent (‘the Board’) and the second named respondent (‘the Minister’). The appellant had been unfit to work for some time due to deterioration in her mental health, but she eventually sought to return when she had been certified as fit to return to work by her General Practitioner and the Minister”s Chief Medical Officer. Nevertheless, the Board sought to refer her to a psychiatrist before permitting the return. The appellant brought judicial review proceedings against the respondents and sought reliefs in the form of declarations that the Board had acted ultra vires the provisions of clause 7 of the Primary Circular 10/05 issued by the Minister in seeking to make the referral when the Minister”s Chief Medical Officer had already certified the appellant as fit to return to work, that the Board had acted in breach of natural and constitutional justice, and that the Board”s invocation of clauses 7.3 and 7.4 of the Primary Circular 10/05 was unreasonable. The appellant also sought an injunction restraining the Board from refusing to permit her to return to her employment until she had undergone further psychiatric assessment, an injunction restraining the Minister from facilitating the Board in refusing to permit the appellant to return to her employment, and an injunction restraining the Minister from facilitating the invocation by the Board of clause 7 of Primary Circular 10/05 in relation to the appellant.

The appellant”s application was refused by the High Court on the basis that the Board had been entitled to make the referral of the appellant for psychiatric assessment pursuant to clause 7.3 of the Primary Circular 10/05. These proceedings concerned an appeal of that decision. The appellant argued that the invocation of clause 7.3 was for an improper purpose and was ultra vires the Board”s powers, and that the way in which clause 7.3 was applied was in breach of natural justice. The Board argued that the decision of the High Court had been correct as the appellant had failed to discharge the burden of proof in regards to her arguments.

Held by Denham C.J. (with McKechnie J. and MacMenamin J. concurring) that the Board had been entitled to invoke clause 7.3 of the Circular in the circumstances in which they did. The Circular had been enacted by the Minister following agreement between the Department of Education and Science, the Irish National Teacher Organisation and schools organisations so that teachers who were employed by Boards of Management could avail of sick leave. Under clause 7.1 of the Circular, a teacher could not return to work following a period of paid sick leave of more than three consecutive months without providing a medical certificate of fitness to resume full-time teaching. This requirement had been satisfied by the appellant. Under clause 7.3, however, a teacher to which clause 7.1 applied could be referred for independent medical assessment by the Board of Management if they had any concerns about the proposed resumption of duties.

It was held that the appellant had failed to show to the necessary standard of proof that the Board had not acted bona fide in seeking independent medical assessment in respect of the appellant. There was certainly no evidence to support the appellant”s suggestion that the referral had been made as a retaliatory measure against her complaints of bullying and harassment from her employer. It was, therefore, determined that the invocation of clause 7.3 was rational. It was further held that because the proposed referral never took place, the appellant”s argument that there had been a breach of natural justice was moot.

Appeal dismissed.

1 Judgment delivered on the 19th December, 2013 by Denham C.J.

2 Judgment of Mr. Justice William M. McKechnie delivered on the 19th day of December, 2013.

3 Judgment of Mr. Justice John MacMenamin delivered the 19th day of December, 2013

4 Judgments delivered by Denham C.J., McKechnie J, & MacMenamin J

5 1. This is an appeal by Kathleen Fitzpatrick, the appellant, who is referred to as "the appellant", against the judgment of the High Court (Irvine J.), delivered on the 24 ^th July, 2008, and the order perfected on the 31 ^st July, 2008.

6 2. There is also a motion before the Court brought by the Board of Management of St. Mary's Touraneena National School, the first named respondent, which is referred to as "the Board".

7 3. The second named respondent, the Minister for Education and Science, is referred to as "the Minister".

8 4. In the statement of grounds dated the 31 ^st July, 2006, filed on behalf of the appellant to ground the application for leave to apply for judicial review, the appellant set out in paragraph E a factual précis and the legal grounds.

9 5. On the 31 ^st July, 2006, the High Court (Peart J.), granted to the appellant leave to apply by way of application for judicial review for the reliefs set out in paragraph D in the statement of grounds, on the grounds set out in paragraph E.

10 6. The legal grounds set out in the statement of grounds were:-

11 Legal Grounds

12 (i) The Board acted ultra vires in seeking to make a referral to the psychiatrist Dr. Mohan when the Minister's Chief Medical Officer had certified the appellant being fit to return to work. The appellant has also been certified as fit to return to work by her General Practitioner, Dr. Tom Higgins and by Dr. Stephen Browne, Consultant Psychiatrist.

13 (ii) The decision of the Board to invoke clause of the Primary Circular and to refer the appellant to Dr. Mohan is further vitiated or tainted by being in breach of Circular 10/05 clause 7 as the appellant has met the criteria to resume her duties. The Circular is quite clear in that it states that the duty of referral is to be made by the local medical adviser of the Board.

14 (iii) The Board acted ultra vires in seeking to invoke clause 7 of Primary Circular 10/05 in circumstances where what was involved on the Board's own case was an issue of "interpersonal difficulties". Further or in the alternative, the purported invocation by the Board of clauses 7.3 and 7.4 of Primary Circular 10/05 was so irrational that no Board of Management acting reasonably could have decided to seek to invoke clause 7.3 and 7.4 of Primary Circular 10/05 and/or its decision to do so was vitiated by bias.

15 (iv) The Board sought wilfully to influence or pre-empt the outcome of the psychiatric assessment of the appellant by its communications with Dr. Mohan (by means of either the communications of the Board directly or the communications by its solicitors, Arthur O'Hagan, either in this case or in other similar cases) including the document prepared by the Principal, Mrs. Nix entitled "Concerns regarding Kathleen Fitzpatrick", and acted wholly in breach of the principles of fair procedures and of...