Kelly v Trinity College Dublin
 IESC 61
THE SUPREME COURT
422/2005 - Fennelly Macken Finnegan - Supreme - 14/12/2007 - 2007 32 6594 2007 IESC 61
RSC O.58 r13
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This is an application for leave to apply for judicial review of a decision of the Visitors to Trinity College. The application for leave was dismissed in the High Court (Abbot J) and comes before this Court pursuant to Order 58, Rule 13 of the Rules of the Superior Courts. The impugned decision was made by the Visitors on 9th November 2005. They ruled that they had no jurisdiction to consider a complaint of bullying made by the applicant, a student, against a member of staff. The applicant complains principally of the composition of the Visitors and alleges bias.
For ease of reference, I will describe the University as Trinity or the College.
The background to the application is complex and involves several procedural stages of the applicant's complaints and a number of elements of Trinity administration. The applicant has submitted an extremely long grounding affidavit, voluminous documentation and no less than six sets of written submissions. He also presented oral submissions before the Court. Most of the background is not directly relevant to the very specific grounds for judicial review placed before the Court by the applicant.
During the academic year 2002-2003, the applicant was a postgraduate student on the Masters in Social Work course at Trinity. Part of his course involved placement on a Practice Project at the Risk Assessment and Consultation Service of the South Western Area Health Board. There was deep seated and fundamental dispute between the applicant and his Practice Teacher, Ms Enda Fulham, who terminated the applicant's placement a month early.
The applicant submitted a Practice Project report in May 2003. He included it a detailed and very strongly worded complaint against Ms Fulham, accusing her,inter alia, of subjecting him to "incessant abuse and criticism." Ms Fulham wrote an Evaluation Report on the applicant's placement. She recommended the applicant for a grade of F2, which means "an absolute fail."
The applicant sent responses to the Evaluation Report to the course director for the Masters in Social Work. The latter acknowledged what she described as his complaint dated 21st June 2003 and said that the complaint would be investigated.
About this time, Trinity had adopted a "Policy and Procedures for dealing with Complaints of Bullying or Harassment including Sexual Harassment." This policy appears to apply to both students and employees at Trinity. The applicant's complaint was investigated in accordance with this procedure.
On 27th November 2003, Mr Michael Gleeson, Secretary to the Board of Trinity wrote to the applicant, enclosing a "copy of the report of the investigation conducted by the Pro-Dean of Business, Economic and Social Studies, in accordance with the College's policy on "preventing Sexual Harassment and Bullying."" The Report was by Professor J. A. Murray, Professor of Business Studies, who said that he had been asked to "consider the complaint and to report to the College." He named a number of people whom he had interviewed, including Ms Fulham, but he said that the applicant had declined an invitation to meet with him to discuss the complaint. Professor Murray reported that, in his opinion, the complaint was "without substance." He was satisfied that neither harassment nor bullying had occurred.
The applicant pursued the matter via the Anti-Bullying Unit of the Health and Safety Authority. According to the applicant a new and upgraded Anti-Bullying Policy was adopted by Trinity. He spent months trying to get Trinity to reinvestigate his complaint. On 6th July 2004, he was informed by the Secretary that Professor Murray had reviewed the complaint in the light of the changes to the policy and that his opinion would not have been different if the new policy had been in force.
On 5th October 2004, the Secretary informed the applicant that the College had "appointed Professor John McGilp, Professor of Physics and formerly Bursar of the College, to re-consider [the complaint] in the context of the current guidelines, and to report to the College on the matter." Professor McGilp conducted an investigation, during which the applicant met him.
On 14th February 2005 the applicant received a letter from the Staff relations Officer at the College, informing him that Professor McGilp had completed his report "in line with Section 7 of the College Policy and Procedures for dealing with complaints of Harassment." Professor McGilp reported:
"I find no corroborating evidence to support any of Mr Kelly's allegations and I find that Mr Kelly's complaint is unfounded."
The applicant was invited to and did respond to Professor McGilp's report. On 15th March 2005, he wrote to the Secretary asking whether the Board of Trinity College had made a decision on the complaint. He continued:
"In default of a decision on the complaint or an explanation, I will notify the registrar of my intention to appeal to the Visitor, Mr Justice McCracken, under Chapter III, Section 6 of the College Statutes."
The Secretary responded that this was "not a matter for the Board," which had "no role in relation to the investigations carried out in accordance with the above [anti-bullying] policy." The Board did not make any decision on the matter. As will be seen later, the applicant has submitted that the Board should be deemed to have made a decision.
The concluding part of the Ant-Bullying Policy provided, following an investigation of a complaint:
"If it is found that the complaint is well founded the investigator may recommend counselling, monitoring or the convening of a disciplinary hearing. This outcome should be conveyed personally, as well as in writing, to the individual concerned.
If a disciplinary hearing is recommended this will be conducted in line with the statutes and/or agreements pertinent to the person involved. If either party is unhappy with the outcome of the investigation, the issue may be processed through normal industrial relations mechanisms."
Clearly, the investigator, Professor McGilp, had not recommended a disciplinary hearing. On the contrary, he had found that the applicant's complaint was unfounded. Thus, the only possibly applicable provision of the Policy was that permitting "the matter to be processed through normal industrial mechanisms." The interpretation of this provision is not before the Court on the present application and the applicant has sought no relief by reference to it. It is better, therefore, to refrain from comment as to its effect.
As a matter of fact, the Secretary wrote, on 18th March 2005, drawing the above quoted provision to the attention of the applicant and informing him that he might "process the issue through normal industrial relations mechanisms." He continued:
"In this case, in accordance with the College Statutes, you may refer the matter to the Senior Dean."
The applicant disagreed with the Secretary's statement that his complaint was not a matter for the Board. He states that the Senior Dean and the "Disciplinary Procedures governing Members of the Academic Staff" are not a "normal industrial relations mechanism." The applicant maintains that he had made no complaint against Ms Fulham pursuant to Schedule III to Chapter XII of the Consolidated College Statutes (hereinafter "the Statutes"). His complaint, he says, was under the College's upgraded policy on bullying. These matters are not directly before the Court for decision. They are relevant as background to the circumstances in which the Visitors came to make the impugned decision.
On 21st March 2005, the applicant wrote to the Registrar of the College informing him of his intention to appeal to the Visitors. In his letter purporting to invoke the jurisdiction of the Visitors, he claimed that the Board had "defaulted" and notified the Registrar of his "intention to appeal to the Visitors under Chapter III, Section 6 of the College Statutes." As I have explained, however, the Board had made no decision. Section 6 of Chapter III provides:
"If any member or members of staff or student or students of the College or University shall claim to have suffered or to be liable to suffer an injustice in consequence of any decision or sentence of the Board, or shall claim that any decision of the Board is inconsistent with the Statutes, such member or members of staff, student or students may within three weeks of the date on which such decision or sentence has been publicly announced, or has been conveyed to the person or persons concerned, inform the Registrar of an intention to appeal to...
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