Lyons v Longford Westmeath Education and Training Board

• Jurisdiction: Ireland
• Judge: Mr. Justice Eagar
• Judgment Date: 05 May 2017
• Neutral Citation: [2017] IEHC 272
• Docket Number: [2016 No. 708 J.R.]
• Court: High Court
• Date: 05 May 2017

BETWEEN

MICHAEL LYONS

APPLICANT

AND

LONGFORD WESMEATH EDUCATION AND TRAINING BOARD

RESPONDENT

[2017] IEHC 272

[2016 No. 708 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Employment – The Education Act 1998 as amended by s. 6 of the Education (Amendment) Act 2012 – Complaint against bullying – Breach of fair procedures – The Education and Training Boards Act 2013

Facts: The applicant had challenged the disciplinary proceedings initiated by the respondent against the applicant in the present judicial review application. The applicant contended that the respondent had carried out the investigation of the complaint containing allegations of bullying in contravention of fair procedures. The applicant alleged that there was objective bias as the Chief Executive of the respondent merely adopted the findings made by the private company hired by the respondent for carrying out the said investigation without adhering to the prescribed procedure.

Mr. Justice Eagar held that the investigation conducted by the private company hired by the respondent was in breach of the constitutional right of fair procedures. The Court set aside the summoning of the applicant to Stage 4 disciplinary meeting. The Court held that the Chief Executive had no constitutionally sound basis to hold the disciplinary proceedings in accordance with the relevant circular. The Court observed that the applicant was entitled to challenge and cross-examine the witness and seek the assistance of solicitors in accordance with the principle of natural justice but the applicant was denied that right. The Court observed that there were serious procedural lapses in the manner the investigations were conducted by the private company. The Court found that the complaints of bullying were often resolved by an informal procedure and the respondent had bypassed that procedure in contravention of fair procedures.

JUDGMENT of Mr. Justice Eagar delivered on the 5th day of May, 2017

1 On the 9th September, 2016 Baker J. gave leave to the applicant to apply for judicial review and granted an order that the proceedings be stayed until the determination of the application for judicial review.

Facts

2 In May, 2015 the applicant was notified that a complaint of bullying had been made against him by his colleague, a teacher called Ms. Michelle Spence. This complaint cited a number of alleged incidents, some of which dated back to 2008. Notwithstanding the fact that the applicant's principal had been aware of the 2008 allegations for some years, the applicant first learned of their existence in 2015.

3 An investigation into the complaint was launched in accordance with the ‘Bullying Prevention Policy – Complaint Procedure for Education Training Board Staff’. This procedure is specifically described as an industrial relations procedure and is not a legal procedure.

4 The respondent engaged a private limited company called Graphite Recruitment HRM Limited to carry out the investigation. The applicant was asked by the two investigators to submit his written response, to attend various meetings and interviews, with which he duly complied. On or about the 4th April, 2016 the applicant was furnished with a copy of the report of Graphite Recruitment HRM dated 24th March, 2016. As was apparent from the report, the two investigators of Graphite Recruitment HRM Ltd. had ‘upheld’ the allegations of bullying against the applicant insofar as it related to four specific instances (only) alleged to have occurred between January and April 2015 as follows:

(i) the applicant's alleged failure to include Ms. Spence's in the transition year Art Plan in January, 2015;

(ii) the applicant's failure to ‘acknowledge’ Ms. Spence at a staff meeting in April, 2015;

(iii) the applicant's alleged failure to include Ms. Spence in a community arts project in April/May 2015; and

(iv) a dispute between the applicant and the respondent in relation to the use of a camera for school photographs from September 2014 to June 2015.

None of the other allegations were upheld. At no stage was the applicant permitted to cross-examine his accuser.

5 On the 21st April, 2016 the applicant received a letter from the respondent dated the 20th April, 2016 advising that the report of Graphite Recruitment HRM Ltd. was to be adopted by the respondent. The applicant was advised that he had fifteen working days to make a limited appeal to the decision. He appealed but his appeal was rejected.

6 By letter dated 30th August, 2016 written by the Chief Executive of Longford Westmeath Education and Training Board, Christy Duffy, the applicant was advised that as his appeal had not been upheld that the investigation report ‘stands’ together with the ‘findings’ against him. The applicant was advised as follows: -

‘Bullying behaviour in an ETB workplace is unacceptable misconduct which properly falls to be addressed under the appropriate provisions of Circular Letter 71/2014 Disciplinary Procedures for Teachers Employed in Education and Training Boards. (herein ‘ETB’)

In the light of findings/conclusions of the investigation report (copy enclosed) you are required to attend a Stage 4 Disciplinary Meeting to be convened for the purpose of determining the disciplinary action if any, which may arise from the finding of the investigation referred to above.’

The applicant was further advised that the meeting was scheduled to take place at 11:00am on Thursday the 15th September, 2016.

7 It was within this context that the applicant applied ex parte by way of application seeking a number of reliefs as set out below, to be presented before Baker J. on the 9th September, 2016.

Submissions on behalf of the Applicant

8 Counsel for the applicant indicated that the applicant was the Deputy Principal at Lanesboro Community College and that in or about May 2015 the applicant was notified that a complaint of bullying had been made against him by his colleague, a teacher called Michelle Spence. This complaint cited a number of alleged instances, some of which dated back to 2008. The applicant first learned of their existence in 2015. Notwithstanding this, the applicant's principal had been aware of the 2008 allegations for some years.

9 An investigation into the complaint was launched in accordance with the “Bullying Prevention Policy – Complaint Procedure for ETB Staff” dated the 1st September, 2013. This procedure does not have any status under the Education Act 1998 (as amended by section 6 of the Education (Amendment) Act 2012) as it is not a disciplinary procedure and does not afford the subject of any investigation the safeguards provided for in Circular 71/2014. It is specifically described as an “Industrial Relations Procedure” and not a legal procedure. Section 1.1 states:-

‘Agreed procedure is an industrial relations procedure and not a legal procedure. It will be conducted within the norms of industrial relations custom, practice and procedure and as such is not a judicial process. In circumstances where legal action is evoked, the policy will be suspended and the operation of law will take precedence.’ (this Court's emphasis).

10 The respondent engaged a private limited company called Graphite Recruitment HRM Ltd. to carry out the ‘investigation’.

11 The applicant was asked by members of staff of Graphite Recruitment HRM Ltd. to submit his written response by the 21st May, 2015. He complied with this request. He was also requested to attend various meetings and interviews and he duly complied. The procedures designed and adopted by Graphite Recruitment HRM Ltd. did not permit the applicant to confront his accuser or challenge by way of cross examination the allegations against him. According to the agreed policy document it was expected that this investigation would take five to six weeks. The process eventually concluded on the 4th March, 2016 having been in existence for forty-three weeks (this Court's emphasis).

12 On or about 4th April, 2016 the applicant was furnished with a copy of the report of Graphite Recruitment HRM Ltd. dated 24th March, 2016. As was apparent from the report, the two employees of Graphite Recruitment HRM Ltd. had ‘upheld’ the allegations of bullying against the applicant insofar as it related to four specific instances alleged to have occurred between January and April 2015. None of the other allegations were upheld. On the 21st April, 2016 the applicant received a letter from the respondent dated 20th April, 2016 advising that the report of Graphite Recruitment HRM Ltd. was to be adopted by the respondent. Such ‘adoption’ has no and can have no legal implications for the processes provided in Circular 71 of 2014. The applicant was advised that he had fifteen working days to take a limited procedural appeal to the decision and his appeal was rejected.

13 By letter dated 30th August, 2016 from the Chief Executive of Longford Westmeath Education and Training Board, Mr. Christy Duffy, the applicant was advised that as his appeal had not been upheld and that the investigation report ‘stands’ together with the ‘findings’ against him. As set out above, the applicant was required to attend a ‘Stage 4 Disciplinary meeting’.

This was the first indication of any disciplinary process.

14 By letter dated 31st August, 2016 the applicant's solicitors wrote objecting to the course of action proposed and followed this letter with a further letter of the 2nd September, 2016 outlining the detailed basis for the applicant's objections to the respondents proposed course of action. The applicant requested assurances that any steps that the respondent proposed to take in respect of the as yet unspecified allegations against him would be taken entirely in accordance with Circular 71/2014 and by letter dated the 6th September, 2016 the respondent solicitor responded that the applicant concerns were...