Mary Mceneaney v Cavan and Monaghan Education and Training Board and Another
| Jurisdiction | Ireland |
| Judge | Kearns P. |
| Judgment Date | 19 September 2014 |
| Neutral Citation | [2014] IEHC 423 |
| Court | High Court |
| Date | 19 September 2014 |
[2014] IEHC 423
THE HIGH COURT
BETWEEN
AND
EDUCATION & TRAINING BOARDS ACT 2013
VOCATIONAL EDUCATION (AMDT) ACT 2001 S20
VOCATIONAL EDUCATION (AMDT) ACT 2001 S20(3)
DE BURCA v AN TAIRE IOMPAIR & ORS UNREP LAFFOY 29.10.2010 2010/11/2464 2010 IEHC 418
GILHEANEY & MEEHAN v REVENUE CMRS 1998 4 IR 150 1995/18/4552
MCGRATH v MIN FOR DEFENCE & ORS 2010 1 IR 560 2009/35/8644 2009 IESC 62
MORGAN v TRINITY COLLEGE DUBLIN & ORS 2003 3 IR 157 2004 15 ELR 235 2003/38/9088
Education - Transfer - Challenge to validity of decision - Complaints made against applicant teacher - Professional competence - Circular 59/2009 - Administrative leave with pay - History of depression - Whether obligation to follow Circular or discretion to seek alternative remedy based on particular facts of the case
Facts The applicant was a permanent, full-time teacher with Cavan and Monaghan Education and Training Board. She was teaching at Largy College, Clones in Co. Monaghan. She sought to challenge the validity of a decision made by the respondents on the 17th August 2013 to transfer her teaching duties to St. Mogues”s, Bawnboy, Belturbet, Co. Cavan. The applicant commenced work with Co. Monaghan Vocational Education Committee in Largy College in 1999. Her appointment was made permanent in 2002. In early 2013 the plaintiff was the subject matter of five complaints. She was therefore supplied with Circular 59/2009 and was informed that it would apply in dealing with the complaints made against her. The circular envisages that several steps be taken for the purpose of assessing and improving the teacher”s performance before any disciplinary process may commence. The applicant argued however that these procedures, although commenced, were never followed in her case. Instead, the respondent referred the applicant for medical assessment to determine if she was fit for work. While it is conceded that the applicant had an underlying history of depression, she maintained there were no grounds for instructing her to attend for medical examination at that time and that it was an issue which should have been dealt with under the aforementioned procedures designed to address complaints regarding competence. The formal procedures for dealing with issues regarding competence were not however invoked.
Held The process never got beyond the informal stage. The judge decided that this was not due to any fault on behalf of the respondents but came about entirely as a result of the applicant”s own conduct, decisions and changes of mind. The meeting between the applicant, her trade union representative and the respondents in February 2013 was proceeding towards an informal solution of the applicant”s problems when the applicant herself collapsed the process. Given that she furnished a note to her trade union representative to say that she felt “suicidal” and later disavowed her willingness to engage in the form of teaching then under discussion, she thereby, albeit unintentionally, exacerbated the difficulties faced by the respondents who had an unusually high number of complaints to deal with insofar as this particular teacher was concerned. While medical evidence became available by the summer of 2013 to show that the applicant was recovering from those psychological difficulties, the judge concluded that any resumption of her teaching duties at Largy College could only occur or be allowed to occur once the complaints made against her had been resolved appropriately. By using the term “appropriately” the judge did not wish to be taken as meaning that only the mechanisms relayed in circular 59/2009 should be followed. On the contrary, the judge said the provisions of the circular were “singularly inappropriate” to address the particular facts of the case. However, in saying that he stressed that any investigation undertaken would have to afford fair procedures to the applicant and conform with the principles of natural and constitutional justice.
JUDGMENT of Kearns P. delivered on the 19th day of September, 2014
The applicant is a permanent whole-time teacher of Home Economics and Science with the first named respondent at Largy College, Clones, Co. Monaghan.
In these proceedings the applicant challenges the validity of a decision made by the respondents on the 17 th August, 2013 to transfer her from teaching duties at Largy College in Clones, Co. Monaghan to St. Mogues's, Bawnboy, Belturbet, Co. Cavan.
The original order granting leave was made by the High Court (Laffoy J.) on the 23 rd August, 2013, and by order of the High Court (Hedigan J.) dated the 18 th November, 2013, the applicant was permitted to amend her statement of grounds to include the additional contention that the further decision of the respondents made on the 25 th October, 2013 whereby she was placed on administrative leave was also null and void and of no force or effect.
Against a background where it is accepted that a significant number of complaints had been made about the applicant's teaching performance, the applicant contends that her legitimate expectation that the respondents would apply the procedures set out in circular 59/2009 in order to determine any complaints regarding her competence was breached by the respondents.
The first respondent is a statutory body established by the Education and Training Boards Act 2013 and charged inter alia with establishing and maintaining recognised schools, centres for education or training facilities in its functional area. The second named respondent is an officer of the first respondent under the Education and Training Boards Act 2013 and charged with discharging the functions of the first named respondents.
The applicant was appointed as a member of staff of Co. Monaghan Vocational Education Committee pursuant to the powers conferred on the Committee by s.20 of the Vocational Education (Amendment) Act 2001. Section 20 (3) of that Act provides that the terms and conditions of a member of the staff of a vocational education committee shall, with the consent of the Minister, be such as may be determined from time to time by the Vocational Education Committee concerned.
By circular 59/2009, the Department of Education and Science notified the Vocational Education Committees that new procedures had been agreed for dealing with the sort of issues which have arisen in this case. The procedures were entitled "Towards 2016/Revised Procedures for Suspension and Dismissal of Teachers/Vocational Education Committee". In brief, the relevant part of the procedures relating to teachers experiencing professional competence issues provides for an informal process, followed by a formal process. The formal process commences with a written report by the Principal and a response by the teacher. If necessary, the Principal will be charged with writing an improvement plan allowing no less than three months for the teacher to improve. If matters have not been resolved, there is then an external review by the Chief Inspector or members of his staff, who report to the CEO. The teacher is entitled to reply. A disciplinary process may then follow which may result in a final written censure, deferral of an increment, withdrawal of an increment or increments or suspension in accordance with the Vocational Education Committee Acts. This procedure allows the teacher the right to address complaints against him or her.
The applicant commenced work with Co. Monaghan Vocational Education Committee in Largy College in 1999. Her appointment was made permanent in 2002. In early 2013 the plaintiff was the subject matter of five complaints made by parents and pupils against her. Those complaints having been made, the applicant was supplied with Circular 59/2009 and was informed that it would apply to her in dealing with the complaints.
The background statement at the start of the circular states as follows:-
"While no procedures can be definitive about the range of circumstances which might give rise to the initiation of disciplinary procedures in general these are likely to be related to misconduct, a threat to the health and safety of students and/or sustained failure to perform adequately the professional duties and responsibilities expected of a teacher."
The following agreed procedures provide for two separate and independent strands which should be utilised in appropriate circumstances:-
1. Procedures relating to professional competence issues
2. Procedures relating to work, conduct and matters other than professional competence."
Part 3 relates to teachers experiencing professional competence issues. The preamble states:-
"There may also be instances where concerns are raised regarding a teacher's professional competence through parental complaints. In such cases the concerns will be addressed by the Principal in the first instance in accordance with agreed complaint procedures. The principal will consider the nature of the complaint before determining whether the issue falls to be considered under the procedures relating to professional competence. If the procedures relating to professional competence are subsequently invoked the parent who made the complaint will be so advised and informed of the final outcome of the process."
It follows that the approach to dealing with matters of professional competence should involve a number of stages moving from informal stages to formal stages which may at the end of the process have recourse to disciplinary action (up to and including dismissal). This must of course...
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Earley v Health Service Executive
...to engage positively, the judgment of Kearns. P of 19th September, 2014, in McEneaney v. Cavan and Monaghan Education and Training Board [2014] IEHC 423, which relied on his earlier decision in Morgan v. Trinity College [2003] 3 I.R. 157, supports the submission made on behalf of the defend......