McEneaney v Cavan

• Jurisdiction: Ireland
• Judge: Ryan P.
• Judgment Date: 02 March 2016
• Neutral Citation: [2016] IECA 53
• Docket Number: [2015 No. 92]
• Court: Court of Appeal (Ireland)
• Date: 02 March 2016

[2016] IECA 53

THE COURT OF APPEAL

Ryan P.

[2015 No. 92]

The President

Peart J.

Hogan J.

BETWEEN

MARY MCENEANEY

APPLICANT

AND

CAVAN AND MONAGHAN EDUCATION AND TRAINING BOARD

AND

MARTIN O'BRIEN

RESPONDENTS

Employment ? Competence ? Right to fair procedures ? Applicant seeking to review the respondents? decisions to transfer her and place her on administrative leave ? Whether the respondents? decisions were in breach of the applicant?s right to fair procedures

Facts: The applicant, Ms McEneaney, is a home economics teacher who began work with the first respondent, Cavan and Monaghan Education and Training Board, in 1999. She worked at Largy College in Clones, County Monaghan from 1999. In early 2013, the Principal of the College received a number of complaints from parents and pupils in the school about Ms McEneaney?s behaviour during classes, her failure to cover the appropriate courses prescribed for State examinations and her absences. A meeting took place on the 22nd February 2013 between the representatives of the Board, including the school Principal, and the applicant and her trade union representatives. The union suggested that the matter might be dealt with by having Ms McEneaney participate in a team teaching approach. Ms McEneaney made clear to the union representative that she was not agreeable to this course. She also passed a note to one official saying that she was feeling suicidal at the time. At a meeting on 17th June 2013 attended by the second respondent, Mr O?Brien, CEO of the Board, the applicant requested that she be transferred from Largy College. Mr O?Brien was sympathetic and said he would see if that could be arranged. Ms McEneaney then withdrew her transfer request. At a meeting held on the 2nd August 2013, the Chief Executive outlined the choice between Ms McEneaney?s remaining at Largy College and facing an investigation or that she could transfer to Bawnboy which was a smaller school where her classes would be smaller and fewer and circumstances would be more congenial. Ms McEneaney refused to transfer. Mr O?Brien informed the applicant that remaining at Largy College was out of the question and that he was going to be transferred. On 23rd August 2013, the High Court granted leave to bring judicial review proceedings. On 13th September 2013, the Board confirmed that Ms McEneaney would be placed on administrative leave and then clarified the situation on 25th October 2013 in respect of the leave, saying that it was not related to the outcome of the judicial review proceedings. The applicant brought her application for judicial review by way of certiorari, firstly, in respect of the order to transfer from Largy College to St. Mogues, Bawnboy, and, secondly, in respect of the decision to put her on administrative leave. On the 19th September 2014 the High Court rejected the claim by Ms McEneaney for judicial review. The applicant appealed to the Court of Appeal against that judgment, submitting that the Board could not rely on complaints about her competence in order to justify the decisions to transfer her and to place her on administrative leave because Circular 59/2009 had not been implemented; it has statutory effect and the Board was obliged to implement it in respect of such complaints. Secondly, she submitted that the Board could not rely on her health because the Board?s own doctor certified her fit to work on 9th July 2013. Thirdly, she submitted that Memorandum V7, para. 20 does not entitle the Board to transfer a teacher; moreover, it should never be invoked to deal with complaints which are within Circular 59/2009. Fourthly, she submitted that the decisions were in breach of her right to fair procedures.

Held by Ryan P that the CEO of the Board made a decision that was within his power and that he felt was in the interest of Ms McEneaney and of the schools in his jurisdiction. Ryan P held that Ms McEneaney?s insistence on rigid adherence to the disciplinary procedure was misconceived because it failed to take account of the alteration of course of the process that occurred following the meeting and events of late February 2013. Ryan P held that the High Court was correct in its conclusion that this was not a case for interference by the courts by way of judicial review; the CEO?s decision to transfer Ms McEneaney was a reasonable one and justified in the circumstances. Ryan P held that it was within the capacity of the CEO to exercise that jurisdiction.

Ryan P held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of the President delivered on 2nd March 2016

1 This is an appeal against the judgment of the High Court (Kearns P.) delivered on 19th September 2014 and the subsequent order that was made consequential on the judgment on 29th January 2015. The High Court rejected the claim by Ms. McEneaney for judicial review by way of certiorari of an order that she be transferred from the school where she had been working in the employment of the Board from 1999 until 2013 to another school in County Cavan. She also seeks to review the decision made by the Board to place her on administrative leave in October 2013.

Background Facts

2 The plaintiff is a teacher of home economics and she began work with Monaghan VEC, the predecessor of the respondent Board, in 1999. She was made permanent in 2002. She worked at Largy College in Clones, County Monghan from 1999 until the events with which we are concerned in this appeal and which culminated in a decision made in August 2013 to transfer her. The Chief Executive Officer of Largy College, who is the other respondent, ordered that Ms. McEneaney should transfer to St. Mogues College, Bawnboy, County Cavan in circumstances that will be described.

3 In early 2013, the Principal of Largy College received a number of complaints from parents and pupils in the school about Ms. McEneaney. These complaints related, inter alia, to her behaviour during classes; her failure to cover the appropriate courses prescribed for State examinations and her absences. The Principal was also aware of other concerns about Ms. McEneaney's mental health from the previous year and earlier by reason of information that she had been given by the school Chaplain and also from her own personal knowledge. She told Ms. McEneaney about the complaints and gave her a copy of a circular published by the Department of Education and Science which is known as Circular 59/2009 that deals with the procedure in cases of disciplinary action in respect of teachers in vocational schools.

4 Because of the concerns that I mentioned, the Board referred Ms. McEneaney for a medical report. On 20th February 2013, the doctor reported that Ms. McEneaney was medically fit for work. The next development was a meeting of 22nd February 2013 between the representatives of the Board, including the school Principal, and the applicant and her trade union representatives. The representatives made clear their wish that this matter should be dealt with informally and the Board representatives were agreeable. The union suggested that the matter might be dealt with by having Ms. McEneaney participate in a team teaching approach. This was an expression that was understood by the various people at the meeting as referring to a particular system of assistance that would be available. The meeting adjourned for a time and Ms. McEneaney made clear to the union representative that she was not agreeable to this course. She also passed a note to one official that caused considerable alarm. She said in this note, among other things, that she was feeling suicidal at the time. Understandably, the meeting did not resume. The concern at that stage was that Ms. McEneaney would arrange for suitable medical treatment to be obtained and that was done. She was then out of work, certified as unfit by her own doctors until 19th March 2013. The Board again wanted confirmation from their medical referee, Dr. Ryan, as to the plaintiff's fitness for work, and he reported on 9th April 2013 that his opinion was that she was not fit at that stage, although I think that there might be some disagreement by Ms. McEneaney's doctors.

5 At a meeting on 17th June 2013 attended by the CEO of the Board, Mr. O'Brien, the applicant's representative requested that she be transferred from Largy College. She later herself confirmed that request at the meeting. Mr. O'Brien was sympathetic and said he would see if that could be arranged.

6 Dr. Ryan examined Ms. McEneaney again on 28th June 2013 and wrote on 9th July 2013 to the effect that she was not disabled from work. In his report, he referred to the possibility of a transfer and that she would need supports in her work.

7 At this stage, Ms. McEneaney withdrew her transfer request. A meeting was then arranged for 2nd August 2013 at which the Chief Executive outlined the choice between Ms. McEneaney's remaining at Largy College and facing an investigation or that she could transfer to Bawnboy which was a smaller school where her classes would be smaller and fewer and circumstances would be more congenial. On 7th August 2013, Ms. McEneaney sent a letter in which she refused to transfer, saying that she would remain at Largy College. A further meeting took place on 16th August 2013 at which Mr. O'Brien informed the applicant that remaining at Largy College was out of the question and that he was going to transfer her to Bawnboy. This he confirmed by letter of 17th August 2013 in which he referred to the duty of care on the Board to the students and pupils of Largy College, and indeed to Ms. McEneaney herself, that it was the Board's view that this was in her best interest. He said that support would be provided and that she would also be mentored in Bawnboy. He referred to Memorandum V7, clause 20.1 providing for a change of headquarters and he directed that her headquarters would...