McSorley v The Minister for Education & skills and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 26 April 2012
• Neutral Citation: [2012] IEHC 201
• Court: High Court
• Date: 26 April 2012

[2012] IEHC 201

THE HIGH COURT

[764 JR/2011]

McSorley v Min for Education & County Kilkenny Vocational Education Committee

JUDICIAL REVIEW

BETWEEN

CATHERINE MCSORLEY

APPLICANT

V.

THE MINISTER FOR EDUCATION AND SKILLS

FIRST NAMED RESPONDENT

&

COUNTY KILKENNY VOCATIONAL EDUCATION COMMITTEE

SECOND NAMED RESPONDENT

RSC O.84 r20(7)

VOCATIONAL EDUCATION ACT 1930 S105

VOCATIONAL EDUCATION ACT 1930 S105(1)

VOCATIONAL EDUCATION ACT 1930 S27

VOCATIONAL EDUCATION (AMDT) ACT 1944 S8

GARVEY v IRELAND & ORS 1981 IR 75

S (P) & E (B) v MIN FOR JUSTICE UNREP HOGAN 23.3.2011 2011/45/12794 2011 IEHC 92

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

HEANEY & MCGUINNESS v IRELAND & AG 1994 3 IR 593 1994 2 ILRM 420 1994/10/3029B

RSC O.84 r21

RSC O.84 r21(1)

O'DONNELL v DUN LAOGHAIRE CORP 1991 ILRM 301 1990/8/2084

CORRIGAN v IRISH LAND CMSN 1977 IR 317

BYRNE, STATE v FRAWLEY 1978 IR 326

KEEGAN & LYSAGHT, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

Practice and procedure - Judicial review - Fair procedures - Fitness - Inquiry - Complaints - Principal - Report - Ultra vires - Expansion terms of reference - Whether applicant could be dismissed

Facts: The Minister for Education had caused an inquiry into the fitness of the applicant Vocational School Principal to be conducted pursuant to s. 105 Vocational Education Act 1930. The terms of reference for the Inquiry had been detailed but the Inquiry Officer had expanded the terms on account of the amount of time which had elapsed. The applicant submitted that the officer had acted ultra vires his powers in expanding the terms of reference. The respondent complained that the applicant did not judicially review the expansion of the terms of reference at the relevant time in question in 2007. In 2011, the Minister wrote to the applicant declaring that the applicant was no longer fit to hold office, five and a half years later after the establishment of the Inquiry. The applicant complained that the decision was not supported by the contents of the report of the inquiry. The applicant had been found to be doing a very good job in her position in later times. The complaints upheld against the applicant were eight to ten years old when the decision to dismiss her was made

Held by Hedigan J. that the inordinate length of time since the events in question and balancing that with her satisfactory performance to date, the decision to remove her now entailed such manifest disproportionality that the Court had to intervene. There would be an order to quash the decision of the Minister to dismiss the applicant from her post.

1 Judgment of Mr. Justice Hedigan delivered the 26th of April 2012

2 1. The applicant resides at Annamult, Bennettsbridge, Co Kilkenny. The first named respondent is the Minister for Education and Skills. The second named respondent is a statutory body established under the Vocational Education Acts 1930-2001 and was at all material times the employer of the applicant.

3 2. The applicant seeks the following relief's:-

4 (i) A Declaration that the Applicant is, and rightfully remains employed in the post of Principal of Kilkenny City Vocational School.

5 (ii) A Declaration confirming that none of the allegations the subject matter of the Inquiry established by Order of the Minister for Education & Science on 20 ^th February, 2006 ("the Ministerial Order of 2006") were upheld against the Applicant;

6 (iii) A Declaration that the eight new matters purportedly investigated by the First Respondent's servant or agent, Mr Torlach O'Connor, during the course of the said Inquiry did not properly form part of the Ministerial Order of 2006 and should not have been investigated;

7 (iv) An Order and Declaration that the undated report of the First Respondent's servant or agent, Mr O'Connor received on 14 ^th April, 2011 cannot be relied upon, in particular to dismiss the applicant;

8 (vi) An Order of Prohibition, by way of application for judicial review, preventing the respondents, their servants or agents from taking any further steps on foot of the Ministerial Order of the First Respondent dated the 28 ^th July, 2011 and or directing the removal of the Applicant from office with effect from the l ^st September, 2011.

9 (vii) An Order of Prohibition restraining the Respondents, their servants or agents, from taking any steps in furtherance of the Ministerial Order of the 28 ^th July, 2011 of the First Respondent;

10 (viii) Further or in the alternative and if necessary an Order of Certiorari quashing those conclusions and findings of, and that part of, the Interim Report which found 3 of the 8 purported new allegations to be proven.

11 (ix) An Injunction restraining the Respondents, their servants or agents, from terminating the employment of the Applicant or from stopping the payment of her salary, benefits, pension and emoluments;

12 (x) An Order directing that no further investigations be carried out in relation to the matters the subject matter of the Ministerial Order of 2006 or in relation to the period 2001-2003.

13 (xi) An injunction restraining the Respondents from taking any further steps giving effect to the Ministerial Order of the First Respondent dated 28 ^th July, 2011 directing the removal of the Applicant from office with effect from l ^st September, 2011.

14 (xii) A stay pursuant to Order 84 rule 20(7) (a) of the Rules of the Superior Courts, 1986, and or an injunction restraining the implementation of the said Order pending the determination of the within proceedings;

15 (xiii) An order that the respondents comply with their obligations under the Data Protection Acts pursuant to the Applicants requests of the 16 ^th May, 2011;

16 (xiv) Such further or other Order as to the High Court appears just and proper and in the interests of the Applicant including such relief as may be appropriate under the European Convention on Human Rights Act 2004 as may be appropriate;

17 (xv) Damages;

Background Facts

18 2 3.1 The applicant is Principal of Kilkenny City Vocational School ("KCVS") and has held this position since 1999. KCVS provides learning and support in particular for marginalised and disadvantaged children and has experienced high truancy rates. There was unrest between various parties in KCVS prior to the applicant's appointment as Principal in 1999. Her predecessor resigned her post. In 2003 a number of allegations were made concerning the applicants conduct in the running of the school. Further to these allegations a number of inquiries were initiated. On the 21 ^st December 2005 the then Minister for Education and Science decided to establish an inquiry under section 105 of the Vocational Education Act 1930. On 20 ^th February, 2006 the Minister approved terms of reference for this inquiry as follows:-

"I, Mary Hanafin T.D., Minister for Education and Science, in exercise of the powers conferred on me by section 105 of the Vocational Education Act 1930, hereby appoint Mr Torlach O'Connor, retired Assistant Chief Inspector of the Department of Education and Science, to-"

(a) carry out an inquiry into the performance by Ms Cathy McSorley, Principal of Kilkenny City Vocational School, of her duties as Principal of Kilkenny City Vocational School and such an inquiry shall include, but not necessarily be limited to, an inquiry into-

(i) the organisation and administration of that school in the area of human resource management,

(ii) the alleged failure of Ms McSorley to effectively apply the schools disciplinary policy,

(iii) the alleged engagement by Ms McSorley in the bullying of staff members of County Kilkenny Vocational Education Committee,

(iv) the alleged failure of Ms McSorley to comply with the lawful orders of the Vocational Education Committee as directed from time to time by the Chief Executive Officer,

(v) the administration of the school by Ms McSorley with regard to recording of the roll books in the school and the supervision of a foreign trip by the school in February 2001, and

(vi) the alleged payment by Ms McSorley to students enrolled in Kilkenny City Vocational School to attend such school.

19 (b) to report to me the outcome of the inquiry as speedily and in as efficient a manner as possible, having regard to the circumstances of the case.,

20 (c) to provide an interim report if requested by me to do so. The terms of reference may be subject to such addition or amendment as I consider appropriate."

21 3 3.2 On the 14 ^th February, 2008 the first named respondent requested Mr O'Connor to forward an interim report. The applicant was made aware of this at the time and raised objections in correspondence with the Inquiry, however she fully and actively engaged with the Inquiry. A report was furnished to the first named respondent in August 2010. The report made a number of findings against the applicant. On the 6 ^th April, 2011 the Minister's advisor, Mr Matthew Ryan prepared a Departmental memorandum with advices for the Minister and provided him with the Interim Report. Appended to that memorandum is the Minister's hand-written decision to remove the applicant dated one day later, 7 ^th April, 2011. The Minister wrote to the applicant on 12 ^th April, 2011 informing her that he had considered the Interim Report prepared by Mr Torlach O'Connor, on foot of the Ministerial Order, and the conclusions he formed therein and he had formed the provisional opinion that the applicant was "unfit to hold office". The Minister invited representations regarding this opinion, which representations were forwarded on behalf of the applicant on the 13 ^th June, 2011.

22 4 3.3 On the 18 ^th July, 2011 Mr Ryan created a...