Morgan v The Labour Court and Others

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 14 January 2025
• Neutral Citation: [2025] IECA 2
• Docket Number: Court of Appeal Record Number: 2022/210 Court of Appeal Record Number: 2022/220 High Court Record Number: 2020/787JR

Between/

Deirdre Morgan

Appellant

and

The Labour Court

Respondent

and

Kildare and Wicklow Education and Training Board, Tusla, Health and Safety Authority, Department of Justice and Equality, Minister for Education and Skills and Irish Human Rights and Equality Commission

Notice Parties

Between/

Deirdre Morgan

Appellant

and

Minister for Education and Skills

Respondent

and

Kildare and Wicklow Education and Training Board

Notice Party

[2025] IECA 2

Whelan J.

Faherty J.

Binchy J.

Court of Appeal Record Number: 2022/210

High Court Record Number: 2020/123MCA

Court of Appeal Record Number: 2022/220

High Court Record Number: 2020/787JR

THE COURT OF APPEAL

Isaac Wunder orders – Proportionality – Jurisdiction – Appellant appealing against Isaac Wunder orders – Whether the Isaac Wunder orders were proportionate

Facts: The appellant, Ms Morgan, brought two appeals against the judgment of the High Court ([2022] IEHC 361) and consequent orders made in the first appeal on 28 June 2022 and in the second appeal made on 28 June 2022 granting Isaac Wunder orders pursuant to the inherent jurisdiction of the High Court as sought by both respondents, Kildare and Wicklow Education and Training Board (the Board) and the Minister for Education (the Minister), against the appellant together with orders striking out various pending applications before the Workplace Relations Commission (the WRC) and pending appeals to the Labour Court.

Held by the Court of Appeal (Whelan J) that the High Court had power in the exercise of its inherent power to make Isaac Wunder orders restraining abuses of processes occurring within the legislative regimes, under which both the WRC and the Labour Court function. Whelan J held that such a conclusion is entirely consistent with the principles expounded by O’Donnell J in Zalewski v An Adjudication Officer [2021] IESC 24. Whelan J held that the court was entitled to have regard to the entire spectrum of conduct of the appellant throughout the litigation; by any measure, her behaviour was unreasonable and the order made by the High Court was entirely proportionate. On the basis of the evidence, Whelan J concluded that the rule in Henderson v Henderson (1843) 3 Hare 100 was applicable insofar as the parties to the litigation were in each case the appellant and either the Board or the Minister, or both. Whelan J held that, viewed objectively, all the proceedings pursued by the appellant before the High Court and the Circuit Court were bound to fail on the merits. She held that it was proportionate and necessary for the High Court to grant the limited orders sought in light of the exceptionality of the facts and intensity of the litigation so as to restrain the bringing of complaints by the appellant to the WRC or appeals to the Labour Court. Whelan J was satisfied that the approach of the High Court in extending the orders to the WRC and the Labour Court was compliant with the Article 6 jurisprudence of the ECtHR as illustrated by Tolstoy Miloslavsky v UK [1995] 20 E.H.R.R. 442. To the extent that all of the claims were dealt with conclusively in earlier proceedings, she found that the principle of cause of action estoppel was established.

Whelan J held that the most proportionate response was to make the Isaac Wunder orders on the terms made by the High Court to disallow the appellant from being permitted to pursue further the pending proceedings before the WRC and the Labour Court and in addition that she be restrained from instituting any fresh proceedings seeking to reagitate those claims which had been litigated to a final conclusion without prior leave of the High Court. Whelan J found that both respondents demonstrated to the High Court a high level of prejudice being visited on each, including in terms of the deployment of staff to address the repeated claims and in terms of costs; the diversion of resources to finance the legal cost of doomed claims was contrary to the public interest. Whelan J held that the appeals ought to be dismissed.

Appeals dismissed.

UNAPPROVED

JUDGMENT of Ms. Justice Máire Whelan delivered on the 14th day of January 2025

Introduction

1 . This judgment concerns two appeals brought by Ms. Morgan (the appellant) against the judgment of the High Court Ferriter J., ( [2022] IEHC 361) and consequent orders made in the first entitled appeal on 28 June 2022 (perfected on 19 July 2022) and in the second entitled appeal made on 28 June 2022 (perfected on 5 August 2022) granting Isaac Wunder orders pursuant to the inherent jurisdiction of the High Court as sought by both respondents, Kildare and Wicklow Education and Training Board (“the Board”) and the Minister for Education (“the Minister”) against the appellant together with orders striking out various pending applications before the Workplace Relations Commission (“the WRC”) and pending appeals to the Labour Court.

2 . The Isaac Wunder orders were granted by the High Court following several days of hearing of the appellant's sundry applications including appeals from decisions of the Labour Court dated 9 February 2021, an application for leave to apply for judicial review (which by order of the High Court (Meenan J.) was brought on notice to the Minister and the Board) and an application for leave to apply by way of judicial review for an order of certiorari “ quashing the determination of the Minister made under section 70 of [S.I. 292/2015] Education and Training Board Teachers Superannuation Scheme…”. She then appealed each decision unsuccessfully to this court.

3 . The Minister and the Board issued motions seeking orders pursuant to the inherent jurisdiction of the High Court restraining the appellant from instituting any further proceedings in any court or forum against either in relation to any matter involving, relating to or touching upon the appellant's terms of employment with the Board including matters relating to her suspension and the termination of her contract of employment and/or her pension and gratuity entitlements, without prior leave of the President of the High Court. Like orders were sought restraining the appellant from making new complaints to the WRC or from pursuing extant appeals before the Labour Court against WRC decisions in regard to the same issues. In addition, the Board and the Minister sought orders pursuant to the inherent jurisdiction to strike out identified pending complaints/appeals brought by the appellant to the WRC or the Labour Court as being frivolous, vexatious and/or bound to fail and/or amounting to an abuse of process.

Overview of Key Litigation, Complaints, Appeals and Proceedings

4 . The history of dealings between the parties culminating in the making of the Isaac Wunder orders under appeal is complex and involved. Briefly, the appellant commenced employment as a teacher in a school operated by the Board's predecessor (Wicklow VEC) in September 2000. In 2003 she was made permanent at the school.

5 . All of the appellant's complaints are rooted in events of 20 August 2010 when she made an allegation of sexual harassment to her employer, the VEC (now the Board), against a student. The VEC sought additional information which was not forthcoming which led to her being placed on paid protective leave by the Board's predecessor on or about 30 September 2010. The VEC initially sought to conduct a risk assessment. An independent investigation was conducted between 15 November 2010 and 29 November 2010 by a junior counsel retained by the VEC. The appellant withdrew her allegation of sexual harassment on 15 November 2010 during the investigation. The report by the independent investigator issued on 10 December 2010 found that the allegations made by the appellant were malicious and vexatious. Subsequently, the appellant launched a myriad (over 50) of different complaints, applications and appeals in sundry fora culminating in the within appeals (two of six brought by her against various judgments and orders of Ferriter J.)

6 . Illustrative of this is that she filed a complaint on 31 December 2010 with the Rights Commissioner pursuant to the Protection for Persons Reporting Child Abuse Act, 1998. 1 On 22 September 2011, the Rights Commissioner 2 determined a separate complaint which the appellant made on 22 March 2011 alleging breach of s.27 Safety Health and Welfare at Work Act, 2005 holding that actions taken by the relevant VEC did not constitute penalisation. The appellant appealed that decision to the Labour Court in early January 2012. Same was adjourned pending the outcome of her separate Equality Tribunal claim which was subsequently recorded as having been “ settled at hearing”, but which was nevertheless thereafter re-entered. The appeal was heard on 2 March 2020 and dismissed by the Labour Court by decision of 1 April 2020 affirming the Rights Commissioner's determination.

7 . The appellant appealed the decision of the Labour Court on a point of law to the High Court (record no. 2020/123/MCA). Same was ultimately heard by Ferriter J. on 22 March 2022. He delivered an ex tempore judgment dismissing same holding that the appellant had not demonstrated any error of law in respect of the Labour Court's determination.

8 . Meanwhile, having received the report of the independent investigation in December 2010, the VEC wrote to the appellant informing her of its intention to commence a disciplinary action in light of the report's finding that the appellant's allegations were “ malicious and vexatious”.

9 . To return to the actual disciplinary process instigated by the VEC in September 2011, the relevant subcommittee of the VEC was established in accordance with clause 4.2 of circular CL59/2009 (which governs disciplinary proceedings against VEC employees) proceeded to investigate a number of complaints made against the appellant. Several oral hearings were held. At all material times she was...