Morgan v The Labour Court ; Morgan v Minister for Education and Skills

• Jurisdiction: Ireland
• Judge: Mr. Justice Cian Ferriter
• Judgment Date: 01 June 2022
• Neutral Citation: [2022] IEHC 361
• Court: High Court
• Docket Number: [2020/123 MCA.]

Between

Deirdre Morgan

Appellant

and

The Labour Court

Respondent

and

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

Notice Parties

Between

Deirdre Morgan

Applicant

and

Minister for Education and Skills

Respondent

and

Kildare and Wicklow Education and Training Board

Notice Party

[2022] IEHC 361

[2020/123 MCA.]

[2020/787 JR.]

THE HIGH COURT

JUDICIAL REVIEW

Isaac Wunder order – Strike out – Abuse of process – Respondent and notice party seeking an Isaac Wunder order – Whether unresolved complaints should be struck out

Facts: The respondent, the Minister for Education and Skills, and the notice party, Kildare and Wicklow Education and Training Board (KWETB), applied to the High Court seeking orders pursuant to the Court’s inherent jurisdiction restraining the appellant, Ms Morgan, from instituting any further proceedings in whatever Court or forum, including the Workplace Relations Commission (WRC), or from making any complaints to the WRC against the Minister or Board, concerning any matter relating to the appellant’s term of employment with the Board, including any matter related to the suspension or termination of her contract of employment, and her pension and gratuity entitlements, without the prior leave of the High Court – the Minister and the Board having been put on notice of any such application for leave. The orders sought extended not just to the institution of court proceedings but to the making of complaints to the WRC. The Minister and the Board also sought orders pursuant to the Court’s inherent jurisdiction striking out a variety of complaints against them to the WRC that had not yet been finally determined in that forum, on the grounds that the complaints were frivolous and/or vexatious and/or an abuse of process, being duplicative of previous complaints arising from the appellant’s removal from employment which had been the subject of final and binding determinations against the appellant. Finally, the Minister and the Board sought orders pursuant to the Court’s inherent jurisdiction striking out proceedings instituted by the appellant against them in the Circuit Court and the Board sought an order striking out proceedings instituted by the appellant against it in the High Court on the basis that both those proceedings were an abuse of process.

Held by Ferriter J that the question of any unlawfulness in relation to the appellant’s pension entitlements, including any alleged entitlement to an injury gratuity, had been finally and conclusively determined against the appellant. Ferriter J held that there was no continued justification for the appellant seeking to further prosecute any still-pending complaints or proceedings which related to her removal from office (including any pension matters related to that removal). Ferriter J was satisfied that any remaining unresolved complaints should be struck out in accordance with the Court’s inherent jurisdiction to prevent abuse of process.

Ferriter J held that the appellant should not be allowed to institute any further proceedings, or make any further complaints to the WRC, or any other forum, against the Minister or the Board relating to her employment as an art teacher without the leave of the Court.

Applications granted.

JUDGMENT of Mr. Justice Cian Ferriter delivered on the 1 ^st day of June, 2022

Introduction

1 In the applications addressed in this judgment, the Minister for Education and Skills (“the Minister”) and Kildare and Wicklow Education and Training Board (“KWETB” or “the Board”) seek orders pursuant to the Court's inherent jurisdiction restraining Deirdre Morgan (for ease, “the appellant”) from instituting any further proceedings in whatever Court or forum, including the Workplace Relations Commission (“WRC”), or from making any complaints to the WRC against the Minister or Board, concerning any matter relating to the appellant's term of employment with the Board, including any matter related to the suspension or termination of her contract of employment, and her pension and gratuity entitlements, without the prior leave of the High Court (the Minister and the Board having been put on notice of any such application for leave.) This form of order is commonly known as an Isaac Wunder order named after the subject of such an order by the Supreme Court in 1967. Somewhat unusually, the orders sought extend not just to the institution of court proceedings but to the making of complaints to the WRC.

2 The Minister and the Board also seek orders pursuant to the Court's inherent jurisdiction striking out a variety of complaints against them to the WRC that have not yet been finally determined in that forum, on the grounds that the complaints are frivolous and/or vexatious and/or an abuse of process, being duplicative of previous complaints arising from the appellant's removal from employment which have been the subject of final and binding determinations against the appellant.

3 Finally, the Minister and the Board also seek orders pursuant to the Court's inherent jurisdiction striking out proceedings instituted by the appellant against them in the Circuit Court and the Board seeks an order striking out proceedings instituted by the appellant against it in the High Court on the basis that both these proceedings are an abuse of process.

4 All of the WRC and court proceedings relate in one form or another to the removal of the appellant from her position as an art teacher in a community college run by the Board. The appellant was removed from her position by order of the Minister of 15 June 2015, following a lengthy disciplinary inquiry process instituted by the Board (which included an appeal) and an inquiry process conducted by an inspector appointed by the Minister which culminated with the Minister taking the view that the appellant was no longer fit for office.

5 Central to the processes which culminated in the appellant's removal from her teaching position was an allegation made by her to the Board (then Wicklow VEC) in August 2010 that she was being sexually harassed by a male student in one of her art classes. She subsequently withdrew this allegation when it was being investigated by an independent barrister appointed by the VEC.

6 When that barrister concluded that the allegation was without foundation, the VEC commenced disciplinary proceedings. The commencement of those proceedings led to the appellant's first complaint to the WRC (then the Labour Relations Commission), made on 22 March 2011, to the effect that the VEC had penalised her for making the sexual harassment complaint. That complaint to the WRC was dismissed by an adjudication officer. For reasons which will be explained in more detail later, the appellant's appeal to the Labour Court against the adjudication officer's decision was not concluded until April 2020. In a ruling given on 22 March 2022 (in High Court proceedings record no. 2020/123MCA) I dismissed the appellant's appeal to this Court on a point of law from the Labour Court determination. Accordingly, any question of penalisation arising from her complaint and the initiation of the disciplinary process against her has been finally and conclusively determined.

7 The appellant did not issue any proceedings (whether by way of complaint to the WRC, plenary proceedings or judicial review) challenging her removal within the permitted time limits for same. She did, belatedly, lodge complaints with the WRC on 9 June 2016, almost 12 months after her removal. On that date, she lodged separate complaints against the Minister and the Board based on identical grounds (being alleging discrimination on grounds of disability under the Employment Equality Act 1998 as amended (“EEA”)). These claims were rejected as being out of time by both adjudication officers and the Labour Court. Accordingly, her claims to have been unlawfully removed from her position stood rejected in final and binding determinations as of 17 January 2018. She did not appeal those Labour Court determinations to the High Court.

8 As we shall see, notwithstanding those final and binding determinations, the appellant has persisted with a barrage of identical or materially equivalent claims purporting to challenge her removal. One of her tactics, in order to get around the obvious barriers to fresh claims presented by those determinations, was to claim that, contrary to what she accepted in her initial complaints, she was not in fact dismissed on 15 June 2015 but rather that her dismissal took place at much later points (e.g., in one set of complaints, she alleges to have been dismissed at a hearing before the WRC on 12 February 2019). As we shall see, this contention had been properly rejected in a number of WRC decisions.

9 The other line of complaint repeatedly pursued by the appellant is that she was unlawfully denied an “injury gratuity” under her pension scheme. As a VEC teacher, the appellant was a member of the ETB Teachers' Superannuation Scheme (“the scheme”). The appellant in fact applied for and was granted an ill-health retirement pension under the scheme. Notwithstanding that she was never injured in the course of her employment as a teacher, she sought to maintain that she was entitled to an injury gratuity under the scheme. Her first claim of discrimination/victimisation in relation to pension matters (where she alleged discrimination contrary to s.81E Pensions Act 1990 as amended (“s.81E PA”)) was launched on 16 November 2017. The appellant walked out of a hearing into this complaint before an adjudication officer of the WRC on 7 November 2018 and the adjudication officer thereafter delivered a decision (on 11 December 2018) ruling against the complaint.

10 On the day she walked out of the WRC, 7 November...