Nora Kelly v Board of Management of St. Joseph's National School

• Jurisdiction: Ireland
• Judge: Ms. Justice Iseult O'Malley
• Judgment Date: 06 August 2013
• Neutral Citation: [2013] IEHC 392
• Court: High Court
• Docket Number: Record No. 279 JR/2013
• Date: 06 August 2013

Kelly v Board of Management of St Josephs National School Valleymount Co Wickow

JUDICIAL REVIEW

BETWEEN/

NORA KELLY

Applicant

-and-

THE BOARD OF MANAGEMENT OF ST. JOSEPH'S NATIONAL SCHOOL, VALLEYMOUNT, COUNTY WICKLOW

Respondent

[2013] IEHC 392

Record No. 279 JR/2013

THE HIGH COURT

Judicial review - Employment - Schools and education - Principal - Serious misconduct - Legitimate instruction - Disciplinary proceedings - Regulations and procedures - Fairness - Proportionality - Rationality - Natural justice - Fair procedures - Amenability of proceedings to judicial review - Contract - Private law - Demotion - Education Act 1998 - Department of Education and Skills” Circular 60/2009

The plaintiff was employed as the principal of St. Joseph's National School in Valleymount, Co. Wicklow. The respondent was the board of management for the school. By a decision of the 22^nd November 2012, the respondent found that the applicant was guilty of serious misconduct and decided to demote her to the position of an ordinary teacher. The serious misconduct charge related to her failure to carry out an instruction issued by the Board to prepare a fixed term contract for a new teacher at the school. The respondent argued that the instruction was legitimate whilst the applicant stated that she believed she required written authorisation from the Department of Education and Skills otherwise the new teacher would not be paid. The applicant appealed the decision to a Disciplinary Appeal Panel who recommended that the disciplinary proceedings should recommence at the informal stage of the disciplinary procedure, should warn the applicant as to her conduct, and should ask her for an apology for her behaviour. However, although accepted by the applicant, the respondent rejected the recommendations and confirmed their original decision on the 19th March 2013.

Leave to apply for judicial review of the decisions of the respondent were sought by the applicant. This was subsequently granted on the 18th April 2013. The applicant sought orders of certiorari to quash these decisions. The applicant argued that the decision of the 19th March 2013 was in breach of the Department of Education and Skills” Circular 60/2009 entitled "Revised Procedures for Dismissal and Suspension of Principals section 24(3) of the Education Act 1998" (‘the ‘Circular’); that the disciplinary procedure implemented by the respondent was in breach of natural justice and fair procedures; that the respondent had applied its discretion under the Circular provisions not to endorse the Disciplinary Appeal Panel”s recommendation unfairly; and that the penalty imposed was disproportionate. The respondent argued that the issues in the case arose from a private contractual relationship therefore it was not amenable to judicial review. Alternatively, it was argued that the sanction imposed was fair given the nature of the applicant”s misconduct, and that the disciplinary procedures were imposed fairly, properly and in compliance with the Circular.

Held by O”Malley Iseult J that the first thing that had to be determined was whether the case was amenable to judicial review. Reference was made to the case of Beirne v. Commissioner of An Garda Síochána [1993] ILRM 1 which stated that cases of a private contractual nature were not amenable to judicial review, but only if the duty being performed by the decision-making authority was a manifestly private duty and where its right to make it derived solely from a contract. Applying this criterion to the present case, it was held that the dispute between the parties could not be described as arising solely from a private contractual relationship because the source of the application of the disciplinary procedures was the Education Act 1998 and the Circular. The case was therefore amenable to judicial review.

In regards to the disciplinary proceedings itself, it was held that because the applicant accepted the recommendations of the Disciplinary Appeal Panel, she had also accepted that when she decided not to carry out an instruction by the respondent, she knew that she could face disciplinary action. The court therefore only had to consider the fairness of the procedure implemented by the respondent, and the proportionality of their decisions. It was clear that the relationship between the applicant and the respondent had deteriorated in recent times and that the applicant”s conduct was at times unsatisfactory in dealings with the respondent. The introductory sections of the Circular outlined how disciplinary proceedings should be on a staged basis to prevent misbehaviour or bad-feeling between an employer Board of Management and their respondent employee. In this case, it was clear that the respondent had not implemented the staged disciplinary procedure, instead launching disciplinary proceedings at the most serious stage. The charges put to the applicant were also considered too general for the applicant to respond to properly. Further, the respondent had accused the applicant of a pattern of misbehaviour even though the applicant had never been called on previously to answer these allegations of misbehaviour. As a result of these factors, the disciplinary procedure was considered unfair and irrational.

It was further held that the sanction imposed by the respondent was disproportionate and at least partly influenced by the disrespect the applicant had previously shown to the respondent. The respondent had clearly failed to fully consider the factors outlined in the Circular before reaching their decision, such as the financial consequences to the applicant which was not considered at all. For all of the above reasons, orders of certiorari were made quashing the decisions that the respondent reached on the 22^nd November 2012 and the 19^th March 2013.

EDUCATION ACT 1998 S24(3)

EDUCATION ACT 1998 S14

EDUCATION ACT 1998 S15

EDUCATION ACT 1998 S22

EDUCATION ACT 1998 S23

EDUCATION ACT 1998 S24

GEOGHEGAN v INSTITUTE OF CHARTERED ACCOUNTANTS 1995 3 IR 86

BEIRNE v COMMISSIONER OF AN GARDA SIOCHANA 1992 ILRM 699, 1993 ILRM 1

O'DONNELL v TIPPERARY (SOUTH RIDING) CO COUNCIL 2005 2 ILRM 168 2005 47 9846 2005 IESC 18

TOBIN v MAYFIELD COMMUNITY SCHOOL UNREP KEARNS 1999/23/7696 21.3.2000 2000 IEHC 31

BECKER v BOARD OF MANAGEMENT ST DOMINICKS UNREP PEART 14.4.2005 2005/4/669 2005 IEHC 169

BROWN v RATHFARNHAM NS 2008 1 IR 70

EDUCATION ACT 1998 S23

HAND v LUDLOW UNREP O'KEEFFE 18.12.2009 2009/24/6015 2009 IEHC 583

MCSORLEY v MIN FOR EDUCATION 2012 23 ELR 233 2012/33/9560 2012 IEHC 201

RSC O.84 r21

RSC O.84 r21(3B)

Ms. Justice Iseult O'Malley

1 The applicant is currently the principal of St. Joseph's National School in Valleymount, Co. Wicklow. The respondent Board of Management ("the Board") decided on the 22^nd November, 2012 to demote her from that position to the grade of "mainstream", or ordinary, teacher. This decision was made on the basis that the applicant was guilty of "serious misconduct". An appeal to a Disciplinary Appeal Panel was, from the point of view of the applicant, largely successful in that it recommended that the disciplinary process should recommence at the informal stage of the disciplinary procedure; should warn the applicant as to her conduct and should ask her for an apology for her behaviour. The Board did not accept the recommendation and confirmed its original decision on the 12^thMarch, 2013.

2 Leave to seek judicial review was granted on the 18^th April, 2013, with a stay on implementation of the demotion. An early hearing date was fixed with the intention that the matter should be resolved before the start of the next school year. For that reason this judgment is being delivered in the first week of the long vacation. It will not delve into the factual history of the case, or the minutiae of rules pertaining to the different types of teaching contracts, to the extent argued over the course of the eight days the matter was at hearing. This is, in part, due to the need to give a decision in early course but mainly because the concern of the court in a matter of this nature is the propriety of the process, rather than the correctness of a particular view of an issue considered in that process.

3 The applicant seeks orders of certiorari in relation to the two decisions of the Board. She also seeks declarations that the decision of the 19^th March, 2013 was reached in breach of Department of Education and Skills Circular 60/2009 entitled "Revised Procedures for Dismissal and Suspension of Principals - section 24(3] of the Education Act 1998"; that the disciplinary procedure conducted by the Board was carried out in breach of the applicant's rights to natural justice, fair procedures and other Constitutionally guaranteed rights; that the discretion of the Board under the provisions of the Circular not to accept the recommendation of the Disciplinary Appeal Panel was not exercised in a fair and impartial manner and that the sanction sought to be imposed on the applicant is disproportionate in all the circumstances. There is also a claim for injunctive relief and for damages.

4 The Statement of Opposition asserts that the issues between the parties arise from a contract of employment not amenable to the public law remedy of judicial review. Without prejudice to that plea, there is an allegation that the applicant's grounding affidavit was "wanting in candour" on a key aspect to the extent that relief should be denied. The question of delay in relation to the decision of November, 2012 is raised. Without prejudice to any of these contentions it is pleaded in robust terms that the applicant was indeed guilty of serious misconduct warranting the sanction imposed upon her; that the disciplinary procedures were implemented fairly and properly and that the sanction imposed was...