Patrick McGlinchey v Sile Ryan
| Jurisdiction | Ireland |
| Judge | Miss Justice Laffoy |
| Judgment Date | 21 July 2010 |
| Neutral Citation | [2010] IEHC 536 |
| Court | High Court |
| Date | 21 July 2010 |
[2010] IEHC 536
THE HIGH COURT
BETWEEN
AND
Q (M) v GLEESON 1998 4 IR 85
EASTERN HEALTH BOARD v K (M) 1999 2 IR 99
KIELY v MIN FOR SOCIAL WELFARE 1977 IR 267
CHILDREN ACT 1997 PART III
CHILDREN ACT 1997 S22
CHILDREN ACT 1997 S23
CHILDREN ACT 1997 S24
CHILDREN ACT 1997 S25
SOUTHERN HEALTH BOARD v H (C) 1996 1 IR 219
CHILDREN ACT 1908 S58
VOGEL v CHEEVERSTOWN HOUSE LTD 1998 2 IR 46
GOODMAN INTERNATIONAL v HAMILTON (NO 2) 1993 3 IR 307
O'BRIEN v MORIARTY (NO 3) 2006 2 IR 474
MCGRATH v COMMISSIONER OF AN GARDA SIOCHANA 1991 1 IR 69
MOONEY v AN POST 1998 4 IR 288
GARVEY v MIN FOR JUSTICE 2006 1 IR 548
LARCENY ACT 1916
MCGRATH v COMMISSIONER OF AN GARDA SIOCHANA 1989 IR 241
NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997
A (A) v MEDICAL COUNCIL 2002 3 IR 1
MEDICAL PRACTITIONERS ACT 1978 S45(3)
SUPERWOOD HOLDING PLC v SUN ALLIANCE PLC 1999 4 IR 531
CONDON v MIN FOR LABOUR 1981 IR 62
Contract law - Employment law - Fair procedures before Inquiry - Disciplinary proceedings - Declaratory relief - Hearsay evidence - Criminal trial regarding same allegations - Whether the Adjudicator was correct in deciding to proceed with the Inquiry in the manner proposed by the defendant notwithstanding the plaintiff's objections to hearsay evidence being adduced and his objections to the inquiry into allegations in respect of which he had been acquitted by a jury - Whether the plaintiff was justified in withdrawing from the Inquiry.
Facts The plaintiff in 1997 was suspended from his role as a special needs primary teacher as a result of an allegation of sexual abuse against him involving a male pupil. The Health Board instigated an investigation into that and other complaints. The plaintiff was also charged and tried with offences of abuse against two male pupils, D.M. And K.W. The plaintiff was acquitted by a jury on all counts and thereafter the Health Board resumed its investigation. The Health Board found the majority of the complaints to be credible and the plaintiff remained suspended. Subsequent judicial review proceedings between the plaintiff and the Health Board were settled on the basis that an independent Inquiry would be set up to establish whether the plaintiff posed a threat to students or whether he could return to work. An Adjudicator was appointed pursuant to the terms of settlement and it was expressly stated therein that the Adjudicator would abide by and apply generally recognised principles of fair procedure. The proceedings herein arose out of complaints the plaintiff had regarding the Inquiry and the plaintiff's subsequent withdrawal from the Inquiry. The plaintiff had objected to the Adjudicator receiving evidence of video tapes of the interviews of the complainants and evidence of Health Board personnel involved in those interviews when the complainants would not be available to testify. The plaintiff had also objected to the Adjudicator proceeding with an Inquiry in respect of the complaints of D.M. in respect of whom the plaintiff had already been tried and acquitted on the merits. The defendant determined that the plaintiff's withdrawal from the Inquiry and his failure to participate in or co-operate with the Inquiry potentially gave rise to gross misconduct and the plaintiff was suspended on full pay pending an investigation into those matters. The plaintiff herein sought declarations to the effect that the defendant failed to comply with the order of the High Court, that the Inquiry was conducted in an unfair and unlawful manner and was not conducted in accordance with fair procedures and within accepted rules of evidence and that the purported hearing ruled on the admissibility of hearsay evidence in an unlawful manner. The plaintiff also sought a declaration that the defendant acted unlawfully and in breach of his contract of employment in failing to reinstate him to his position and a declaration that he is entitled to return to work forthwith.
Held by Laffoy J. in holding that the Adjudicator erred in one respect and in hearing both sides as to how the proceedings should progress to conclusion: 1.) That it was inferred from the Terms of Settlement that the parties intended the Inquiry to be treated as analogous to a lis inter-partes, as opposed to an inquisitorial process. It was also expressly provided that recognised principles of fair procedure would apply. Consequently, the Inquiry was sui generis In accepting the video tape evidence and accompanying expert evidence and in treating it in the manner which he indicated in his ruling that he intended to treat it, the Adjudicator would have afforded the plaintiff fair procedures and would have approached the adjudication of the issues fairly and in accordance with accepted evidential rules.
2). That assuming the allegations and their factual bases arising in respect of D.M. at the Inquiry were the same as had arisen at the trial, the Adjudicator was incorrect in ruling that the complaints in relation to D.M. should be inquired into. If D.M. appeared at the Inquiry, the Adjudicator would have determined the very issue which had been determined by the jury in acquitting the plaintiff and consequently the plaintiff would have been subjected to a further civil inquiry, which would be oppressive and unfair.
3). That the withdrawal of the plaintiff from the Inquiry and the initiation of these proceedings was not as the defendant contended premature. The consequences of the plaintiff's withdrawal from the Inquiry fell to be determined in accordance with the law of contract and its application to the agreement embodied in the Terms of Settlement.
2 1.1 Although these proceedings arise out of the settlement of judicial review proceedings in May 2009, in order to put that settlement and what subsequently transpired into context, it is necessary to set out the factual background in broad outline.
3 1.2 In September 1994 the plaintiff commenced employment as a special needs primary teacher at St. Vincent's School, Lisnagry, County Limerick (the school). The school, which is owned by the Daughters of Charity and operated by a Board of Management, provides educational facilities for children and young persons of both genders with intellectual and learning disabilities. The defendant is the current chairperson of the Board of Management of the school and she is sued in these proceedings in that capacity.
4 1.3 On 5 th March, 1997 the plaintiff was suspended from his duties as a teacher as a result of an allegation of sexual abuse against him involving a male pupil, J.L., made by the mother of the pupil to the school. The school notified An Garda Síochána about the allegation. Subsequently, the Mid Western Health Board, the predecessor in the area in which the school is located of the Health Service Executive (the relevant body being referred to as "the Health Board" hereafter) instigated an investigation into that complaint and other complaints of sexual abuse involving pupils of the school which were made against the plaintiff. An Garda Síochána also commenced a criminal investigation of those complaints. The plaintiff was arrested on the 19 th June, 1997. Subsequently he was charged with criminal offences against two male pupils, D.M. and K.W. The Health Board investigation did not result in any disciplinary process while the criminal proceedings were pending.
5 1.4 The trial of the plaintiff took place in the Dublin Circuit Criminal Court in November 2002. The trial lasted for seventeen days. At the end of the trial the verdict of the jury acquitted the plaintiff on all counts.
6 1.5 The plaintiff had remained suspended on full pay from his duties as a teacher throughout the period from 5 th March, 1997 to his date of his acquittal on the criminal charges and beyond that date. The Health Board, apparently, resumed its investigation after the plaintiff was acquitted and concluded its investigation in November 2003 when it made findings against the plaintiff to the effect that the allegations that he had sexually abused nine pupils in the school (including J.L., D.M. and K.W.) were credible, while in the case of a tenth pupil the allegations were inconclusive. It also found that he remained a risk to vulnerable children. The position of the school is that thereafter it wished to hold an internal disciplinary inquiry and that it endeavoured, but was unable, to do so. It was not in a position to reinstate the plaintiff while the findings of the Health Board in relation to the complaints remained extant and unchallenged by him.
7 1.6 The plaintiff remained suspended on full pay until the settlement of the judicial review proceedings to which I have referred at the outset.
2 2.1 The judicial review proceedings (Record No. 2008 No. 692 J.R.) were between the plaintiff, as applicant, and the defendant and the Health Board as respondents. The proceedings came on for hearing before the High Court (Hedigan J.) and were settled by all of the parties on 15 th May, 2009.
3 2.2 The Terms of Settlement, in so far as they are relevant for present purposes, provided as follows:
"1. The [defendant] agrees that the suspension of the [plaintiff] will be lifted with immediate effect, provided always that the [plaintiff] agrees not to return to work unless and until the Adjudicator by written decision determines that it is appropriate that he should do so.
The [defendant] will as soon as practicable establish an inquiry in accordance with the terms of reference set out in Annex 1 of this settlement. The [plaintiff] agrees to attend to such an inquiry and to co-operate with same. The [Health Board] agrees to...
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