Tobin v Cashell

• Jurisdiction: Ireland
• Judge: Justice Kearns
• Judgment Date: 21 March 2000
• Neutral Citation: [2000] IEHC 31
• Docket Number: 1993/ 124 JR
• Court: High Court
• Date: 21 March 2000

[2000] IEHC 31

THE HIGH COURT

1993/ 124 JR

TOBIN v. CASHELL

BETWEEN

DENIS TOBIN

APPLICANT

AND

JOHN CASHELL, CHAIRMAN OF THE BOARD OF MANAGEMENT OFMAYFIELD COMMUNITY SCHOOL

FIRST NAMED RESPONDENT

AND

THE SECRETARY OF MAYFIELD COMMUNITYSCHOOL

SECOND NAMED RESPONDENT

AND

THE MINISTER FOR EDUCATION

THIRD NAMED RESPONDENT

Citations:

R V DAIRY QUOTA PRODUCE TRIBUNAL FOR ENGLAND & WALES EX-PARTE CASWELL 1990 2 AC 738

VOCATIONAL EDUCATION (AMDT) ACT 1944

O HUALLACHAIN V BURKE 1988 ILRM 693

CAMPAIGN TO SEPARATE CHURCH & STATE V MIN FOR EDUCATION 1998 3 IR 321, 1996 2 ILRM 241

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 632

Synopsis

Employment

Employment; judicial review; termination of employment; certiorari; mandamus; applicant had been employed by the respondent as a teacher; applicant's employment had been terminated by the respondent; applicant seeking inter alia an order of certiorari quashing the decision purporting to dismiss him and an order of mandamus compelling the respondent to reinstate him; whether relief should be refused on grounds of the delay of the applicant; whether the applicant was employed by the first named respondent; whether the respondents in dismissing the applicant had breached the principles of natural and constitutional justice; whether the applicant has established the threshold of unreasonableness and irrationality of the decision to dismiss.

Held: Order of certiorari granted; order of mandamus refused.

Tobin v. Chairman of the Board of Management of Mayfield Community School - High Court: Kearns J. - 21/03/2000

The applicant had been suspended from his position as a teacher and thereafter his employment was terminated. The decision was taken by the board of management of the school after the holding of an enquiry. The board had also received an inspector's report into the matter in which the inspector had pointed out numerous faults of the applicant but had advised against dismissal or permanent suspension. The Department of Education informed the board that in their view a number of irregularities had occurred in the holding of the enquiry and that the applicant should be reinstated. The board did not reconsider its decision and the applicant sought, inter alia, an order of certiorari in respect of his dismissal. The respondents claimed that significant delay on the part of the applicant should act as a bar to obtaining the relief sought. A dispute also arose as to who in fact employed the applicant. Kearns J held that the decision to dismiss the applicant involved the requisite amount of public law to warrant judicial review. The decision taken by the board to dismiss the applicant was irrational and unreasonable and an order of certiorari would be issued in respect of same.

1 Justice Kearnsdelivered the 21st day of March, 2000

2 The Applicant is a married man, born in 1946. who since 1973 has been employed as a permanent full-time teacher in metal work Mayfield Community School in the City of Cork. Prior to that time he had worked as a vocational teacher in Boyle, Co-Roscommon. By letter dated 16th August, 1973, the Chief Executive Officer of the Cork Vocational Education Committee was informed that the Applicant was being appointed to Mayfield Community School for 1973-74. It is important to stress that the Respondent School was new school at that time and an amalgamatedschool.

3 unhappy differences arose during the course of the Applicant's employment at Mayfield to his suspension by the First and Second named Respondent on 2nd March, 1990. Following his suspension, the Third named Respondent established an informal Enquiry on 12th December, 1990, which said enquiry took place at the crawford Art Gallery in Cork on 11th and 12th February, 1991.

4 While the Report and Enquiry was completed in April 1991, the Applicant was not furnished with a copy of the Report until 28th April, 1992.

5 No explanation has been offered for the delay in furnishing the Report to the Applicant who eventually saw fit to commence a hunger strike and picket the school in order to force production of the Report.

6 The Applicant's suspension had begun on 2nd March, 1990. By letter dated 8th February, 1990, the reason furnished by the Second and Third named Respondents for the suspension was:-

"It is quite from your actions and statements that you do not accepet the authority of the Board of Management of the principal, hence, the Board is left with no option but to suspend you from your post of employment in this school as and from 4.00 p.m on Friday, 2nd March, 1990, pending an enquiry by the Department ofEducation."

7 Following legal representation by the Applicant's Solicitor, the Board supplied the following reasons for their action:-

8 (a) Failure to follow procedures authorised by the Board regarding pupil discipline.

9 (b) Failure to follow procedures authorised by the Board regarding setting and correcting of house examinations and the issue ofreport.

10 (c) Undermining the role of the principal through public defamatory statements and demonstrations at the main school entrance to the detriment of the general well-being, discipline and orderly functioning of the school.

11 (d) Non-acceptance of the right and authority of the Board to monitor the standard and content of courses having regard to prescribed syllabuses and the stated concerns of parents and students.

12 (e) Unapproved use of school equipment outside schoolpremises.

13 (f) Unapproved use of plant and equipment with involvement of pupils outside of usual school time.

14 (g) Failure to agree to use those facilities provided in the school's technology centre to meet the requirement of the curriculum for senior students.

15 Following further representation, the Board supplied a more detailed statement of the reasons on 9th July, 1990:-

"We refer to previous correspondence herein. The fundamental allegation of the Board against Mr. Tobin is his failure to accept the authority of the Board of Management and its employees entrusted with the responsibility for the internal organisation and management of the school. Any instance of Mr. Tobin appearing to accept such authority have been short lived and always reneged upon by actions or statement or both. Mr Tobin seems to have deep seated convictions of a crusade nature, the outcome of which has been a constant source of conflict within a school where otherwise a staff ofapproximately 50 people have worked diligently and in full co-operation to develop a worthwhile school over the past sixteenyears."

16 In the course of his enquiry, Mr. Tomas O'Conaill noted that the Applicant had no written contract and that the Applicant had no written contract and that the Board of Management was functioning in accordance with an unsigned deed of trust. The combination of these two factors, in Mr. O'Conaill's view, increased the scope for interpretation of what could be demanded of a teacher and of the limits to the authority of the Board. A further result of the lack definition was that the procedure in a case of malfunction in the school was not laid down. Further, the allegations against Mr. Tobin referred to matters ancillary to his teaching, rather than to his commitment to teaching of his effectiveness as a teacher.

17 In his report, Mr. O'Conaill found that Applicant was seriously at fault in sixteen instances and accordingly found that the imposition of with pay was a reasonable response by the school to the critical caused by the Applicant's behaviour, particularly during the period September 1989 - January 1990. He also concluded that the terms of the letter of suspension were fully sustainable and incorporated a reasonabledecision.

18 He stated as follows at p. 40 of his report:-

"However, the case presented by the Board of Management and subsequent to his suspension is not sufficient to warrant permanent suspension or dismissal. The difficulties with the case are partly technical and procedural and partly related to the suspension and the facts alleged to support the reasons.'"

19 He identified a number of technical and procedural matters which had caused his difficulty, including the suspension of the Applicant prior providing reasons for same. He felt it was unsatisfactory that the Board in voting on a motion suspend did not formulate the reasons on which the suspension was being imposed. Of the reason outlined above, reasons (a), (b), (f), (g) were not sustained.

20 He also felt the Board should have considered other possible sanctions than suspension, including and/or suspension from post which the Applicant held in the school.

21 He ended his report in the following terms:-

"In conclusion what was sustained was that Mr. D. Tobin has a chronic problem in his dealing with the reasonably exercised authority of the Board of management and the Principal which amounts at time to an apparent rejection of that authority and that unless he submits to that authority that the continuance as a teacher in the school will have to be terminated.

The Board of Management acted reasonable in suspending Mr. D. Tobin pending the enquiry. The grounds presented and the procedures adopted make it unsafe to proceed from this suspension to permanentsuspension."

22 Insofar as the Applicant was concerned, problems had now been resolved and he saw no obstacle in the way of a return to work at theschool.

23 However, by letter dated 8th May, 1992 Solicitors for that school wrote to the Applicant stating:-

"As the length, nature and permanence of the suspension imposed upon Mr. Tobin is a matter for the Board of Management, we suggest it would be profoundly unwise for him to present himself for duty, at any stage prior to this matter being resolved."

24 The same letter also indicated that the Board would meet to discuss the report as soon as possible and Mr. Tobin would be informed of the...