Court of Appeal: Teacher disciplined for calling pupil offensive name has case remitted to High Court

About this case:

• Citation:
  [2018] IECA 292
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Gerard Hogan

Background

Pierce Dillon, a teacher employed by Catholic University School from 1992 to 2017, was found by the Board of Management of Catholic University School to have behaved inappropriately by calling a student an “unpleasant and offensive name” in May 2014. The student’s parents made a complaint in writing, and Mr Dillon denied using the impugned name. The Board of Management of CUS made the finding of inappropriate behaviour in February 2015, and consequently a final written warning was imposed on Mr Dillon in April 2015.

In May 2015, Mr Dillon notified CUS of his desire to appeal the decision to impose a final warning; and in September 2015, CUS replied stating that the decision of the Board was final.

High Court

In the High Court, Mr Dillon brought judicial review proceedings seeking orders quashing the finding of the Board of Management and the decision to impose a final warning. In November 2016, Justice Twomey found that since the written warning had expired in April 2016 (i.e. 12 months from the date at which it was imposed), the proceedings were effectively moot.

Justice Twomey found that the facts of the case were unlike O’Donovan v De La Salle College [2009] IEHC 163, and likened Mr Dillon’s application to Barry v Fitzpatrick [1996] 1 ILRM 512. Justice Twomey said that since the warning was “prima facie spent” prior to the Court first hearing the matter, and did not remain on Mr Dillon’s personnel file; judicial review should not be available on the grounds of mootness. Justice Twomey also found that the issues raised were de minimis, and that the application was a waste of scarce public resources; and dismissed Mr Dillon’s application in limine.

Court of Appeal

In the Court of Appeal, Mr Justice Gerard Hogan disagreed with Justice Twomey’s finding on mootness. Justice Hogan said that the comparison with Barry was “inapt”, and that in fact Mr Dillon’s case was indistinguishable from O’Donovan in many ways. Justice Hogan said that the warning referring to inappropriate contact with a pupil was likely to have ‘the gravest implications for the good name, reputation and employment prospects” of Mr Dillon.

Furthermore, Justice Hogan said that Article 40.3.2 and Article 40.3.1 “are constitutionally protected rights and the courts are obliged in particular to ensure that the constitutional right to good name in both a professional and employment context is adequately vindicated”.

Considering Corbally v Medical Council [2015] IESC 9, [2015] 1 ILRM 395, ACC Loan Management Ltd v Barry [2015] IECA 224, [2016] 1 IRM 436, and De Roiste v Judge Advocate General [2005] 3 IR 494, Justice Hogan said that it could not be said that the expiration of the warning meant that it no longer had “any meaning, implications or effects” for Mr Dillon.

Considering whether the matter raised was “de minimis”, as per Justice Twomey’s finding, Justice Hogan did not agree that Mr Dillon’s case could be likened to Murtagh v The Board of Management of St Emer’s National School [1991] 1 IR 482. Stating that there was “a world of difference” between a primary school pupil being suspended for three days for making insulting remarks about a teacher, and a school making a finding of “inappropriate behaviour” towards a pupil; Justice Hogan said that the two could not be compared considering the professional and reputational implications in Mr Dillon’s case, which could not realistically be characterised as trivial.

Finally, Justice Hogan said that the principle of not wasting scarce public resources was not applicable in the present case – and that such a suggestion rested on an incorrect application of the true rationale of the judgment in Tracey v Burton [2016] IESC 16.

Allowing Mr Dillon’s appeal, Justice Hogan said that he would remit the matter to the High Court for a fresh determination.

Concurring with Justice Hogan, Mr Justice George Birmingham, President of the Court of Appeal, said that he agreed with “extreme reluctance” and because he felt compelled to do so considering the trial judge’s findings on mootness and categorising a final warning as de minimis.

President Birmingham said that Mr Dillon’s case reinforced his “general dislike” for resorting to the courts in cases such as the present. Criticising Mr Dillon’s decision to decline an invitation to attend a meeting convened in accordance with the complaints procedure, and his decision to appeal the Board’s decision despite the fact that the complaints procedure says such decisions “shall be final”; President Birmingham said there was an element of “playing fast and loose with the procedures and a failure to engage in the way one would expect of a long-term professional employee”.

in the circumstances, President Birmingham indicated that he would “have to consider carefully whether this is a case for departing from the usual rule in relation to costs”.

• by Seosamh Gráinséir for Irish Legal News