Neutral Citation Number: [2018] IECA 292
[2016 No. 573]
Birmingham P. Hogan J. Whelan J.
BETWEEN
PIERCE DILLON
AND
THE BOARD OF MANAGEMENT OF CATHOLIC UNIVERSITY SCHOOL
RESPONDENTS
CONCURRING JUDGMENT of Birmingham P. delivered on the 27th day of August 2018
1. I have had an opportunity of reading in draft the judgment just delivered by Hogan J. I agree with that judgment and with the order he proposes. I agree, however, only with extreme reluctance and because I feel compelled to do so. I feel so compelled because I cannot go along fully with the trial judge in the views he formed in relation to the issue of mootness. In my view, it is a step too far to suggest that because the period during which the warning was to remain live on the file had expired, assuming that was the case, that the issue became moot. I accept the argument that the fact that such a warning was placed on the file could, in certain circumstances, have long-term effects. I would also have a concern that if it became established that once a warning period had expired that the issue was moot and not amenable to review, that might serve to encourage early resorts to litigation which is the last thing that I would want to see.
2. I also have a concern about categorising a final warning as de minimis. In my view, issuing a final warning should be a matter of great moment; it should not happen lightly and cannot properly be regarded as a "trifle". It is for this reason that I feel that the appeal must be allowed. I do so despite my strongly-held view that disciplinary issues, certainly falling short of dismissal, arising in an industrial relations context should rarely find their way to the courts.
3. My general dislike for resorting to the courts in cases such as this is reinforced in the circumstances of the present case. In this case, the appellant and his representatives were invited to attend a meeting convened in accordance with Stage 3 of the complaints procedure. They declined to do so despite a deferral of the meeting in order to facilitate attendance. Thereafter, matters were dealt with under Stage 3 of the disciplinary procedure. A meeting was convened between the appellant and the respondent's Principal and a nominee of the respondent, which meeting took place on 27th March 2015. The decision was to issue a final written warning.
4. At that stage, the appellant wrote to the Principal advising of an intention to appeal the decision of the respondent as stated in the agreed complaints procedure. He indicated that it was his intention to do this despite the fact that the complaints procedure states that the decision of the Board of Management "shall be final" and the appellant was so advised. The appellant did not at any point articulate an intention to appeal the disciplinary sanction of a final written warning.
5. In my view, there was an element here 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. While I will wait to hear what the parties have to say in relation to costs and other ancillary matters, I think it only right that I should indicate at this stage that I will have to consider carefully whether this is a case for departing from the usual rule in relation to costs.
JUDGMENT of Mr. Justice Gerard Hogan delivered on the 27th day of August 2018
1. The appellant is a secondary school teacher who was employed by the respondent school ("CUS") from 1992 to 2017. During that period he was a teacher of history and civic, social and political education. In these judicial review proceedings the appellant has sought to challenge the legality of a disciplinary process conducted by the school as a result of which it had been found that he had engaged which was described as "inappropriate behaviour" towards a particular student. In order to protect the anonymity of a minor, I shall term the student as "AB". That finding of inappropriate behaviour had been made by the Board of Management of CUS at a meeting held on the 24th February 2015.
2. As a result of that finding a disciplinary procedure was conducted by the principal of the school and a nominee of the Board of Management. A meeting was held on the 27th March 2015 between the principal, the nominee of the Board and the applicant (who was accompanied by a trade union representative) to discuss this finding. This process culminated in the decision of CUS to impose a final written warning upon the appellant by decision dated the 21st April 2015. The "inappropriate behaviour" in question was said to have been the calling of the student by an unpleasant and offensive name. The appellant now seeks orders quashing the original finding of the Board of Management as well as the decision to impose a final warning.
3. In the High Court Twomey J. delivered a reserved judgment on the 23rd November 2016 in which he rejected the applicant's application for judicial review, saying that this was not "a matter which should be dealt with by means of judicial review in the High Court": see Dillon v. Board of Management of Catholic University School [2016] IEHC 674. In effect, Twomey J. found that the proceedings were moot and, furthermore, that the Court should not interfere by reason of the principle of de minimis non curat lex ("the law does not concern itself with trifles"). Before considering these matters it is appropriate to say something about the nature of the finding and the effect of the final warning.
The background to the proceedings
4. Following two incidents which took place apparently in the school between AB and the applicant on the 8th May 2014 and the 9th May 2014, AB's parents made a complaint in writing on the 12th May 2014 to the Board of Management. This complaint was to the effect that their son had been called this offensive name and it set out the details of the two incidents. It is only fair to say that at all times Mr. Dillon had denied using this term.
5. Attempts to resolve the issue informally were unsuccessful. As a result the matter proceeded to Stage 3 of the Complaints Procedure. The appellant was requested to attend a meeting of the Board of Management pursuant to Stage 3 of the Complaints Procedure on the 24th February 2015. By letter dated the 26th February 2016 the appellant was informed that "In accordance with Section 3.5 of the Complaints Procedure, the Board has directed that the matter will now be dealt with under the provisions of Stage 3 of the Disciplinary Procedures."
6. The disciplinary procedures referred to a national agreed disciplinary procedure for secondary school teachers contained in the Department of Education and Science's Circular 60/2009.
7. The final written warning which was issued by a letter signed by the principal of the school and a nominee of the Board of Management on the 21st April, 2015 was in the following terms:
"The Board of Management had previously decided that the complaint of [AB's parents] was well founded. Our decision is that you should be given a final written warning. You are therefore warned that it is expected that there will be no further incidents of this nature involving you and pupils. It is expected that this will be the case henceforth. If there is a repetition of this or similar conduct in the future you will face further disciplinary action, up and including dismissal. […] The final written warning will be active for a period of twelve months and subject to satisfactory service will expire at the end of the twelve month period. You are entitled to appeal this decision."
8. In response the appellant notified CUS of his desire to appeal by letter dated the 10th May 2015. This letter stated as follows: "I wish to register in writing my decision to appeal the decision of the Board of Management of C.U.S. within the ten school days of receipt of this decision as stated in the Agreed Complaint Procedure"
9. CUS replied by letter dated the 17th September 2015, stating that "In accordance with Stage 3.4 of the Complaints Procedure the decision of the Board of Management is final".
10. As Twomey J. noted in his judgment, as the final warning letter was dated the 21st April 2015 it would thus seem that even from its own terms the final warning expired on the 21st April 2016.
11. This issue was also raised during the course of the High Court hearings which, due to the pressures of court commitments, had to be adjourned at one point from July to October 2016. At the resumed hearing further correspondence between the parties regarding the effect of the final warning was put before the Court. On the 27th July, 2016, solicitors for the applicant wrote to solicitors for the respondent in the following terms:
"…..when this matter was before the Court on 18 July it was stated on behalf of your client that the 12 month final written warning period has expired. While it is, of course, the case that a period in excess of 12 months has now elapsed since the date our client's final written warning letter was imposed you will be aware that our client has never received confirmation that the warning imposed upon him has ceased to have effect. This is significant in the circumstances and we would therefore ask you to state, on behalf of your client, whether the warning has ceased to have effect and to confirm that our client's service has been satisfactory."
12. On the 2nd August 2016, solicitors for the respondent replied, stating: "As regards your query in relation to the final written warning, the [Department of Education and Science] Circular No 60/2009 which contains the nationally agreed disciplinary procedures, under Stage 3: Final Written Warning, states:
‘A copy of the final written warning will be retained on the personnel file by the Principal and a copy will be given to the teacher. The final written warning will be active for a period not exceeding 12 months and subject to satisfactory service will cease to have effect following the expiry of the 12 month period. The record will be removed from the file after the twelve month period subject to satisfactory improvement during the period.'
We understand that the date of the final written warning was April 2015, and accordingly the said twelve month period expired in April 2016. While at this time there is no finding that your client's service during the twelve month period was other than satisfactory, your client is aware that a further complaint against him was received in November/December 2015 and your client was furnished with a copy of same on 7th December 2015. Your client went on sick leave the following day and accordingly the school has not had an opportunity to investigate the complaint."
13. As Twomey J. noted, these further complaints against Mr. Dillon were not before the Court and did not play any role in the High Court decision. The effect, nevertheless, of the correspondence was that it was clear that by the time of the hearing the final warning had expired.
Are the proceedings moot?
14. The first question, therefore, is whether Twomey J. was correct to hold that the proceedings were effectively moot. On this the judge stated:
"The first ground relates to mootness. In this regard, the Court relies on the statement of Hedigan J. in O'Donovan v. De La Salle College [2009] IEHC 163, a case which involved the expulsion of a pupil from a school, which pupil then enrolled in another school, but who nonetheless sought an order of certiorari quashing his expulsion from his first school. At para. 41, Hedigan J. stated:-
"On an application for a judicial review, the High Court will not exercise its supervisory jurisdiction in vain. This much is clear from decisions such as Minister for Labour v. Grace [1993] 2 IR 53 and Barry v. Fitzpatrick [1996] 1 ILRM 512. In the latter decision, the Supreme Court upheld the finding of Keane J. to the effect that "an order of certiorari, once it ceases to have any effect, is a pointless exercise and one which no court should undertake.
It seems to me, however, that there are in fact consequences which will inevitably flow from the decision of this Court. The fact that the applicant in the present proceedings succeeded to a considerable extent in mitigating the effect of the respondents' decision to expel him should not be allowed to weigh against him in the Court's consideration of his case. The presence of such a serious disciplinary sanction on the record of the young man in the applicant's position will inevitably have consequences for his reputation and self-esteem. This contrasts with the situation in Barry for example, in which the applicant sought to impugn a series of spent remand orders based on technical flaws therein. I find myself unable, therefore, to agree with the respondents' contention that the issues in this case are effectively moot."
It is to be noted firstly that the Barry case to which Hedigan J. refers, concerned an application to quash remands in custody, which were spent, but were bad in law since the applicant had been held in custody beyond the statutory period. The Supreme Court held that the dispute in the Barry case, to which Hedigan J. referred, was moot and refused to quash the remands since they were spent. In the case before this Court, the disciplinary sanction was also apparently spent, like in the Barry case, when this matter was first heard, since the final written warning had prima facie expired. Secondly, it is to be noted that the student in the case before Hedigan J. was always going to have the school expulsion order on his record and this appears to have been a decisive factor for Hedigan J. in deciding that the dispute in that case was not moot. In contrast, the applicant teacher in the case before this Court will not have a serious disciplinary sanction on his record, since as already noted it is removed from his personnel file on the expiry of 12 months from its issue (unless of course, he is guilty of further indiscretions).
Accordingly, since in the case before this Court the applicant's final written warning was prima facie spent prior to this Court first hearing the matter, like the remands in custody in the Barry case, and since the nature of the final written warning was such that it did not remain on the applicant's personnel file, unlike the suspension in the O'Donovan case, this Court finds that judicial review of the decision of 24th February 2015, and the final written warning of 27th March 2015, should not be available to the applicant on the grounds of mootness."
15. For my part, however, I cannot, with respect, agree with Twomey J's conclusions in this regard. Any comparison with Barry v. Fitzpatrick [1996] 1 I.L.R.M. 512 is, I think, inapt, because in that case the remand order had expired and any defects which had attached to it were purely technical. Unlike the present case, there were, in particular, no adverse findings of fact made in the course of that hearing which were reflected in the terms of that order.
16. In many ways the present case is indistinguishable from that in O'Donovan . If the rationale of O'Donovan was that, in the graphic words of Hedigan J., "the presence of such a serious disciplinary sanction on the record of the young man in the applicant's position will inevitably have consequences for his reputation and self-esteem", the same can equally be said here. One does not, I think, need to have any great knowledge of the educational system or the labour market for secondary teachers to appreciate that a final warning of this kind, referring as it does to inappropriate contact with a pupil, is likely to have the gravest implications for the good name, reputation and employment prospects of the appellant. By virtue of Article 40.3.2 and Article 40.3.1 respectively these 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: see, e.g., Corbally v. Medical Council [2015] IESC 9, [2015] 1 ILRM 395, 413 per Hardiman J. and, indeed, my own judgment for this Court in ACC Loan Management Ltd. v. Barry [2015] IECA 224, [2016] 1 I.R.M. 436.
17. Further support for this proposition is also to be found in the judgment of Quirke J in De Roiste v Judge Advocate General [2005] 3 I.R. 494. In that case the applicant was a member of the Defence Forces who had been involuntarily retired from the service in 1969 on suspicion of associating with persons engaged in subversive activities. In 2002 a report was commissioned by the Minister for Defence concerning the retirement of the applicant. When conducting a review for the purpose of preparing that report the Judge Advocate General refused to allow the applicant an opportunity to give oral evidence. The applicant brought judicial review proceedings seeking to quash the report. He argued that he had been denied natural justice in respect of a process which affected his reputation and was entitled to make oral representations in support of his interests.
18. Quirke J. held that the proceedings raised a justiciable controversy, even though it had no technical legal effect, as it impacted upon the applicant's reputation and the right to his good name. As Quirke J. observed ([2015] 3 I.R. 494, 512):
"It is inescapable that the findings and conclusions resulting from the process had the capacity to affect the applicant's reputation and good name whether favourably or adversely. He enjoys the right to a reputation and a good name. That right is constitutionally protected.
I am satisfied that since the process undertaken directly concerned matters relating to the applicant's reputation and good name, its findings and outcome affected his constitutionally protected right to his reputation and good name. Accordingly, he had a legitimate, fundamental significant interest in the process and is entitled to seek the relief which he has sought in these proceedings."
19. For all of these reasons, therefore, it cannot, therefore, be said that the fact that the final warning has expired means that it no longer has any meaning, implications or effects for the applicant.
Whether the matter raised was de minimis ?
20. Twomey J. also concluded that the issue raised was in truth de minimis .
"The second ground for refusing judicial review to the applicant is based on the de minimisprinciple. In this regard, the Court also relies on the case of Murtagh v. The Board of Management of St Emer's National School [1991] 1 I.R. 482. In that case, the Supreme Court considered a case in which an 11 year old pupil was suspended from school for three days after writing on a piece of paper the words " Noleen Bitch Rooney " about a teacher in the school. The Supreme Court held that the suspension of a pupil for this indiscretion was not amenable to judicial review. At p. 488 of the judgment, Hederman J. stated:-
"A three day suspension of a pupil from a national school either by the principal or the board of management of that school is not a matter for judicial review. It is not an adjudication on or determination of any rights, or the imposing of any liability. It is simply the application of ordinary disciplinary procedures inherent in the school authorities and granted to them by the parents who have entrusted the pupil to the school.
A three day suspension for an admitted breach of discipline would be no more reviewable by the High Court, than for example, the ordering of a pupil as a sanction to stay in school for an extra half hour to write out lines, or to write out lines while he is at home."
When this case commenced before this Court in June [2016], it was in essence an application by the applicant teacher to have the final written warning, that had prima facie expired, declared null and void. While the 12 month final written warning of the applicant might appear at first instance to be more serious than the three day suspension of a pupil in the Murtagh case purely on the basis of length of time, in fact the 12 month final written warning could be viewed in some ways as less serious than the three day suspension in the Murtagh case. This is because in the case before this Court, there has been no actual suspension or other punishment of the applicant (unlike the pupil in the Murtagh case who was forced to leave school for three days), since the written warning was simply that, a warning. Furthermore, by its express terms the final written warning was to be removed (and thus treated as if it had not existed) from the applicant's personnel file after 12 months. For this reason, this Court is of the view that despite its apparent length, the final written warning of the applicant teacher was de minimis in nature, on the grounds that it was simply a warning and was not, in the words of Hederman J., an imposition of any liability.
Therefore, applying the de minimis principle, this Court concludes that like the three day suspension of a pupil in the Murtagh case for a pupil calling a teacher a 'bitch', the final written warning of a teacher who allegedly called a pupil a 'bitch' is not a matter that is amenable to judicial review. It logically follows from this conclusion that the decision which led to the final written warning, namely the upholding by the Board of Management of the complaint of name calling against the applicant on the 24th February 2015, is also not a matter amenable to judicial review, applying the same de minimis principle."
21. It is true that the playground is sometimes an unpleasant place and the taunts and jibes of childhood banter can sometimes unhappily reverberate through the decades. But short of actual bullying, I agree that schoolboy comments and jibes have their place in the playground and, generally speaking, at least, not in a court of law. It is also true that the de minimis principle forms the basis of the Supreme Court's decision in Murtagh, but, in truth, on closer examination the similarities between that case and the present one are really only superficial. There is, after all, a world of difference between a three day suspension imposed on a primary school student for having made insulting remarks about a teacher and a school making a finding of "inappropriate behaviour" concerning a pupil. The suspension of the pupil for three days represents an ephemeral punishment which is likely to have no lasting consequences for the pupil. Precisely because the incident which was at issue in Murtagh concerned an eleven year old and the punishment was administered with a minimum of formality, it cannot be compared with the professional and reputational implications for a teacher of a formal, written finding of this nature. In any event, in other contexts, as the judgment in O'Donovan shows, even the imposition of a more serious sanction on an older student is capable of having a reputational impact of a sufficient degree of seriousness to take the case outside of the ambit of de minimis .
22. A good example in this context is supplied by the decision of Noonan J. in Corr v Director of Military Prosecutions [2014] IEHC 631. In that case a soldier holding the rank of private was charged with disobeying orders and absenting himself from his post without leave. It was found that the charges were proved and the soldier was fined two days pay. Judicial review proceedings were brought in which the applicant sought to quash the findings made against him on the basis that the decision to charge the applicant had been made without jurisdiction. In contesting the applicant's entitlement to the reliefs sought the respondents relied on the maxim de minimis non curat lex on the basis that the punishment awarded was modest and the determination would not affect the applicant's service record) and thus no real prejudice accrued to the applicant.
23. Noonan J. rejected the de minimis argument holding that the charges of insubordination and absenting a post without leave had the potential to be very serious for an army private. Noonan J. accordingly concluded that de minimis non curat lex could not apply to such charges, irrespective of the relatively modest nature of the penalty imposed.
24. I find myself arriving at the same conclusion so far as the present case is concerned. Adopting the words of Henchy J. in Monaghan UDC v. Alf-A-Bet Promotions Ltd. [1980] I.L.R.M. 64, 69, the issues arising in these proceedings cannot realistically be characterised as trivial, technical or peripheral for all the reasons which have been mentioned. As I have already noted, the applicant's entitlement to vindicate his good name is a constitutionally protected right by virtue of Article 40.3.2 and the finding of "inappropriate behaviour" cannot be regarded as other than a serious and reputationally damaging one. These findings have the potential to have a serious impact on the applicant's employment prospects and his future opportunity to earn a livelihood in his chosen profession is clearly at issue. These are not trivial issues and they cannot, with respect, be reduced to the level of mere technicality or insubstantiality.
The scarce public resources argument
25. In his judgment Twomey J. also considered that the principle articulated in Murtagh to the effect that scarce public resources should not be wasted on minor matters also applied here. But, for the reasons already stated, I do not think that the present case can properly be regarded as one which raises a purely minor matter.
26. Of course, as the Supreme Court indicated in Tracey v Burton [2016] IESC 16, quite different considerations might apply if it were to transpire that the applicant - or, for that matter, the respondents - were to have engaged in time-wasting in the course of the litigation or with repeated or vexatious applications which appeared to serve very little purpose. So far as I can see, however, nothing of the kind can properly be said to have been engaged here. But what Tracey v. Burton is not authority for is the suggestion that the High Court can decline to determine on some ex ante basis an otherwise justiciable controversy on the ground that it involves a waste of public resources.
27. Insofar as the judgment under appeal may be taken to suggest the contrary, I would respectfully take the view that it rests on an incorrect application of the true rationale of the judgment in Tracey.
Whether the case should be remitted to the High Court
28. It will be seen from the foregoing that Twomey J. in effect ruled against the applicant in limine on the ground that the matters raised were not appropriate for judicial review. He did not, however, rule in any sense of the merits of the various procedural arguments advanced by the applicant regarding the extent to which CUS properly followed the agreed procedures contained in DES Circular 60/2009. Given that this Court has reversed the finding of Twomey J. that the matter was moot or that it was not properly justiciable or that it involved matters which were de minimis , it seems inevitable that the matter must now be remitted to the High Court for a determination of the merits of the various arguments regarding, for example, the application of the DES Circular. Nothing in this judgment should be taken as expressing any view on the merits of these particular arguments.
Conclusions
29. In summary, therefore, my principal conclusions are that Twomey J. was, with respect, wrong in law when he concluded that the application should be dismissed in limine on the grounds of mootness and by reason of the fact that the issues raised were de minimis . The terms of the final warning had potentially significant reputational implications for the good name and employment prospects of the applicant. This in itself was sufficient to justify the conclusion that the proceedings are neither moot nor de minimis.
30. In these circumstances I would accordingly allow the appeal of the applicant and remit the matter to the High Court for a fresh determination on the merits of the arguments of procedural unfairness and failure to adhere to the terms of the relevant agreed disciplinary procedures. Nothing in this judgment should be taken as expressing any view on the merits of these particular arguments.
