High Court of Ireland Decisions

Hennessy v. St. Gerard’s School Trust [2003] IEHC 49 (30 July 2003)
 
THE HIGH COURT DUBLIN

Case No. 7556P/2003

Between

MARY TERESA HENNESSY

PLAINTIFF

And
ST. GERARD'S SCHOOL TRUST

DEFENDANT

JUDGMENT of Mr. Justice Smyth Delivered on Wednesday the 30th day of July 2003

This is an application by the Plaintiff for reliefs, the principal being the following:

(a) An injunction restraining the Defendant, its servants or agents, from appointing or purporting to appoint any person other than the Plaintiff to the Plaintiffs position as a permanent incremental teacher of maths and business studies with the Defendant or from assigning the Plaintiff's function and duties to any other person other than the Plaintiff.

(b) An injunction restraining the Defendant, its servants or agents, from giving effect to what is stated to be a purported dismissal of the Plaintiff from the position of full time incremental teacher.

(c) An injunction restraining the Defendant, its servants or agents, from treating the Plaintiff other than as continuing to be employed by the Defendant as a full time incremental teacher unless and until her contract of employment has been lawfully discharged in compliance with the principles of natural justice and fair procedures.

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other reliefs are sought including the payment of the Plaintiff's salary and bonus entitlements as they fall due until the trial of the action.

The facts

The Plaintiff who had some twelve years teaching experience applied in early to mid 2002 to become a teacher in the Defendant's school, which is a private school under the control of a Board of Governors. The position on offer - stated to be available to persons on the Supplementary Panel for the Secondary Teachers' Redeployment Scheme, was as understood by the Defendant to be for a fixed term probationary contract of employment of one year. The Plaintiff's apparent understanding was that she was entering a full time paid, pensionable and permanent contract of employment. How she came to such an understanding given her years of experience in the teaching profession is difficult to understand - but even if she considered that such a post could be secured without a probationary period in May 2002 she was left in no doubt that she was on probation after she took up her duties in September 2002 and at a number of meetings and in memos of communications which were sent, addressed or given to her on: 9, 11 and 16 December 2002; 21, 28 January 2003; 14 February 2003; 10 March 2003; 4 and 29 April 2003. Various reasons were given in the affidavits as to why this position

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was not challenged when it was, if it was, contrary to the Plaintiff's genuine understanding of her contractual position. Notwithstanding the stated understanding of the Plaintiff her Solicitors wrote to the Chairman of the Board of Governors of the School by letter dated 9 May 2003 inter alia as follows:

"We require your confirmation by return that the Board will revoke its letter of 29 April 2003 and will not unlawfully predetermine Ms. Hennessy's contractual position at the end of her probationary period to determine in 2004."

There is therefore a question raised - as to its veracity or strength I am not called upon to determine. The fact that I consider it at best a very fragile case does not preclude it from being a fair issue (in an interlocutory context) to be tried. The other issue sought to be raised to support the application for injunction is as to whether the Defendant followed basic fairness in letting the Plaintiff go - or as seen by the Plaintiff, being dismissed. Complaints had been made to the Defendant regarding the Plaintiff's ability to teach Leaving Certificate Maths at Ordinary Level. She had been informed of these but not actually given the letters of complaint, and Mr. Foley the Headmaster met the Plaintiff on a number of occasions to discuss this issue and proffered suggestions as to how the difficulties might be met. The problem was not

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resolved. The Plaintiff was warned by Mr. Foley particularly on 4 March 2003, as recorded in a memorandum of 10 March 2003 as follows:

"I also explained to you that that is a serious matter in terms of your probationary period as I would not be in a position to recommend your appointment to an incremental position if this level of complaint continued."

An intended meeting between the Board of Management and the Plaintiff did not take place on 15 April 2003 - it was intended to be rescheduled. Miss or

Mrs. Durkan a Member of the Board has averred in an affidavit of 17 July 2003 that:

" .... the Board was of the view that due process requirements had been afforded Ms. Hennessy long before 15 April 2003 and, as the notice period was running against them, it felt constrained to dive Notice to Ms. Hennessy prior to 30 April 2003 that it did not intend to offer her a Continuous Contract of Employment at the end of the probationary period."

The distinction to be made between the decision made within a probationary period in O'Gorman v. Minister for Justice, Equality and Law Reform (Judgment of Murphy, J. Unreported High Court 25/7/2000) and that made outside of a probationary period in Whelan v. Minister for Justice [1991] 2 IR 241 is not to be discounted simply because they relate to public service.

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Again in the context of an interlocutory application a question can be said to arise that can only be resolved by a full hearing of the action. On a conspectus view of the evidence I am of the view that the Plaintiff has a very uphill struggle - which it is possible, I say no more, can be overcome. I see it only as a possibility not a probability. In my judgment the Plaintiff cannot reasonably have expected to be given a permanent position without a satisfactory probationary service and the Defendant through Mr. Foley appraised the Plaintiff as to "progress" and notwithstanding the notice given in respect of the meeting of 15 April 2003 may not have been as adequate as to be comfortable - it was nonetheless in all the circumstances in my view sufficient. In the circumstances the Defendant's decision was not in breach of natural justice. A final decision on this issue must await the trial of the action. Any views herein to the contrary must be taken as preliminary only.

The adequacy of damages as the remedy must be considered in the context of the type of contract involved. If a probationary contract - there would be no continuum if a permanent post is not being offered therefore damages may not arise. If a permanent post is the contract ultimately established then damages may not be an adequate remedy.

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Effectively what the Plaintiff is seeking at this stage is to paid a salary from the end of the probationary period pending the hearing. This is in effect to adjust the status quo. To adopt the view of Murphy, J. in Bula Ltd. V. Tara Mines (No. 2) [1987] IR 95 at 105:

"So far from maintaining the status quo it would compel the parties no merely to take certain actions but also to decide, at least on some temporary or conditional basis, the legal framework within which those actions are to be taken. In my view it would be wrong for the Court to adopt that course at interlocutory stage."

While appreciating the commercial and legal differences in that case and the case law advanced in support of the contentions of the Plaintiff in the instant case I do not consider it appropriate to direct the Defendant to make the payments in the circumstances of this case. If as is averred by the Plaintiff that to date she has been unable to secure even an interview for a teaching position that is a serious matter. Whether it is the involvement in this litigation, the stress she complained of pre-litigation, a loss of confidence due to her teaching experience at the Defendant's school or some other reason, it is not possible to determine from the affidavits. In effect the Plaintiff will by the end of August have been paid a salary for four months - one day only of which (due to illness amongst other matters) she appears to have attended in the

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Defendant's school. The several cases in which payment to an employee who "lost" his/her employment have been made pending a trial are markedly distinguishable from the instant case.

The irreparable harm or adequacy/inadequacy of damages has been to be considered in the context of a school that must put in place a teacher with a specific range of skills in time for the school year 2003/2004 and a teacher who must find a teaching post in a school for the same period, other than the Defendant's school for it is clear that the mutuality of respect and trust has been fractured by past events. Damages if they arise are capable of ascertainment and calculation. This is not a case such as Fennelly v. Assicurazioni_-Generalia SPA (12 March 1985 per Costello, J.) where the court could determine with firmness that the Plaintiff had a twelve year contract of employment and where the parties had the highest regard for each other.

In Campus Oil v. Minister for Industry and Energy (No. 2) [1983] IR 88 at 105 O'Higgins, C.J. had this to say in relation to interlocutory applications where mandatory relief was being sought (as in the instant case referable to salary):

"In cases where rights are disputed and challenged and where a significant period must elapse before the trial, the court must exercise its discretion (to grant interlocutory relief) with

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due regard to certain well established principles. Not only will the court have regard to, what is complained of and whether damages would be an appropriate remedy but it will consider what inconvenience, loss and damage might be caused to the other party, and it will enquire whether the applicant has shown that the balance of convenience is in his favour."

The Plaintiff in paragraphs (38 to 40) of her affidavit sworn on 24 June 2003 raises her concerns in this regard. The Defendants are concerned to put in place the necessary qualified and suitable teaching staff for the school year 2003/2004.

In my judgment the balance of convenience favours leaving the status quo as it now exists rather than reverting to the status quo ante 29 April 2003.

I therefore refuse the application.