High Court quashes final written warning given to teacher but not Board of Management’s finding that he engaged in inappropriate behaviour
Pierce Dillon v The Board of Management of Catholic University School
Mr Dillon is a teacher at the Catholic University School. He allegedly called a male student of his a “little bitch”, told him to “stop whining” and engaged with him again in a similar fashion on the following day. The student complained and his parents applied pressure on the Board of Management (the “BOM”) to investigate, which duly investigated and disciplined Mr Dillon.
Mr Dillon applied to the High Court seeking various orders against the school’s BOM. If granted, the two most critical orders would quash:
- the BOM’s finding at the conclusion of its complaints procedure that he had engaged in “inappropriate behaviour and language” in the incident with the student (the investigation stage); and
- the BOM’s decision to issue him with a final written warning arising from a disciplinary process based on the preceding finding (the disciplinary stage).
In summary, Mr Dillon wanted the outcomes of the investigation and disciplinary stages quashed.
The High Court’s decision on the investigation stage
The High Court held that the complaints procedure was a private law contractual matter between Mr Dillon and the BOM. With no public law element, its application could not be judicially reviewed. As a result, the High Court refused to quash the finding that Mr Dillon had engaged in inappropriate behaviour.
Even if that was not the case and it had jurisdiction to tackle that issue, the High Court commented that it would not have found in Mr Dillon’s favour on the issue in light of his conduct concerning the processing of the complaint. All he did was threaten judicial review. He did not attend the investigation hearing to argue his case. The High Court emphasised that those who do not participate in agreed procedures “cannot later come crying to the courts because they do not like the outcome of the process”. Accordingly, even if the High Court had jurisdiction, Mr Dillon’s inaction would have meant he could not seek such relief.
The High Court’s decision on the disciplinary stage
By contrast, the High Court quashed the final written warning letter issued to Mr Dillion.
The High Court found Mr Dillon was denied a proper disciplinary procedure and his own acquiescence to that procedure was not sufficient to validate the invalid process. The BOM erred in trying to “shoe horn” the investigation outcome into the new disciplinary procedure.
The High Court found the BOM “exceeded its powers”. The BOM could have held as a finding of fact at the outcome of the investigation that the events happened or that there was “a prima facie case of misconduct”. However, it was not entitled to hold at that stage, as happened in the present case, that those events were inappropriate language and/or behaviour.
The High Court took issue with the formal disciplinary hearing being held by two people from the BOM who had also been part of the investigation procedure. The High Court found there was “no presumption of innocence” at the disciplinary hearing. In short, the disciplinary decision makers treated Mr Dillon as someone already found guilty of an offence rather than as someone charged with an offence. The Court concluded that “[t]o put it mildly, this does not meet the standards of an impartial inquiry.” Finally, the Court took issue with any appeal from the disciplinary procedure falling to be dealt with by the BOM whose decision would in those circumstances be under appeal.
The danger where public law meets private law
In 2000, a complaint procedure and a disciplinary procedure were introduced by agreement between the teachers’ union and BOMs. The High Court noted that the complaint procedure and disciplinary procedure were “parallel, complementary procedures which dovetail with each other”. The procedures were a matter of private law, the law of contract and therefore not subject to being judicially reviewed.
In 2009, a new disciplinary procedure (but not a new complaint procedure) was introduced by Department of Education Circular. This brought the disciplinary procedure for teachers “out of the private law area and into the public law area.” The primary change that the new disciplinary procedure brought about was that it was on a statutory footing and so was capable of being judicially reviewed.
The High Court concluded that the 2009 procedure clearly superseded the 2000 disciplinary procedure but did not affect the 2000 complaints procedure, which remained in force. It observed that this led to “a most unsatisfactory situation in which the complaints procedure for parents and eligible students is a matter of private law […] which forms part of the contractual obligations and rights of teachers, while the disciplinary procedure is a matter of public law reviewable by the courts.”
The High Court noted that “no-one appears to have adverted to the potential difficulties which might arise from the disconnection” between the 2009 disciplinary procedure and the 2000 complaint procedure.
The High Court encouraged the trade union and the BOM to change the 2000 complaints procedure so that it reflected the revised 2009 disciplinary procedure.
Advice to employers
The High Court highlighted that the case provided “ample illustration of how unwise it is to alter one element of established procedures without establishing that it dovetails with other established procedures.”
Although this case concerned a very specific scenario where there was a clash between public and private law, all employers should be careful that, when updating any workplace policy or procedure, those changes do not adversely affect any of their other existing workplace policies or procedures. Inconsistencies between policies and procedures that are intended to work in tandem can cause problems for employers seeking to apply them.