The High Court has recently upheld the decision of the Labour Court that a Principal of a primary school was unfairly dismissed, eleven and a half years after he was first placed on administrative leave. In An Bord Banistíochta, Gaelscoil Moshíológ v The Labour Court [2023] IEHC 484, the High Court (Cregan J.) described the case as “a shocking story of a terrible injustice done to Mr. Ó Suird.” (the Principal/Notice Party).
Facts: Mr Ó Suird was employed as the Principal of Gaelscoil Moshíológ (the “School”). In January 2012, he was placed on administrative leave from his position due to an incident involving a pupil, which occurred on 11th January 2012, and which was later described as a “minor incident” and did not warrant external investigation. The chairperson of the Board of Management, Ms Ní Dhuinn (the “Chairperson”) then investigated other issues surrounding enrolment figures in the School. In March 2013, the Board of Management (the “Board”) decided to keep Mr Ó Suird on administrative leave for reasons identified during the investigation into enrolment figures and he was subsequently suspended in May 2013. A lengthy disciplinary process was conducted by the Board and Mr Ó Suird was dismissed with effect from 30th November 2015. He appealed his dismissal, but his appeal was unsuccessful. Mr Ó Suird then brought a claim to the Workplace Relations Commission (the “WRC”) which found that he had been unfairly dismissed and ordered his re-engagement. The Board appealed this decision to the Labour Court which upheld the decision of the WRC.
The Board subsequently appealed to the High Court on a point of law pursuant to section 46 of the Workplace Relations Commission Act 2015, seeking a declaration that the Labour Court erred in its decision, and an Order setting aside the decision of the Labour Court and remitting the matter to the Labour Court.
Decision: In a lengthy judgment, Cregan J. described the long “odyssey” that Mr Ó Suird went through at the hands of the Chairperson and the Board. Cregan J. outlined the background to the matter, including that Mr Ó Suird established the inter-denominational gaelscoil which opened in 2002. Mr Ó Suird always enjoyed a good relationship with the Board of Management of the School, however an entirely new Board was appointed in November 2011, shortly before he was put on administrative leave by the new chairperson in January 2012 and eventually dismissed. Cregan J. highlighted the “extraordinary” length of time the case took to appear before the High Court. In the meantime, in July 2016, a new principal was appointed to the School.
Cregan J. set out the legal principles governing an appeal to the High Court on a point of law as set out in Deely v Information Commissioner (Unreported, High Court, 11th May 2001)and followed in ESB v Minister for Social Community and Family Affairs [2006] IEHC 59 in which Gilligan J. stated:
“I take the view that the approach of this Court to an appeal on a point of law is that findings of preliminary fact are not to be set aside by this Court unless there is no evidence whatsoever to support them. Inferences of fact should not be disturbed unless they are such that no reasonable tribunal could arrive at the inference drawn and further if the Court is satisfied that the conclusion arrived at adopts a wrong view of the law, then this conclusion should be set aside. I take the view that this Court has to be mindful that its own view of the particular decision arrived at is irrelevant. The Court is not retrying the issue but merely considering the primary findings of fact and as to whether there was a basis for such findings and as to whether it was open to the Appeals Officer, to arrive at the inferences drawn and adopting a reasonable and coherent view, to arrive at her ultimate decision.”
Cregan J. held that there are limited circumstances in which the High Court should interfere with a decision of the Labour Court.
He referred to various provisions of the Unfair Dismissals Act, 1977 as amended, and noted that the fundamental question before the Labour Court was whether or not Ms Ó Suird’s dismissal was unreasonable having regard to all the circumstances of the case.
Cregan J. considered that the key issues in this case were:
(a) whether the evidence before the Labour Court was sufficient to permit it to make the findings of fact which it made;
(b) whether the inferences drawn by the Labour Court from these facts were reasonable; and
(c) whether the Labour Court made any obvious errors of law in its determination of the matter.
An essential question was whether the decision to dismiss Mr Ó Suird was in “the range of reasonable responses open to a reasonable employer.”
Cregan J. set out a chronology of the events that occurred and considered all the evidence that was before the Labour Court. This included Circular 60/2009 which sets out the rules and procedures that apply to disciplinary proceedings by boards of management of primary schools regarding teachers or principals; transcripts of evidence heard by the Labour Court over 11 days; transcripts of the three days of disciplinary hearings before the Board; and extensive correspondence and documentation relating to the matter.
He found that “It is clear from the evidence before the Labour Court that, all, or almost all, of the principles and procedures [set out in the Circular] were breached in the current situation.”
Cregan J. found that the decision to place Mr Ó Suird on administrative leave in 2012 was an “enormously draconian step to take”, particularly in circumstances where they had not heard his side of the story. Moreover, he noted that the Chairperson and the Board, then “suppressed and concealed enormously significant evidence”, a letter from the solicitor of the pupil’s parents to the Board which made it very clear that the parents regarded the matter as “minor” and that they were entirely satisfied with how Mr Ó Suird’s handled the matter.
Cregan J. was critical of the Chairperson’s failure to provide Mr Ó Suird with a copy of the letter, noting that she “appears to have ignored this letter altogether.” The applicable statutory procedure, Circular 60/2009, sets out the procedures for suspension and dismissal of principals. The Circular placed an obligation on the Chairperson to act reasonably at all times and comply with the general principles of natural justice. He noted that if a copy of the letter had been given to Mr Ó Suird at the time, and if Mr Ó Suird had been given the opportunity of responding and providing his side of the story, it was possible that he may not have been placed on administrative leave.
In January 2013, the Chairperson raised concerns about enrolment practices in the School. The Court stated that it was clear that the Board decided to keep Mr Ó Suird on administrative leave during this investigation, despite it being clear that the classroom incident was at an end. According to Cregan J. there was “absolutely no basis whatsoever for keeping Mr Ó Suird on administrative leave from January 2013 onwards.” He did not even know what he was being investigated for. It was not until 29th May 2013, sixteen months after Mr Ó Suird was placed on administrative leave, that the Chairperson wrote to the Irish National Teachers’ Organisation (the “INTO”) in relation to the enrolment issues.
The Court was critical of a number of issues arising from this letter including that the Chairperson and the Board decided to suspend Mr Ó Suird before he had proper notice of all allegations against him, and that Mr Ó Suird had been placed in the “Kafkaesque position” of being unable to defend himself. The Chairperson and the Board refused to consider Mr Ó Suird’s defence despite the evidence presented on his behalf. The Court stated “It was an unacceptable position for him to be put in and the blame for this rests with [Ms Ní Dhuinn]”. Cregan J. was also critical of the “extraordinary delay” by the Chairperson and the Board to resolve this matter. The “grossly unreasonable” delay was prejudicial to Mr Ó Suird’s ability to defend himself and to his professional reputation. The Court was also highly critical of the lengthy period of time it took for a decision to be issued by the WRC and for the Labour Court to deal with the appeal. The Court noted that such lengthy delays run a “real risk of the exposing the State to claims for damages for breach of Article 6 of the European Convention on Human Rights” which guarantees the right to a fair trial. Further, the Court held that it was clear that all other allegations which the Chairperson raised against Mr Ó Suird were “completely unwarranted, in circumstances where no comprehensive report was ever furnished by her, no further disciplinary proceedings were ever brought by against Mr Ó Suird.”
It was held that in the circumstances that the Chairperson and the Board failed to comply with natural justice, and that the continued administrative leave and subsequent suspension of Mr Ó Suird until the conclusion of the disciplinary process were “manifestly unreasonable, a breach of his natural and constitution rights and a breach of the requirements of circular 60/2009.”
The Court was satisfied that the Labour Court was entitled to come to the view that the sanction of dismissal of Mr Ó Suird was “disproportionate and not within the band of reasonable responses open [to the employer]”. Cregan J. considered the redress ordered by the Labour Court and held that the Labour Court erred in determining that the appropriate address was an award of re-engagement with effect from 1st September 2017, the period from his date of dismissal to that date to be regarded as a period of unpaid suspension. He found that in all the circumstances “there is no reason in law why the Labour Court should have directed an award of re-engagement with effect from 1st September 2017 or should have imposed a period of unpaid suspension. “Instead, Cregan J. found that the “proper order” to be made was an order for the immediate reinstatement of Mr Ó Suird to his position of principal with effect from 30th January 2013, being the date on which his administrative leave ought to have ended, with full salary and pension entitlements.
Takeaway for Employers: While the facts of this case are exceptional in nature, the judgment of the High Court is an indictment on the Board and Chairperson who failed to follow rules of fair procedures and proportionately. Any employer seeking to investigate an employee issue must follow steps to ensure that the employee is informed and given the opportunity to defend him or herself against any allegations. An employer should also avoid unnecessary delay in disciplinary investigations and procedures, to avoid prejudice to the employee. This case is another reminder that legal advice should be obtained by an employer when considering suspending an employee.
Authors – Jane Holian, Jenny Wakely, Anne O’Connell