Dillon v Board of Management of Catholic University School[2018] IECA 292 is a recent decision of the Court of Appeal which demonstrates that the Courts take the reputational implications of a final written warning seriously and that an employee is certainly entitled to litigate the imposition of such a warning, even if it expires without further adverse steps being taken against the employee.

The case is also to be noted for the indication that if an employee plays fast and loose with disciplinary procedures and fails to engage with those procedures in the way which might be expected of them, they run the risk that even if they succeed in their claim the Courts may depart from the usual rule in relation to costs and therefore make no order as to costs or perhaps even make an award of costs against them.

Background

The appellant was a secondary school teacher employed by the respondent school from 1992 to 2017. He was the subject of disciplinary proceedings under the nationally agreed disciplinary procedure for secondary school teachers contained in the Department of Education and Science Circular 60/2009. In February 2015 the Board of Management of the respondent found that he had engaged in “inappropriate behaviour” towards a particular student when he called the student by an unpleasant and offensive name. As a result of that finding, the respondent imposed a final written warning upon the applicant in April 2015 in the following terms:

“If there is a repetition of this or similar conduct in the future you will face further disciplinary action, up to and including dismissal … The final written warning will be active for a period of 12 months and subject to satisfactory service will expire at the end of the 12 month period. You are entitled to appeal this decision.”

The applicant sought orders by way of judicial review quashing the original finding of the Board of Management as well as the decision to impose a final warning.

The case commenced before the High Court in July 2016. The case did not conclude in July 2016 and was adjourned to October 2016. In the interim, the parties engaged in correspondence regarding the question whether the warning had ceased to have effect. In its correspondence, the respondent quoted from Circular 60/2009:

“[A] copy of the final written warning will be retained on the personal 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 12 month period subject to satisfactory improvement during that period.”

The respondent’s correspondence continued as follows:

“We understand that the date of the final written warning was April 2015, and accordingly the 12 month period expired in April 2016. While at this time there is no finding that your client’s service during the 12 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.”

Twomey J in the High Court dismissed the application, holding that in the circumstances the proceedings were moot; that, in any event, the matter raised was de minimis – in other words, of insufficient moment to be justiciable - and, furthermore, the principle that scarce public resources should not be wasted on minor matters applied here.

The applicant appealed to the Court of Appeal which found in his favour and remitted the matter to the High Court for a determination on the merits. Hogan J (Whelan J concurring) strongly disagreed with the approach taken by Twomey J in the High Court. Birmingham P, whilst he also took the view that the High Court had erred and that the appeal should be allowed, was somewhat more nuanced in his approach.

Had the warning expired?

Twomey J in the High Court and Hogan J in the Court of Appeal (Whelan J concurring)took the view that the final written warning had expired. Birmingham J in the Court of Appeal proceeded on the presumption that the final written warning had expired. It is to be noted that this was so notwithstanding that the expiry of the warning was expressed to be subject to satisfactory behaviour; there had been a further complaint against the applicant during the period and the respondent had not been in a position to determine the complaint.

Was the matter moot?

In the High Court, Twomey J took the view that since the warning had expired and no longer remained on the applicant’s personnel file, judicial review of the decision that the applicant had engaged in “inappropriate behaviour” and the subsequent decision to impose a final written warning should not be available to the applicant on the grounds of mootness.

Hogan J in the Court of Appeal disagreed strenuously with the approach taken in the High Court. He held as follows:

“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 greatest 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 a good name in both a professional and employment context is adequately vindicated.”

Hogan J, therefore, held that it could not be said that the final warning had expired and that it no longer had any meaning, implications or effects for the applicant.

Birmingham P agreed with Hogan J, although he did so with extreme reluctance. He held that it was 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. He accepted the argument that the fact that such a warning was placed on the phone could, in certain circumstances, have long-term effects. He also expressed concern that if it became established that once the warning period had expired the issue was then not amenable to review, that might serve to encourage early resorts to litigation.

Was the matter de minimis?

Twomey J in the High Court also held that the matter was de minimis – in other words, so trivial a matter that it was not justiciable.

In this regard, Twomey J referred to the case of Murtagh v  Board of Management of St Emer’s National School [1991] 1 IR 482 concerning a three-day suspension of an 11-year-old pupil for 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: it was not an adjudication on or determination of any rights, or the imposing of any liability. It was simply the application of ordinary disciplinary procedures inherent in the school authorities and granted to them by the parents who had entrusted the pupil to the school.

Twomey J held that whilst the 12-month final warning might appear at first instance to be more serious than the three-day suspension of the pupil in the Murtagh case, in fact it could be viewed as less serious since it was simply a warning. Furthermore, by its expressed terms it was to be removed from the applicant’s personnel file after 12 months. He also noted that the offence, both in the Murtagh case and in the case before him, concerned name calling. Twomey J was of the view that the final written warning of the applicant was de minimis in nature and was not amenable to judicial review.

Hogan J in the Court of Appeal strongly disagreed with the views of Twomey J:

“[O]n closer examination the similarities between [the Murtagh] 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 the 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 11-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.”

Hogan J later continued as follows:

“[T]he 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.”

Birmingham P agreed, emphasising that issuing a final warning should be a matter of great moment; it should not happen lightly and cannot properly be regarded as a “trifle”.

Should the Court decline to hear the case because to do so would be a waste of scarce public resources?

Twomey J, relying on Tracey v Burton [2016] IESC 16, held that there is a public interest in discouraging the use of scarce High Court resources to deal with disputes that are moot and/or relate to minor matters and that the application for judicial review should be refused as it was not an appropriate use of scarce public resources.

However, in the Court of Appeal, Hogan J rejected this interpretation of Tracey v Burton, holding that it is not authority for 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.

Should a failure to engage in the disciplinary procedures be taken into account in the matter of costs?

Birmingham P expressed the view that the applicant had played “fast and loose” with the disciplinary procedures and had failed to engage with them in the way one would expect of a long-term professional employee. He therefore indicated that he would have to consider carefully whether this might be a case for departing from the usual rule in relation to costs. In other words, even though the applicant had succeeded and would therefore in the normal course obtain an Order for costs, in the particular circumstances, the Court might make no Order as to costs or might even award costs against the applicant.

Conclusion

This case serves as a reminder of the seriousness of a final written warning for an employee, even if the warning expires without any further adverse consequences for the employee. The penalty should not be imposed lightly and cannot properly be regarded as a “trifle”. The employee’s constitutional right to a good name is engaged and he or she is entitled to defend that right before the Courts.

However, it also serves as a reminder that employees should engage properly with disciplinary procedures and that if they do not do so, even if they later succeed in a challenge to those procedures, they may be penalised in costs for the failure to engage.

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