School Principal Successful in Securing Injunction to Halt Disciplinary Process

In a judgement delivered at the end of 2015, the principal of a secondary school in Galway was granted a temporary injunction preventing the Board of Management from continuing with a disciplinary investigation pending the full hearing of the matter before the High Court at the earliest possible opportunity.

I. Not a “Happy School”

The Plaintiff was appointed as principal of Coláiste Iognáid secondary school in Galway in January 2011 As principal the Plaintiff served as secretary to the Board of Management (“the Board”), attending board meetings in that capacity. The Plaintiff attended a board meeting in March 2015 at it was requested that the Chairperson prepare a report dealing with significant issues of concern in the school. These issues included staff discontent, stress/morale, student morale, student discipline, the ethos and culture of the school and why the school was not “a happy school”.

The report was to be presented to the Board at the next scheduled meeting the following month of April. Although the issues outlined at the March meeting made no reference to the Plaintiff, the resultant report contained a number of negative references to the Plaintiff, including poor relations with parents, dealings with staff, perceived loss of authority with students and disagreements with the Chairperson.

II. April & May Board Meetings

The Chairperson subsequently requested that the Plaintiff not attend the board meeting in April, given the issues raised in the report concerning performance of her duties as principal, and the principal agreed, albeit under protest. The Court noted that it was evident from the minutes of the April meeting that the Board had an in depth discussion of the issues raised by the report, many of which concerned the Plaintiff.

The Board asked the Chairperson to prepare a separate report outlining the issues of concern in relation to Plaintiff, and the Chairperson drafted same and presented it at a specially convened meeting of the Board in May 2015. The report was not given to the Principal at this time.

The Chairperson noted that the Board could not discuss the substance of the concerns as the Principal had to be afforded an opportunity to respond. The Board subsequently concluded at the May 2015 board meeting that the matters set out in the separate report set out a prima facie case that required the concerns contained in the report to be put to the Principal. The board could not however reach a consensus on whether to proceed formally or informally and agreed to meet again in June 2015.

III. June Board Meeting

At the June board meeting the Chairperson outlined to the Board that he saw the issues concerning the Principal as falling into two distinct categories:

1. The perception amongst staff that a serious injustice was done to a member of staff in relation to the principal’s handling of a disciplinary proceeding.
2. Other more general matters of concern relating to the principal’s management of the school.

It was agreed that the Principal’s response should be sought under stage 4 of the applicable formal disciplinary procedure for school principals (see Departmental Circular 60/2009 below).

IV. Completion of Report

In this respect, the Board had considered in some detail, over the course of three separate meetings in April, May and June 2015, allegations made against the Plaintiff, where the Plaintiff was herself excluded from those meetings. The Chairperson finalised his report in July 2015, without having interviewed the principal at any stage in the course of its preparation, and sent it to the Plaintiff with a covering letter in August 2015.

While it was not entirely clear, the Court was satisfied that the Chairperson had opted to interview other personnel. On receipt of the final report, the Plaintiff opted to issue injunctive proceedings to halt the purported disciplinary process on a number of grounds.

V. Departmental Circular 60/2009

The applicable procedures relating to disciplinary procedures brought in relation to performance of a principal’s duties are set out in the Department of Education and Skills Circular 60/2009 “Towards 2016 – Revised Procedures for Suspension and Dismissal of Principals – Section 24(3) of the Education Act (1998)”. The Circular sets out that the procedures are intended to comply with the principles of natural justice.

VI. Plaintiff’s Arguments and School’s Response

The Principal complained that the Board had already considered the July report and made findings prior to the disciplinary hearing that is meant to follow the delivery of the Chairperson’s report. As those findings had been made without her input or involvement, she claimed that it would not then be possible for her to challenge the findings of the report.

The Principal asserted that she was entitled to participate in the investigation process in accordance with the fair and impartial examination of the issues envisaged by Circular 60/2009.

While the Principal accepted that she was in effect seeking a mandatory injunction, and that she therefore had to establish a strong case that she would succeed at trial, she noted the judgement of Hogan J in Wallace v Irish Aviation Authority where he suggested that the Campus Oil principles may require refinement in appropriate cases, and that those principles are designed to be flexible and capable of being adapted to the specific circumstances of a given case.

The Plaintiff submitted additionally that damages would not be an adequate remedy considering the reputational damage she would suffer should she be dismissed and, relying on O’Sullivan v Mercy Hospital Cork Ltd, argued that any inconvenience caused to the Defendant by the granting of the injunction sought would be short term and alleviated by the willingness of the Plaintiff to cooperate both in relation to attaining the earliest possible trial date and participating in an investigation process that would confirm her rights to fair procedures and natural justice.

For its part, the Defendant denied that any findings had been made. Members of the Board swore affidavits to the effect that no board members made or expressed any determinations or findings of fact averse to the Principal during the meetings of March, April, May and June, and that the Board was very careful not to do this, being mindful of the importance of adhering to the necessary procedures.

The Defendant submitted additionally that even if there had been any defect in the processes applied, there were significant safeguards and alternative remedies provided for in Circular 60/2009.

In light of same, the balance of convenience did not favour the Plaintiff.

VII. Decision of the Court

Binchy J approached his decision by looking at whether there had been compliance with the procedures as set out in Circular 60/2009, and agreed that the Circular should be interpreted in a flexible and purposive way, rather than being treated as a statute. Arising from an analysis of the processes followed in relation to Stage 4, Binchy J held the following:

1.  Making of Findings in Report

• Stage 4 of the Circular requires the Chairperson to prepare a “comprehensive report on the facts of the case”.
• The procedure does not envisage the Chairperson himself making findings, this is clear from the requirement that the Board of Management seek the views of the Principal on the writing of the report, following receipt of the report.

2.  Entitlement of Principal to Participate in Report

The Principal is entitled to participate and make submissions once the Board has received the report.

• There is nothing to prevent the Chairperson seeking the views of the Principal in the course of preparing the report, but there is no obligation to do so.
• In accordance with the decision in Minnock v Irish Casing Company Ltd the principles of fair procedures and natural justice do not apply to the investigatory stage, provided that no findings are made other than to determine whether there is sufficient evidence to warrant a formal disciplinary process.

3.  Provision of Report to Principal

• The Chairperson presented the report relating to the performance by the Plaintiff of her duties to the May Board meeting. Strictly speaking, a copy of the report should have been given to the Principal at the same time.
• It was not correct to say that it was necessary for the Board to first consider the report to decide whether there was a prima facie case that merited proceeding any further with the matter. There is no ambiguity about the procedure in this respect.
• Even if the Board decided not to advance an investigation any further after receiving a report from a Chairperson, the Principal would still be entitled to receive a copy of the report, and would most likely want to receive a copy, in case there were “any adverse inaccuracies that a principal would not wish to see left uncorrected or in any way on the principal’s record.”

4.  Board Reaching Conclusions Prior to Receiving Response of Principal

The detailed consideration of the report on at least two occasions by the Board, in the absence of any response from the principal, inevitably led to the possibility that the Board would already have begun to reach conclusions by the time the response of the Principal was eventually received.

This is regardless of any warnings that may have been given by the Chairperson that the Board should not rush to judgement.

The July report contained a number of remarks or comments which could only be regarded as highly prejudicial to the Plaintiff, a number of them in the nature of conclusions, others in the nature of rhetorical questions inviting only an answer negative to the Plaintiff.

It was irrelevant whether what was expressed in the report to be “the views of the board” actually represented the views of the Board. Where an investigator goes beyond mere fact-gathering in order to determine whether there is a case to answer, and makes findings or draws conclusions, then the inquiry can no longer be characterised as a Minnock type investigation.

The views expressed by the Chairperson in the report reflected “very negatively” on the Plaintiff in the performance of her duties, and there was a strong case to say that they went far beyond evidence gathering or formulation of allegations based on the evidence.

Binchy J felt that the circumstances of the case were materially similar to those that gave rise to relief being granted in Minnock and in McLoughlin v Setanta Insurance Services Ltd.

5.  Ultimately Binchy J held that the Plaintiff had established a strong case that at the full trial of the action she would succeed in establishing that:

• The Chairperson did not proceed with the investigation in accordance with Circular 60/2009, in light of the Plaintiff not receiving the report at the same time it was presented to the Board, and in light of the Board discussing the report at two meetings before the report was given to the Plaintiff; and or,
• The July report contains findings and conclusions made without affording the Plaintiff an opportunity to respond.
• If Circular 60/2009 envisaged making findings as part of a comprehensive statement of the facts, then the Plaintiff would have been entitled to fair procedures and natural justice at that point when the report was being prepared.

Binchy J regarded damages as not constituting an adequate remedy for the Plaintiff due to the reputational damage she would suffer should be dismissed from her employment. In terms of the balance of convenience, Binchy J stated that while it was clear that an investigation of this nature was very disruptive to the orderly running of the school, he was nevertheless satisfied that the balance of convenience lay in favour of granting the injunction.