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Inconsistent policies and procedures criticised in decision of the High Court

In the recent decision of Ms Justice Deirdre Murphy in the case of Dillon v The Board of Management of Catholic University School, Mr Dillon, a former teacher at the fee paying Catholic University School (“School”), was entitled to an order quashing the board’s finding that he engaged in inappropriate behaviour and language towards the student.

Background

The proceedings centre around an incident which occurred on 8th May 2014 in which Mr Dillon is alleged to have called a male student of his a ‘little bitch’ and a further incident that occurred with the same student on Friday 9th May 2019.

The student’s mother called the School on Monday 12th May 2014 to register a complaint against Mr Dillon and subsequently applied pressure on the Board of Management (“BOM”) to investigate, which the BOM duly did and disciplined Mr Dillon. Mr Dillon denied making the remark on 8th May 2014.

Mr Dillon applied to the High Court to quash the outcomes of both the investigation and disciplinary stages. In order to do this, Mr Dillon applied to the High Court seeking various orders against the School’s BOM. The two most pivotal orders would quash:

  1. the BOM’s finding in the complaints procedure that he had engaged in “inappropriate behaviour and language” in the incident with the student (the investigation stage); and

Decision of the High Court

Due to the very specific facts at play in this case there was a complex clash between private and public law. In 2000, a new complaint procedure and disciplinary procedure were introduced by agreement between the teachers’ union and BOMs. The High Court noted that these were “parallel, complementary procedures which dovetail each other”. The procedures were a matter of private law, the law of contract and were therefore not capable of being judicially reviewed.

In 2009, a new disciplinary procedure but not a new complaint procedure was introduced by the Department of Education Circular. This brought the disciplinary procedure for teachers “out of the private law area and into the public law area” and so was capable of being judicially reviewed. There was a blatant disconnection between the two procedures which the High Court notes in its decision and encouraged the trade union and the BOM to change the 2000 complaints procedure so that it reflected the revised 2009 disciplinary procedure.

In light of the above, the High Court held that as the complaints procedure was a private law, contractual matter between Mr Dillon and the BOM and could therefore not be judicially reviewed. As a result, the High Court refused to quash the finding that Mr Dillon had engaged in inappropriate behaviour.

In contrast, the High Court quashed the final written warning letter issued to Mr Dillon finding that Mr Dillon was denied a proper disciplinary procedure and his own reluctance to engage in that procedure was not sufficient to validate an invalid process. The High Court concluded that there was “no presumption of innocence” at the disciplinary hearing, taking issue with the fact that the hearing was held by two people from the BOM. The High Court concluded that “[t]o put it mildly, this does not meet the standards of an impartial inquiry.

Note to employers

Despite the very specific scenario in this case where there is a clash between public and private law, all employers should be mindful when updating any workplace policy or procedure to ensure that any changes made do not have an adverse impact on other existing workplace policies and procedures. It is clear from the decision of the High Court that workplace policies “dovetails with other established procedures”. Employers seeking to implement inconsistent policies and procedures will encounter serious difficulties when seeking to apply them.

 Link

20th December 2019

Anne O’Connell Solicitors

Fitzwilliam Hall

Fitzwilliam Place

Dublin 2.

www.aocsolicitors.ie

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