In the High Court case of Mary McEnaney v Cavan and Monaghan Education and Training Board and Martin O`Brien 19/9/2014,  IEHC 423, 2013 651 JR the applicant teacher claimed that her employer was obliged to complete in full the Disciplinary procedure which had been started against her and could not change course during that process. Not so, said the High Court; not in a situation where circumstances demonstrated that the application of the formal procedure would be inappropriate.
The applicant was a permanent whole-time teacher of Home Economics and Science with the first named respondent at Largy College, Clones, Co. Monaghan. She challenged the validity of a decision made by the respondents on the 17th August, 2013 to transfer her from teaching duties at Largy College in Clones, Co. Monaghan to St. Mogues’s, Bawnboy, Belturbet, Co. Cavan.
Against a background where it was accepted that a significant number of complaints had been made about the applicant’s teaching performance, the applicant contended that her legitimate expectation that the respondents would apply the procedures set out in Circular 59/2009 in order to determine any complaints regarding her competence was breached by the respondents.
Circular 59/2009 makes provision for an informal process, followed by a formal process. In this case the informal process had only been commenced. In early 2013 the applicant teacher was the subject matter of five complaints made by parents and pupils against her. There was evidence that the Principal of the school, Ms. McGuinness, had been approached by the school chaplain who had received a number of informal concerns from the applicant’s own colleagues regarding her mental health. Those complaints having been made, she was supplied with Circular 59/2009 and was informed that it would apply to her in dealing with the complaints.
The applicant contended that these procedures, although commenced, were never followed in her case. Instead, the respondent referred her for medical assessment by Dr. Robert Ryan, a specialist in occupational medicine attached to Medmark, to determine if the applicant was fit for work. Dr. Ryan ultimately reported that the applicant could be considered medically fit to teach, with the formal Disciplinary process following. The formal procedures for dealing with issues regarding competence were not however invoked. Instead, at a meeting the teacher`s own trade union representative, allegedly without her consent or instructions, suggested that the applicant engage in “team teaching”. The applicant became extremely stressed during this meeting and ultimately wrote a note to her trade union representative stating that she felt “suicidal” and the process, such as it was, was then halted.
THE APPLICANT SOUGHT A TRANSFER AND THEN CHANGED HER MIND
The applicant, on the advice of her union representative, sought a transfer from Largy College. It was intended by all parties that if the transfer went ahead, this would dispose of all the complaints against the applicant. Dr. Ryan stated that this option might offer the applicant a fresh start in a new environment, allowing her to leave historic issues behind her.
Having applied for a transfer on the advice of her trade union, the applicant then withdrew her application for a transfer. Understandably perplexed, the respondents continued to press the applicant to accept a transfer. At a meeting on the 2nd August, 2013, it was made clear to the applicant that she had two options, either to return to Largy College and have a full investigation into the complaints or accept the transfer to Bawnboy where she would be teaching a smaller class.
At a meeting between the applicant and respondent on the 16th August, 2013 Mr. O’Brien, the second named respondent, indicated to her that the option of remaining in Largy College was no longer open to her and that if she did not go to Bawnboy she would be considered as having “walked off the job”. She was informed that she was to be transferred from Largy College to St. Mogue’s post primary school in Bawnboy. The CEO stated that the transfer was being carried out “with due regard to the employer’s duty of care and in the applicant’s best interest”. The transfer was intended to have immediate effect and the applicant was requested to attend at Largy College to remove her belongings. He also said that the principal of Largy College had now been directed to make alternative arrangements for the students previously scheduled to be taught by the applicant for the school year. It was this notification which prompted the Injunction application by the applicant.
THE COURT`S DECISION
Mr Justice Kearns decided that the change from the expected procedure came about entirely as a result of the applicant’s own conduct, decisions and changes of mind. Her actions had exacerbated the difficulties faced by the respondents who had an unusually high number of complaints to deal with insofar as this particular teacher was concerned. In the instant case the respondent found itself in an extremely unusual situation in August 2013 where it had genuine concerns regarding the mental health of the applicant and the impact that was having on the operation and functioning of the school and the applicant’s competence in that regard.
THE DECISION TO TRANSFER THE APPLICANT
The Decision to transfer did not amount to a penalty. Some medical evidence was available to suggest that the applicant might benefit from teaching a smaller class and making a fresh start, freed of the burden of the large volume of complaints which had been raised against her in Largy College.
THE DECISION TO PLACE THE APPLICANT ON ADMINISTRATIVE LEAVE
It would have been quite unrealistic to allow the applicant return to teaching duties in Largy College without a full resolution of the complaints made against her. The interests of the school, its students, and more particularly the applicant herself, required no less. Nor was this a punitive decision. Nor was the suspension punitive.
The judge stated that it was a great pity that the applicant did not avail of the solution which offered both her and the respondents a way out of their difficulties in this case. The provisions of the Circular were singularly inappropriate to address the particular facts of this case.