For many years employers would be advised that the Court was less likely to reinstate an employee in their position where the employee had been dismissed some years previously. This occurred particularly in the period pre-Workplace Relations Act 2015, where it often took about 3 years for a case to come on for hearing before the old Employment Appeals Tribunal.
The case related in this BLOG concerned, not only a High Court Decision to reinstate an employee who had been dismissed 9 years previously (and actually put on Administrative Leave two years before that), but also where the High Court was affirming the previous Decisions made by the lower Employment Law Tribunals; namely the Workplace Relations Commission (WRC) and the Labour Court to re-instate the employee.
Mr. Justice Cregan delivered his Decision on the 14th July 2023 in the case of AN BORD BANISTÍOCHTA, GAELSCOIL MOSHÍOLÓG Appellant and THE LABOUR COURT respondent, AODHAGÁN O’SUIRD Notice Party.
The Judge commenced his Decision by stating that this case is a shocking story of terrible injustice done to Mr. O’ Suird, where he was obliged to endure this injustice for over 11 ½ years – all because of the unreasonable actions of Ms. Ni Dhuinn, the Chairperson of the Board of Management, and other members of the Board of Management of the school in question.
Summary of Case
On or about the 20th January 2012 , Mr. O’Suird was put on Administrative Leave from his position as principal of the primary school in respect of a single child incident which occurred on 10th January, 2012.
Mr. O’ Suird was teaching first class in the school. He disciplined a pupil (referred to as “Pupil A” throughout the Judgment) in front of the class, who then returned to his seat and deliberately stamped his feet while he did so. Mr. O’ Suird, in response, lost his temper, approached pupil A, banged his table with his fist and physically pulled the pupil towards him by his jumper in order to remonstrate with him.
Mr. O’ Suird accepted that what he did entirely wrong. The parents of the Pupil A subsequently wrote to the school accepting this. They considered the matter to be a minor incident. No one ever sought to challenge the accuracy of his account. Because however a small number of other parents of other pupils in the class made complaints to the Board of Management about the incident – apparently based on what their children had told them – Mr. O’ Suird was placed on Administrative Leave and subsequently suspended in May 2013.
Chronology of Events
Mr. Justice Cregan noted the landmark dates as follows:
- 11th January, 2012 – single child incident (referred to above).
- 20th January, 2012 – Ms. Ní Dhuinn puts Mr. Ó Suird on Administrative Leave.
- 26th January, 2012 – the Board of Management put Mr. O’Suird on Administrative Leave arising out of the single child incident;
- 13th March, 2013- the Board of Management decided to keep Mr. O’Suird on continued Administrative Leave for reasons identified in its investigation into enrolment figures;
- 29th May, 2013 – Ms. Ní Dhuinn, Chairperson of the Board of Management, writes setting out allegations against Mr. O’Suird and suspending him on full pay;
- 5th November, 2014, 8th April, 2015, 3rd June, 2015 – three days of Disciplinary hearings before the Board of Management;
- 31st August, 2015 – letter dismissing Mr. O’Suird from the school with effect from 30th November, 2015;
- – 9th November, 2015 – hearing before the Disciplinary Appeal Panel (which Appeal was dismissed);
- 30th November, 2015 – Mr. O’Suird was dismissed;
- 8th February, 2016 – Mr. O’Suird makes complaint of Unfair Dismissal to the Workplace Relations Commission;
- June 2016 – the post of Principal of the school was advertised;
- 1st July, 2016 – new Principal appointed to that position;
- 4th December, 2017 – hearing before the WRC;
- 25th April, 2018 – WRC issues a finding that Mr. O’Suird had been unfairly dismissed and directed re-engagement with effect from 1st January, 2018;
- 15th June, 2018 – the Board of Management appealed the decision to the Labour Court;
- November 2018 – July 2021 – eleven days of hearings before the Labour Court;
- 3rd June, 2022 – Labour Court decision that Mr. O’Suird had been unfairly dismissed and directing reengagement with effect from 1st September, 2017;
- July 2022 – Appeal to the High Court by the Board of Management from the Labour Court decision;
- 27 March – 29 March 2023 – Hearing before High Court
Procedures had been negotiated between the Department of Education and the Teachers’ Union with regard to dealing with Disciplinary matters concerning teachers or the Principal of a school and these are summarised in Circular 60/2009. In summary, it directs that the Board of Management would act reasonably in all cases, when deciding on appropriate Disciplinary action. The nature of the Disciplinary action should be proportionate to the nature of the issue of work or conduct issue that has resulted in the sanction being imposed.
Administrative Leave and subsequent Suspension
Mr. Justice Cregan found that the Board of Management placed Mr. O’ Suird on Administrative Leave without hearing his side of the story. It was an enormously draconian step to take and had severe consequences for his reputation in the locality. He also found that the Board had concealed critical evidence, where the Solicitor for the parents of Pupil A had written to the Board of Management stating that his clients regarded the particular incident as minor and were satisfied with Mr. O’ Suird’s handling of the issues. No response had been issued by the Board to that letter, despite subsequent reminder.
Despite this, Ms. Ni Dhuinn referred the matter to the HSE, but the HSE stated that the incident could not have constituted physical abuse of a child.
Investigation in January 2013 into the Enrolment Figures
Subsequently Ms. Ni Dhuinn was informed by a teacher in the school that there had been a number of concerns about enrolment figures in the school and overstatement of numbers and returns to the Department in 2009. Ms. Ni Dhuinn, without seeking Mr. O’ Suird’s response to this, subsequently wrote on the 1st January 2013 to Mr. O’Suird alerting him to her investigation into this, stating that this could be fraudulent misrepresentation and notified him of a formal Disciplinary Hearing scheduled for the 22nd June.
In advance of that meeting however Ms. Ni Dhuinn also wrote a further letter dated 29th May 2013 to Mr. O’ Suird advising him of her intention to investigate other serious issues, including the single child incident and other issues alleging mismanagement of the school. All of this occurred without seeking to get his response in the first instance. He was informed that he would now be formally suspended (as opposed to being on Administrative Leave).
The Disciplinary Hearing
Despite being notified of investigations into other matters, the Disciplinary Hearing proceeded on the sole allegation of the alleged exaggeration of enrolment figures. Very importantly (and subsequently found to be incorrect), it was alleged that Mr. O’ Suird benefitted from this by an increase in his wages.
Despite evidence from members of the Board of Management back in 2009 that, where such figures might have been interpreted as being exaggerated (and this was by no means certain), this was authorised by the Board, the Chair of the Disciplinary Hearing (a member of the Board of Management) subsequently issued a Decision dismissing Mr. O’ Suird. While Mr. O’ Suird appealed this Decision, his Appeal was dismissed.
Mr. Justice Cregan stated that, for the events to be characterized as a fraud or fraudulent misrepresentation is a gross distortion of the truth by Ms. Ni Dhuinn and also by the Chairman of the Board of Management Disciplinary Panel. The evidence clearly showed that the enrolment of pupils in schools back in 2009 was a “grey area”; there was conflicting evidence given by the Department’s Circulars and the provisions of the Education (Welfare) Act 2000. The Principal was obliged to return the number of pupils actually enrolled in the school to the Department, even if they were not attending at the end of September of each year. This was what Mr. O’ Suird had done. The situation was so confused that the Department had to issue a new Circular in 2013 (Circular 28/2013).
Decisions of the WRC and the Labour Court
Both the WRC and the Labour Court were satisfied that no reasonable Board of Management could have come to a decision to dismiss Mr. O’ Suird for gross misconduct, based on the evidence which was before it. Ironically, the dismissal letter made no finding of fraud against Mr. O’ Suird. Mr. Justice Cregan’s comments at paragraph 265 of his Judgment were damning:
“In my view, the entire hearing, including the failure to furnish a comprehensive report as required by the rules, the failure to fairly and reasonably assess the evidence, the continued concealment of evidence, the tainting of the hearing with other allegations, the false allegation that Mr. Ó Suird profited from the process – amounted to an abysmal failure by the chairperson of the Board of Management and the Board of Management disciplinary panel. It was nothing short of a travesty. It is no wonder the Labour Court found the decision unreasonable”.
At paragraph 386 of his Judgment, Mr. Justice Cregan stated:
“……………..There is no doubt in my mind that Ms. Ní Dhuinn and the Board of Management were determined to get rid of Mr. O’Suird on any pretext. They exaggerated the charges, they suspended him without reasons, they ignored all the evidence he presented, they suppressed evidence and they never gave him a fair hearing”
At paragraph 422 Judge Cregan commented:
“At its height, the most that could be said is that he made a return to the Department of nine pupils who were validly enrolled at the school, but who were not in attendance at the school as at 30th September, 2009”.
The Judge stated that the proper order to be made in this case is for the immediate reinstatement of Mr. O’Suird to his position of principal with effect from 30th January, 2013 (i.e. the date on which his administrative leave should have ended) – with full preservation of his salary and pension entitlements.
Effect on Mr. O’ Suird and the School
Noting earlier in his Judgment (paragraph 280 on page 95) the impact which all of this had had on Mr. O’ Suird, his wife and family, at paragraph 445 of his Judgment, the Judge stated, with reference to the actions of Ms. Ni Dhuinn and the Board:
“Their disastrous and unreasonable misjudgments removed the leadership of the school and left it without its founding principal for a number of years; their misjudgments have now created a situation where the school might have two principals; their misjudgments have exposed the school to the significant costs involved in these proceedings; their actions have resulted in enormous damage to Mr. Ó Suird’s reputation by making utterly unfounded allegations of fraud and dismissing him; their actions have also damaged the great progress the school had made between 2002 (when the school opened) and 2012. Ms. Ni Dhuinn was made chairperson of the Board of Management in December 2011. Within weeks she had destroyed all the work done by her predecessors. It is a shocking legacy”.
In dismissing the Appeal made by the Board of Management to the High Court, Mr. Justice Cregan concluded his Judgement by stating:
“The least Mr. Ó Suird can expect is that his name be cleared, his reputation restored, and that he is re-instated to his former position. Mr. Ó Suird is entitled to walk back through the front gates of the school with his head held high and to resume the position of which he was so wrongfully deprived eleven years ago”.
And the matter does not end there!
Despite an application by the Board of Management before Mr. Justice Cregan seeking a Stay on the Judge’s Order pending an Appeal and the Hearing of this Application and subsequent second Judgment of Mr. Justice Cregan delivered 3rd August 2023 refusing the Application for a Stay, it is understood that the Solicitors for the Board of Management (despite the fact that the Board was dissolved on the 16th August 2023) have since filed an Application seeking Leave to appeal the Judge’s decision to the Supreme Court.
For further information on Employment Law Claims you should contact:
Morgan McManus Solicitors
Have you read our Employee Guide – “7 Immediate Steps to take if you are involved in a Workplace Dispute?” – Employee-Guide-7-Immediate-Steps-to-take-if-you-are-involved-in-a-Workplace-Dispute.pdf (morganmcmanus.com)