C.D. v The Board of Management of a National School [2019] IEHC 819 (04 December 2019)

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JUDGMENT of Mr. Justice Barr delivered on the 4th day of December, 2019

1. The primary relief sought by the applicant is an Order of certiorari by way of judicial

review quashing the decision of the respondent to dismiss the applicant from her position

as principal of a particular national school and as a teacher at that school, which decision

was made by the respondent on 14th March, 2018 and communicated to the applicant by

letter dated 16th March, 2018. Due to the fact that the core allegations against the

applicant concerned allegations of inappropriate behaviour towards two pupils, and as the

school in question is a very small national school in a rural setting, and as it will be

necessary to look at the allegations in some depth later in this judgment, the Court has

decided to anonymise the judgment, so as to protect the identity of the parties and more

2. The applicant, who has been identified above by the letters “C.D.”, which are not her

actual initials, was the principal of a small rural national school until the Board of

Management of that school decided, following a disciplinary process, that she should be

dismissed from her position as both principal and teacher at the school. The school in

question is very small. It had 20 students, two teachers, a special needs assistant and

someone who covered the joint role of secretary/special needs assistant, at the time of

the matters complained of herein. The people centrally involved in the incidents giving

rise to the allegations, will not be identified by name in this judgment. They will be

3. The applicant held the role of principal and was also one of the two teachers in the school.

Certain allegations were made against her by the special needs assistant (hereinafter

“SNA”), in a statement which was furnished by the SNA to the chairperson of the Board of

Management on 25th March, 2016. Thereafter, an investigation process was put in place

which culminated in a disciplinary hearing held on 21st February, 2018. Following that,

the respondent reached the decision that the applicant should be dismissed from her post

as both principal and teacher, which decision was communicated to her by letter dated

16th March, 2018. The applicant appealed that decision to the Disciplinary Appeals Panel

(hereinafter the “DAP”), which found in her favour and issued a recommendation that she

should be immediately reinstated to her position as principal. However, in a written

response dated 27th June, 2018, the respondent declined to follow the recommendation

of the DAP and confirmed its decision to dismiss the applicant. This entire procedure will

4. The kernel of the applicant’s case is that the investigation process leading to the decision

to dismiss her and the subsequent rejection by the respondent of the recommendation of

the DAP, was fundamentally flawed, such that the Board arrived at a decision which was

legally indefensible. It was submitted that the Board’s decision was irrational,

unreasonable and unlawful. The applicant has challenged the validity of the process

whereby she was put on administrative leave as and from 6th April, 2016. She

challenged the validity of the decision to invoke the Stage 4 disciplinary process pursuant

to circular 60/2009, which set out the procedures for suspension and dismissal of

principals. However, the core of the applicant’s argument was that the decision to

dismiss her was irrational and unreasonable because the respondent failed to give any, or

any adequate, reasons why they had reached that decision. She maintained that there

had been no proper evaluation of the evidence for and against the allegations levelled

against her, nor had she been told what allegations had actually been found as having

been proven against her. In these circumstances, it was argued that the decision was

bad at law for failure to give reasons for it. Finally, it was argued that the rejection of the

recommendations of the DAP by the respondent was bad in law having regard to the

established case law as to the circumstances where a Board could lawfully depart from

5. The respondent’s response can be summarised in the following terms: it was submitted

that having regard to the nature of the allegations made by the SNA on their face, it was

reasonable, appropriate and indeed mandated by child protection requirements, that the

respondent should place the applicant on administrative leave while the matter was being

investigated. It was submitted that it was appropriate to invoke the Stage 4 process,

given that the allegations were serious and were hotly disputed by the applicant and

therefore had to be investigated in a thorough manner. In addition, given the range of

possible sanctions up to and including dismissal, it was appropriate to invoke the Stage 4

process. In relation to the allegation that the respondent failed to give adequate reasons

for its decision, it was submitted that the Court should take account of the fact that the

Board of Management of the school was made up of ordinary people taken from various

walks of life, who did not have any legal training or experience, nor any experience in

industrial relations matters. It was submitted that it was against this background that the

Court had to look at the adequacy of the reasons given in the latter dated 16th March,

2018. In addition, the Court was urged to have regard to the fact that the reasons set

out in that latter, had to be seen in the context of the very thorough investigation that

had been carried out by an independent investigator, Ms. Eileen Flynn, on behalf of the

chairperson of the Board, together with the holding of a detailed and fair disciplinary

hearing. It was submitted that if the Court had regard to the entirety of the process from

start to finish, the reasons justifying the dismissal of the applicant were abundantly clear.

6. Finally, the respondent argued that under circular 60/2009, the respondent was entitled

to reject the recommendations of the DAP. This it had done for good reasons, which were

set out clearly in their response dated 27th June, 2018. In these circumstances, it was

submitted that the decision of the Board to dismiss the applicant was justified on both the

7. Given the range of complaints made by the applicant concerning the entire investigation

and disciplinary process engaged in by the respondent, it is necessary to set out the steps

8. The applicant qualified as a primary school teacher in 1986. After working in a number of

posts, she was employed as a teacher at the respondent’s school in 1996. In 1998 she

became principal of the school. As already noted, it was a two teacher school, with the

9. In September 2015, a new special needs assistant arrived at the school. She had been

an SNA for approximately 20 years by that time. She maintained that in the weeks and

months after her arrival at the school, a number of incidents occurred involving

interaction between the applicant and two of her students, which caused her considerable

concern. The first student was a young girl of 4 years of age, who will be referred to as

“child A”. The second student was a young boy of 9 years of age, who will be referred to

10. The SNA did not raise any of these concerns directly with the applicant. Instead, on 22nd

March, 2016, she telephoned the chairperson of the respondent Board of Management

(hereinafter “the chairperson”) and verbally outlined a series of allegations against the

applicant. She met with the chairperson three days later on 25th March, 2016, at which

time she handed him a typed statement containing a large number of allegations against

the applicant. It is difficult to be precise in relation to the exact number of complaints

made against the applicant, because some of the complaints are repetitious and overlap

one with the other. However, doing the best that I can with the documents before me,

there were approximately 17 allegations concerning the applicant’s treatment of child A,

11. Upon receipt of these allegations, the chairperson took advice from a number of sources

including: the school’s solicitor, the school’s insurers, the governing body for the school

and from the Department of Education. He also referred the matter to Tusla on 4th April,

2016. On 6th April, 2016, the applicant was placed on administrative leave.

12. By letter dated 23rd September, 2016, the chairperson was informed by Tusla that they

had concluded their assessment and that in their view, “the evidence and information

does not reach our threshold for the Social Work Department to remain involved in these

cases. Therefore I will be closing both children’s files to the Social Work Department.”

The chairperson communicated the result of the Tusla investigation to the applicant.

13. From the time that the applicant had been first made aware of the allegations made

against her by the SNA, the chairperson had engaged with the applicant’s union

representative. When the result of the Tusla investigation was communicated to the

applicant, her union representative requested the respondent to downgrade the

investigation from a Stage 4 disciplinary process under circular 60/2009 to a more

informal disciplinary process. The respondent refused to do this. The respondent

continued to process its own disciplinary procedure in relation to the matter. To that end,

the respondent proposed engaging an independent expert, Ms. Eileen Flynn, to prepare a

report on the matter, in lieu of the chairperson doing so, which would be submitted to the

14. Initially, the applicant, through her union representative, objected to this course of action

being taken. There was considerable correspondence between the applicant’s union

representative and the chairperson on the matter. Eventually the applicant consented to

Ms. Flynn carrying out an investigation. There was further correspondence in relation to

the terms of reference under which Ms. Flynn would carry out her investigation and

report. The applicant’s union representative was particularly concerned that Ms. Flynn’s

report would “not make any finding, issue any recommendation or make any decision in

relation to the complaint”. It was agreed that she would report on that basis.

15. In the weeks and months following November 2016, Ms. Flynn carried out a number of

interviews with relevant persons, being: the SNA; the applicant; the second teacher at

the school; the secretary/SNA; the learning support teacher and a religious person, who

had attended the school when one of the incidents was said to have occurred. She also

furnished a plan of the school premises and a number of photographs of a particular locus

and copies of drawings done by one of the children. Ms. Flynn compiled an interim report

on 24th April, 2017. This was sent to the applicant for her comments. After receiving

those comments, Ms. Flynn issued her final report on 8th May, 2017. That report was

more in the nature of an information gathering report, as it just dealt with each allegation

in turn and set out extracts from the various interviews where the interviewees had given

their views on the allegations. It did not reach any findings or make any

16. Following receipt of the Flynn report, the respondent proceeded to set up a disciplinary

hearing. There was considerable correspondence between the chairperson and the

applicant’s union representative concerning procedures to the adopted at the hearing.

The disciplinary hearing was ultimately held before the respondent on 21st February,

2018, in a hotel near the school. The hearing commenced at 16:00 hours. Ms. Flynn was

present at the respondent’s request. The applicant was present, along with two union

representatives. The chairperson and five members of the Board were also present. Ms.

Julie O’Leary B.L. was present on behalf of the firm of solicitors who were advising the

Board of Management. There is some confusion as to the exact role which Ms. O’Leary

B.L. had at that hearing. In an affidavit sworn by the chairperson on 16th November,

2018, he stated that she was there as an “observer/note taker”. It was stated that her

only role was to intervene to stop people shouting or raising their voices from time to

time. However, in a submission made to the DAP, the chairperson explained the reason

why Ms. O’Leary B.L. had been at the disciplinary hearing in the following terms: “The

Board wished to have a legal advisor present in the event that any advice was required on

17. The hearing itself went on over a number of hours. For the purpose of deciding on the

allegations, the Board was made up of five members being: two parents’ representatives,

two community representatives and a representative of the patron of the school. As it

happened, the mother of one of the children involved, was also on the Board of

Management at that time. However, she did not take part in any discussions or

consideration concerning the allegations made against the applicant. The chairperson,

while being present at the disciplinary hearing, did not participate in the deliberations, or

cast any vote on the final decision in relation to the allegations.

18. The hearing commenced with an opening statement by the applicant’s union

representative. She then carried out a detailed cross-examination of the complainant

SNA. That lasted for almost two hours. The Court has had the benefit of a note of that

cross-examination, as drawn up by one of the union representatives. However, it was

accepted that it was not a complete note of all the evidence given at the hearing.

19. Evidence was also given by the second teacher in the school and by the secretary/SNA,

who were called on behalf of the applicant. Finally, the applicant read out a very detailed

statement in response to the allegations that had been made against her. That took

approximately two hours to read out. In all, the disciplinary hearing lasted approximately

20. It is not entirely clear to the Court when the Board sat down and looked at the evidence

which had been put before it in Ms. Flynn’s report and at the disciplinary hearing. There

are no minutes which record that the Board actually sat and considered the allegations

and the evidence in a collective manner. There are however two minutes of Board

meetings subsequent to the disciplinary hearing, which are of relevance.

21. The Court was furnished with the minutes of a meeting of the Board of Management held

on 5th March, 2018, at 20:00 hours. That was described in the minutes as being “a short

meeting”. The minutes recorded that the chairperson thanked the members for their

attendance, in particular as the meeting had had to be rescheduled to accommodate one

member of the Board. The chairperson explained that as only five members of the Board

would have a vote, it was important that those particular members would be present at

all meetings. It should be noted that present at that meeting was the second teacher,

who was then acting principal, but she did not attend any meeting where there was

consideration of the disciplinary allegations, so it is unlikely that there were any

22. Those minutes go on to record that the applicant was going to send in further appendices

to her statement and the chairperson stated that he would forward those to the Board

members once he received them. The minutes go on to record that the chairperson

explained that once the hearing was over and the written statement was received from

the applicant, the Board had an obligation under the disciplinary procedures to make a

final decision in the matter. He stated that such a decision could not be delayed

indefinitely. It was recorded that the chairperson told the members that he had spoken

to their legal advisor and that a meeting of the Board of Management would take place on

Wednesday 14th March, 2018. He explained that he would not be able to chair the

meeting on that occasion, but that Julie O’Leary B.L. would be available via Skype. Those

minutes were signed by the chairperson. It does not appear therefrom, that there was

23. The only other minutes of a Board meeting after the disciplinary hearing were the minutes

of a meeting held on 14th March, 2018, at 20:00 hours. Again, the second teacher and

acting principal was present at that meeting, although she would not have any vote or

participate in any deliberation on the disciplinary issues. As this meeting is important, it

is appropriate to quote the relevant part of the minutes in full:

The chairman thanked the members for their attendance and then connected the

Julie O’Leary though Skype, briefed the members prior to the vote.

The eligible members voted one at a time while the other voters left the room. They

The chairperson then entered the same classroom alone and was instructed by Julie

O’Leary to open the votes one at a time and call out the result to her.

Once this took place and she had duly noted the result of the vote she instructed

the chairman to inform the board of management of the result, instruct them on

the importance of the confidentiality of the result of the vote and then to close the

24. Given the importance of this meeting, it is relevant to note that a memo was prepared by

“I observed the meeting of the board of management of [name of school redacted]

All the board members were present in the same room at the beginning of the

meeting. I reminded them about the stages of the disciplinary process that had

already taken place, and their role as decision makers. I reminded them of the

purpose of the secret ballot which had been agreed as the decision making process.

I read them some relevant extracts from the disciplinary procedure and reminded

them of their duties to act reasonably, proportionately and fairly. I reminded them

of the purpose of the investigation and hearing. We discussed the need to give

reasons for their decision. I reminded them of the range of sanctions available to

I then observed that the board members left the room and each of the voting

members entered individually to write their decision in secret. These were placed

When this had finished, [the chairperson] entered the room on his own and read

each of the votes to me. All five voted for dismissal, giving various reasons. I

advised [the chairperson] to retain the ballot papers and to ask the board of

25. By letter dated 16th March, 2018, the applicant was informed of the outcome of the

disciplinary investigation. In his letter, the chairperson outlined the general background

to the investigation and informed the applicant that the Board of management had met

on 14th March, 2018, in order to cast a vote on the outcome of the disciplinary hearing.

There was no mention of the meeting held on 5th March, 2018. She was informed that

the decision of the Board had been reached by secret ballot process which had been

overseen by Julie O’Leary B.L. via Skype. Having identified the members of the Board

“I write to confirm that the outcome of such secret ballot was five votes stating that

your employment be terminated with zero votes stating anything to the contrary.

Each member of the board was asked to include a reason for the decision made by

them and the wording of each anonymous decision is set out hereunder verbatim:

1. Dismissal – after hearing the witness and reading the report I am of the view

that [named redacted] should be dismissed for gross misconduct, I believe

2. I have listened to all of the evidence and because of that my vote is

3. Having listened to the various points put forward and take them points into

4. Dismissal. From the hearing and report I find there to be grounds of gross

Consequently, it is the decision of the board of the management of [name of

school] to notify you of its intention to terminate your employment by reason of

26. The letter went on to inform the applicant of her right to appeal to the disciplinary appeals

27. The applicant exercised her right to appeal to the disciplinary appeal panel and both she

and the respondent submitted comprehensive further submissions to them. The DAP held

an oral hearing on 6th June, 2018. On 13th June, 2018, the DAP came to a number of

unanimous conclusions which were critical of various aspects of the disciplinary procedure

carried out by the respondent. Their conclusion was that a case had been established by

the principal. They recommended to the respondent that the applicant should be

28. Finally, by letter dated 27th June, 2018, the five members of the respondent who had

voted to dismiss the applicant, set out their reasons why they were rejecting the

recommendation of the DAP. This letter contained a detailed statement of the reasons

why the respondent was rejecting the recommendation of the DAP. It ran to five typed

29. As already noted, the SNA made a total of approximately 17 allegations against the

applicant in relation to child A and approximately 6 allegations in relation to child B. It is

not intended to set out each of these allegations and the applicant’s response thereto, but

instead to give a brief summary of some of the more major allegations, together with the

applicant’s response to those allegations and surrounding evidence on the matter, for the

purpose of demonstrating the disputed issues of fact on which the respondent had to

reach a decision before it could come to the conclusion that the applicant should be

dismissed. This is relevant in relation to the core argument made on behalf of the

applicant to the effect that the respondent’s decision to dismiss her is bad in law due to

the fact that they did not state any, or any adequate, reasons for the dismissal.

30. Perhaps the most serious allegation made by the SNA was to the effect that on one

afternoon, when the children were in the hall preparing for a flag acceptance ceremony,

which was to take place two days later, and while the SNA was in the adjoining junior

room doing some laminating of documents, she stated: “[a]ll I could hear from [child A]

for the entire 30 minutes was stop, you’re hurting me, let go”. The SNA stated that later

when they were in the classroom the child came to her and said that “teacher hurt her”.

The SNA told the child that she must tell her mother if someone hurt her.

31. In her response to that allegation, the applicant denied the allegation completely. She

stated that it was absolutely implausible to suggest that when she was in the hall with 16

other pupils and two other teachers, being the second teacher and the learning support

teacher, that she could have physically assaulted or hurt child A. She stated that she

would never physically assault any child in her care. She further pointed out that the SNA

was not even in the hall, but was in another room laminating documents. She doubted

whether it would have been possible, given the location of the children in the hall and the

general noise being made by them, and the location of the SNA at the laminating machine

in the adjoining room, for her to have heard any such comment being made by child A.

32. At the disciplinary hearing, the SNA was asked why, if she had heard such comments

being made over a 30 minute period, she did not go into the hall to investigate what was

been done to the child. She stated that she did not do so, as there were other teachers in

the hall at the time. She confirmed that child A did not identify the applicant as the

person who had hurt her, but she stated that when the child said “teacher hurt me”, she

33. Important evidence was given at the disciplinary hearing by the second teacher, who

stated that she had been in the hall on the day in question, but did not see any physical

abuse of child A, nor hear her making any complaint of being hurt. She further stated

that she had heard child A saying words to the effect “ow, you’re hurting me” on other

occasions, when nobody was near her at all. She would make that comment whenever

she did not like being told to do something, which she did not wish to do. The

secretary/SNA also gave evidence at the hearing to the effect that child A would make

such comments when she was told not to do something that she wished to do, such as

34. In considering this allegation, the respondent also had the benefit of the plan of the

school attached to the report furnished by Ms. Flynn. This showed that the children were

at a distance of approximately 25 feet from their position in the hall to the door leading

from the hall to the junior room. The SNA was stationed approximately 15 – 18 feet from

the door at the far side of the junior room, where she was working at the laminating

35. Finally, the applicant in her statement pointed out that in an interview which the SNA had

with Ms. Flynn on 25th November, 2016, the SNA had acknowledged that child A “can be

wilful and saying ‘you are hurting me’”. The applicant further pointed out that the second

teacher had recalled during her interview with Ms. Flynn on 12th January, 2017, that she

too had been accused by child A of hurting her on one occasion as they entered the

school after lunch. The second teacher stated that child A was not being hurt; rather, she

36. While it is not appropriate for this Court to tell the respondent how it should determine an

allegation made against the applicant, it is entitled to point out that there was a

significant body of evidence which tended to show that this allegation was without

substance. The respondent had a duty to engage with that evidence in a forensic manner

in order to reach a decision on whether the allegation was proven against the applicant.

37. Another allegation made by the SNA was that on Friday 9th October, 2015, she and the

applicant and the learning support teacher took a number of children from the school over

to an exhibition of their drawings, which was being shown in the village square. While

they were looking at the paintings, the learning support teacher returned to the school.

When it was time to return to the school, the children were put in pairs, with the SNA

holding child A’s hand at the front of the line and the applicant took up a position at the

rear of the line. At one point as they were walking back towards the school, child A

slipped her hand from the grasp of the SNA and ran ahead. The SNA ran after her and

caught her. Child A did not want to hold the SNA’s hand, but they went to look at some

hens. She then passed child A to the care of the applicant. Child A was very vocal about

her displeasure at having her hand held. The SNA stated that when they returned to the

school, the applicant later said to her that she would have to apologise to child A’s mother

because she had twisted the cuff of the child’s cardigan and stretched the material. The

SNA stated that child A was sitting at her desk crying. The SNA noted that the cuff of the

38. In response to that allegation, the applicant stated that the incident where child A ran

away from the SNA had occurred in the manner described. She stated that it had been

market day in the village that day and accordingly there was a lot of traffic. Child A had

an aversion to having her hand held. For that reason, a strategy had been put in place

whereby she would allow a teacher to hold the cuff of her cardigan rather than her hand.

The applicant had held the cuff on the sleeve of the child’s left arm. She had walked to

the child’s left between her and the traffic. She accepted that the cardigan had become

stretched, due to the fact that the child had twisted her arm and tried to break away from

her grasp as they returned to the school. She stated that she did make a comment about

possibly stretching the cardigan to the SNA and that she would have to report that to the

child’s mother. She did so when the mother came to pick up the child at the end of the

school day. The child’s mother looked at the cardigan and said words to the effect that

there was no need to worry about it. The applicant denied that she had held the cuff so

39. In considering this allegation, the respondent had the benefit of a photograph attached to

Ms. Flynn’s report showing the path along which they walked back to the school. In

addition, the members of the Board, being people from the local area, would have had

40. The fact that the applicant held the cuff of child A is not in dispute. The only question for

the Board was whether the applicant held the cuff too tightly, such as to cause red weals

on the child’s wrist and, if such weals did exist, was this due to the teacher holding the

cuff too tightly, or was it due to the child attempting to break free from her grasp.

41. The Board would also have to consider the safety aspects of this case. Child A was four

years of age at the time. Being that age, she would have been of a height of

approximately 1 – 1.2m. She had already run away from the SNA. If a child of that

height emerges out from between parked cars, an oncoming car driver simply will not be

able to see the child in time to brake. This would mean that if the child had run out from

between parked cars, she would have been hit at whatever speed the car was driving at,

that would probably have thrown her into the air, with a good chance that she would have

struck her head against the road surface or the pavement. Given the child’s age, she

would likely have suffered a skull fracture, with possible consequential brain injury.

Anyone who has seen the effects of an acquired brain injury on young people, as this

Court has done in the course of its personal injury work, will know that the effects of such

42. In these circumstances, given the risk of such serious injury, many parents would

probably prefer that if necessary, their child’s cardigan cuff should be held tightly, rather

than allowing them to break free and suffer possible serious injury as a result of running

away from the teacher. However, this again is a matter which had to be weighed in the

balance when the respondent considered whether the applicant had been guilty of

43. A further allegation arose out of an incident which was said to have occurred on 1st

March, 2016, however the SNA later ascribed it to a different date. The SNA alleged that

on 1st March, 2016, child A showed her her hand, which had “four chunks out of it”.

Upon questioning, the child stated that the applicant had done it to her. She stated that

the applicant subsequently said to her that “she had ‘got caught’ in her hand”. The SNA

stated that later the applicant was photocopying, while the SNA was sitting at the

computer next to her, when child A came up to the applicant to show her a picture; she

saw the applicant stand on child A’s toes and demand that she sit down. In her later

account concerning the same incident but ascribed to the week of 7th – 11th March,

2016, she stated “I saw teacher ‘stand on her toe and say get back to your seat’. I would

like to say that the toe standing was an accident but I didn’t hear any apology and I do

feel it was on purpose”. In a later account, the SNA stated that having stood on child A’s

toes, the applicant then proceeded to kick the child’s foot away.

44. In her response, the applicant stated that she recalled the morning of 1st March, 2016,

very clearly. She stated that child A had been playing in the yard with two sticks, which

the applicant told her to put away as they were sharp. Child A was not happy about this,

but she did as she was told. They then came in out of the yard and the children were put

tracing pictures of the local area. Child A selected a difficult picture to trace over. For

this reason, the applicant stated that she sat down beside her to help. While child A held

the tracing paper in place with her left hand and traced over the drawing with a pencil in

her right hand, the applicant helped her by holding the top of the pencil.

45. The applicant stated, child A “suddenly turned to tell me something and my broken nail

on my little finger on my right hand lightly rubbed against the back of her right hand

causing a faint white mark which faded immediately. I said sorry and asked if she was

okay. She said she was. There was no scratch, and the skin was not broken. I asked if I

could finger – kiss her hand better. She said ‘yes’ I kissed my index finger and placed the

kiss where the faint mark had been. By this time, it had faded completely. We continued

to trace. [Child A] got upset when I got up to check on the other children as she couldn’t

complete the tracing without me.” The applicant further pointed out that the SNA had

been inconsistent in her allegation, both in relation to the date when it was alleged to

have occurred and in relation to the alleged injury to the child’s hand, which she variously

described as “chunks out of the hand” and “five scratches to the hand”.

46. In relation the allegation that she had stood on the child’s toes, the applicant stated that

the SNA had most unfairly misrepresented what had happened on 1st March, 2016. She

stated that the photocopier was in the administration part of the classroom. She was

unaware that the child had come up behind her and she accidentally stepped back onto

the toe of the child’s shoe. She stated that she immediately turned around to her,

concerned that she might be hurt, and said sorry and asked if she was all right. The child

nodded. She told her to sit down and that she would come to her. She stated that she

had not stood on the toe of the child’s shoe on purpose. It was purely an accident. She

47. The applicant stated that she was taken aback to read the further allegation, which was

not contained in the original statement provided by the SNA, but was stated in her

interview with Ms. Flynn on 25th November, 2016, to the effect that she had kicked the

child’s foot sideways. She stated that she rejected that allegation completely. She took

great exception to the allegation that she would kick a child. She stated that she had

never kicked a child and would never do so. She could not understand why, if the SNA

had seen her allegedly kicking the child’s foot on 1st March, 2016, she did not include

that in her statement furnished on 25th March, 2016, but waited until November 2016 to

raise it for the first time in her interview with Ms. Flynn. Again, these were matters which

had to be addressed by the respondent when deciding upon the validity of this allegation.

48. The SNA made a further allegation that child A had been mistreated by being forced to

stand during her lunch break on a number of occasions and that her chair had been

removed, which would have been a very embarrassing and hurtful experience for the

child, as she would have been in full view of all the other children, who were sitting eating

their lunches. In response, the applicant denied that the child had been standing on the

three dates alleged. She stated that on one occasion, the child had been standing for a

portion of her lunchbreak, but this had been at the request of the child herself. The

applicant stated that when she left the room to do an errand, she told the SNA that child

A was standing of her own volition, but that she was not being punished and she could sit

down whenever she wanted. She stated that she was somewhat surprised when she

returned to the room 10 minutes later to find the child still standing. The applicant stated

that she had removed the chair, but she had done so for safety reasons, as child A tended

to swing on the chair, thereby putting herself at risk of falling over. That was the

49. The SNA further alleged that on one occasion when she was on yard duty with the

applicant, she saw child A fall off a small wall on which she had been walking. She stated

that she fell into rose bushes and appeared to be hurt. She stated that when she

indicated that she would go to the child’s assistance, the applicant stated that she should

leave the child be, as she would be looked after by the older children.

50. In response, the applicant stated that child A had in fact fallen off a very low wall

measuring some 18 inches in height. The respondent would have been familiar with the

locus and they also had the benefit of a photograph of the wall attached to Ms. Flynn’s

report. The applicant stated that the child did not fall into rose bushes, which were some

distance away from the wall and could be clearly seen in Ms. Flynn’s photograph. She

stated that the child did not cry and was not hurt. Other older children went over to see

if she was all right. This was something that the teachers encouraged, as it fostered a

caring attitude by the older children towards the younger children.

51. The SNA alleged that the applicant gave negative reports about child A to her mother at

pickup time and as a result she feared that the child would be put under excessive

pressure at home. However, in cross-examination at the disciplinary hearing, the SNA

accepted that she had never been present at pickup time and therefore had not heard any

conversations passing between the applicant and child A’s mother. In her statement, the

applicant stated that she had indeed had regular conversations with child A’s mother at

pickup time. She would report to the mother how her child had got on that day.

However, she denied that she had ever deliberately given bad reports of the child, so as

52. In another allegation, the SNA alleged that on one occasion when child A did not eat

cheese which had been part of her packed lunch, the applicant had retrieved the cheese

from the food waste bin and the child had been “force fed” the cheese. However, in

cross-examination, the SNA accepted that she had not actually seen the child being fed

the cheese, nor had she seen her eating it. In her responding statement, the applicant

stated that she had indeed retrieved the cheese from the food waste bin; she had packed

it in tinfoil and had placed it in the child’s bag, so that her mother would know what food

she had eaten during the day. She had done this as her mother had asked that she be

kept informed as to what food the child did or did not eat, and in particular she was

anxious that the child would be adequately hydrated during the day. The applicant went

on to state that at pickup time she spoke to the child’s father and told him that she had

not eaten the cheese. He expressed surprise at this, as it was one of child A’s favourite

cheeses. The applicant stated that the cheese had never been consumed, much less

53. The SNA made a further allegation that the applicant tended to make comments to the

class in general, which caused them to dislike child A. An example of such comments was

when the applicant told the older children to sit down, because they were giving child A

bad example, or that they should stop doing a particular thing because that was what

child A did and she was very young. The SNA alleged that as a result of this, a “pack

mentality” grew up among the children whereby they tended to blame child A, or dislike

her as a result of these comments. In response, the applicant pointed out that even in

her own statement, the SNA had contradicted herself, when she had stated “these

children are so kind to each other”. She further pointed out that in the Whole School

Evaluation report of 2014 (hereinafter the “WSE” report), the inspector had stated that

the children were “courteous and well behaved”. He also noted that there was a “familial

atmosphere” in the school. The applicant denied that she had ever made any comments

which would have caused the other children to dislike, or resent child A.

54. In a further allegation, the SNA alleged that on one occasion when the school was being

visited by a religious person, the applicant had demanded that child A leave the classroom

and was brought to walk the hall with her. She stated that after some time the applicant

and child A returned to the classroom. The applicant then said to the SNA that she knew

55. In her response, the applicant stated that she had indeed removed child A from the

classroom on that occasion, as she was fidgeting and beginning to make noise. As she

was only five years’ of age at that time, the applicant felt it better to bring her out and

allow her to run off a little steam, so that she could return to the class and sit quietly.

She stated that she whispered to the child that they would go to the hall for a bit of fun.

They then left the classroom and went to into the hall where the child was able to run

around for a little while. They then returned to the classroom and the child was able to

sit quietly and indeed was complimented on doing so by the visitor. She denied that she

56. Finally, there were two further allegations which, while not serious in themselves were

deserving of the Board’s attention. In the first, the SNA alleged that the applicant told

her on one occasion when they were in the yard, that child A had “exposed herself to the

other children”. When she asked what “exposed” meant, the applicant said that child A

had urinated on the playing field. The SNA asked the applicant whether she was going to

explain to child A that such conduct was not in the school rules. The SNA stated that

when the applicant replied “no”, she had a conversation with child A, wherein she

57. In response, the applicant stated that the account given by the SNA entirely

misrepresented what had happened. She denied that she had ever used the term

“exposed”, either on the day alleged, or on any other day. She stated that that word had

negative connotations and was a totally inappropriate word to use to describe an innocent

toileting incident. She stated that the incident occurred early in the school year, perhaps

within the first three or four weeks. During the first weeks in the school year, the junior

infants are instructed about the necessity of using the toilets in a correct manner. They

are reminded and encouraged to go to the toilet throughout the day so as to prevent

58. On the day in question, one of the older pupils came down the steps from the pitch area

and informed the applicant that child A had pulled down her tights and pants and had

urinated on the pitch. She then pulled them back up and ran off to play. The applicant

stated that she made a judgment call not to intervene immediately, as she could see that

child A had resumed playing happily and was oblivious to the incident. As the older child

had reported that child A had pulled down her clothing first, she knew that there was no

wetting issue and therefore no change of clothes was needed. As it was almost time to

call the children back in from yard, the applicant decided to wait until later to speak to

child A privately after they had returned to the classroom, so as to save her

embarrassment. She did not document the incident, as she felt that it would have been

unfair to demonise a child for getting “caught short” while in the playground. The

applicant stated that, while they were in the yard, the incident was discussed a few

moments later with the second teacher and the SNA, who had been on yard duty. The

SNA offered to talk to child A. The applicant stated that she thanked the SNA, but

declined the offer as she was not assigned as SNA to child A. It was the applicant’s

responsibility, as her teacher, to have that conversation. She told the SNA that she would

speak to child A later. She stated that she subsequently had a conversation with child A

about the incident later in the day, when they were back in the classroom.

59. That allegation, did not involve any alleged inappropriate behaviour towards a child, it

was the SNA criticising the applicant for words allegedly used by her in a private

conversation between her and the applicant, together with an allegation that she had told

the SNA that she would not speak to the child herself. The applicant denied the use of

the word, but accepted that she had told the SNA that she was not going speak to the

child at that time, but did so later. It was for the Board to consider whether that

allegation amounted to serious misconduct or inappropriate behaviour on the part of the

applicant and if not, they would have to consider the motivation of the SNA for making

60. The second somewhat minor allegation was to the effect that the SNA had heard it said

about a particular child, that owing to particular circumstances involving the child’s

parents, one could not expect much from the child. The comments made of the parents

were highly derogatory. The SNA went on to state that it was not the applicant who had

made that comment, but she stated that as principal, she would have expected that there

would have been a policy of privacy for children. She continued, “from the Bishop down

derogatory comments are made on a regular basis”. While this was not an allegation

directed against the applicant, the Board may have considered it somewhat alarming that

the SNA was alleging that a number of unidentified people “from the Bishop down”, were

making derogatory comments about parents and pupils on a regular basis. The making of

such a wide ranging and extraordinary allegation, may have given the Board pause for

thought when considering the accuracy and validity of the other allegations made by the

61. The SNA also made a number of allegations in relation to child B. She stated that he had

been kept in to work on a very regular basis and was asked to do work which only a

secondary school student could do. The applicant denied this. She stated that the work

which had been set for child B had come from the standard third class text book. She

stated that while he may have been delayed going out on lunchbreak on a few occasions,

this was not by way of punishment, but was because he was a little slow at working and

would become frustrated if he could not finish his work. In order to allow him to do so,

he was permitted to remain in the class for a short period to enable him complete the

work. She stated that this was never longer than 10 minutes. In relation to the

allegation that the child had been kept in three days of each week at lunchtime for not

doing his homework, the applicant stated that that allegation was entirely untrue. She

stated that child’s mother was very supportive and would sit with him every afternoon

and supervise him as he did his homework. There was never any issue with his

62. A further allegation by the SNA, which to some extent was supported by the interview of

the learning support teacher with Ms. Flynn, was to the effect that child B was left to do

work which was too difficult for him and was unexplained. Again, the applicant denied

that allegation, pointing out that he was only ever given work suitable to a third class

student. She stated that in fact, child B’s work was “differentiated considerably” to take

account of his slower work rate. She did not understand how the learning support

teacher could have given the opinion that the work was not properly explained to child B,

as she had not been in the classroom when the applicant was teaching the children and

explaining the work. Accordingly, she would not have heard all of the applicant’s

interactions with the pupils and therefore could not state that the work had not been

properly explained to child B. She pointed out that the learning support teacher would

only very briefly visit her classroom for the purpose of collecting and dropping off pupils,

as she was timetabled to teach the learning support pupils in another room upstairs.

63. The SNA further alleged that before Christmas it was common for the applicant to say to

the children “eat up or [child B] will eat your lunch as well”. The SNA stated that this was

particularly inappropriate, as it was known that child B had a problem with obesity. In

response, the applicant stated that she had never at any time said anything about child B

eating the other pupils’ lunches. She stated that the allegation was totally and utterly

without foundation. She stated however, that as part of general banter in the classroom,

child B occasionally and jokingly said that he would eat the lunches of the other pupils if

they couldn’t finish their lunches. Even the other children knew that he was joking. She

stated that no sharing of lunches was allowed in the school, as one of the pupils had

diabetes. The applicant pointed out that the secretary/SNA had stated in her interview

that she did not recall the applicant ever making any comments regarding child B eating

anyone else’s lunches. She pointed out that the secretary/SNA was in the classroom

64. The SNA alleged that on one occasion when they were icing buns in the kitchen, the

applicant put her head around the door and accused child B of licking a bun. The

applicant denied this and stated that she had seen child B standing just to the left near

the sink, licking icing off the palm of his hand and fingers and then picking up another

bun, accidentally touching the top of the bun with his licked palm. As the applicant was

standing close to him, she whispered to him to be careful and instructed him to wash his

hands before icing the next bun. She stated that in acknowledgment of this whisper,

65. The SNA alleged on one particular Wednesday, child B was made to translate from English

into Irish for almost an hour. She stated that it was work that a secondary school student

would find challenging. She further stated that on some occasions when other children

were finished and were rewarded with a game, child B would be directed to do extra work

to make sure that he knew what he was doing and did not get to play. She stated that

when she praised child B’s writing, the applicant told the whole class and her, that he did

66. The applicant denied that those allegations were true. She stated that Irish class lasted

for a maximum of 35 minutes daily; not nearly an hour as alleged by the SNA. On the

particular date alleged, it had been a shorter lesson. She intended finishing by 10am, as

it was a review of three weeks’ work and she wanted to reward the pupils’ hard word with

an extra playtime. In relation to the allegation that it was work suitable for a secondary

school child, she stated that that was also untrue. She pointed out that the SNA was not

a teacher and accordingly may not have been familiar with the standard of Irish

appropriate for third class pupils. She outlined the lesson that was involved on that

occasion and stated that it was appropriate for third class pupils. In relation to

translating, the third class pupils were to translate four sentences which had been put on

the board. Child B took an active part in translating the sentences orally that morning. It

was not true that child B alone was asked to translate the four simple sentences. She

stated that all the pupils in third class were doing the same work, which should have

taken no more than 10 minutes as it had been pre-prepared orally.

67. There were also a number of general allegations of poor performance by the applicant in

respect of the way in which she treated the children generally. It was alleged that the

atmosphere in the school was not a pleasant one. In response to these somewhat vague

allegations, the applicant referred to the WSE report compiled by the inspector in 2014

“The pupils are motivated, enthusiastic, courteous and very well behaved. […]

pupils in this school are very well cared for and supported. The school has a close-

knit, familial atmosphere and significant attention is devoted to the social, cultural

and moral development of pupils. […] pastoral care provision is of a very high

quality and there is an inclusive environment within the school. […] the principal,

with the assistance of the deputy principal, builds a positive environment for

teaching and learning and promotes a high level of pastoral care. The overall

quality of teaching in this school is good. Teachers are experienced and talented

and they demonstrate a keen awareness of the need to differentiate their teaching

to accommodate the wide variety of abilities in their multi-grade classes.”

68. Finally, it was submitted on behalf of the applicant that she had had a thirty-year

unblemished teaching record, with twenty of those years in the school. There had never

been any parental complaint lodged against her, either in relation to any other students,

or in relation to child A or child B. Given that the parents of both child A and child B

appear to have taken a keen interest in their children’s development, the Board might

have thought it significant that none of the parents had raised any concerns with the

school about any inappropriate behaviour or mistreatment of their daughter or son by the

applicant. It was further submitted that the Board should have regard to the fact that

Tusla had investigated the matter and had closed their files without any further action.

69. It is important to bear in mind that this Court is not sitting as an appeal against the

decision made by the respondent to dismiss the applicant, which decision was made on

14th March, 2018 and communicated to the applicant by letter dated 16th March, 2018.

This Court is only concerned with whether the process which lead to that decision is good

at law and whether the subsequent action of the respondent in rejecting the

recommendation of the DAP, is also good at law. It has been submitted on behalf of the

applicant that the process that was engaged in by the respondent which led ultimately to

her dismissal in March, 2018, was fundamentally flawed in a number of respects. In

giving its conclusions on the matter, the Court will deal with each of these submissions in

70. Firstly, it was submitted on behalf of the applicant that the respondent was wrong to

invoke the Stage 4 disciplinary procedure provided for under circular 60/2009 at the

outset. It was submitted that having regard to the provisions of that circular and in

particular to the general principles outlined therein, which provided that early intervention

at the appropriate level should be adopted and that every effort should be made to

resolve any shortcomings that there may be in the work or conduct of a principal through

informal means, the respondent ought to have adopted one of the less formal disciplinary

procedures set out in that circular, rather than proceeding immediately to a Stage 4

71. In the alternative, it was submitted that even if the respondent was justified in adopting

the Stage 4 disciplinary process initially, any such justification was removed as and from

September, 2016, when the response was received from Tusla, that having conducted

their investigation, they saw no further need to be involved and were closing their files.

It was submitted that at that stage, in view of the fact that a designated statutory

authority, which was specifically mandated and equipped to investigate and look after the

safety and welfare of children, had found that there was effectively no case to answer in

relation to child safety, the respondent ought to have downgraded its disciplinary

procedure to one of the less formal measures provided for in circular 60/2009.

72. Section 24 (3) of the Education Act, 1998 provides, inter alia, that the Board of

Management may suspend or dismiss teachers and staff in accordance with the

procedures agreed from time to time between, the Minister, the patron, recognised school

management organisations, and any recognised trade union and staff association

representing teachers or other staff as appropriate. Circular 60/2009 was a product of

such agreement. It was headed “Revised Procedures for Suspension Dismissal of

Principals”. Under the section dealing with disciplinary procedures for principals, a range

of disciplinary procedures in ascending order were provided for as follows: informal stage,

verbal warning, written warning, final written warning, and Stage 4. The Stage 4

procedure was designed to be used where either the poor work or conduct on the part of

the principal had continued after a final written warning had issued, or the work or

conduct at issue was of a serious nature. The circular went on to provide that a report

would be prepared by the chairperson of the Board which would be forwarded to the

Board of Management. A copy was to be given to the principal. The Board of

Management were to consider the matter; were to seek the views of the principal in

writing and were to afford the principal an opportunity to make a formal presentation of

his/her case. This was to be done by means of a disciplinary hearing, at which the

principal could be accompanied by his or her trade union representatives. The principal

was to be given an opportunity to respond and to state his or her case fully and to

challenge any evidence that was being relied upon for a decision.

73. The circular provided for a range of sanctions as follows: deferral of an increment;

withdrawal of an increment or increments; demotion (loss of principal’s allowance); other

disciplinary action short of suspension or dismissal; suspension (for a limited period

and/or specific purpose) with pay; suspension (for a limited period and/or specific

purpose) without pay; and dismissal. The circular provided that the Board of

Management was to act reasonably in all cases when deciding on the appropriate

disciplinary action. The nature of the disciplinary action should be proportionate to the

nature of the work or conduct issue that had resulted in the sanction being imposed. The

circular further provided that in cases of serious misconduct at work or a threat to health

and safety of children or other personnel in the school, the stages outlined in the circular

do not normally apply and a principal may be dismissed without recourse to the previous

stages. It was further provided that if the investigation upheld a case of serious

74. In response to the submission made on behalf of the applicant, it was submitted on behalf

of the respondent that having regard to the serious nature of some of the allegations

made by the SNA against the applicant in her written statement furnished on 25th March,

2016, it was reasonable for the respondent to deem those as being allegations of serious

misconduct, such as would warrant proceeding directly to a Stage 4 disciplinary process.

75. In relation to the alternative submission on behalf of the applicant, it was submitted that

the fact that Tusla had closed its investigation and its files in September, 2016, did not

relieve the respondent of its duty of care towards the children in the school and its duty

to investigate the allegations contained in the SNA’s report. It was submitted that the

respondent could not outsource its moral and professional duty to investigate the matter

to Tusla and simply close down or scale back its investigation merely because Tusla had

decided that the allegations did not reach the threshold required for further action by

them. It was pointed out that the Board of Management was unaware of what

investigations had been carried out by Tusla, or of the exact threshold below which they

deemed further action as being unnecessary. It was submitted that as the procedure

provided for under Stage 4 was a comprehensive and fair procedure, there was no

prejudice to the applicant, in the respondent choosing to initiate that procedure and

continuing with it notwithstanding the Tusla response of September, 2016.

76. The Court is of the view that when the chairperson was presented with the verbal

allegations on 22nd March, 2016 and with the written statement from the SNA on 25th

March, 2016, those allegations were of sufficient gravity, that the respondent could

reasonably come to the view that a Stage 4 investigation was appropriate. One has to

remember that on its face, there was an allegation that child A had been heard to

complain that she was being hurt over a thirty-minute period by a person, whom she

subsequently identified to the SNA as being the applicant. Taken on its face, that was a

very serious allegation of some form of physical abuse of the child. In these

circumstances, the Court does not find that the respondent acted unreasonably in moving

77. In relation to the submission that the respondent ought to have scaled down the

disciplinary process upon receipt of the Tusla report, the Court is of the view that the

submissions made on behalf of the respondent in this regard are correct. The respondent

could not outsource its own moral and legal responsibility to investigate serious

allegations, to Tusla. While the fact that Tusla had carried out an investigation and had

found nothing that merited further involvement by them was undoubtedly a significant

fact, it did not absolve the respondent from its own responsibility to investigate the

allegations which had been raised by the SNA. The procedure provided for under the

Stage 4 disciplinary process was a comprehensive and fair procedure. The Court does not

criticise the respondent for continuing to follow that procedure in this case.

78. The second area of complaint by the applicant was in relation to her suspension. It was

submitted that having regard to the very real negative personal and professional

consequences of being suspended during an investigation, as identified by Noonan J. in

Bank of Ireland v. Riley [2015] IEHC 241 and by Hogan J. in Wallace v. The Irish Aviation

Authority [2014] IEHC 431, it was unreasonable and unnecessary for the respondent to

have placed the applicant on administrative leave as and from 6th April, 2016. It was

submitted that having regard to the overall nature of the allegations made by the SNA

against the applicant, it was unnecessary and unreasonable to place her on suspension at

that time. It was pointed out that the applicant has remained suspended since 2016 to

the present time, which along with her dismissal in March, 2018, has had a serious

adverse effect on both her life generally and on her mental health.

79. In response, it was submitted on behalf of the respondent that having regard to the

nature of the allegations contained in the SNA’s statement, which on their face were

serious allegations of misconduct and abuse towards two of the young children in her

care, it was not only reasonable, but necessary, that the applicant should be placed on

administrative leave. It was pointed out that in their initial letter, Tusla upon referral of

the complaint, had advised that the necessary child protection measures be put in place.

It was submitted that in placing the applicant on administrative leave pending the

investigation of the matter, the respondent was doing no more than complying with their

obligation to put sufficient measures in place to ensure the safety of the children in their

80. The Court is of the opinion that the issue of whether the respondent acted reasonably and

lawfully in placing the applicant on suspension while the matter was being investigated,

has to be viewed not with the benefit of hindsight, but through the prism of the alleged

facts as they were at the time that the complaint was made by the SNA in March, 2016.

As already noted, the allegations made against the applicant were, on their face, serious

allegations including: hurting child A over a period of thirty minutes; causing red weals to

appear on one of her wrists; causing chunks to be taken out of one of her hands; and

making her stand for periods during her lunch break. In relation to child B it was alleged,

inter alia, that the applicant had treated him very unfairly, made him do work that was

inappropriate to his age and educational status, and had made derogatory comments

about him. The Court accepts that it was not possible for the respondent to come to any

conclusion at that time as to whether these allegations were well founded or not. All it

could do was deal with what was presented to it, which was a relatively detailed

statement of complaint, containing numerous allegations against the applicant, which was

made by an SNA of considerable experience. In these circumstances, the Court is of the

view that it cannot be said that the respondent’s decision to place the applicant on

administrative leave was unreasonable, notwithstanding the fact that that by so doing,

the applicant was caused to suffer considerable stress and upset.

81. It was also submitted on behalf of the applicant that the report furnished by Ms. Flynn

was grossly deficient because it was characterised by the respondent as being a full

investigation, whereas in fact it was nothing of the sort; it was merely a fact gathering

exercise. In this regard, the Court has reached two conclusions: firstly, the applicant has

no cause for complaint in relation to the actual content of Ms. Flynn’s report. This was due

to the fact that her union representative had specifically written in advance of Ms. Flynn

conducting her investigation, stating that on no account should she express any views,

make any findings or make any recommendations in relation to the matter. In these

circumstances, the fact that her report is effectively a summary of various interviews, the

full content of which was set out in the appendices to the report, together with certain

ancillary documents such as a plan of the school and photographs of the wall in the yard

and of the street in the village, is not a matter on which the applicant has any legitimate

82. Secondly, while there is perhaps some validity to her complaint that the respondent could

not refer to Ms. Flynn’s report as being a full investigation of the matter, it seems to the

Court that this is but a dispute as to the description of her report. It was indeed a

comprehensive report in that she interviewed most of the relevant parties. Although in

this regard, it is perhaps surprising that she did not seek to interview the parents of

either child A or child B, whom one might have thought would have had very valuable

evidence that may have either corroborated the allegations, or contradicted them. Be

that as it may, the Court is satisfied that there is no real complaint that can be lodged

83. The applicant also had a number of complaints in relation to the disciplinary hearing held

on 21st February, 2018 and the decision making process engaged in by the Board

thereafter. It was submitted on behalf of the applicant that the Board in some way

misconducted itself by failing to ask her any questions arising out of her very lengthy

statement, which she read out to the Board over two hours at that hearing. The Court is

of the view that the applicant does not have any legitimate complaint in relation to the

conduct of the disciplinary hearing. The procedure was clearly set out by the chairperson

in correspondence with the applicant’s union representative well in advance of the

hearing. The applicant had more than adequate notice of the allegations which were

made against her, as these were set out in the statement made by the SNA and in the

interviews which the SNA had given to Ms. Flynn. The applicant also had copies of the

other interviews carried out by Ms. Flynn. At the hearing the applicant’s union

representative was given an opportunity to make an opening statement, she was then

given an opportunity to cross-examine the SNA, which she did for approximately two

hours. The applicant was then given the opportunity to call witnesses, which opportunity

she took by calling the second teacher and the secretary/SNA. Finally, the applicant was

given the opportunity to give evidence on her own behalf. She did this by reading her

84. When one considers that the Board of Management is made up of lay people, who do not

have any legal qualifications or experience, nor any experience of acting in a quasi-

judicial or adjudicative role, and having regard to the fact that they had sat through a

lengthy hearing of approximately 6.5 hours, I do not think it was unreasonable for them

not to ask any questions of the applicant, given that she had delivered a very

comprehensive statement on her own behalf. Furthermore, the respondent was under a

duty to act impartially as the decision maker and as such, they may not have wished to

have been seen to be biased by questioning the applicant. In these circumstances, the

Court is entirely satisfied that the disciplinary hearing held on 21st February, 2018 was

85. The applicant also complained about the fact that the ultimate decision to dismiss her was

reached by reason of a secret ballot of the five members of the Board at a meeting held

on 14th March, 2018. The circumstances surrounding that meeting have been outlined

earlier in the judgment. The chairperson had previously indicated to the applicant’s union

representative that the decision of the Board would be reached by a secret ballot of the

individual members. This was done so as to prevent any intended, or unintended

coercion, or influence being exercised by any of the Board members on any of the other

members of the Board. The applicant or her union representative did not object to the

holding of a secret ballot. In the circumstances, while it may be seen as a somewhat

unusual way of reaching a decision, I do not think that the fact that it was done by means

86. Overall, the Court is satisfied that up to, and including, the disciplinary hearing, the

respondent acted in a rational and fair manner. The Court was particularly impressed by

the conduct of the chairperson of the Board. He treated the applicant and her union

representative in an entirely fair and appropriate manner. He kept the applicant fully

informed at each stage of the process. He engaged with her union representative in a fair

87. I turn now to the central ground of complaint made by the applicant in relation to the

decision to dismiss her. Put simply, the applicant submits that there is no evidence that

the respondent ever engaged with the issues surrounding the allegations made against

her by the SNA. In particular, it was submitted that there was no evidence that the Board

had sat down and discussed and evaluated either the evidence against the applicant, or

her own response in relation to the allegations, nor the supporting evidence that she had

88. The Court is concerned by the fact that there are no minutes, nor any record of a meeting

of the respondent being held at which they sat down and considered all of the evidence

that had been presented to the Board, which comprised of: the statements furnished by

the SNA and the applicant; the interviews and report furnished by Ms. Flynn; the oral

evidence given at the disciplinary hearing; the WSE report of 2014; and the applicant’s

unblemished teaching record in the school. The Court has only been furnished with two

sets of minutes concerning meetings of the Board held subsequent to the holding of the

disciplinary hearing. The first of these was described as a “short meeting” held on 5th

March, 2018. The Court is satisfied that there was no discussion or evaluation of the

evidence in relation to the allegations at that meeting. The Court has reached this

conclusion for a number of reasons: firstly, the minutes made it clear that the chairperson

was awaiting receipt of further documents from the applicant. It does not appear that the

respondent could have embarked on a consideration of the issues until it had received all

relevant documentation. Secondly, the second teacher was present at that meeting and

it was common case that she was not present at any meetings at which the allegations

were considered by the Board. Thirdly, the fact that it was described as being a short

meeting, indicates that no substantive discussion or deliberation on the allegations was

89. In relation to the meeting held on 14th March, 2018, it seems reasonably clear from the

minutes provided, that there was no deliberation on the substantive allegations at that

time. It would appear from these minutes when read in conjunction with the memo

furnished by Ms. Julie O’Leary B.L., who had participated in the meeting via skype, that it

was purely for the purpose of holding the secret ballot of those members of the Board

who were eligible to decide whether the allegations were proven and, if so, what sanction

should be imposed. Again, the second teacher was recorded as attending that meeting;

therefore it was unlikely that there was any discussion or deliberation on the allegations

at that time. The Court is satisfied that that meeting was purely for the purpose of the

casting of the secret ballot by the eligible members of the Board.

90. In these circumstances, the Court is very concerned by the fact that there does not

appear to have been any meeting of the respondent at which the Board members sat

down and considered all the evidence that had been presented to it. There is certainly no

evidence, either documentary or otherwise, of any such meeting having taken place. If it

were the case that the individual members of the Board, who were eligible to consider the

allegations and vote on the sanction, went off and considered all the evidence on their

own, without any collective discussion on the evidence or on the sanction, that would

appear to be contrary to the very idea that the decision was to be made by the Board. At

the very least there should have been some collective discussion and deliberation among

them of the evidence and of the sanction, even if the ultimate vote was going to be done

by way of individual secret ballot. The reason why there should be a collective

deliberation, is due to the fact that these are people who are brought together from

various walks of life, who have little or no experience of this type of adjudication. In

these circumstances, a frank exchange of views and discussion among them would go a

long way towards ensuring a considered decision. There is no evidence that that took

91. The applicant makes a more fundamental complaint in relation to the decision making

process engaged in by the respondent which led to her dismissal. She states that the

decision to dismiss her is fundamentally flawed by virtue of the fact that no adequate

reasons were given as to why she was being dismissed. The only reasons that she was

given were the five extremely short and vague reasons set out in the chairperson’s letter

to her dated 16th March, 2018. She was not told whether all the allegations against her

were deemed to have been proven, or if not, which of the allegations had been found

against her. There was no evidence of any engagement by the respondent with the

formidable body of evidence that had been led by her in response to those allegations.

The nature of that evidence has been outlined in detail earlier in this judgment and it is

not necessary to repeat it. In short, it was submitted that the applicant does not know

what serious misconduct she was found guilty of and which it is alleged by the respondent

92. It was submitted on behalf of the applicant that it is now well established in Irish law that

there is an obligation on persons and bodies who are making decisions that fundamentally

affect the lives and employment of other persons, to give adequate reasons for their

decisions. The Court was referred to the decision in Mallak v. Minister for Justice, Equality

and Law Reform [2012] 3 IR 297, where Fennelly J., giving the judgment of the

“In the present state of evolution of our law, it is not easy to conceive of a decision-

maker being dispensed from giving an explanation either of the decision or of the

decision-making process at some stage. The most obvious means of achieving

fairness is for reasons to accompany the decision. However, it is not a matter of

complying with a formal rule: the underlying objective is the attainment of fairness

in the process. If the process is fair, open and transparent and the affected person

has been enabled to respond to the concerns of the decision-maker, there may be

situations where the reasons for the decision are obvious and that effective judicial

93. The Court was also referred to the decision of the Court of Appeal in Bank of Ireland v.

“For many years the Superior Courts have held that administrative bodies making

judicial or quasi judicial decisions must give reasons for so doing. Such bodies must

satisfy the criteria identified by Murphy J. in O'Donoghue v. An Bord Pleanála

[1991] ILRM 750 where he said in the context of a decision given by the Planning

Board that it: ‘. . . must be sufficient first to enable the courts to review it and

secondly, to satisfy the person having recourse to the Tribunal that it has directed

94. The Court was also referred to the decision in EMI (Records) v. The Data Protection

Commissioner [2013] IESC 32, where Clarke J. (as he then was) stated:

“Legal certainty requires, as was pointed out in Christian, that it must be possible

to accurately determine what the reasons were. There should not be doubt as to

where the reasons can be found. Clearly, an express reference in the decision itself

to some other source outside of the decision document meets that test. Where,

however, it is suggested that the reasons can be found in materials outside both of

the decision itself together with materials expressly referred to in the decision, then

care needs to be taken to ensure that any person affected by the decision in

question can readily determine what the reasons are notwithstanding the fact that

those reasons do not appear in the decision itself or in materials expressly referred

Where, for example, an adjudicator makes a decision after processing which both

sides have made detailed submissions it may well, as Fennelly J. pointed out in

Mallak, be that the reasons will be obvious by reference to the process which has

led to the decision such that neither of the parties could be in any reasonable doubt

as to what the reasons were. But it seems to me that, in a case where any party

affected by a decision could be in any reasonable doubt as to what the reasons

actually were, it must follow that adequate reasons have not been given.”

95. Finally, Mr. Ward S.C. on behalf of the applicant referred to the recent case of Nano Nagle

School v. Daly [2019] IESC 63 where the Supreme Court held that while the Labour Court

had carried out an investigation that was in many respects extremely thorough and

meticulous, nevertheless there was no doubt that significant and relevant evidential

material was not recorded or evaluated. The Court stated at paragraph 74:

“A tribunal, or other decision-maker which is under a duty to give reasons for its

decision, should, as part of this process, give some outline of the relevant facts and

evidence upon which the reasoning is based. This does not in any sense, mean that

a determination must set out all of the evidence; but it should set out such

evidential material which is fundamentally relevant to its decision or determination;

still more if such relevant evidence is not disputed. Obviously, the test as to the

issue of materially [sic] must be fact-specific, and dependent on the

96. It was submitted on behalf of the applicant that having regard to the very clear duty at

Irish law for decision makers to clearly state their reasons for reaching a particular

decision, the respondent in this case had fallen far short of that requirement in giving the

terse, vague and almost incomprehensible reasons that were furnished to the applicant in

97. It was further submitted that as the sanction imposed was the most serious sanction

available, the very least that the applicant could expect was that she would be told which

of the many allegations that had been made against her, had been deemed to have been

established by the respondent and as a result of which they had reached the decision that

dismissal was the appropriate sanction. It was submitted that the respondent had not set

out anything like adequate reasons to justify the dismissal of the applicant from the

position which she had held in the school for almost 20 years. On this basis it was

submitted that the decision to dismiss her ought to be set aside.

98. In response to these submissions, it was submitted on behalf of the respondent that the

Court should have regard to a number of matters. Firstly, the Court had to have regard

to the entire content of the investigatory process that had taken place: commencing with

the statement of allegations furnished by the SNA; the interviews and appendices

contained in Ms. Flynn’s report; the detailed statement of the applicant; and culminating

with the extensive hearing carried out by the respondent on 21st February, 2018. It was

submitted that the reasons set out in the letter of 16th March, 2018, had to be read in

light of that voluminous documentation and evidence. When one looked at the totality of

the process, it was submitted that it was very clear why the respondent had reached the

decision which it did in the circumstances, which was to dismiss the applicant.

99. Secondly, it was submitted that in considering this aspect, one had to bear in mind that

the Board of Management was made up of people who were drawn from many walks of

life, who did not have any qualifications or experience in the law, nor any experience

acting as adjudicators in a disciplinary process. It was pointed out that of the five

members who were eligible to vote because they were not otherwise conflicted in the

matter, one was a nominee of the patron of the school, two were parents’ representatives

on the Board and two were community representatives. In these circumstances, it was

urged on the Court that it would be unreasonable to expect such people to produce

anything like a judgment which would be produced by a Court or statutory tribunal. It

was submitted that the applicant was made fully aware of all the allegations against her

and was given every opportunity to deal with those allegations. The fact that she did not

like the conclusion that was reached by the respondent, which was due to the fact that

they simply did not believe her, did not entitle her to have their decision set aside.

100. In the course of his submissions, Mr. Kerr S.C. referred the Court to the Supreme Court

decision in Faulkner v. Minister for Industry & Commerce [1997] WJSC-SC 162, where

O’Flaherty J., giving the judgment of the Court, cautioned against any requirement that

administrative tribunals should be obliged to give exhaustive reasons for their decision in

“I would reiterate what has been said on a number of occasions, that when reasons

are required from administrative tribunals they should be required only to give the

broad gist of the basis for their decisions. We do no service to the public in

general, or to particular individuals, if we subject every decision of every

101. Counsel pointed out that the decision in the Faulkner case had been applied by Charleton

J. (then a Judge of the High Court) in GRA v. Minister for Finance [2010] IEHC 78, see

102. Counsel also submitted that this Court must be careful not to act as a court of appeal

from the decision made by the respondent. It was submitted that the Court’s only role

was to ensure that the process which led to the decision to dismiss the applicant, had

been carried out in a fair and reasonable manner. In this regard, counsel referred to the

judgment of O’Donnell J. in Ruffley v. Board of Management of St. Anne’s School

“The guarantee of fair procedures is based on the theory that if fair procedures are

followed, a fair result will ensue, but there is inevitably a range of decisions which a

reasonable decision-maker may take even if a judge on the same material would

not make the same decision. A court exercising judicial review is not a court of

appeal on the merits. A similar test is applied when reviewing the fairness of

103. Counsel also referred to the dictum of Noonan J. in Bank of Ireland v. Reilly [2015] IEHC 241

where the learned Judge cautioned against the High Court on review substituting its

“It must be remembered that in all these cases there is a band of reasonableness,

within which one employer might reasonably take one view, another quite

reasonably take a different view. It is clear that it is not for the EAT or this court to

ask whether it would dismiss in the circumstances or substitute its view for the

employer’s view but to ask was it reasonably open to the respondent to make the

decision it made rather than necessarily the one the EAT or the court would have

104. It was submitted that having regard to the decisions in these cases, this Court was not

concerned to enquire whether or not it would have reached the same decision as the

respondent on the evidence that had been placed before the respondent, but rather

whether the process leading to the respondent’s decision was fair and whether the

plaintiff had been afforded every opportunity to put her side of the case before the

respondent. It was submitted that that had plainly been done in the elaborate

investigative and adjudicative process that had been put in place by the respondent. It

was submitted that it could not be argued that the applicant had not been given full

notice of all the allegations made against her by the SNA and had been given every

105. It was further submitted that in considering the adequacy of the reasons given by the

respondent for the decision that it had reached on 14th March, 2018, as contained in the

letter dated 16th March, 2018, one had to have regard to the entire process, which was a

“unitary process” as described by Ní Raifeartaigh J. in Sheehy v. Board of Management of

Killaloe Convent Primary School [2019] IEHC 456. While counsel accepted that the

respondent might have given more fulsome reasons for the dismissal than it had done in

its letter dated 16th March, 2018, it was submitted that when one looked at the entire

process, together with the reasons stated in that letter, it was clear that the decision had

been reached by the respondent to dismiss the applicant because they had not believed

her response to the allegations made against her by the SNA. As this was a Board made

up of ordinary people, it was unrealistic to expect them to produce anything like a

detailed written judgment justifying their decision to dismiss the applicant. It was

submitted that when viewed in its entirety, the process and the decision to dismiss which

resulted therefrom, were entirely lawful. In these circumstances, the Court should not

quash the decision to dismiss which had been made by the respondent.

106. Having considered the submissions of counsel, the Court is satisfied that there is an

obligation under Irish law for decision makers to set out adequately the reasons for

reaching a decision, when such decision will have a far reaching and profound effect on

the life and earning capacity of the person concerned. In this case, the decision to

dismiss the applicant, who had 30 years of teaching experience, 18 years of which had

been as principal in a school in a rural community, was of profound importance to her.

Indeed, short of a conviction for an indictable offence, being dismissed from one’s job is

probably the most serious consequence that a person may have to face in their life.

Being dismissed from her position as principal of a school in a small rural community was

going to have a profound effect not only on the applicant’s capacity to earn an income,

but also on her general standing within the community. In these circumstances, at the

107. Where serious allegations had been made against the applicant and where she had led

cogent evidence in response to those allegations, she was entitled to know which

allegations were found by the decision maker to have been proven against her. It was

simply not good enough to tell the applicant “we did not believe you, therefore you are

being dismissed”, which was effectively what she was told in the letter of 16th March,

108. Unless the applicant was told which specific allegations had been proven against her, she

would not be in a position to know whether she had any valid appeal or arguable

challenge by way of judicial review against those findings, or whether the sanction of

dismissal was proportionate to the allegations found against her.

109. In Sheehy v. Board of Management of Killaloe Convent Primary School [2019] IEHC 456,

Ní Raifeartaigh J. was dealing with a case where allegations had been made against a

principal that on two occasions she had made a child kneel on the floor by way of

punishment. The Judge noted that one of the points that had to be considered by the

Board in that case was the child’s alleged propensity to kneel down. She held further that

the particular allegation was the type of allegation where “there was a need for careful

attention to detail”. This Court is of the view that the allegations in this case also

required that a careful forensic examination of each of them be carried out by the Board,

not least due to the fact that if the allegations were upheld and a finding of serious

misconduct were made against the applicant, that could lead to the most serious sanction

being imposed, being that of dismissal, as happened in this case. However, there was no

evidence from the reasons given, that the Board had actually given the allegations

against the applicant the careful attention that they clearly warranted.

110. The Court has considerable sympathy for the people who found themselves on the Board

of Management of this school in the period 2016 – 2018. The Court appreciates that they

are people who were drawn from different walks of life, who may not have had any legal

experience, nor any experience of acting as adjudicators. It may well be that they went

onto the Board from a simple desire to help in the running of their children’s school. They

may not have envisaged that they would ever be called upon to adjudicate on such an

important question as the dismissal of the applicant. However, that was the role that was

thrust upon them by the Education Act 1998. As they were given the role under the 1998

Act of adjudicating on whether the principal should be dismissed on grounds of serious

misconduct, they had to engage with the evidence tendered in respect of each and every

allegation and make a decision as to which of those allegations, if any, were proven

against the applicant. They had to engage with all of the evidence in a rational and fair

manner. It could only be demonstrated that they had done that, by giving reasons for

their decision. They did not do that. I am satisfied that on this ground, the decision of

111. In relation to the submission that was made on behalf of the respondent that it would be

unfair and unrealistic to expect the Board, which was made up of unqualified lay people,

to be capable of providing detailed and cogent reasons for their decision, the Court is not

convinced that in this case such argument holds true. The reasons given by the

respondent for reaching its decision as set out in the letter dated 16th March, 2018, were

hopelessly inadequate. One of the reasons given was to the effect that one member of

the Board had listened to all of the evidence and because of that his or her vote was for

dismissal, “because the children in case have blossomed since”. To tell a principal that

they were being dismissed because some unspecified children had blossomed in some

unspecified way since they had departed, was both irrelevant and irrational. The other

reasons given in that letter are equally deficient. The Court does not accept that this

Board was incapable of providing adequate reasons. This is due to the fact that when the

Board was obliged by statutory regulation to provide reasons why it would not follow the

recommendation of the DAP, the Board, by letter dated 27th June, 2018, set out over five

pages, comprehensive reasons why it would not follow that recommendation. Thus, the

Court is satisfied that far from being incapable of giving reasons, the respondent was

quite able to do so when it so wished. Accordingly, there is no substance to this

112. Finally, it was submitted on behalf of the applicant that the respondent had acted

unreasonably, irrationally and therefore unlawfully in failing to have due regard to the

decision and recommendation of the DAP. It was submitted that the Court should have

regard to the fact that in this case the DAP findings were reached on a unanimous basis.

Furthermore, the DAP took the unusual step of not recommending any lesser sanction,

but instead made a definitive recommendation that the applicant should immediately be

113. The Court was referred to the decision of O’Malley J. in Kelly v. Board of Management of

St. Joseph’s National School, Valleymount [2013] IEHC 392 where the Court commented

on the position of the DAP in the following terms at paragraphs 166 – 167:

“This is a body drawn from the fields of teaching and management, with an

experience of these areas that is unlikely to be matched or exceeded by Board

members. It has an independent chair. The members are not involved in the

dispute and can bring their expertise to bear with an objectivity that is likely to be

lacking amongst the parties to the dispute. Although not a statutory body, it is

It is, therefore, a body of the sort to which the courts generally display a high level

of deference on issues within its area of expertise. Its recommendations should,

accordingly, carry very substantial weight with boards of management. While a

board is not bound to carry out its recommendation, it should in my view depart

114. It was submitted that despite the contents of the letter furnished by the respondent on

27th June, 2018, in relation to the DAP findings and recommendation, it was clear that no

proper consideration was given by the respondent to the DAP findings and its criticisms of

the entire process. It was submitted that no effort was made by the respondent to take

on board any of the recommendations of the DAP. Instead, the respondent focused its

efforts on opposing the DAP decision in its entirety. The Board stated that the DAP had

failed to give full consideration to the independent report of Ms. Eileen Flynn. However, it

was submitted on behalf of the applicant that the Flynn report contained no findings of

115. The Court is satisfied that in making its criticism of the DAP, that it had not engaged with

the substance of the matter, the respondent was in fact criticising the DAP for not doing

the very thing that it had failed to do. The Court is of the view that the respondent’s

letter of 27th June, 2018, was nothing more than an outright rejection of the

comprehensive findings and recommendation of the DAP. There was no logical or

constructive engagement by the respondent with the findings or recommendation of the

DAP. The fact that the DAP, which is a highly experienced and qualified body with an

independent chair, had reached its findings and recommendation on a unanimous basis,

was something which ought to have been given considerable weight by the respondent.

It does not appear from the letter dated 27th June, 2018, that that was done. The Court

is satisfied that for its failure to give due consideration to the DAP findings and

recommendation, the decision of the respondent to dismiss the applicant from her

position as principal must also be set aside on this ground as well.

116. Finally, it was submitted on behalf of the respondent that when this Court came to

consider whether an order of certiorari by way of judicial review was the appropriate relief

to order in this case, it should have regard to the fact that the applicant had failed to

exhaust the more appropriate remedy for her grievances by bringing a statutory claim

for, inter alia, unfair dismissal before the Workplace Relations Commission pursuant to

the Unfair Dismissals Acts 1977 – 2015 and the procedures laid down in the Workplace

Relations Act 2015. It was submitted that that avenue provided a more suitable remedy

as it was cheaper, more expedient and would have enabled the applicant to have the

benefit of an expert specialised employment rights decision-maker in the form of an

adjudicator before the Commission and on appeal, the members of the Labour Court, to

117. Counsel referred to the decision in O’Donnell v. Tipperary (South Riding) County Council

[2005] 2 IR 483 where Denham J. (as she then was) referred to the decision in

McGoldrick v. An Bord Pleanála [1997] 1 I.R. 497, where Barron J. stated:

“The real question to be determined where an appeal lies is the relative merits of

an appeal as against granting relief by way of judicial review. It is not just a

question of whether an alternative remedy exists or whether the applicant has

taken such steps to pursue such a remedy. The true question is which is the more

appropriate remedy considered in the context of common sense, the ability to deal

with the questions raised and principles of fairness; provided, of course, that an

applicant has not gone too far down the road to be estopped from changing his or

her mind. Analysis of the authorities shows that this is in effect the real

118. The Court is of the view that such a consideration may be relevant where there is an

existing appeal pending before another Court or tribunal; where in a case such as this,

the applicant has instituted her proceedings promptly seeking judicial review upon being

notified of an adverse decision against her, and where there has been an extensive

hearing and legal argument before this Court, it would be inappropriate for this Court to

decline to deal with the applicant’s case merely on the ground that there may have been

an alternative remedy available to her. Given that it is now over three years since the

allegations were first raised and when the applicant was placed on administrative leave

and over 18 months since the decision to dismiss her was made, and having regard to the

fact that this matter was heard over a period of three days, it is appropriate that the

Court should deal with the matter that has been properly placed before it. Approaching

the matter in the light of common sense and fairness as advised by Barron J. in the

McGoldrick case, the Court is satisfied that the most appropriate thing for it to do is to

decide the issues that have been placed before it on this application.

119. Accordingly, for the reasons set out herein the Court hereby quashes the decision of the

respondent to dismiss the applicant from her position as principal and teacher in the

respondent’s school, which decision was made on the 14th March, 2018 and

communicated to the applicant by letter dated 16th March, 2018.

Result: Relief sought by applicant to quash the decision of the respondent granted

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> C.D. v The Board of Management of a National School [2019] IEHC 819 (04 December 2019) URL: http://www.bailii.org/ie/cases/IEHC/2019/2019IEHC819.html Cite as: [2019] IEHC 819

High Court of Ireland Decisions