THE HIGH COURT
			1993 124 JR
BETWEEN
DENIS TOBIN
			APPLICANT
AND
JOHN CASHELL, CHAIRMAN OF THE BOARD OF MANAGEMENT
OF MAYFIELD COMMUNITY SCHOOL
			FIRST NAMED RESPONDENT
AND
THE SECRETARY OF MAYFIELD COMMUNITY SCHOOL
			SECOND NAMED RESPONDENT
AND
THE MINISTER FOR EDUCATION
			THIRD NAMED RESPONDENT

Judgment of Mr. Justice Kearns delivered the 21st day of March, 2000.

	The Applicant is a married man, born in 1946, who since 1973 has been employed as a permanent full-time teacher in metal work at Mayfield Community School in the City of Cork.  Prior to that time he had worked as a vocational teacher in Boyle, Co. Roscommon.  By letter dated 16th August, 1973, the Chief Executive Officer of the Cork Vocational Education Committee was informed that the Applicant was being appointed to Mayfield Community School for 1973-74.  It is important to stress that the Respondent school was a new school at that time and not an amalgamated school.
	Unhappy differences arose during the course of the Applicant’s employment at Mayfield leading to his suspension by the First and Second named Respondent on 2nd March, 1990.  Following his suspension, the Third named Respondent established an informal Enquiry on 12th December, 1990, which said enquiry took place at the Crawford Art Gallery in Cork on 11th and 12th February, 1991. 
	While the Report and Enquiry was completed in April 1991, the Applicant was not furnished with a copy of the Report until 28th April, 1992.
	No explanation has been offered for the delay in furnishing the Report to the Applicant who eventually saw fit to commence a hunger strike and picket the school in order to force production of the Report.
	The Applicant’s suspension had begun on 2nd March, 1990.  By letter dated 8th February, 1990, the reason furnished by the Second and Third named Respondents for the suspension was:-

	“It is quite clear from your actions and statements that you do not accept the authority of the Board of Management or of the principal, hence, the Board is left with no option but to suspend you from your post of employment in this school as and from 4.00 p.m on Friday, 2nd March, 1990, pending an enquiry by the Department of Education.”

	Following legal representation by the Applicant’s Solicitor, the Board supplied the following reasons for their action:-

(a)	Failure to follow procedures authorised by the Board regarding pupil discipline.
(b)	Failure to follow procedures authorised by the Board regarding setting and correcting of house examinations and the issue of report.
(c)	Undermining the role of the principal through public defamatory statements and demonstrations at the main school entrance to the detriment of the general well-being, discipline and orderly functioning of the school. 
(d)	Non-acceptance of the right and authority of the Board to monitor the standard and content of courses having regard to prescribed syllabuses and the stated concerns of parents and students. 
(e)	Unapproved use of school equipment outside school premises.
(f)	Unapproved use of plant and equipment with involvement of pupils outside of usual school time.
(g)	Failure to agree to use those facilities provided in the school’s technology centre to meet the requirements of the curriculum for senior students. 

	Following further representations, the Board supplied a more detailed statement of the reasons on 9th July, 1990:-

	“We refer to previous correspondence herein.  The fundamental allegation of the Board against Mr. Tobin is his failure to accept the authority of the Board of Management and its employees entrusted with the responsibility for the internal organisation and management of the school.  Any instance of Mr. Tobin appearing to accept such authority have been short lived and always reneged upon by actions or statements or both.  Mr. Tobin seems to have deep seated convictions of a crusade nature, the outcome of which has been a constant source of conflict within a school where otherwise a staff of approximately 50 people have worked diligently and in full co-operation to develop a worthwhile school over the past sixteen years.”

	In the course of his enquiry, Mr. Tomas O’Conaill noted that the Applicant had no written contract and that the Board of Management was functioning in accordance with an unsigned deed of trust.  The combination of these two factors, in Mr. O’Conaill’s view, increased the scope for interpretation of what could be demanded of a teacher and of the limits to the authority of the Board.  A further result of the lack of definition was that the procedure in a case of malfunction in the school was not laid down.  Further, the allegations against Mr. Tobin referred to matters ancillary to his teaching, rather than to his commitment to teaching or his effectiveness as a teacher.  
	In his report, Mr. O’Conaill found that the Applicant was seriously at fault in sixteen instances and accordingly found that the imposition of suspension with pay was a reasonable response by the school to the critical situation caused by the Applicant’s behaviour, particularly during the period September 1989 - January 1990.  He also concluded that the terms of the letter of suspension were fully sustainable and incorporated a reasonable decision.
	He stated as follows at p. 40 of his report:-

	“However, the case presented by the Board of Management and subsequent to his suspension is not sufficient to warrant permanent suspension or dismissal.  The difficulties with the case are partly technical and procedural and partly related to reasons for the suspension and the facts alleged to support the reasons.”

	He identified a number of technical and procedural matters which had caused his difficulty, including the suspension of the Applicant prior to providing reasons for same.  He felt it was unsatisfactory that the Board in voting on a motion to suspend did not formulate the reasons on which the suspension was being imposed.  Of the reasons outlined above, reasons (a), (b), (f), (g) were not sustained.
	He also felt the Board should have considered other possible sanctions than suspension, including warnings and/or suspension from another post which the Applicant held in the school.
	He ended his report in the following terms:-

	“In conclusion what was sustained was that Mr. D. Tobin has a chronic problem in his dealings with the reasonably exercised authority of the Board of Management and the Principal which amounts at time to an apparent rejection of that authority and that unless he submits to that authority that the continuance of his employment as a teacher in the school will have to be terminated.  

	The Board of Management acted reasonable in suspending Mr. D. Tobin pending the enquiry.  The grounds presented and the procedures adopted make it unsafe to proceed from this suspension to permanent suspension.”

	Insofar as the Applicant was concerned, problems had now been resolved and he saw no obstacle in the way of a return to work at the school.  
	However, by letter dated 8th May, 1992 Solicitors for the school wrote to the Applicant stating:-
	“As the length, nature and permanence of the suspension imposed upon Mr. Tobin is a matter for the Board of Management, we suggest it would be profoundly unwise for him to present himself for duty, at any stage prior to this matter being resolved.”

	The same letter also indicated that the Board would meet to discuss the report as soon as possible and Mr. Tobin would be informed of the result.  The letter stated:-

	“The Board in addition to a consideration of the departmental report, will require from Mr. Tobin an explanation for his behaviour.”

	This apparently was a reference to the picket placed by the Applicant on the school's premises.
	However, on 22nd June, 1992, without the occurrence of any other incident in the meantime, the Solicitors for the school wrote to the Applicant’s Solicitors in the following terms:-

	“We refer to previous correspondence herein.  Please note our clients have decided not to lift the suspension and to terminate your client’s employment with the school.  They have arrived at this decision taking into account your client’s history since the commencement of his employment and the disciplinary action as upheld by the enquiry and to his inability to accept the authority of the Board of Management.”

	It appears that this action was taken without sanction from the Third named Respondent on whose behalf a letter dated 17 July, 1992 was sent to the school stating as follows:-
	“I wish to refer to your letter of 3 July, 1992 in which you notify that the Board of Mayfield Community School had decided to terminate forthwith the employment as a teacher of Mr. Denis Tobin.  

	The Department wishes to confirm that, as indicated in my letter to you of the 27th April, 1992, the question of what action the Board should take regarding the question of Mr. Tobin’s employment is a matter for the Board.  There are, however, certain aspects of the case which are of concern to the Department as follows:-

	(i)	The enquiring officer’s report states that the Board did not formulate at the meeting at which Mr. Tobin was suspended, the reasons for the suspension.  The reasons as subsequently formulated contain many matters which were not discussed at the meeting which suspended him (page 4 of report).
	(ii)	The enquiring officer found that ‘the case presented by the Board is not sufficient to warrant permanent suspension or dismissal’ (p. 40).
	(iii)	The motion to suspend Mr. Tobin was passed towards the end of a meeting which witnessed a confrontation with Mr. Tobin and such motion was not on the agenda or in the notice of the meeting. (p. 41).
	(iv)	Mr. Tobin was not warned sufficiently of the consequences in regard to his permanent employment of his actions and statements.  (p. 41).
	(v)	The Board’s decision to terminate Mr. Tobin’s employment ‘forthwith’ does not comply with existing legislation in relation to minimum notice to terminate employment.
	The Department considers that, in these circumstances, Mr. Tobin is likely to appeal the decision of the Board possibly in the Courts. 

	Having regard to the fact that the clear inference in its inspector’s report is that, in all the circumstances, dismissal is not warranted, the Department considers that a more equitable and safer course of action would have been for the Board to lift the suspension and allow Mr. Tobin to resume his post, albeit on his giving such undertakings as to his future conduct as the Board may require.

	It is considered that should Mr. Tobin pursue action in this case through the Courts, substantial costs will arise.  The Department is concerned at the prospect of a claim from the Board to indemnify it against such costs and circumstances where the Board has not acted in accordance with the findings of the Department’s inspectors in the case.  

	In the circumstances, as outlined above, I am to request that the Board reconsider its decision to terminate Mr. Tobin’s employment.”

	The Board did not reconsider its decision and on 10th May, 1993, Mr. Justice Keane gave leave to the Applicant to apply for Judicial Review (extending the time for that purpose) and seek:-

(a)	An Order of Certiorari quashing the decision purporting to dismiss the Applicant herein made by members of the Board of Management at Mayfield Community School on or about 22nd June, 1992.
(b)	A Declaration that the purported dismissal of the Applicant by the First and Second named Respondents is null and void as it wa\s carried out in a manner contrary to the rules of constitutional and natural justice.
(c)	If necessary, an Order of Mandamus compelling the Board of Management at Mayfield Community School to restore the Applicant to his full teaching functions and forthwith reinstate the Applicant herein to the position which he held prior to his suspension and dismissal.  
(d)	In the alternative, a Mandatory Injunction directing the First and Second named Respondents to inform the Applicant forthwith for the reasons for this purported dismissal and in particular to provide particulars of any alleged misconduct.
(e)	Damages (to include damages on foot of aggravated or exemplary damages).

	In its Notice of Opposition, the First and Second named Respondents contend that they did act properly with due concern to all the grave matters before them and that they did give to the Applicant sufficient time to prepare his case, that they considered the Applicant’s case seriously and representations made on his behalf and that in suspending and dismissing the Applicant they had due regard to natural justice.
	It is further contended that in view of the seriousness of the case against the Applicant and in view of the Applicant’s failure to reform or show any ability to change, the Respondents and the Board of Management in the last analysis acted as they were obliged to do.
	The Third named Respondent also delivered a Statement of Opposition, contending that the Applicant was employed by the First and Second named Respondents and that the Third named Respondent was not a party to the decision to terminate the employment of the Applicant.  The Third named Respondent further contends that the Applicant has not suffered any damage or loss as his suspension to date has been on full pay. 
	At the hearing of the application before this Court, it was further contended that the decision of the Board to terminate Mr. Tobin’s employment was, in the particular circumstances, manifestly unreasonable and irrational having regard to the conclusions expressed by Mr. O’Conaill in his Enquiry Report.  
	
PRELIMINARY MATTERS

	Two preliminary matters must first be addressed.  They are:-

(a)	The matter of delay.
(b)	Which of the Respondents, in fact, employed the Applicant.

(a)	Delay

	It is contended on behalf of the Respondents that no relief should be granted in his case having regard to the fact that almost seven years has elapsed from the date upon which leave to bring these proceedings was granted. 
	Mr. O’Reilly cited R. -v- Dairy Tribunal, ex Caswell, (1990) 2 AC in support of the proposition that a delay of the time evident in the present case would be detrimental to good administration independently of hardship or prejudice.
	He cited the following statement from Lord Goff at p. 747:-

	“It follows that, when an application for leave to apply is not made promptly and in any event within three months, the Court may refuse leave on the ground of delay unless it considers that there is good reason for extending the period; but, even if it considers there has been such good reason, it may still refuse leave (or, where leave has been granted, substantive relief) if in its opinion the granting or the relief sought would be likely to cause hardship or prejudice (as specified in Section 31(6)) or would be detrimental to good administration.”

	Mr. Cross in reply enumerated the multiple applications for discovery which had been required in the case, many of which had resulted in appeals to Superior Courts, including the Supreme Court.  The Respondents were making no issue about the time factor in relation to the application to seek leave where in any event an extension of time had been granted.  
	Without engaging in a recital of all the dates of the various discovery Orders made and appealed, it does seem to me that it was open to the Respondents to apply to the Court prior to now if any Respondent felt his position had been prejudiced to seek to have the proceedings dismissed for want of prosecution.  No such application was made or threatened.  Nor is prejudice alleged.  
	I entirely agree that good administration requires that matters of this nature be speedily determined, but equally that each case must turn on its own particular facts and I conclude that, without wishing to condone the delay which has undoubtedly occurred, that a reasonable explanation for same has been offered to this Court.  However, it does seem to me to be a material matter going to discretion in terms of any remedy sought by the Applicant.
	
(b)	Which of the Respondents actually employed the Applicant

	As previously mentioned, the Applicant has no written contract of employment. 
	In an Affidavit sworn on 13th March, 2000, Mr. Sean O’Breacain deposes that Mayfield Community School was established "in accordance with the Deed of Trust which provides that the teaching staff of the school shall comprise of the numbers and classifications decided by the Board, subject to the prior approval of the Minister for Education".  The Board of Management of the said school employs the teachers who work at Mayfield Community School.  He further states that the role of the Third named Respondent in relation to the appointment of teachers is one of sanction only.
	Mr. Tobin is strongly of the view that he was at all material times employed by the Third named Respondent by virtue of his status as vocational education teacher.  A statutory backdrop for the removal of a teacher from his teaching post exists in the Vocational Education (Amendment) Act, 1944 which contains a provision that the removal of a teacher from a vocational school can only be effected by the Minister.  He states that when he sought information from the Department of Education concerning the terms and conditions of his employment, the Department issued him with memorandum V7, the Department of Education’s circular, 9th October, 1979 and CC1 of 1983, which suggest both that he retained the status of vocational teacher and, as such, liable to be dismissed by the Minister.  
	The requirement on the Applicant to delve into matters which are more appropriate to the Respondents arises from the contention made on behalf of the Respondents that the instant case lacks the necessary public law dimension to premise an application for Judicial Review. 
	However, this contention seems quite insupportable on the Respondents’ own case, namely, that the Board of Management operated on foot of the draft Deed of Trust, common to all community schools from the time such schools were opened in 1972.  There is a suggestion that a model trust deed was only finalised in 1980, but factually and historically, Mr. O’Reilly on behalf of the First and Second named Respondents accepts that the draft Deed of Trust did in fact govern the regime at the Respondents’ school.
	The Deed of Trust received consideration by Murphy J in O’hUallachain -v- Burke, (1980) ILRM when he stated at p. 702:-

	“The Deed of Trust is a binding legal instrument which can be invoked and enforced at the behest of the parties thereto and indeed it would fall to the Attorney General to enforce the obligations imposed by trust deeds insofar as those duties relate or consist of a charity for the advancement of education.  The relationship of course between the Board of Management and the principal and the other staff of the college or indeed between the students and the Board of Management are matters of comment and matters to be determined in accordance with private law.  I believe that serious questions may arise as to the points or limit at which obligations under public law are determined and are placed by the conditional rights recognised and enforced as private.  However, it does seem to me that having regard to the views which I take of the evidence and indeed the law that I should not attempt, indeed, I should seek to avoid, resolving the important issues which arise here by reference to any point which might be seen as technical or jurisdictional.  I merely enter a caveat as to my acceptance of the arguments in relation to the application of public law to the actions or omissions of the Board of Management in the present case.”

	The essential characteristics of the trust deed were identified by Costello P in Campaign to Separate Church and State -v- Minister for Education, (1998) at p. 331 as follows:-

	“I have the following observations to make about the trust deed:

	(i)	Community Schools are established by an administrative Act of the Minister and not in pursuance of any express statutory power.  Authority to make payments to the school or for its benefit is derived from the annual adoption by the Dail of departmental estimates and enactment of the annual Appropriation Act.
	(ii)	The legal ownership of the school vests in the trustees and their staff as appointed under contracts with the Board of Management.  Although built by State funds, (apart from a limited local contribution) and run and maintained by State funds, they are not in the legal ownership of the State or any State authority, nor in the legal ownership of a religious order or the diocese of any church.  
	(iii)	The trustees have a legal responsibility to ensure that the school is managed and organised in accordance with the trust deed.  The Board of Management (and the principal) have a legal responsibility to manage the school. The Minister in accordance with its terms also has a legal responsibility to ensure that the school is conducted in accordance with the trust.  In addition, the Minister controls all the school’s expenditure and has a supervisory role over the school curriculum.”

	It follows from the foregoing that the Minister is fully involved and while teachers are appointed by the Board, they must first be sanctioned by the Minister.  The Minister is the first party named in the Trust Deed.  He is involved and consulted in the efficient operation of the school and has a legal responsibility to ensure that the school is conducted in accordance with the trust.
	It would seem to me quite absurd to hold that the Applicant was in some way to be prejudiced by any want of clarity in the inter se arrangements between the Respondents, so that even if I were in doubt (which I am not) that there was the necessary public law dimension to this matter, such doubt would have to be resolved in favour of the Applicant.
	On the materials placed before this Court, I am satisfied that the Applicant was employed by the First and Second named Respondents and that they, and not the Third named Respondent, purported to dismiss him.  Having found that the requisite public law element is present, it is not necessary for me to consider further the extent to which the Minister may of necessity be involved by way of consultation, sanction or otherwise in the dismissal of a community school teacher.

CONCLUSIONS
	
	Given the findings outlined above, this matter falls to be determined as an issue entirely between the Applicant and the First and Second named Respondents.
	In this case, the Board of Management of the First and Second named Respondents were furnished with an inspector’s report which concluded that the case presented by the Board was not one for permanent suspension or removal.
	Notwithstanding these conclusions, the Board did not see fit to receive the Applicant back in an active teaching role.  Perhaps personal relations between the Applicant and the principal had deteriorated to such a degree that that was simply not practicable.  Perhaps, having regard to the sixteen adverse findings made by the inspector against the Applicant, the Board considered that any sort of fruitful co-operation with Mr. Tobin was extremely unlikely for the future.  Perhaps the picketing of the school was the straw that brokt the camel's back.  
	However, that is not the issue.  
	In the teeth of the inspector’s conclusions the Board decided, without giving the Applicant any further hearing of any sort, to terminate his employment with the school.  
	I find the 'reasoning' in the letter dated 22nd June, 1992 utterly unsatisfactory.  It is though the Enquiry had never taken place.
	The reasons, if such they can be called, given to the  Applicant were:-

	“Your client’s history since the commencement of his employment and the disciplinary action as upheld by the Enquiry and to his inability to accept the authority of the Board of Management.”

	The first of these reasons is virtually meaningless.  The second reason is meaningless.  The third reason is, of course, a substantial one, but had been fully addressed by Mr. O’Conaill in the course of his Enquiry.
	The Board declined Mr. O’Conaill’s suggestion to proceed either by way of some other form of suspension and/or warning, and, in imposing the ultimate sanction in the manner in which they did, clearly were in breach of principles of natural and constitutional justice.  
	To that conclusion I would add that to make such a decision, having regard to the findings contained Mr. O’Conaill’s report, has all the hallmarks of a decision which is unreasonable and irrational in the sense identified by Henchy J in State (Keegan) -v- Stardust Victims Compensation Tribunal, (1986) IR at p. 632 where at p. 657-8 he stated as follows:-

	“The test upon reasonableness or irrationality in Judicial Review lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common-sense.  If it does, then the decision-maker should be held to have acted ultra vires for the necessarily implied constitutional limitation of jurisdiction and all decision-making which affects rights or duties requires, inter alia, that the decision-maker must not flagrantly reject or disregard fundamental reason or common-sense in reaching his decision.”

	It seems to me that the Applicant has established the threshold indicated by Henchy J, and this view receives further support from the terms and content of the letter sent by or on behalf of the Minister to the Board of Management of Mayfield Community School on 17th July, 1992.  
	In all these circumstances, I must quash the decision purporting to dismiss the Applicant.  
	I will adjourn the case for a period of two weeks, or such longer period as the parties may require, to consider consequential matters arising from the making of this Order.
	Insofar as the discretionary remedies available to the Court are concerned, I should in that context make it absolutely clear that Mandamus will not be directed in this case.  Having regard to the unhappy history between the Applicant and the school, it would be, in my view, a quite inappropriate direction on the facts of this case.  In any event, the lengthy delay of almost 8 years since dismissal (10 years since suspension) creates all sorts of further problems which strongly suggest that such relief would be inappropriate.

Dated this 21st day of March, 2000.

Signed:	______________________
	NICHOLAS J. KEARNS

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