Suspension and Injunctions - The Case of Enoch Burke

Introduction 

In this article, we review a recent decision of the High Court in the case of The Board of Management of Wilson's Hospital School -v- Burke ([2023] IECA 133). The decision is an interesting one as it addresses the topics of suspension, due process, fair procedure and the right of an employee to protest a decision, as well as the steps an employer can take to prevent any disruption by that employee. 

Background

Wilson’s Hospital School is a co-educational boarding and day school in County Westmeath, Ireland. The Board of Management of the School sought a declaration that a decision on 22 August 2022 to put Enoch Burke, a teacher in the school, on paid administrative leave was lawful. The Board also sought an injunction restraining Enoch Burke from trespassing on school premises and damages for trespass. Enoch Burke attended the school in defiance of the Board's decision to suspend him. Enoch Burke was dismissed from his employment by the Board of Teaching Faculties on 19 January 2023 with effect from 21 April 2023.

He had availed of a right to appeal this decision. Suspension by a board of teaching faculties on full pay pending resolution of disciplinary proceedings was an interim measure. The Court expressed a provisional view that he was not entitled to trespass on school premises. The school principal and Board acted in accordance with their obligations under Enoch Burke's employment contract, and he had no right to enter the school premises. On the first day of trial, Enoch Burke was disorderly and in contempt of court.

His counterclaim was dismissed, and the primary issue presented for determination was whether the Board validly suspended Enoch Burke as a teacher at Wilson’s Hospital School on 22 August 2022. A second issue that arose was whether the Board was entitled to a permanent injunction restraining Enoch Burke from entering school premises. Enoch Burke's entry into school premises was trespassing, and the Board was entitled to the assistance of the law to enforce its right to exclude him. Evidence presented to the Court demonstrated that mutual trust and confidence between the Board and Enoch Burke had broken down due to his actions. Employees who have been dismissed, suspended or "locked out" by an employer are not entitled to "sit-in".

Breach of Contract

A judicial or quasi-judicial finding that an employee has been unfairly or wrongly dismissed, or suspended in breach of contract cannot, of itself, confer entitlement to re-enter the former workplace. The Industrial Relations Act 1990 does not give employees who have been suspended, locked out or dismissed a right to enter their workplace. This is because a contract of employment is not capable of being performed when an employer refuses to provide work for an employee. Courts will not force an unwilling employer to allow that employee to enter or remain on premises as part of a demand to continue to work there. Enoch Burke's right to enter the school premises was ancillary to his employment duties, and the Board had sufficient possession of the school premises and facilities to maintain an action for trespass.

Injunction to Restrain

The Board was entitled to damages for trespass and an injunction to restrain Enoch Burke from disrupting its possession of school property. This Court was assessing damages for trespass at €15,000. The Board was also entitled to a declaration that the decision on 22 August 2022 to put Enoch Burke on paid administrative leave was lawful. Procedures dealing with the suspension and dismissal of teachers are set out in Appendix 1 to Department of Education and Skills Circular 0049/2018. Failure by a principal or a board of management or disciplinary appeal panel to adhere to procedures laid down by or to be implied from the terms of the Circular may result in an irregular decision to suspend or dismiss or a finding that damages for breach of contract should be awarded.

The Circular set out the powers and functions of school principals, boards of management and appellate bodies in the contractual disciplinary process. It stated that a teacher may be placed on administrative leave with full pay pending an investigation, or pending the outcome of an investigation, a disciplinary hearing/meeting or the outcome of a disciplinary hearing/meeting. The school principal will engage in an informal process with a teacher to resolve matters prior to invoking any formal disciplinary steps. The board of management must consider the matter and seek the views of the teacher in writing on the report prepared by the principal. The most important details in this text are that the teacher should be given at least ten school days' written notice of a meeting and given an opportunity to respond.

If further disciplinary action is warranted, the board of management may avail of any of the following options: deferral of an increment, withdrawal of an increment or increments, demotion, other disciplinary action short of suspension or dismissal, suspension (for a limited period and/or for a specific purpose) with pay, suspension (for a limited period and/or for a specific purpose) without pay, or dismissal. The Circular contains a number of paragraphs under a heading “Gross Misconduct” which state that any or each of stages 1 to 3 of the disciplinary procedure may not apply, depending on the gravity of the alleged offence. Gross misconduct is a serious concern for the health and safety of students and/or staff of a school. If there is an allegation of serious misconduct, a teacher may be suspended on full pay pending an investigation and the conclusion of any appeal process. Suspension with pay may be imposed because it is appropriate that an employee does not work while an investigation or disciplinary process is taking place.

Decision to Suspend

The decision to suspend a teacher during an investigatory stage of disciplinary proceedings can be subject to judicial oversight. An allegation of serious misconduct may come from a parent, member of the Garda Sochána, or pupil. A board may consider whether suspension should be imposed before an investigation has commenced or before a detailed report has been received. A decision to suspend may be reviewed if there is a material change of circumstances. If a teacher requests a hearing or is given an opportunity to make submissions, a board must consider any such request or submissions.

A board must take a view on whether suspension is appropriate and for a valid reason. The disciplinary issue must be sufficiently serious to amount to gross misconduct, and the nature and seriousness of allegations must be taken into account. Enoch Burke objected to the proposed change of name and mode of reference to this pupil, complaining that it was an abuse of children and their constitutional rights. Niamh McShane responded with a request to make an appointment to see her if he was not willing to include this pupil in his classroom. Niamh McShane and John Galligan met with Enoch Burke to discuss his personal beliefs, the needs of the student, and the inclusive ethos of the school.

Religious Beliefs

Burke voiced opposition to transgenderism and stated that this was against his religious beliefs. Niamh McShane wrote to Burke by email on 27 May 2022, advising him that the welfare of students in the school was paramount and that the right of persons to be called by a name of their choosing in accordance with their preferred gender was a recognised right. Burke responded later that day with an email. Enoch Burke was suspended by the Board of Trustees after he interrupted a religious service in the school chapel on 21 June 2022. He asserted that the school principal had made a "demand" that staff accept what he termed "transgenderism" and that it was against his beliefs and the teaching of all Christian churches.

The Church of Ireland Bishop of Kilmore officiated the service, but Burke interrupted it and pupils who were due to make the presentation to the retired housemaster walked out of the chapel in protest. The presentation had to be rearranged on the school steps. Enoch Burke interrupted the school principal while she was socialising with guests on two occasions. The school principal reflected on the events and decided to invoke Stage 4 of the disciplinary process. This decision was made in good faith and was rational.

Gross Misconduct

It was consistent with the contractual purpose of provisions of the Circular which set out what could constitute gross misconduct by a teacher. The principal's report contained nothing which could invalidate any subsequent action by the Board. The school principal expressed her view that Enoch Burke's behaviour at the staff meeting and his public challenge to a reasonable instruction to staff may amount to gross misconduct. Niamh McShane handed a copy of her report to the chairman of the Board on 15 August 2022 and forwarded a copy to Enoch Burke. The Board decided to arrange a disciplinary hearing on 14 September 2022 and to place Enoch Burke on administrative leave until the hearing.

The Board had a duty to consider whether to suspend Enoch Burke pending conclusion of the process. The Board submitted that it had no obligation to give Enoch Burke a right to make representations prior to suspending him. The issue of whether the terms of the Circular envisage that a board of management can validly treat any actions by a teacher as capable of amounting to “gross misconduct” is an issue of construction of the employment contract. The Board acted properly in making its decisions on 15 August 2022 and the attendance of the school principal at the meeting did not affect the validity of these decisions. If the school principal had been a Board member, she would have been entitled to participate in proceedings relating to decisions at the meeting on 15 August 2022 affecting Enoch Burke.

Conclusion 

The most important details in this text are that attendance by a school principal at a meeting which decides on a preliminary step of arranging another meeting to consider suspending a teacher should not be regarded as a contravention of the rule of natural justice which prohibits the presenter of the case against that teacher from involvement in disciplinary decision-making. Additionally, participants in these decision-making processes have a duty to cooperate with decision-makers and must present their cases without engaging in disruptive tactics. Finally, participants must respect and adhere to procedural rulings of those who preside. Enoch Burke was invited to make his case on why he should or should not be suspended, but instead refused to address the purpose of the hearing. He was aware of the serious concern about his future conduct and attempted to side-track the process into a discussion on the validity of the disciplinary process.

The Board was entitled to require that he confine himself to making submissions on why it would be inappropriate to suspend him, and he did not address the issue of why he should not be suspended. The employment contract does not envisage that the Court may usurp the power of the Board to make rational and justifiable decisions on procedural matters. The Board provided Enoch Burke with a reasonable opportunity to state his case, but he chose not to take advantage of it. The Board arrived at a consensus decision that Enoch Burke should be suspended due to concern that if he were permitted to teach, he would engage in a repeat of his behaviour. There was no evidence that any relevant matter was not duly considered or that any irrelevant matter was considered by the Board in arriving at this decision.