Teacher Enoch Burke is seeking an injunction aimed at being freed from Mountjoy Prison on the basis of his claim that a Co Westmeath school’s decision putting him on paid administrative leave pending a disciplinary process breached his constitutional rights.
Mr Burke claims there was no lawful basis for his paid suspension with the effect he should not have been jailed for contempt of a court order not to attend and teach at Wilson’s Hospital School and should be free to resume teaching there.
On Monday, Mr Justice Conor Dignam adjourned Mr Burke’s application concerning the paid administrative leave decision to Wednesday to allow the school file documents in response to it.
Other injunctions sought by Mr Burke to halt the disciplinary process did not need to be determined at this stage because the school had said that a disciplinary meeting scheduled for Wednesday was not proceeding and Mr Burke would get three days notice of any intended further steps in the disciplinary process, the judge said.
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Mr Burke had sought various injunctions to apply until the High Court decides his counterclaim that the paid suspension and disciplinary process breaches his constitutional rights to freedom of conscience, of expression and of religious belief.
He claims a report last August by the then school principal Niamh McShane, which invoked the disciplinary process, breaches natural justice and fair procedures and is “replete” with findings of fact and conclusions which are “highly prejudicial” to him.
The report was compiled by Ms McShane, after Mr Burke publicly voiced, at an event in June marking the 260th anniversary of the founding of the school, opposition to her direction in May to all staff to address a student, who wishes to transition, by a different name and to use the pronoun “they” rather than he or she.
He claims the board of management’s decision to put him on paid administrative leave pending the disciplinary process is “unreasonable, unjust, unfair and unlawful” and the process itself breaches the relevant Department of Education circular.
Mr Burke was brought to court on Monday from Mountjoy, where he was sent last week for contempt of a court order not to attend the school pending the outcome of the disciplinary process, to outline his counterclaim application.
He was committed for contempt on September 6th, after saying he could not, arising from his Christian beliefs, comply with an injunction of August 30th preventing him attending or teaching at the school. That injunction was continued on September 7th by Mr Justice Max Barrett.
On Monday, Mr Burke said a disciplinary hearing was scheduled for Wednesday at the Mullingar Park Hotel and he wanted injunctions restraining it and his paid suspension.
Barrister Rosemary Mallon, for the school, said that, after Mr Burke very clearly indicated last week he would not be purging his contempt, it was decided the disciplinary meeting scheduled for Wednesday would be postponed.
There was thus no urgency to this application and Mr Burke would be given three days notice of any further steps in the process, she said. Mr Burke was effectively seeking, in this application, both to “get around” purging his contempt of court and to appeal Mr Justice Barrett’s decision last Wednesday to continue temporary orders restraining him attending the school, she said.
There was no basis for the injunctions but, if the court was minded to grant them, counsel asked that the matter be put back to Wednesday so the school could file opposing documents. That presented no jeopardy to Mr Burke but it was “very telling” he had said, if he got the injunctions, he would be in class on Tuesday which would be “a very serious situation” for the school.
Mr Burke said he was entitled to the injunctions and the fundamental issue was that he should not have been placed on paid administrative leave.
In his ruling, Mr Justice Dignam said it seemed the real purpose of the application was to prevent Mr Burke being placed on paid administrative leave. Mr Burke had indicated, if he got that injunction, that would mean Mr Justice Barrett’s order would cease to have effect and Mr Burke could be freed from Mountjoy and back at school on Tuesday.
The judge was satisfied it would be inappropriate to grant any such injunction without all papers being before the court and adjourned that matter for the school to put in affidavits. He listed it for Wednesday when the school’s case is back before the court to allow Mr Burke indicate his stance on the contempt matter.
The judge said Mr Burke had known of his proposed suspension since August 25th but took no steps to challenge it. As the effect of the injunction sought might be to release Mr Burke, a very strong case would have to be made out for it.
The judge said, while he was not satisfied of that at this stage, he was not expressing a concluded view as all necessary documents were not before him.
Mr Burke, of Cloonsunna, Castlebar, Co Mayo, has been employed by the school since August 2018 as a teacher of German and History and has been on a permanent contract of indefinite duration since August 2020.
