Supreme Court to hear board’s appeal over order to re-engage Gaelscoil principal eight years after unlawful dismissal

The Supreme Court has provisionally decided to hear an appeal over court orders requiring a Co Wexford Gaelscoil to re-engage its school principal eight years after he was unfairly dismissed.

The appeal arises from the re-engagement last August of Aodhagán Ó Súird as principal of Gaelscoil Moshíológ in Gorey, Co Wexford.

The issues raised are of general public importance and could have implications for other disciplinary investigations and employment law proceedings, a three-judge panel of the court said in a written determination.

Before the appeal can proceed, the Supreme Court will first decide whether the school’s management body has the necessary authority to pursue it.

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Mr Ó Súird contends the outgoing board of management (BOM) had no authority to lodge appeal papers prior to it being dissolved last August and after a new school manager was appointed.

The Supreme Court has noted a letter from solicitors for the BOM said, before the board became inquorate, they received instructions to appeal with the knowledge and consent of the school patron. The solicitors also said the manager was fully briefed on the matter.

A case management hearing will be held next month.

If the court decides there is authority to appeal, it is expected to make directions for exchange of legal documents and fix a date next year to hear the appeal.

The Labour Court is the respondent to the appeal while Mr Ó Súird and the Department of Education are notice parties.

Mr Ó Suird was re-engaged as principal last August by order of the High Court’s Mr Justice Brian Cregan, following the judge’s July judgment dismissing an appeal by the BOM against a 2019 Labour Court decision that Mr Ó Súird was unfairly dismissed in 2015.

At the August hearing, the judge was told Carol Scott, who was appointed principal of the school in July 2016, had reached a “mutually satisfactory” agreement with the Department of Education.

Mr Ó Súird was placed on administrative leave by the board after an incident in January 2012 where he physically pulled a seated first class pupil “towards me by his jumper to remonstrate with him”.

The boy’s parents accepted Mr Ó Súird’s apology and considered the incident a “minor” one but complaints by other parents about it led to him being placed on administrative leave.

The board referred the incident to the HSE which concluded in November 2012 the matter did not involve physical abuse of a child and recommended the school carry out its own investigation with a view to preventing such incidents.

The High Court said the board instead began to investigate other issues relating to inflation of pupil enrolment figures forwarded by Mr Ó Súird to the Department of Education in 2009. He was suspended in May 2013 and dismissed with effect from November 2015.

Mr Ó Súird maintained the board was informed of, and approved, his conduct in relation to the enrolment figures. He argued the issue of reporting enrolment figures was a grey area at the time with conflicting guidance between Department of Education circulars and the provisions of the Education (Welfare) Act 2000.

The WRC, Labour Court and High Court all held he was unfairly dismissed.

According to the Supreme Court determination, the proceedings concern the employment responsibilities of a school principal in making pupil enrolment returns to the Department and the extent to which the agreement or consent of a school board of management (BOM) to those returns can affect the reasonableness of a differently constituted board to dismiss him on account of those returns.

The appeal, it stated, also raises matters concerning the obligations of BOMs before making allegations of fraud against a teacher, and a principal in particular, and the consequences where an unfair dismissal has been found but when the fraud allegations are not proven and may be held to have been unreasonably levelled in disciplinary proceedings.

Other issues include the principles to be applied when ordering the re-engagement, rather than reinstatement, of a principal.

That will involve the court considering to what extent an employer’s asserted lack of trust in an employee whom it has unfairly dismissed, and the fact it had employed another person to the post of principal on a permanent basis, should be factored into the consideration of re-engagement.