Burke v O Longain & Ors (Approved)

Factual and Procedural Background

The Plaintiff was dismissed from employment at The Hospital School by a decision of the school's board of management following a meeting on 19 January 2023. The dismissal arose from the Plaintiff's objection to the principal's instruction that staff use a different name and pronoun ("they") for a third-year student undergoing a social gender transition. The Plaintiff publicly expressed his objection at a staff meeting, a chapel service, and a school dinner, which the school regarded as inappropriate conduct amounting to serious misconduct. The Plaintiff was suspended on full pay pending disciplinary proceedings initiated at Stage 4 of the disciplinary process under the Revised Procedures for the Suspension and Dismissal of Teachers pursuant to section 24(3) of the Education Act 1998, as provided for in DES Circular 49/2018.

The Plaintiff was subsequently dismissed by the board of management on 20 January 2023. He appealed the dismissal to the Teacher's Disciplinary Appeal Panel ("the Appeal Panel"), which was scheduled to hear the appeal in July 2023. The Appeal Panel comprised three members: a Chairperson, a representative of the recognised management body, and a nominee of the relevant teachers' union, Company A. The Plaintiff objected to the inclusion of the union nominee on the panel on the basis of alleged bias related to transgender issues but did not pursue an objection to the management representative.

The Plaintiff commenced proceedings seeking an injunction to restrain the Appeal Panel from hearing his appeal, alleging objective bias on the part of the union nominee. The defendants raised a preliminary objection that the Plaintiff was in ongoing contempt of court due to his breach of prior court orders restraining him from attending the school, which impacted the Court's discretion to grant relief.

Legal Issues Presented

1. Whether the Plaintiff has established a serious question to be tried that there is a reasonable apprehension of objective bias against the union nominee on the Appeal Panel.
2. Whether the Court should exercise its discretion to grant interlocutory relief restraining the Appeal Panel hearing in light of the Plaintiff's ongoing contempt of court.
3. The nature and scope of the disciplinary appeal under the Circular 49/2018, specifically whether it is a review of procedure or a full appeal on the merits.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff contends that the Appeal Panel hearing concerns issues related to "transgenderism" and religious beliefs, areas in which the union nominee and Company A have taken positions contrary to the Plaintiff's views.
• The Plaintiff alleges that the union nominee, as General Secretary of Company A, is associated with the union's promotion of transgender rights and has personally acted as a promoter or activist for transgenderism, including presenting awards to teachers supporting LGBTQI+ initiatives and working closely with Transgender Equality Network Ireland ("TENI").
• The Plaintiff asserts that these positions create a reasonable apprehension of bias, undermining the impartiality of the union nominee in deciding the appeal.
• The Plaintiff argues that the disciplinary appeal is not merely procedural but involves substantive review, including proportionality of sanction and appropriateness of disciplinary action.

Defendants' Arguments

• The defendants contend that the disciplinary appeal is primarily a procedural review focused on adherence to agreed disciplinary procedures, not a full merits appeal.
• They submit that the Plaintiff has not established a cogent and rational link between the union nominee's or Company A's positions and the issues to be decided by the Appeal Panel.
• The defendants argue that mere association with Company A or its positions does not amount to objective bias absent evidence that the nominee personally holds prejudicial views or that such views would influence the appeal decision.
• They rely on the Plaintiff's ongoing contempt of court as a discretionary bar to granting interlocutory relief.
• The defendants emphasize that Company A has no formal policy on transgender issues and that the union nominee acts in a personal capacity on the Appeal Panel, not as a union representative.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by outlining the established legal principles governing claims of objective bias, emphasizing that the test is objective and judged by a reasonable, fair-minded, and informed observer possessing all relevant facts. The Court noted that the Plaintiff bears the burden of proof on the balance of probabilities to establish a reasonable apprehension of bias.

The Court carefully analyzed the disciplinary process and the nature of the appeal, concluding that the appeal is primarily a procedural review rather than a full merits appeal. The Court observed that the grounds of appeal advanced by the Plaintiff predominantly concern procedural fairness, adherence to the disciplinary Circular, and whether the disciplinary process was conducted properly.

The Court then examined the factual bases for the Plaintiff's claim of bias against the union nominee, including his alleged personal promotion of transgenderism and association with Company A's positions. The Court found no evidence that the union nominee personally holds prejudicial views or that the facts relied upon would cause a reasonable person to apprehend that he would not decide the appeal impartially.

Regarding bias by association, the Court acknowledged that as General Secretary of Company A, the union nominee might be associated with the union's views in the education field. However, the Court emphasized that Company A's positions are the product of democratic processes and that the nominee acts in a personal capacity on the Appeal Panel. The Court found no cogent and rational link between the union's positions on transgender issues and the issues to be decided on the appeal that would give rise to a reasonable apprehension of bias.

The Court also considered the specific factual matters advanced by the Plaintiff, such as the presentation of an award to a teacher supporting an LGBTQI+ group, public comments by the union's Deputy General Secretary advising schools to use students' preferred pronouns, and the union's membership of external bodies including TENI and the Children's Rights Alliance. The Court concluded that these facts, when taken in their proper context and cumulatively, do not establish a fair question that a reasonable observer would apprehend bias.

Finally, the Court addressed the defendants' preliminary objection based on the Plaintiff's ongoing contempt of court for breaching prior court orders. While recognizing the seriousness of the contempt, the Court exercised its discretion to consider the application on its merits but ultimately found no basis to grant the injunction sought.

Holding and Implications

The Court REFUSED the Plaintiff's application for an interlocutory injunction restraining the Appeal Panel from hearing the Plaintiff's appeal.

The direct effect of this decision is that the Appeal Panel may proceed with the hearing as constituted, including the union nominee as a member. The Court found that the Plaintiff failed to establish a serious question that there is a reasonable apprehension of objective bias against the union nominee. No new precedent was set, and the ruling reaffirms established principles regarding objective bias, the nature of disciplinary appeals, and the Court's discretion in interlocutory injunction applications involving ongoing disciplinary processes.

The Court also indicated that the defendants are entitled to their costs, subject to any submissions from the parties within prescribed timeframes.