FULL RECOMMENDATION
PARTIES : AN BORD BANISTÍOCHTA GAELSCOIL MOSHÍOLÓG DIVISION :
SUBJECT: 1.An appeal of Adjudication Officer's Decision No.ADJ-00001777 CA-00002471-001 he Complainant referred his complaint under the Act to the Workplace Relations Commission on 8 February 2016. The matter came on for hearing before an Adjudication Officer on 4 December 2017. The Adjudication Officer decided the claim was well-founded and awarded re-engagement to the Complainant. The Respondent’s Notice of Appeal was received by the Court on 5 June 2018. The Court heard the appeal over eleven sitting days (between 7 November 2018 and 5 July 2021) in the course of which it heard the evidence of five witnesses for the Respondent (Dr Melanie Ní Dhuinn, Ms Niamh Ní Shúilleabháin, Mr Malcolm Byrne, Dr Carl Ó Dálaigh and Mr Enda McEvoy), the Complainant’s evidence and that of three witnesses for the Complainant (Ms Rachel Fitzpatrick, Ms Grainne Quirke and Mr Brian O’Reilly). Following the conclusion of the oral hearing, the Parties’ representatives submitted detailed written legal submissions and closing arguments. 1 September 2002: Commencement of the Complainant’s employment as Principal in the newly-founded Respondent school October 2009: The Complainant makes annual returns to the Department of Education for the enrolment year 2009-2010 November/December 2011: New Board of Management appointed; Dr Ní Dhuinn appointed as Chairman of this Board at the invitation of the Complainant 11 January 2012: Single child incident occurs 18 January 2012: Decision of Board to place Complainant on administrative leave following incident of 11 January 2012 20 January 2012: Complainant’s administrative leave commenced 26 January 2012: Letter from Board of Managment ‘confirming’ administrative leave 5 November 2012: HSE confirms to the Board and to the Complainant that the single child incident did not require child protection intervention. 3 December 2012: The Board extends the Complainant’s administrative leave to 31 January 2013 to conclude its own investigation into the single child incident 13 March 2013: The Board writes to the INTO indicating its intention to investigate a range of additional disciplinary matters other than the single child incident 29 May 2013: The Board writes to INTO stating that it was initiating disciplinary procedure in relation to the enrolment figures issue 5 November 2014: First hearing date of disciplinary proceedings 8 April 2015: Second hearing date of disciplinary proceedings 2 June 2015: Third hearing date of disciplinary proceedings 31 August 2015: Letter of Malcolm Byrne, Acting Chairperson of the Board, dismissing the Complainant with effect from 30 November 2015 9 November 2015: Appeal hearing takes place at the offices of the Department of Education and Skills in Athlone before Disciplinary Appeal Panel, at which the appeal of the Complainant’s dismissal is confirmed 30 November 2015: Date of termination of employment 8 February 2016: Complainant referred complainant under Unfair Dismissals Act 1977 to the Workplace Relations Commission 25 April 2018: Date of Adjudication Officer’s Decision and order of re-engagement 5 June 2018: Respondent’s Notice of Appeal received by the Labour Court Summary of the Evidence Dr Melanie Ni Dhuinn Dr Ní Dhuinn informed the Court of her professional background in education. She is a qualified and experienced post-primary teacher and an assistant professor in education at Trinity College Dublin and Director of the Professional Master of Education programme there. She was invited by the Complainant to become the Chairman of the Board towards the latter end of 2011. She attended one meeting of the Board in 2011 at which the Complainant was also present. Her evidence then moved to what was referred to in these proceedings as the single child incident that occurred in Gaelscoil Móshíológ (‘the School’) on 11 January 2012. T he incident involved an interaction the Complainant had with a pupil in first class which he was teaching at the time. The Complainant subsequently reported the incident in the course of a telephone call to Ms Ní Dhuinn and acknowledged it shouldn’t have happened. He told her that he had grabbed the pupil in question by his jumper, lifted him up and then put him back down again. The witness subsequently sought advice from the School’s Patron – An Foras Pátrúnachta – and was directed to make contact with the Department of Education and the HSE. The Department advised that the appropriate course of action was to put the Complainant on administrative leave pending an investigation of the incident and to inform the School’s legal advisors. The Board met on 16, 18 and 19 January 2012. The witness advised the Complainant verbally at his home on 20 January 2012 that he was being placed on administrative leave and confirmed this in a letter dated 26 January 2012. The Complainant continued to perform the administrative tasks associated with his duties as Principal from home. He attended at the school only in the mornings and evenings outside class times to collect and return relevant papers and correspondence. Meanwhile, the Deputy Principal, Ms Niamh Ní Shúilleabháin who was the Designated Liaison in the school for child protection purposes, reported the incident of 11 January 2012 to the HSE. The witness gave detailed evidence of the engagement that took place between the Board (and the witness as Chairman) and Mr Greg Mullen of the HSE, and the HSE’s progression of its investigation into the incident of 11 January 2012. It is not necessary to reproduce the detail of that evidence here save to say that both the Complainant and the Board were informed in writing by the HSE in early November 2012 that the HSE had concluded its assessment of the incident of 11 January 2012 and had determined that “the incident cannot be said to have constituted physical abuse of a child”. The HSE, nevertheless, requested the Board to complete its own investigation of the incident. The Board, thereafter, requested the Department to extend the Complainant’s period of paid administrative leave until 31 January 2013 to allow the Board to conduct its investigation. Meanwhile, the witness on behalf of the Board, sought clarification from the HSE in relation to the contents of the HSE’s letter dated 5 November 2011. The HSE reverted on 15 January 2013. The witness said she then commenced an investigation of the incident of 11 January 2012 on behalf of the Board. The witness told the Court that she commenced that investigation by interviewing Ms Ní Shúilleabháin who at that point (in January 2013) raised, for the first time, a number of concerns with her regarding the absence of policies within the school (including a child protection policy) and the inadequacy of certain existing school policies. According to the witness, Ms Ní Shúilleabháin also articulated her concerns about enrolment practices in the school and the overstatement of numbers enrolled in annual returns to the Department of Education and the consequent additional funding received by the school. Dr Ní Dhuinn’s recollection was that Ms Ní Shúilleabháin told her that she herself had been approached by another teacher in the school – Ms Caroline Ní Ghríofa – who also had concerns about enrolment practices there. Although, responsibility for managing the school’s roll books had been delegated to Ms Ní Shúilleabháin by the Complainant, she told the witness that the Complainant directed her to complete the roll books each year based on lists of pupils’ names furnished by him. The concerns raised with her by Ms Ní Shúilleabháin prompted the witness to seek full access to the school’s roll books and associated documentation. Having reviewed them, she became concerned by, for example, the use of Tippex in the roll books and the removal of names from roll books at different points in time. She queried this with Ms Ní Shúilleabháin who told her that she had been instructed to make amendments to the roll books by the Complainant. The witness also spoke to Ms Ní Ghríofa who had been a newly qualified teacher and on probation in 2009 and, therefore, subject to regular inspection. Ms Ní Ghríofa told the witness that she did not receive a roll book until October 2009 and that it contained names of children who had not attended her class. The witness also spoke to the school secretary, Ms de Búrca, and carried out a review of the roll books and attendance books to try and identify which children were and were not in attendance. In addition, she reviewed the minutes of the Board’s meetings during 2009, the school accounts and the capitation payments received based on the numbers of pupils enrolled. She then made a presentation to the Board in March 2013. This in turn, according to the witness, prompted the Board to have concerns about the school’s financial situation and a decision to conduct a financial audit and to put in place revised financial procedures. The witness told the Court that she was spending up to twenty hours per week dealing with a range of issues in her capacity as Chairman of the Board – she was in regular contact, for example, with the Department in relation to an issue that had come to light about non-compliance with the ‘Croke Park hours’, as well as dealing with the regular oversight of the School’s management. Meanwhile, the Complainant remained on extended administrative leave and the INTO on his behalf wrote on a number of occasions to seek to have the Board’s investigation into the January 2012 incident progressed. The Board’s Solicitors, Mason Hayes & Curran, were instructed to inform the Complainant that the Board had made a decision to investigate additional issues concerning his stewardship of the school. In a letter dated 13 March 2013 and addressed to the then Assistant General Secretary of the INTO, Ms Anne McElduff, Mason Hayes and Curran stated: “It is regrettably the case that serious issues have arisen which require to be investigated by the Board of Management. The Chairperson, Ms Melanie Ní Dhuinn, is preparing a comprehensive report on the issues of concern which will be forwarded to the Board of Management for investigation under the disciplinary procedures. In addition to the child protection issues which gave rise to the referral last year to the HSE, serious issues of concern with regard to the administration of the school have recently come to light which require to be fully investigated. The Chairperson is aware of the urgency of this situation. She has no desire to keep your client (sic) on administrative leave indefinitely. The Chairperson will be in a position to refer her concerns to the Board of Management for investigation once the details of the issues of concern surrounding the administration of accounts have been finalised. The Principal will remain on administrative leave pending the outcome of the investigation. The Chairperson of the Board of Management will be in contact with the Principal in this matter (sic) as soon as possible.” On 29 May 2013, Ms Ní Dhuinn, in her capacity as ‘Cathaoirleach, An Bord Bainistíochta’ wrote to Ms McElduff stating, inter alia: “However I now wish to inform you as Mr Swords’ representative that I have decided to initiate the agreed disciplinary procedures in relation to a very serious matter which has just recently come to my attention. I note that in 2009 the names of 18 non-existent children were added to the school roll in or about September 2009. They remained on the school roll until between October and November 2009 and were removed intermittently during this timeframe …. I consider the Principal to be responsible for any intentional misrepresentation of the position with regard to the enrolment of students in the school during the months of September, October and November 2009 to the Department of Education & Skills … I am initiating the disciplinary procedures at Stage 4 of the disciplinary procedures. I have referred this letter with its attachments as the comprehensive report of the facts of the case to the Board of Management … Please note the Principal is suspended on full pay pending the outcome of this disciplinary investigation and the conclusion of any appeal process. I confirm that as the complainant in this matter I will not participate in the Board’s deliberations in this matter. It is my intention to submit a further comprehensive report to the Board of Management in relation to the other serious issues that have arisen in Gaelscoil Moshílóg namely: Incident involving the Principal and a 1st class pupil in January 2012 Financial management of the school accounts – currently under audit Compliance with DES regulations with regards to time in school, school calendar and fulfilment of requisite days Compliance with operationalisation of Croke Park hours and related productivity Compliance with Education Act with respect to development of and operationalisation and implementation of school policies Significant exposure of BOM to litigation by parents of a current pupil Significant exposure of BOM to 2 cases at the Equality Tribunal Breaches of Teaching Council Code of Professional Conduct” The witness told the Court that she was applying Stage 4 of the Disciplinary procedure agreed between the teachers’ trade unions and the Department pursuant to section 24(3) of the Education Act 1998. Her evidence was that a draft of the above letter and the appendices referred to in it (copies of extracts from the school rolls and formal statements taken from three named staff members) had been submitted to the Board in fulfilment of the requirement at Stage 4 that a report be prepared into the relevant disciplinary allegations for the Board’s consideration. The witness said that the Board had made the decision to prioritise the enrolment issue as a disciplinary matter ahead of the other matters referred to in the report/ letter. The witness notified the Department of Education of the Board’s concerns regarding the enrolment issue. The Department then commenced its own investigation process. Ms Ní Dhuinn also confirmed that with effect from the date of the above letter, the Complainant stood suspended on full pay, his administrative leave having been discontinued. He was, therefore, relieved of his administrative responsibilities as Principal as and from 29 May 2013. The witness confirmed that the Complainant’s disciplinary hearing was conducted over three sittings (5 November 2014; 8 April 2015 and 2 June 2015) and was convened to address the alleged fraudulent misrepresentation by the Complainant of the enrolment figures in the 2009-2010 academic year. Mr Malcolm Byrne was appointed as Interim Chairman of the Board of Management and he chaired the disciplinary hearings while Ms Ní Dhuinn assumed the role of ‘complainant’/’prosecutor’ in the process but took no part in the disciplinary panel’s deliberations. Along with Mr Byrne, the panel comprised Mr Alan O’Neill (a parents’ representative on the Board of Management); Ms Nola Farrell (a community representative on the Board); Ms Avril Forrest (a Church of Ireland representative on the Board) and Ms Nicola Dempsey (also a parents’ representative). The Complainant was represented throughout by Mr Robert Dore, Solicitor. (A full transcript of the disciplinary hearing was provided to the Court.) Written submissions were received and accepted from Mr Dore following the conclusion of the oral hearings. The Board was represented by Mason Hayes and Curran. Finally, Counsel for the Respondent invited the witness to describe her relationship with the Complainant. She told the Court that she had known him in the community as the Principal of the Gaelscoil and that she had previously done some work as an educational specialist in the school at the Complainant’s invitation. She said she also knew the Complainant’s wife professionally and had a good relationship with her. Her children and the Complainant’s children were friends and she had endeavoured at all times to keep the Complainant’s case from impacting on their respective children’s relationship. She stated categorically that she held no animus against the Complainant and that she had not prejudged any of the allegations against him. In cross-examination, Mr Callanan SC asked the witness what was the status of the additional grounds of complaint against the Complainant identified in her letter of 29 May 2013. She replied that the issues had been ‘raised and communicated’. Counsel asked the witness why the decision was taken to place the Complainant on administrative leave following the single child incident. The witness said the decision was made based on advice from An Foras Pátrúnachta, the Department of Education and Science and legal advice from the School’s legal advisors, Mason Hayes & Curran. She denied that the Board of Management, in making that decision, was abdicating its responsibility to the Complainant as his employer as it was obliged to follow the procedures provided for in the Education Act 1998 and agreed with the teachers’ trade unions. Counsel referred the witness to a letter of 11 May 2012 from the INTO requesting the immediate re-instatement of the Complainant. The witness stated that the Board did not convene to consider this request because the HSE’s investigation was still continuing. The HSE advised on 13 August 2012 that no child protection intervention was warranted arising from the events of January that year. However, the HSE only formally conveyed that its investigation was completed on 5 November 2012. Counsel asked the witness why she then wrote to the HSE to request that the investigation into the Complainant be re-opened. She replied that the Board had ongoing concerns because of apparent discrepancies between what a number of parents had stated in correspondence to the Board and what they had subsequently told the HSE. Ms Ní Dhuinn told the Court that at that point that she has ongoing child protection concerns about the Complainant. She also told the Court that additional issues raised against the Complainant and outlined in her letter of 29 May 2013 had come to her attention in January of that year. She had requested Ms Ní Shúilleabháin to prepare a detailed report about the enrolment issues. Mr Callanan SC then cross-examined the witness in some detail about why Ms Ní Shúilleabháin and the Complainant were subject to separate disciplinary procedures in relation to this matter and why the sanctions imposed on them differed significantly. The witness in reply stated that this was explained by the fact that it had been the Complainant who had made the inaccurate returns to the Department and had done so from his own personal email address. Evidence of Ms Niamh Ní Shúilleabháin The witness told the Court that she qualified as a primary school teacher in 1998 and commenced working in the School in 2003 and was appointed Deputy Principal in Spring 2005. She was acting Principal from January 2012 (when the Complainant was placed on administrative leave) until April 2015. The witness outlined what had been the School’s enrolment practice up until early 2013 – i.e. to accept any child who applied to attend. However, she said, there was a need to formalise an enrolment policy in circumstances where the numbers attending were increasing so as to avoid an over-enrolment in individual classes. iThis issue was raised at a Board meeting in January 2013 following which Ms Ní Dhuinn requested sight of the roll books. According to the witness, Ms Ní Ghríofa at this time also raised her concerns with Ms Ní Dhuinn and Ms Ní Shúilleabháin about enrolment of pupils during her (Ms Ní Ghríofa’s) first year of teaching (2009-10) in the School. The witness recalled Ms Ní Dhuinn stating that the practice described by Ms Ní Ghríofa was ‘serious’ and amounted to ‘fraud’. The witness gave a detailed account of her responsibility as Deputy Principal for the maintenance of the Register (Clár Leabhar) and Roll Books and how and when data was entered into the various books. She said the Principal prepared a database of names in September which he gave to her and instructed her to enter the names and other details into the books. In 2009, Ms N? Ghriofa asked her what she should do in relation to children whose names were on her class list but who had not attended. A list of attendees was taken each day and returned to the office for inclusion in the Leabhar Tinreamh. The witness said she was told by the Complainant to delay completing the Roll Books until the end of September and was then told by him on 2 October 2009 to mark as absent those children who were not attending. She says she was given further detailed instructions by the Complainant in relation to those children including retrospectively removing the names of a number of them from the books from the end of September. She told the Court that when she queried this with the Complainant he had been very vague in his replies but had said something along the lines of ‘We might have needed the numbers’. In relation to the pupils who had been recorded as having attended intermittently, the witness said that the Complainant instructed her to say, if ever asked about then, that they just hadn’t settled in. According to the witness, the Complainant also advised her, “The parents know about it. They agree with it”. She told the Court that if an Inspector ever queried the books she had been instructed to send the Inspector to the Complainant. The witness’s evidence then turned to her role in preparing the report on enrolment practices for the Board. She confirmed that the report was her work alone and she had not been assisted by Ms Ní Dhuinn in preparing it. Neither had she had any eye on trying to exonerate herself in the process. She outlined the disciplinary process she was subject to and the sanction of a final written warning she received. Evidence of Mr Malcolm Byrne The witness outlined his professional background and his prior experience as a member of the board of management of two secondary schools. He became a member of the Board in December 2011 as a community representative, he said, at the Complainant’s invitation. He remained on the Board for one four-year term. The witness told the Court that Ms Ní Dhuinn had informed a meeting of the Board in January 2013 that she had received a complaint against the Complainant. He said she subsequently reverted to the Board and said that she had formed the view that the Complainant had a case to answer. The matter did not appear again on the agenda of the Board’s meetings while the investigation was underway. The Complainant said that he had been selected to act as chairman of the disciplinary panel at a meeting of the Board at which Ms Ní Dhuinn was not present. He obtained legal advice from An Foras Pátrúnachta before making arrangements for a disciplinary hearing arising from an allegation of enrolment fraud against the Complainant. It was alleged that the Complainant had caused the names of eighteen children who had not attended the School to be listed in the School’s records. The witness outlined the conduct of the disciplinary hearing over three sittings. He said Ms Ní Dhuinn presented her case as ‘prosecutor’ and was then cross-examined by the Complainant’s representative, Mr Dore. Two witnesses – Ms Ní Shuilleabháin and Ms N? Ghr?ofa – gave evidence for the ‘prosecution’. The Complainant called four witnesses in support of his defence, including two parents (Ms Rachel Fitzpatrick and Ms Gráinne Quirke, both of whom were also previously members of the Board), Mr Evan Stack and Mr Brian O‘Reilly. The witness told the Court that the Complainant had accepted that he had made a fraudulent return to the Department in relation to the number of pupils enrolled but stated, in his defence, that this was common practice and a matter to which the Department turned a blind eye. The witness said he understood Ms Fitzpatrick’s evidence to be that the Board in place at the time left the management of enrolment issues to the Complainant from which he inferred that the Board did not know of the false returns. His evidence to the Court was that the disciplinary panel concluded that the Board had not instructed the Complainant to falsify the number of pupils enrolled in the School; that the Complainant was an experienced teacher and principal and was fairly aware of the import of his actions and he should have known that the enrolment returns made to the Department each year in October are ‘sacrosanct’. In relation to his assessment of the Complainant’s defence, the witness referred to the evidence given by Mr Evan Stack (Principal Teacher) to the disciplinary hearing. He had told the panel that he fully understood the challenges facing a fast-growing school but that he, personally, had never returned the name of a child who was not actually enrolled to the Department. The disciplinary panel concluded that there was no evidence before it that supported the defence the Complainant had sought to advance. The panel, therefore, took the decision to dismiss the Complainant, he said, as the Board no longer had any trust or confidence in him as a consequence of the fraud he had committed. The panel concluded that the Complainant had blatantly failed in his duty as Principal, according to the witness. He proceeded in his evidence to explain why, in his view, Ms Ní Shúilleabháin had received a lesser sanction. He said that the Complainant was wrong to have instructed her to insert the names of children who hadn’t attended the School on the roll. She was a young teacher at the time in question. However, in the witness’s words, she subsequently came forward as a whistleblower. The witness said he had no animus towards the Complainant and fully acknowledged that he had been the driving force in building the School up from nothing. Under cross-examination, the witness stated that the disciplinary panel had had no discretion regarding the sanction it imposed on the Complainant having regard to the seriousness of the allegation against him. Counsel put it to the witness that the Complainant had been upfront at all times in relation to the returns that he made to the Department for the 2009-10 school year, admitted his error at the disciplinary hearing and hadn’t been in any way dishonest in his evidence to the disciplinary panel. Counsel referred to the Complainant’s period on administrative leave from 26 January 2012 until 13 March 2013, followed by a period of paid suspension. When asked why the Complainant was not re-instated when the HSE investigation had concluded, the witness stated that a second issue (i.e. the allegation of fraudulent returns to the Department) had emerged at this stage. The witness agreed that the Complainant should have been informed of the allegation at that stage. Evidence of Dr Carl Ó Dálaigh This witness – a former Deputy Chief Inspector in the Department of Education - outlined the composition of the expert panel that heard the Complainant’s appeal from the disciplinary panel’s decision to dismiss him. The panel comprised the witness, Mr Michael McGarry of the INTO and Mr Séamus Caomhánach, a retired Department Inspector. The witness also gave evidence in relation to the conduct of the appeal and the grounds of defence advanced by the Complainant at that stage. Evidence of Mr Enda McEvoy The witness is an Assistant Principal Officer in the Department of Education and has worked in the School Governance section of the Department since 2018. He has responsibility for dealing with cases of enrolment irregularity. He referred to the Departmental circulars that have issued annually since 2002 in relation to enrolment – beginning with Circular 24/2002. He told the Court that he was aware that seven cases arising from alleged fraudulent enrolment returns had been referred to An Garda Síochána prior to 2013 which gave rise to convictions in three cases. He said he was aware that one principal had been dismissed for such activity in 2011. He also said that in the majority of cases a principal accused of making fraudulent returns will often resign prior to any prosecution being commenced. Mr McEvoy told the Court that there is not a widespread practice of making false enrolment returns to the Department. Neither is it – according to the witness – something the Department would turn a blind eye to as it investigates every allegation, including those that come from anonymous sources. He confirmed that the Department has no power of prosecution or no authority to initiate disciplinary action against a principal accused of making false returns. However, he said, the Department has a responsibility pursuant to section 18 of the Education Act for all monies it pays out from Exchequer funds and to ensure no monies are obtained fraudulently. Where allegations are raised, these are referred by the Department to An Garda S?ochána who make the decision to prosecute or not. The witness said that the principal of each primary school has a statutory responsibility to ensure that the annual enrolment figures returned to the Department are correct. The board of management of a school signs off on the numbers provided to it by the principal and is obliged to place its trust in the principal in this regard. According to the witness, a child who has never attended class should not be included in the enrolment returns. In answers to questions from the Court, Mr McEvoy said that there had been on average two to three cases of inflated enrolment returns to the Department per year between 2003 and 2015 and one case since 2015. He said it is much more difficult to overstate the numbers enrolled now as the system for making returns has been automated since 2015 using PPS numbers inputted online. Evidence of Ms Rachel Fitzpatrick The witness gave evidence in relation how she came to be involved in the establishment of a gaelscoil in Gorey. She said she became aware of an advertisement in the local newspaper inviting anybody interested in this proposed development to attend a meeting in the Loch Garman Arms Hotel in Gorey. She attended the meeting and stayed back afterwards to volunteer herself as a member of the committee to be established to move the proposal forward. There were sixteen members on that committee initially but this dwindled to six eventually. The committee worked very hard for about a year, with the advice of An Foras Pátrúnachta and Gaelscoileanna, identifying suitable premises, advertising and recruiting parents. Gaelscoil Móshíológ opened its doors then in September 2002 with four classes. The witness said that the committee became concerned in the lead-up to the opening of the School that they may not have sufficient numbers to be viable. She says they were advised by the founding members of other gaelscoileanna that they would not know the actual numbers attending until the start of the school year and that if there was a problem with numbers then they should go to parents of children attending and enquire if those children had siblings who had reached the age of four on the first of September who were going to playschool and they should put their names on the roll. She said the committee was told that this is how other gaelscoileanna in the region managed to establish themselves. The witness said that she was nominated by An Foras Patrúnachta as interim Chairperson for the first year but a Board was not formally put in place until the following school year when the School moved to the GAA premises. She said that she was on that Board along with Ms Gráinne Quirke, Ms Catriona Dixon, Ms Clodagh O’Mahony, Ms Niamh Ní Shúilleabháin, Mr Paul Sheridan and the Complainant. She said she remained as Chairman of the Board until Ms Joan Doyle replaced her in 2003 or 2004. However, the witness remained as the Foras Patrúnachta nominee on the Board until 2011. Asked about enrolment practices in the first number of years after the school opened, the witness said that they needed to demonstrate viability and grow so they put the names of children on the rolls who were not actually attending but were likely to attend in subsequent years. The Board members themselves suggested the names of their own children, for example. She said the Board had been advised to do this. The extent of the practice varied from year to year she said. She and the Board engaged regularly with the Complainant in this regard particularly in advance of and at the beginning of each school year. The witness said the Board was aware at all times about the situation vis-á-vis numbers of pupils enrolling and the entire Board felt it was their responsibility to achieve the desired numbers “officially or unofficially” so as to achieve the necessary increase in teacher allocation for the following year. She said the administrative work in this regard was done by the Complainant but members of the Board supplied him with the names of children for inclusion on the rolls. Counsel referred the witness to the minutes of a meeting of the Board of Management on 7 May 2009 which contained a reference to correspondence from the Department regarding the number of pupils required to be enrolled in order to qualify for the appointment of an additional teacher the following year. The witness said at that time there were 160 pupils enrolled, eight of whom were in sixth class and would, therefore, be leaving at the end of the school year. The school needed to have 198 pupils enrolled in order to qualify for an additional teacher. The projected number of students in the school at the start of the next school year was 193 – a shortfall of 5 pupils - according to the witness. The witness stated that discussions of this type were commonplace at Board meetings during her period as a member, particularly at the final two Board meetings of the year and the first Board meeting at the start of the new school year. The witness was asked about how her term on the Board ended. She told the Court that An Foras Pátrúnachta informed the Board it was to be disbanded at the end of 2011 and replaced by a totally new one. The witness told the Court that she was never approached by Ms Ní Dhuinn as part of her investigation into the allegations levelled against the Complainant in relation to the enrolment returns he made in October 2009. She was referred to the evidence she gave to the Disciplinary Panel and confirmed that her evidence on that occasion was that the issue of numbers being enrolled was discussed at Board of Management meetings when she was a member and the Board assisted the Complainant in identifying names of actual children that could be included on the books to make up the numbers. Counsel then referred the witness to paragraph 5.1 of Circular 24/2002 which provides: “Where a teacher, principal or Board of Management have falsified or collaborated in falsifying the enrolment on the 30th September, action will be taken in accordance with the terms of Rule 108 of the Rules for National Schools.” The witness confirmed that she had never been the subject of any action in relation to the falsification of enrolment figures. She also confirmed she had never been contacted by the Department of Education or by An Garda Síochána in relation to the allegations levelled at the Complainant. She then said that Ms Niamh Ní Shúilleabháin’s evidence to the Disciplinary Panel was that she was unaware of the discussions at Board level about enrolment numbers taking place. According to the witness, Ms Niamh Ní Shúilleabháin’s evidence in this regard was incorrect as she - Ms Niamh Ní Shúilleabháin – had been present for those discussions. She also referred the witness to the sections of the transcripts that recorded Mr Dore’s summary of the Complainant’s evidence to the effect that his evidence was that “he was acting with the full knowledge and cooperation of the Board of Management” and that this was specifically the case in relation to the 2009/2010 returns. Counsel put it to the witness that Ms Niamh Ní Shúilleabháin had given contrary evidence to the Disciplinary Panel. The witness replied that Ms Ní Shúilleabháin had not been a member of the Board in 2009. The witness accepted that there were no minutes in existence to document this. She said that such conversations were “off the record” and that no member of the Board had objected to what the Complainant was proposing or doing. The witness was asked whether the Complainant had given similar information at meetings of the Board of Management that held office from 2003 to 2007. The witness confirmed that he had. The witness also said that they were facing the possibility of having to introduce a number of mixed classes – where the pupil/teacher ratio would also be high – and this went against the grain of what the School had been selling to prospective parents i.e. a lower pupil/teacher ratio. The Court also asked the witness to clarify her evidence in relation to Ms Ní Shúilleabháin’s level of engagement in the “unofficial” discussions that the witness said were a regular feature of certain Board meetings. Her clarification was to the effect that Ms Ní Shúilleabháin was present for those discussions (as a member of the Board between 2003 and 2007) but that she didn’t actively contribute to them. Evidence of Ms Gráinne Quirke The witness explained that her first daughter commenced as a pupil in Gaelscoil Móshíológ in September 2002 and during that school year there was a call for volunteers to serve on the Board of Management. The witness said that she put her name forward and was elected. The Board took office some time in 2003 and the witness served as treasurer. During her term in office, she said, she put a number of financial policies in place. In order to ensure the future viability of the school, the Board encouraged parents of potential pupils to register their names. She referred to her second daughter whose name she had registered when the School opened and whom she intended would attend either in 2004 or 2005. She said that the Board was constantly discussing numbers. The Complainant asked her towards the end of the school year in 2004 was her second daughter going to attend the following September. The witness said she told the Complainant that she was happy to have her daughter’s name placed on the roll and she could attend for a day or two but that realistically she wouldn’t attend on a full-time basis until September 2005. She said that people from other schools had visited to explain to them what needed to be done to keep the School viable and they emphasised the need to keep the numbers up in order to achieve official recognition for the School and increased capitation. Finally, she said she thought it was an “abomination” that the Complainant had been dismissed for overstating numbers in the returns to the Department as she was of the view that he did what he did for the good of the children and the school and not to benefit himself. The witness also confirmed that no fictitious names were ever placed on the roll. She said that the names belonged to real people who eventually attended the School, but not necessarily in the year that their names were first included in the roll. She said that to her knowledge the approach taken by the Board was endorsed by An Foras Pátrúnachta. She reiterated her evidence to the effect that everyone on the Board of Management was fully aware of what was going on in relation to the school’s enrolment practices that were discussed at the Board meetings and implemented then by the Complainant. Evidence of Mr Brian O’Reilly He outlined his teaching career and the various positions he held as Principal up until his early retirement in 2017. He said he also had an active involvement with the INTO as a member of its Executive. The witness referred to the Education (Welfare) Act 2000 which provided for the appointment of Education Welfare Officers in place of Juvenile Liaison Officers (members of An Garda Síochána). More significantly from a Principal’s point of view, he said, was the new requirement under the Act to retain those pupils entered on a school’s roll until such time as the school had been notified by a subsequent school that they were now enrolled there. This meant, according to the witness, that a school remained responsible for the welfare of a pupil where that pupil didn’t return to school and no notification was received that the pupil had been enrolled elsewhere. He gave the example of a number of children from the Traveller Community who remained on the books of his school for several years even though they had moved away and nobody knew where they had gone to. He said that in effect the 2013 Circular was an announcement “in big bold letters” that the Department would henceforth refer the issue of claiming capitation for non-attending pupils retained on the roll books to An Garda Síochána for prosecution. He said he welcomed this development as a clear indication that the practice that had been developing in this regard was no longer acceptable. He said that it had a clear impact on his subsequent communications as an Member of the INTO Executive to School Principals. According to the witness, it had been his experience throughout his career that when an Inspector visited the school he/she would ask to see the Leabhar Tinreamh and the Leabhar Rolla and would initial them but this practice ceased from about 2002/03 onwards. He went on to say that he believed there was, therefore, a significant change of practice in schools as there were now education welfare officers employed to monitor when pupils were attending and to look after them when they weren’t attending and the Inspectors no longer signed the roll books. He gave the example of Traveller children whose family went to Birmingham each year between March and September and who returned in October that he counted for capitation purposes because he knew they would come back. He said he always advised his Board of Management of this practice. The witness opined that the Complainant should not, in his view, have been sacked for what occurred in 2009 because of what he referred to as “the ambiguity of the Education Welfare legislation”. He said, “By all means sanction him, don’t sack him because he was not unique in what he was doing. That’s my view”. In his reply, the witness said he accepted the letter of the law but his difficulty as a Principal is that he had one piece of legislation telling him to keep pupils on the roll for their welfare and benefit and a circular telling him that he couldn’t claim capitation for them or claim extra teachers while these pupils were on the roll. Nevertheless, he said, he would have been expected to be able to accommodate them if they returned during the school year. He couldn’t refuse to take them back. He said this way of thinking reflected the practice at the time and was motivated by a desire to do the best thing for the school and the children in an environment where pupil/teacher ratios were high, resources and money scarce. The witness replied that they are in circumstances, for example, where the parent attends an open day, gives a verbal commitment to send the child and completes an application form. Ms Kimber then referred the witness to paragraphs 4 and 5 of Circular 24/2002. She asked him to confirm that the Education (Welfare) Act 2000 only applies to children over six years of age. He agreed that is the case but as a Principal, he said, he is equally responsible for children from four years of age who come to school. He expressed the view that the Act of 2000 gave rise to double standards in relation to the provision of care to four year olds as opposed to six year olds. This, he said, indicated that a significant change had come about between 2000 and 2009. He continued his evidence stating that he accepted that there was no ambiguity in the wording of the 2009 Circular but that the reality for School Principals was very different, he said. “Only pupils who were validly enrolled on 30 September 2009 should be taken into account for the purpose of determining staff numbers. In this regard the terms of Department Circulars 24/02 - Determination of Valid Enrolment in Primary Schools and 32/03 – Retention of Pupils in Primary Schools must be adhered to. Pupils retained on the school register on 30 September, 2009 for the purpose of compliance with the Education and Welfare Act, 2000 should not be counted towards valid enrolment for the purpose of determining staff numbers.” [Emphasis in original] The witness confirmed that this is what the Circular provides for. However, he opined that the reason the Department published the 2010 Circular was because the ambiguity that Principals were living with gave rise to a situation where many “schools were behaving in a manner outside the law”. He then went on to speak about the 2013 Circular which he said had a “seismic” effect and made people think twice about taking the law into their own hands. Counsel directed the witness to the third paragraph of section three of that Circular which provides, inter alia: “The Department’s standard policy for cases that involve any deliberate overstatement of enrolments is to refer them to An Garda Siochaína.” Counsel put it to the witness that, as the 2002 Circular had also provided for the imposition of criminal sanctions for the falsification of records, there had been no material change in the Department’s position between 2002 and 2013. The witness disagreed for two reasons. He said that there was no possibility of his being referred to An Garda Siochaína notwithstanding Rule 108. More importantly, he said, the Department had committed in the 2013 Circular to the establishment of a primary online database for the first time and this database proved ultimately to be the solution to the problem he outlined in his earlier evidence. He expanded on this by saying that the promised database would provide a support system that takes the responsibility away from a principal in relation to children on the roll who had transferred to another school but whose transfer had not been notified to their former Principal. The Complainant’s Evidence The Complainant gave his direct evidence to the Court on 28 June 2021, Day 10 of the hearing. He outlined his teaching and school management qualifications and his teaching experience. He began teaching in Terenure, Dublin, before becoming School Principal in Boolavogue National School. He remained there until the end of the 1998-99 school year when he reverted to a teaching post in the Gaelscoil in Wexford until 2002. He told the Court that it had always been his ambition to found a gaelscoil and, as “teaching in a gaelscoil is so different from teaching in an ordinary school, [he] wanted to learn how to do it”. In or around 2000, the Complainant said he placed an advertisement in a local newspaper in Gorey – where he grew up – announcing a meeting to gauge local interest in the establishment of a gaelscoil there. He was the secretary to a committee drawn from people in the area who wished to promote the development of a gaelscoil. According to the witness, Ms Rachel Fitzpatrick was the chairperson of the committee. The committee decided that the ethos of the gaelscoil to be established would be interdenominational. The Complainant then outlined the development of the School and its physical infrastructure. It opened in 2002 in a temporary premises housed in the Girl Guides Hall in Gorey town. The Complainant was appointed Principal. Although a second teacher had been approved, it proved impossible to fill that position at the time. At the start of the following school year, the gaelscoil moved to a second temporary location in the GAA grounds on the Dublin side of Gorey where it remained until a new, purpose-built premises became available on the Enniscorthy side of Gorey in September 2008. This was an eight-room building but has since expanded to 16 rooms. The Complainant told the Court that his three children attended Gaelscoil Móshíológ. The Complainant’s evidence next turned to the issue of annual enrolment of new pupils. He told the Court that he made a projection in advance of each school year to estimate the number of pupils likely to be enrolled. He said this issue was of considerable interest to, and discussion amongst, the entire school community including the Board of Management, the Parents’ Association and the staff as if the projected increase in numbers was insufficient there was a risk that ‘mixed classes’ with pupils from different grades (e.g. fifth and sixth) would have to be put in place. This, he said, would be stressful for all involved – both teachers and pupils. In order to have the best chance of avoiding this situation, the Complainant and other members of the Board visited creches and playschools in the Gorey area to drop in leaflets advertising Gaelscoil Móshíológ. They also spoke to parents of children already in the school to try and identify potential pupils from their extended families to boost numbers. The witness also outlined his practice of meeting with parents of potential pupils on Tuesday afternoons at which meetings he gave those parents an enrolment form for their child and encouraged them to take the form away and consider whether or not they wanted to proceed with the process. The Complainant told the Court a number of times in his evidence that the issue of enrolment and projected numbers was regularly discussed at meetings of the Board of Management each year. He then went on to tell the Court that in or around 2009 he had canvassed the views of a number of educational professionals who have gave him conflicting advice about recording information in the school’s roll books, what information in this regard school inspectors were reviewing on their visits to schools and what was required pursuant to the Education Act. He said that he discussed this with Ms Fitzpatrick and other members of the Board at the time. They ultimately decided, according to the Complainant, to go with “what was to the advantage of the children in the school”. He also said at the Board meetings when the issue of enrolment was discussed, that he was told by the Board to do his best. The witness was very clear in recalling that discussions took place at Board meetings about what numbers were to be submitted to the Department in October each year, including in 2009. The witness described his interactions with Niamh Ní Shúilleabháin each year when he was preparing to make his return of numbers enrolled to the Department. He asked her, he said, for information on numbers and other data. He said he believes she was fully aware of the steps he was taking and he denied coercing her in any way. He said the Department introduced a new system for making the returns in 2009 which required school principals to complete an on-line Excel sheet. He said he did this on his home computer. He accepts, he said, that there was a degree of inflation in the numbers he returned that year. He specifically recalled including three (named) children who had been enrolled but whose whereabouts were unknown as well as other children who had attended an induction day in June. Many of the latter group were approaching four years of age and were siblings of current pupils in the school. They were brought to the induction day in June and knowingly registered to make up the numbers by attending for a day or two only in September, for a half an hour or a little longer each day. The Complaint said that that the names of nine of those children were removed from the roll in September 2009 on foot of advice he received. However, their names were not removed, he said, from the register. It is the names on the roll book on 30 September, according to the witness, that are the basis for the annual return to the Department. That year, according to the witness, there were nine additional pupils included on the return of children who were not genuinely continuing to attend Gaelscoil Móshíológ. He emphatically denied that any of these were ‘non-existent’ children as appeared to be suggested by the Respondent. He also denied that the numbers had been inflated by eighteen. The witness told the Court that had the additional nine pupils not been included in the 2009 return, Ms Ní Ghríofa’s’ post would have been suppressed the following year with the result that the pupil/teacher ratio in the infant classes would have been significantly less favourable. According to the Complainant, he expressly told the Board of Management at a meeting on 9 or 10 October 2009, when making his Principal’s Report, that there were 199 pupils on the roll but that a number of them – nine - had already left. He said he did this “to keep the pupil/teacher ratio reasonable in the school to advantage the children in the school”. According to the witness, this practice “always went on” in the primary school sector but was not talked about prior to about 2007. When asked if, by inflating the returns to the Department in 2009, the witness had accrued an increase in his salary he denied receiving any such increase. He said he had received a pay increase in 2007 and his salary remained constant thereafter until his employment was terminated in 2015. The Complainant’s evidence moved next to his professional relationship with Ms N? Dhuinn. The witness said that, as far as he remembers, Ms Ní Dhuinn – prior to becoming chairperson of the Board of Management of Gaelscoil Móshíológ at the end of 2011 – had been on secondment from the Department of Education to Wexford Local Development Agency. She had come to visit the School as part of a project on school transition she had been working on. It was suggested to the Complainant he said by the then outgoing chairperson that he approach Ms Ní Dhuinn to see if she would be interested in chairing the incoming Board. The witness said he had known Ms Ní Dhuinn many years previously when their paths crossed in camogie circles. The witness then recalled his version of the incident with the child in first class that occurred on 11 January 2012 and the events that flowed from that. He was teaching first class on that date although he was officially an administrative, non-teaching principal. This had come about because the Department of Education had retrospectively increased pupil-teacher ratios in response to the economic crisis. The witness assumed classroom duties to avoid the need to introduce mixed classes. The witness said that he was approached by a parent of one the children in first class on the following day, 12 January 2012, as a number of the parents of children in the class had become aware of the incident and were discussing it amongst themselves. The witness told the Court that he met with the parents of the child at the centre of the incident on 13 January 2012 and made a full disclosure to them - in the presence of Ms Ní Shúilleabháin - of what had happened two days previously. During that meeting, the witness proposed that he would step down from teaching first class as he was finding the combination of teaching full-time and keeping up with his administrative duties very stressful. He further proposed asking the learning support teacher to take over responsibility for the class. However, on Saturday 14 January 2012 he telephoned Ms Ní Dhuinn to discuss the situation with her. She advised him not to go ahead with a group meeting that had been proposed with the parents of all the children in first class. He said he found Ms Ní Dhuinn to be very supportive during their conversation and he recalls that she said that the incident was “not a hanging offence”. He met the parents of the child again on Monday 16 January 2012 and he believed they were satisfied with the outcome of that meeting and had accepted his apology and the new teaching arrangements being put in place for first class. It appears written complaints were received from the parents of five children in first class that week. This prompted Ms Ní Dhuinn to advise the Complainant by telephone to remain out of the School. Ms Ní Dhuinn confirmed in a letter dated 26 January 2012 that the Complainant had been placed on administrative leave. She visited the Complainant in his home, he said, and on that occasion they agreed a protocol in relation to the times at which the Complainant could attend at the School in order to complete his administrative duties and drop and collect his three children who were pupils there. The Complainant said this arrangement worked well up until early March of 2012 when he received a phone call from Ní Dhuinn during which she directed him to cease attending at the School. Thereafter, he confined himself to driving his children to school and collecting them. He said he was reluctant to speak with any of the other parents while in the School environs lest he be seen “to be interfering with the process”. The Complainant told the Court that he had initially believed that his period of administrative leave would last only a few weeks. He said he was aware that the parents of the child at the centre of the incident on 11 January 2012 had gone to the trouble of engaging a solicitor to write to the Board (on 25 January 2012) to say that the issue had been resolved to their complete satisfaction and had done so within a fortnight of the incident itself. He told the Court that his expectation was that the HSE would have dealt with the issue within a couple of weeks. The witness referred in his evidence to the outcome of the HSE’s initial assessment of the January incident which was communicated by letter in August 2012 which stated: “I’d like it noted that on the basis of the documentation furnished to the HSE, as provided to Mr Swords’ solicitors, the initial assessment of the HSE does not warrant a child protection intervention”. The witness confirmed that the HSE issued a final outcome in November 2012 in which it advised that it had concluded that the incident [of 11 January 2012] did not constitute physical abuse of a child. The HSE, however, recommended that the School initiate its own investigation with a view to the prevention of similar incidents in the future. Nevertheless, according to the witness, notwithstanding several attempts on the part of his trade union to progress matters so that he could return to work, the Respondent appears to have taken no steps in this regard as late as 26 February 2013. The witness was then directed by Counsel to Ms Ní Dhuinn’s letter of 13 March 2013 to the INTO advising that the Complainant would remain on administrative leave pending an investigation into “serious issues of concern with regard to the administration of school accounts and compliance with DES requirements concerning the management of the school” that had “recently come to light”. The evidence then turned once again to the enrolment issue, commencing with Ní Dhuinn’s letter of 29 May 2013 in which she outlined an allegation against the Complainant to the effect that he had added the names of 18 non-existent children to the school roll in 2009. The witness confirmed that this was the first occasion on which this allegation had been put to him and he had never previously been asked by Ms Ní Dhuinn about it. The witness again stated, in response to a question from his Counsel, that the over-statement of pupil numbers in 2009 had not led to an increase in his salary notwithstanding Ms Ní Dhuinn’s assertion in her letter of 29 May 2013 that it had. The witness confirmed that as of the date of this letter he now stood suspended by the Board and was no longer deemed to be on administrative leave. Mr Callanan SC took the Complainant through a number of the further individual issues referred to by Ms Ní Dhuinn in her letter. With regard to the first issue, the Complainant said that no further investigation had been commenced by the Board into the child protection issue although Ms Ní Dhuinn had stated it was its intention in January 2013 to undertake such an investigation. Regarding the second allegation, the Complainant also said that the School accounts had been certified each year in accordance with the rules that pertained to primary schools and had been described by the accountant who had been appointed most recently to manage them as exemplary. The Complainant said that the third allegation – regarding compliance with DES regulations governing time in school and the school calendar – had never been raised with him. He accepted, however, that under the aegis of the previous Board of Management the School had not fully complied with the Department’s directions regarding the amount of time the School could close to facilitate parent-teacher meetings. This changed when the new Board assumed office in late 2011. The fourth allegation related to non-compliance with additional teaching hours mandated as part of the Croke Park Agreement. The witness said he had been aware in advance of this requirement taking effect and had raised it with the Board at the time which instructed him not to implement it as the teachers were already voluntarily giving up some of their free time to do additional work in school. The Complainant said he subsequently spoke to the teachers in the School and advised them to keep a diary to demonstrate how they were fulfilling the extra thirty-six hours’ work required under the Croke Park Agreement. He confirmed Ms Ní Dhuinn had never raised this matter with him. The fifth issue raised by Ms Ní Dhuinn in her letter concerned the alleged failure to develop and implement certain school policies required by the Department. The Complainant said policies had been developed by the previous Board of Management and the new Board – under Ms Ní Dhuinn – was free to develop new policies. The Complainant said he didn’t know but assumed that the sixth issue referred to by Ms Ní Dhuinn – “Significant exposure of the BOM to litigation by parents of a current pupil” – related to a Circuit Court Civil Bill filed by a parent in connection with children taking photographs of other children during an outing to a swimming pool. The Complainant gave detailed evidence in relation to the seventh issue referred to by Ms Ní Dhuinn in her letter: “Significant exposure of the Board of Management to two cases in the Equality Tribunal”. He said that the cases were referred by the same parent who had initiated the Circuit Court proceedings referred to earlier. The parent alleged that her child had been discriminated against because the child did not receive a homework pass that other children had benefited from. The Complainant said this had been given to children of fourth and fifth class who had participated in a choir at both Church of Ireland and Catholic confirmation ceremonies on a particular weekend. The child in question hadn’t so participated and therefore hadn’t qualified for the homework pass on that occasion. The Complainant said that the hearing before the Equality Tribunal took place while he was on administrative leave and he had been instructed by Ms Ní Dhuinn not to attend to give evidence on behalf of the Board of Management. Asked by Mr Callanan SC about the eighth and final allegation in Ms Ní Dhuinn’s letter – “Breaches of Teaching Council Code of Professional Conduct” – the Complainant replied: “I suppose that was put in to frighten me in the sense that if … I was forced to appear before the Teaching Council I could lose my right to teach. I could be removed from the Teaching Register”. The Complainant told the Court that he was unhappy that he was never afforded an opportunity to address the Board in relation to the issues raised in the letter of 29 May 2013, although those issues had clearly been the subject of discussion by the Board. The evidence finally turned to the issues of remedy and loss. The Complainant told the Court that he has been unable to obtain work as a Teacher or School Principal since his dismissal on 30 November 2015. He said he was invited to interview for three jobs in Church of Ireland schools but was unsuccessful on each occasion. He was also unsuccessful, he said, in his application for the post of advisor with An Comhairle um Oideachas Gaelscoil, Gaelscolaíochta agus Gaelscoileanna in Dublin. He said he believes his reputation has been badly damaged by the manner in which the single child episode and the enrolment issue had been handled. He also told the Court that he is confident of his ability to resume teaching again notwithstanding that it has been almost a decade since he was placed on administrative leave. He did not qualify for Job Seekers’ Benefit. He told the Court that he considered applying for early retirement as he had accrued 35 years’ service as a teacher but could not process his application as Ms Ní Dhuinn had refused to sign off on it. Mr Callanan’s direct examination of the Complainant resumed briefly on Monday 5 July 2021. The witness was asked again about the number of enrolled pupils he returned to the Department in October 2009. He said that there had been a total of 208 names on the register at that time. He removed the names of nine children from the roll on 30 September 2009, he said, “because they hadn’t come in”. He also told the Court that he retained the names of nine children who had previously attended the school but were no longer attending. The Complainant clarified that he believed he had received a completed enrolment form for seventeen of the eighteen pupils in question. Under cross-examination from Ms Kimber SC, the Complainant agreed that the effect of overstating the number of enrolled pupils in the 2009 return to the Department was not only that the school retained a teacher but that it acquired an additional teacher also that it was not entitled to have. Asked about his grounds for appealing the decision to dismiss him for misrepresenting the numbers enrolled in 2009, the Complainant agreed that they included the following: (a) the Board was fully aware of his actions; (b) the sanction of dismissal was disproportionate and (c) there was a degree of ambiguity attaching to the Department’s requirements regarding returns. Ms Kimber’s questioning turned to an assertion made by the Complainant in his direct evidence on the previous day when he referred to a particular parent as “a serial complainant”. Ms Kimber put it to the Complainant that that particular parent had initiated only two sets of proceedings against the Board: one by Civil Bill dated 11 February 2013 and the other being a complaint under the Equal Status Act 2000 referred to the Equality Tribunal on 30 November 2011. The Complainant agreed that the aforementioned complaints were the only complaints initiated by that parent that culminated in formal proceedings. However, he said, she referred or caused to be referred numerous other complaints either to the Board or to him directly as Principal. Ms Kimber then moved to the single child incident of January 2012. She put it to the Complainant that although the parents of the child at the centre of the incident had indicated they were happy with the resolution of the issue and didn’t want matters to go any further, five other sets of parents had written letters of complaint about the incident. Ms Kimber opened one of the letters which referred to a child that had been so upset having witnessed the incident of 11 January 2012 that he didn’t want to go into school the following Monday. Ms Kimber put it to the Complainant that the incident of 11 January 2012 is not, therefore, a single child incident. However, she did not give him an opportunity to comment before moving on with her cross-examination. The cross-examination then returned to the enrolment returns in 2009. The witness accepted that his actions in making those returns were deliberate. Ms Kimber referred the witness and the Court to the report prepared by Ms Mags Jordan, a Department of Education Inspector, into enrolment issues in Gaelscoil Móshíológ. The witness clarified that Ms Jordan’s reference to “eight pupils … while entered on the roll book, attended zero days in Junior Infants in 2009/2010 and were not re-enrolled” corresponded to the pupils whose names he had said in his direct evidence he had removed from the roll on 30 September 2009 and had not, therefore, been counted for capitation purposes. Ms Kimber pointed out that Ms Jordan had also stated in her report that 18 to 20 children referred to in the school’s books could not be counted for capitation. The Complainant, in reply, pointed out that Ms Jordan’s report subsequently (in Table 2) indicates that a total of 199 pupils were returned in 2009 (99 boys and 100 girls) although 208 names had been recorded in the roll books that school year. The witness clarified that the names of the pupils Ms Jordan had referred to as having attended zero days had been entered on the roll because their parents had completed and submitted an application form for them. He agreed that they had never turned up for class, had been marked absent and their names were ultimately removed (‘bainte’) on 30 September 2009. The witness also agreed with Ms Jordan’s findings in relation to two children (siblings) who had not attended Senior Infants and Junior Infants respectively in 2009/2010. The witness said that both had attended the School previously, had left but he was unaware of where they had gone to. Ms Kimber referred to another pair of siblings whose non-attendance in 2009/2010 had been noted by Ms Jordan. The witness agreed that their names remained on the roll until 18 November 2009. He said that he believed that a letter may have come into the School on that date advising that they had left and their names were removed on that date as a result. Next Ms Kimber SC moved to issues that had been raised in Ms Ní Shúilleabháin’s direct evidence as recorded in the transcript from Day 6 (22 January 2020). She specifically directed the Complainant to Ms Ní Shúilleabháin’s statement to the effect that the Complainant had directed her in 2009 to fill in attendance intermittently for six of the children listed in the Roll Book of the second Junior Infants teacher (who had completed her probation) although those children had not attended class. The Complainant’s recollection was somewhat different. He told the Court that his direction to Ms Ní Shúilleabháin was that she should record those children as present if they had been brought into the classroom with their siblings by their parents. He further said that the parents of those children had agreed to bring the children in on the understanding that the school needed to make up numbers and that if the children didn’t settle they would go home. The witness said he had discussed each of these children with Ní Shúilleabháin and she had known that they were “recruited from” parents who possibly intended that they would attend the following year and who had allowed their names to be used. The witness denied that he had directed Ms Ní Shúilleabháin as claimed by her in her evidence to the Court. He also denied that he had been evasive when responding to her questions to him. He believed, he said, that he had been upfront at all times with her and had discussed all aspects of School business with her as she was the Deputy Principal and would have to take over running the School if he became indisposed. The Complainant expressly denied having any recollection of a conversation with Ms Ní Shúilleabháin in which she expressed discomfort at marking children present who had not attended and in relation to which she had claimed she asked the Complainant what would happen if an Inspector queried those records. She had further claimed that the witness’s reply to her was that she should send the Inspector to him. The witness did, however, accept that there was a conflict between his evidence and that given by Ms Ní Shúilleabháin to the Court in relation to whether or not he had given her a direct order to mark certain children who were not attending the school as being present or absent. Ms Kimber also asked the Complainant to comment on Ms Ní Shúilleabháin’s evidence in relation to the other Junior Infants teacher (Ms Ní Ghríofa) who was being probated that year and who had queried why there were six pupils on her class list who had never attended. She had not been provided with a Roll Book according to Ms Ní Shúilleabháin although she was subject receiving a visit from a Department Inspector at any time and was therefore anxious about this. Eventually, according to Ms Ní Shúilleabháin’s evidence, the Complainant instructed her to give Ms Ní Ghríofa a Roll Book and to mark the children who hadn’t attended as absent through to 30th of September. The Complainant reiterated that all of the children in question had been registered with the School and he sought advice in relation to what to do with them from different sources including from the INTO. He said he was advised by the INTO that it depended on the attitude of his Board of Management. Ms Kimber SC then put it to the Complainant that Ms Jordan’s report had identified a number of much smaller anomalies in the numbers returned to the Department in years other than 2009 and that the anomaly in 2009 was significantly greater than those. He accepted that this was the case. Ms Kimber turned then to the Complainant’s evidence that he had worked ‘hand-in-hand with the Board’ at all times in relation to enrolment issues and returns of enrolment numbers each year to the Department and that the Board had ‘full knowledge’ of these matters. Counsel then asked the Complainant about what the Board actually knew about the numbers in 2009. The witness stated that he did not – and did not have to – tell the Board expressly that he was going to submit inaccurate returns that year to the Department as, per his own words, “I didn’t need to. They knew what the practice was … that we were making up numbers”. Ms Kimber pointed out to the witness that his evidence in this regard appeared to differ from Ms Fitzpatrick’s as she had told the Court under cross-examination that the Complainant had given specific information to the Board but ‘off the record’. The cross-examination moved then to the Complainant’s direct evidence that there was a degree of ambiguity about how enrolment numbers should be computed for the purpose of the annual return to the Department particularly in relation to any discrepancy there might be between the number of children whose names had been placed on the register versus the numbers on the rolls. The witness agreed that he had been referring to apparently different advices in this regard that had come from the Department of Education, on the one hand, and the National Education and Welfare Board, on the other, and that he had sought clarification from the INTO and the Irish Primary Principals’ Network in relation to this ambiguity. The witness confirmed that he did contact the Department of Education to seek clarity there because the Department’s current Circulars indicated that certain pupils who were not marked as present on the roll ‘should not’ be counted. He also said that the Department was saying one thing but doing another and that Inspectors were not looking at rolls because “they did not want to see it”. The Complainant accepted he hadn’t contacted Ms Jordan to obtain clarification from her because he expected to see her in the School as she was probating Ms Ní Ghríofa. The witness was directed to Circular 002/2009 (dated February 2009) and the paragraph on page 17 which states: “Pupils retained on the school register on the 30th September 2008 for the purpose of compliance with the Education and Welfare Act, should not be counted towards valid enrolment for the purposes of determining staff numbers”. The witness accepted that the Department’s direction in that paragraph was clear in itself but he, nevertheless, maintained – in response to Counsel’s questions – that there remained a ‘grey area’ as the National Education and Welfare Board appeared to be saying something different. Finally, the witness was asked about his accrued pensionable service of thirty-five years and his registration with the Teaching Council. He confirmed that his accrued service stands intact, that he continues to be a registered teacher and intends to return to teaching. The Members of the Court thereafter asked some questions of the Complainant by way of seeking clarification of certain matters that had arisen during his examination-in-chief and cross-examination. Mr Murphy focused in particular on the status of the additional allegations (i.e. other than that related to the enrolment returns) enumerated by Ms Ní Dhuinn in her letter of 29 May 2013 to the INTO. The Complainant confirmed that he had not had any further engagement with the Board in relation to those matters and he agreed with Mr Murphy that Ms Ní Dhuinn had stated in her evidence to the Court that she regarded him as having a ‘clean slate’ in relation to those matters. Ms Tanham’s questions related mainly to the delays in bringing the disciplinary process to finality and the extensive period for which the Complainant remained on administrative leave initially and then on paid suspension i.e. from 18 January 2012 until his dismissal on 30 November 2015. In reply to Ms Tanham’s questions, the Complainant confirmed that he had not been contacted by Ms Ní Dhuinn throughout the period she conducted her investigation in advance of the disciplinary hearings. He also confirmed that he only became aware of the fact that the disciplinary process concerned only the enrolment issue in the weeks immediately before the first hearing. Discussion and Decision This appeal required an unusually lengthy hearing before the Court comprising eleven days of oral evidence. The Court was also furnished with comprehensive written submissions at the outset of the hearing and again following its conclusion. A considerable volume of correspondence and other documentary evidence was opened to the Court over the course of the hearing. Furthermore, and unfortunately for all concerned, the pandemic occurred shortly after the commencement of the hearing and led to a considerable delay in bringing the matter to a conclusion. The Court’s task, having heard and carefully considered the Parties’ written submissions, the oral evidence adduced and the supporting documentation relied on by them is to determine whether or not the Respondent has established that it had substantial grounds to dismiss the Complainant and that it followed fair and reasonable procedures in arriving at the decision to dismiss him. In fulfilling its statutory obligation, it is also incumbent on the Court to assess whether the sanction of dismissal was proportionate having regard to all of the circumstances. The burden of proof in all respects under the Act rests on the Respondent. The Respondent’s case, in summary, is that the Complainant was dismissed on grounds of serious misconduct comprising fraud and deliberate falsification of enrolment returns to the Department in October 2009 with a view to obtaining access to resources the Respondent’s School was not lawfully entitled to. The Respondent further submits that the disciplinary procedures applicable to the Complainant’s employment provide that the normal consequence of such misconduct on the part of a Principal Teacher, when established, is dismissal. It is also the Respondent’s case that those procedures were applied fairly and reasonably in the course of the process which culminated in the Complainant’s dismissal on 30 November 2015. The Respondent further submits that the decision of the Disciplinary Panel appointed by the Board of Management was upheld by an independent Disciplinary Appeal Panel. The decision, in the Respondent’s submission, meets the band of reasonableness test articulated by Lord Denning MR in British Leyland UK Ltd v Swift [1981] IRLR 91 and subsequently endorsed by the superior courts in this jurisdiction. A central plank of the Complainant’s case is that the Board of Management in place in 2009 was informed of, and approved of, his conduct in relation to the enrolment figures issue. He submits that although he was dismissed for the actions he took in 2009 by a subsequent and differently constituted Board, the Board is a single legal entity and is designated by statute as “a body corporate with perpetual succession”. (See s. 14(2) Education Act 1998). The Complainant, therefore, calls into question the reasonableness of his former employer’s decision to dismiss him for conduct which it condoned and actively participated in. The Complainant also seeks to impress on the Court that the impugned conduct was widespread at the time it was committed, and has come to be regarded as wholly unacceptable since the introduction of certain elements of the Croke Park Agreement in 2011 and the 2013 Circular, leading to changes of practice and to a considerable raising of standards. The Complainant further submits that there was a significant delay both in initiating the disciplinary process and bringing it to conclusion and that those delays, coupled with the protracted period for which he was maintained on administrative leave and then suspended, were highly oppressive and prejudicial particularly in the light of the fact that the wrongdoing complained of was known to the Respondent at the time it occurred in 2009. On a related point, the Complainant submits that the Respondent’s decision to place him on administrative leave initially, and then to continue it after he been exonerated by the HSE’s investigation into the single child incident, was unwarranted and disproportionate. The decision to then suspend him with effect from 29 May 2013, the Complainant submits, relying in particular on the dicta of Noonan J in Bank of Ireland v Reilly [2015] IEHC 241, caused him further prejudice and reputational damage. With regards to the issue of redress, the Respondent submits that if its appeal fails the appropriate redress should be compensation as the Complainant’s conduct has undermined the Respondent’s trust and confidence in him. The Complainant is seeking reinstatement or re-engagement. Multiplicity of Allegations Raised against Complainant Counsel for the Complainant suggested on more than one occasion in his cross-examination of Ms Ní Dhuinn that the manner in which she dealt with the Complainant in the period following the single child incident right through to the conclusion of the disciplinary process indicated that she was motivated by some kind of animus against the Complainant. This was denied by Ms Ní Dhuinn. Nevertheless, the Court has noted the unusual circumstances that surround the ‘discovery’ of the issue that ultimately led to the Complainant’s dismissal i.e. the making of inflated returns to the Department in October 2009. It must be recalled that this issue was first brought to Ms Ní Dhuinn’s attention by Ms Ní Shúilleabháin in early 2013, some months after the HSE had concluded its investigation into the single child incident. (Letter from Mr Greg Mullan of the HSE to the Complainant dated 5 November 2012 refers.) Notwithstanding this, the Board under Ms Ní Dhuinn’s leadership, maintained the Complainant on administrative leave ostensibly for the purpose of carrying out an internal investigation into the single child incident, as directed by the HSE. It is accepted that no such internal investigation was ever commenced. The Complainant’s Trade Union wrote to the Respondent on three occasions – 19 December 2012, 18 January 2013 and 26 February 2013 – seeking to progress the matter so that the Complainant’s situation could be regularised and his extended period of administrative leave brought to an end. The Union eventually received a written response in the form of a letter dated 13 March 2013 from the Respondent’s Solicitors that indicated for the first time that “serious issues have arisen which require to be investigated by the Board of Management”. The letter went on to describe the issues in the following very general terms as “serious issues of concern with regard to administration of the school accounts and compliance with DES requirements concerning the management of the school” and also gave notice that the Complainant’s administrative leave would continue pending the Board’s investigation of these matters. The Union wrote again to the Respondent on 1 May 2013 raising its concerns about the protracted period over which the Complainant had been retained on administrative leave and seeking to have the alleged additional “serious issues” raised against the Complainant dealt with expeditiously. The Union received no reply at that time. Hayes Solicitors wrote to the Respondent on the Complainant’s behalf on 24 May 2013 raising similar concerns. By letter dated 29 May 2013, Ms Ní Dhuinn – in her capacity as Cathaoirleach of the Board – eventually replied to the INTO’s letter of 1 May 2013. Ms Ní Dhuinn’s letter states inter alia: “However I now wish to inform you … that I have decided to initiate the agreed disciplinary procedures in relation to a very serious matter which has recently come to my attention. I note that in 2009 the names of 18 non-existent children were added to the school roll in or about September 2009. They remained on the school roll until between October and November 2009 and were removed intermittently during this timeframe.” The letter also advised that the Complainant stood suspended on full pay pending the outcome of the Board’s investigation into the foregoing matter. No reasons were given to justify suspending the Complainant. Ms Ní Dhuinn also indicated that she intended to present “a further comprehensive report to the Board of Management in relation to the other serious issues that have arisen in Gaelscoil Móshíológ”. She then listed eight further allegations against the Complainant including the single child incident of January 2012. The Court’s concerns arising from the foregoing sequence of events are as follows. The Complainant’s period of administrative leave was extended following the formal conclusion of the HSE investigation in November 2012 up until 29 May 2013 to allow for an internal investigation but there is no evidence that that investigation ever commenced at all. In January 2013, Ms Ní Shúilleabháin raised the issue of the 2009 enrolment returns with Ms Ní Dhuinn. In her evidence, Ms Ní Dhuinn stated that she was fully alive to the seriousness and implications of this issue from the outset. However, the Court was not given any explanation as to why the Complainant was not expressly informed of the details of the allegation against him until 29 May 2013 at which stage Ms Ní Dhuinn and the Board had already decided to commence the disciplinary process. At this point in time, the Complainant had been retained for a period of approximately sixteen months on administrative leave and had been kept in the dark essentially about the reasons for this while Ms Ní Dhuinn was conducting her investigation over a period of several months into an allegation that hadn’t been communicated to the Complainant. Furthermore, Ms Ní Dhuinn was clearly being somewhat economical with the truth when she stated in her letter of 29 May 2013 that the enrolment issue had “just recently come to my attention”. While the foregoing doesn’t in itself substantiate the allegation raised on the Complainant’s behalf that Ms Ní Dhuinn was motivated by animus, the combination of the Respondent’s failure to carry out any internal investigation into the single child incident while ostensibly retaining the Complainant on extended administrative leave for that purpose, the Respondent’s surreptitious investigation into a totally separate allegation over a period of some five months of which the Complainant had not been informed and hadn’t been given an opportunity to participate in, the raising in the letter of 29 May 2013 of a total of eight additional allegations against the Complainant that were said to require a further comprehensive report to the Board of Management and the placement of the Complainant, as of that date, on an indefinite period of paid suspension strongly suggests, in the Court’s view, a determined intention on the part of the Respondent to find a basis for removing the Complainant from his employment in circumstances where the HSE had concluded that his conduct on 11 January 2012 did not constitute physical abuse of a child. The Court is reinforced in this view having regard to Ms Ní Dhuinn’s evidence that all of the allegations against the Complainant listed in her letter of 29 May 2013 – bar the one that gave rise to the within proceedings – were not investigated by the Board, have been dropped and are no longer extant. As mentioned previously, Ms Ní Dhuinn’s letter did not provide any explanation as to why it was necessary to put the Complainant on paid suspension on 29 May 2013 and her decision in this regard raises further concerns in the Court’s mind about the appropriateness of the Respondent’s conduct of the disciplinary process overall having regard to the fact that Ms Ní Dhuinn’s investigation into the enrolment issue had been ongoing for some four months at that stage. Delay A number of references have already been in this Determination to the various delays that marked the progression of the disciplinary process that culminated in the Complainant’s dismissal. It is not necessary to recite the details in full again save to point to examples of such delays that the Court views as significant. Firstly, that the Respondent delayed for a period of over four months after Ms Ní Shúilleabháin raised her concerns with Ms Ní Dhuinn about the 2009 enrolment returns in January 2013 before advising the Complainant on 29 May 2013 of the allegation it had decided would be the subject of a disciplinary process. Secondly, there was a considerable delay of over two years from that date until the disciplinary hearing concluded and the Complainant was dismissed by letter dated 31 August 2015. It is accepted by the Complainant that some of that delay was caused by his own non-availability at times. Nevertheless, it is apt to recall the adage that ‘Justice delayed is justice denied’, particularly in circumstances where the person who is the subject of proceedings remains on administrative leave, firstly, and then on suspension for the best part of four years combined. It is of the essence of a person’s right to procedural fairness in the employment context that any disciplinary allegations against them are progressed expeditiously and concluded in a timely manner. What happened in this case in terms of the delays which occurred at various points in time between January 2012 and November 2015 could hardly have fallen further short of affording the Complainant this aspect of fair procedures. The Complainant’s Admission of Wrongdoing The Complainant has never denied that he knowingly overstated the numbers validly enrolled in the school on 30 September 2009. However, he vigorously contests the manner in which the Respondent has sought to characterise and overstate his ‘offence’. It will be recalled that in her letter of 29 May 2013 Ms Ní Dhuinn alleged that “in 2009 the names of 18 non-existent children were added to the school roll in or about September 2009”. There was no evidence before the Court that any of the additional names on the roll related to ‘non-existent’ children. The Complainant’s evidence – corroborated by that of Ms Fitzpatrick and Ms Quirke – was that there had been a practice from the date of the establishment of the Respondent’s School of inflating the enrolment numbers, for the purposes of ensuring the School’s viability, of including the names of siblings of actual pupils and the names of other real children who were expected to attend in future years as pupils and that completed enrolment forms were returned for all of those would-be pupils and that some of them attended for a short period of time. All three witnesses gave sworn evidence that no fictitious names of ‘non-existent’ children were included in the roll. One further point needs to be made in this regard: no evidence was put before the Court that the number of pupils enrolled in 2009 was overstated in the return to the Department by eighteen. The Complainant admits and accepts that he overstated the numbers by nine only. For completeness sake, it must also be put on the record that the Complainant did not personally benefit in any way – including by way of salary increase – from the overstatement of returns, as alleged by Ms Ní Dhuinn in her letter of 29 May 2013 and as re-stated by the disciplinary panel in its letter of dismissal dated 31 August 2015. Unfounded allegations in this regard about the Complainant were also reported in the media following his dismissal. The Complainant received his Principal’s Allowance from 1 September 2007 to 31 August 2008 at point 3 of the scale and from 1 September 2008 to the date of his dismissal at point 4. It would appear from Mr O’Reilly’s evidence that the practice described in the preceding paragraph was not unique to Gaelscoil Móshíológ. Mr O’Reilly gave several examples from his own time as a School Principal where he had retained the names of pupils on the roll who weren’t physically present as of the date of his annual return to the Department but in respect of whom he had an expectation that they would return to his school in the future. The deliberately over-stated and suggestive formulation of this allegation against the Complainant further adds to the Court’s concerns that the Respondent was overly zealous in its desire to establish a basis upon which to justify the Complainant’s dismissal. The Board’s Knowledge in relation to the 2009 Enrolment Returns The core of the Complainant’s case is that the Board approved of his conduct in relation to the enrolment figures issue. The Complainant also makes the case that the Board enjoys perpetual succession. He, therefore, seeks to call into question the Board’s decision to subject him to disciplinary action and sanction for conduct of which it was aware at all times. The Court accepts that section 14(2) of the Education Act 1998 provides that the Board of Management of a school is “a body corporate with perpetual succession”. However, the Court does not accept that it follows that a subsequent board is automatically barred from conducting a disciplinary investigation into allegations of wrongdoing that may have occurred in the past under a differently constituted board and with the knowledge of that previous board. However, it is equally the case that the subsequent board cannot disregard the evidence in relation to the previous board’s state of knowledge and its tacit or otherwise support of the alleged wrongdoing. Mr Byrne – throughout his evidence-in-chief and cross-examination – referred constantly to both the members of the Board are volunteers, not professionals, and that the ultimate responsibility for making annual enrolment returns rests with the Principal. When pressed by the Court to explain what significance he was seeking to attach to the voluntary status of the board, in the context of the evidence before the disciplinary panel he had chaired, Mr Byrne appeared to discount entirely the Board’s input precisely because it did not comprise of people acting in a professional capacity. The Court finds the evidence of the Complainant, and of Ms Fitzpatrick and Ms Quirke, in relation to the “off-the-record” discussions that took place between the Complainant and members of the Board – individually and collectively – at or around meetings of the board at the end and beginning of each school year about enrolment figures and the steps taken by the Complainant to present those figures in the best light so as to ensure the ongoing viability of the school was credible and consistent. The Court notes that the Respondent did not call any former member of the Board - other than Ms Ní Shúilleabháin - to give evidence that communications of that nature did not take place between the Complainant and the Board in 2009 and previous years. Ms Ní Shúilleabháin denied any knowledge of the Complainant informing Board Members expressly in relation to his actions vis-á-vis enrolment returns. However, the Court must have regard to the fact that this witness was the Deputy Principal at the time and had responsibility for the school’s records and statutory books at the material time. Also, she was the person who informed Ms Ní Dhuinn in January 2013 of the 2009 issues that culminated in the Complainant’s dismissal. The witness, in short, had “skin the game”, to borrow Mr Callanan’s phrase. In summary, the Court finds that the evidence it heard establishes that such discussions did take place and that the Board and its individual members understood or ought to have understood what steps the Complainant took each year with regard to the enrolment returns and his reasons for so doing. It follows that the Court accepts that the Complainant was not acting without the support and encouragement of the Board. T his calls into question the proportionality of the sanction imposed on the Complainant at the conclusion of the disciplinary process. The Court is also mindful of the very powerful evidence given by Mr O’Reilly to the effect that there was a marked difference between the Department’s approach to returns of annual enrolment numbers from 2013 onwards compared to previously, as evidenced by the Circular issued that year. The Respondent’s submission, however, in this regard is that the Department merely brought greater clarity to the matter in 2013; it does not accept that there was significant sea-change in the Department’s attitude and approach. Proportionality of the sanction The Respondent’s case in justification of the decision to dismiss the Complainant relies heavily on the provisions of Department of Education circulars (particularly Circular 60 0f 2009 –“Towards 2016 Revised Procedure for Suspension and Dismissal of Principals”) and Rule 108 of the Rules for National Schools which provide, the Respondent emphasises, that the normal consequence of serious misconduct such as falsification of documents will be dismissal. Mr Byrne told the Court that the disciplinary panel, in its deliberations on the evidence it had heard, considered a number of possible disciplinary sanctions including demoting the Complainant. However, because the panel ultimately viewed the behaviour of the Complainant in overstating the 2009 returns as ‘particularly serious’, they decided that dismissal was the appropriate sanction, notwithstanding the Complainant’s acknowledged contribution to the development of the School. When asked by the Court why demotion, for example, was not applied as a sanction in this case, Mr Byrne replied that what the Complainant had done was falsify official documents and that in choosing the sanction of dismissal the disciplinary panel was acting in accordance with the Department’s guidelines. Nevertheless, again in response to an observation from the Court, Mr Byrne did accept that had the Complainant been demoted he would not, in the ordinary course, have any further responsibility for making returns to the Department. This Court’s task is to determine whether or not the decision taken by the Disciplinary Panel on behalf of the Respondent was within the range of responses open to a reasonable employer, acting reasonably in all the circumstances. It is beyond dispute that dismissing a person from an education post, particularly at the level of school principal, is to give the “kiss of death” to that person’s career as an educational professional. In that sense, the sanction of dismissal in a case such as the instant one is manifestly more far-reaching than it might be if applied to an employee in any number of other settings whose future employment prospects would not be curtailed in a similar fashion. It follows, therefore, that the bar is set very high for the Respondent in this case in terms of demonstrating that its decision to dismiss the Complainant was a proportionate response to his admission of making an inflated return of the 2009 enrolment numbers to the Department. Having regard to the Respondent’s acknowledgment that, when arriving at its decision to dismiss the Complainant, it erroneously believed that the Complainant had himself benefited from the inflated returns in 2009, the Court’s findings in relation to the Board’s ongoing and informed support for the Complainant’s consistent practice when it came to making the annual return each year from the establishment of the School, the Complainant’s full admission from the outset in relation to his actions in October 2009 and the very strong evidence of Mr O’Reilly about the prevalence of similar practices in the sector prior to 2013, the Court finds that the sanction of dismissal in this case was disproportionate and not within the band of reasonable responses open to a reasonable employer in the circumstances. Redress Having found that the Complainant was unfairly dismissed for the reasons outlined above, the Court determines that the appropriate redress in this case is an award of re-engagement with effect from 1 September 2017, the period from his date of dismissal to that date to be regarded as a period of unpaid suspension thus preserving the Complainant’s continuity of service for all purposes. The Court so determines.
NOTE |
