A judge will rule early next week whether a school’s disciplinary hearing against teacher Enoch Burke, which he claims is pre-determined and “a sham”, can proceed on Thursday.
Barrister Rosemary Mallon, for Wilson’s Hospital School, said Mr Burke’s continuing failure to obey a High Court order not to attend at the Co Westmeath school is sufficient reason to refuse to halt the disciplinary hearing. Those who come to court seeking equity “must do equity” and Mr Burke’s continuing breaches of court orders “are not the actions of somebody doing equity”.
Mr Burke responded he has “clean hands and I do equity” and said it was “audacious” for the school to argue equity given its handling of the process. “It is a sham process and wholly invalid. It is not genuine, not sincere, it is fake. It is going through a formality, ticking a box and then dismissing me.”
Mr Justice Conor Dignam will rule on Monday or Tuesday on Mr Burke’s application for injunctions, to apply pending a full hearing of the legal dispute, halting a disciplinary meeting on January 19th or further steps in a disciplinary process.
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Mr Burke has been on paid administrative leave since last September pending the process, grounded on an August 2022 report by then school principal Niamh McShane. It concerned Mr Burke’s objection to her directing teachers in May 2022 to address a transitioning student by their chosen name and using the pronouns “they/them” and his publicly voiced opposition to the direction at a school event in June 2022.
When he continued to attend the school after it got orders restraining him doing so, he was jailed for contempt on September 5th and freed on December 21st. When he again went to the school from January 5th, it initiated an application, returned to next Tuesday, for temporary detention of his assets.
On Thursday, Ms Mallon disputed Mr Burke had a strong case for the injunctions and urged they be refused on grounds including equity and his failure to give an undertaking for damages. The circular governing the disciplinary process sets out the procedures to be followed and there is no “fait accompli”, she argued.
Mr Burke’s application is premature as he can make submissions at the disciplinary hearing and, if dissatisfied, has the option of appeal and legal remedies, she said.
Fear of dismissal is not a basis for an injunction and Mr Burke was asking the court to give a weight to his reputation that is “far too high”. He “is very much in control of his own reputation” and had decided to breach court orders.
In reply, Mr Burke said his suspension is “manifestly unconstitutional and unlawful”, he had continued to report for work and he has a constitutional right to seek court protection.
The school may “wave the circular” as “some assurance to me of some slim hope of justice” but it had broken the circular multiple times.
He had not offered an undertaking for damages because of the school’s “egregious” conduct. The reputation issue was “very important” in the context of a disciplinary process “that has gone as irremediably wrong as this one has”.
Earlier, Mr Justice Dignam refused to admit a supplemental affidavit by the chairman of the school board of management (BOM), John Rogers.
Ms Mallon said that was to clarify an inconsistency in the context of a “very serious” allegation by Mr Burke that Mr Rogers had lied when he swore in a January 9th, 2023, affidavit the McShane report was not discussed at an extraordinary BOM meeting on August 15th 2022.
Mr Burke has alleged minutes of a BOM meeting of August 22nd, 2022 showed Mr Rogers twice told him the report was read and discussed at the August 15th meeting.
Ms Mallon said there was no lie and Mr Rogers was not resiling from saying there was no discussion about the report at the August 15th meeting. The content and “merits” of the report were not discussed but decisions were made to initiate a disciplinary process against Mr Burke and suspend him on full pay, she said.
Mr Justice Dignam ruled it was not appropriate to admit the affidavit when the issue had been put into play by Mr Burke previously and the school had addressed it. Because this is an injunction application, the court cannot and does not make findings of fact which are matters for the full hearing of the dispute, he stressed.
