Mary Becker (applicant) v Frank Duggan (respondent)
Employment law - Fair procedures - Appeal from decision of interview board - Appeal determined by independent arbitrator - Arbitrator appointed pursuant to governmental circular - Whether breach of natural justice and fair procedures by arbitrator - Whether applicant's complaints in appeal within jurisdiction of appeal procedure.
Judicial review - Scope of public law remedies - Whether public law remedy available to applicant who would have no remedy under contract or otherwise - Applicant's appeal against decision of interviewing board of management of school refused by arbitrator appointed pursuant to governmental circular.
The High Court; judgment delivered on November 1st, 2005.
If there are no private law remedies available to persons aggrieved of a decision affecting their rights and made by a person appointed bound to act judicially, they are entitled to resort to public law remedies by way of judicial review. There is a burden on an employment arbitrator appointed pursuant to governmental circular to ensure that proceedings before him are conducted in accordance with the constitution and with law but with a minimum of legal formality. Fair procedures requires that all of the complaints detailed by a disappointed candidate for a post of assistant principal of a school have to be considered as properly raised by her in an appeal from an interview board and complaints which relate directly to the criteria by which a person's suitability for the post is assessed by an interview board are within the jurisdiction of the appeal procedure from decisions of that board. Natural justice requires that, in a judicial or quasi-judicial enquiry, procedures to test forensically the veracity of the contentions of the parties were necessary to properly resolve the issues for determination where there was a dispute as to the facts. Natural justice and fair procedures also requires that a person appealing a decision of an interview board has access to written notes made by members of that board.
The High Court (Mr Justice O'Neill) so held in quashing the decision of the respondent refusing the applicant's appeal from the decision of the board of management not to appoint her to a post of assistant principal in their school.
The applicant appeared in person; James O'Reilly SC and Aillil O'Reilly BL for the respondent.
Mr Justice O'Neill stated that the applicant had been granted leave by the High Court to apply by way of judicial review for an order quashing the decision of the respondent in which he upheld the decision of the board of management of St Dominic's College not to appoint the applicant to a post of assistant principal. The applicant's complaints relevant to the grounds upon which leave was granted were that the refusal of the respondent to direct replies to the applicant's letters seeking answers to certain questions from the members of the interview board, and his refusal to direct that documentation sought by the applicant be furnished to her in advance of the appeal was a denial of fair procedures and natural justice and prevented her from being in a position to prepare for the appeal.
She contended that the respondent induced her to go ahead with the oral hearing by an assurance in correspondence that she would be given every opportunity to add to the submissions she had already made, whereas in the hearing he refused her a right to reply to the allegations made by the interview board.
Furthermore, no cross-examination arose during the hearing, all of which, she contended, amounted to a breach of her right to fair procedures. She also complained that none of the documents which she had sought and which were relevant to the issues in the appeal, were obtained by the respondent.
It was contended, inter alia, by the respondent that in the first instance the applicant's complaints related to her contract of employment with the school and did not raise issues which could be litigated under Order 84 of the Rules of the Superior Courts, and the relief of certiorari was confined to a public law issue and was not available as a remedy to the applicant, her dispute being one of private contract with her employer. It was further submitted that the appeal was in the nature of a private arbitration and there was a public policy upholding the finality of an arbitration award.
Mr Justice O'Neill stated that the first issue necessarily to be dealt with was whether the relief of certiorari by way of judicial review was available to the applicant. He said that what the applicant had to demonstrate was that the issues which she raised may be characterised as public law issues. In ascertaining whether there was the necessary public law element present, two approaches emerged.
Until R. v. Takeover Panel Q.B. 815, the availability of the remedy depended upon the source of the power being either of a statutory nature or of being derived from the common law. Clearly excluded were decision- making powers based on a contract or consent between the decision maker and the person affected. Examples of cases decided on that basis were Murphy v. Turf Club I.R. 171 and Rajah v. Royal College of Surgeons in Ireland 1 I.R. 384.
Mr Justice O'Neill said that it was clear from the authorities that if the decision-maker derived his authority solely from contract, then the decision- making was outside the scope of judicial review. However, as was clear from Beirne v. Commissioner of An Garda Síochána I.L.R.M. 1, the contract had to be the sole source of the power exercised, and it was implicit that that contract or agreement had to be between the person affected and the decision-maker or persons on whose behalf the decision-maker acted and with whom the person affected enjoyed privity of contract, which was a critical ingredient in the reasoning for excluding persons in that category from public law remedies. Where private law remedies were available in contract there was no necessity, in order that justice be done, for a public law remedy to be available.
If a decision-maker, bound to act judicially, made decisions affecting rights or imposing liabilities on another, in breach of natural justice, the aggrieved person should, in principle, if not entitled to a private law remedy under contract, be entitled to a public law remedy. It was, therefore, crucial in determining whether a public law remedy was available, to see whether the person affected could rely upon a contractual relationship which would entitle them to appropriate declaratory and injunctive relief to protect them from breaches of natural justice in the decision making process.
Whether or not the applicant's contract of employment with the school entitled her to private law remedies in respect of a complaint of breaches of natural justice in the conduct of the appeal by the respondent, depended upon the relationship between the respondent and, ultimately, the applicant. In that respect, it was noted that the respondent was engaged under the provisions of paragraph 4 of circular 5/98 of the Department of Education and Science and was appointed by the ASTI and joint management board for a fixed two-year renewable term and necessarily had an independent role.
There was nothing in the circular to suggest that the applicant's employers were vicariously liable for the actions of the respondent. The nature of the respondent's role was akin to that of an independent office holder, and the applicant did not enjoy privity of contract with either the respondent directly or with any other parties who would be liable in respect of the actions of the respondent in the performance of his duties.
It necessarily followed that in regard to the applicant's complaints of breaches of natural justice concerning the conduct of the appeal by the respondent, she was not entitled to any private law remedies either against the respondent, or against her ownemployers. Accordingly, she was entitled to resort to public law remedies by way of judicial review.
There were other indicia of a public law element otherwise present, such as the fact that the circular was a governmental act, being a promulgation by the Minister for Education, whose provisions were not confined to the applicant but applied to a large professional group and affected thousands of parents who had a public interest in the proper discharge by the respondent of his functions. The continuance in force of the circular was also statutory, being dependent on and by virtue of s. 24(5) and (6) of the Education Act 1998.
That brought the court to the question of whether there was any breach on the part of the respondent of principles of natural justice. Mr Justice O'Neill said that, whilst circular 5/98 defined the jurisdiction exercised by the respondent, the exercise of that jurisdiction required that justice and fair procedures be observed. Fair procedures required that all of the complaints detailed by the applicant to the respondent would have to be considered as properly raised by her in the appeal, provided the subject matter was within the jurisdiction created by the circular. Those complaints were, inter alia, that the agreed summary from the interview board was an inaccurate note of the interview, and that the applicant had prepared and submitted a true and accurate note of the interview and that the allegations made in the submission of the board of management concerning the conduct of the applicant in posts of responsibility previously held were untrue, and made for the first time in that submission.
Mr Justice O'Neill stated that these complaints were relevant to the procedure followed by the interview board, and also to the criteria whereby suitability was assessed which necessarily raised the question of what criteria were used to assess her suitability and whether the assessment was dominated by bias, and hence they came within the terms of the circular.
As to how the complaints were dealt with by the respondent, Mr Justice O'Neill said that the respondent should not disturb conclusions of fact reached by an interview board, where he was satisfied that there was credible material available to the interview board to support its conclusions, unless it was apparent from the material supplied to the respondent that a conclusion was wrong. Where an appellant disputed the conclusions of fact leading to a finding of unsuitability however, the respondent had at a minimum, to be satisfied that the conclusion was supported by credible material which the applicant had a reasonable opportunity to challenge.
Mr Justice O'Neill was of the opinion, in light of the contest over the truth and accuracy of the agreed summary from the interview board, that natural justice and fair procedures required that the applicant had access to the written notes made by members of the interview board. He construed the powers of the respondent as encompassing a power to require the exchange of documents, and to demand the production of documents himself. He said that this was a case where it was necessary to do justice to compel the exchange and production of interview notes.
The deprivation of this material to the applicant in preparing and in conducting her appeal was a breach of natural justice. Secondly, in the circumstances, at least one of the interview board should have been questioned by way of interview or cross-examination by the respondent as provided for by the circular.
Mr Justice O'Neill was satisfied that the respondent did not take any forensic steps to test the veracity of either side's contentions and thereby failed to act in accordance with the procedures contained in circular 5/98. For him to have reached a conclusion adverse to the applicant where those issues were in contention, was a denial of natural justice and fair procedures to the applicant.
Although not necessary for the resolution of the proceedings, Mr Justice O'Neill also held that the applicant's other complaint relevant to the grounds upon which leave was granted, namely that the chairperson of the interview board was not qualified to be a chairperson of that board because he was not on a panel of approved persons for that purpose as required by para. 3.2.1 of circular 5/98, would have merited the quashing of the respondent's decision.
In respect of the respondent's contention that there was a public policy to the effect that the court should not interfere with the outcome of an arbitration, Mr Justice O'Neill stated that whilst the respondent was described in the circular as an arbitrator, the Arbitration Acts did not apply to employment matters, and hence the appeal was outside their scope.
In all the circumstances, Mr Justice O'Neill concluded that the applicant was entitled to succeed and made an order of certiorari in respect of the determination by the respondent.
Solicitors: The applicant appeared in person; Gaynor & Co. (Dublin) for the respondent.
Paul Christopher, barrister