Appeal allowed against final written warning where appellant failed to appeal within complaints procedure stages.

THE COURT OF APPEAL

Neutral Citation Number: [2018] IECA 292

[2016 No. 573]

Birmingham P.

Hogan J.

Whelan J.

BETWEEN

PIERCE DILLON

APPLICANT/

APPELLANT

AND

THE BOARD OF MANAGEMENT OF CATHOLIC UNIVERSITY SCHOOL

RESPONDENTS

CONCURRING JUDGMENT of Birmingham P. delivered on the 27th day of August 2018

1. I have had an opportunity of reading in draft the judgment just delivered by Hogan J. I agree with that judgment and with the

order he proposes. I agree, however, only with extreme reluctance and because I feel compelled to do so. I feel so compelled

because I cannot go along fully with the trial judge in the views he formed in relation to the issue of mootness. In my view, it is a

step too far to suggest that because the period during which the warning was to remain live on the file had expired, assuming that

was the case, that the issue became moot. I accept the argument that the fact that such a warning was placed on the file could, in

certain circumstances, have long-term effects. I would also have a concern that if it became established that once a warning period

had expired that the issue was moot and not amenable to review, that might serve to encourage early resorts to litigation which is

the last thing that I would want to see.

2. I also have a concern about categorising a final warning as de minimis. In my view, issuing a final warning should be a matter of

great moment; it should not happen lightly and cannot properly be regarded as a “trifle”. It is for this reason that I feel that the

appeal must be allowed. I do so despite my strongly-held view that disciplinary issues, certainly falling short of dismissal, arising in an

industrial relations context should rarely find their way to the courts.

3. My general dislike for resorting to the courts in cases such as this is reinforced in the circumstances of the present case. In this

case, the appellant and his representatives were invited to attend a meeting convened in accordance with Stage 3 of the complaints

procedure. They declined to do so despite a deferral of the meeting in order to facilitate attendance. Thereafter, matters were dealt

with under Stage 3 of the disciplinary procedure. A meeting was convened between the appellant and the respondent’s Principal and a

nominee of the respondent, which meeting took place on 27th March 2015. The decision was to issue a final written warning.

4. At that stage, the appellant wrote to the Principal advising of an intention to appeal the decision of the respondent as stated in

the agreed complaints procedure. He indicated that it was his intention to do this despite the fact that the complaints procedure

states that the decision of the Board of Management “shall be final” and the appellant was so advised. The appellant did not at any

point articulate an intention to appeal the disciplinary sanction of a final written warning.

5. In my view, there was an element here of playing fast and loose with the procedures and a failure to engage in the way one would

expect of a long-term professional employee. While I will wait to hear what the parties have to say in relation to costs and other

ancillary matters, I think it only right that I should indicate at this stage that I will have to consider carefully whether this is a case

for departing from the usual rule in relation to costs.