Supreme Court dismisses judicial review appeal where appellant rejected Board's offer to refer to new specialist.

THE SUPREME COURT

[S.C. No. 298 of 2008]

Denham C.J.

McKechnie J.

MacMenamin J.

Kathleen Fitzpatrick

Applicant/Appellant

And

The Board of Management of St. Mary’s Touraneena National School and The Minister For Education and Science

Respondents/Respondents

Judgment of Mr. Justice William M. McKechnie delivered on the 19th day of December, 2013.

Introduction:

1. Having considered documentation running to almost five hundred and fifty pages, the High Court, after a five day trial which

involved the hearing of detailed submissions from all parties, dismissed the application for judicial review and rejected all grounds upon

which the same was advanced. This pithy description fails to reveal the intensity of the dispute between a very small number of

people, who at one stage at least, had a working relationship with each other, if indeed not more. For all concerned, but in particular

perhaps for the appellant, the dispute has taken its toll. Litigation was commenced in July, 2006, but if the truth be known, its seeds

were sewn well before then, indeed even much earlier than the first formal letter of complaint which, for present purposes, can be

considered as having issued in September, 2005. Eight years or more has therefore been given over to the legal process to try and

resolve a situation so local and so concentrated that one wonders how did it ever get to this level.

2. Some better way must surely exist to determine an issue so central to an individual and to her livelihood: access to other means of

resolution must be considered. But any such step requires some measure of cooperation; some understanding by each party of the

other’s position. Perhaps the bigger the person, the bigger the understanding. Deeply entrenched positions, adopted with undue haste

and characterised by harsh, accusatory and demanding words can rarely be admired and offer little, if anything, at the compromise

level. Such an approach at times may seem to be justified, and even to have its place, but almost always it also has its price.

3. Mechanisms set out in documents, subject to either public or private law (or indeed both), purporting to offer a way out of a

situation like that which has occurred in this case, are of little value unless they are openly accessible, objectively impartial, balanced

as between adversaries and operated uninfluenced by extraneous pressures, whether internally driven or externally sourced. If there

was in existence a system with these safeguards, such as might have helped to resolve this dispute, I greatly regret its non-use: if

on the other hand no such mechanism was available, steps should be taken as soon as possible to have that unacceptable situation

rectified. Otherwise more examples of what occurred in this case will undoubtedly follow.

4. St. Mary’s Touraneena National School (“the school”) is, by any standard, a very small school, with three teachers serving the

local community. It was the only school where Mrs. Fitzpatrick ever thought, until the events next described occurred. Upon

qualifying in 1983, she was appointed as an assistant teacher and promoted to Deputy Principal in 1997. The Principal at all times, of

which I am about to speak, was a Mrs. Nix. Fr. Cornelius Kelleher, also at such times, was the Chairperson of the Board of

Management (“Fr. Kelleher” or “the Chairperson”).

5. The applicant claims that she had no difficulties in or with the school prior to 2003 when after making an enquiry of a child, the

parents of that pupil took strong objection to what she had asked. Thereafter she experienced problems arising out of her treatment

in the workplace. She wrote to Fr. Kelleher in September, 2005 making allegations, by reference to specified examples, of which

others existed, of bullying and harassment which she claimed had been on-going for the previous two years. The letter discloses, and

certainly later events show, the heavy association of the Chairperson and the Principal of the school with these allegations. She had

started a period of sick leave in or about that time, her proposed return from which, a few months later features quite prominently in

this case. In the intervening period – that is, between then and now – as the following events will show, she has never returned as a

teacher to that school.

6. When seeking to do so she proposed a return date in February, 2006. The Board of Management (or “the Board”), on being so

notified, sought to invoke the procedures of a Department Circular, by which she was required to submit herself to an independent

medical assessment, as it turned out, by a consultant psychiatrist. She objected to this requirement, suggesting that there was no

genuine basis for such a referral. She complained as to the manner in which it was initiated and thereafter how the process was

operated. Having several other concerns also, she had never in fact submitted herself to such an assessment by the time of the leave

application in the within proceedings. That occurred in July, 2006.

7. To understand the issues which were agitated on the application and again on this appeal, it would be helpful at this stage to refer

to the Circular as mentioned, as well as to the Rules for National Schools 1965, as amended (“the Rules” or “the RNS”), as certain

provisions of both documents play a key role in this case. It is however only necessary to refer to Clause 7, and to a much lesser

extent, Clause 8 of the Circular, whose full title appears later in the judgment (para. 8 infra) and to Rules 93 and 112 RNS. These

provisions read as follows.

8. Clause 7 of Primary Circular 10/05:

Resumption of duty following paid/unpaid sick leave

“7.1 A permanent teacher cannot resume teaching following a period of paid sick leave of more than three

consecutive months without providing a medical certificate of fitness to resume full-time teaching. This certificate

should be provided to the [B]oard of [M]anagement at least two weeks prior to the proposed date of resumption of

teaching duties.

7.2 A teacher may apply to the [B]oard of [M]anagement to resume duty at or before the end of the unpaid sick

leave period, subject to the teacher furnishing a comprehensive report from a recognised medical doctor stating

that s/he is fit to resume duty. This report is referred to the Chief Medical Officer who will determine if the teacher

is fit to resume duty.

7.3 If the [B]oard of [M]anagement has any concerns regarding the teacher’s proposed resumption of duty, it may

refer the teacher for an independent medical assessment prior to the proposed date for resumption of teaching. It is

recommended that each [B]oard of [M]anagement should have a local medical advisor for dealing with routine

occupational medical matters preferably with some occupational medical experience or training. When referral for

independent specialist assessment is required, the local medical advisor to the [B]oard of [M]anagement should

nominate the appropriate specialist suited to the teacher’s underlying medical disorder. A teacher who fails to

attend for independent medical assessment at the request of the [B]oard of [M]anagement, will cease to be paid

incremental salary until s/he attends for assessment. Costs in respect of the independent medical assessment will

be borne by the [B]oard of [M]anagement.

7.4 If, following independent medical assessment, concerns remain regarding the teacher’s suitability for return to

work, all medical reports in relation to the teacher will be referred to the Chief Medical Officer, for final decision as

to the date of fitness to resume full teaching duties.

7.5 Where the [B]oard of [M]anagement is satisfied that the teacher is fit to resume duty following independent

medical assessment, and the Board and the teacher agree the date to resume duty, the period of time when the

teacher was first certified to resume until the day of resumption of duty following the independent assessment will

not be counted as sick leave.

7.6 If a teacher to whom sick leave without pay has been granted, is not fit to resume duty at the end of the six-

month period of unpaid sick leave, the teacher shall be deemed to have resigned from his/her post (section 8 also

refers.)”

9. Under Clause 8.1, where a Board of Management has concerns about the heath of a teacher who is not on sick leave, it may

require that teacher to provide to the Chief Medical Officer (“CMO”) a confidential medical report on her health, containing also a

prognosis on her fitness to continue her duties. Moreover, until such time as the CMO has made a decision, the teacher in question is

obliged to absent herself on paid sick leave.

10. Rules 93(1)(b) and 112(3) RNS:

Rule 93(1)(b) of the Rules provides as follows:

“The Minister may, at any time, if he considers the circumstances warrant such a course, require a teacher, as a

condition of continued recognition;

(i) To furnish a medical certificate (which shall include such details as the Minister may require)

that he is free from any physical or mental defect likely to impair his usefulness as a teacher, or

(ii) To present himself for medical examination by a doctor selected by the Minister.”

11. The Minister may either declare such teacher to be ineligible for further recognition, or even deem that person to have retired, in

circumstances where that teacher fails to comply with the Minister’s requirements or is shown to be mentally or physically incapable

of carrying out his or her duties as a teacher following consideration of a medical report produced in accordance with Rule 93(1)(b)

(ii).

Rule 112(3) states as follows:

“Payment of salary or other grants in respect of absence owing to illness shall not be made to a teacher for more

than twelve months in any period of four consecutive years.”

Contractual/Legal Setting:

12. Before referring to some essential background information, the contractual setting in which the applicant and first defendant

found themselves, as well as the position of the second defendant should be considered.

13. Under s. 15 of the Education Act 1998 (“the 1998 Act”), a Board of Management is vested with a duty “to manage the school on

behalf of the patron and for the benefit of the students and their parents and to provide or cause to be provided an appropriate

education for each student at the school for which that Board has responsibility”. In order to discharge this responsibility, teachers

quite evidently must be employed, so as to provide the appropriate educational requirements to each enrolled student at the

particular school. When so employed, a teacher such as the applicant becomes an employee of the Board of Management, which in

turn becomes her employer. This appears to follow from a consideration of the 1998 Act and from case law of both the High Court and

this Court. This therefore is the relationship between these parties, with the underlying employment contract being one essentially

governed by private law. There is no dispute thus far, and my recital of this situation is based on such acceptance.

14. The Rules do not have legislative status, even of a secondary nature. Neither does the Circular numbered 10/05 (“the Circular”).

Both come into play because when persons are employed by a Board of Management as teachers, they agree as part of such

employment to become bound by the Rules. These Rules are published by the Department of Education and in a triangular type

relationship, which is known to and accepted by all, a teacher must be at all times Rule compliant, because otherwise her/his pay

master, the Department, will not pay her/him.

15. The Circular is also published by the Department under the hand of the Minister. It is addressed to “Boards of Management,

Principal Teachers and Teaching Staff in Primary Schools”, and a consideration of its subject matter shows that in accordance with its

title, it makes provision for a “Sick Leave Scheme for Qualified Primary School Teachers in Permanent and Temporary Posts” (“the Sick

Leave Scheme”). Its relationship with the Rules may not be definitively clear, but it seems to be accepted that where expressly so

stated, it has the power to “revise” these Rules. It does not seek to replace such Rules, but only to interact with them for the

purposes of implementing the terms of the Sick Leave Scheme. To that end, in para. 1.1 thereof, it states that Rules 93, 112 and 113

RNS are “hereby revised”. This means that such Rules are thereby amended and thereafter apply only in their altered or varied forms.

In effect, in case of contradiction, the Circular prevails. Otherwise, the Rules remain intact and continue to apply.

16. The Circular therefore should not be looked upon as an alternative to or substitute for the Rules. It is neither. It is a scheme

agreed by the Department, the teachers’ representative body and the school organisations where its members teach. It binds and is

enforceable against the Minister; as it is against the Board and, in this case the appellant, as being part of the employment contract.

Save however in respect of the area covered thereby, the Circular does not purport to otherwise interfere in the employment

relationship between a Board and a teacher. Finally, in a sense, given the relevance of the Rules and the Circular, it can be said that

there is also a public law element to this case.

The Immediate Background:

17. In December, 2005 against the backdrop of the allegations so made (para. 5 supra), the Chairperson was curious to know where

Mrs. Fitzpatrick was in terms of her sick leave and what her next move might be. He wrote to her on the 22nd December, 2005 and

referred to the requirement (Clause 7.1 of the Circular) of a permanent teacher having to submit a medical report to the Board if she

intended to resume duty after a paid period of sick leave, of more than three consecutive months. He wanted to ensure that the

Board had time to consider any such report within the parameters of Clause 7.3, but save for that reference, he did not otherwise

invoke its provisions or outline any grounds upon which the Board might do so in the future. His anticipation of what might occur came

to pass when in a letter dated the 26th January, 2006 (hand delivered the following day), Mrs. Fitzpatrick gave notice of her intention

to resume duties on the 13th February, 2006 and enclosed a certificate of fitness from her G.P. in that regard.

18. The receipt of this notification provoked a great deal of immediate activity on the part of Fr. Kelleher. He wrote two letters that

day; one to the applicant and one to Dr. Mahony, whom it can be taken was then performing the role of the “local medical advisor” as

envisaged by Clause 7.3 of the Circular. He told the plaintiff of the Board’s “concerns” regarding her proposed return to work: these

were based on the allegations of bullying and harassment which were the cause of her sick leave in the first place. He invoked Clause

7.3 and referred her to Dr. Mahony, whom he said “…will nominate the appropriate specialist suited to your underlying medical

disorder”. He ended the letter by directing her to remain absent from work, “as per section 8” as he put it, presumably of the Circular.

It is however highly doubtful if this Clause had any bearing on the applicant’s circumstances at the time, but nothing turns on that, in

this appeal.

19. The second letter, of the 27th January, 2006, as stated, was sent to Dr. Mahony, and as appears from its content, was evidently

preceded by a phone call between them. The Chairperson, who enclosed a copy of the G.P. certificate (para. 17 supra), sought to

appraise the doctor of “certain background information”. He included also the September, 2005 letter and his robust response of the

19th October, 2005. He said that he was very concerned about the allegations of bullying and harassment which the appellant

claimed had been caused by her employer and had occurred in the workplace, all of which had resulted in damage to her health. He

went on to say that the school is a safe place of work, but that the position of Deputy Principal is inherently stressful. Finally, he felt

that she should be assessed by a consultant psychiatrist and asked the doctor to make the necessary referral, if possible within the

week.

20. To keep the narrative as it continues, in context reference must now be made to what the Department was doing during that

same time. By letter of the 25th November, 2005, it wrote to the plaintiff pointing out, by reference to Rule 112(3) RNS, that the

maximum sick leave in any period of four consecutive years was 365 days; that she had accumulated 272 days in such period up to

the date of the letter and that the maximum would be exceeded by the 1st March, 2006 if she had not returned to work on or before

that date. Relying on Rule 93(1)(b) RNS, the letter sought a comprehensive “Doctor-to-Doctor” medical report on both her illness and

the prognosis for the future. Significantly, it was also pointed out that if she wished to return to work on or before the March date,

she would also “… be required to submit a medical certificate of fitness to the Chairperson of your Board of Management …”.

21. When a teacher is out on sick leave she has the option of submitting medical reports either to her Board of Management, or, as

the applicant decided to do, directly to the Department. In January, 2006, in preparation for her return to work, the appellant sent a

report to the Department from Dr. Stephen Browne, a consultant psychiatrist attached to Waterford Regional Hospital. That report

was reviewed by the CMO, who in her “Consultation Report” of the 24th January, 2006 records that Dr. Browne “… advise[d] that Mrs.

Fitzpatrick is currently well and fit to return to work, however he feels that she is likely to have a recurrence of her medical problem if

the inter-personnel difficulties she is experiencing at work are not resolved”.

22. On the 27th January, 2006, the applicant was informed by the pay section that having reviewed the medical report of Dr. Browne,

the CMO had advised the Department that she was “currently well and fit to return to work”. It went on to say that a certificate of

fitness had been submitted to the Board. On the 28th January, a letter probably intended to have the same content as that just

mentioned was sent to the Chairperson, but unlike what was stated to Mrs. Fitzpatrick, the review by the CMO was quoted more fully

and made reference to the likelihood of her medical problems reoccurring if the “inter-personnel difficulties she is experiencing at work

are not resolved”.

23. That letter prompted more correspondence between Fr. Kelleher and Dr. Mahony. This communication was by way of an undated

letter, but evidently one sent prior to the appellant’s first appointment with the doctor, which took place on the 8th February, 2006.

It also and significantly included a very detailed and lengthy memorandum prepared by the school Principal (“the Nix Memo” or “the

Memo”), a person against whom the allegations of bullying and harassment were also being made. The letter conveyed the information

referred to in the preceding paragraph and pointed out with particular emphasis that the Nix Memo “will be important to you and Dr.

Mohan, the consultant psychiatrist to whom Mrs. Fitzpatrick will be referred”. As the Memo runs to several pages, I will refrain from

detailing its contents, other than to offer the appellant’s description of it, as containing material grossly prejudicial to her position.

24. On the 8th and 13th February, 2006, Mrs. Fitzpatrick met Dr. Mahony during which she became aware for the first time that

documentary material had been sent to him regarding her position. She requested but was declined a copy, apparently on the

instructions of Fr. Kelleher.

25. The applicant’s Union’s representative queried later that month why any referral under Clause 7.3 of the Circular was necessary,

given the CMO’s certification of her fitness for work. Further, it was stated that any referral was a matter for the local medical

advisor and not for the Board. In response on the 22nd March, 2006, the Chairperson said that “Mrs. Fitzpatrick was nominated by Dr.

Mahony in compliance with section 7.3 for assessment by Dr. Damien Mohan”.

26. On the 31st March, 2006, Fawsitt Solicitors wrote to the Chairperson on behalf of Mrs. Fitzpatrick. Having referred to certain

matters and noting with particular concern the Nix Memo which was described as being “highly contentious”, they complained of the

Board’s motive in sending it to Dr. Mohan, whom it was claimed had been “hand picked by you”, i.e. by Fr. Kelleher. In such

circumstances their client would not be attending Dr. Mohan. However, and despite an assertion that no referral was in fact either

necessary or appropriate, the applicant would agree nonetheless to attend a different specialist who would not, in her words, be so

tainted by such information. That specialist however would have to be nominated by Dr. Mahony as provided for by Clause 7.3 of the

Circular.

27. There then followed between May and the 19th July, 2006 what I consider to be a significant exchange of correspondence. On

the 26th May, 2006, the solicitors for the applicant reaffirmed their client’s objection to being examined by Dr. Mohan, but also

repeated her willingness to attend a different doctor for any such examination, as might be thought fit. The response on the 15th

June, was by Arthur O’Hagan Solicitors acting on behalf of the Board. Having taken some issue with how the dispute had been

previously characterised, and having made some offer as to how the impact on Dr. Mohan of the material sent to him might be

neutralised, the letter goes on to say that:

“The issue between us would appear to come down to a right of a medical specialist nominated on behalf of the

Board … to request a briefing from school management prior to carrying out the assessment. Should your client

remain unwilling to attend Dr. Mohan, our client is prepared to request Dr. Mahony to refer her for assessment to

another relevant specialist on the understanding that both our respective clients would comply fully with any

requirements the specialist concerned might have with regard to the assessment”.

28. The response of the 10th July, 2006 was that whilst the applicant was prepared to accept any reasonable nomination by Dr.

Mahony, she was not prepared to agree to any preconditions. The reason for this was stated as being “… that this proposal appears,

inter alia, conceived as a device to validate the strategy already adopted by the Board of Management in the dispatch to Dr. Mohan

of the ‘Concerns’ document or indeed some repetition thereof”. Whilst further matters are referred to and other demands made,

including an insistence on the part of Mrs. Fitzpatrick of her unconditional right to return to duty, these do not add to the dispute

information above outlined.

29. This series of correspondence, bar one further letter, finalised with Arthur O’Hagan’s response of the 19th July, 2006 which

stated:

“We understand from our clients that they are requesting Dr. Mahony to make a further referral of your client as

proposed in our letter the 15th June last. We do not understand your reference to ‘preconditions’. It is a matter for

our client’s medical advisors as to what they may require in advance of a consultation and both our client and Mrs.

Fitzpatrick must cooperate with that …”.

Lastly for completeness, it should be noted that Dr. Mahony informed the appellant on the 19th July, that he had referred her to Dr.

Martin Lawlor in Cork University Hospital.

30. At this juncture this sequence of correspondence ends, as immediately afterwards leave to institute these proceedings was

obtained from the High Court.

The High Court Decision:

31. The trial judge determined the application as made against the first defendant by considering what had been urged under six

different headings. Whilst I do not consider it necessary to traverse each of these issues to the same extent, as in my view the

appeal can be determined on narrower grounds, nonetheless some comment is required on a number of these matters. As against the

second named defendant, the application was dismissed as the learned judge rejected the composite ground of allegation as next

described.

The Appeal As Against the Minister:

32. The grounds upon which the appeal was argued as against this defendant, which very much replicated those presented at the

Court of trial, are grounds which by law the appellant may not be capable of relying upon. This results from the provisions of O. 84, r.

23(1) of the Rules of the Superior Courts 1986 to 2013, when read in conjunction with the leave order. As appears from the judgment

of the High Court, the allegation against the Minister as generally described is that, as he was aware of the steps being asserted by

the Board against the appellant, and as he stopped the payment of her salary, by reference to such steps, he must, in these

circumstances, noting in particular his supervisory role in the operation of Clause 7 of the Circular, be taken as having adopted and as

being identified with, his co-defendant, in respect of the wrongs perpetrated by it.

33. Leaving aside for a moment whether or not this point is arguable as a matter of law, it must be recalled that the only legal ground

upon which leave was obtained against the Minister was that as set out at para. 8 of the Statement of Grounds, which reads as

follows:

“The respondents have acted and continue to act in disregard, inter alia, of the constitutional rights and legitimate

expectations of the applicant, her rights under the ECHR and in breach of the principles of fair procedure and of

constitutional and natural justice.”

34. It is quite difficult to see how within this ground, the allegation as mentioned can be accommodated, particularly in view of the

express concession by the appellant that neither the Convention nor the Constitution are being relied upon at this stage, that the

validity of the Circular is not being challenged and that no complaint is being advanced in respect of the Department’s reliance on Rule

93(1)(b) RNS. In addition, and quite obviously, no point is taken about the CMO’s so-called certification of Mrs. Fitzpatrick’s fitness

for duty. Therefore I cannot see the existence of any connection, certainly not any of substance, between the allegation as

formulated, and the terms of ground no. 8.

35. On a judicial review application moved under O. 84 of the Rules of the Superior Courts 1986 to 2013, the scope of the relief

sought and the grounds upon which such might be obtained are to be identified from the order of the High Court granting leave,

subject only to any amendment or variation subsequently allowed. Unless expressly or by interpretation, implicitly, within such order,

no relief or ground which differs therefrom can be argued. This also applies to an appeal in this type of application, save of course

that the Notice of Appeal is also a defining document. However, that Notice cannot enlarge the scope of the application as originally

granted or later amended.

36. In McCormack v. The Garda Síochána Complaints Board & Ors. [1997] 2 I.R. 489, Costello P. in this context said at p. 503 that

“the courts’ jurisdiction to entertain the application is based on and limited by the order granting leave”. This statement has been

subsequently repeated in several decisions of both the High Court and this Court, including Keegan v. Garda Síochána Ombudsman

Commission [2012] 2 I.R. 570, Fennelly J. at p. 576. Such expression of the law is reflective of O. 84, r. 23(1) which states that “no

grounds shall be relied upon or any relief sought at the hearing except the grounds and relief set out in the statement”. As no

amendment to the leave order of the 31st July, 2006 has ever been sought, this legal ground of appeal cannot be established with

regard to the second named defendant.

37. In fact, the position of the Minister, no matter how the argument is addressed, is put beyond issue given my conclusion on the

case as made against the Board.

The Appeal Against the Board:

38. The first point for resolution is whether Clause 7.3 of the Circular could ever be invoked, given the certificates submitted by the

appellant’s medical advisors and the “Consultation Report” of the CMO, dated the 24th January, 2006. This in turn requires an

examination of the provisions of that Clause and an understanding of the relationship between the Circular and the Rules.

39. From an interpretive point of view, the Circular, which forms part of the appellant’s terms of employment, can be considered as

having a contractual basis and as such, in private law, its true meaning can be ascertained by reference to general principles. This

means that the parties’ intentions must be ascertained from the language used, when considered within the surrounding

circumstances and in light of the nature, object and purpose of the contract. One must add to this what Fennelly J. said in Analog

Devices B.V. & Ors. v. Zurich Insurance Company & Ors. [2002] 1 I.R. 272 at p. 294, that “[i]nsofar as Irish law is concerned, the

contract is to be interpreted objectively in accordance with the meaning of the words the parties have used.” The opinion of Lord

Hoffman in Investors Compensation Scheme Ltd. v. West Bromwich Building Society Same v. Hopkin & Sons (a firm) & Ors. [1998] 1

W.L.R. 896 is to the same effect.

40. In addition however in this case, one must also be mindful of a public law element, which comes about as a result of the manner

of the Circular’s creation, the subject matter of its remit and the employment status of those to whom it applies.

41. Whilst there is an obvious and perhaps even close association between the Rules and the Circular, nonetheless, like the trial

judge, I too would accept that the underlying purpose of operating Clause 7.3 of the Circular is different to the purpose for which Rule

93 RNS exists. The former is a means or measure of assistance to the Board in the discharge of their statutory and common law

duties, which involve not only the day-to-day management of the school and the provision of educational needs, but also a

requirement to provide a safe working place and environment for its staff, with due regard to their individual and collective health and

welfare.

42. On the other hand, Rule 93 is a procedure which allows the Minister, who is not only the pay master of the teacher but who is

also a designated person holding a level of responsibility somewhat different from that of a Board of Management, to consider an

individual’s health for the purposes of assessing his or her continued eligibility to work as a national school teacher. That right is

exercisable independently of the Board and, at least generally, its exercise does not impact on the Board’s entitlement to invoke the

terms of its contractual relationship with any teacher.

43. In this case I do not understand the appellant to argue that based purely on the certificates of her medical advisors, the Board

would be debarred from operating Clause 7.3 of the Circular and in effect would have to accept such certificates, thereby permitting

her to return to work. Any such interpretation of the Clause would strip the Board, as employer, of any direct involvement in the

assessment of its employees’ health. It would transfer the responsibility therefor, effectively onto the employee, with the only

element of “independence” being the impartiality of that person’s medical advisor. That ouster of responsibility would be entirely

incompatible with the employer’s duty as above mentioned, and on no reasonable interpretation of Clause 7 could such fit within its

terms. Accordingly, I regard the submission as suggesting that the involvement of the CMO in the certification process is the critical

role relied upon and not that of either the G.P. or Dr. Browne.

44. In this regard it should be pointed out that the CMO’s involvement did not arise under Clause 7.4 of the Circular, which confers on

her the status of final arbiter, in circumstances where, following independent medical assessment, there remains a concern about a

teacher’s suitability to return to work. Rather, the CMO’s role in this case was one of reporting to the Department following receipt of

Dr. Browne’s report, which was furnished under Rule 93(1)(b)(i) RNS. This is an entirely different function than if she were operating

under Clause 7.4 of the Circular. The duties under both are quite distinct. Indeed, it must be noted that when writing to the appellant

on the 25th November, 2005 (para. 20 supra) the Department significantly pointed out that in addition to the medical report which it

was then seeking, she would also have to submit a medical certificate of fitness to the Board if she intended to return to work.

Consequently in my view there is no question of the CMO’s involvement in reviewing Dr. Browne’s certificate, resulting in the Board, at

the level of principle being precluded from operating Clause 7.3 of the Circular.

45. As Clause 7.3 points out, its provisions may be invoked where the Board of Management has “any concerns” regarding a teacher’s

proposed resumption of duty following a period of sick leave. By reason of the Board’s entitlement to refer such a teacher for a

“medical assessment” (see para. 53 infra), it would follow that such “concerns” must relate to matters which are within the remit of

that profession. Such matters of course involve not only physical injury or illness, but also and of necessity include issues of a

psychiatric nature, which stress, experienced at a certain level and producing debilitating consequences, comfortably falls within.

46. The first complaint under this heading centres on what the real purpose of the referral was. The High Court judge, apparently at

the urging of the applicant, determined this issue by searching for what the “dominant purpose” was. I am not certain that such a

submission is correct or that the appellant would necessarily have to go that far, for if that be the test, the existence of an improper

purpose, no matter how significant or how influential in the referral decision, but one falling short of being dominant, would have to be

disregarded. This is a difficult area of the law which may not permit a single test application: in fact some differences can be

detected in how the point was treated in Cassidy & Ors. v. Minister for Industry and Commerce [1978] I.R. 297, Kennedy v. The Law

Society of Ireland & Ors. [2000] 2 I.R. 104, and in The Director of Corporate Enforcement v. DCC Plc. & Ors. [2009] 1 I.R. 464. That

being so, I would reserve my opinion on the point, noting the added complication in this case, unlike in those just mentioned, of a

significant private law element. In any event, in my view the point as such does not require a definitive view as on my reading of the

documentation the appellant has not established on the balance of probabilities, to either level, the existence of such a purpose.

47. Running throughout each strand of the case and existing at every level is an allegation of bad faith on the part of the Board, in

particular by the Chairperson and also by the Principal of the school, acting either on her own initiative or at his request. This

allegation is inextricably linked to the improper purpose point and if found to exist, any causative consequences would have to be

remedied. Bad faith is bad faith and no employer is entitled to operate a contractual provision on that basis. However, the real

question is whether the judge was legally justified in concluding as she did on this particular issue.

48. Unless it was patently obvious from the documents that such was established, it would be almost impossible for a court to reach

a conclusion to that effect without the key witnesses being tested on oath. In the absence therefore of an ex facie expression of bad

faith, as is the situation in this case, and in face of strenuous denials by the persons against whom these allegations were made, the

High Court in my view had no choice but to conclude as it did on the point.

49. That conclusion was based on a review of the material exhibited, as both explained and expanded upon by the affidavit evidence.

In my view this evidence squarely raised, firstly, the question of stress, caused by events occurring within or related to the

workplace, secondly, the effects of such stress on the appellant, and thirdly, the impact thereof on her fitness to resume teaching

duties in the school. A brief overview of the most relevant correspondence will amply demonstrate this.

50. The letter of complaint in September, 2005, expressly raised stress-related matters as causing “health difficulties” for the

appellant, which stemmed from her workplace and those with whom she had to engage therein. The certificate submitted by the G.P.

on the 26th January, 2006 was anything but unconditional. His assertion of her fitness to work was immediately qualified by the

condition that “she should work in a safe and stress-free environment”. This was a clear reference to her position in the school and

when taken together with the September complaints was immediately capable of arousing legitimate concern about what health effect

a return to work would have for the appellant, if the requirement of a “safe and stress-free environment”, as intended and understood

by her, was not satisfied.

51. Whilst I appreciate that Clause 7.3 of the Circular had been invoked before the Department’s letter dated the 28th January, 2007

was received by the Board, nonetheless, the CMO’s report of the 24th of January could only have added significantly to the concerns

already existing. It will be recalled what her own consultant said; specifically, that whilst Mrs. Fitzpatrick was fit to return to work,

“she is likely to have a recurrence of her medical problem if the inter-personnel difficulties she is experiencing at work are not

resolved”. Even if the phrase “inter-personnel difficulties” was inaccurate, as it was, and instead should have referred to “work-

related matters”, nonetheless, the key factor at the centre of the on-going problem remained stress, said to have been caused in and

by her workplace. In these circumstances, I am perfectly satisfied, as the evidence went, that the Board could be considered to have

“concerns” within Clause 7.3 of the Circular, thereby founding the legitimate invocation of its provisions.

52. A matter of some concern to me however is the way in which Clause 7.3 of the Circular was thereafter operated, and in particular

the input of the Chairperson and the drawing up and subsequent use at his request of the Nix Memo. Clause 7.3 “recommends” that

each Board should have a local medical advisor who would deal with routine occupational matters and that “… [w]hen referral for

independent specialist assessment is required, [such advisor] … should nominate the appropriate specialist suited to the teacher’s

underlying medical disorder”. It is therefore clearly envisaged that where such an advisor has been appointed, the decision to refer,

which must be medically driven, becomes a matter for him, as would be the nomination of the speciality and the specialist involved.

That this is both logical and understandable cannot be doubted, nor I would have thought can the desirability of the decision maker

standing neutral, as between the employer and employee. The reason is that such a step is of a serious nature and potentially could

have significant consequences for all parties: in the case of a teacher, the referral is for assessment and not treatment and the

doctor-patient confidentiality may not fully apply: therefore such a person could be affected both personally and professionally. To

guard against even the suggestion or appearance of any improper use of this power, is I think both wise and rather obvious.

53. However, the question of law is not what is reasonable or prudent but what is legally provided for, having regard to the

contractual position and to fair procedures: Glover v. B.L.N. Ltd. & Ors. [1973] I.R. 388, Walsh J.. In this regard, I am by no means

convinced that the High Court was correct in its interpretation of Clause 7 as imposing only a single obligation, in effect one for the

benefit of the employer, such that medical assessments must be carried out by a doctor “independent” of the employee. In addition,

it is at least arguable that the “recommendation” reference in the Clause applies only to the appointment of the local medical advisor

but that once such an appointment is in place, the decision and nomination as last mentioned become a matter for the appointee.

Consequently, I am not at all sure that a narrow construction of the Clause is justified as its provisions effect and are for the benefit

of, but also bind, all parties to the employment contract.

54. To that end, if the situation had remained as it was, with Dr. Mohan, I would have had serious doubts about the manner of that

intended referral: furthermore, such misgivings would have included the controversy regarding the information given to him, in

particular the Nix Memo. It is anything but clear that such steps should have been initiated by the Board. However, as with a number

of other issues in this case, I do not have to decide this point as in my view the offer communicated by the Board but rejected by the

appellant in the correspondence which took place between the 26th May, 2006 and the 19th July, 2006 is decisive as to the appeal’s

outcome.

55. It will be recalled that in the sequence of correspondence above outlined (paras. 27 to 29 inclusive supra), the Board agreed to

stand down Dr. Mohan and to ask the local medical advisor to nominate a different specialist for the referral. Dr. Mahony did so and

suggested Dr. Lawlor, who agreed to so act. Apart from objecting in principle to any referral, a position which for the reasons above

given was not sustainable, this accords with Mrs. Fitzpatrick’s interpretation of Clause 7.3 of the Circular. Therefore, in this regard her

complaints had been responded to and met.

56. In addition, the Board also said that it would supply to the new consultant only such material as he requested and suggested that

the same approach should also be followd by the appellant. As events happened, the appointment process with Dr. Lawlor terminated

with the institution of these proceedings and did so before that doctor had any opportunity of setting out his views in this regard.

Obviously in these circumstances one will never know what his requirements, if any, would have been.

57. Whilst it is not necessary to be definitive about the point, I cannot see how, at the level of principle, the offer made by the Board

was inconsistent with the provisions of Clause 7.3 of the Circular or was in breach of fair procedures. However and quite evidently, in

view of what occurred, I cannot comment more specifically but I am satisfied that such offer had a justifiable basis to it. It is of

course unfortunate and is to be regretted that the appellant did not take up the offer and follow through on the process.

58. In light of these circumstances I am of the view that matters previously outlined in the correspondence were superseded and that

whatever infirmities either of fact or in law might have existed with regard to how the first referral was made and how Dr. Mohan was

so nominated, such have no causative effect on the appellant’s real complaint or the relief which she seeks in respect thereof. In so

saying I am not suggesting that such matters are technically moot, an area of law which was recently considered in some detail in

Lofinmakin (a minor) & Ors. v. The Minister for Justice, Equality and Law Reform & Ors. [2013] I.E.S.C. 49, as they may have some

residual legal effect between the parties, but not of a nature capable of sustaining this application for judicial review.

59. By reason of the matters aforesaid I would, on the grounds as stated, dismiss this appeal.

60. Finally, the Notice of Motion issued by the first named respondent, which was adjourned to the hearing of this appeal, does not in

these circumstances call for separate determination.