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    September 26

  • 08:58 AM

EVERYDAY LAW: Principal versus minister

Cecil McCarthy,

Added 24 October 2012


The recent decision of the Irish High Court in the case of McSorley vs Minister of Education (2012), in which a school principal successfully challenged the decision of the Minister of Education to dismiss her, following an inquiry into her performance as principal of the school, makes interesting reading. The applicant Ms McSorley is the principal of the Kilkenny City Vocational School (KCVS). She held the position since 1999. She took over at a time of declining enrolment numbers and unrest between various parties at the school. In 2003 a number of allegations were made concerning the applicant’s conduct in the running of the school. These allegations included inappropriate use of school funds. In 2005 the then minister of education decided to establish an inquiry pursuant to the provisions of the Irish Vocational Education Act 1930 and among terms of reference of the inquiry were the following: 1. an inquiry into the performance of Ms McSorley of her duties as principal of KCVS. 2. the alleged engagement of Ms McSorley in the bullying of staff members of KCVS. 3. the alleged failure of McSorley to comply with the lawful orders of the vocational education committee as directed from time to time by the chief executive officer. 4. the alleged payment by Ms McSorley to students of KCVS to attend school. The inquiry officer Mr O’Connor made no adverse finding on the six matters set out in the terms of reference. However, he decided to investigate certain new matters concerning financial improprieties. These matters also related to the period 2001 to 2003. It was three of the above matters that were upheld by him. It was apparently on that basis that the minister of education considered that the applicant was “unfit to be a teacher” and made an effort to have her removed from office. The learned judge of the High Court, Justice Hedigan, considered several issues in arriving at his decision including the major issue, which was whether the minister’s decision to declare the applicant “unfit” to hold office and to remove her from her post was unreasonable and/or disproportionate. In deciding this issue, the judge first looked at the court’s role in judicial review proceedings and among the core principles he mentioned that the court should have regard to the effect of decision making on rights. He remarked that [any] “effect on rights should be within constitutional limitations and should be proportionate to the objective to be achieved. If the effect is disproportionate, it would justify the court setting aside the decision”. He continued: “Clearly, the circumstances under which the court can intervene with a decision-maker involved in an administrative function such as herein are limited. However, as stated above the court must have regard to the implied constitutional limitation of jurisdiction in all decision-making which affects the rights . . . . “Clearly, the minister’s decision has a profound effect upon the applicant’s rights. Thus the court must ask: was the decision reached in this case disproportionate? The objective of the inquiry into Ms McSorley’s performance must ultimately have been to determine whether her continuance in the role was consistent with the provision of a proper functioning school where she worked. “In this regard it must be noted that Ms McSorley has served as principal of the school for 12 years. Her appointment in 1999 was to an extremely challenging role. The previous incumbent had resigned and the school was facing falling enrolment numbers. There was unrest between various parties at the school. “The three complaints upheld against her involved events that occurred between 2001 and 2003. The complaints upheld were eight to ten years old when the decision to dismiss her was made. In the meantime all the evidence that this court has heard is to the effect that she was doing a very good job. “It seems to me that bearing in mind the inordinate length of time since the events in question and balancing that with her apparently very satisfactory performance of her duties as principal in the time between, there is in the decision to now remove her from her post a manifest disproportionality that requires the court to intervene. There must be an order to quash the decision of the minister to dismiss the applicant from her post.” • Cecil McCarthy is a Queen’s Counsel.


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