Teacher who allegedly called student a ‘little bitch’ wins appeal

The Court of Appeal has overturned the High Court’s refusal to allow a teacher at a south Dublin private fee-paying school legally challenge how it dealt with a complaint alleging he called a male student a “little bitch.”

In 2016, the High Court ruled Pierce Dillon was not entitled to a judicial review against Catholic University School for reasons including a final written warning issued to the teacher had expired, there was no record of it on his personnel file and because scarce court time should not be allocated to trifling matters.

Mr Dillon, who denies calling the student a little bitch, appealed that decision.

In its judgement on Monday the three-judge Court of Appeal, comprised of its President Mr Justice George Birmingham, Mr Justice Gerard Hogan and Ms Justice Marie Whelan, allowed the teacher's appeal and remitted the matter to the High Court for a fresh determination on the merits of Mr Dillon's arguments.

Mr Dillon had sought judicial review of the formal procedure adopted by CUS in dealing with a complaint by the boy’s parents over events on May 8th and 9th, 2014.

The teenage student claimed, after he was late on May 8th, 2014 for Mr Dillon’s class due to talking to another teacher, Mr Dillon told him he was continually disrupting the class, always moaning and was a “little bitch”.

Kicked out

The student also claimed, after telling Mr Dillon the following day he could not attend class due to a school sports’ commitment, he was told he would be kicked out of class for three weeks. The boy alleged he told Mr Dillon he was not allowed call him a “little bitch” and Mr Dillon had denied doing so

Following the complaint a meeting was held on March 27th, 2015 to discuss disciplinary action, leading to a final written warning being issued to Mr Dillon in April 2015.

Mr Dillon was told CUS was a Marist Catholic school known for the kindness and humanity with which it treated its pupils, that his behaviour had fallen short of the school’s expectations and a final warning would be active for 12 months after which, subject to his satisfactory performance, it would expire.

He claimed the handling of the complaint was unfair, breached his rights and the school’s own procedures, and caused him hurt and distress after 34 year’s service as a teacher. He also claimed it allowed no appeal. The school argued it had implemented the appropriate procedure and Mr Dillon had been treated fairly.

In 2016 Mr Justice Michael Twomey said the court was being asked to intervene and quash a final written warning to a teacher concerning one incident of inappropriate name calling.

The court should not intervene on grounds of mootness (pointlessness) because, when the matter was first heard, the warning had expired. It had also been removed from his record within 12 months.

‘Just a warning’

The judge said he was also refusing judicial review on the de minimis principle (a legal principle by which the court refuses to consider trifling matters) as the final warning was “just a warning” to be removed after 12 months and treated as it if had not existed. There was no imposition of any liability, he said.

He also refused judicial review based on the need to avoid unnecessary use of the scarce public resource of court time.

While giving the Court of Appeal’s decision on Monday, Mr Justice Birmingham said the High Court was wrong in law to dismiss the case on the grounds it was moot. The terms of the final warning given to Mr Dillon had potentially significant implications for his good name and his employment prospects.

This was sufficient to justify the conclusion that the proceedings Mr Dillon sought to advance were not moot or a small matter. While the court said it was not expressing any view on the merits of the arguments advanced it was allowing the appeal and sending the matter back to the High Court for a fresh determination.

In his concurring judgement Mr Justice Hogan said he was concerned about deeming a final warning as minor. In his view such a warning should not happen lightly and cannot be regarded as a “trifle.”

Mr Justice Birmingham said he was allowing the appeal despite his “strongly-held view” that disciplinary actions in a industrial relations context, falling short of a dismissal, should rarely find their way to the courts.