The recent case of Catherine McSorley v The Minister for Education and Skills and Kilkenny Vocational Education Committee (28 April 2012) involved an interesting judicial review of a decision by the Minister for Education to remove the applicant from her position as principal of a vocational school following an investigation conducted under the Vocational Education Acts 1930 – 2001.
The applicant is principal of Kilkenny City Vocational School and has held that position since 1999. In 2003 a number of allegations were made concerning the applicant’s conduct. Further to these allegations a number of enquiries were initiated. In December 2005, the then Minister for Education established an enquiry under Section 105 of the Vocational Education Act 1930. The Minister approved terms of reference for this enquiry and pursuant to this an interim report was submitted to him in April 2012. The Minister wrote to the applicant informing her that he had considered the interim report and formed the provisional opinion that she was unfit to hold office and invited her to make representations regarding this opinion. In June 2011 representations were forwarded on behalf of the applicant. The Minister wrote to the applicant in July 2011 stating that he remained of the opinion that she was unfit to hold office.
The applicant sought an injunction to prevent her removal. The key issue to be determined was whether the Minister’s decision to declare the applicant unfit to hold office/to remove her from her post was unreasonable and/or disproportionate.
Hedigan J referred to the case of Meadows v the Minister for Justice Equality and Law Reform 2010 where Denham J had set out the core principles as follows:
- In judicial review, the decision making process is reviewed.
- It is not an appeal on the merits.
- The onus of proof rests with the applicant at all times.
- In considering the test of reasonableness, the basic issue to determine is whether the decision is fundamentally at variance with reason and common sense.
- The nature of the decision and the decision-maker being reviewed is relevant to the application of the test.
- Where the legislature has placed decisions requiring special knowledge, skill or competence, for example under the Planning Acts, with a skilled decision-maker, the courts should be slow to intervene in the technical area.
- The court should have regard to what Henchy J. in the State (Keegan) v Stardust Victims Compensation Tribunal referred to as the “implied constitutional limitation of jurisdiction” in all decision-making which affects rights. 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.
The objective of the inquiry was to determine whether the applicant’s continuance in her role was consistent with the provision of a proper functioning school. In this regard, the court noted that the applicant had served as principal in the school for 12 years. Her appointment in 1999 was to an extremely challenging role. The previous principal had resigned and the school was facing enrolment problems, and there was unrest between various parties at the school. The three complaints upheld against the applicant involved events which occurred between 2001 and 2003. The incidents occurred when she was relatively new to her role. The complaints upheld where 8 – 10 years old when the decision to dismiss was made. In the meantime, all the evidence of this court heard was to the effect that she was doing a very good job. She was described in the report as a considerable force for good in the school.
The court found that bearing in mind the inordinate length of time since the events in question and balancing that with the applicant’s very satisfactory performance of her duties as principal in the intervening period, the decision to remove her from her post was manifestly disproportionate and required the court to intervene.