Seconday school teacher Enoch Burke has been granted an injunction stopping the general secretary of secondary school teachers' union, the ASTI, from being part of a panel to hear an appeal against his dismissal from the school where he taught.
The Court of Appeal overturned the High Court’s refusal to stop the holding of the disciplinary hearing with a panel including ASTI General Secretary Kieran Christie.
Mr Burke had sought an injunction restraining the holding the appeal due to the composition of the panel.
He made claims of objective bias against Mr Christie.
Mr Burke claimed Mr Christie was a "promoter of transgenderism". And he raised comments made by the union’s deputy general secretary in a Sunday newspaper, to the effect that the union did not have a written policy on students’ pronouns, but that they would "advise schools to use the pronoun a child wishes to be used".
His case was rejected by the High Court in December 2023.
But in its ruling, the Court of Appeal found Mr Burke had made out a fair issue to be tried and had a strong case, that there would be a reasonable apprehension of bias if Mr Christie remained on the appeal panel.
Dispute
The dispute between Mr Burke and Wilson’s Hospital School began when the then principal of the school sent an email to staff in May 2022, telling them a student wanted to transition and would become known by a different name and use "they/them" pronouns.
Mr Burke objected, raising the matter at a staff meeting, at a meeting with the principal as well as during and after a church service in June 2022.
The school says Mr Burke acted wholly inappropriately in the way he objected to the principal’s instruction.
Mr Burke says he acted appropriately and was punished for his religious beliefs.
Mr Burke was suspended in August 2022, and spent several periods in Mountjoy Prison for breaching court orders directing him to stay away from the school. He was dismissed in January 2023.
Mr Burke appealed the dismissal by the Board of Management to the Disciplinary Appeals Panel, but subsequently objected to the composition of the panel.
He claimed Mr Christie was "a promoter of transgenderism in the ASTI, had awarded those who advance transgenderism in schools and had worked closely with Transgender Equality Network Ireland over many years." He said it was not appropriate that he be a panel member.
Judge's ruling
Giving the Appeal Court’s ruling, Judge Mary Faherty said the primary focus of Mr Burke’s appeal was a statement made by the ASTI’s Deputy General Secretary Diarmaid de Paor in the Sunday Independent in September 2022.
In the article, Mr De Paor said the ASTI did not have a written policy on students’ pronouns but would generally advise schools to use the pronoun that a child wished to be used.
Judge Faherty said Mr Christie, as general secretary of the ASTI, would be perceived by the reasonable observer as being associated with this statement, which was in effect, she said, the ASTI position.
She said Mr Burke had made out a fair issue to be tried and had also established a strong case that there would be a reasonable apprehension of objective bias if he remained on the panel due to hear Mr Burke’s appeal.
She said this was because of the nature of Mr Christie’s role, and the fact that the ASTI’s position was likely to be adhered to by schools and appeared to have been adhered to by Wilson’s Hospital School.
She pointed out that the ASTI’s position was counter to Mr Burke’s position.
Judge Faherty said she did not believe the same issue would arise with any other person nominated by the ASTI to sit on the appeal board, instead of Mr Christie.
The judge also said she did not agree with the High Court’s finding that the concerns which led to Mr Burke’s suspension and subsequent dismissal related solely to the public way in which he expressed his opinion.
She said there was merit in Mr Burke’s submission that the principal was also concerned about the substance of his objections to calling the student a new name and using they/them pronouns.
'Spectre of unfairness'
Judge Faherty said what led to the disciplinary process was both the manner in which Mr Burke expressed his objections and his likely conduct going forward.
She said a reasonably informed observer would consider that the Disciplinary Appeals Panel would have to engage in analysis of the legitimacy of the principal’s instruction, which mirrored the advice given by the ASTI to schools.
The judge said, in deciding whether or not to grant Mr Burke the injunction he sought, she had considered his history of contempt of court.
She said he had an established history of not obeying court orders made against him in the proceedings taken by the school.
She said granting him the injunction he sought should not be seen as the Appeal Court condoning his "egregious contempt".
But she said a "spectre of unfairness" would hover over his appeal process if he had to face the panel as presently constituted, given that he had made out a case of a reasonable apprehension of objective bias.
She said in normal course, Mr Burke should be granted the costs of this appeal. But she said they were "not in normal territory" due to Mr Burke’s contempt of court.
She set aside an order for costs against him made in the High Court but did not award costs in his favour.
