Secondary school teacher Enoch Burke has failed to stop a hearing into his dismissal from going ahead tomorrow.
Mr Burke, who is currently in prison for contempt of court, was dismissed from his job as a teacher at Wilson's Hospital School in January 2023.
An independent disciplinary appeals panel is due to hear his appeal against his dismissal tomorrow but Mr Burke does not want it to go ahead due to an outstanding issue he wants the Supreme Court to rule on.
The Court of Appeal ruled he would suffer no prejudice by the hearing going ahead and refused his application to delay it.
The dispute with the school began in May 2022, when staff were told by the then principal to use they/them pronouns and a new name for a pupil. Mr Burke said he could not do this and objected at a staff meeting and publicly, at a school church service. He was suspended and subsequently dismissed.
He continued to attend at the school, despite court orders directing him not to trespass and is currently in prison for the fourth time for breaching the orders.
Mr Burke is still being paid by the Department of Education, pending the outcome of his appeal against his dismissal. He successfully challenged the composition of the first Disciplinary Appeals Panel (DAP), which was convened to hear the appeal. A new panel is due to meet tomorrow to consider his appeal.
However, Mr Burke argued that the hearing should not go ahead because there are two court of appeal judgments, which, he says, differ about the basis for the original disciplinary action against him.
He told the court that a 2023 Court of Appeal judgment in which one of three judges observed there was "no evidence whatever" that Mr Burke was placed on leave because of his views, was being relied on in the appeal process by the school’s Board of Management.
Asked by the court if he understood that these comments were not findings of fact but observations by the judge in the case, Mr Burke said the comments by Mr Justice John Edwards were "ringing with totality and absolutism".
He said a second Court of Appeal judgment earlier this year came to a "diametrically opposed" finding and did not correct the earlier judgment. The later judgment said the principal’s instruction to teachers about the pupil’s name and pronouns was a "kernel" of the case.
Mr Burke told the Court of Appeal this was an exceptional matter. He wants the Supreme Court to make a ruling on it, and said the DAP should not deal with his case in the meantime. He said it was unthinkable that he would have to go into a hearing in which his career would be on the line while these two opposing judgments remained outstanding.
Senior Counsel, Padraic Lyons for the DAP said Mr Burke had not given a good reason or a cogent answer when he was asked what prejudice he would suffer if the DAP hearing went ahead tomorrow. He said Mr Burke could make whatever arguments he wanted to at the hearing about the basis for his dismissal and it should be allowed to take its course.
Mr Lyons pointed out that a High Court judge had said earlier this week that it was in the interests of all concerned that this appeal hearing should go ahead as soon as possible.
Mr Lyons said a point made by Mr Justice Donald Binchy this afternoon that it would not be correct for the school’s board of management to rely on statements in either of the Court of Appeal’s previous judgments as matters of fact, was "well made" and would be conveyed to the DAP.
The court ruled the hearing should go ahead as planned. Ms Justice Mary Faherty said the three judges were satisfied that the issues to be decided by the appeal had not been determined by the Court of Appeal in either judgment.
She said there was a legal obligation on the DAP to determine Mr Burke’s appeal and it must arrive at its own conclusions. She said the judges were satisfied there was no prejudice to Mr Burke by the appeal going ahead and they refused his application for a stay.
Mr Burke described this as a grave injustice and accused the court of protecting one of its colleagues. Costs were awarded against him. Mr Burke who was accompanied in court by his brother, Isaac and one of his sisters was taken back to prison afterwards.
