Tuesday, January 17, 2023

High Court reporters

A High Court judge has said he will not grant Enoch Burke an injunction halting disciplinary proceedings against him unless the teacher agrees to comply with a previous court order to stay away from a Co Westmeath school.

Mr Justice Conor Dignam said the teacher had raised strong grounds that would allow the court to make orders preventing Wilson’s Hospital School from proceeding with a disciplinary meeting due to take place at a Mullingar Hotel this week.

Due to the teacher’s ongoing refusal to comply with a court order requiring Mr Burke to stay away from the school until the proceedings have been determined, the judge said the balance of justice was tipped in favour of refusing to grant the injunction.

However, the court said it would be prepared to grant the injunction, which would remain in place until the full hearing of the dispute between the school and Mr Burke has been determined, if the Co Mayo teacher was prepared to comply with an order granted last September directing him to stay away from the school while he is suspended on pay.

If Mr Burke does not agree to comply with the order not to attempt to teach or attend at the school, then the injunction will not be granted the court indicated.

Mr Burke has sought an order preventing the school from continuing with a disciplinary process into allegations of gross misconduct that could result in his dismissal.

He claims that the process is fundamentally flawed and in breach of fair procedures.

Transgenderism

The disciplinary hearing stems from Mr Burke’s alleged behaviour towards the former School Principal Niamh McShane at a school function last June when the teacher is alleged to have openly and publicly voiced his opposition to transgenderism.

He claims his suspension relates to his opposition to the school’s direction to refer to a student at the school, who wishes to transition, by “a different name” or a “they.” rather than a he.

Mr Burke denies any wrongdoing and has argued that his suspension, and the subsequent court orders, including one which saw him jailed for over 100 days for contempt against him, amount to a manifest breach of his constitutional right to religious freedom.

The school denies Mr Burke’s claims and had opposed his injunction application.

Giving the court’s decision Mr Justice Dignam accepted that Mr Burke had made out a strong case that his challenge against the school decision to bring disciplinary proceedings against him would succeed at the full trial of the action.

In his decision Mr Justice Dignam also agreed with submissions by Rosemary Mallon Bl for the school, that Mr Burke had not come to court with “clean hands”.

Mr Burke, he said, had refused to comply with a court order obtained by the school, resulting in his incarceration for 108 days for being in contempt of court.

The order was sought after he refused to abide with the terms of his paid suspension and stay away from the school.

He was released from prison before Christmas but had again breached the order by attending at the school after the holidays concluded on January 5th last.

The court said that “it would not be a proper exercise of the court’s discretion to grant the injunction halting the disciplinary process if the defendant persists in his stated intention.

‘Focus on the future’

Rather than dismiss the application, the judge said he was going to “focus on the future” and was giving Mr Burke an opportunity to consider the court’s decision and listed the matter before him on Wednesday morning.

The judge did not accept other arguments by the school including that the injunction should not be granted because Mr Burke’s application was premature.

The judge also noted Mr Burke’s claim that the Chairman of the School’s board Mr John Rogers had said in a sworn statement to the court that the report compiled by McShane concerning allegations against Mr Burke was put before, but not discussed by the board at its meeting on August 15th.

Mr Burke had said that this contradicts minutes of a meeting attended by Mr Burke some days later, where Mr Rogers is alleged to have said that the contents of the report were discussed by the board.

Mr Burke claims that this amounts to “a lie” and says any discussion of the report by the board when he was not present amounted to breach of his rights to fair procedures.

Mr Justice Dignam said that while there was a contradiction, this was something that could not be resolved at this stage of the dispute, and was a matter for the full hearing of the dispute.

The matter will return before the court on Wednesday.

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