Title:	Fitzpatrick -v- Board of Management of St Mary's Touraneena National School & anor
Neutral Citation:	[2013] IESC 62
Supreme Court Record Number:	298/08
High Court Record Number:	2006 950 JR
Date of Delivery:	12/19/2013
Court:	Supreme Court
Composition of Court:	Denham C.J., McKechnie J., MacMenamin J.
Judgment by:	MacMenamin J.
Status:	Approved
Result:	Dismiss
Judgments by Link to Judgment Concurring Denham C.J. Link McKechnie J., MacMenamin J. McKechnie J. Link MacMenamin J. Link

THE SUPREME COURT

Between/

1. As the Chief Justice points out in her judgment, these were judicial review proceedings, and as such, were heard only on affidavit. One has the impression that there was much more to this case than comes across in the affidavits. A school, especially a national school in a rural location such as this, is a community within a community. There is always a risk that, on one or other side, issues can be magnified beyond their apparent importance to the outside observer. Similarly, interpersonal issues can arise that simply do not easily lend themselves to being put within a legal framework. This may be the case here, where the documents indicate the appellant laid some emphasis on the significance of events which occurred at a various school functions, including a confirmation service for the pupils.

2. It is the nature of the human condition that some issues are magnified and some are minimised in any person’s narrative of events. Seen from the outside, it is difficult to ignore the inescapable fact that the appellant was on sick leave for 360 days over a period of four years, and was again off work on such leave when this litigation commenced. This was a long period. Surely, it called for explanation, especially if the cause was stress?

3. In light of the fact that there is not evidence on these issues, I speak for a moment in generalities. On an objective assessment, a situation of long absence from work is also one which would put any careful employer on enquiry, in itself and in the context of a return to work, especially if it were thought that the actual circumstances of employment were trigger factors for the stress. It may be necessary to take the initiative. An employer might seek to address alternative solutions other than a return to work in the same location. An employee might seek employment elsewhere. But surely reasonable discussions between the parties would have addressed the issue?

4. Much water can flow under the bridge by the time lawyers are retained in such cases. There are limits to what lawyers can achieve, other than give full and careful legal advice. But for the future, courts may well, in cases such as this, ask the question why was there no mediation process? Why did communication break down? Was one party or the other acting unreasonably? Should one or other party have taken the initiative? These are legitimate questions; particularly so, as the courts are now frequently being asked to deal with many “bullying and harassment” cases. Such cases obviously require case management, if they come to court at all. At the outset of litigation, the courts may have to enquire whether procedural steps have been taken to avoid litigation. Is there a system of mediation or arbitration in being governing the particular employment situation at hand? Have the parties availed of such a scheme; and if not, why not?

5. Returning to the appeal at hand, one cannot but have some regard to the fact that the appellant, from her own point of view, felt there was some form of conspiracy against her. Her case was that her employers had acted mala fides in seeking a medical assessment prior to allowing her return to work. Perhaps, she believed that they were engaging in a course of action designed to lead to her compelled resignation on ill health grounds. However, a sense of apprehension of a conspiracy, and objective proof for justifying such an apprehension, are two different things.

6. As there was to be an assessment of the appellant’s medical condition prior to any return to work, the appellant’s lawyers, on instructions, objected to one psychiatrist as an assessor. That psychiatrist was replaced by another, who was designated for the purpose. But the appellant herself has not given any explanation as to why she did not attend that alternative psychiatrist, who had been retained to carry out just such an assessment. One can only speculate as to her thinking on this issue. But it meant the situation remained unresolved.

7. It is profoundly unfortunate that the appellant has now been engaged in this dispute for almost 10 years of her working life. It is fortunate that she has now obtained alternative employment. It is not clear that the steps she took to obtain this alternative employment were directly conveyed to her legal advisors however. One is left with the impression that the appellant became so immersed in her own problems, that she did not always communicate with those who were there to assist and advise her.

8. By the time this matter came before this court on appeal, fixed positions had been adopted. The parties had, perhaps, become more entrenched in their views. Consequently, even efforts this court made to resolve the issue, albeit at the eleventh hour, unfortunately came to nothing.

9. S.I. No 502/2010 - Rules of the Superior Courts (Mediation and Conciliation) 2010 came into effect on the 16th November, 2010. It sought to achieve in the ordinary courts a procedure similar to that adopted in the Commercial Court, whereby a High Court judge may adjourn legal proceedings to allow parties to engage in an ADR process. This may mean mediation, conciliation, or some other dispute resolution process, approved by the High Court. These rules may result in a cost sanction for those who fail, or refuse, without good reason to participate in such a process. For the future, alternative dispute resolution in some areas may become mandatory. There are currently legislative proposals to extend the range of alternative dispute resolution and professional mediation. The courts must not be “the first and only resort for dispute resolution” as former Chief Justice Murray pointed out some time ago. However, for a satisfactory resolution, it will often be necessary to ensure that a resolution process commences before the parties engage in litigation. Once the lawyer’s letters are written, once the affidavits are sworn, a position which might be retrievable often becomes irreparable.

10. It is of course true that alternative dispute resolution and mediation can be criticised. It cannot solve all legal problems. To be successful, such processes must be conducted properly. Someone, whether employer, employee or trade union must take the initiative. It is imperative that a facilitator acts objectively and fairly in the interests of both parties, and not one. Many common law jurisdictions have espoused ADR or mediation as being an entirely necessary adjunct to the legal process. Some suggest the process, when availed of, must always be voluntary. I do not agree; there may be cases where such a process should be mandatory. But it must be fair. The fact that there may be a penalty of costs for failure to engage in such a process is not, I think, sufficient argument against it, especially when court lists become lengthy and litigation costs become significant. This matter was at hearing in the High Court for five days, and for one day on appeal in this Court. In fact, such a scheme may well already be in existence for national school teachers.

11. One is left to question whether, before this legal process began, before the lawyers became involved, some facilitation process, whether ad hoc or part of a scheme, could have achieved an appropriate alternative posting for the appellant in another school within reach of her home. She must now engage in a very long commute to the school where she works. That situation seems very difficult. In any litigation process, inevitably, there will always be “winners” and “losers”. The range of possible outcomes is necessarily limited by the law. Litigation can be stressful, sometimes profoundly so. Lawyers frequently strive to keep their clients out of court, or go to court as a last resort. The parties here were fully legally advised. Their respective interests were fully vindicated by their lawyers in the High Court, and here, on appeal. One is nonetheless left with a regret that some person didn’t shout “stop” and initiate a conciliation process at an earlier time, which could have avoided months of correspondence, days of litigation, the stress such litigation brings to the parties and the risk of substantial legal costs.