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:	McKechnie 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

Introduction:
1. Having considered documentation running to almost five hundred and fifty pages, the High Court, after a five day trial which involved the hearing of detailed submissions from all parties, dismissed the application for judicial review and rejected all grounds upon which the same was advanced. This pithy description fails to reveal the intensity of the dispute between a very small number of people, who at one stage at least, had a working relationship with each other, if indeed not more. For all concerned, but in particular perhaps for the appellant, the dispute has taken its toll. Litigation was commenced in July, 2006, but if the truth be known, its seeds were sewn well before then, indeed even much earlier than the first formal letter of complaint which, for present purposes, can be considered as having issued in September, 2005. Eight years or more has therefore been given over to the legal process to try and resolve a situation so local and so concentrated that one wonders how did it ever get to this level.

2. Some better way must surely exist to determine an issue so central to an individual and to her livelihood: access to other means of resolution must be considered. But any such step requires some measure of cooperation; some understanding by each party of the other’s position. Perhaps the bigger the person, the bigger the understanding. Deeply entrenched positions, adopted with undue haste and characterised by harsh, accusatory and demanding words can rarely be admired and offer little, if anything, at the compromise level. Such an approach at times may seem to be justified, and even to have its place, but almost always it also has its price.

3. Mechanisms set out in documents, subject to either public or private law (or indeed both), purporting to offer a way out of a situation like that which has occurred in this case, are of little value unless they are openly accessible, objectively impartial, balanced as between adversaries and operated uninfluenced by extraneous pressures, whether internally driven or externally sourced. If there was in existence a system with these safeguards, such as might have helped to resolve this dispute, I greatly regret its non-use: if on the other hand no such mechanism was available, steps should be taken as soon as possible to have that unacceptable situation rectified. Otherwise more examples of what occurred in this case will undoubtedly follow.

4. St. Mary’s Touraneena National School (“the school”) is, by any standard, a very small school, with three teachers serving the local community. It was the only school where Mrs. Fitzpatrick ever thought, until the events next described occurred. Upon qualifying in 1983, she was appointed as an assistant teacher and promoted to Deputy Principal in 1997. The Principal at all times, of which I am about to speak, was a Mrs. Nix. Fr. Cornelius Kelleher, also at such times, was the Chairperson of the Board of Management (“Fr. Kelleher” or “the Chairperson”).

5. The applicant claims that she had no difficulties in or with the school prior to 2003 when after making an enquiry of a child, the parents of that pupil took strong objection to what she had asked. Thereafter she experienced problems arising out of her treatment in the workplace. She wrote to Fr. Kelleher in September, 2005 making allegations, by reference to specified examples, of which others existed, of bullying and harassment which she claimed had been on-going for the previous two years. The letter discloses, and certainly later events show, the heavy association of the Chairperson and the Principal of the school with these allegations. She had started a period of sick leave in or about that time, her proposed return from which, a few months later features quite prominently in this case. In the intervening period – that is, between then and now – as the following events will show, she has never returned as a teacher to that school.

6. When seeking to do so she proposed a return date in February, 2006. The Board of Management (or “the Board”), on being so notified, sought to invoke the procedures of a Department Circular, by which she was required to submit herself to an independent medical assessment, as it turned out, by a consultant psychiatrist. She objected to this requirement, suggesting that there was no genuine basis for such a referral. She complained as to the manner in which it was initiated and thereafter how the process was operated. Having several other concerns also, she had never in fact submitted herself to such an assessment by the time of the leave application in the within proceedings. That occurred in July, 2006.

7. To understand the issues which were agitated on the application and again on this appeal, it would be helpful at this stage to refer to the Circular as mentioned, as well as to the Rules for National Schools 1965, as amended (“the Rules” or “the RNS”), as certain provisions of both documents play a key role in this case. It is however only necessary to refer to Clause 7, and to a much lesser extent, Clause 8 of the Circular, whose full title appears later in the judgment (para. 8 infra) and to Rules 93 and 112 RNS. These provisions read as follows.

8. Clause 7 of Primary Circular 10/05:

Resumption of duty following paid/unpaid sick leave

“7.1 A permanent teacher cannot resume teaching following a period of paid sick leave of more than three consecutive months without providing a medical certificate of fitness to resume full-time teaching. This certificate should be provided to the [B]oard of [M]anagement at least two weeks prior to the proposed date of resumption of teaching duties.

7.2 A teacher may apply to the [B]oard of [M]anagement to resume duty at or before the end of the unpaid sick leave period, subject to the teacher furnishing a comprehensive report from a recognised medical doctor stating that s/he is fit to resume duty. This report is referred to the Chief Medical Officer who will determine if the teacher is fit to resume duty.

7.3 If the [B]oard of [M]anagement has any concerns regarding the teacher’s proposed resumption of duty, it may refer the teacher for an independent medical assessment prior to the proposed date for resumption of teaching. It is recommended that each [B]oard of [M]anagement should have a local medical advisor for dealing with routine occupational medical matters preferably with some occupational medical experience or training. When referral for independent specialist assessment is required, the local medical advisor to the [B]oard of [M]anagement should nominate the appropriate specialist suited to the teacher’s underlying medical disorder. A teacher who fails to attend for independent medical assessment at the request of the [B]oard of [M]anagement, will cease to be paid incremental salary until s/he attends for assessment. Costs in respect of the independent medical assessment will be borne by the [B]oard of [M]anagement.

7.4 If, following independent medical assessment, concerns remain regarding the teacher’s suitability for return to work, all medical reports in relation to the teacher will be referred to the Chief Medical Officer, for final decision as to the date of fitness to resume full teaching duties.

7.5 Where the [B]oard of [M]anagement is satisfied that the teacher is fit to resume duty following independent medical assessment, and the Board and the teacher agree the date to resume duty, the period of time when the teacher was first certified to resume until the day of resumption of duty following the independent assessment will not be counted as sick leave.

7.6 If a teacher to whom sick leave without pay has been granted, is not fit to resume duty at the end of the six-month period of unpaid sick leave, the teacher shall be deemed to have resigned from his/her post (section 8 also refers.)”

10. Rules 93(1)(b) and 112(3) RNS:

Rule 93(1)(b) of the Rules provides as follows:

“The Minister may, at any time, if he considers the circumstances warrant such a course, require a teacher, as a condition of continued recognition;

(i) To furnish a medical certificate (which shall include such details as the Minister may require) that he is free from any physical or mental defect likely to impair his usefulness as a teacher, or

(ii) To present himself for medical examination by a doctor selected by the Minister.”

Rule 112(3) states as follows:

“Payment of salary or other grants in respect of absence owing to illness shall not be made to a teacher for more than twelve months in any period of four consecutive years.”

13. Under s. 15 of the Education Act 1998 (“the 1998 Act”), a Board of Management is vested with a duty “to manage the school on behalf of the patron and for the benefit of the students and their parents and to provide or cause to be provided an appropriate education for each student at the school for which that Board has responsibility”. In order to discharge this responsibility, teachers quite evidently must be employed, so as to provide the appropriate educational requirements to each enrolled student at the particular school. When so employed, a teacher such as the applicant becomes an employee of the Board of Management, which in turn becomes her employer. This appears to follow from a consideration of the 1998 Act and from case law of both the High Court and this Court. This therefore is the relationship between these parties, with the underlying employment contract being one essentially governed by private law. There is no dispute thus far, and my recital of this situation is based on such acceptance.

14. The Rules do not have legislative status, even of a secondary nature. Neither does the Circular numbered 10/05 (“the Circular”). Both come into play because when persons are employed by a Board of Management as teachers, they agree as part of such employment to become bound by the Rules. These Rules are published by the Department of Education and in a triangular type relationship, which is known to and accepted by all, a teacher must be at all times Rule compliant, because otherwise her/his pay master, the Department, will not pay her/him.

15. The Circular is also published by the Department under the hand of the Minister. It is addressed to “Boards of Management, Principal Teachers and Teaching Staff in Primary Schools”, and a consideration of its subject matter shows that in accordance with its title, it makes provision for a “Sick Leave Scheme for Qualified Primary School Teachers in Permanent and Temporary Posts” (“the Sick Leave Scheme”). Its relationship with the Rules may not be definitively clear, but it seems to be accepted that where expressly so stated, it has the power to “revise” these Rules. It does not seek to replace such Rules, but only to interact with them for the purposes of implementing the terms of the Sick Leave Scheme. To that end, in para. 1.1 thereof, it states that Rules 93, 112 and 113 RNS are “hereby revised”. This means that such Rules are thereby amended and thereafter apply only in their altered or varied forms. In effect, in case of contradiction, the Circular prevails. Otherwise, the Rules remain intact and continue to apply.

16. The Circular therefore should not be looked upon as an alternative to or substitute for the Rules. It is neither. It is a scheme agreed by the Department, the teachers’ representative body and the school organisations where its members teach. It binds and is enforceable against the Minister; as it is against the Board and, in this case the appellant, as being part of the employment contract. Save however in respect of the area covered thereby, the Circular does not purport to otherwise interfere in the employment relationship between a Board and a teacher. Finally, in a sense, given the relevance of the Rules and the Circular, it can be said that there is also a public law element to this case.

The Immediate Background:
17. In December, 2005 against the backdrop of the allegations so made (para. 5 supra), the Chairperson was curious to know where Mrs. Fitzpatrick was in terms of her sick leave and what her next move might be. He wrote to her on the 22nd December, 2005 and referred to the requirement (Clause 7.1 of the Circular) of a permanent teacher having to submit a medical report to the Board if she intended to resume duty after a paid period of sick leave, of more than three consecutive months. He wanted to ensure that the Board had time to consider any such report within the parameters of Clause 7.3, but save for that reference, he did not otherwise invoke its provisions or outline any grounds upon which the Board might do so in the future. His anticipation of what might occur came to pass when in a letter dated the 26th January, 2006 (hand delivered the following day), Mrs. Fitzpatrick gave notice of her intention to resume duties on the 13th February, 2006 and enclosed a certificate of fitness from her G.P. in that regard.

18. The receipt of this notification provoked a great deal of immediate activity on the part of Fr. Kelleher. He wrote two letters that day; one to the applicant and one to Dr. Mahony, whom it can be taken was then performing the role of the “local medical advisor” as envisaged by Clause 7.3 of the Circular. He told the plaintiff of the Board’s “concerns” regarding her proposed return to work: these were based on the allegations of bullying and harassment which were the cause of her sick leave in the first place. He invoked Clause 7.3 and referred her to Dr. Mahony, whom he said “…will nominate the appropriate specialist suited to your underlying medical disorder”. He ended the letter by directing her to remain absent from work, “as per section 8” as he put it, presumably of the Circular. It is however highly doubtful if this Clause had any bearing on the applicant’s circumstances at the time, but nothing turns on that, in this appeal.

19. The second letter, of the 27th January, 2006, as stated, was sent to Dr. Mahony, and as appears from its content, was evidently preceded by a phone call between them. The Chairperson, who enclosed a copy of the G.P. certificate (para. 17 supra), sought to appraise the doctor of “certain background information”. He included also the September, 2005 letter and his robust response of the 19th October, 2005. He said that he was very concerned about the allegations of bullying and harassment which the appellant claimed had been caused by her employer and had occurred in the workplace, all of which had resulted in damage to her health. He went on to say that the school is a safe place of work, but that the position of Deputy Principal is inherently stressful. Finally, he felt that she should be assessed by a consultant psychiatrist and asked the doctor to make the necessary referral, if possible within the week.

20. To keep the narrative as it continues, in context reference must now be made to what the Department was doing during that same time. By letter of the 25th November, 2005, it wrote to the plaintiff pointing out, by reference to Rule 112(3) RNS, that the maximum sick leave in any period of four consecutive years was 365 days; that she had accumulated 272 days in such period up to the date of the letter and that the maximum would be exceeded by the 1st March, 2006 if she had not returned to work on or before that date. Relying on Rule 93(1)(b) RNS, the letter sought a comprehensive “Doctor-to-Doctor” medical report on both her illness and the prognosis for the future. Significantly, it was also pointed out that if she wished to return to work on or before the March date, she would also “… be required to submit a medical certificate of fitness to the Chairperson of your Board of Management …”.

21. When a teacher is out on sick leave she has the option of submitting medical reports either to her Board of Management, or, as the applicant decided to do, directly to the Department. In January, 2006, in preparation for her return to work, the appellant sent a report to the Department from Dr. Stephen Browne, a consultant psychiatrist attached to Waterford Regional Hospital. That report was reviewed by the CMO, who in her “Consultation Report” of the 24th January, 2006 records that Dr. Browne “… advise[d] that Mrs. Fitzpatrick is currently well and fit to return to work, however he feels that she is likely to have a recurrence of her medical problem if the inter-personnel difficulties she is experiencing at work are not resolved”.

22. On the 27th January, 2006, the applicant was informed by the pay section that having reviewed the medical report of Dr. Browne, the CMO had advised the Department that she was “currently well and fit to return to work”. It went on to say that a certificate of fitness had been submitted to the Board. On the 28th January, a letter probably intended to have the same content as that just mentioned was sent to the Chairperson, but unlike what was stated to Mrs. Fitzpatrick, the review by the CMO was quoted more fully and made reference to the likelihood of her medical problems reoccurring if the “inter-personnel difficulties she is experiencing at work are not resolved”.

23. That letter prompted more correspondence between Fr. Kelleher and Dr. Mahony. This communication was by way of an undated letter, but evidently one sent prior to the appellant’s first appointment with the doctor, which took place on the 8th February, 2006. It also and significantly included a very detailed and lengthy memorandum prepared by the school Principal (“the Nix Memo” or “the Memo”), a person against whom the allegations of bullying and harassment were also being made. The letter conveyed the information referred to in the preceding paragraph and pointed out with particular emphasis that the Nix Memo “will be important to you and Dr. Mohan, the consultant psychiatrist to whom Mrs. Fitzpatrick will be referred”. As the Memo runs to several pages, I will refrain from detailing its contents, other than to offer the appellant’s description of it, as containing material grossly prejudicial to her position.

24. On the 8th and 13th February, 2006, Mrs. Fitzpatrick met Dr. Mahony during which she became aware for the first time that documentary material had been sent to him regarding her position. She requested but was declined a copy, apparently on the instructions of Fr. Kelleher.

25. The applicant’s Union’s representative queried later that month why any referral under Clause 7.3 of the Circular was necessary, given the CMO’s certification of her fitness for work. Further, it was stated that any referral was a matter for the local medical advisor and not for the Board. In response on the 22nd March, 2006, the Chairperson said that “Mrs. Fitzpatrick was nominated by Dr. Mahony in compliance with section 7.3 for assessment by Dr. Damien Mohan”.

26. On the 31st March, 2006, Fawsitt Solicitors wrote to the Chairperson on behalf of Mrs. Fitzpatrick. Having referred to certain matters and noting with particular concern the Nix Memo which was described as being “highly contentious”, they complained of the Board’s motive in sending it to Dr. Mohan, whom it was claimed had been “hand picked by you”, i.e. by Fr. Kelleher. In such circumstances their client would not be attending Dr. Mohan. However, and despite an assertion that no referral was in fact either necessary or appropriate, the applicant would agree nonetheless to attend a different specialist who would not, in her words, be so tainted by such information. That specialist however would have to be nominated by Dr. Mahony as provided for by Clause 7.3 of the Circular.

27. There then followed between May and the 19th July, 2006 what I consider to be a significant exchange of correspondence. On the 26th May, 2006, the solicitors for the applicant reaffirmed their client’s objection to being examined by Dr. Mohan, but also repeated her willingness to attend a different doctor for any such examination, as might be thought fit. The response on the 15th June, was by Arthur O’Hagan Solicitors acting on behalf of the Board. Having taken some issue with how the dispute had been previously characterised, and having made some offer as to how the impact on Dr. Mohan of the material sent to him might be neutralised, the letter goes on to say that:

“The issue between us would appear to come down to a right of a medical specialist nominated on behalf of the Board … to request a briefing from school management prior to carrying out the assessment. Should your client remain unwilling to attend Dr. Mohan, our client is prepared to request Dr. Mahony to refer her for assessment to another relevant specialist on the understanding that both our respective clients would comply fully with any requirements the specialist concerned might have with regard to the assessment”.

29. This series of correspondence, bar one further letter, finalised with Arthur O’Hagan’s response of the 19th July, 2006 which stated:

“We understand from our clients that they are requesting Dr. Mahony to make a further referral of your client as proposed in our letter the 15th June last. We do not understand your reference to ‘preconditions’. It is a matter for our client’s medical advisors as to what they may require in advance of a consultation and both our client and Mrs. Fitzpatrick must cooperate with that …”.

30. At this juncture this sequence of correspondence ends, as immediately afterwards leave to institute these proceedings was obtained from the High Court.

The High Court Decision:
31. The trial judge determined the application as made against the first defendant by considering what had been urged under six different headings. Whilst I do not consider it necessary to traverse each of these issues to the same extent, as in my view the appeal can be determined on narrower grounds, nonetheless some comment is required on a number of these matters. As against the second named defendant, the application was dismissed as the learned judge rejected the composite ground of allegation as next described.

The Appeal As Against the Minister:
32. The grounds upon which the appeal was argued as against this defendant, which very much replicated those presented at the Court of trial, are grounds which by law the appellant may not be capable of relying upon. This results from the provisions of O. 84, r. 23(1) of the Rules of the Superior Courts 1986 to 2013, when read in conjunction with the leave order. As appears from the judgment of the High Court, the allegation against the Minister as generally described is that, as he was aware of the steps being asserted by the Board against the appellant, and as he stopped the payment of her salary, by reference to such steps, he must, in these circumstances, noting in particular his supervisory role in the operation of Clause 7 of the Circular, be taken as having adopted and as being identified with, his co-defendant, in respect of the wrongs perpetrated by it.

33. Leaving aside for a moment whether or not this point is arguable as a matter of law, it must be recalled that the only legal ground upon which leave was obtained against the Minister was that as set out at para. 8 of the Statement of Grounds, which reads as follows:

“The respondents have acted and continue to act in disregard, inter alia, of the constitutional rights and legitimate expectations of the applicant, her rights under the ECHR and in breach of the principles of fair procedure and of constitutional and natural justice.”

35. On a judicial review application moved under O. 84 of the Rules of the Superior Courts 1986 to 2013, the scope of the relief sought and the grounds upon which such might be obtained are to be identified from the order of the High Court granting leave, subject only to any amendment or variation subsequently allowed. Unless expressly or by interpretation, implicitly, within such order, no relief or ground which differs therefrom can be argued. This also applies to an appeal in this type of application, save of course that the Notice of Appeal is also a defining document. However, that Notice cannot enlarge the scope of the application as originally granted or later amended.

36. In McCormack v. The Garda Síochána Complaints Board & Ors. [1997] 2 I.R. 489, Costello P. in this context said at p. 503 that “the courts’ jurisdiction to entertain the application is based on and limited by the order granting leave”. This statement has been subsequently repeated in several decisions of both the High Court and this Court, including Keegan v. Garda Síochána Ombudsman Commission [2012] 2 I.R. 570, Fennelly J. at p. 576. Such expression of the law is reflective of O. 84, r. 23(1) which states that “no grounds shall be relied upon or any relief sought at the hearing except the grounds and relief set out in the statement”. As no amendment to the leave order of the 31st July, 2006 has ever been sought, this legal ground of appeal cannot be established with regard to the second named defendant.

37. In fact, the position of the Minister, no matter how the argument is addressed, is put beyond issue given my conclusion on the case as made against the Board.

The Appeal Against the Board:
38. The first point for resolution is whether Clause 7.3 of the Circular could ever be invoked, given the certificates submitted by the appellant’s medical advisors and the “Consultation Report” of the CMO, dated the 24th January, 2006. This in turn requires an examination of the provisions of that Clause and an understanding of the relationship between the Circular and the Rules.

39. From an interpretive point of view, the Circular, which forms part of the appellant’s terms of employment, can be considered as having a contractual basis and as such, in private law, its true meaning can be ascertained by reference to general principles. This means that the parties’ intentions must be ascertained from the language used, when considered within the surrounding circumstances and in light of the nature, object and purpose of the contract. One must add to this what Fennelly J. said in Analog Devices B.V. & Ors. v. Zurich Insurance Company & Ors. [2002] 1 I.R. 272 at p. 294, that “[i]nsofar as Irish law is concerned, the contract is to be interpreted objectively in accordance with the meaning of the words the parties have used.” The opinion of Lord Hoffman in Investors Compensation Scheme Ltd. v. West Bromwich Building Society Same v. Hopkin & Sons (a firm) & Ors. [1998] 1 W.L.R. 896 is to the same effect.

40. In addition however in this case, one must also be mindful of a public law element, which comes about as a result of the manner of the Circular’s creation, the subject matter of its remit and the employment status of those to whom it applies.

41. Whilst there is an obvious and perhaps even close association between the Rules and the Circular, nonetheless, like the trial judge, I too would accept that the underlying purpose of operating Clause 7.3 of the Circular is different to the purpose for which Rule 93 RNS exists. The former is a means or measure of assistance to the Board in the discharge of their statutory and common law duties, which involve not only the day-to-day management of the school and the provision of educational needs, but also a requirement to provide a safe working place and environment for its staff, with due regard to their individual and collective health and welfare.

42. On the other hand, Rule 93 is a procedure which allows the Minister, who is not only the pay master of the teacher but who is also a designated person holding a level of responsibility somewhat different from that of a Board of Management, to consider an individual’s health for the purposes of assessing his or her continued eligibility to work as a national school teacher. That right is exercisable independently of the Board and, at least generally, its exercise does not impact on the Board’s entitlement to invoke the terms of its contractual relationship with any teacher.

43. In this case I do not understand the appellant to argue that based purely on the certificates of her medical advisors, the Board would be debarred from operating Clause 7.3 of the Circular and in effect would have to accept such certificates, thereby permitting her to return to work. Any such interpretation of the Clause would strip the Board, as employer, of any direct involvement in the assessment of its employees’ health. It would transfer the responsibility therefor, effectively onto the employee, with the only element of “independence” being the impartiality of that person’s medical advisor. That ouster of responsibility would be entirely incompatible with the employer’s duty as above mentioned, and on no reasonable interpretation of Clause 7 could such fit within its terms. Accordingly, I regard the submission as suggesting that the involvement of the CMO in the certification process is the critical role relied upon and not that of either the G.P. or Dr. Browne.

44. In this regard it should be pointed out that the CMO’s involvement did not arise under Clause 7.4 of the Circular, which confers on her the status of final arbiter, in circumstances where, following independent medical assessment, there remains a concern about a teacher’s suitability to return to work. Rather, the CMO’s role in this case was one of reporting to the Department following receipt of Dr. Browne’s report, which was furnished under Rule 93(1)(b)(i) RNS. This is an entirely different function than if she were operating under Clause 7.4 of the Circular. The duties under both are quite distinct. Indeed, it must be noted that when writing to the appellant on the 25th November, 2005 (para. 20 supra) the Department significantly pointed out that in addition to the medical report which it was then seeking, she would also have to submit a medical certificate of fitness to the Board if she intended to return to work. Consequently in my view there is no question of the CMO’s involvement in reviewing Dr. Browne’s certificate, resulting in the Board, at the level of principle being precluded from operating Clause 7.3 of the Circular.

45. As Clause 7.3 points out, its provisions may be invoked where the Board of Management has “any concerns” regarding a teacher’s proposed resumption of duty following a period of sick leave. By reason of the Board’s entitlement to refer such a teacher for a “medical assessment” (see para. 53 infra), it would follow that such “concerns” must relate to matters which are within the remit of that profession. Such matters of course involve not only physical injury or illness, but also and of necessity include issues of a psychiatric nature, which stress, experienced at a certain level and producing debilitating consequences, comfortably falls within.

46. The first complaint under this heading centres on what the real purpose of the referral was. The High Court judge, apparently at the urging of the applicant, determined this issue by searching for what the “dominant purpose” was. I am not certain that such a submission is correct or that the appellant would necessarily have to go that far, for if that be the test, the existence of an improper purpose, no matter how significant or how influential in the referral decision, but one falling short of being dominant, would have to be disregarded. This is a difficult area of the law which may not permit a single test application: in fact some differences can be detected in how the point was treated in Cassidy & Ors. v. Minister for Industry and Commerce [1978] I.R. 297, Kennedy v. The Law Society of Ireland & Ors. [2000] 2 I.R. 104, and in The Director of Corporate Enforcement v. DCC Plc. & Ors. [2009] 1 I.R. 464. That being so, I would reserve my opinion on the point, noting the added complication in this case, unlike in those just mentioned, of a significant private law element. In any event, in my view the point as such does not require a definitive view as on my reading of the documentation the appellant has not established on the balance of probabilities, to either level, the existence of such a purpose.

47. Running throughout each strand of the case and existing at every level is an allegation of bad faith on the part of the Board, in particular by the Chairperson and also by the Principal of the school, acting either on her own initiative or at his request. This allegation is inextricably linked to the improper purpose point and if found to exist, any causative consequences would have to be remedied. Bad faith is bad faith and no employer is entitled to operate a contractual provision on that basis. However, the real question is whether the judge was legally justified in concluding as she did on this particular issue.

48. Unless it was patently obvious from the documents that such was established, it would be almost impossible for a court to reach a conclusion to that effect without the key witnesses being tested on oath. In the absence therefore of an ex facie expression of bad faith, as is the situation in this case, and in face of strenuous denials by the persons against whom these allegations were made, the High Court in my view had no choice but to conclude as it did on the point.

49. That conclusion was based on a review of the material exhibited, as both explained and expanded upon by the affidavit evidence. In my view this evidence squarely raised, firstly, the question of stress, caused by events occurring within or related to the workplace, secondly, the effects of such stress on the appellant, and thirdly, the impact thereof on her fitness to resume teaching duties in the school. A brief overview of the most relevant correspondence will amply demonstrate this.

50. The letter of complaint in September, 2005, expressly raised stress-related matters as causing “health difficulties” for the appellant, which stemmed from her workplace and those with whom she had to engage therein. The certificate submitted by the G.P. on the 26th January, 2006 was anything but unconditional. His assertion of her fitness to work was immediately qualified by the condition that “she should work in a safe and stress-free environment”. This was a clear reference to her position in the school and when taken together with the September complaints was immediately capable of arousing legitimate concern about what health effect a return to work would have for the appellant, if the requirement of a “safe and stress-free environment”, as intended and understood by her, was not satisfied.

51. Whilst I appreciate that Clause 7.3 of the Circular had been invoked before the Department’s letter dated the 28th January, 2007 was received by the Board, nonetheless, the CMO’s report of the 24th of January could only have added significantly to the concerns already existing. It will be recalled what her own consultant said; specifically, that whilst Mrs. Fitzpatrick was fit to return to work, “she is likely to have a recurrence of her medical problem if the inter-personnel difficulties she is experiencing at work are not resolved”. Even if the phrase “inter-personnel difficulties” was inaccurate, as it was, and instead should have referred to “work-related matters”, nonetheless, the key factor at the centre of the on-going problem remained stress, said to have been caused in and by her workplace. In these circumstances, I am perfectly satisfied, as the evidence went, that the Board could be considered to have “concerns” within Clause 7.3 of the Circular, thereby founding the legitimate invocation of its provisions.

52. A matter of some concern to me however is the way in which Clause 7.3 of the Circular was thereafter operated, and in particular the input of the Chairperson and the drawing up and subsequent use at his request of the Nix Memo. Clause 7.3 “recommends” that each Board should have a local medical advisor who would deal with routine occupational matters and that “… [w]hen referral for independent specialist assessment is required, [such advisor] … should nominate the appropriate specialist suited to the teacher’s underlying medical disorder”. It is therefore clearly envisaged that where such an advisor has been appointed, the decision to refer, which must be medically driven, becomes a matter for him, as would be the nomination of the speciality and the specialist involved. That this is both logical and understandable cannot be doubted, nor I would have thought can the desirability of the decision maker standing neutral, as between the employer and employee. The reason is that such a step is of a serious nature and potentially could have significant consequences for all parties: in the case of a teacher, the referral is for assessment and not treatment and the doctor-patient confidentiality may not fully apply: therefore such a person could be affected both personally and professionally. To guard against even the suggestion or appearance of any improper use of this power, is I think both wise and rather obvious.

53. However, the question of law is not what is reasonable or prudent but what is legally provided for, having regard to the contractual position and to fair procedures: Glover v. B.L.N. Ltd. & Ors. [1973] I.R. 388, Walsh J.. In this regard, I am by no means convinced that the High Court was correct in its interpretation of Clause 7 as imposing only a single obligation, in effect one for the benefit of the employer, such that medical assessments must be carried out by a doctor “independent” of the employee. In addition, it is at least arguable that the “recommendation” reference in the Clause applies only to the appointment of the local medical advisor but that once such an appointment is in place, the decision and nomination as last mentioned become a matter for the appointee. Consequently, I am not at all sure that a narrow construction of the Clause is justified as its provisions effect and are for the benefit of, but also bind, all parties to the employment contract.

54. To that end, if the situation had remained as it was, with Dr. Mohan, I would have had serious doubts about the manner of that intended referral: furthermore, such misgivings would have included the controversy regarding the information given to him, in particular the Nix Memo. It is anything but clear that such steps should have been initiated by the Board. However, as with a number of other issues in this case, I do not have to decide this point as in my view the offer communicated by the Board but rejected by the appellant in the correspondence which took place between the 26th May, 2006 and the 19th July, 2006 is decisive as to the appeal’s outcome.

55. It will be recalled that in the sequence of correspondence above outlined (paras. 27 to 29 inclusive supra), the Board agreed to stand down Dr. Mohan and to ask the local medical advisor to nominate a different specialist for the referral. Dr. Mahony did so and suggested Dr. Lawlor, who agreed to so act. Apart from objecting in principle to any referral, a position which for the reasons above given was not sustainable, this accords with Mrs. Fitzpatrick’s interpretation of Clause 7.3 of the Circular. Therefore, in this regard her complaints had been responded to and met.

56. In addition, the Board also said that it would supply to the new consultant only such material as he requested and suggested that the same approach should also be followd by the appellant. As events happened, the appointment process with Dr. Lawlor terminated with the institution of these proceedings and did so before that doctor had any opportunity of setting out his views in this regard. Obviously in these circumstances one will never know what his requirements, if any, would have been.

57. Whilst it is not necessary to be definitive about the point, I cannot see how, at the level of principle, the offer made by the Board was inconsistent with the provisions of Clause 7.3 of the Circular or was in breach of fair procedures. However and quite evidently, in view of what occurred, I cannot comment more specifically but I am satisfied that such offer had a justifiable basis to it. It is of course unfortunate and is to be regretted that the appellant did not take up the offer and follow through on the process.

58. In light of these circumstances I am of the view that matters previously outlined in the correspondence were superseded and that whatever infirmities either of fact or in law might have existed with regard to how the first referral was made and how Dr. Mohan was so nominated, such have no causative effect on the appellant’s real complaint or the relief which she seeks in respect thereof. In so saying I am not suggesting that such matters are technically moot, an area of law which was recently considered in some detail in Lofinmakin (a minor) & Ors. v. The Minister for Justice, Equality and Law Reform & Ors. [2013] I.E.S.C. 49, as they may have some residual legal effect between the parties, but not of a nature capable of sustaining this application for judicial review.

59. By reason of the matters aforesaid I would, on the grounds as stated, dismiss this appeal.

60. Finally, the Notice of Motion issued by the first named respondent, which was adjourned to the hearing of this appeal, does not in these circumstances call for separate determination.