Enoch Burke wins court appeal over disciplinary panel bias in dismissal case

Irish Examiner

2 days ago

Teacher Enoch Burke has won an appeal over the composition of a disciplinary panel set up to hear his appeal against his dismissal from Wilson's Hospital school.
Mr Burke claimed a member of the three-person appeals panel, Association of Secondary Teachers in Ireland (ASTI) general secretary Kieran Christie, was a 'promoter of transgenderism'. The appeals panel denied his claim.
Ms Justice Mary Faherty, on behalf of the three-judge Court of Appeal, said with "a great deal of reluctance", she would grant an injunction to Mr Burke restraining the appeals panel, as presently constituted, from from holding a hearing.
Mr Burke spent more than 500 days in prison for repeatedly disobeying High Court orders not to attend at Wilson's Hospital school in Co Westmeath, where he had been employed as a history and German teacher.
When he was dismissed in 2023, he sought an appeal through the normal employment process but then brought a High Court challenge claiming appeals panel member, Mr Christie, was an activist for transgenderism within the ASTI and was personally or objectively biased.
In December 2023, the High Court rejected his challenge, saying Mr Burke had not discharged the burden on him of establishing there was a fair question to be tried of a reasonable apprehension of bias.
He appealed to the Court of Appeal and the panel opposed his appeal.
On Friday, Ms Justice Faherty, for the Court of Appeal, said while accepting Mr Christie does not sit on the appeals panel in his capacity as general secretary of the ASTI, it must nevertheless be the case that Mr Christie's role in the ASTI, which has advised schools to use a transitioning student's preferred choice of pronoun, would be influential to the reasonable independent observer.
In those circumstances, she could not agree with the High Court judge that there was not a fair question to be tried in relation to any issue of which it was claimed the ASTI had taken a position.
She rejected Mr Burke's suggestion that if his objection to Mr Christie was well-founded, the objection must similarly be well-founded in relation to any other person nominated by the ASTI.
The judge said there remained the question as to whether Mr Burke, with his history of contempt of court, "gets to pick and choose how and when he gets to invoke the court's protection and jurisdiction'.
Mr Burke, apart from spending more than 500 days in prison over a number of periods, was also the subject of daily €700 and later €1,400 fines for every time he turned up at the school.
Recently, the High Court made orders permitting the seizure of money to pay the fines from the bank account into which his school salary continued to be paid pending the Court of Appeal decision.
Ms Justice Faherty said she considered his contempt no less egregious now than when he was before the High Court challenging the appeals panel.
However, the distinguishing feature of the present case was the spectre of unfairness that will hover over the disciplinary appeal process if he has to face that body as presently constituted given he has made out a case of a reasonable apprehension of objective bias, she said.
While it was normal for the loser in a case to pay the winner's costs, the court was "not in normal territory" here. The judge said there would be no costs order in Mr Burke's favour, save an order setting aside the costs order made against him in the High Court.