NABMSE CONFERENCE

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NABMSE CONFERENCE

• Friday
• NOVEMBER 21ST 2008
• David Ruddy BL

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Ignore Appointment procedures at your peril
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Phyllis Brown VBoard of Management of
Rathfarnham Parish National School, the Most
Reverend Dr John Neil and the Minister for
Education and Science (respondents) and Joyce
Perdue (Notice Party)High Court June 2006Mr.
Justice Quirke
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THE COMPLAINTS

• Late application
• Applications not provided with criteria for the
  post
• Selection Board kept no records
• Board of Management approved selection panel
  decision without a formal Board of Management
  meeting.

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THE PATRON

• Sanctioned the appointment
• After a complaint withdrew sanction
• Sanction was re-affirmed despite some misgivings
  that were felt not to be fatal.

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DEPARTMENT OF EDUCATION SCIENCE

• Sanction given on understanding that
• the appropriate procedures were complied with
  in relation to the appointment.

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CONFLICT OF INTEREST

• Successful candidate married to a member of the
  Boards brother in law. This Board member was a
  barrister. Barrister informed Board of
  relationship and offered to withdraw if they
  thought it appropriate.

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LEGAL ADVICE

• The barrister gave Board comprehensive Legal
  Advice which suggested non-compliance by Board of
  Management not of sufficient gravity to
  invalidate the appointment.

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NEW PRINCIPAL

• Takes up post on 1st February 2006

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APPOINTMENT PROCEDURES

• Section 23 of the Education Act 1998
• Boards of Managements of National Schools
  constitution of Boards and Rules of Procedures
• 2003 Edition

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RULES

• Advertisements
• Selection Boards
• Interviews
• Disclosure of interest/ integrity of proceedings
  No part in any deliberation or decision of the
  Board

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JUDGEMENT

• The rules must be constructed as mandatory in
  application.
• Boards of Managements decision to appoint the
  Notice Party was unlawful and invalid.

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Codes of Behaviour

• THE NEW GUIDELINES
• 2008

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Why?

• Section 23(3)Education Welfare Act 2000
• National Educational Welfare Board (NEWB) obliged
  to publish guidelines
• Education Act 1998
• Equal Status Act 2000
• Constitution 1937
• International Conventions

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Time frame

• It is expected that the process of audit and
  review will be completed by September 2010
• Principals role is to lead the audit and review
  and ensure implementation of the code

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Implementing and communicating the code of
behaviour

• Teach pupils the rules
• Publish the code in the pupils journal
• Secure parental support
• Parents get copy of code
• Parents requested to sign code as a condition of
  registration

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Murtagh v BOM of St. Emers Primary School
(High Court Supreme Court) 1991

• The enforcement of discipline in a school is a
  matter for the teachers, principal, chairperson
  of BOM the Board itself not a matter for the
  courts whose function at most is to ensure that
  the disciplinary complaint was dealt with fairly

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Responsibility of Board of Management (BOM)

• Policy and procedures must be in place for
• Suspensions/expulsions
• Pupils/parents aware of the policy
• All staff aware of fair procedures
• BOM/principal competent
• No undue delays, confidentiality

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Sanctions

• Appropriate to age and development stage of pupil
• Should not impact disproportionately on
  particular groupings i.e.. members of the
  traveling community ,special needs pupils and
  international pupils.
• Importance of pupils understanding purpose of
  sanctions

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Special Educational Needs Pupils

• The code should be flexible enough to allow for
  implementation of individual behavioural
  management plans but in the case of gross
  misbehaviour or repeated instances of serious
  misbehaviour when the safety and duty of care to
  others is at issue the code takes precedence.

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Authority to suspend

• BOM
• Principal authority delegated formally and in
  writing.
• What limits are there on the period of suspension
  delegated to the principal?

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The period of suspension

• Guidelines recommend the following
  options/possibilities for BOMs
• Principal 3 days
• Principal 5 days (approval of chairperson)
• Generally longer than 3 days refer to Bom
• BOM should put a ceiling of 10 days max in
  relation to particular serious incident
• Cumulative total of days reaching 20 days should
  be subject of review

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Forms of suspension

• Immediate suspension
• Automatic suspension
• Rolling suspension
• Informal or unacknowledged suspension/voluntary
  withdrawal
• Open ended suspension

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Fair procedures based on the principals of
natural justice

• The right to be heard
• Rt to know what alleged misbehaviour is being
  investigated
• Rt to know how issue is decided
• Rt to respond
• If possibility of serious sanction rt to be heard
  by BOM
• If dispute about facts the rt to ask questions of
  the other party or witnesses

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Fair procedures based on the principals of
natural justice

• The right to impartiality
• RT to an absence of bias in the decision maker.
• Generally impartiality requires that the
  investigation is separated from the process of
  making a decision so that the decision- maker
  comes to the task with an open mind

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Wright v Gorey Community School High Court
2000Fair procedures does not demand the
formality of a courtroomlevel of formality of 3
day suspension is less than for longer suspension
or expulsion
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Principal had breached fairness of procedures

• M (a minor suing by his mother and next friend
  AM)v
• Principal and Board of governors of Good Shepherd
  Primary School
• High Court (Queens Bench Division) Belfast 2003

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Criteria for judicial review

• Decision of BOM fundamentally at variance with
  reason and common sense
• Decision must be so overwhelmingly unreasonable
  that no reasonable person could ever have come to
  it.
• Court cannot intervene just because it would have
  come to a different view on the facts.
• BOM had no relevant material to support its
  conclusions.

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Expulsion

• Authority to expel should be reserved for the BOM
• This authority should not be delegated
• In VEC schools VEC has authority unless it
  chooses to delegate to BOM
• Seek assistance of support agencies
• Legal advice

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Difference between behaviours that warrant
suspension/expulsion

• Degree of seriousness and persistence of the
  behaviour
• Where expulsion is considered ,a series of
  interventions should have been tried by the
  school.
• All possibilities of changing the pupils
  behaviour should have been exhausted

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Automatic/expulsion for first offence

• BOM can impose automatic expulsion for certain
  prescribed behaviours or in exceptional cases for
  a first offence
• Sexual assault
• Supplying illegal drugs to other pupils in the
  school
• Actual violence or physical assault
• Serious threat of violence against another pupil
  or member of staff

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State (Smullen Smullen)VDuffy

• 1980 High Court
• No right to legal representation at BOM meetings

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Mulvey (a minor) v Mc Donagh
High court 2004

• Adopted Des guidelines i.e. Bullying must be
  repeated, ongoing and sustained

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Obversations

• Guidelines are required by law
• Degree of flexibility i.e. patrons can insert
  appeal mechanisms.
• Due process/fairness of procedures non negotiable
• Clarifies issues for 3200 primary schools and 800
  secondary schools
• Supersedes circulars i.e. 7/88,20/90.

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Cross referencing

• The code of behaviour should not be seen as a
  stand alone document.
• Anti- bullying policy must be part of code
• Health and safety statement
• Admission/enrolment policy

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Kirpan case

• Total ban on 12 yr old boy wearing kirpan
• To school violated an individuals freedom of
  religion.
• Supreme Court of Canada

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Sumali Pillay v Kwa Natal Mec

• 15 yr olds right to wear nose stud on religious
  grounds
• Upheld in Constitutional Court of South Africa