Court of Appeal allowed challenge to final written warning, while criticising employee’s handling of procedures

The Court of Appeal allowed an appeal concerning a final written warning issued to Pierce Dillon, according to a concurring judgment by President Birmingham. He said he agreed with the judgment delivered by Hogan J. and the order Hogan proposed, but only reluctantly. The source does not set out the terms of that order.

Birmingham P. disagreed with the trial judge’s view on mootness. He said the expiry of the period during which the warning was to remain on file did not necessarily make the issue moot, accepting that a warning could have long-term effects. He also expressed concern that treating expired warnings as moot and beyond review could encourage early litigation.

He objected to describing a final warning as de minimis, saying it was a serious matter that should not be issued lightly. He added that disciplinary disputes short of dismissal in an industrial relations context should rarely come before the courts.

The judgment recounts that Dillon and his representatives were invited to a meeting under Stage 3 of the complaints procedure, but did not attend despite a deferral to facilitate their attendance. The matter was then handled under Stage 3 of the disciplinary procedure. At a meeting on 27 March 2015 with the school’s Principal and a nominee, the decision was to issue a final written warning.

Dillon later wrote to the Principal saying he intended to appeal the decision under the complaints procedure. The judgment says that procedure stated the Board of Management’s decision “shall be final” and that Dillon had been advised of this. Birmingham P. noted that Dillon had not articulated an intention to appeal the disciplinary sanction.

Birmingham P. criticised what he described as an element of “playing fast and loose” with the procedures and a failure to engage as expected of a long-term professional employee. He said he would consider whether to depart from the usual costs rule, but would wait to hear from the parties on costs and other ancillary matters. The judgment does not record a final decision on costs.