ENOCH BURKE’S LATEST legal case returned to the High Court this week, when it emerged that two people have resigned from a panel deciding on whether his dismissal was fair.

The case was filed at the start of the year and has opened up yet another front in Burke’s ongoing fight against his sacking from Wilson’s Hospital School.

The suit has already played a part in the wider drama surrounding the teacher, with a judge deciding that the case was of enough importance to allow Burke out of prison to prepare for it, before he was ordered back to jail for trespassing at the school when he was freed.

What is the latest case about?

Burke has sought an injunction to stop the Disciplinary Appeals Panel (DAP) from issuing its findings about whether he was fairly or unfairly dismissed by Wilson’s Hospital School.

He also wants to prevent the panel from holding any more meetings.

It’s the second time he’s done so, having successfully mounted a case against a previous hearing by the DAP in 2023.

The three-member panel first convened in 2023 after the school’s board of management dismissed Burke for gross misconduct, and Burke sought to overturn that decision.

Under a Department of Education circular issued in 2018, teachers who face disciplinary action from a school’s board of management can appeal the board’s finding to a three-person panel.

The circular recommends that this panel should be made up of an independent chairperson from a panel nominated by the Minister for Education, a representative of the recognised management body, and a nominee from a relevant teaching union.

In this case, the panel initially comprised of Department of Education nominee Seán Ó Longáin, Jack Cleary – a child protection advisor with the Joint Managerial Body for Voluntary Secondary Schools – and General Secretary of the ASTI Kieran Christie. 

However, Burke successfully obtained a court injunction to have Christie removed from the panel on the grounds of possible bias, in particular because he argued that Christie had shown support for the recognition of trans issues in Irish schools. 

Christie was then replaced on the panel by Geraldine O’Brien, a former vice president of the ASTI.

This version of the panel, which was made up of Ó Longáin, Cleary and O’Brien, convened on 13 December in Athlone to hear Burke’s appeal.

What are Enoch Burke’s arguments?

The affidavit filed by Burke on 6 January, which has been seen by The Journal, outlines a number of arguments in his attempt to secure an injunction against the DAP.

The first concerns Geraldine O’Brien’s nomination to the panel last September.

As with Christie, Burke claims that O’Brien is “objectively biased” and therefore unsuitable to appear on the panel because of her former position within the ASTI.

He has outlined how, as ASTI vice president between 2022 and 2023, she was part of the union’s executive when it “advised schools in September 2022 to ‘use the pronoun that a child wishes to be used’” – which is what he has argued his case against Wilson’s is about.

Burke also claims that O’Brien presented an award on behalf of the union in May 2023, alongside Kieran Christie, to a teacher for her “commitment to supporting LGBTQI+ students” and that O’Brien was a member of the union’s awards committee at the time.

His affidavit says that he raised the issue a number of times with the DAP and asked O’Brien to recuse herself, but that this didn’t happen by the time the panel met on 13 December.

Separately, Burke has also taken issue with a Microsoft Word document that was given to the DAP by Wilsons’ board of management in January 2023, which he claims not to have seen until two days before last December’s hearing.

The document allegedly contained a new rationale for Burke’s dismissal by the school, which conflicted with the rationale he was given when he was formally sacked.

He says that he was told by the DAP that he did not receive it initially because of “a mistake” that meant he was not copied into email correspondence.

He has argued that the possible use of the document by the panel has “irremediably damaged the prospect of a fair hearing” – though he also says he was told by the DAP after the hearing that the panel would not rely on it.

Burke also noted issues around the cross-examination of three witnesses at the hearing last December.

He says that he was initially not allowed to cross-examine the former and acting chairpersons of the school’s board of management, or its former principal Niamh McShane.

His affidavit claims that he was eventually allowed to on two conditions: that he did so through the DAP chair (“I had to look at Mr Ó Longáin at all times”); and that he could only ask questions permitted by the DAP.

He claims that he was “repeatedly stymied” during his questions, that the DAP were “shielding the witnesses” from his questions, that some of his questions were “disallowed outright”, and that he was only given a short amount of time to cross-examine witnesses.

Finally, Burke also says the hearing last December “ended prematurely” while he was attempting to cross-examine Niamh McShane and that there were no closing submissions or questions from the DAP to the witnesses.

He claims that these were procedural flaws that could prevent “natural justice” in his case, and that the lack of questions or submissions did not allow him to outline his own key arguments or give his perspective as a teacher to the board.  

What is the DAP’s position?

The DAP has not yet responded in court to Burke’s specific allegations.

At the first hearing of the case on 8 January, counsel for the panel Pádraic Lyons agreed to postpone any more DAP hearings on an interim basis.

It was said that this would allow its members to formally respond to the claims made by the teacher.

There were no more hearings in the case until this week, when it emerged that Ó Longáin and Cleary had resigned from the panel.

Pádraic Lyons told the court that the resignations appeared to him to render Burke’s application for an injunction “moot” because it secured the outcome which the teacher had sought, which is for the panel to “no longer sit” in its former guise.

“The course of action that has been taken is one that will clear the way, as it were, for a new panel to be nominated, and thereby allow Mr Burke’s appeal to be heard sooner rather than later,” he told the court.

What have the courts said?

Judge Brian Cregan, who dealt with the case this week, disagreed with the DAP and said that the two resignations did not deal with Burke’s substantive arguments.

He was the same judge who temporarily released Burke from prison in January to prepare for the case, saying that the issues he had raised with the DAP’s processes were “credible”.

The case has been adjourned until 20 February.