A meeting of a panel assessing the decision to dismiss Enoch Burke from his job will go ahead on Friday despite attempts by the former teacher to secure a High Court injunction to prevent it from happening.
A Disciplinary Appeals Panel (DAP) oral hearing is due to take place at 10am on Friday, but Mr Burke said it should be halted until a decision is reached by the Court of Appeal in another matter relating to his dispute with Wilson’s Hospital School.
In the High Court on Thursday, Mr Justice Michael O’Connell refused the application as proceedings stretched into 7pm in the evening.
The judge also granted a production order so that Mr Burke would be brought to the disciplinary hearing.
The former history and German teacher has been engaged in a legal dispute with the Co Westmeath school since 2022.
He was suspended following incidents arising from a request from the school’s then-principal to address a student by a new name and pronoun, and later dismissed from his position.
Mr Burke has repeatedly argued the direction was unconstitutional and went against his right to express his religious beliefs.
He has spent more than 650 days in prison after he was found to have violated court orders instructing him not to trespass at the school.
On Wednesday, the Court of Appeal heard arguments from Mr Burke as he sought to overturn a May 2023 High Court ruling by Mr Justice Alexander Owens which found his suspension from the school was lawful.
In normal circumstances, litigants have 28 days to file an appeal to a High Court decision after an order is perfected, the date it is formalised.
Appearing in front of the three-judge panel, Mr Burke said he did not bring his appeal in time because he was involved in other litigation, was in prison for much of the period since the ruling and had “lost confidence” in the Court of Appeal following a previous judgment.
He said he was appealing against the judgment because it had not taken his constitutional rights into consideration or properly examined the legality of the principal’s instructions.
He also referred to a statement the Department of Education gave to The Irish Times in January, which said schools are not legally obliged to use students’ preferred pronouns.
The lawyer representing the school’s board of management, Rosemary Mallon, challenged his request and said the two-and-a-half year delay was “extraordinary”, she said there was a “need for finality” in the matter.
Ms Mallon argued Mr Owen’s decision was not “a declaration as to the lawfulness of the principal’s direction or instruction”, but about “the lawfulness of the decision to suspend”.
She also said Mr Burke had the opportunity to make arguments at the time, but he was “disorderly and in persistent contempt of court”, and was asked to leave the court.
She also said the statement from the Department of Education was “simply be a view expressed by the department” and not “binding” for the courts.
The first judge scheduled to hear the injunction on Thursday, Mr Justice Brian Cregan, recused himself from the case after hearing arguments from Mr Burke.
He had argued the judge should remove himself from making a decision on the injunction on the grounds of “objective bias”.
In a previous judgment, Mr Cregan had referred to Mr Burke as “not a credible witness”, and Mr Burke said this, and other comments the judge made “pushing for the DAP to be heard”, supported his case.
Mr Cregan said that he did not agree with Mr Burke’s arguments but said not only does “justice need to be done, it needs to be seen to be done” adding “especially in this case”.
Addressing the High Court on Thursday for the purposes of the appeal, Mr Burke said the issues before the Court of Appeal and to be discussed by the DAP were “closely relevant and connected to the issues”.
He said the issue of the legitimacy of the principal’s instructions was the “kernel” of what the DAP is to consider and “central” to his case in front of the Court of Appeal.
“I am going to be sitting in front of three members of DAP who are relying on Judge Owens’ judgment”, Mr Burke said, adding that “there is a huge question mark over Mr Owens judgment” and he is awaiting a decision from the Court of Appeal.
“Tomorrow, if this injunction is not granted, the DAP will be sitting down to decide a question of law, a question of constitutional law,” he said.
He argued the issue should only be decided by the courts and not the “lay people” who make up the DAP.
He said the panel usually only decides on “matters of fact”, not “matters of law”.
Mr Burke said he had written to the DAP three times since late March requesting an adjournment of the meeting.
Padraic Lyons SC, for the DAP, said Mr Burke’s submission was “untenable”, “misconceived” and “there is no basis for it”.
He said that if the hearing were to go ahead, it “doesn’t mean he (Mr Burke) is shut out from further legal review”.
If the DAP made a decision, based on a judgment that was then overturned, Mr Burke could have it “corrected for legal error”, Mr Lyons said.
He also said Mr Burke had not brought proceedings in the correct manner, despite being “a vastly experienced litigant who he knows exactly what he is doing”.
Mr Lyons said Mr Burke was informed of the hearing date on March 26, he was told on April 7 that all his objections had been rejected.
He said he had “ample time” to apply for an injunction but waited until the “eve” of the hearing.
Mr Justice O’Connell said he was satisfied that the judgment of Mr Owens never amounted to a final determination of the issue about the validity of the instruction given by the principal.
In refusing the injunction, he said he did not believe the DAP had to delay its hearing due to the Court of Appeal proceedings.
Five other members of the Burke family were in court on Thursday: his mother Martina, as well as his brothers Isaac and Simeon and sisters Ammi and Jemima.
After Mr Lyons argued against a further delay, Mr Burke responded and said the panel’s work had already been delayed for three years.
Mr Burke argued the delay was down to “conduct of his (Mr Lyons’) clients”, stating a previous member “refused to resign from the panel for two years” and two further members resigned earlier this year.
The current DAP is the third iteration of the panel and is made up of Claire Callanan, John Irwin, and Seamus Lahart.