Grievances and Discipline
The WRC and the courts are concerned principally with the fairness of workplace procedures. They do not generally seek to examine grievances, complaints and disciplinary action on their merits. Many, if not most unfair dismissals arise by reason of the failure of the employer to afford fair procedures.
The Labour Relations Commission’s Code of Practice on grievance and disciplinary procedure sets out basic fair procedures that should be should be reflected in workplace disciplinary rules. The principles do not have the force of law, but account is taken of them by the WRC, the courts and other bodies in adjudicating dismissal and similar claims.
It is recognised that the application of grievance and disciplinary procedures depend on the circumstances, size and nature of the workplace. In a smaller workplace, it will of necessity be the case, that simpler procedures and lesser levels of independent review will be possible.
The broad rules that apply to workplace discipline also apply to the investigation of other objective facts that may lead to suspension or dismissal. The requisite procedures will depend on the seriousness of the allegations or other matters and whether they are the first or part of a series similar matters or incidents. Broadly, the level and significance of the sanction should determine the procedures which must be followed. More is required in terms of fair procedures as a matter escalates and as the possible sanction increases.
Workplace Procedure
An employer is obliged to provide an employee with a statement of procedures applicable to discipline, grievance and dismissal within 28 days of the commencement of employment. The employee’s knowledge of the existence of the procedures and systems are important to an employer in defending an unfair dismissal claim. The procedures are often highlighted in the Employment Handbook.
The LRC recommend that grievance and disciplinary rules and procedures should be rational and fair. The basis for action and the range of penalties should be defined. There should be an internal appeal mechanism exists. A typical disciplinary procedure should have following stages.
For minor disciplinary breaches, there should be a verbal warning, usually followed by a written confirmation. This would usually remain on the employee’s file for a period, after which it would be removed. The employee should generally be informed that the warning will be removed from his file after a period (assuming no further offences) and again be informed when it has been removed. The written confirmation should make clear that if there is a further disciplinary matter within the period, more serious consequences will follow.
A written warning is appropriate for more serious disciplinary breaches. It will generally remain on the employee’s file for a longer period. The employee should be informed in writing that if there is as further infringement, that it will be followed by further disciplinary action. A written warning may be followed by a second written warning or a final warning.
Penalties may include suspension, transfer, demotion or pay deduction. The employee must be notified of the penalty and a length of time that is to remain on file. Dismissal is usually the highest most serious sanction.
Due Process
Employees have a right to fair procedures, in relation to matters bearing on their reputation and livelihood. This is regarded a basic and fundamental right and is treated as being of the utmost importance by tribunals and courts. Apart from unfair dismissals implications, a breach of fair procedures may be a breach of contract and in some cases, may constitute the civil wrong of breach of constitutional rights.
It is unlikely that the courts would permit a variation of the right to fair procedures by the terms of the employment contract. Employment contracts or procedures, which do not form part of the employment contract should encompass fair standards and procedures in relation to grievances and discipline.
Higher standards of fairness apply where dismissal is a risk. Constitutional and natural justice require an independent, unbiased adjudicator or decision maker and a fair opportunity for the employee to put his side of the complaint. There may be exceptional cases of gross misconduct, where the position may be immediately apparent, and there may be little the need to investigate the facts. This will be exceptional, and an employer should not readily assume the that an investigation is unnecessary.
Investigation
The employer has a good deal of discretion as to how the complaint or disciplinary matter should be investigated. Much will depend on the size of the workplace and circumstances. The investigation should be a genuine attempt to discover the circumstances rather than an endeavour to obtain evidence to justify a decision that has already been made. The investigator should assume that the employee is not guilty of the matter concerned.
The investigation of the matters concerned should be fair, transparent, unbiased and complete. At a minimum, the employee should be the interviewed and given the opportunity to give his version of the matter in question. Other persons whose input may be relevant, should also be interviewed.
Suspension may be appropriate during the investigations. The suspension should be limited to the period required to investigate the matter. Suspension should occur, only when actually necessary. The investigation should proceed speedily. The suspension should not imply guilt.
Suspension
The decision to suspend pending investigation does not necessarily require fair procedures and natural justice provided that it is not a sanction or capable of being perceived as such. Where suspension is a punishment, fair procedures and natural justice must be followed beforehand.
In the absence of good and substantial reason with a rational basis in the circumstances, suspension pending investigation may be unwarranted. It may have a damaging effect of the employee’s reputation and standing which cannot be justified. It may be perceived to be a sanction and may in substance be a sanction, even though it is labelled otherwise. It must be carefully considered and must be demonstrably justifiable.
Confidentiality should be maintained. The matter should be communicated in an appropriate manner to other staff and to clients and customers. If the misconduct relates to a disputed matter, the parties should be treated equally. This does not necessarily require identical treatment. There must be good objective grounds for treating the protagonists differently.
Suspension should be consistent with the contract of employment. The suspension should be necessary. The suspension should be for no longer than strictly necessary for good objective reasons. Alternatives should be considered. The investigation should be conducted as speedily as possible, consistent with fair procedures.
Notice of Case and Hearing
The Code of Practice requires that the employee be given notice of the fact of the investigation and the proposed hearing. He is entitled to be informed of the details of the complaint and given the opportunity to respond either in writing or verbally. He must have the opportunity to enable him to mount a proper defence. If there is a report, the employee is generally entitled to a copy.
Generally, the employee should have copies of statements made in relation to the matter. It may be possible to edit and redact parts of the statement or report, provided that it is consistent with the fairness of the process.
The employee has the right to challenge the evidence of witnesses with whom he disagrees. Reliance on anonymous accusations and statements made in confidence may be inconsistent with a fair hearing, other than very exceptionally where there is compelling justification. In so far as possible, the hearing should be conducted by somebody independent from the person responsible for investigating the matter.
The Hearing
In many cases, written representations will suffice. An oral hearing is preferable. An employee may be entitled to be represented by a workmate or union representative where there is a greater risk of more serious sanctions. The employee usually has the right to examine and challenge witnesses on whom the employer relies. Where there is a report, a copy should be given to the employee.
The requirements will vary with the circumstances. Where the dismissal is based on alleged serious misconduct which is subject to conflicting evidence, more rigorous procedures may be required. An employer need not necessarily follow procedures in a judicial manner. However, a quasi-judicial type approach may be required in more serious cases.
Representation by another employee or by a trade union representative may be appropriate or necessary in some cases. The Supreme Court has held that where the potential penalties include dismissal, “natural or constitutional justice may require that the persons concerned may be entitled to legal representation. It stated legal representation should be the exception rather than the rule” and that it is “wholly undesirable to involve legal representation” where there are disciplinary procedures in place. It said that legal representation at a preliminary fact finding investigation would to do too far.
It appears that the requirement for additional fair procedures depends on the circumstances and impact (e.g. dismissal or an adverse impact on reputation are potential outcomes) and the nature of the investigation. If the investigation is limited to finding facts and the investigation does not lead to the the determination of the matter the right to cross-examine or be legally represented at investigation stage should not arise.
Right to Rebut
The employee must be given an opportunity to be heard. There is a presumption that the employee is innocent of the accusations which he denies. The employee has the opportunity to give evidence, and this must be taken into account by the person deciding the matter of.
In some cases, there may be an entitlement to an oral hearing, where this is necessary to ensure fairness, the employee is generally entitled to some form of representation if a serious sanction is involved. Legal representation would not generally be required.
There is a right to present a case, challenge witnesses and evidence. The employee may bring forward witnesses and other evidence, who may be challenged by the employer or complainant. The person deciding on the facts, should decide and make his findings, exclusively on the basis of the evidence put.
Sanctions and Appeal
Findings must be warranted by the evidence, matters, and facts proved or accepted. The courts will not second guess the body which hears the matter, provided that there is a reasonable basis for the finding and decision.
The appropriate sanctions follow, if appropriate, upon completion of the investigation. Sanctions less than dismissal may be imposed. This may involve dismissal, demotion, transfer or salary reduction. The employer statement should specify a range of possible sanctions.
The disciplinary action must be fair, reasonable and proportionate having regard to the decision. Ultimately, it will come down to what is fair and reasonable in the circumstances.
Appeal
Where the matter and its potential consequences are serious, an appeal from the initial decision maker to somebody else within the organisation may be necessary. In certain cases, the decision must be reasoned and written. This may not be possible in a smaller workplace. An appeal may either be by way of an entirely new hearing, or it may be a review of the fairness of the procedure in the original hearing.
An employee’s disciplinary procedure may itself provide a right of appeal. The procedures should set out the nature of the appeal. It may be a complete rehearing of the matter concerned. On the other hand, it may be a more limited review, involving an assessment as to whether the decision made was reasonable.
The appeal should be to an independent party. Otherwise, it may offend the principle that the decision-maker should be unbiased and should be seen to be unbiased. The appeal should generally be made to a higher level within the organisation.
Considerations in Public Employment
Natural justice and Constitutional justice is relevant in the context of some employments. Because the imposition of sanctions, including suspension and dismissal may impact upon a person’s livelihood and good name, the courts have been willing to imply obligations to comply with the principles of natural justice or constitutional justice, where there is a public or state element, to the employment.Natural justice and constitutional law require that the decision-making process of public authorities, which impact on a citizen’s vital interests, must provide fair procedures.
In effect, the principles of natural and constitutional justice are given expression in the fair procedure requirements under the Unfair Dismissals Act. Even if there is no implied term in an employee’s contract for fair procedures in relation to dismissal, then the effect of the Unfair Dismissals Act and the relevant codes of practice, is to require fair procedures. Failure by the employer to do so leaves the employee at risk of a finding of unfair dismissal.
The concept of legitimate expectations has evolved in relation to public bodies in recent years. Where a person has a legitimate expectation that a public body will act in a particular way, the courts may ensure that the procedural steps concerned will be followed.
Requirements of Constitutional Justice I
The traditional principles of natural justice require that person should not be a judge in his own case and that both sides of a case must be heard. In the Irish context, the principles have been enhanced and given Constitutional status. They have more elements and are described as constitutional justice.
Where a person holds, an office established under law, which appears to give unfettered authority to a Minister or other to terminate the position without notice, the courts will imply a requirement for constitutional justice and fair procedures. The courts interpret legislation in a manner that is consistent with the constitutional right to fair procedures in relation to decisions affecting a person’s good name and livelihood.
If the decision maker follows fair procedures, the courts will not generally interfere with the substantive decision. Fair procedures are usually required, even where the position looks clear cut and where there appears to be no possible defence. It is only flagrant and exceptional circumstances, which would justify dismissal without a fair hearing.Fair procedures do not apply to the same extent to a probationer, as to an employee.
Requirements of Constitutional Justice II
Constitutional justice requires an independent adjudicator, fair procedures in relation to presentation of one’s case, the right to a decision within a reasonable time, a decision based on the facts presented and in any cases, reasons for the decision.
The person “accused”, must be informed of the accusations or “charges”. He must be given a fair hearing. He must have the opportunity to rebut the charges. He must have the opportunity to question the evidence upon which the charges are alleged. He must have the opportunity to offer his own rebutting evidence. He must be given adequate notice of the charge and the opportunity to prepare his response.
Constitutional justice may require that there be an oral hearing, in some cases. In other cases, the right to make written representations and receive replies may suffice. There may be a right to be represented by legal representatives, union representatives or others. Legal representation will not always or even often, be required in internal investigations.
Constitutional justice entails a right to challenge an accuser. The person whose good name or livelihood is in issue may be entitled to a copy of the evidence against him. He may have the right to cross-examine the opposing or accusing party, the right to give rebutting evidence and the right to address the decision maker in its own defence. He may be entitled to exercise these rights through Counsel or other representatives in appropriate circumstances.
Independent Adjudicator
Under the principles of natural and constitutional justice, the decision maker should be unbiased and have no interest in the matter upon which he adjudicates and decides. In the employment context, there will often be no decision-maker available, without some interest or involvement in the matter. In this case, the principle yields to necessity.
Where it is possible to provide a decision maker within the employer organisation, with no immediate or direct involvement in the disputed subject matter, constitutional justice will so require. For example, a prospective dismissal may arise as a consequence of alleged misbehaviour in the workplace. In this case, the decision maker should not have been involved in the incident under investigation. Another manager may be appropriate.
Judicial Review
Decisions of public bodies are subject to challenge by way of judicial review. Dismissals which are unlawful by reason of breach of constitutional justice or otherwise, may be challenged by way of judicial review, where the decision is made under legislation, in respect of an employee with statutory employment rights or otherwise by a decision-maker under governmental authority.
The courts have made judicial review available to office holders in the public and governmental service. It is also available to officers in bodies established by legislation. The principles have also applied in respect of public regulatory bodies such as the Law Society, of solicitors. It has been extended to bodies who exercise public functions, other than under legislation such as the Institute of Chartered Accountants.
As with wrongful dismissal generally, judicial review may not be sought in conjunction with unfair dismissal.
In judicial review, the relief granted may be a declaration and/or compensation by way of damages. A declaration declares the legality of the position and public authorities must follow it. Certiorari may quash the legality of a decision, thereby nullifying it.
References and Sources
Primary References
Employment Law Meenan 2014 Ch. 18
Employment Law Supplement Meenan 2016
Employment Law Regan & Murphy 2009 Ch.14 ( 2nd Ed 2017)
Employment Law in Ireland Cox & Ryan 2009 Ch.14
Dismissal Law in Ireland Redmond 2007 Ch. 5
Other Irish Books
Employment Law Forde & Byrne 2009
Principles of Irish Employment Law Daly & Doherty 2010
Employment Law Contracts (Book & CD-ROM) Beauchamps, Solicitors 2011
Acts
Unfair Dismissals Act 1977 (10/1977)
Worker Protection (Regular Part-Time Employees) Act 1991 (5/1991),
Unfair Dismissals (Amendment) Act 1993 (22/1993)
Protection of Employees (Part-Time Work) Act 2001 (45/2001
Civil Service Regulation (Amendment) Act 2005 (18/2005) (Part 6)
Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007 (27/2007)
Industrial Relations (Amendment) Act 2015 (27/2015), s. 39
Periodicals and Reports
Employment Law Yearbook (annual) Arthur Cox
Employment Law Reports
Irish Employment Law Journal
Employment Law Review
Legislation
Dismissal & Redundancy Consolidated Legislation Barrett, G 2007
Irish Employment legislation (Looseleaf) Kerr 1999-
Employment Rights Legislation (IEL offprint) Kerr 2006
Dismissal & Redundancy Consolidated Legislation Barrett, G 2007
Principles of Irish Employment Law Daly & Doherty 2010
Termination & Redundancy, What is the law? Hayes, Barry & O’Mara 2005
Termination of Employment Statutes (IEL) Kerr 2016
Termination of Employment: Practical Guide for Employers Purdy 2011
Shorter Guides
Employment Law Nutshell Donovan, D 2016
Employees: Know Your Rights Eardly 2008
Essentials of Irish Labour Law Faulkner 2013
Websites
Workplace Relations Commission http://www.lrc.ie/en/
Irish Human Rights and Equality Commission https://www.ihrec.ie/
Health and Safety Authority http://www.hsa.ie/eng/
UK Texts
Textbook on Employment Law, Honeyball, et al. 13th Ed. 2014
Labour Law, Deakin and Morris 5th Ed. 2012
Employment Law, Smith and Wood 13th Ed 2017
Selwyn’s law of Employment Emir A 19 Ed. 2016
Employment law : the essentials. Lewis D Sargeant M and Schwab M 11 Ed.2011
Labour Law Collins H, Ewing K D and McColgan 2012
Industrial relations law reports. (IRLR): Law Section,
Employment law Benny R Jefferson M and Sargent 5th Ed. 2012
Pitt’s Employment Law 10th Ed. Gwyneth Pitt 2016
CLP Legal Practice Guides: Employment Law 2016 Gillian Phillips, Karen Scott
Cases and Materials on Employment Law 10th Ed. Richard Painter, Ann E. M. Holmes 2015
Blackstone’s Statutes on Employment Law 2015 – 2016 Richard Kidner
UK Practitioner Services
Tolley’s Employment Handbook 2017 Mrs Justice Slade 2017
Butterworths Employment Law Handbook 2017 Peter Wallington 2017
Blackstone’s Employment Law Practice 2017 Edited by Gavin Mansfield, John Bowers, John Macmillan 2017
UK Periodicals and Reports
The Employment Law Review 8th Ed. Erika C. Collins 2017
Industrial Relations Law Reports
Employment Law in Context: Text and Materials 2nd Ed. David Cabrelli 2016
Code of Practice on Grievance and Disciplinary Procedures
1. INTRODUCTION
Section 42 of the Industrial Relations Act 1990 provides for the preparation of draft Codes of Practice by the Labour Relations Commission for submission to the Minister, and for the making by him of an order declaring that a draft Code of Practice received by him under section 42 and scheduled to the order shall be a Code of Practice for the purposes of the said Act.
In May 1999 the Minister for Enterprise, Trade and Employment requested the Commission under Section 42 of the Industrial Relations Act 1990 to amend the Code of Practice on Disciplinary Procedures (S.I. No. 1 17 of 1996) to take account of the recommendations on Individual Representation contained in the Report of the High Level Group on Trade Union Recognition. The High Level Group, involving the Departments of the Taoiseach, Finance and Enterprise, Trade and Employment, the Irish Congress of Trade Unions (ICTU), the Irish Business and Employers Confederation (IBEC) and IDA-Ireland, was established under paragraph 9.22 of Partnership 2000 for Inclusion Employment and Competitiveness to consider proposals submitted by ICTU on the Recognition of Unions and the Right to Bargain and to take account of European developments and the detailed position of IBEC on the impact of the ICTU proposals.
When preparing and agreeing this Code of Practice the Commission consulted with the Department of Enterprise, Trade and Employment, ICTU, IBEC, the Employment Appeals Tribunal and the Health and Safety Authority and took account of the views expressed to the maximum extent possible.
The main purpose of this Code of Practice is to provide guidance to employers, employees and their representatives on the general principles which apply in the operation of grievance and disciplinary procedures.
2. GENERAL
This Code of Practice contains general guidelines on the application of grievance and disciplinary procedures and the promotion of best practice in giving effect to such procedures. While the Code outlines the principles of fair procedures for employers and employees generally, it is of particular relevance to situations of individual representation.
While arrangements for handling discipline and grievance issues vary considerably from employment to employment depending on a wide variety of factors including the terms of contracts of employment, locally agreed procedures, industry agreements and whether trade unions are recognised for bargaining purposes, the principles and procedures of this Code of Practice should apply unless alternative agreed procedures exist in the workplace which conform to its general provisions for dealing with grievance and disciplinary issues.
3. IMPORTANCE OF PROCEDURES
Procedures are necessary to ensure both that while discipline is maintained in the workplace by applying disciplinary measures in a fair and consistent manner, grievances are handled in accordance with the principles of natural justice and fairness. Apart from considerations of equity and natural justice, the maintenance of a good industrial relations atmosphere in the workplace requires that acceptable fair procedures are in place and observed.
Such procedures serve a dual purpose in that they provide a framework which enables management to maintain satisfactory standards and employees to have access to procedures whereby alleged failures to comply with these standards may be fairly and sensitively addressed. It is important that procedures of this kind exist and that the purpose, function and terms of such procedures are clearly understood by all concerned.
In the interest of good industrial relations, grievance and disciplinary procedures should be in writing and presented in a format and language that is easily understood. Copies of the procedures should be given to all employees at the commencement of employment and should be included in employee programmes of induction and refresher training and, trade union programmes of employee representative training. All members of management, including supervisory personnel and all employee representatives should be fully aware of such procedures and adhere to their terms.
4. GENERAL PRINCIPLES
The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed is well defined and that an internal appeal mechanism is available.
Procedures should be reviewed and up-dated periodically so that they are consistent with changed circumstances in the workplace, developments in employment legislation and case law, and good practice generally.
Good practice entails a number of stages in discipline and grievance handling. These include raising the issue with the immediate manager in the first instance. If not resolved, matters are then progressed through a number of steps involving more senior management, HR/IR staff, employee representation, as appropriate, and referral to a third party, either internal or external, in accordance with any locally agreed arrangements.
For the purposes of this Code of Practice, “employee representative” includes a colleague of the employee’s choice and a registered trade union but not any other person or body unconnected with the enterprise.
The basis of the representation of employees in matters affecting their rights has been addressed in legislation, including the Protection of Employment Act 1977; the European Communities (Safeguarding of Employees Rights on Transfer of Undertakings) Regulations, 1980; Safety, Health and Welfare at Work Act 1989; Transnational Information and Consultation of Employees Act 1996; and the Organisation of Working Time Act 1997. Together with the case law derived from the legislation governing unfair dismissals and other aspects of employment protection, this corpus of law sets out the proper standards to be applied to the handling of grievances, discipline and matters detrimental to the rights of individual employees.
The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:
- That employee grievances are fairly examined and processed
- That details of any allegations or complaints are put to the employee concerned
- That the employee concerned is given the opportunity to respond fully to any such allegations or complaints
- That the employee concerned is given the opportunity to avail of the right to be represented during the procedure
- That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.
- These principles may require that the allegations or complaints be set out in writing, that the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses.
As a general rule, an attempt should be made to resolve grievance and disciplinary issues between the employee concerned and his or her immediate manager or supervisor. This could be done on an informal or private basis.
The consequences of a departure from the rules and employment requirements of the enterprise/organisation should be clearly set out in procedures, particularly in respect of breaches of discipline which if proved would warrant suspension or dismissal.
Disciplinary action may include:
- An oral warning
- A written warning
- A final written warning
- Suspension without pay
- Transfer to another task, or section of the enterprise
- Demotion
- Some other appropriate disciplinary action short of dismissal
Dismissal.
Generally, the steps in the procedure will be progressive, for example, an oral warning, a written warning, a final written warning, and dismissal. However, there may be instances where more serious action, including dismissal, is warranted at an earlier stage. In such instances the procedures set out at paragraph 6 hereof should be complied with.
An employee may be suspended on full pay pending the outcome of an investigation into an alleged breach of discipline.
Procedures should set out clearly the different levels in the enterprise or organisation at which the various stages of the procedures will be applied.
Warnings should be removed from an employee’s record after a specified period and the employee advised accordingly.The operation of a good grievance and disciplinary procedure requires the maintenance of adequate records. As already stated, it also requires that all members of management, including supervisory personnel and all employees and their representatives be familiar with and adhere to their terms.
Code of Practice 5
August 06
Cases
Garvey v. Ireland
[1981] I.R. 91
O’Higgins C.J. S.C.
Natural justice
I turn now to a consideration of the issues involved in this appeal. The plaintiff’s claim is based primarily on what in our common law is termed the principles of natural justice. Shortly stated, these are that an adjudication be disinterested and unbiased (nemo iudex in causa sua) and that a person judged be given adequate notice and an opportunity to be heard (audi alteram partem). The application of these principles to the different situations which competing interests in society create has never been capable of precise definition. For that reason they have been criticised and even rejected by those who believe precise definition to be the sine qua non of true law. They came to be recognised, however, at a time when society was emerging from the rule of might and force and when men looked for the protection of their rights in the moral sphere of justice and fairness. Natural justice, imprecise though the term may be, was something which came to be regarded as each man’s protection against the arbitrary use of power. In his Judicial Review of Administrative Action (3rd. ed. p. 135) de Smith says of the term:”The term expresses the close relationship between the common law and moral principles, and it has an impressive ancestry. That no man is to be judged unheard was a precept known to the Greeks, inscribed in ancient times upon images in places where justice was administered, proclaimed in Seneca’sMedea, enshrined in the scriptures, mentioned by St. Augustine, embodied in Germanic as well as African proverbs, ascribed in the Year Books to the law of nature, asserted by Coke to be a principle of divine justice, and traced by an eighteenth-century judge to the events in the Garden of Eden.”
Whatever its true origin may be and however imprecise its principles, there can be no doubt that the concept of natural justice is part and parcel of the common law which we inherited from England. In this case the plaintiff claims that he was entitled to natural justice and that he did not get it.
For the purpose of this judgment it is not necessary to trace in any detail the circumstances in which the rules of natural justice have been held to apply where a termination of employment is involved. From the beginning a clear distinction was drawn between servants and office holders. As the law implied into a contract of service the proper grounds for summary dismissal, every servant so dismissed had a possible claim for breach of contract because of his dismissal. Accordingly, the grounds for his employer’s action had to be disclosed and to be judged by the court which heard the claim. Therefore, there was no need for the application of the audi alteram partemrule since the nature of the proceedings and the court itself guaranteed this. With office holders, however, things could be different. Many office holders who were removable for cause could be so removed at the discretion of the employing authority€”that authority exercising the right to act on what it alone regards as sufficient cause. In such cases, since the right to remove from office could not be questioned, it became important to ensure that what was done was done fairly. Accordingly, audi alteram partem was applied to test not the right to remove the office holder but the manner of its exercise. In recent decades, however, the once clear line of distinction between servant and office holder has become blurred and increasingly unreal. This has come about as the result of the creation, sometimes by statute and sometimes otherwise, of particular offices in regard to which the statute or instrument in question specified the grounds for removal, the manner in which such should be determined, and the rights to be accorded to the office-holder. In such cases the holder’s right to question what has been done may depend not on natural justice but on the particular statute or instrument, and upon whether the specified grounds were established and the proper procedure was observed: see per Lord Reid in Ridge v. Baldwin 11 (at p. 65); Lord Wilberforce in Malloch v. Aberdeen Corporation 26 (at p. 1596) and Mr. Justice Walsh in Glover v. B.L.N. Ltd. 6 (at p. 429). Natural justice continues to be the sole protection available to the office-holder who is removable for cause, where the grounds for such removal are determinable by the board or body that removes him.
Offices held at pleasure
Here, however, another distinction must be noticed. As this teaching of the common law was first practised in the Courts of England some hundreds of years ago ( Bagg’s Case 21 ; R. v. University of Cambridge 22 ), immediate regard had to be paid to the most numerous office-holders of all€”those who held office at the will and pleasure of the Crown. Since the King could do no wrong and could not be made to answer in his Courts, it was early established that natural justice did not apply to the removal from such offices. As it was the King’s pleasure to appoint, so it was his to remove. The view that a removal from such an office held at pleasure could not be questioned was gradually extended to removal from all offices held at pleasure, whether Crown offices or not ( R. v. Darlington School Governors 23 although not without some distinguishing: see Willis v. Childe 24 and Dean v. Bennett .25 The continuation of the distinction into modern times in England was recognised by Lord Reid in Ridge v. Baldwin 11 where, speaking of an officer who holds at pleasure, he said at p. 65 of the report:
“It has always been held, I think rightly, that such an officer has no right to be heard before he is dismissed, and the reason is clear. As the person having the power of dismissal need not have anything against the officer, he need not give any reason.”
Royal prerogative
This was a view which owed its origin to a necessary respect for the royal prerogative. It was never accepted with patience as being of general application and, even in England in recent times, its applicability in modern conditions has been questioned. In Malloch v. Aberdeen Corporation 26 Lord Wilberforce said at p. 1597 of the report:€”
“In Ridge v. Baldwin 11 my noble and learned friend, Lord Reid, said: ‘It has always been held, I think rightly, that such an officer’ (sc. one holding at pleasure) has no right to be heard before being dismissed.’ As a general principle, I respectfully agree: and I think it important not to weaken a principle which, for reasons of public policy, applies, at least as a starting point, to so wide a range of the public service. The difficulty arises when, as here, there are other incidents of the employment laid down by statute, or regulations, or code of employment, or agreement. The rigour of the principle is often, in modern practice mitigated for it has come to be perceived that the very possibility of dismissal without reason being givenaction which may vitally affect a man’s career or his pensionmakes it all the more important for him, in suitable circumstances, to be able to state his case and, if denied the right to do so, to be able to have his dismissal declared void. So, while the courts will necessarily respect the right, for good reasons of public policy, to dismiss without assigned reasons, this should not, in my opinion, prevent them from examining the framework and context of the employment to see whether elementary rights are conferred upon him expressly or by necessary implication, and how far these extend.”
In addition in many of the new Commonwealth countries which have taken over the common law, many of them with Constitutions and some with the status of Republics, the application of a rule that the dismissal of public servants cannot be questioned, merely because they hold office at pleasure, is increasingly being regarded as out of date and an anachronism. However, one must still regard it as continuing to be the law and the practice in England.
The facts
I now turn to the facts of the present case to consider the relevance thereto of the principles of natural justice having regard to the terms of the plaintiff’s appointment and the Constitution of Ireland. The plaintiff was appointed to the office of Commissioner of the Garda Siochana on the 2nd September, 1975. On the 19th January, 1978, the Government removed him from that position. In his statement of claim the plaintiff alleges that notice of this removal was only received by him at 6.35 p.m. on the date thereof, that he had no prior notice of the Government’s intention to remove him, that he was not informed of the reasons for the Government’s action nor afforded any opportunity of making representations or of defending himself against any allegations or charges brought.
In their defence to the plaintiff’s statement of claim the Government do not in any material particular deny these allegations but assert that it was within their powers so to remove the plaintiff from office and that the terms of his appointment did not require them to give prior notice of, or reasons for, such removal, or to afford him an opportunity of making representations in relation thereto. In short the defendants, in answer to the plaintiff’s claim, by their defence and the submissions made on their behalf on the hearing of this appeal contend that the office of Commissioner of the Garda Siochana is one that is held at the pleasure of the Government, that in relation to removal therefrom the rules of natural justice do not apply and that, accordingly, the plaintiff’s claim in this respect is not maintainable. It follows from this defence and submission that, if these rules do apply, they have not been observed in this case.
Terms of the appointment
The plaintiff’s appointment and purported removal were made in pursuance of the powers conferred on the Government by s. 6, sub-s. 2, of the Police Forces Amalgamation Act, 1925. This sub-section provides as follows:
“(2) Subject to the provisions of the foregoing sub-section, the Commissioner of the amalgamated force shall from time to time be appointed by the Executive Council, and every Commissioner of the amalgamated force, whether holding office by virtue of an appointment under this sub-section or by virtue of the foregoing sub-section, may at any time be removed by the Executive Council.”
The first question which arises is whether this sub-section creates the relationship of master and servant between the Government and the Commissioner. The learned trial judge was of the opinion that it did. In my view he was wrong. It seems to me that the sub-section creates a statutory office and that, on appointment, the Commissioner becomes the holder of that office. The use of words referable to appointment and removal are to my mind conclusive in this respect. Such words would not be appropriate if the relationship of master and servant were contemplated or intended.
Nature of the office
What kind of office does the section create? The defendants contend that the use of the words “may at any time be removed by the Executive Council” indicates, and can only indicate, that every Commissioner so appointed holds office during the pleasure of the Government. The plaintiff contends that those words merely empower the Government to remove a Commissioner at any time, but that this must be for some reason or cause and that proper procedures must be followed. In relation to the defendants’ contention, the first thing to be noted is that the section does not describe the office as being one held during pleasure. This might be of no significance if the words used conveyed the same meaning. I find it difficult to see that they do.
…….
For these reasons I am of the opinion that the office of Commissioner of the Garda , as created by the Act of 1925 is not, and never was, an office tenable merely at pleasure. Accordingly, in my view, the rules of natural justice apply when it is proposed to exercise the power conferred by the sub-section to remove the holder of the office.
The Constitution of Ireland
One additional and final matter requires to be stated. I have looked at and examined the Act of 1925 as a pre-Constitution statute and have considered what it meant when it was passed by the Oireachtas of Saorst Eireann . However, regard must be had to the fact that this statute falls to be administered under different circumstances and under an entirely different Constitution. To-day the Government, the Oireachtas, the Courts and the State itself may only act in conformity with the Constitution. The Act of 1925 and all other laws in force in Saorstát Éireann at the time of the coming into operation of the Constitution continue in force not only merely to the extent to which they are not inconsistent with the Constitution but also subject to the Constitution. The Constitution incorporates into our laws and their administration the requirements of natural justice, and by Article 40, s. 3, there is guaranteed to every citizen whose rights may be affected by decisions taken by others the right to fair and just procedures. This means that under the Constitution powers cannot be exercised unjustly or unfairly. This applies as well to the Government as to any other authority within the State to which is given the power to take action which may infringe on the rights of others.
Therefore, in my view, it follows that, even if the office of Commissioner of the Garda Siochana (or, indeed, any other office upon which the holder depended for his livelihood) were stated to be an office from which the holder could be removed at pleasure, this would not relieve those who sought to exercise that power from the obligation and requirement to act in accordance with natural justice. This is not, in this case, to question the right to remove. It seems clear to me that the Government in this regard has the widest possible discretion as to the reasons or grounds upon which it may decide to act. The only qualification must be that the reason or ground cannot be one which would be prohibited by the Constitution. Subject to this, the Government has the right and the responsibility to decide for what reasons the power to remove the Commissioner of the Garda Siochana should be exercised. However, the Government is bound to act fairly and must tell the Commissioner of the reason or reasons for the proposed action and give him an opportunity of being heard. Since the decision to remove must necessarily be one taken collectively by the members of the Government, it may be that what is said by him, or on his behalf, may have some effect; at least he is entitled to the chance that it will.
Conclusion
For these reasons, I have come to the conclusion that this appeal should be dismissed. I think the answer to the question which we have considered should be to the effect that the Act of 1925 does not empower the Government of Ireland to terminate the office of Commissioner of the Garda Siochana at any time
(a) without prior notice by this I mean such notice only as is reasonably necessary, in the circumstances, to avail of (c),
(b) without giving reasons,
(c) without giving the holder of the office an opportunity of making representations thereto.
The result, in my view, is that the purported removal of the plaintiff from the office of Commissioner of the Garda Siochana is null and void.”
Gunn v. NCAD
[1990] 2 I.R. 181
Walsh J.; Griffin J. S.C.
“The history of this matter as I have outlined it earlier in this judgment indicates that no part of the procedure invoked in the dismissal of the plaintiff breached any of these guidelines. Therefore insofar as any reliance is placed upon a breach of an agreed procedure, such as was the case in Glover v. B.L.N. Ltd. [1973] I.R. 388, there is no doubt that not merely was the plaintiff made aware of the charges against him, but he was given them in writing together with the documentary evidence which had been supplied by the complainant, Mr. Bowes. The matter dragged on for a very considerable time so that there can be no sustainable allegation that he was not given sufficient time to meet the matter. The minutes of An Bord disclose that the matter was discussed several times before eventually the decision was taken to authorise his dismissal. When he did receive notice of dismissal he was invited on a number of occasions to make representations to An Bord as to why he should not be dismissed or as to why his dismissal should be reversed. The plaintiff did not avail of any of these invitations to make any representations to An Bord, and instead made the claim for wrongful dismissal before the Employment Appeals Tribunal, which in turn was suspended to enable him to commence and pursue the present action. In my opinion, therefore, there can be no question of the plaintiff not having had ample time and ample opportunity to meet the allegations made against him.
….
Lastly, it is suggested that his dismissal was tainted by unfairness in that it was alleged that the Director, who dismissed him, was an interested party and therefore, presumably, would have a motive other than a proper motive for dismissing him. This allegation of interest is based on the fact that it was intended by the defendant, Robert Bowes, to make the Director a third party in the plaintiff’s proceedings against Mr. Bowes, and a notice to that effect was served on the Director, who was made a third party by order of the 10th May, 1982. In my opinion, it does not affect this matter. In any event the third party proceedings were discontinued on the 29th April, 1983. The purpose of joining him as a third party was in some way apparently to make him liable for an alleged defamation by bringing to the notice of An Bord, and to the plaintiff himself, the allegations made by Mr. Bowes against the plaintiff. The Director was in duty bound to bring these matters to the notice of An Bord, and it was An Bord which took the decision to empower the Director to dismiss the plaintiff. It may well be that the allegations made by Mr. Bowes against the plaintiff were without foundation and indeed by a written statement made by Mr. Bowes on the 24th January, 1983, he
admitted that they were untrue, but that is not the point of the present case. The present case is one directed at impugning the procedures of An Bord, and the activities of the Director in carrying out the instructions of An Bord. In my view, there is nothing in the evidence to sustain any allegation of unfairness on the part of the Director, and I would accordingly dismiss this appeal. In doing so I am not making any decision whatever as to the truth or otherwise of the allegations against the plaintiff and that is a matter which is to be investigated by the Employment Appeals Tribunal. It was not the function of the High Court or of this Court on appeal to enter into examination of these matters, much less to decide them.
There is one other matter I wish to refer to, to clear up what appears to be misapprehension concerning the application of the rules of natural justice or of constitutional justice. The application of these rules does not depend upon whether the person concerned is an office-holder as distinct from being an employee of some other kind. I mention this because it is a subject which is referred to in the course of the judgment of the learned judge of the High Court in his reference to Glover v. B.L.N. Ltd. [1973] I.R. 388. The quality of justice does not depend on such distinctions. It appears to me that the misunderstanding has arisen by reason of the great reliance which Kenny J. in the High Court appeared to have placed upon the speech of Lord Reid in the English House of Lords decision of Ridge v. Baldwin [1964] A.C. 40. In that case the person who had been dismissed was a Chief Constable and was the holder of a statutory office. He could only have been dismissed from it in accordance with particular statutory provisions. The persons who had the power to dismiss him were not his employers in the strict sense. Because of that fact and that he was by statutory instrument designated as an “officer” as distinct from another type of employee, it was held that the particular statutory provisions referable to the dismissal of an officer had not been complied with. As was pointed out in the majority judgment of this Court in Glover v. B.L.N. Ltd. [1973] I.R. 388, the question of whether the plaintiff in that case was an officer or a servant was irrelevant, as the case fell to be decided not upon that distinction but upon the actual terms of the contract between Mr. Glover and his employers. In the present case, the agreed procedures are those set out in the agreement with the Federated Workers Union of Ireland, and they did not in anyway depend upon whether the employee in question was an officer or not. In any case where there is no particular procedure prescribed either by agreement between the parties or by statute, and where the case falls to be determined by the application of the principles of constitutional justice, or the principles of natural justice, they are applicable without regard to the status of the person entitled to benefit from them.”
Burns v. Governor of Castlerea Prison
[2009] 3 I.R. 688
Geoghegan J. S.C.
“The applicants obtained leave to seek judicial review of the respondent’s decision. That judicial review was based on some additional grounds over and above the ground that legal representation ought to have been granted. However on the appeal the legal representation issue was the only issue and that is the only matter with which I intend to deal. On that primary issue the operative part of the judgment of Butler J. in the High Court makes clear that the High Court Judge quite rightly was of the view that the absence of reference to legal representation in the rules did not necessarily preclude it (see [2005] IEHC 76, Unreported, 16th March, 2005). He claimed to be reinforced in that view by the judgment of O Caoimh J. in Garvey v. Minister for Justice, Equality and Law Reform (Unreported, High Court, O Caoimh J., 5th December, 2003) where in a somewhat analogous situation that judge held that if the code was to exclude legal representation it could easily have done so by the use of clear and plain language. While that observation is valid, the Constitution itself might require legal representation in exceptional cases irrespective of the wording. The High Court Judge pointed out that O Caoimh J. in Garvey v. Minister for Justice, Equality and Law Reform in considering the very same rule had observed as follows at p. 41:-
“While these rules provide for representation by a fellow officer, I am satisfied that they do not either expressly or impliedly restrict any right to legal representation.”
[12] Butler J. rightly followed this approach. The question which I have to consider is whether he was correct in his view that on any proper exercise of the discretion by the respondent, legal representation would have been permitted. Butler J. expressed his views this way:-
“The breaches with which the applicants stood accused were not in the least trivial, in that, at the very least, they suggested dishonesty on the part of the applicants in carrying out their duty. The potential penalties which the applicants faced included recommendations for a reduction in rank and dismissal from the prison service. I am satisfied that in the instant case natural or constitutional justice required that the applicants should be entitled to legal representation.”
[13] While there is obviously room for legitimate difference of opinion as to the proper exercise of a discretion in any given set of circumstances, I would take the view that legal representation was clearly unnecessary in this case. On one view, none of the charges were serious enough in the objective sense. However, I am reluctant to use that terminology given that at least one of them involves the alleged making of a deliberately false statement with intent to deceive. From a human point of view, that is a serious allegation in the mind of an accused but in the context of the factual matrix to this case, the charges could very easily be defended without a lawyer. The issues were factual issues connected with the day to day running of the prison. It is difficult to see why a lawyer would be required. The rules specify who is to be an advocate and, therefore, subject to the overall obligation of fairness, they should be followed. The cases for which the respondent would be obliged to exercise a discretion in favour of permitting legal representation would be exceptional. They would not necessarily be related even to the objective seriousness of the charges if the issues of proof were purely ones of simple fact and could safely be disposed of without a lawyer. In any organisation where there are disciplinary procedures, it is wholly undesirable to involve legal representation unless in all the circumstances it would be required by the principles of constitutional justice.
[14] I mentioned earlier in this judgment the case of Reg. v. Home Sec. Ex p. Tarrant [1985] 1 Q.B. 251. The criteria to be considered in the context of a request for legal representation as set out by Webster J. in that case have stood the test of time in the United Kingdom and I think that on a prima facie basis they could safely be adopted in this jurisdiction. I would add a rider however. In listing them, I am merely suggesting that they are the starting off points to be considered. Even if the case falls within one of these categories, in the context say of the Rules of 1996, the respondent would still be entitled to consider whether a fair hearing would require a lawyer. The six matters suggested by Webster J. are as follows:-
1. the seriousness of the charge and of the potential penalty;
2. whether any points of law are likely to arise;
3. the capacity of a particular prisoner to present his own case;
4. procedural difficulty;
5. the need for reasonable speed in making the adjudication, that being an important consideration; and
6. the need for fairness as between prisoners and as between prisoners and prison officers.
[15] I would approve of that list but it is a list merely of the kind of factors which might be relevant in the consideration of whether legal representation is desirable in the interests of a fair hearing. Ultimately, the essential point which the relevant governor has to consider is whether from the accused’s point of view legal representation is needed in the particular circumstances of the case. I would reiterate that legal representation should be the exception rather than the rule. In most cases the provisions of the Rules of 1996 will simply apply.
[16] There are two other matters which I should mention. The first is that in the hearing in the High Court (see [2005] IEHC 76), Butler J. on the prompting of counsel had regard to a document called “Memorandum of Understanding” which preceded the Rules of 1996, in interpreting those rules. However, since the delivery of the judgment of the High Court in this case on the 16th March, 2005, this court, in a judgment delivered on the 18th July, 2005, by Hardiman J. and with which McCracken and Laffoy JJ. concurred in the case of Curley v. Governor of Arbour Hill Prison [2005] IESC 49, [2005] 3 I.R. 308, has held that the “Memorandum of Understanding” may not be used for the purpose of interpreting Rules of 1996. For that reason, I have made no reference to that memorandum but at any rate consideration of it would have made no difference to the view I take on this appeal.
[17] The second matter relates to an argument made on behalf of the applicants based on rule 5 of the Rules of 1996. That rule reads as follows:-
“Nothing in these rules shall affect the right of a Governor or any officer whose duties include the supervision of another officer to deal informally (whether by advice, caution or admonition as the circumstances may require) with a breach of discipline of a minor nature.”
[18] The argument was made that since the respondent thought fit to hold an oral hearing under r. 8 and not deal with the matter under r. 5, he was thereby accepting that the breaches of discipline in this case were not of a minor nature and that it further followed from that that any hearing in relation to them required legal representation. I would wholly reject that argument. Indeed if it was sound, the effect of it would be that there would be an entitlement in every case where there was an oral hearing to have legal representation. That would be contrary both to the clear intention of the Rules and to any requirement of constitutional or natural justice.
[19] For the reasons which I have set out therefore, I would allow the appeal and I would consider that the court should make an order setting aside the order of the High Court quashing the respondent’s decision.”
Stoskus -v- Goode Concrete Ltd
[2007] IEHC 432
Irvine J.
“The two most significant features of this case as far as this court are concerned are firstly the fact that the Plaintiff in this case appears to have signed a written contract of employment which incorporates the disciplinary procedure to be applied in the event of any alleged misconduct arising. The other equally significant feature of this claim is the nature of the relief which will be sought by the Plaintiff at the hearing of the action and in particular the acceptance by him that he harbours no claim for reinstatement or a continuation of the employment contract at the date of the trial of the action. The consequence of the plaintiff establishing a want of natural justice and fair procedures automatically means that the contract of employment from a legal perspective remains in being. Hence, it is normal for a plaintiff in circumstances such as are present in a case of this nature to continue to contend for a right of re-instatement at the trial of the action even if they acknowledge that it is unlikely that re-instatement will be directed and that the matter is more likely to be dealt with by way of damages. However, in this specific case the plaintiff has de facto accepted that he will not seek re-instatement and will confine himself to the declaratory relief in the terms earlier advised.
It is undoubtedly the case that the plaintiff signed a contract to which there is annexed a disciplinary procedure. The disciplinary procedure is exhibited as the first exhibit to the affidavit of Ms. Orla Goode sworn on 11th October, 2007. The disciplinary procedure at clause 2.4 provides:-
“At all stages the employees will have the right to be accompanied during any disciplinary meetings by a fellow employee but not any other person or body unconnected with the company.”
The plaintiff seems to have signed his contract of employment with the defendants on 7th June, 2004 and committed himself by its express terms to abide by this disciplinary procedure as part of his contract. Prima facie his rights in relation to the conduct of a disciplinary hearing should be a matter of private law and defined by the contract between the parties.
Ms. Goode, in her aforementioned affidavit a para. 37 refers to a letter written by the Managing Director, Mr. Peter Goode to the plaintiffs solicitor dated 24th September, 2007 wherein it was contended that:-
“You should further note that our procedures are in line with the code of practice: grievance and disciplinary procedures (SI No. 146 of 2000) Industrial Relations Act, 1990 and all steps necessary to ensure a fair and just process will take place.”
The Industrial Relations Act, 1990 set up the Labour Relations Commission. One of the functions of the Commission as specified in s. 25 of the Act was stated to include the offer of guidance on codes of practice and help to resolve disputes. The Commission was also charged with preparing codes of practice concerning industrial relations to be submitted to the Minister. A Code of Practice on Grievance and Disciplinary Procedures was prepared by the Labour Relations Commission and submitted to the Minister and this code of practice is set forth in S.I. No. 146 of 2000. At Schedule I to the said Statutory Instrument, the purpose of the code is stated to provide guidance to employers, employees and their representatives on the general principles which apply in the operation of grievance and disciplinary procedures.
The code itself at s. 3 records the necessity to ensure that disciplinary matters are dealt with in accordance with the principles of natural justice and fairness. At clause 6 of the general principles the code sets out, depending on the organisation, the matters which ought to be satisfied so as to ensure compliance with the principles of natural justice and fair procedures and these include:-
· “That the employee concerned is given the opportunity to respond fully to any such allegations or complaints:
· That the employee concerned is given the opportunity to avail of the right to be represented during the procedure.”
Whilst there is an assertion at paragraph 13 of the Plaintiff’s grounding Affidavit that he was entitled to a procedure which conformed with the aforementioned code there was no argument in the course of the interlocutory hearing as to whether the clause within the plaintiff’s contract which allowed him the right to be accompanied by a fellow employee did, as contended by the defendant, meet the standards advised in the code of practice referred to in S.I. 146 of 2000. The court notes that nowhere in the code is it specified that the right to be represented includes a right to be represented through a lawyer as is contended for in this case.
It appears to this court that whilst the plaintiff may have an arguable case that he was entitled, as a matter of natural justice and fair procedures, to legal representation at his disciplinary hearing, the court concludes that the plaintiff’s case does not amount to a “good arguable case” and is certainly not one which is “strong” such as would support his application for what this Court believes is truly mandatory relief. In the opinion of this court the plaintiff’s claim is no more than merely stateable.
To be successful in arguing his case at trial the plaintiff will effectively have to prove that every employee threatened with potential dismissal has a right to legal representation at his disciplinary hearing, irrespective of any contractual provision which provides for lesser representation such as representation through a colleague or trades union representative. On the plaintiff’s submission, no company could oblige its employee to sign up to a contract of employment incorporating a code which would provide for anything other than full legal representation in the event of disciplinary proceedings being instituted that might lead to their dismissal. In this respect the plaintiff’s assertion that he was not afforded natural justice and fair procedures by reasons of the absence of a right to legal representation places his demands for natural justice at a higher threshold than that provided for in the code of practice contained in S.I. No. 146/2000.
If the plaintiff had not signed a contract of employment or had signed a contract of employment which was silent as to the disciplinary procedure to be followed in a case of alleged misconduct, then the plaintiff might be in a stronger position to contend that the rules of natural justice and fair procedures should be implied into the agreement so as to entitle him, in the context of his nationality, ability to speak English and other factors to have a right to legal representation.
Many of the cases relied upon by the plaintiff are not supportive of the forceful assertion made by the plaintiff that he was entitled, as a matter of natural and constitutional justice to legal representation at his disciplinary hearing. In this respect reliance upon the decision in Maguire v. Ardagh [2002] I.R. p 704, having regard to the fact of this case, is, in this court’s opinion, misplaced.
What Maguire v. Ardagh was concerned with were the rights of natural justice and fair procedures to be accorded to an individual subjected to scrutiny at a public inquiry. The court in that judgment made it clear that the sub-committee conducting that inquiry was obliged in such circumstances to afford natural and constitutional justice to those against whom adverse findings might be made. The decision of Hardiman J. as is relied upon by the plaintiff Maguire v Ardagh related to public law issues which cannot be applied to issues of private law which in this case intimately concern a code of conduct incorporated into the plaintiff’s contract of employment which has express conditions relating to the disciplinary procedure.
Having regard to the contractual provisions between the plaintiff and the defendant in this case, the legal position which arises is distinguishable from the facts of a number of the cases opened to the court on behalf of the plaintiff. In Flanagan v. U.C.D. [1988] 1 I.R. 724 what was impugned was the disciplinary procedure operated by the university in respect of a post graduate student who was disciplined for alleged plagiarism. The court in that case roundly criticised many aspects of the disciplinary procedure adopted by the college including the failure of the college to give the applicant details in writing regarding the precise charges made against her, the delegation to an independent expert of the decision as to whether or not the applicant was guilty or not guilty of plagiarism and also in their failure to allow the applicant to be represented. However, that case is distinguishable from the facts of the present case firstly having regard to the fact that the plaintiff had not signed up to any disciplinary code as a student of UCD which confined her to rules which gave her no automatic right to legal representation. Further, the disciplinary charges were viewed by Barron J. as being akin to a charge of cheating which he considered to be the most serious academic breach of discipline possible thereby influencing the court to conclude that she was entitled to a procedure fairly close to the approach that might be adopted by a court deciding a similar issue.
Similarly, in Gallagher v. The Revenue Commissioners [1995] 1 I.L.R.M. 241, the court was asked to review the procedure adopted by the defendants prior to suspending the plaintiff for allegedly understating the value of vehicles seized, thus causing a loss of revenue to the State. The plaintiff opted for an oral inquiry. The first named defendant refused to permit him legal representation or to allow him to see in advance the statements of the other customs officers who had investigated the case against him. In addition, the first named defendant refused to furnish to the plaintiff the transcript of interviews which the customs officers had with him. Whilst Blayney J. held that the plaintiff was entitled to legal representation at the inquiry, once again this was not a case where there was any contractual agreement between the parties as to the disciplinary code to be operated in the event of an inquiry being required.
Whilst it is not for this court to seek to determine the ultimate result of this action the court nonetheless notes the strong case that exists for the contention that the plaintiff had no automatic right to legal representation as per the decision of Finlay C.J. in O’Neill v. Iarnrod Eireann [1988] I.R. 724, where in dealing with disciplinary procedures implemented by the defendant when enquiring into an alleged offence on the part of the plaintiff, a food and beverage manager in the employment of Iarnród Éireann, the court held as follows:
“On the papers before the court it does not appear to be disputed by the applicant who has supplied to the court an extract from the staff relations scheme, which apparently applies in this case, that the provisions of that scheme permit at the hearing of an inquiry into the disciplinary offence the person being enquired into to be accompanied, if he so desires, by a spokesman who shall either be a fellow employee or a representative of his trade union.”
Similarly in Aziz v. Midland Health Board, Barr J (9th December 1994) the court was asked to review the procedures adopted by the Health Board which led to its decision to suspend the applicant from his position as medical registrar at Tullamore General Hospital. One of the complaints made by the Plaintiff concerned the defendant’s failure to allow the applicants solicitor attend one of the meetings conducted in the course of the inquiry. Regarding whether or not there was a general right to legal representation at a quasi judicial disciplinary hearing Barr J. concluded that there was no such right.
Having regard to the aforementioned decisions and to all of those decisions relied upon by both of the parties in this application court concludes that the plaintiff has not established a strong case so as to justify a mandatory order. In reaching this conclusion the court also has considered the fact that the plaintiff did have the benefit of legal advice prior to attending at the disciplinary hearing which ultimately took place on 3rd October, 2007. In addition, the Plaintiff had a right to be accompanied by a colleague of his choice which right he declined to avail of. Further, the court notes that the defendants advised the plaintiff as to his right to make a written statement prior to an ultimate decision being made at the conclusion of the oral hearing and of which fact the plaintiff’s solicitors were appraised.
Lest the court be wrong regarding the strength of the case which the plaintiff needs to establish to obtain a mandatory interlocutory injunction the court has also considered whether the balance of justice and convenience in this case is in favour of granting the reliefs sought.
In this regard it is relevant to state again that the plaintiff will not, at the trial of the action, seek reinstatement but apparently will confine his relief to a declaration that the procedures adopted by the defendants at the time of his dismissal were wanting in natural justice and fair procedures. The court was also advised that the plaintiff may seek damages limited to the infliction of emotional suffering. In these circumstances, where the plaintiff effectively accepts that as of the date of the trial of the action that his relationship with his employers will cease in any event, the court does not believe that the balance of justice and convenience justifies the continuation of the relationship between the parties by obliging the employer to pay the plaintiffs salary albeit that the plaintiff must hold himself free to provides services for the defendant, should the defendant so wish, pending a trial of the action. To grant the injunction sought would merely postpone the time at which the plaintiff will in any event have to seek alternative employment.
Further, given that trust and confidence appears to broken down to the extent that the Plaintiff will not seek re instatement at trial, the court views the undertaking being given by the plaintiff to provide services as may be demanded of him by employers in the period up to trial as being one unlikely to benefit the defendants whilst being one which simultaneously precludes the plaintiff from seeking to obtain new employment.
It is easy to see why the court in certain circumstances would grant an employee an injunction of the nature sought at this interlocutory hearing on the basis of the undertakings being tendered. This is what happened in Fennelly v. Assicurazioni a decision of Costello J. of 12th March, 1985. In that case however, the plaintiff who had given up a permanent and pensionable position in An Garda Síochána and who had taken up the position of a claims handler with the defendant was allegedly made redundant by reason of a fall off in the defendants business. The plaintiff alleged that he had a twelve year fixed contract and sought an injunction restraining his dismissal pending the hearing of the action. Costello J. granted an interlocutory injunction requiring the defendant to pay the plaintiff salary until the trial of the action, but did so fortified by the fact that the plaintiff seemed to have documentary evidence supporting his assertion that he had a contractual right to a twelve year fixed contract. Costello J. was impressed by the fact that the Plaintiff had given up a permanent position in An Garda Síochána to take up employment with the Defendant and concluded that this was strong evidence that he was given such a contractual terms by his employers. Further, in that case, Costello J. clearly believed that there was a real prospect of the plaintiff continuing in employment with his employer if he was successful at the trial of the action, unlike in the present case where the plaintiff accepts that irrespective of the outcome he will not continue to work for the Defendant.
A similar injunction was granted in Doyle v. Grangeford Precast Concrete Limited [1998] E.L.R. 260. In that case the plaintiff, who had been employed as a safety officer by the defendant some months after he had agreed terms of employment, received a letter setting out the purported terms and conditions pertaining to his employment which he believed had not been included at the time of the original agreement and consequently refused to sign his letter of appointment. The defendant then purported to terminate his employment and the plaintiff sought an interlocutory injunction which was ultimately dealt with by O’Donovan J. on appeal in the High Court. Even though the Court held that there may well have been a breakdown of trust and confidence between the parties it nonetheless granted an Interlocutory Injunction restraining the Defendant from ceasing to pay the Plaintiff’s salary pending the hearing of the action. Whilst the Court in that case determined that the likelihood was that, even if the plaintiff was successful at the hearing, his remedy was likely to lie in damages rather than reinstatement there still remained a claim for re instatement and /or damages in lieu thereof.
What was also significant in that case was the statement by O’Donovan J. that he was satisfied that the plaintiff would be “somewhat stricken in his financial circumstances were he to await the outcome of the trial of this action without any salary”. This is a statement somewhat akin to that recorded by Costello J. in Fennelly v. Assicurazioni where the trial judge referred to the fact that the plaintiff, if an injunction were not granted, would “be left without a salary and nothing to live on” pending the hearing of the action. Similar comments were made by Laffoy J. in Curt Naujoks v. National Institute of Bio Processing Research and Training Limited [2007] 18 E.L.R. 25, where the trial judge referred to the plaintiff as having made out a strong case that, if the injunction were not granted, he would suffer irreparable loss, both financial and reputational, because of the nature of the position at issue, his age, his prospects of finding alternative employment, his family circumstances and the fact that he had relocated from Munich to take up the position, the subject matter of the injunction.
The Affidavits in the present case do not contain the relevant details which would allow the court make a similar pronouncement in the present case which fact further weakens the Plaintiffs claim on the issue as to whether the balance of justice and convenience favours the granting of the relief sought. This is particularly so given that contractual dealings between the parties will in any event be at an end at the conclusion of the trial. It is clear that the plaintiff will have to seek alternative employment either now or at latest following the trial of this action and the court believes that this process should commence with immediate effect and should not be deferred on the terms sought.
For all of the aforementioned reasons the court refuses the plaintiff’s application. “
Aziz v. Midland Health Board
[1999] IESC 71
Keane, J. SC
“16. I am satisfied that the learned High Court judge was in error in adopting that approach. As has been repeatedly emphasised in recent decisions, judicial review is concerned not with the decision but with the decision making process: see the judgment of Griffin J in this court in The State (Keegan) v. Stardust Compensation Tribunal [1986] IR 612 . As the trial judge pointed out, there was evidence before the defendants which beyond argument entitled them to reach the conclusion that, not merely had the plaintiff failed to comply with a proper instruction from the relevant consultant and failed to report for duty, but that the misconduct in question was of so serious a nature and so potentially damaging in its consequences to the patients of the hospital that it fully justified the termination of his contract of employment. ….
17. Court and again in this court, however, was not as to whether there was sufficient evidence to justify such a conclusion but rather as to whether fair procedures had been adopted in arriving at that conclusion. The issue which the defendants, acting in a quasi-judicial capacity, had to resolve was whether the plaintiff was entitled to conclude that Dr. Taaffe was accepting his non-attendance on the Saturday morning because of the absence of SHO cover, pending a review of the matter by the hospital administration. That case, however tenuous it might be, was one which the plaintiff was entitled to have considered by the defendants in accordance with accepted norms of natural justice and those norms were unfortunately not met when the Chief Executive Officer elected to have a private discussion with Mr. Bane and Dr. Taaffe in the absence of the plaintiff before arriving at his decision. Given the clear conflict between the plaintiff and Dr. Taaffe as to what happened at the crucial meeting between them on the Friday, this failure to observe proper procedures could not, in my view, be disregarded.
18. As I must again emphasise, the fact that there was ample evidence to justify the conclusion by the CEO that not merely had the misconduct been established but that it was of sufficient seriousness to warrant the plaintiffs dismissal did not absolve the defendants in a matter of this gravity from adhering scrupulously to fair procedures.
19. I would allow the appeal and substitute for the order of the High Court an order of certiorari quashing the decision of the defendants to terminate the employment of the plaintiff. Since the contract of the plaintiff with the defendants would in any event have long since expired, no useful purpose”
Kell -v- Minister for Agriculture & Ors
[2012] IEHC 558
Hedigan J
3 The issues before the Court are;
(a) The fairness of the disciplinary process set out in Circular 1/92 including the standard of proof and the alleged absence of a full appeal.
(b) The involvement of the Minister and objective bias. This is described by counsel as the main issue in the case.
(c) The failure to provide the applicant with the full statements of certain witnesses until August 2007.
(d) The conclusions of the investigating officer were tainted by bias.
(e) Incorrect procedure – continuing Mr. Fitzpatrick as the investigating officer – the alleged re-opening of the investigation in 2006 – Mr. Fitzpatrick was witness, prosecutor, judge, jury and appeal court.
6.4 The fairness of the disciplinary process.
The procedure impugned is governed by the Department of Finance, Circular 1/92. This Circular sets out an agreed procedure for dealing with disciplinary problems. Appendix 2 thereof provides for the Disciplinary Code. Section 3 thereof provides for the kind of investigation that occurred herein. Section 4 provides for an appeal board. These two sections are central to this issue in the case. They are as follows;
Section 3 (procedure):
Where an allegation of misconduct, irregularity, neglect or unsatisfactory behaviour warranting disciplinary action is made against an officer the following procedure shall apply.
(1) The personnel officer shall cause an investigation or such further investigation as s/he considers necessary to be held to ascertain the facts of the case.
(2) Where the personnel officer is satisfied, on the basis of the investigation that the alleged conduct may have occurred and that such conduct, if it occured,would warrant disciplinary action,s/he shall furnish the officer concerned with
-a statement of the allegation (s) which s/he considers may be substantiated by the investigation;
-a statement of all the evidence supporting the allegation(s) which s/he will take into account in arriving at a decision;
-a statement of the penalty which, having regard to the breach(es) of discipline alleged and the evidence considered to date ,s/he considers would be warranted if the allegation(s) were substantiated;
-a copy of this disciplinary code.
(3) The officer concerned shall submit a response to the allegations in writing within 14 days of receipt of the material referred to at (2) above. However, the personnel officer may give effect to the procedure set out below notwithstanding non-compliance by the officer concerned with this requirement.
(4) The officer concerned may include in his/her response as request for a meeting with the personnel officer to consider the allegation(s).In the event of such a request the personnel officer shall arrange a meeting. The officer concerned may be accompanied at any such meeting by a serving civil servant of his/her choice and/or by a whole-time official of the union holding recognition for his/her grade.
(5) Having considered any response by the officer concerned and any written or oral representations made by or on behalf of the office concerned, the personnel officer shall decide whether the allegations have been substantiated and, where s/he is satisfied that conduct warranting disciplinary action has been established ,shall inform the officer concerned in writing
-that it is proposed to recommend to the relevant decision-making authority that specified disciplinary action be taken, and
-that s/he may
-make representations in writing to the decision-making authority
or
-seek a review of the disciplinary proceedings by the Appeal Board (see paragraph 4 below).
(6) Where the appeal board has issued an opinion concerning a recommendation, the personnel officer shall, within 14 days of the issue of the opinion, inform the officer concerned of the action, if any, which s/he proposes to take in the light of the appeal board’s opinion. Where no further action is to be taken the allegations will be deemed to have been withdrawn.
(7) Where following the issue of an opinion by the appeal board, the personnel officer proposes to make a recommendation to the relevant decision-making authority that disciplinary action be taken, the officer concerned shall be given an opportunity to make representations to the decision making authority with 14 days of receipt of the notification referred to at (6 ) above.
(8) A recommendation submitted to a decision-making authority shall be accompanied by any representations made by the officer concerned and any opinion delivered by the appeal board.
Section 4 (The Appeal Board):
4.1. The board shall comprise:
-a chairperson appointed by the Minister for Finance with the agreement of the General Council Staff Panel;
-a serving civil servant nominated by the Minister for Finance;
-a serving civil servant or whole-time official of a recognised trade union nominated by the General Council Staff Panel.
No member shall be appointed to the board to consider a case referred to the board who has had any prior interest in or dealings with that particular case.
4.2 An officer who has been notified by a personnel officer that it has been decided to recommend to the relevant decision-making authority that disciplinary action be taken against him/her may, within 14 days of the personnel officer’s notification, request in writing that the disciplinary proceedings be reviewed by the board.
4.3 An officer may seek a review of disciplinary proceedings on one or more ofthe following grounds:
-that the provisions of the disciplinary code were not adhered to;
-that reasonable steps were not taken to ascertain the relevant facts;
-that all the relevant evidence was not considered or was not considered in a careful and unbiased fashion;
-that the officer concerned was not afforded reasonable facilities to answer the allegation(s);
-that the officer concerned could not reasonably be expected to have understood that the behaviour alleged would attract disciplinary action;
-that the sanction recommended is grossly disproportionate to the offence.
4.4. Where an officer requests that disciplinary proceedings be reviewed by the board the following submissions shall be made:
(a) a written statement by the officer concerned of the grounds on which the review is being sought, to be furnished to the board and the personnel officer within 14 days of the submission of the request referred to at paragraph 4.2 above;
(b) a written counterstatement by the personnel officer, to be submitted to the board and the officer concerned within 14 days of receipt of the
statement by the personnel officer;
(c) any further or other submission which the board may request from the officer concerned and/or the personnel officer, to be furnished in such form and within such time as the board may specify in its request.
4.5. The board may reject a request for a review of disciplinary proceedings where
(a) the officer concerned fails to make a submission required under paragraph 4.4 above within the prescribed time limit, or
(b) the board, having considered any submissions made under para. 4.4 above, is of the opinion that the case made by the officer concerned is frivolous, vexatious or without substance or foundation.
Where a request is rejected under the terms of this paragraph, the personnel officer may proceed in accordance with the terms of this code as though the request had not been made.
4.6 The board may invite any person to give evidence orally or in writing at the request of either side or on its own initiative.
4.7.The officer concerned is entitled if s/he so wishes to make oral submissions to the board either in person or through a serving civil servant of his/her choice, a whole-time official of the union holding recognition for his/her grade or such other person as the board agrees may be present for that purpose.
4.8. Where the board meets for the purpose of taking oral evidence or hearing oral submissions the following are entitled to be present:
-the officer concerned,
-any person who is entitled to make submissions on behalf of the officer concerned,
-the personnel officer,
-a serving civil servant designated to assist the personnel officer,
-any other person whom the board agrees may be present.
4.9. Proceedings before the board shall be informal.
4.10. Having made such enquiries as it considers necessary and having considered any submissions made or evidence given, the board shall form an opinion as to whether or not a case has been established on one or more of the grounds set out in paragraph
4.3 above. Where the opinion is to the effect that such a case has been established, it shall contain a recommendation that
-no further action should be taken in the matter, or
-the recommendation which the personnel officer proposes to submit to the relevant decision-making authority should be amended in a specified manner, or
-the case should be referred back to the personnel officer to remedy any deficiency in the disciplinary proceedings (in which event the provisions of this code shall continue to apply).
4.11. The board’s opinion shall be conveyed, in writing, to the personnel officer and the officer concerned. The matter shall be processed further in accordance with the provisions of this code (see-paragraphs 3(6) to 3(8) above).
…..
6.5 The applicant claims that the investigating officer is the fact finder in any disciplinary proceeding. After him, it is claimed, only a review is contemplated. There is no rehearing. I do not think this claim is sustainable on any reading of s. 4 above. Section 4.3 provides a number of grounds upon which an officer may seek review including failure of the investigating office to adhere to the Disciplinary Code, that reasonable steps to ascertain the facts were not taken, that all the relevant evidence was not considered or not properly considered, that no reasonable opportunity was given to the officer to answer the allegations, the unpredictability of disciplinary action in relation to the allegations and the disproportionality of the sanction. This seems to afford the appeal board a very wide discretion to examine the factual matrix of the investigation. This is confirmed by the terms of s. 4 which give the appeal board power to request any “further or other submission” from the officer concerned or the personnel officer. The appeal board may receive evidence from any person it wishes. The appeal board may receive submissions from any person including a lawyer for the officer. The appeal board having heard all the evidence and the submissions shall form an opinion as to whether a case has been made out. Having done so, it may recommend no further action or may amend the personnel officer’s recommendation or refer the case back to the personnel officer to remedy any deficiency found. On this analysis of s. 4 of the Code, the appeal board is very far removed from being just a review body limited to a consideration of the proportionality of the section.
6.6 There is no fixed model for fair procedures that is applicable to all circumstances. What is required in one instance may differ from another. In National Irish Bank and the Companies Act 1993, l.R. p. 145, Shanley J., subsequently upheld by the Supreme Court, dealt with an investigation by inspectors which was a two stage one. The first was an investigative stage, the second a hearing stage. In distinguishing in Re Haughey [1971] I.R. 217, Shanley J. at p. 168 held that at first stage, the inspectors could not be compelled to produce documents to the respondent nor was he entitled to any documents or to the facility of cross-examining any person at the initial stage.
“I am satisfied that there is no entitlement to invoke the panoply of rights identified by the Supreme Court at the information gathering stage of the inspector’s work. The procedures identified by the inspectors following the outcome of the first stage accord in my view with the requirements of fairness and justice and guarantee, where appropriate, the exercise of the rights identified in Re Haughey.”
I gratefully adopt this dictum of the late Shanley J. It is fairness and justice which is to be sought in any investigative process and it is to the process as a whole that the Court must look to determine if those basic requirements were met. The requirement of fairness and justice will vary from case to case.
6.7 Examining the agreed process set out in Circular 1/92, it seems to me to accord in its structure with the requirements of fairness and justice. In this case following a series of complaints against the applicant and a review of staff morale at KHFC, a disciplinary investigation was launched pursuant to s. 3(1) of the above Code. The then personnel officer, Mr. Tony Fitzpatrick, engaged a retired civil servant, Brian Bolger, to conduct this investigation. The purpose of this investigation was to determine if grounds existed for disciplinary action as a result of alleged conduct. Mr. Bolger conducted an investigation into the six allegations set out at 3.1 above. The applicant was informed by letter dated the 18th October, 2004 of this investigation and the allegations in question. He was suspended on full pay. It is clear on the evidence that the parameters of this investigation were set before Mr. Fitzpatrick was informed of the involvement of Minister Coughlan who was then the local Dail Deputy. She was also then a Minister but not one with responsibility in the area of fisheries. On the 22nd December, 2004, Mr. Bolger reported in an extensive report. Having reviewed this report Mr. Fitzpatrick decided there were sufficient grounds for a full investigation. The applicant was informed of the allegations against him that were to be investigated. He was given the opportunity to respond by Mr. Fitzpatrick. He attended a hearing with that officer in March 2005. The transcript thereof sets out a full and detailed discussion of all allegations under investigation. It was a discussion in which the applicant, assisted by his trade union official, participated fully. Subsequent to this, Mr. Fitzpatrick presented his preliminary findings to the applicant by letter dated the 4th August, 2005. This letter, as is clear from its contents, sets out in full detail the allegations, the evidence, the possible sanctions and the preliminary findings. The applicant was invited to respond. The investigating officer received during the course of this investigation thirty three letters from the applicant. In his view none of them addressed the allegations.
6.8 The applicant claims that the standard of proof should be one beyond reasonable doubt. I do not think that that is a correct view of the law. In Georgopoulus v. Beaumont Hospital [1998] 3.I.R. 132, Hamilton C.J. (at p. 150) stated;
“This does not, however, require that the facts upon which the allegations are based should be established beyond all reasonable doubt. They can be dealt with on ‘the balance of probabilities’ bearing in mind that the degree of probability required should always be proportionate to the nature and gravity of the issue to be investigated.”
This standard may be somewhat more flexible depending on the gravity of the allegation. I note in this regard the comments of O’Flaherty J. in 0’Laoire v. The Medical Council [1998] WJSC- SC 11507 at p. 11515;
“The common law panorama at this time gives the impression that there is but one standard of proof in civil cases though, of necessity, it is a flexible one. This flexibility will ensure that the graver the allegation the higher will be the degree of probability that is required to bring home the case against the person whose conduct is impugned.”
The gravity of the allegations herein is towards the top end of the scale. Thus while the test should still be on the civil side, a higher degree of probability was required. It is not for this Court to assess the evidence upon which the appeal board finally based its decision in any general sense. I do however think the Court may consider whether there was presented to the appeal board a level of proof that went beyond just a bare balancing of probability.
6.9 The appeal board in its decision dated the 14th July, 2009 considered the grounds of appeal as follows;
(1) That reasonable steps were not taken to ascertain the relevant facts. The appeal board rejected this and related points and in my view had ample evidence before it to do so.
(2) All relevant evidence was not considered or was not considered in a careful and unbiased fashion;
The appeal board seems to me to have had ample material before it in the evidence and the decisions of the investigating officer on the allegations to support their decision that the allegations were substantiated. There is nothing to suggest they did not consider this evidence in careful fashion. Moreover, in my view no convincing case of bias has been raised against the investigating officer (see 6.15 below) nor is any stateable case of bias raised against the Appeal Board.
(3) The officer was not afforded reasonable facilities to answer the allegations; it is clear from the evidence that every opportunity was afforded the applicant to respond to the allegations.
(4) The officer could not reasonably have been expected to have understood that the behaviour alleged would attract disciplinary action.
The consideration of this claim occupied most of the appeal board’s attention. It found that each of the allegations were ones that could predictably result in disciplinary sanction. It accepted in relation to the two pollution incidents that the sanction of dismissal was disproportionate. It considered the imposition of dismissal in relation to the pilotage allegations was not disproportionate.
I do not believe that the Court can interfere with the appeal board’s decisions as to disproportionality of the sanction save in the unlikely event that such a decision was not based on any relevant evidence before it and thus was irrational. I do think, however, that the Court can examine the appeal board’s consideration of the evidence in order to determine if there was any failure on its part to properly consider the evidence with a view to exercising its powers under s. 4 of the Code to order any further submission, to receive any further evidence from any person or any further submission from any other person or to refer the matter back to the personnel officer to remedy any deficiency.
It seems to me that in this regard, bearing in mind the gravity of the allegation of pilotage made against Capt. Kelly that any conclusion reached should also be based on something more convincing than just the bare balance of probabilities.
6.16 [It was argued that] The conclusions of the investigating officer were tainted by bias on the following grounds;
(a) It is argued by the applicant that Mr. Fitzpatrick was in effect a witness, the prosecutor, the investigator and judge.
(b) Because he received the initial complaint, Mr. Fitzpatrick should not have investigated.
(c) Mr. Fitzpatrick’s failure to disclose the Minister’s complaint.
(d) His refusal to furnish the full statements showed bias.
(e) He made conflicting statements about Capt. Kelly’s co-operation.
(f) The appeal board did not uphold the recommendation in relation to the two pollution issues.
(a) and (b) are, in my view, unstateable. Mr. Fitzpatrick’s participation in this disciplinary process was exactly as mandated in the agreed procedure of Circular 1192. These procedures are not challenged in this judicial review and thus these two grounds fail.
(c) – I have already dealt with this matter above. The non-disclosure cannot be considered as concealment. The Minister’s complaint was unrelated to the decision to investigate nor did it cause any new allegations to be investigated.
(d)-I have also dealt with this above at 6.14. Mr. Fitzpatrick was prepared to release the statements in unredacted form upon conditions that appear reasonable. The applicant’s failure following their unconditional release to him to engage with the contents of the statements confirms the view of Mr.Fitzpatrick that the redacted sections were of no relevance to the disciplinary process. This original decision thus was vindicated and cannot give rise to any reasonable apprehension of bias.
(e) – Making conflicting statements about the applicant.
The height of this complaint is that in his letter of February 2007, the investigating officer made no reference to the evasiveness of the applicant as he did in his September 2008 report. I do not see how this fact could support a claim of bias against Mr. Fitzpatrick. His February 2007 letter was written in the course of an ongoing investigation. Mr. Fitzpatrick had changed positions and would likely not continue in the role of investigating officer. In the event, he did in fact carry on his investigation. The fact he had changed his mind about the applicant’s conduct during the investigation does not of itself give grounds to suggest he was biased and this ground too must fail.
(f) – The fact that the appeal board did not uphold his recommendation of dismissal in relation to the two pollution issues also does not, in my view, support a claim of bias against Mr. Fitzpatrick. It should be noted from its decision at page 5, the appeal board took a serious view of the applicant’s conduct in those two incidents. It regarded his actions in both cases as “constituting inappropriate behaviour, irregularity and misconduct, warranting disciplinary action”. The fact they decided not to support a sanction of dismissal in respect of these two incidents does not support a claim of bias against the investigating officer any more than it would in any case where the board exercised its power to reduce the sanction.
6.17 Incorrect procedure – continuing Mr. Fitzpatrick as investigating officer and re-opening of the investigation 2006;
The involvement of the Minister has already been dealt with as has the issue of Mr. Fitzpatrick being witness, prosecutor, judge and appeal court.
I can find no way in which the procedure was incorrect in this case. It appears to have followed exactly the procedure laid down in Circular 1192. The continuation of Mr. Fitzpatrick’s involvement by the Secretary General of the Department of Communications/Marine and Natural Resources was done in accordance with the provisions of s. 4(i) (I) of the Public Service Management Act 1997 whereby the Secretary General of a Department may assign responsibility for performance of his functions to other officers in order to ensure coherence of policy across the Department. As to the claim that the investigation was “re-opened” in 2006, this claim does not seem sustainable. The investigation was not closed at any time. It certainly was inordinately delayed, but no evidence was opened to convince the Court that it was ever closed. Quite the opposite appears to be the case. On 4th August, 2005 the personnel officer produced a report on the completion of the investigative stage of the disciplinary process. This report included provisional conclusions and findings. Following on that report there was a submission of further correspondence by the applicant. This in tum seemed to necessitate some further investigation by the personnel officer. Paragraph 3(1) of Circular 1/92 provides;
“The personnel officer shall cause an investigation or such further investigation as he considers necessary to be held to ascertain the facts of the case.”
This is what occurred. Following on the 2006 report, the process continued to a formal disciplinary hearing to allow the applicant respond to this second report. The provisions of the agreed disciplinary code contained in circular 1/92 appears to me to have been correctly followed.
6.18. For the reasons above it appears to me that the applicant has failed to sustain his case for the reliefs sought and they are therefore refused.”
O’Sullivan v. Mercy Hospital Cork Ltd.
[2005] IEHC 170
Clarke J.
“In this application the plaintiff seeks a variety of interlocutory orders designed to restrain the defendants from progressing, in a manner which she contends is unlawful, with enquires and procedures relating to her employment.
Despite the lengthy affidavits filed by both sides the facts that are material to the issues as
Failure to comply with procedures
The third issue concerns the plaintiff’s contention that it is clear that the defendant hospital does not intend to comply with the procedures set out in the various codes of practice which, it is common case, bind the conduct of disciplinary proceedings relating to harassment or bullying in the defendant hospital. However it seems to me that in the light of the position adopted by the hospital in the replying submissions of their counsel before me that issue no longer arises. It has been made clear that the enquiry which it is intended Ms. O’Brien should carry out is not an enquiry which forms part of either the informal or formal processes described in the various codes of practice. It is, it is now made clear, an enquiry which is intended to inform the minds of the hospital as to whether it should initiate the procedures set out in the codes by the making of a formal complaint against the plaintiff.
Again in fairness to the plaintiff it does not seem to me that that position was at all clear from the papers which had been filed in advance of the hearing. What was clear was that the plaintiff believed that the investigation was one to which the “Dignity at Work Policy for the Health Service” applied and she complains at para. 47 of her grounding affidavit that in certain respects the procedures required by that policy for the investigation of bullying complaints were not being complied with. There does not seem to be anything in the replying affidavits which sets out in an unequivocal way a clear statement to the effect that the enquiry which it was intended Ms. O’Brien should carry out was not one contemplated as even forming part of the process set out in that policy. However that matter has now been made clear and I must deal with the case as it now is. While acknowledging that this aspect of the case must be dealt with on the basis of what is now said I should note that the submissions of Counsel for the defendant in respect of the terms of reference of the O’Brien Inquiry cannot be taken to alter those terms from the natural meaning of the words contained in the document. Therefore while the position taken by counsel as to the status of the O’Brien Inquiry is decisive as to that status it is at least arguable that his position on the interpretation of the terms of reference is not.
In those circumstances and solely on the basis of the clear statement made by counsel for the defendant at the hearing to the effect that this enquiry does not form part of any disciplinary process (even at a preliminary stage) which might result in a sanction I do not believe that a fair issue has been made out under this heading.
Conclusions on Fair Issue
I am, therefore, satisfied that a fair issue to be tried has been made out to the effect that under the existing terms of reference the proposed enquiry intended to be conducted by Ms. O’Brien is arguably tainted by what, on the basis of the current evidence I must conclude, was a legally flawed enquiry by Mr. Brown.
Damages an Adequate Remedy
I must now consider whether damages would be an adequate remedy. While it is true to state that the plaintiff has claimed damages in these proceedings the jurisprudence in this area is full of cases where the court has taken the view that it should intervene by way of injunctive relief where it can be shown that there are legal flaws in a significant disciplinary process. The mere fact that damages are claimed does not, it seems to me, alter the position that damages would not be an adequate remedy for someone in the position of the plaintiff if her record were to be wrongly sullied as a result of a flawed legal process. In the circumstances I am satisfied that damages would not be an adequate remedy.”
Khan -v- H. S. E.
[2008] IEHC 234
McMahon J.
“What was the Health Service Executive to do?
At several points in his submission, counsel for the defendant asked, rhetorically no doubt, what was the HSE to do in the circumstances? This reflects Ms. Hoey’s appreciation that the problem confronting her was a serious one which had to be addressed with some expediency. Recent experiences in the same health area heightened her awareness of the necessity to confront the issue.
It is not for the court to advise the HSE in circumstances like this but it must be said that whatever the HSE decides to do, it must comply with rules which adhere to fair procedure/standards. The defendants might like it to be otherwise. To those involved in administration, adherence to fair procedure standards may appear cumbersome, irritating and even irksome on some occasions. Undoubtedly, the necessary adherence may slow down the administrators and may not be conducive to efficiency. But that is the way it is. The battle between fair procedures and efficiency has long since been fought and fair procedures have won out. The insistence on fair procedures governs all decision makers in public administration. It governs the courts as well. None of us can ignore the principle. We might wish it were otherwise. We might like to cut through procedural niceties to secure what we perceive as justice in a more expeditious way but unfortunately for decision makers that is no longer an option available to them. It is not sufficient that we justify our decision by alleging that we were focusing on the ultimate objective. It is not sufficient that we were doing our best. It is not sufficient to say that we were motivated by public health and safety objectives. Fair procedures are at the very foundation of all legal systems and all decision makers must observe them whether we like it or not. Fair procedures are necessary for the common good. In relation to suspensions, they apply whenever the criteria articulated by Kearns J. in McNamara apply, as they do in this case.
What does fair procedures mean? At the very minimum it means that the person at whom a charge is levelled has proper notice of the charge; that he has proper opportunity to take legal advice and to prepare for hearing; that no one is to be a judge in their own cause; (nemo judex in causa sua) that both parties are given a full opportunity to be heard (audi alteram partem) and that the judge is free from bias. Moreover, it is clichéd law that not only must these principles be adhered to, but they must be seen to be adhered to. Justice must be seen to be done. Perception is significant and this is vital in the present case. It is unnecessary for me to cite extensively authorities for these well recognised principles and I will content myself with the well known quotation of Finlay C.J. in O’Neill v. Beaumont Hospital Board [1990] I.L.R.M. 419, at 439:-
“In those circumstances, I take the view that applying the test which I have outlined in short terms and which I believe to be the appropriate test in this case, that a person in the position of the plaintiff who is a reasonable man and not either over-sensitive or careless of his own position, would have good grounds for a fear that he would not get in respect of the issues involved, from a body which included the chairman, an independent hearing. I emphasise again, particularly, as the chairman in regard to these matters did not give any oral evidence before the High Court and of course has not been heard by this Court, that that is not a suggestion that he would not be honest or seek to be honest. The test is an objective test as to whether a person in the position of the plaintiff who is a reasonable man might reasonably fear that the pre-judgment expressed by the chairman would prevent a completely fair and independent hearing of the issues which arise.”
Adopting this criterion as the appropriate one for this case, the question that I must ask is would a reasonable person in the position of the plaintiff, Dr. Kahn, reasonably fear that he is not going to get a completely fair and independent hearing of the issues?
In my opinion, this case hinges entirely upon clause 12(c) of the service agreement. The defendants have relied upon this particular clause to justify their summary dismissal of the plaintiff. I agree with Mr. Justice Kenny when he states that, because of the express provisions of this clause, no implied term is to be read into the contract that the plaintiff might be summarily dismissed for misconduct. On the contrary, the clause expressly provides that the plaintiff could not be validly dismissed for misconduct unless it was serious misconduct and was of a kind which, in the unanimous opinion of the board of directors of the holding company present and voting at the meeting, injuriously affected the reputation, business or property of either that company or of the subsidiary companies. The question of whether or not such a contract could be terminated summarily for breach of fundamental condition on the part of the plaintiff was not raised in this case and was not relied upon by the defendants so I do not feel any need to offer any view upon that point. It appears to me quite clear that the operation of clause 12 (c) would necessarily involve (a) the ascertainment of the facts alleged to constitute serious misconduct, (b) the determination”
Glover v. B.L.N. Ltd.
[1973] I.R. 425
Walsh J. Supreme Court
“In my view, it was necessarily an implied term of the contract that this inquiry and determination should be fairly conducted. The arguments and submissions in this Court ranged over a very wide field particularly in the field of constitutional justice: see the judgments of this Court in McDonald v. Bord na gCon 61 and East Donegal Co-operative v. The Attorney General. 62 The Constitution was relied upon; in particular Article 40, s. 3, of the Constitution. This Court in In re Haughey 63 held that that provision of the Constitution was a guarantee of fair procedures. It is not, in my opinion, necessary to discuss the full effect of this Article in the realm of private law or indeed of public law. It is sufficient to say that public policy and the dictates of constitutional justice require that statutes, regulations or agreements setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing for fair procedures. It is unnecessary to decide to what extent the contrary can be provided for by agreement between the parties. In the present case the provisions of clause 12(c) do not seek expressly or by implication to exclude the right of any of the parties to a fair procedure.
The plaintiff was neither told of the charges against him nor was he given any opportunity of dealing with them before the board of directors arrived at its decision to dismiss him. In my view this procedure was a breach of the implied term of the contract that the procedure should be fair, as it cannot be disputed, in the light of so much authority on the point, that failure to allow a person to meet the charges against him and to afford him an adequate opportunity of answering them is a violation of an obligation to proceed fairly.
Having regard to the evidence which was given at the trial, one could not say with any degree of certainty that the members of the board of directors would have come to the same conclusion on the facts as Mr. Justice Kenny did, or that they would have arrived at a unanimity of opinion on the effects of such misconduct as they might have found proved, particularly when one has regard to the close personal relationships which existed between some members of the board and the plaintiff and their knowledge of his activities in the firm since he joined it. But even if one could say with certainty that, if he had been given a fair hearing, the result would still have been the same, in my view that does not offer any ground for validating retroactively a procedure which was clearly invalid. It is to be noted that the board acted with great haste in dismissing the plaintiff, and on a report which did not contain complaints or allegations of misconduct set out with the particularity with which they were set out subsequently in the reply to the plaintiff’s notice for particulars. Furthermore, as was settled by this Court in Carvill v.Irish Industrial Bank Ltd. 64, an employer, in defending an action by an employee for wrongful summary dismissal, cannot rely upon misconduct which was not known by the employer at the time of the dismissal. I would add that the misconduct, if known but not in fact used as a ground for dismissal at the time, cannot be relied upon afterwards in an effort to justify the dismissal.
For the reasons I have already stated, I am of opinion that the plaintiff was wrongfully dismissed in that the dismissal was a violation of the provisions of clause 12(c) of the service agreement because of the failure to inform him of the charges against him and the failure to give him an adequate opportunity of answering them.
I am conscious of the fact that Mr. Justice Kenny’s conclusion that the defendants had acted in breach of the contract is based on somewhat different grounds and, therefore, I should deal with Mr. Justice Kenny’s reasons. He placed great reliance upon the speech of Lord Reid in Ridge v. Baldwin 65 and quoted with apparent approval the passage at p. 65 of the report in which Lord Reid said:””The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract.” This particular point does not arise for decision in this case but I wish to expressly reserve my opinion on the correctness of this statement if it is intended to convey that a court cannot make a declaration which would have the effect of reinstating a person wrongfully dismissed. I do not think that the decision in Ridge v. Baldwin 66 is directly applicable to the present case. In that case the appellant was a Chief Constable and by a statutory provision the watch committee had power to suspend or dismiss him when they thought him negligent in the discharge of his duty or otherwise unfit for the same. The Chief Constable was not the servant of the watch committee, or of any one else, and he was the holder of an office from which he could be only dismissed in accordance with statutory provisions. It was held that the power of dismissal of this officer, contained in the Municipal Corporations Act, 1882, could not have been exercised until the watch committee had informed the officer of the grounds on which they proposed to proceed and had given him a proper opportunity to present his case in defence. It was a prerequisite that the question of neglect of duty should be considered in a judicial spirit and that could not be done without giving the officer in question the opportunity to defend himself against such a charge, and he would therefore have to be told what was the alleged neglect of duty. As that had not been done the decision was a nullity.
Unlike the present case, Ridge v. Baldwin 66 was not governed by the terms of a contract. In my view, once the matter is governed by the terms of a contract between the parties, it is immaterial whether the employee concerned is deemed to be a servant or an officer in so far as the distinction may be of relevance depending on whether the contract is a contract for services or a contract of service. In the present case it is immaterial whether the plaintiff is an officer or a servant of his employers and, in my view, the case does not fall to be decided upon that distinction but rather upon the actual terms of the contract for the reasons I have already given.
Mr. Justice Kenny attached importance to the fact that the plaintiff’s position with any of the four companies involved could be terminated by the directors of one of them (namely, the holding company) and that this was a characteristic which equated his position to that of an officer. This particular position was the result of a contract between the parties, including the plaintiff, and clause 12(c) of the service agreement gave the directors of the holding company the final decision in whether or not he should be dismissed. I agree with Mr. Justice Kenny in so far as he says that this situation strengthened the plaintiff’s position in his claim to have a fair hearing, but it leads me to the conclusion that this right was an implied term of the contract by reason of the particular machinery set up by clause 12(c) and, therefore, it is not necessary to examine what might have been the plaintiff’s position if such a machinery had not been provided. The relationship between the plaintiff and the defendants was a contractual one in so far as this particular matter is concerned.
Even if there had not been a pre-existing contractual relationship and the plaintiff had been invited to attend such an inquiry, it is probably correct to say, as Harman J. held in Byrne v. Kinematograph Renters Society 67, that a contract between the plaintiff and the defendants that the inquiry would be fairly conducted could be implied. It never appears to have been doubted in cases decided in England that, if the basis of the jurisdiction to conduct such an inquiry was based on statute or on the agreement of the parties, public policy prevents the exclusion of the rules of what in England is called natural justice where they ought to be observed. It is unnecessary in this case to enter into an examination of the other aspects of this problem which have engaged English courts, namely, whether the obligation to observe the rules of natural justice can be relied upon in a case where the relationship between the parties is not founded either on statute or on contract.
Lastly, I come to deal with the defendants’ contention that, if a hearing had been given to the plaintiff, there was nothing he could usefully have said and the result would have been the same. I think this proposition only has to be stated to be rejected. The obligation to give a fair hearing to the guilty is just as great as the obligation to give a fair hearing to the innocent. Furthermore, in this case, by reason of the provisions of clause 12(c), it would not be simply a case of establishing guilt or innocence, because the most important and effective power of the board of the holding company was one which was mainly a discretionary power, namely, to form the opinion or not that the plaintiff’s misconduct injured any of the four companies.
For the reasons I have already given, I am of opinion that the defendants’ appeal on all the matters set out in para. (1) of the said notice of appeal68 should be dismissed. This appeal, which took the form of an appeal confined in the first instance to the issues set out in the said paragraph of the notice of appeal, was heard pursuant to the order of this Court of the 13th March, 1970, which gave liberty to the parties to have the appeal on these issues heard in the first instance. Summarised briefly, the issues set out in para. (1) of the notice of appeal were whether the plaintiff was entitled to receive notice of the charges against him and to be given an opportunity to reply to the same, by virtue of clause 12(c) of the service agreement, before he could be dismissed; and whether he was entitled to damages for wrongful dismissal when he did not receive such notice before his dismissal. I am expressing no view on what damages the plaintiff should receive, or on what basis they should be calculated, as that aspect of the appeal has not yet been heard.”
M v. Trinity College Dublin & Ors
[2003] IEHC 167
Mr. Justice Kearns
“Suspension: Legal considerations
The power of suspension is expressly provided for in the college disciplinary procedure and the entitlement to suspend per se is thus not in issue. Whether, however, a suspension amounts to a sanction such as would invoke concepts of natural justice or give rise to an inference that the person concerned had been found guilty of significant misconduct is, in every case, a question of fact and degree.
A suspension may have different consequences and implications by reference to the particular occupation of the person affected. For example, a professional footballer might not regard a suspension, even a lengthy one, as being particularly detrimental or damaging to career or reputation. On the other hand, an allegation of misconduct against a senior medical consultant, or, as in the instant case, a senior academic and lecturer, may well be a more serious matter. It is a simple fact of life that suspension for a person in one of the latter categories may be seen as altogether more damaging. At the opposite end of the spectrum, the Supreme Court found in Murtagh v Board of Management of St Emer’s National School [1991] 1 I.R. 482 that the three-day suspension of a pupil either by the principal or by the board of management of a school did not amount to an adjudication on or determination of any rights, or the imposition of any liability.
Equally, the court will have to consider the manner and nature of the suspension. If the suspension is without pay and open-ended, it has obviously far more detrimental effects from the point of view of the person suspended and may more readily be seen as a punishment. Disciplinary procedures may also be found wanting if the person who is about to be suspended has not been fully informed as to the complaint against him and given an opportunity to respond to any proposed suspension. In the case of a second suspension, which is the situation contended for on behalf of the plaintiff in the instant case, the detrimental effects can only be seen as more marked, because a suspension is more often than not likely to lead inexorably to the possibility of termination of employment, a factor I deemed to be of some importance in McNamara v South Western Area Health Board [2002] E.L.R. 317.
In Quirke v Bord Luthchleas na hÉireann [1980] I.R. 83 Barr J. emphasised the distinction between two types of suspension, punitive and holding, when stating as follows (at p.87):
“The suspension of a member by a body such as BLÉ or a trade union or professional association may take two different forms. On the one hand, it may be imposed as a holding operation, pending the investigation of the complaint. Such a suspension does not imply that there has been a finding of any misbehaviour or breach of rules by the suspended person, but merely that an allegation of some such impropriety or misconduct has been made against the member in question. On the other hand, a suspension may be imposed not as a holding operation pending the outcome of an inquiry, but as a penalty by way of punishment of a member who has been found guilty of misconduct or breach of rules. The importance of the distinction is that where a suspension is imposed by way of punishment, it follows that the body in question has found its member guilty of significant misconduct or breach of rules.”
It follows obviously that where suspension constitutes a disciplinary sanction, the person affected should be afforded natural justice and fair procedures before the decision to suspend him or her is taken. However, where a person is suspended so that an enquiry can be undertaken as to whether disciplinary action should be taken against the person concerned, the rules of natural justice may not apply.
These were the findings of the Supreme Court in Deegan v Minister for Finance [2000] E.L.R. 190, in which Keane C.J. stated as follows (at p.198):
“It is clear that the suspension of a person from their employment for a specified period because of irregularities or misconduct on his or her part can constitute a form of disciplinary action which would entitle the person affected to be afforded natural justice or fair procedures before the decision to suspend him or her is taken. The consequences of such suspension can be extremely serious for the person concerned, involving not merely their right to earn a livelihood but also their right to have their good name protected. In John v Rees [1969] 2 All E.R. 274 at 305, Magarry J., in a passage cited by the learned High Court judge said—
“… in essence a suspension is merely expulsion pro tanto. Each is penal, and each deprives the member concerned of the enjoyment of his rights of membership or office. Accordingly, in my judgment the rules of natural justice prima facie apply to any process of suspension in the same way that they apply to expulsion.’
However, that was not a case in which the suspension was being imposed so that an inquiry could be undertaken as to whether disciplinary action should be taken against the person concerned and, if so, the nature of such a sanction.
That distinction was emphasised by Lord Denning M.R. in Lewis v Heffer [1978] 3 All E.R. 354 a decision to which the attention of the learned High Court judge does not appear to have been drawn. Having cited the passage from the judgment of Magarry J., Lord Denning went on at p.364—
‘These words apply, no doubt, to suspensions which are inflicted by way of punishment, as for instance when a member of the Bar is suspended from practice for six months, or when a solicitor is suspended from practice. But they do not apply to suspensions which are made, as a holding operation, pending enquiries. Very often irregularities are disclosed in a government department or in a business house; and a man may be suspended on full pay pending enquiries. Suspicion may rest on him; and so he is suspended until he is cleared of it. No one, so far as I know, has ever questioned such a suspension on the ground that it could not be done unless he is given notice of the charge and an opportunity of defending himself and so forth. The suspension in such a case is merely done by way of good administration. A situation has arisen in which something must be done at once. The work of the department or the office is being affected by rumours and suspicions. The others will not trust the man. In order to get back to proper work; the man is suspended. At that stage the rules of natural justice do not apply: see Furnell v Whangarie High Schools Board [1973] 1 All E.R. 400′.”
Obviously a person who is being suspended must be informed of the reason for his suspension (Flynn v An Post [1987] I.R. 68). Flynn is also an authority for the proposition that a power of suspension must be construed as permitting a suspension to continue only for the period of time during which it would not be reasonably practicable to hold a full hearing into the matter. An open-ended suspension, particularly one without pay, can only be seen as a form of punishment, and a severe one at that. In contrast, a short period of suspension with pay against a clearly defined backdrop of consecutive steps to resolve the disciplinary issue is less likely to warrant the court’s intervention on the basis that the procedures, or their application, is unfair to the person concerned.
The plaintiff in the instant case complains that his suspension, is both unfair and prejudicial. In this context, “prejudicial” may be taken to include both the plaintiff’s reputation and standing in the college community and also, and perhaps more importantly from the point of view of this application, his right to a fair hearing. It is an inescapable fact that the plaintiff coming before the disciplinary panel will carry with him the taint or degree of prejudice which inevitably arises from the fact that he has been charged and that the senior dean believes that the procedure is justified. However, it seems to me that the inevitable consequence of any suggestion that an employee who has been suspended is thereby, and without more, irredeemably prejudiced, and ipso facto cannot then get of a fair hearing, would mean that there could never be a holding suspension as one of the steps in a disciplinary process. That in turn would mean that an employer, possibly faced with a situation where work colleagues are the complainants in a given case, would have to suffer the prejudice instead. There could then be no action the employer could take, short of ignoring complaints of a serious nature or proceeding at once to the termination stage with all the risks and liabilities that might attach thereto.
In Furnell v Whangarie High School Board [1973] A.C. 660, Lord Morris of Borth-y-Gest stated (at p.679):
“It has often being pointed out that the conceptions which are indicated when natural justice is invoked or referred to are not comprised within and are not to be confined within certain hard and fast and rigid rules: see the speeches in Wiseman v Borneman [1971] A.C. 297. Natural justice is but fairness writ large and juridically. It has been described as ‘fair play in action’. Nor is it a leaven to be associated only with judicial or quasijudicial occasions.”
Bearing in mind therefore that fairness in action is the court’s guiding principle, the essential questions seem to me to be as follows.
Were the defendants’ disciplinary procedures applied fairly having regard to:
(i) the suspension and the manner of its imposition?
(ii) the delay, either in the preparation of the Senior Dean’s report, or between its delivery in October 2002 and the scheduled hearing by the disciplinary panel in December 2002?
(iii) the possibility of prejudice to the plaintiff in any hearing before the disciplinary panel arising from the investigation or findings of the senior dean in his report?”
Heneghan v The Western Regional Fisheries Board
Carroll J 26 April 1985
The plaintiff had worked as an inspector with the Ballinakill Board of Conservators from 1 April 1971. He was given additional responsibilities with the Connemara Board of Conservators in 1972. These Boards were dissolved under the Fisheries Act, 1980 and the plaintiff was transferred to the employment of the defendants. Under section 30 of the Fisheries Act it was provided that he and all other officers should not receive less remuneration or enjoy less beneficial conditions of service than those enjoyed previously.
In the event a dispute over salary ensued. The Board claimed that the plaintiff’s appointment in the Connemara position was part-time only and he was paid only the salary relating to his position in Ballinakill. During the course of this dispute the plaintiff requested and received a written statement of his terms of employment as provided under the Minimum Notice and Terms of Employment Act, 1973 . The relevant portion of the terms were as follows:
Employment will be terminated without notice because of misconduct. Notification of the reasons for proposed dismissal shall be conveyed to the officer who will be given the opportunity to state his case. Except in the case of gross misconduct warranting instant dismissal, no dismissal shall be effected until a full investigation has been carried out by the Board. The officer may be suspended without pay pending such investigations. The officer may appeal against a decision to dismiss him provided the Board and officer agree independent arbitration may be sought in the case of a dispute.
The acting Regional Manager of the Board, Mr Kennedy, had a number of meetings with the plaintiff. These were attended by a trade union official and a shop steward representing the plaintiff. During the first meeting a difference of opinion between the plaintiff and Mr Kennedy arose. The plaintiff was subsequently suspended for two weeks without pay. The principal reason for suspension was his conduct at the meeting. The union sought to have the matter investigated by a Rights Commissioner and following objections from Mr Kennedy the matter was referred to the Labour Court. Prior to this the Board had asked the plaintiff to resume work after the suspension and warned that if any further difficulties arose over his conduct, he would be dismissed.
A Labour Court hearing was scheduled for 18 December. However, before the hearing took place Mr Kennedy wrote to the plaintiff saying that since his suspension his level of performance and conduct remained unsatisfactory. Six specific complaints were referred to. The most important of these was that the plaintiff had sought to frustrate and undermine the position of the action Regional Manager. The letter was written by Mr Kennedy and gave notice of intention to dismiss. The plaintiff was given seven days to make representations.
The plaintiff and his union representatives met Mr Kennedy on two subsequent occasions. Mr Kennedy rejected the representations made. The decision to dismiss was confirmed on 13 December and Mr Kennedy refused to allow an appeal.
The High Court rejected the defendant’s arguments. It considered that in the context of employer/employee relations deployment and control meant “that the person in authority may tell the employee where he is to work and how the work is to be carried out as distinct from an independent contractor who is not subject to control in the manner in which the work is carried out.’
In examining the contract the Court noted that it had to be construed in favour of the plaintiff and ‘contra proferentes’ thus it took the view that the Board had to investigate the case and its failure to do so was a breach of contract which rendered Mr Kennedy’s decision void.
Lack of Natural Justice
The court noted that Mr Kennedy was the prosecutor in the dismissal. ‘It was at his instance related to the behaviour of the plaintiff to him personally that he sought to dismiss him. He was also himself in the position of gathering evidence. He heard representations and then acted as judge on the allegations which he himself made and he then decided to dismiss.’ It was pointed out that the plaintiff was an office-holder and that he was entitled to natural justice in regard to any suspension or dismissal.
The court concluded that the principle nemo iudex in causa sua had been breached and that the procedure was ‘highly objectionable.’ In this regard the court referred to the ‘much milder’ case of O’Donoghue v The Veterinary Council [1975] IR 398 where a Council member who voted to suspend a veterinary surgeon had allowed his name to be used in the inquiry preceding the resolution to suspend, but otherwise took no part, and it was held that the decision was void. It was not deemed necessary to consider the third point of appeal.
Cahill -v- DCU
[2009] IESC 80
Geoghegan J.
“Section 25(3) of the Universities Act, 1997 provides as follows:-
“Except as otherwise provided by this section, the employees of a university shall be employed on such terms and conditions as the university from time to time determines”.
As I have already indicated, subsection (6) of that section qualifies the complete freedom of the university to impose its own terms and conditions.
The respondent was appointed to his post with the appellant by a letter of appointment of the 24th July, 2001. That letter contained (inter alia) the following sentence:
“The main terms and conditions of your employment are set out in the attached Statement of Terms and Conditions of Employment which is given to you for record purposes and in compliance with the Terms of Employment Information Act, 1994.”
Paragraph 14 of that Statement of Terms and Conditions of Employment contains the following provisions:-
“14.1 Your contract of employment will be terminable by yourself on giving the university not less than one academic term’s notice in writing, and by the university on giving you the higher of
14.1.1 Three month’s notice; or
14.1.2 One week’s written notice for each complete year of service up to a maximum of twelve week’s written notice.
14.2 The university reserves the right to terminate your contract without notice if it has reasonable grounds to believe you are guilty of gross conduct or gross negligence.”
The rest of the paragraph is not relevant. Section 33 of the Universities Act, 1997 empowers the university to make statutes and regulations “as it considers appropriate to regulate the affairs of the university” .In pursuance of this power, the governing authority of the appellant made Statute No. 3 of 2001 which is headed “Suspension and Dismissal of Employees”. Paragraph 1 of this statute provides that it shall apply “to all employees and officers of the university.” The same paragraph contains the following provision:-
“The procedures set out in this statute shall not apply to dismissals by reason of a redundancy which may be effected by decision of the President of the University following consultation through normal industrial relations structures operating in the university with recognised staff associations or trade unions, as appropriate.”
It is implicit in that provision that the procedures “set out in this statute” are to apply to all other kinds of dismissal. The procedures that are specified in the statute for the most part relate to allegations of misconduct and they cannot be expressly construed as applying to the facts of this case. But it seems clear both from the Act and the statute and at any rate from the fact that the appellant was clearly an officer of the university, that an obligation to afford him fair procedures before dismissal must be implied. The fair procedure that was required here was a warning that a notice of termination would follow if within a specified reasonable period the appellant did not clarify his position as to whether or when he was leaving the university. That was not done. That failure is sufficient to determine the case in favour of the respondent but it must be said that his position is less than fully meritorious.
Not only did time elapse between the purported termination and the hearing in the High Court but almost three further years have elapsed since the High Court hearing. In accordance with well established principles neither the High Court nor this court can permit an injunction to be made against the appellant which is wholly impracticable or cannot properly be supervised by the court. In my view, the appeal should be dismissed but no final decision should be made as to the form of order without a further hearing preceded by written submissions from both parties as to the form of order and any relief to be granted.
There is one other matter which I should mention. I have not thought it necessary to refer to case law. As in so many employment cases, previous court decisions are not of much assistance. I say this with particular regard to Fanning v. UCC [2008] IESC 59 (28th October, 2008) unreported judgment of the Supreme Court (the High Court judgment by Gilligan J. having been referred to in this case) and R v. Hull University Visitor [1991] 1 WLR 1277. Neither of these cases seem to me to be directly in point.”
Delaney -v- Central Bank of Ireland
[2011] IEHC 212
Laffoy J.
“7.4 Thirdly, counsel for the plaintiff relied on a number of relatively recent Irish authorities in which the suspension of an employee was successfully challenged, for example, O’Donoghue v. South Eastern Health Board [2005] 4 IR 217. While those authorities are of relevance insofar as they address the type of issue which arises on the plaintiff’s impugning of the process conducted to determine his fitness for duty in this case, apart from that they are not relevant. Although counsel for the plaintiff occasionally characterised the position in which he finds himself as being tantamount to suspension, as counsel for the Bank pointed out, the plaintiff is and continues to be the lawful incumbent of the position to which he was appointed in the Bank. His current position is that he is on sick leave and he is being remunerated by reference to the pension rate of pay in accordance with the terms of his contract of employment.
7.5 The rights which the plaintiff invokes in this case are primarily his contractual rights, express or implied. Essentially, as I understand the basis on which it is contended on his behalf that the Court should grant the limited relief which is now being pursued, it involves the following two propositions:
(a) that as a matter of contract, the Bank had no authority to require the plaintiff to attend a psychiatrist, as it purported to do in its solicitors’ letter of 17th October, 2007; and
(b) that as a matter of contract, the plaintiff was entitled to have the process to determine his fitness for duty conducted in accordance with fair procedures but, in breach of his contractual entitlements, this did not occur and, accordingly, the decision that he was not fit to return to work communicated in the letter of 7th July, 2008 cannot stand.
7.6 I propose addressing each of those propositions separately.
…..
9. Fair procedures
9.1 As the starting point for his argument that the process on the basis of which the Bank decided that the plaintiff was not fit for work breached fair procedures, counsel for the plaintiff relied on the following oft quoted passage from the judgment of Walsh J. in the Supreme Court in Glover v. B.L.N. Ltd. [1973] I.R. 388 (at p. 425) in which he stated:
“The Constitution was relied upon; in particular Article 40, s. 3, of the Constitution. This Court in In re Haughey held that that provision of the Constitution was a guarantee of fair procedures. It is not, in my opinion, necessary to discuss the full effect of this Article in the realm of private law or indeed of public law. It is sufficient to say that public policy and the dictates of constitutional justice require that statutes, regulations or agreements setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing for fair procedures.”
I have no doubt that the decision made by the Bank and communicated to the plaintiff in the letter of 7th July, 2008 was a decision which affected the rights of the plaintiff and the process which led to that decision and, in particular, the formation of his opinion by Dr. Mohan on which the Bank relied required to be conducted in accordance with fair procedures.
9.2 It is the plaintiff’s case that the process which led to that opinion infringed the two common law principles of natural justice: audi alteram partem and nemo iudex in causa sua. Two other Irish authorities were cited by counsel for the plaintiff in support of his contention that fair procedures had not been observed: Rock v. Civil Service Commission (Unreported, High Court, Murphy J., 27th March, 1990); and Ahern v.Minister for Industry and Commerce (No. 2) [1991] 1 I.R. 462. …………
9.3 Finally, counsel for the plaintiff relied on the decision of the Court of Appeal in the United Kingdom in R. v. Kent Police, Ex p. Godden [1971] 2 QB 662, where the Court of Appeal held that a medical practitioner giving a decision as to whether a person was permanently disabled under a provision of the Police Pensions Regulations 1971 was performing a quasi-judicial function and under a duty to act fairly.
…….9.5 Having considered the authorities, I am satisfied that the plaintiff has established that the process which led to the decision communicated in the letter of 7th July, 2008 was not conducted in accordance with fair procedures and infringed the two basic tenets of natural justice.
9.6 First, the request by the Bank’s solicitors in their letter of 20th March, 2008 that the plaintiff attend a second interview with Dr. Mohan did not remedy the inchoate breach of fair procedures inherent in the Bank’s conduct prior to that date by reason of –
(a) the furnishing by the Bank of the documentation which accompanied their solicitors’ letter of 17th December, 2007 to Dr. Mohan without apprising the plaintiff or his solicitors that such documentation had been furnished,
(b) the refusal of the Bank to furnish to the plaintiff that material when it was sought by the plaintiff’s solicitors in their letter of 30th January, 2008, and
(c) the assertion by the Bank’s solicitors that the material in question was “subject to legal professional privilege”, which, in the context of the purpose for which Dr. Mohan had been retained by the Bank through its solicitors, could not have given rise to such privilege, but which demonstrates a mindset on the part of the Bank and its solicitors in relation to the process which had been set in train.
10.2 However, the process which was conducted after the referral and which resulted in Dr. Mohan’s report and, ultimately, in the Bank’sdecision not to allow the plaintiff to return to work was not conducted in accordance with the plaintiff’s entitlement to fair procedures and, accordingly, there will be a declaration in the terms sought by the plaintiff, namely, that that decision was arrived at in breach of the plaintiff’s right to fair procedures and is null and void.
10.3 Counsel for the plaintiff submitted (Transcript, Day 4, 31st March, 2011, p. 111) that, if the Court were to hold that the decision was null and void, it would have an obvious effect, namely, that the plaintiff should be restored to the Bank’s payroll and that the arrears of salary due to him should be discharged. That submission was not really addressed and I will hear the parties further on it and on the precise form of order to be made.”
Lyons -v- Longford Westmeath Education and Training Board
[2017] IEHC 272 Eagar J.
1. On the 9th September, 2016 Baker J. gave leave to the applicant to apply for judicial review and granted an order that the proceedings be stayed until the determination of the application for judicial review.
Facts
2. In May, 2015 the applicant was notified that a complaint of bullying had been made against him by his colleague, a teacher called Ms. Michelle Spence. This complaint cited a number of alleged incidents, some of which dated back to 2008. Notwithstanding the fact that the applicant’s principal had been aware of the 2008 allegations for some years, the applicant first learned of their existence in 2015.
3. An investigation into the complaint was launched in accordance with the “Bullying Prevention Policy – Complaint Procedure for Education Training Board Staff”. This procedure is specifically described as an industrial relations procedure and is not a legal procedure.
4. The respondent engaged a private limited company called Graphite Recruitment HRM Limited to carry out the investigation. The applicant was asked by the two investigators to submit his written response, to attend various meetings and interviews, with which he duly complied. On or about the 4th April, 2016 the applicant was furnished with a copy of the report of Graphite Recruitment HRM dated 24th March, 2016. As was apparent from the report, the two investigators of Graphite Recruitment HRM Ltd. had “upheld” the allegations of bullying against the applicant insofar as it related to four specific instances (only) alleged to have occurred between January and April 2015 as follows:
(i) the applicant’s alleged failure to include Ms. Spence’s in the transition year Art Plan in January, 2015;
(ii) the applicant’s failure to “acknowledge” Ms. Spence at a staff meeting in April, 2015;
(iii) the applicant’s alleged failure to include Ms. Spence in a community arts project in April/May 2015; and
(iv) a dispute between the applicant and the respondent in relation to the use of a camera for school photographs from September 2014 to June 2015.
None of the other allegations were upheld. At no stage was the applicant permitted to cross-examine his accuser.
5. On the 21st April, 2016 the applicant received a letter from the respondent dated the 20th April, 2016 advising that the report of Graphite Recruitment HRM Ltd. was to be adopted by the respondent. The applicant was advised that he had fifteen working days to make a limited appeal to the decision. He appealed but his appeal was rejected.
6. By letter dated 30th August, 2016 written by the Chief Executive of Longford Westmeath Education and Training Board, Christy Duffy, the applicant was advised that as his appeal had not been upheld that the investigation report “stands” together with the “findings” against him. The applicant was advised as follows: –
“Bullying behaviour in an ETB workplace is unacceptable misconduct which properly falls to be addressed under the appropriate provisions of Circular Letter 71/2014 Disciplinary Procedures for Teachers Employed in Education and Training Boards. (herein “ETB”)
In the light of findings/conclusions of the investigation report (copy enclosed) you are required to attend a Stage 4 Disciplinary Meeting to be convened for the purpose of determining the disciplinary action if any, which may arise from the finding of the investigation referred to above.”
The applicant was further advised that the meeting was scheduled to take place at 11:00am on Thursday the 15th September, 2016.
7. It was within this context that the applicant applied ex parte by way of application seeking a number of reliefs as set out below, to be presented before Baker J. on the 9th September, 2016.
Submissions on behalf of the Applicant
8. Counsel for the applicant indicated that the applicant was the Deputy Principal at Lanesboro Community College and that in or about May 2015 the applicant was notified that a complaint of bullying had been made against him by his colleague, a teacher called Michelle Spence. This complaint cited a number of alleged instances, some of which dated back to 2008. The applicant first learned of their existence in 2015. Notwithstanding this, the applicant’s principal had been aware of the 2008 allegations for some years.
9. An investigation into the complaint was launched in accordance with the ‘Bullying Prevention Policy – Complaint Procedure for ETB Staff’ dated the 1st September, 2013. This procedure does not have any status under the Education Act 1998 (as amended by section 6 of the Education (Amendment) Act 2012) as it is not a disciplinary procedure and does not afford the subject of any investigation the safeguards provided for in Circular 71/2014. It is specifically described as an ‘Industrial Relations Procedure’ and not a legal procedure. Section 1.1 states:-
“Agreed procedure is an industrial relations procedure and not a legal procedure. It will be conducted within the norms of industrial relations custom, practice and procedure and as such is not a judicial process. In circumstances where legal action is evoked, the policy will be suspended and the operation of law will take precedence.” (this Court’s emphasis).
10. The respondent engaged a private limited company called Graphite Recruitment HRM Ltd. to carry out the “investigation”.
11. The applicant was asked by members of staff of Graphite Recruitment HRM Ltd. to submit his written response by the 21st May, 2015. He complied with this request. He was also requested to attend various meetings and interviews and he duly complied. The procedures designed and adopted by Graphite Recruitment HRM Ltd. did not permit the applicant to confront his accuser or challenge by way of cross examination the allegations against him. According to the agreed policy document it was expected that this investigation would take five to six weeks. The process eventually concluded on the 4th March, 2016 having been in existence for forty-three weeks (this Court’s emphasis).
12. On or about 4th April, 2016 the applicant was furnished with a copy of the report of Graphite Recruitment HRM Ltd. dated 24th March, 2016. As was apparent from the report, the two employees of Graphite Recruitment HRM Ltd. had “upheld” the allegations of bullying against the applicant insofar as it related to four specific instances alleged to have occurred between January and April 2015. None of the other allegations were upheld. On the 21st April, 2016 the applicant received a letter from the respondent dated 20th April, 2016 advising that the report of Graphite Recruitment HRM Ltd. was to be adopted by the respondent. Such “adoption” has no and can have no legal implications for the processes provided in Circular 71 of 2014. The applicant was advised that he had fifteen working days to take a limited procedural appeal to the decision and his appeal was rejected.
13. By letter dated 30th August, 2016 from the Chief Executive of Longford Westmeath Education and Training Board, Mr. Christy Duffy, the applicant was advised that as his appeal had not been upheld and that the investigation report “stands” together with the “findings” against him. As set out above, the applicant was required to attend a “Stage 4 Disciplinary meeting”.
This was the first indication of any disciplinary process.
14. By letter dated 31st August, 2016 the applicant’s solicitors wrote objecting to the course of action proposed and followed this letter with a further letter of the 2nd September, 2016 outlining the detailed basis for the applicant’s objections to the respondents proposed course of action. The applicant requested assurances that any steps that the respondent proposed to take in respect of the as yet unspecified allegations against him would be taken entirely in accordance with Circular 71/2014 and by letter dated the 6th September, 2016 the respondent solicitor responded that the applicant concerns were unfounded and that the disciplinary meeting would proceed.
Legislation
15. By virtue of the provisions of the Vocational Educational Act 1930, the respondents’ predecessor in title was established to perform the functions conferred on it by the Act.
16. By virtue of the Education and Training Boards Act 2013 the existing Vocational Educational Committees were dissolved and replaced by a number of ETB’s including the respondent.
17. Section 24 of the Education Act 1998 as amended by s. 6 of the Education (Amendment) Act 2012 provided:-
(11) The board of a recognised school may, in accordance with procedures determined from time to time by the Minister following consultation with bodies representative of patrons, recognised school management organisations and with recognised trade unions and staff associations representing teachers or other staff as appropriate, appoint, suspend or dismiss any or all of the principal, teachers and other staff of a school, who are remunerated or who are to be remunerated out of monies provided by the Oireachtas.”
(12) Where the employer of the principal, teachers and other staff of a recognised school is a person other than the board of the school concerned, a reference in this section to a board shall be construed and have effect as if the said person were substituted for the said reference wherever it occurs.
(13) In applying subsection (11) to the principal, a teacher or other member of staff of a recognised school which is established or maintained by a vocational education committee, the board of the recognised school concerned shall comply with the provisions of the Vocational Education Committee Acts 1930 to 2006 in relation to suspension and dismissal.”
18. Counsel submitted that the respondent is required to carry out its functions in accordance with the provisions of Education Act 1998 as amended that “procedures determined from time to time by the Minister” and the requirements of natural and constitutional justice and fair procedures. In particular, the respondent is bound to invoke any disciplinary process against a teacher strictly in accordance with the procedures set out in Circular 71 of 2014, which has been issued by the Minister in accordance with the above provisions of the Education Act 1998 as amended. The applicant submitted that separately, outside the scope of s. 24 of the Education Act 1998 as amended and without departmental approval or sanction, the respondent has adopted a “non-legal” industrial relations procedure – a bullying prevention policy or complaint procedure for ETB staff. The document in question or the processes outlined therein do not constitute substitution for the procedures contained in Circular 71 of 2014 issued by the Minister pursuant to s. 24 of the Act of 1998.
The Essential Aspects of Fair Procedure
19. Counsel for the applicant stated that it was one thing for a preliminary investigation to ascertain the background to an allegation, or to assemble competing contentions in respect of disputed issues of fact. Such a process can facilitate a disciplinary process being conducted in an efficient and manageable way, still observing fair procedures. It is quite another thing for an investigation not in compliance with mandated procedure, or on a more basic level, not in compliance with fair procedures, to form the factual basis of an investigation on which disciplinary sanctions can be imposed. He quoted Millick v. Irish Casing Co. Ltd. [2007] 18 ELR 229 where Clarke J. discussed the difference between investigations that do not involve any findings of fact (to which all rules and natural justice need not apply) and inquiries which can make formal findings (to which rules of justice do apply). He also quoted Marie Fuller v. the Minister for Justice [2005] 1 IR 529 in which McGuinness J. commented obiter dictum in relation to the differences between statutory powers applicable when disciplining civil servants and industrial relations procedures of the State:
“in my view ss. 13 to 16 of the Act of 1956 were intended by the Oireachtas to deal with matters of discipline concerning individual civil servants. The Oireachtas has two other legislations provided a framework for the resolution of industrial disputes and has established bodies such as the Labour Relations Commission, the Labour Court and other specialist negotiation and arbitration bodies to this end. These means are available to the applicants and respondents as the means of resolving their dispute.”
The Bullying Prevention Policy
20. While this document is described as “nationally agreed”, it is evident from the terms of the document itself that it is in no sense a “national agreement”. It is simply an agreement between the relevant Trade Unions and the ETBs. It covers both teachers and non-teaching staff. The document has no capacity in law to impact upon the terms of Circular 71/2014. The two documents are entirely different and distinguishable. At page 14 of the bullying prevention policy, it is indicated that breaches of the policy “will be regarded as misconduct and maybe subject to disciplinary action under the disciplinary procedure relevant for the staff member concerned”. This merely indicates that an alleged breach of the policy may form a disciplinary charge under the disciplinary procedures and no more. Where a complaint of bullying is “upheld, it is clear that disciplinary action will be taken in accordance with the appropriate stage of the ETB Disciplinary Policy for Staff”. It is clear as a matter of law that if the disciplinary proceedings are indeed to be taken, these must be under, and have as their legal basis, Circular 71 of 2014. The Bullying Prevention Policy cannot affect or render otiose any provision of Circular 71/2014.
21. The bullying prevention policy outlines an informal process. Under the heading “Failure by a Staff Member to attend Meetings under the Formal Stages of the Procedure”, it is clear that the only sanction for a staff member who fails to cooperate with the procedures is that the procedure continues in their absence.
22. There is mention of the ETB nominating two investigators from a panel of “approved investigators”.
23. Counsel on behalf of the applicant submitted that the “investigation” which is to be subcontracted is to be conducted in accordance with the terms of reference and protocol provided for in Appendix II. It is evident from a consideration of the protocol that the requirements of natural justice have not been incorporated into the protocol. It would be essential for natural justice to be complied with, if reliance were to be placed on “findings” for the purposes of dismissing an employee.
24. The following is provided by Counsel for the applicant by way of example of how the protocol lacks compliance with fair procedures. Individual witnesses are invited to a “meeting”. A draft minute of the interview conducted will then be prepared and provided to the witness. The witness can apparently can review the draft minute and suggest changes, this even in respect of matters on which they have given evidence. The investigator then makes a “determination” on the amendments suggested.
25. The witness is entitled to attend at an interview accompanied by a work colleague or trade union representative (but not a legal representative). The following is set out in the protocol:
“conflicting witness accounts – where the investigators are presented with conflicting accounts of an incident and where no additional witnesses are available or where evidence is not persuasive, the case rests upon which version of the events the investigator considers the more credible, but a rationale must be provided”.
26. Counsel for the applicant submitted that it was far from clear where this understanding of ‘fair procedures’ had come from – it does not obtain any support from principle nor from the case law of the High Court to Supreme Court in the past half century. Counsel further submitted that the final investigation report must include “an assessment of credibility for each party in witness” along with the investigators “findings of fact”. He said that the subject of an allegation, such as the applicant would not be entitled to challenge including by way of cross-examination the evidence against him.
Case Law relating to Fair Procedures
27. Counsel for the applicant submitted that the law in respect of fair procedures was clear, particularly where an individual is liable to be dismissed from his or her employment. When a Stage 4 process under Circular 71 to 2014 is invoked, it follows that a teacher may be dismissed.
28. He submitted that cross-examination is clearly necessary in bodies which are administering justice. The entitlement to cross-examine allegations is not confined to a court body administering justice. In Borges v. Fitness to Practice Committee [2004] 1 IR 103 Keane C.J. stated:-
“It is beyond argument that, where a tribunal such as the first respondent is inquiring into an allegation of conduct which reflects on a person’s good name or reputation, basic fairness of procedure requires that he or she should be allowed to cross-examine, by counsel, his accuser or accusers. That has been the law since the decision of this court In re Haughey [1971] I.R. 217 and the importance of observing that requirement is manifestly all the greater where, as here, the consequence of the tribunal’s finding may not simply reflect on his reputation but may also prevent him from practising as a doctor, either for a specified period or indefinitely.”
Keane C.J. continues:-
“The applicant cannot be deprived of his right to fair procedures, which necessitates the giving of evidence by his accusers and their being cross-examined, by the extension of the exceptions to the rule against hearsay to a case in which they are unwilling to testify in person.”
29. Counsel also cited the comments of Hardiman J. Maguire v. Ardagh [2002] 1 IR 385 who also quoted from Ó Dálaigh C.J. in Re Haughey [1971] I.R. 217 wherein Ó Dálaigh C.J. said:-
“In proceedings before any tribunal where a party to the proceedings is on risk of having his good name, or his person or property, or any of his personal rights jeopardised, the proceedings may be correctly classed as proceedings which may affect his rights and in compliance with the Constitution the State, either by its enactments or through the courts, must outlaw any procedures which will restrict or prevent the party concerned from vindicating these rights.”
30. He also quoted a recent case of E.E. v. Child and Family Agency [2016] IEHC 777 a decision of the 14th November, 2016 where Humphreys J. summarised the matter as follows:-
“To require, as a matter of mandatory constitutional law, a right to cross-examine politicians and businesspeople in a tribunal or mere inquiry whose findings are ‘legally sterile’, but to refuse to accept such a right at the suit of a ‘man of no property’ such as this applicant, where there are huge and fundamental issues of human, natural, constitutional and ECHR family rights at issue, would be an egregious form of judicial doublethink and an abdication of the judicial function to vindicate the rights of the individual.”
31. Counsel for the applicant submitted that it was evident therefore that where a deputy principal of a school in the management of the ETB is notified that he is to be subjected to a disciplinary procedure under Circular 71/2014, whether at Stage 4 or at any of the formal stages, fair procedures manifestly indicate that he will have the right to confront and cross-examine the individual who has made the allegations against him.
32. He said that Circular 71 of 2014 expressly provides for the entitlement of a person in the position of the applicant to challenge any evidence which is to be relied upon at a Stage 4 hearing – this is a mandatory requirement of Circular 71/2014. He submitted that it was clear as a matter of law and as a matter of fair procedures, an individual whose job was at stake and against whom allegations were to be made would be entitled to challenge and cross-examine the evidence to be relied upon in the case against him. He then quoted Circular 71 which this Court will deal with in more detail.
33. He submitted in particular in relation to Stage 4, the following appears to be the essential aspects:
(1) If the conduct is of a “serious nature”, a comprehensive report on the facts of the case will be prepared by the principal and forwarded to the chief executive. A copy will be given to the teacher.
(i) It does not appear that any such report is being prepared, and no such report has been given to the applicant in this case.
(ii) Following the provisions of the comprehensive report prepared by the principal there are a number of essential procedural steps that must be taken.
(iii) If the chief executive decides to proceed to a disciplinary process, the teacher will be provided with an opportunity to attend at a meeting with the chief executive accompanied by his or her trade union representatives or a colleague subjected to an overall maximum of two. It is clear at this stage that there is no question of the chief executive proceeding to a disciplinary sanction but rather to a disciplinary process as provided for in Circular 71/2014.
(iv) It is entirely possible that upon receipt of a comprehensive report and the practice of the case which will have been forwarded in the interim to the teacher, the chief executive will decide not to proceed to a disciplinary process.
However, the chief executive in his affidavit states:
“I say that the fact of the matter is that a sufficient number of allegations against him where upheld as led to the investigation concluding that there had been repeated inappropriate behaviour.”
Following the hearing, the chief executive formulates “his/her judgment”. The chief executive will take into account the report from the principal, any other evidence and the teacher’s representation if any thereon.
Counsel made the submission that there was no report from the principal.
34. Counsel for the applicant also said that from an analysis of the correspondence and the documentation generated by the respondent, it would appear to be the case that the chief executive has formed the view that the process conducted by Graphite Recruitment HRM Ltd. had made findings of fact, upon which he could rely. The fact that this process itself did not allow for the applicant to challenge evidence by way of cross-examination and to confront his accuser appears to have been regarded by the chief executive as irrelevant.
Bias
35. The issue which counsel for the applicant brought to the court’s attention was the issue of objective bias resulting from the chief executive having already “adopted” findings, flowing from the process conducted by Graphite Recruitment HRM Ltd.
Irrationality – Proportionality
36. Counsel for the applicant stated that no consideration was given to invoking the disciplinary process at the informal stages of Stages 1, 2 and 3. Linked to this is the failure to consider what is factually accurate within the allegations already made. Whatever about process and findings lacking in fair procedure, looked at objectively, counsel for the applicant submits that the allegations made are manifestly insufficient in severity or in frequency to constitute “bullying. He cited a decision of Kearns P. in Glynn v. The Minister for Justice, Equality and Law Reform, Ireland and the Attorney General [2014] IEHC 133, where the President dismissed the plaintiff’s claim, holding that for an allegation of bullying to be actionable, the first question the court must answer is whether the behaviour complained of, by reference to an objective test, imports that degree of calibrated inappropriateness and repetition (this Court’s emphasis) which differentiates bullying from workplace stress or occupational stress.
37. In conclusion, counsel for the applicant reiterated the following points:
(1) The respondent had displayed objective bias towards the applicant;
(2) Circular 71/2014 envisages that if the disciplinary procedures provided for therein are to be implemented this will involve a number of stages moving from informal stages to formal stages, and that the respondent in its letter of the 30th August, 2016 and the chief executive’s letter of the 30th August, 2013 failed to indicate upon what basis such significant stages are apparently not to be adopted.
38. No rational basis or reason had been advanced for the decision not to avail of Stage 1, Stage 2 or Stage 3 of the procedures and the respondent has not acted in accordance with the procedural safeguards contained in Circular 71/2014.
Submissions on behalf of the Respondent
39. Counsel for the respondent set out the legal framework, and stated that section 24 of the Education Act 1998 was replaced by the substitution of a new section inserted by s. 6 of the Education (Amendment) Act 2012 (the Act of 2012). At that time, the Vocational Educational Committees were still in existence and special provision was made in ss. (13) for the Application of the Provision of the EEC Acts. In addition, ss. (12) provided that the phrase “Board” would in certain circumstances mean the employer. Section 65 of the Education Training Boards Act 2013 contains a provision deleting the aforementioned subs. 13, therefore with the establishment of the ETBs, ss. 12 came to apply to them.
40. The ETBs maintain schools through the provision by it of teaching staff and a host of other services. As the employer of staff, it then performs all the staff functions provided for by section 24 of the Act of 1998 as replaced, that is an ETB can appoint, suspend and dismiss staff. The performance of these functions of appointments, suspension and removal are not reserved functions but are executive functions that fall to be performed by the chief executive.
41. Counsel for the respondent accepted that Circular 71 of 2014 refers to procedures approved by the Department of Education and Skills, the interpretation application of this Circular.
42. The Bullying Prevention Policy exists because of the legal obligation on the ETB to address its obligations under section 60 of the Safety, Health and Welfare at Work Act 2005.
43. He submitted that in 2006 the Vocational Education Committees in consultation with the trade unions adopted policies and procedures for this educational section to prevent workplace bullying, harassment and sexual harassment. Over time these policies were amended to take account of legislative and other changes within the sector, culminating for the present purposes with a version of the bullying prevention policy which issued for implementation on the 1st of September, 2013 following the enactment of the Education and Training Boards Act 2013. The policy was later amended from the 1st of March, 2015 and again in 2016 and he said that in part what is before the court is the interplay between the two lawfully adopted policies.
44. Counsel for the respondent submitted that there was only one decision that was the subject of the judicial review and that is the decision of the chief executive to summon the applicant to a meeting. He submitted that what was not the subject of challenge was the following:
(a) the decision to invoke the bullying policy on the foot of a complaint of the 1st of May, 2013;
(b) any issue of compliance with the bullying policy;
(c) the procedures adopted during the investigation;
(d) the report of the investigation that issued on the 20th of March, 2016;
(e) the adoption by the chief executive of the findings of the report on the 28th of April, 2016;
(f) the rejection of the applicant’s procedural appeal against the chief executive’s adoption of the report by the Workplace Relations Commission;
He also said that it was important to note that the chief executive in adopting the report, adopted it in total, including those findings favourable to the applicant.
45. He suggested that the applicant now wants to urge the court that:-
(a) he can now retrospectively seek to undermine the Investigation Report that is being adopted by including the fairness of the procedures of the investigation on foot of which was prepared;
(b) the applicant seeks to stop the holding of a preliminary meeting on the basis that notwithstanding the conclusion of the bullying investigation that a Stage 4 disciplinary process cannot proceed on two discrete grounds:
(i) That the decision of the stage to invoke s. 4 is disproportionate and irrational;
(ii) It is a precondition of Stage 4 that the process should be grounded on a report prepared by the principal of the school. On the basis that there is no such report, the applicant seeks to exclude the chief executive from any involvement in the disciplinary processes on the basis of alleged objective bias.
46. Counsel for the respondent submitted that Circular 71 of 2014 contains two sections. One section deals with competency issues and the other deals generally disciplinary measures. Further separate routes are set out for dealing with teachers and principals. He also submitted that Circular 0071 of 2014 is in part commentary, in part advisory in tone, and in part formal. Section 1 headed “background” and s. 2 “general principles” apply to all sections of the circular. Section 3 concerns professional competence and what appears to be s. 4 (the sections are not numbered) relates to work and conduct issues. The introduction to the relevant section states:-
“Although disciplinary action will normally follow the progressive stages the procedure may be commenced by the school at any stage of the process if the alleged misconduct warrants such approach.”
Circular 71 however does not address the manner in which complaints that are not dealt with by the principal of the school enter the process as set out.
47. He submitted that this is a classic case where the policy does not address precisely the circumstances in this case, in that for good and fair reasons: the policy covers circumstances where (a) the complaint is not investigated by the principal and (b) the comprehensive report on the facts of the case is not prepared by the principal. He said that it could not be the case that the employer is left in a lacuna, where no disciplinary procedure can be invoked. He said that if the applicant’s logic is followed – the only process allowing a bullying investigation was one in which the chief executive had to note a report made by the school principal. Otherwise, the chief executive would have to deal with the investigation informally with no sanction.
48. The Bullying Prevention Policy provides that:
(1) Every employee has a right to make a formal complaint pursuant to the policy and there is no requirement to commence a complaint at the informal stage.
(2) Where a formal complaint is made, not to the school principal but to the Head of Human Resources in the ETB head office, this removes the matter from the realm of the local school entirely.
(3) A formal investigation is then carried out by approved persons unassociated with the employer and such investigation must conclude in findings being made.
(4) Once such findings are made the matter is then passed to the chief executive who must, in the first instance, determine to either adopt or reject the report. No other option is available to the chief executive.
(5) The aforementioned determination of the chief executive may be appealed by the complainant or the person subject of the complaint to the Workplace Relation Commission by way of procedural challenge.
(6) There is a provision for invoking the disciplinary proceeding at an appropriate stage.
Right to Cross-Examine
49. Counsel for the respondent submitted that the applicant’s rights to natural justice were respected and this is clear from the material before the court and in particular from the full exchanges, statements and invitations to reply. He said that the applicant now raises a question of an entitlement to cross-examine witnesses. Neither before entering upon the investigation or at any stage during the investigation did the applicant request a facility to cross-examine any witness. At no stage was the applicant denied that facility and in his procedural appeal to the Workplace Relations Commission he did not identify this as a matter of concern.
50. He submitted that the investigation dealt fairly and evenly with both the applicant and the complainant and in doing so meet the requirements of natural justice as set out by Henchy J. in Kiely v. the Minister for Social Welfare [1977] IR 267:-
“It would be contrary to natural justice if one side were allowed to shelter behind his controverted documentary evidence while the other side had to bring his witnesses to the hearing, where they might be required to give their evidence on oath and to be subject to cross-examination. The lack of mutuality and the potential for an unjust determination inherent in such a procedure would put it in conflict with the rule of audi alteram partem.”
He said further:-
“This Court has held, in cases such as In re Haughey that Article 40, s. 3, of the Constitution implies a guarantee to the citizen of basic fairness of procedures. The rules of natural justice must be construed accordingly. Tribunals exercising quasi-judicial functions are frequently allowed to act informally — to receive unsworn evidence, to act on hearsay, to depart from the rules of evidence, to ignore courtroom procedures, and the like — but they may not act in such a way as to imperil a fair hearing or a fair result.”
51. In relation to the report of the bullying investigation counsel submitted that the applicant does not identify in respect of any of the adverse findings made against him any factual evidence with which he disagrees to which the case might be made that a failure to allow for cross-examination was material.
52. He submitted that the chief executive is entitled to continue with the disciplinary process, with the bullying report and the background materials properly before him as evidence. The principles of natural justice do not require that matters which have independently been investigated in a fair and balanced process be heard “de novo” in a further stage of a disciplinary process. In this instance, at all times it was known that the bullying policy was not purely an ‘evidence gathering exercise’ but also the policy implies that the investigators required to make findings. What has to be considered is how the principles of natural justice have applied in section 4 in that the Circular refers to a teacher’s right to challenge the evidence that is being relied upon. In that regard, it is open at all times to the applicant to take issue with the characterisation of his conduct as bullying, to highlight any conclusions that are not supported by evidence, and the applicant can seek to introduce additional evidence.
The Absence of a Report from the Principal
53. Counsel for the respondent submitted that it was self-evident that the matter proceeded without a report from the school principal, and in that respect it does not accord with its specified procedure. He raises the question: is the absence of the report from the principal fatal? He said the court may take the view that the lack of formal compliance does not justify relief by way of judicial review. He referred to administrative law in Ireland by Hogan 4th Ed. and the judicial remedies in public law by Lewis 3rd Ed. and he quoted from Laffoy J. in McGlinchey v. Ryan [2010] IEHC 536:-
“It is well settled, as a matter of constitutional law and of contract law, that an employee who is involved in a disciplinary process in the course of his employment is entitled to be afforded fair procedures, although what constitutes fair procedures may vary from case to case. In this case, the inquiry was to be governed in accordance with the agreement between the plaintiff and the defendant embodied in the Terms of Settlement and in accordance with Annex 1 thereto. The conduct of the inquiry was subject to the express terms agreed between the parties and the ruling of the adjudicator falls to be considered against those terms.”
54. Counsel for the respondent submitted that it was clear in this case that all the parties concerned knew well from the outset that the process was going to be conducted within the framework of the Bullying Prevention Policy which, in turn, contains explicit and specific provisions for referral to the circular letter and the disciplinary procedure. It is immediately clear from a perusal of the extensive account given by the investigators of the manner in which they conducted their work that they paid close attention to all matter and procedural fairness and natural justice.
55. The underlining fact is that the applicant participated fully in that process without even once raising the issue of either where or to whom the report of the investigation was going to be sent. He did not raise the possibility of cross-examining throughout the process. In such a circumstances he submitted that an estoppel arises, as to his right to cross-examine presently. The applicant’s participation in the process throughout highlights the lack of importance the applicant attached to the absence of the principal’s report. The absence of the principal’s report may therefore be considered by the Court as not fatal to the process.
Objective Bias
56. Counsel for the respondent states that objective bias is complained of solely on the basis that the chief executive has adopted the investigation report which follows the disciplinary report. Whereas it is apparent that the chief executive had no hand, act or part in the findings of the investigation report, and that his role in adopting the investigation report was administrative, his role in determining to proceed to Stage 4 hearing was equally consistent with what would happen if it had been the case that a report on this or any other matter was to come to him from a school principal.
The Statutory Framework
57. The Vocational Education Act 1930 provided for vocational education committees. By virtue of the Education and Training Boards Act 2013 the existing vocational educational committees were dissolved and were replaced by a number of ETBs. Section 15 of the 2013 Act provides the following:
15(1) A chief executive of an education and training board shall perform the executive functions of the board.
58. Sections 23 and 24 of the Education Act 1998 were substituted by s. 6 of the Education Act (Amendment) Act 2012. Section 23 provides:
“In addition to the functions conferred on a Principal by section 22, the Principal of a recognised school shall—
(a) be responsible for the day-to-day management of the school, including guidance and direction of the teachers and other staff of the school, and be accountable to the board of the school for that management,
(b) provide leadership to the teachers and other staff and the students of the school,
(c) be responsible, together with the board, parents of students and the teachers, for the creation in the school of an environment which is supportive of learning among the students and which promotes the professional development of the teachers,
(d) under the direction of the board, and in consultation with the teachers, the parents and, to the extent appropriate to their age and experience, the students, set objectives for the school and monitor the achievement of those objectives, and
(e) encourage the involvement of parents of students in the school in the education of those students and in the achievement of the objectives of the school.
(2) For the purpose of carrying out his or her functions under this Act, a Principal of a recognised school shall have all such powers as are necessary or expedient in that regard, and shall carry out his or her functions in accordance with—
(a) such policies as may be determined from time to time by the board of the school, and
(b) regulations made under section 33.
(3) The Principal of a recognised school shall be entitled to be a member of any and every committee appointed by the board of the school.
(4) Wherever practicable, the Principal of a recognised school shall, in exercising his or her functions under this section, consult with teachers and other staff of the school.
(5) Where the employer of the Principal, teachers and other staff of a recognised school is a person other than the board of the school concerned, a reference in this section to a board shall be construed and have effect as if the said person were substituted for the said reference wherever it occurs.”
59. Section 24 states:
“(1) Subject to this section, the board of a recognised school—
(a) shall, if not already appointed, appoint a person to be Principal of the school, and
(b) may appoint such and so many persons as teachers and other staff of the school as the board from time to time considers necessary for the performance of its powers and functions under this Act.
…
(12) Where the employer of the Principal, teachers and other staff of a recognised school is a person other than the board of the school concerned, a reference in this section to a board shall be construed and have effect as if the said person were substituted for the said reference wherever it occurs.
(13) In applying subsection (11) to the Principal, a teacher or other member of staff of a recognised school which is established or maintained by a vocational education committee, the board of the recognised school concerned shall comply with the provisions of the Vocational Education Committee Acts 1930 to 2006 in relation to suspension and dismissal.”
Circular 0071 of 2014
60. Circular 0071 of 2014 was sent to Chief Executives of ETBs and provided for the revised procedures on the suspension and dismissal of teachers and principals. Previous circulars were superseded by Circular 0071 of 2014.
61. The background to the revised procedures provided:
“(1) Background
Under the terms of Towards 2016 the parties undertook to review and revise existing procedures for the suspension and dismissal of teachers comprehended by Section 24(3) of the Education Act 1998. Since the parties noted that the provisions of Section 24 of the Education Act 1998 did not apply to teachers in schools operated by vocational education committees (VECs) further discussions ensued involving the Department of Education and Science, the IVEA, the TUI and the ASTI in order to adapt the provisions agreed in relation to other teachers to accommodate the specific management structures and processes operating in VEC schools. These discussions concluded in procedures for the suspension and dismissal of teachers in VEC schools being agreed between the parties.
The following procedures have now been issued in that context.
ETBs and Principals have a responsibility for the quality and effectiveness of education and the management of staff in a school as set out in the Education Act 1998.
While no procedures can be definitive about the range of circumstances which might give rise to the initiation of disciplinary procedures in general these are likely to be related to misconduct, a threat to the health and safety of students and/or sustained failure to perform adequately the professional duties and responsibilities expected of a teacher.
(2) General Principles underpinning these procedures
Apart from considerations of equity and justice (this Court’s emphasis), the maintenance of a good industrial relations atmosphere at workplace level requires that acceptable procedures be in place and be observed. Disciplinary procedures are necessary to ensure both that discipline is maintained in the workplace and that disciplinary measures can be applied in a fair and consistent manner.
Such procedures serve a dual purpose in that they provide a framework which enables management to maintain satisfactory standards and employees to have access to procedures whereby alleged failures to comply with these standards may be fairly and sensitively addressed.
The essential elements of any procedures for dealing with disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available.”
The general principles continue as follows:
“These procedures are intended to comply with the general principles of natural justice (this Court’s emphasis) and provide:
• that there will be a presumption of innocence. No decision regarding disciplinary action can be made until a formal disciplinary meeting has been convened and the employee has been afforded the opportunity to respond to the allegations raised (this Court’s emphasis)
• that the employee will be advised in writing in advance of a disciplinary meeting of the precise nature of the matters concerned and will be given copies of all relevant documentation. In the case of a complaint, this detail will include the source and text of the complaint as received. A complaint should be in writing.
• that details of the allegations, complaints or issues of professional competence be put to the teacher concerned
• that the right of a teacher concerned to have access to and to view his/her personnel file (to include all records in relation to the teacher in hardcopy or electronic format, held by the school/ETB) will be fully respected
• that the teacher concerned is given the opportunity to avail of representation by a work colleague or trade union representative/s
• that the teacher concerned be given the opportunity to respond fully to any such allegations, complaints or issues of professional competence (this Court’s emphasis)
• that the teacher concerned has the right to examine and challenge all evidence available and to call witnesses or persons providing such evidence for questioning (this Courts emphasis)
• that the teacher concerned has the right to a fair and impartial examination of the issues being investigated, taking into account the allegations or complaints themselves, the response of the teacher concerned to them, any representations made by or on behalf of the teacher concerned and any other relevant or appropriate evidence, factors or circumstances
• that the ETB, as employer, has a duty to act reasonably and fairly in all interactions with staff and to deal with issues relating to conduct or professional competence in a confidential manner which protects the dignity of the teacher
• that all matters relating to the disciplinary procedure are strictly confidential to the parties and their representatives
• that it will be considered a disciplinary offence for any person to intimidate or exert inappropriate pressure on any person who may be required to attend as a witness
• that where a decision is taken to impose a disciplinary sanction, the sanction imposed will be in proportion to the nature of the conduct/behaviour/performance that has resulted in the sanction being imposed
• that these procedures are without prejudice to the right of a teacher to have recourse to the law to protect his/her employment.”
62. Circular 0071 of 2014 provides for the disciplinary procedures for teachers employed in ETBs. The procedure was developed following the discussions between the Department of Education and Skills, School Managerial Bodies and recognised Teacher Unions. It takes account of employment legislation and the Labour Relations Commission’s Code of Practice on Disciplinary Procedures. This procedure superseded all existing local and national disciplinary procedures.
63. The document states:-
“This procedure relates to work and conduct issues and matters other than professional competence and applies to all teachers other than those serving in a probationary capacity.”
64. The Court notes that allegations in respect of child abuse as defined in Child Protection Guidelines for Primary and Post-Primary schools are dealt with in the first instance under these guidelines.
65. It appears to this Court that allegations of bullying should also be dealt with in the first instance under these guidelines. However, the Court will revert to this in due course.
“Informal Stage
It is intended that problems relating to work and conduct are resolved, where possible, through informal means (this Court’s emphasis). To this end the Principal will discuss any unsatisfactory conduct with the teacher concerned and inform him/her of the required improvements. The teacher will be given an opportunity to offer explanation and comment. Where an improvement might be effected without recourse to disciplinary action, guidance will be provided as appropriate and due attention will be given to whether the shortcoming is due to personal, health or domestic circumstances. In such cases help and advice will be given where possible. The teacher will also be informed that unless the necessary improvement is made the matter may proceed to the formal disciplinary procedure.
Stage 1: Verbal Warning
A formal disciplinary meeting with the teacher will be convened by the Principal. The teacher will be given at least five school days’ written notice of the meeting. The notice should state the purpose of the meeting and the specific nature of the complaint together with any supporting documentation. The teacher concerned may be accompanied at any such meeting by his/her trade union representative or a work colleague.”
66. The Court notes that there is no entitlement for a teacher to have a legal representative with him and the Court will revert to this in due course.
“At the meeting the teacher will be given an opportunity to respond and state his/her case fully and to challenge any evidence that is being relied upon for a decision. Having considered the response, the Principal will decide on the appropriate action to be taken. Where it is decided that no action is warranted the teacher will be so informed in writing within five school days. Where it is decided that disciplinary action at this stage is warranted the Principal will inform the teacher that he/she is being given a verbal warning. Where a verbal warning is given it should state clearly the improvement required and the timescale for improvement. The warning should inform the teacher that further disciplinary action may be considered if there is no sustained satisfactory improvement. The teacher will be advised of his/her right to appeal against the disciplinary action being taken and the appeal process.”
67. The court notes that the processes at Stages 1 to 3 were not taken by the defendant in this matter.
“Stage 2: Written Warning
If, having received a verbal warning, the teacher’s conduct is perceived by the Principal to be less than satisfactory in relation to that required at Stage 1 a meeting will be arranged between the teacher and the Principal and another officer delegated by the Chief Executive. The teacher will be given at least seven school days’ written notice of the meeting. The notice should state the purpose of the meeting and the specific nature of the complaint together with any supporting documentation. The teacher concerned may be accompanied at any such meeting by his/her trade union representative/s or a colleague/s subject to an overall maximum of two.”
68. Again the Court notes that the procedures for the suspension and dismissal of teachers and principals exclude the possibility of a teacher being represented by a legal representative.
“At the meeting the teacher should be given a clear statement of the area/s where his or her conduct is perceived as unsatisfactory. The teacher will be given an opportunity to respond and state his/her case fully and to challenge any evidence that is being relied upon for a decision and be given an opportunity to respond. Having considered the response, the Principal and the other officer delegated by the Chief Executive, will decide on the appropriate action to be taken. Where it is decided that no action is warranted the teacher will be so informed in writing within five school days. Where it is decided that disciplinary action at this stage is warranted the teacher will be informed that he/she is being given a written warning. Where a written warning is given it should state clearly the improvement required and the timescale for improvement. The written warning should inform the teacher that further disciplinary action may be considered if there is no sustained satisfactory improvement. The teacher will be advised of his/her right to appeal against the disciplinary action being taken and the appeal process.
Stage 3: Final Written Warning
If having received a written warning, the Principal perceives that the teacher’s conduct remains less than satisfactory or there is an occurrence of a more serious offence, a meeting will be arranged between the teacher, the Principal and another officer delegated by the Chief Executive. The teacher should be given at least seven school days’ written notice of the meeting. The notice should state the purpose of the meeting and the specific nature of the complaint together with any supporting documentation. The teacher concerned may be accompanied at any such meeting by his/her trade union representative/s or a colleague/s subject to a maximum of two.
At the meeting the teacher should be given a clear statement of the area/s where his or her conduct is perceived as unsatisfactory. The teacher will be given an opportunity to respond and state his/her case fully and to challenge any evidence that is being relied upon for a decision and be given an opportunity to respond. Having considered the response, the Principal and the other officer delegated by the Chief Executive will decide on the appropriate action to be taken. Where it is decided that no action is warranted, the teacher will be so informed in writing within five school days. Where it is decided that disciplinary action at this stage is warranted, the teacher will be informed that he/she is being given a final written warning. Where a final written warning is given it should state clearly the improvement required and the timescale for improvement. The final written warning should inform the teacher that further disciplinary action may be considered if there is no sustained satisfactory improvement. The teacher will be advised of his/her right to appeal against the disciplinary action being taken and the appeal process.
The final written warning will be active for a period not exceeding 12 months and subject to satisfactory service will cease to have effect following the expiry of the 12 month period.
Stage 4:
If it is perceived that the work or conduct has continued after the final written warning has issued or the work or conduct issue is of a serious nature a comprehensive report on the facts of the case will be prepared by the Principal and forwarded to the Chief Executive. A copy will be given to the teacher.
In accordance with the provisions of the Education and Training Boards Act, 2013, employment matters including the suspension and dismissal of staff are executive functions. Consequently, the following procedures will apply.
4.1 If the Chief Executive decides to proceed to a disciplinary process, the teacher will be provided with an opportunity to attend at a meeting with the Chief Executive accompanied by his/her trade union representative/s or a colleague subject to an overall maximum of two. (The court notes again that there is no provision for a legal representative even though issues relating to suspension and dismissal of staff are at issue).
The teacher will be given at least 7 school days’ notice of the meeting. The notice should state the purpose of the hearing and the fact that disciplinary action may be considered.
At the meeting the teacher will be given an opportunity to make his/her case in full and to challenge any evidence that is being relied upon for a decision.
Following the hearing the Chief Executive shall make his/her judgement on the matter. In formulating his/her judgement the Chief Executive will take account of the report from the Principal, any other evidence and the teacher’s representation (if any) thereon.
The Chief Executive shall notify the teacher of his/her decision and any intended disciplinary action if that be the outcome of his/her deliberations. If it is decided to take disciplinary action, the Chief Executive may avail of any of the following range of sanctions.
(a) Final written censure
(b) Deferral of an increment
(c) Withdrawal of an increment or increments
(d) Demotion (loss of post of responsibility)
(e) Other disciplinary action short of suspension or dismissal
(f) Suspension (for a limited period and/or specific purpose) with pay
(g) Suspension (for a limited period and/or specific purpose) without pay
(h) Dismissal
Where disciplinary action short of dismissal is proposed, the case will be reviewed by the Chief Executive within a specified time period to consider whether further disciplinary action, if any, is required.
The Chief Executive will act reasonably in all cases when deciding on the appropriate disciplinary action. The nature of the disciplinary action should be proportionate to the work or conduct issue that has resulted in the sanction being imposed.”
69. The next section is headed “Gross Misconduct”:-
“In cases of serious misconduct at work or a threat to health and safety to children or other personnel in the school the stages outlined above do not normally apply and a teacher may be dismissed without recourse to the previous stages.
The following are some examples of gross misconduct for which any or each of Stages 1 to 3 of the disciplinary procedure may not apply depending on the gravity of the alleged offence:
• Theft
• Deliberate damage to school property
• Fraud or deliberate falsification of documents
• Gross negligence or dereliction of duties
• Refusal to comply with legitimate instructions resulting in serious consequences
• Serious or persistent incapacity to perform duties due to being under the influence of alcohol, unprescribed drugs or misuse of prescribed medication
• Serious breach of health & safety rules
• Serious abuse/misuse of the school property/equipment
• Serious breaches of confidentiality
• Serious bullying, inappropriate behaviour, sexual harassment or harassment against an employee or customer, including students
• Violent/disruptive behaviour
• Downloading/disseminating pornographic material from the internet
• Circulation of offensive, obscene or indecent e-mails or text messages.
The above list is not exhaustive.
If there is an allegation of serious misconduct the teacher may be suspended on full pay pending an investigation and the conclusion of any appeal process.
In the course of investigation, the teacher concerned has the right to have the allegations brought to his/her attention and he/she has the right to respond to all allegations. If the investigation upholds a case of serious misconduct the normal consequence will be dismissal.
Stage 5: Appeals
It will be open to the teacher to appeal against the proposed disciplinary action. In the case of sanctions being imposed at Stages 1, 2 and 3 the appeal will be to an officer delegated by the Chief Executive who has not had a previous involvement with the matter and who is of an equal or higher grade to the officer who imposed the sanction for example, the Principal, APO, PO, EO or CE. In the case of serious misconduct being imposed under stage 4 of the procedure an appeal will be to a disciplinary appeal panel appointed by the Chief Executive as set out in Appendix A. The procedures for appealing are as set out in Appendix A.
Appendix A: Appeal Process
A teacher may seek a review of disciplinary proceedings by the panel on one or more of the following grounds:
(1) the provisions of the procedures were not adhered to
(2) all the relevant facts were not ascertained
(3) all the relevant facts were not considered or not considered in a reasonable manner
(4) the teacher concerned was not afforded a reasonable opportunity to answer the allegation
(5) the teacher concerned could not be reasonably be expected to have understood that the behaviour alleged would attract disciplinary action
(6) the sanction recommended is disproportionate to the underperformance or misconduct alleged.”
70. The applicant was informed by letter dated 7th May, 2015 that Rose McCormack, the HR Section, Longford Office was in receipt of a formal complaint of alleged bullying from Ms. Michelle Spence. The applicant was requested to respond, giving complete details. The letter continued “the complaint will be investigated in accordance with the provisions of the formal procedure documented in Bullying Prevention Policy and Complaint Procedure for ETB staff” and the letter continues that “the applicant had a right to be accompanied” and he was referred to:
(1) the Bullying Prevention Policy and Complaint Procedures for ETB staff;
(2) that he had the right to avail of employee assistance service at any point during the investigation;
(3) that the agreed procedure is an industrial relation procedure and not a legal procedure (this Courts emphasis).
71. It was stated that the procedure will be conducted within the norms of industrial relations custom, practice and procedure and as such is not a judicial process. In circumstances where a legal action is involved the policy will be suspended and the operation of law will take precedent. A series of documentation was enclosed. Finally, the letter states that the Head of HR will appoint an investigation team comprising two persons, a panel of approved organisations which can be drawn upon to undertake the investigation (under a contract for service) as approved in Appendix 1 of the Bullying Prevention Policy and Complaint Procedure for ETB staff. There was no provision for either party to a complaint, to reject a nominated investigator save in very exceptional circumstances where an investigator so nominated is related to, or a personal friend of either the complainant or alleged respondent in the complaint.
Bullying Prevention Policy
72. This Court now turns to the Bullying Prevention Policy.Therein it is stated that the new policy and procedure complies with the recommendations of the Government Task Force Report on bullying in the workplace and the following codes:
(1) Health and Safety Authorities Code of Practice on the prevention of workplace bullying
(2) The Labour Relations Commission Code of Practice detailing procedures for addressing bullying in the workplace.
Under the General Principles attaching to the Bullying Policy provides:
“All persons invoking or engaging in, the formal procedural stages of the policy are advised that
(1.1) The agreed procedures in industrial relations procedure and not a legal procedure (this Court’s emphasis). It would be conducted within the norms of industrial relations custom, practice and procedure and as such is not a judicial process. In circumstances where legal action is invoked the policy will be suspended and the operation of law will take precedent.
(1.2) Any individual invoking the policy to a procedure at the Formal stage must provide written agreement to proceeding through the formal procedural stages in accordance with 1.1.
(2) The right to be accompanied at all stages of this procedure is recognised. Reference in the policy to representative includes
(i) a work colleague of the staff member’s choice or
(ii) representation by an authorised trade union but not any other person or body unconnected with the particular ETB
The nature of the meetings is such that legal representation is not required.”
The Court notes this legal representation is not excluded, it is just not required – however this is a matter of some considerable debate in this case.
“The following principles shall apply:
• All formal complaints shall be in writing
• Details of any complaints shall be put to the respondent staff member concerned
• Both parties to the complaint shall be given the opportunity to avail of representation during the procedure by a work colleague or by an authorised trade union but not any other person or body unconnected with the particular ETB.
• Parties to the complaint have the right to a fair and impartial determination of the issues concerned taking into account any representations made by or on behalf of the staff member and any other relevant or appropriate evidence, factors or circumstances.
• No allegations which have previously been investigated can be entered as part of the current investigation.
• Access to personal information held by an ETB shall be facilitated in accordance with the ETBs Data Protection Policy (specifically with respect to the ETBs Access Procedure) and with the principles and requirements of the Data Protection Acts 1998 – 2003. When the proceedings have been completed the Investigation Board and all associated documentation concerned to the Board will be filed, on a strictly confidential basis with the Head of HR in the ETB.
• That all matters relating to the complaint are strictly confidential to the parties and their representatives.”
73. There then proceeds a definition of bullying at work:
“Repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of behaviour in this definition may be an affront to dignity but as a once off incident it is not considered to be bullying”.
74. This Court notes that complaints of bullying can often be resolved on an informal basis and no further action may be required. Mediation is a process where an independent and neutral mediator assists the parties to come to agreement through a collaborative process. However, it is a decision for the complainant in the first instance which approach to adopt. In most cases, adopting an informal approach or engaging in mediation is the preferred approach of the ETB and unions representing staff in the sector. The engagement of a mediator is a matter for the Head of HR to decide, upon receiving a request from a staff member who believes s/he is being bullied or a staff member who is a respondent to a complaint of bullying.
75. The next procedure detailed in the bullying prevention policy is the formal procedure. This is for when “attempts to resolve the alleged complaint through informal means have not succeeded or where the complainant elects to invoke the formal procedure as a matter of first instance.” It continues: “an investigation will be carried out by the ETB. All complaints will be treated seriously and in confidence”. (this Court’s emphasis).
“Stage 1 investigation:
1. The complainant writes in confidence to the Head of Human Resources to request that an investigation under the Formal Procedure be undertaken. This letter shall include the written statement of complaint which must be signed and dated by the complainant. A formal complaint should inter alia contain: clear specific allegations against named individual(s), dates and times of incident(s), a list of witnesses if any, direct quotes if they can be recalled, a brief description of the context of each incidence, a brief description of the impact/effect each incidence had on the complainant, any other relevant documentary evidence except for mediation details of previous approaches made to the respondent (if any) and the outcome of same.
2. Upon receipt of a written complaint the Head of HR or his/her nominee will formally acknowledge within 5 working days’ receipt the complaint and advise of the right to be accompanied.
3. The respondent to the complaint will be furnished with a copy of the complaint and all accompanying documentation within the same 5 working days’ and informed of his/her right to be accompanied.
4. The respondent to the complaint shall be given an additional 10 working days from the date of issue by the ETB of the complaint details and documentation to respond in writing to the complaint details. The response should be sent to the Head of HR. Any counter complaint if raised by the respondent will be processed as part of the respondent’s response to the complaint under the remit of the same investigation […]
5. The Head of HR will contact Education and Training Boards Ireland to have an investigation team nominated comprising two persons from the panel of approved investigators. The panel of improved investigators can be drawn upon to undertake the investigation (under a contract for service) […]”
The policy document suggests that the investigation should commence no later than the expiration of 30 working days from the date of receipt by HR of the written complaint, and the official Investigation Board must issue to the Head of HR no later than 40 working days from the date of receipt by the Investigators of the complaint the documentation originally supplied by the Head of HR.
Lastly, the Court notes that the policy sets out that the final investigation report will be referred to the CE of the ETB for consideration and a determination.
This Court quotes further from the policy:
“Stage 2:Decision by the ETB as employer takes circular to reject the findings of the Investigation Report.
2.1 The Chief Executive having undertaken evaluation of the report will decide as to whether or not the Investigation Report should be adopted. The decision of the Chief Executive will be communicated to the parties to the complaint within a total of 15 days of the date of issue by the Head of HR of the final investigation report to the parties to the complaint. Such covering correspondence will advise a right of appeal to an independent third party […]
2.2 Importantly in arriving at a decision the Chief Executive:
(a) Is not to be regarded as making any assessment as to the merits or otherwise of the complaints made by the complainant against the respondent
(b) Shall meet with the Investigation Team by way of informing/satisfying his/her self that the terms of reference for the investigation have been adhered to
2.3 In circumstances where the Chief Executive decides to adopt the findings of the investigation report s/he shall have due regard to the procedures undertaken over the course of the investigation and the discharge of the terms of reference by the Investigation Team. Where the Chief Executive elects to adopt the Report particular regard should be had to be able to respond to the potential for a procedural appeal under the specified appeal grounds. […]”
Section 3 of the policy sets out the following under the heading “provision for appeal” – “it is open to either party to complaint of bullying to appeal the decision of the Chief Executive of the ETB to the agreed Appeal Officer nominated by the LRC and nationally agreed between ETB and unions consultative forum.”
76. The next section of the policy document deals with the following:
“Disciplinary Action Arising
Breaches of the Bullying Prevention Policy will not be tolerated by the ETB. Breaches of the Policy shall be regarded as misconduct (but not gross misconduct) and may be subject to disciplinary action under the Disciplinary Procedure relevant for the staff member concerned. Repeated policy breaches will be taken into consideration in determining the appropriate disciplinary sanction to be applied to the staff member concerned.
Where a complaint of bullying is upheld or a complaint is found to be vexatious/malicious, disciplinary action will be taken in accordance with the appropriate stage of the ETB Disciplinary Policy for staff […]”
Discussion
77. There are a number of matters for the Court to consider in this case:
(1) The issues of fair procedures in the course of the investigation
(2) whether there was bias as a result of the respondent acting on foot of the investigation process conducted by the company retained by the respondent; and finally
(3) What is the relationship between Circular 71/2014 and the bullying policy.
Counsel for the respondent makes the point that the subject matter of the judicial review is an order of certiorari quashing the decision of the respondent dated the 30th of August, 2015, insofar as the respondent has purported to uphold or rely upon a finding of bullying against the applicant for the purpose of summoning the applicant to a Stage 4 disciplinary meeting on Thursday the 15th of September, 2016 as provided for in the Department of Education and Skills Circular letter 71/2014 entitled “Revised Procedures for Suspension and Dismissal of Teachers and Principals”. It is a matter for the court to decide whether or not inter alia the procedures adopted during the investigation are contained in the grounds of the judicial review.
78. In May 2015, the applicant was notified that a complaint of bullying had been made against him by his colleague, a teacher called Ms. Michelle Spence. The complaint cited a number of incidents, some of which dated back to 2008. Ms. Spence had requested the head of human resources of the respondent to conduct a formal investigation into the alleged bullying. The allegation of bullying detailed over one hundred pages in respect of her complaint.
79. An investigation into the complaint was launched in accordance with the Bullying Prevention Policy – Complaint Procedure for ETB Staff. The respondent engaged a private limited company called Graphite Recruitment HRM Ltd. to carry out the said investigation. The applicant was asked by the investigation to submit his written response to various meetings and interviews and he duly complied. On the 4th of April, 2016 nearly one year after the complaint from Ms. Spence and the applicant was furnished with a copy of the report of Graphite Recruitment HRM Ltd. which was dated the 24th of March, 2016.
80. The two investigators of Graphite Recruitment HRM Ltd. were Ms. Louise McGonigle and Mr. Gordon Nolan. The Court has the statement of Michelle Spence which was taken by the defendant’s investigator on the 4th of August, 2015. An interview with Mr. Michael Lyons held on the 22nd of September, 2015 at which he was accompanied by Brian Hyland from the Teachers Union of Ireland. A further interview was held with Ms. Michelle Spence on the 11th of January, 2016. A further interview was held with the applicant held on the 16th of February, 2016.
81. Emails were sent to Graphite Recruitment HRM Ltd. from Deirdre O’Brien. Further, a statement of Antoinette Higgins, Margaret Mullooney, and AnnMarie Keenan were taken by Graphite Recruitment HRM Ltd. A number of letters were also received by Graphite Recruitment HRM Ltd.
82. By letter dated the 4th of March, 2016 Louise McGonagall, the senior HR consultant of Graphite Recruitment HRM Ltd. indicated that they would now proceed to consider the information provided by Graphite Recruitment HRM Ltd. to date and will issue a report of their findings to the HR manager of the respondent.
83. Graphite Recruitment HRM Ltd.’s final report issued on the 24th of March, 2016 and among the findings were that:
“The investigation concludes that Mr. Lyons has withheld information in relation to Ms. Spence on two occasions. Specifically, in relation to failing to inform her about a Community Arts Project and the non-inclusion of her TY plan at the Board of Management meeting. The investigation also finds that Mr. Lyons undermined Ms. Spencer on two occasions. Specifically, in relation to failing to acknowledge her contribution at a staff meeting in addition to keeping possession of the school Arts camera”.
The report also noted that the behaviour of Ms. Spence towards Mr. Lyons wife has been a contributory factor in this finding against Mr. Lyons. In addition, both parties have strong opinions on certain matters, which has lead to tensions between them. However as there has been repeated inappropriate behaviour directed towards Ms. Spence by Mr. Lyons during the course of his employment, this can be reasonably regarded as undermining her right to dignity at work as per the definition outlined in the ETB bullying policy.
84. The report does not deal with the complaints Ms Spence alleges took place from 2008, and the finding of the report is unhelpful in this light. It appears to the Court that an investigation which took a year, comprising of four interviews (two interviews with Ms. Spence and two interviews with Mr. Lyons) and a number of statements and letters from witnesses did not adequately deal with issues that predated the complaints. The report does not set out sufficiently the basis upon which the investigators concluded that Ms. Spence’s right to dignity at work had been undermined.
85. On the 21st of April, 2016 the applicant received a letter from the respondent dated the 20th of April, 2016 advising that the report of Graphite Recruitment HRM was to be adopted by the respondent. The applicant was advised that he had fifteen working days to appeal the decision. The applicant duly appealed to the appeals officer whereupon his appeal was rejected. By letter dated the 30th of August, 2016 the applicant was advised that in circumstances where his appeal had not been upheld, the investigation report would be upheld, together with the findings against him as set out therein. The applicant is advised of the following:
“Bullying behaviour in an ETB workplace is unacceptable misconduct which promptly falls to be addressed under the appropriate provisions of Circular 0071 of 2014 Disciplinary Procedures for Teachers Employed in Education and Training Boards. In the light of the findings/conclusions of the investigation report (copy enclosed) you are required to attend a Stage 4 disciplinary meeting to be convened for the purposes of determining the disciplinary action if any which may arise from the finding of the investigation report referred to above.”
The applicant was further advised that the meeting was scheduled to take place at 11 am on Thursday the 15th of September, 2016.
86. In correspondence, Brian Carolan, solicitor on behalf of the applicant in his first letter to the Chief Executive of LongfordWestmeath Education and Training Board Dr. Christy Duffy, sought certain assurances in relation to the applicant’s right to fair procedures. He also submits in his letter dated 1st August, 2016:
“Clearly any findings of the previous investigation report cannot be relied upon in any subsequent disciplinary process in circumstances where the applicable ETB policies and procedures do not permit this.
Our client is anxious to have all of his rights to fair procedures including the right to challenge the evidence against him and in particular the right to cross-examine his accuser, his right to the presumption of innocence and his right to be advised in advanced in writing of the specific allegations against him that are proposed to be the subject matter of any disciplinary procedure.”
87. Further in a letter dated the 2nd of September, 2016 to Dr. Duffy he stated:
“The disciplinary process provided for Circular 71 of 2014 does not refer to or in any way impact upon the investigation you refer to and accordingly we are surprised of the suggestion in your recent letter that in some way the results of that investigation could have any relevance to the detailed procedures provided for in Circular 71 of 2014.”
He relied upon the presumption of his client’s innocence and the right of Mr. Lyons to challenge including by way of cross-examination all evidence which would be called at such a hearing. He further stated that his client is entitled to call witnesses. He also suggested that Mr. Lyons is entitled to a fair and impartial examination of the issues being investigated and that it did not appear to him that the Chief Executive was in a position to provide such a fair and impartial examination given his involvement in the procedures to date and most particularly in the light of his apparent acceptance of findings made against Mr. Lyons.
88. By letter dated the 6th of September, 2016 William Egan & Associates solicitors wrote to the applicant’s solicitor stating the following:
“A reading of these documents (the Bullying Prevention Policy and Circular letter 71 of 2014) makes it abundantly clear that there an inextricable and intended link between them. It is repeatedly stated there were employees found to have behaved in an inappropriate manner towards another employee. The defending conduct may be referred to the disciplinary procedures at an appropriate stage.”
It further stated:
“In the circumstances our client is now quite entitled to refer the matter to the disciplinary procedure at an appropriate stage to consider the appropriate conduct of your client and what disciplinary action, if any, may be appropriate to the circumstances.
Your client has participated in the process to date and has had access to representation and all the relevant documentation throughout that process. The now related suggestion that he is in some way a stranger to the details of the matter, that all the work to date should now be set aside to commence a de novo process is entirely intangible and without foundation.”
89. The Court is satisfied that a finding of bullying in contravention of the Bullying Prevention Policy does amount to conduct of a serious nature. Such a finding of course, could lead in certain cases to dismissal. It is not for the Court to make any decisions in this regard as it is clearly a matter for the Chief Executive to make a determination.
Fair Procedures in Relation to the Investigation by Graphite Recruitment HRM
90. The process set out in Bullying Prevention Policy and Circular 71/2014 excludes a legal representative from acting on behalf of a teacher against whom accusations are levelled. This is the case, even though the complaints may lead to dismissal. Investigative bodies, like Graphite Recruitment HRM are utilised by employers both in the public sector and in the private sector. Generally, the processes adopted by such bodies exclude:
(1) legal representatives from attending on behalf of their client;
(2) cross-examination.
91. Where investigative processes can lead to dismissal, cross-examination is a vital safeguard to ensure fair procedure. In Borges v. the Fitness to Practice Committee [2004] 1 IR 103, Keane C.J. states:
“It is beyond argument that, where a tribunal such as the first respondent is inquiring into an allegation of conduct which reflects on a person’s good name or reputation, basic fairness of procedure requires that he or she should be allowed to cross-examine, by counsel, his accuser or accusers. That has been the law since the decision of this Court in In re Haughey [1971] I.R. 217 and the importance of observing that requirement is manifestly all the greater where, as here, the consequence of the tribunal’s finding may not simply reflect on his reputation but may also prevent him from practicing as a doctor, either for a specified period or indefinitely.”
92. Keane C.J. discusses conduct which reflects on a person’s good name or reputation:-
“The applicant cannot be deprived of his right to fair procedures, which necessitate the giving of evidence by his accusers and their being cross-examined, by the extension of the exceptions to the rule against hearsay to a case in which they are unwilling to testify in person.”
93. In Maguire v. Ardagh [2002] 1 IR 385 Hardiman J. stated:-
“where a person is accused on the basis of false statements of fact, or denied his civil or constitutional rights on the same basis, cross-examination of the perpetrators of these falsehoods is the great weapon available to him for his own vindication. Falsehoods may arise through deliberate calculated perjury.”
94. Hardiman J. continued:-
“In re Haughey [1971] I.R. 217, it was said by Ó Dálaigh C.J. at p. 264:
“… in proceedings before any tribunal (this Courts emphasis) where a party to the proceedings is on risk of having his good name, or his person or property, or any of his personal rights jeopardized, the proceedings may be correctly classed as proceedings which may affect his rights, and in compliance with the Constitution the State, either by its enactments or through the courts, must outlaw any procedures which will restrict or prevent the party concerned from vindicating these rights.”
Applying that general principle to the facts of that case, this Court found at p. 263 that a person against whom damaging allegations were made was entitled to the following “minimum protection”:-
(a) that he should be furnished with a copy of the evidence which reflected on his good name;
(b) that he should be allowed to cross-examine, by counsel, his accuser or accusers;
(c) that he should be allowed to give rebutting evidence; and
(d) that he should be permitted to address, again by counsel, the Committee in his own defence.
Without these rights:-
“no accused – and I speak within the context of the terms of the inquiry – could hope to make any adequate defence of his good name. To deny such rights is, in an ancestral adage, a classic case of clocha ceangailte agus madraí scaoilte. Article 40, s. 3 of the Constitution is a guarantee to the citizen of basic fairness of procedures. The Constitution guarantees such fairness, and it is the duty of the court to underline that the words of Article 40, s. 3 are not political shibboleths but provide a positive protection for the citizen and his good name.”
Accordingly, the right to cross-examine one’s accusers is a constitutional right and not a concession. It applies, as In re Haughey [1971] I.R. 217 affirmatively demonstrates, in an Oireachtas committee or sub-committee as well as in any other forum in which a citizen may be accused. It is an essential, constitutionally guaranteed, aspect of fair procedures.”
95. It is quite clear to this Court that the proceedings adopted by Graphite Recruitment HRM Ltd. is in breach of Article 40(3)(1) and (2) of the Constitution of Ireland by the refusal to allow legal representatives to appear on behalf of the applicant. The processes adopted by Graphite Recruitment HRM Ltd. failed to vindicate the good name of the applicant, in their refusal to hold an appropriate hearing, whereby the applicant through solicitor or counsel may have cross-examined the complainant..Equally, the complainant ought be entitled to then cross-examine the applicant.
96. Fair procedures manifestly indicate that the applicant has the right to confront and cross-examine the individual who has made allegations against him. It is unclear whether Stage 4 of the Disciplinary Procedure under Circular 71/2014 entitles the applicant to be accompanied by a solicitor. However, this Court finds that it is the it is the actual investigation that requires the rights to cross-examination and representation, that takes prior to the initiation of the disciplinary procedure under Circular 71/2014.
97. It appears to this Court that the Department of Education and Skills must be aware of the importance of fair procedures, and how fair procedures must be adopted under its Bullying Protection Policy, or its ‘Disciplinary Procedures’ under Circular 71/2014. It is clear that as a matter of law and as a matter of fair procedures an individual whose job is at stake and against whom allegations are made would be entitled to challenge and cross-examine evidence. The Court finds that the investigation carried out by Graphite Recruitment HRM Ltd. failed to adopt fair procedures, in contradiction of the dicta of Supreme Court in the above cited decisions.
98. It is noted by the Court that this is the process adopted by many companies when dealing with complaints against employees. It is quite clear that the exclusion of solicitors and counsel, and the refusal to allow cross-examination under such policies is a breach of the Constitutional right to fair procedures.
99. It is clear to the Court that if there is a finding of bullying under an investigation that adopts constitutional fair procedures, this may amount to conduct of a serious nature. In a case such as this, such a finding would allow an employer to invoke Stage 4 of the procedures – but only if the investigation leading to such a finding had been conducted in line with fair procedure.
100. Such a finding could lead to dismissal, but it is not for the Court to make any decisions in this regard. This is a matter for the Chief Executive to determine, and the Court repeats, this is provided that the finding of bullying followed from a constitutionally sound investigative process.
101. The Court is clear that in circumstances where a complaint is made which could result in an individual’s dismissal, or where it impinges on the individual’s right to a good name, the individual is entitled to fair procedures, as outlined by the Supreme Court in the case law quoted above.
102. Counsel for the respondent makes the point that the order following from a judicial review case such as this is an order of certiorari. This would quash the decision of the respondent dated the 30th of August, 2015, insofar as the respondent upheld a finding of bullying against the applicant, for the purpose of summoning the applicant to a Stage 4 disciplinary meeting as provided for in the Department of Education and Skills Circular 71/2014.
103. However, the Chief Executive is relying on a flawed and constitutionally impermissible finding of bullying. In the Court’s view, the investigative process comes foursquare within the remit and ambit of the judicial review sought by the applicant.
104. In summary, the Court holds as follows:
(1) The investigation by Graphite Recruitment HRM Ltd. was in breach of the constitutional right to fair procedures.
(2) If a constitutionally sound finding of bulling had been made, this could amount to conduct of a serious nature, and as such could be the subject matter of a disciplinary process at Stage 4 of the proceedings set out above. This would not necessitate the investigation being carried out under Stages 1 to 3 beforehand.
105. Finally, the Court will set aside the summoning of the applicant to a Stage 4 disciplinary meeting, on the basis that the findings of Graphite Recruitment HRM Ltd. are in breach of the fair procedures. The Chief Executive has no constitutionally sound basis to hold a disciplinary hearing in accordance with Circular 71/2014.
Kelleher -v- An Post
[2016] IECA 195 (28 June 2016)
Court of Appeal
Composition of Court:
Hogan J., Dunne J., Murphy J.
Judgment by:
Hogan J.
1. On Tuesday 28th June 2011 a dreadful kidnapping incident took place which has had life changing implications for the appellant and his family. The appellant, Mr. Tom Kelleher Snr., was at the time the postmaster at Newcastle West, Co. Limerick. On that particular day he was on annual leave and he had just gone on holiday to Spain with his wife when an adult son of his, Tom Jnr., was kidnapped at gunpoint and taken hostage. On that morning Tom Jnr. had just arrived at the rear of the post office in his father’s car when he was abducted. The appellant’s holiday was obviously interrupted and he had to return to Ireland immediately.
2. The appellant had left another son, Ronan, and two other employees in charge of the post office. In the appellant’s absence, however, the staff at the Post Office at Newcastle West – who obviously feared for Tom Jnr.’s life – agreed to hand over €105,000 at a specified location to the kidnappers by way of payment of a ransom demand. It was fortunate that Tom was released without physical harm from what must have been a terrifying incident.
3. These were obviously deeply traumatic events for the appellant and his family, although the fact that Tom was not physically harmed must be regarded as very positive news indeed. The appellant’s ordeal was not, however, over because these events set in train a disciplinary process which ultimately resulted in the termination of his contract qua postmaster, together with a finding that he was contractually liable to pay An Post 50% of the missing moneys.
4. These events must have come as a terrible blow to the appellant. He had served as postmaster for 19 years and he had also built the premises (which he owns) from which the post office at Newcastle West operates. His wife and one of his sons are employed there. Following his suspension from his position on the previous day, the appellant’s salary was stopped on 30th June 2011 and he says that he has been dependent on social security payments since that date.
5. It is these events which have given rise to these proceedings. The appellant has claimed, in essence, that the procedure which resulted in the termination of the appointment was unfair and that he has no contractual liability to An Post in respect of the missing moneys. In the High Court, Peart J. dismissed these claims in a reserved judgment delivered on 16th May 2013: see Kelleher v. An Post [2013] IEHC 328. The appellant now appeals against that decision.
The suspension of the appellant and the four issues raised by An Post
6. Before examining any of these issues in detail, it is necessary first to recount the events which led to the termination of the contract in the first place. Following the release of Tom Jnr. by the kidnappers, a follow-up check of accounts at the Newcastle West Post Office took place on 29th June 2011 which was carried out by An Post’s Waterford audit team. A number of issues were then identified and the appellant was interviewed. Following this, the appellant was handed a notice at about 8.30 pm on the evening of 29th June suspending him from his contract.
7. On 19th July 2011 Mr. J.J. Ryan, the relevant manager from An Post, wrote to the appellant. While the letter very properly expressed sympathy with the family’s plight and ordeal, Mr. Ryan nevertheless outlined the issues of concern to the company and indicated that the question of whether the appellant could continue to hold a contract as postmaster was now under consideration. Mr. Ryan outlined four issues for consideration.
Issue 1: Failure to follow company security procedures in the course of the kidnap incident on 28th June 2011.
8. Mr. Ryan stated that the staff at the Post Office did not contact a dedicated telephone help line in accordance with An Post security policy during the course of the kidnap incident. The sum of €105,000 was, moreover, handed over to the kidnappers without any contact having been made with An Garda Síochána, An Post or, indeed, with the appellant himself. An Post contended that there would have been time to do this, because a member of staff left with the money at 11.15am on the 28th June, but contact was made with An Garda Síochána only at 3pm that afternoon.
9. The staff at the Post Office had, however, informed the audit team that they were unaware of the special security telephone helpline and they also stated that they had never attended any security seminars. Mr. Ryan stated that An Post took the view that even though Mr. Kelleher was on holidays at the time of the kidnap, it was incumbent upon him to ensure that the staff who were left in charge were fully aware of the security procedures.
10. Mr. Ryan noted that the appellant had stated during his interview that he had not advised his staff of the relevant security telephone number to contact in the event of a hostage taking because he believed that this was for postmasters only. Mr. Ryan stated that the company could not accept this, particularly since the appellant had attended a particular security seminar in September 2009 where it had been made clear to all those attending that the number should be made available to all staff.
11. Mr. Ryan then explained that An Post considered that the failure to follow the security policy had facilitated the theft of the €105,000, increased the risk to the hostage and also significantly increased the risk “to other offices which may be seen as a soft target.”
12. Mr. Ryan also stated that it was the company policy that where losses from a robbery or kidnap of this kind are contributed to by the negligence of the postmaster then he or she would be required to make good the appropriate loss in accordance with the conditions of the contract. In this regard Mr. Ryan stated that the company wished to give Mr. Kelleher an opportunity to put forward any reasons why his contract should not be reviewed and why he should not be asked to make good some or all of the loss suffered.
Issue 2: Misuse of company funds
13. The second issue of concern to An Post was that when the investigation started on 29th June 2011 Mr. Kelleher informed the Information Manager that he had taken the sum of €12,000 in cash from the company funds on 27th June 2011 before his departure on holidays. As it happens, the audit team had discovered that some €129,074 was missing from the post office. €12,000 of that figure represented the sum which the appellant had admittedly taken on holiday. €105,000 was attributable to the sum which had been paid to the kidnappers and a further €12,000 had been hidden from the kidnappers by staff and which sum was later found by the appellant on his return.
14. In his letter Mr. Ryan referred to s. 2.33(C) of the Postmasters’ Manual which contained an express provision prohibiting the postmaster from making personal use of any balance for any purpose other than the public service.
Issue 3: Failure to process business deposits on day of receipt
15. Mr. Ryan stated that it had been discovered that three business deposits from a major supermarket company had not been processed since the day they had been presented on 24th June 2011. It was pointed out that all deposits of this kind were required to be brought to account on the day that they are presented.
16. Mr. Ryan observed that these delays presented their own difficulties, including the risk of theft, breach of contract with corporate depositors, missing funds and the misuse of the money in question. There was also the risk that the company would lose business with one of its strongest business deposit clients. He also stated that these delays had been brought to the appellant’s attention on a number of earlier occasions.
Issue 4: Unauthorised access to the Post Office and counter information system
17. Mr. Ryan stated that Mr. Kelleher had instructed his son to put through his monthly payment through the An Post’s counter automation system. Mr. Ryan noted that in order to comply with this instruction Mr. Kelleher’s son would have had to have accessed the Post Office Area and Computer Automation System. As Mr. Kelleher’s son was not a registered assistant and was not even connected to the running of the business, this was unauthorised and it was, indeed, strictly prohibited even to disclose one’s own password to the system to any unauthorised person.
The Appendix IV procedure
18. Mr. Ryan stated that the particular stipulated procedure known as the Appendix IV procedure would be followed in relation to this disciplinary investigation.
19. The Appendix IV procedure governs the process for handling cases involving “a potential breach of contract”. The essential features of the procedure are as follows:
(a) First, a letter is sent to the postmaster detailing all matters in issue. The postmaster is then provided a period of time to respond. Following this response the case is then reviewed by a Contractors Manager (in this case, Mr. Ryan) and a recommendation is then made to the Head of Contractors in respect of the case.
(b) The recommendation may range from no action to a warning to a recommendation to terminate the contract.
(c) If the postmaster is dissatisfied with the result, he may appeal that decision. Following a hearing, recommendation is than sent. A decision is then taken by the Head of Contactors (in this case, Mr. John Dunleavy) which is then communicated to the postmaster in question.
The appellant’s response of 29th July 2011 and subsequent correspondence
20. The appellant responded in a lengthy and detailed letter of 29th July 2011. Adopting the graphic words of Peart J., one may say that this reply constituted “an indignant denial and traverse” of these charges and which also contained “extensive explanations and justifications in relation to the issues raised.” This letter gave rise to a lengthy exchange of correspondence over the following months.
21. In a letter dated 12th September 2011 the appellant complained that the investigation procedure was being conducted by An Post in an unfair way, specifically in the way in which – he maintained – that so many matters had been pre-determined. The appellant sought assurances that this would not re-occur and that the company would act only on the basis of the evidence which had been properly gathered. The appellant also requested that the procedures would follow principles of due process and sought details of witnesses.
22. Mr. Ryan responded by saying:
“The company remains of the view that you were seriously negligent in not having trained your staff in correct procedures. This is compounded by the fact that you absented yourself for a week, leaving an assistant in charge who, through your negligence, was not familiar with or properly instructed in the procedures to be followed in dealing with events which transpired.”
23. Mr. Ryan also stated that the procedure would be inquisitorial. This meant that while the company did not intend to have witnesses present, the appellant could request the presence of other relevant witnesses. Mr. Ryan stated that at the conclusion of the hearing the appellant would be supplied with a written summary record of the oral hearing. He would then be given an opportunity to review it and raise any matter that he felt was not adequately dealt with in that summary. Later correspondence confirmed 14th October 2011 as the date for the oral hearing.
24. In advance of that date the appellant then wrote a further letter to Mr. Ryan on 12th October 2011. Before setting out the terms of the letter, it seems to be accepted that just before that date a Mr. McGann (who was a representative of the Irish Postmasters’ Union and of which the appellant was then a prominent member) had a discussion with Mr. Dunleavy in which the present case was discussed. At all events the appellant was advised by his union representatives that he should withdraw an earlier letter which he had written to Mr. Ryan. The appellant then contacted Mr. Ryan who agreed to return the original letter.
25. In the letter of 12th October 2011 which he then sent to Mr. Ryan – and which then replaced the original letter which Mr. Ryan had returned – the appellant struck a rather more conciliatory tone: he accepted that his understanding in relation to the hostage helpline had been incorrect. He also gave an assurance that if he were to be re-instated that in future all staff would be fully conversant with the specialised anti-hostage safety procedures.
26. The appellant also accepted that he should not have drawn down the €12,000 in advance of the holiday, saying it was the first time he had done anything like that. He assured An Post that he was scrupulously honest and that he would never do anything like this again. He further accepted that the password log-in procedures had not always been strictly adhered to, but again assured the company that this breach of security procedure would not be repeated.
27. So far as the business deposits were concerned, the appellant explained that it was not always possible to arrange to have the deposits lodged on the same day. But the appellant insisted that in future he would make every effort to ensure that these deposits were processed in a timely fashion without any further delay.
28. The appellant concluded this letter thus:
“…the experience that myself and my family have endured since June has been traumatic and devastating and one which will haunt all of us for a very long time to come. At this stage I simply want to get back to work and try, as best I can, to restore some normality for myself and my family. In this context, I would regard this as my final reply (unless you have any further queries) and I am now not seeking an oral hearing.”
29. The obvious inference from this sequence of events is that the appellant had been advised that that a more conciliatory approach was more likely to yield positive results and he decided to accept this advice. Indeed, in his judgment, Peart J. observed that the letter was “apparently drafted for [the appellant] by Mr. McGann.”
30. Yet, as Peart J. elegantly put the matter in his judgment, this new letter “did not achieve the appellant’s presumed intention”. Mr. Ryan prepared a report (the conclusions of which are summarised below) which he transmitted to Mr. Dunleavy, the Head of Contractors on 25th October 2011. In that report Mr. Ryan recommended the termination of the contract. This recommendation was accepted by Mr. Dunleavy on 27th October 2011.
31. Mr. Ryan then responded to the appellant on 27th October 2011 stating that while he regretted the necessity for the decision, the company had no alternative but to terminate the contract having lost confidence in the appellant. The appellant had seven days to appeal that decision.
32. Mr. Ryan further stated the company believed that the appellant had been negligent in not having trained his staff properly in the correct procedures and that this had contributed to the success of the robbery. The company concluded that he was 50% responsible and it accordingly required him to pay €52,500 in accordance with the terms of the contract. The appellant’s solicitors wrote to An Post on 1st November 2011 stating that he wished to appeal. They also indicated that it was inappropriate to require the appellant to pay the money demanded.
33. This may be a convenient point to note a development which took place after the High Court had delivered judgment. It would seem that some €41,950 of the missing moneys were subsequently recovered by An Garda Siochána and returned to An Post under the Police Property Act. In correspondence dated 3rd November 2014 An Post confirmed receipt of these moneys, so that the sum which it was now seeking and it which it said it was contractually entitled to 50% of the remaining missing moneys, namely, €31,525.
The appeals process
34. The appellant was then informed that a Mr. Rory Delany, the Human Resources Manager, had been appointed to hear the appeal. Mr. Delany wrote on 11th November 2011 outlining the procedure he intended to follow. He invited the appellant to write to him setting out the grounds of appeal, together with any ground of mitigation on which he proposed to rely. Mr. Delany also stated that, if necessary, an oral hearing could be arranged.
35. By letter dated 26th January 2012 the solicitors for An Post forwarded a copy of Mr. Ryan’s report and recommendations to Mr. Dunleavy. In his report Mr. Ryan had summarised the various arguments advanced by the appellant, along with the response of An Post, in a very fair and comprehensive fashion. His conclusions were as follows:
“Conclusion and recommendation”
Mr. Kelleher has been reluctant to accept that there was any wrongdoing on his behalf. For over three months he repeatedly sought to abdicate his responsibility in relation to training his staff on the relevant security procedures and argued that this was the Company’s responsibility. His attempt to construe this failure as a misunderstanding is unconvincing and unsubstantiated. The fact is that he left his deputy in charge of the office in circumstances where she or any of the other assistants had not been properly briefed in relation to security procedures.
He attempted to portray his ‘alleged’ misuse of company funds as factually incorrect despite the fact that there was absolutely no doubt that he did misuse company funds and that he clearly admitted saying this in his signed document. He took €12,000 of the company’s funds, unknown to his deputy, on the basis that he would have his son conduct an unauthorised transaction to collect his remuneration, again without knowledge of his deputy.
Regarding his failure to process business deposits in accordance with procedures, there may be some ambiguity surrounding the previous correspondence. However, he has failed to put forward an explanation for the two day delay in processing these items. I believe that this is indicative of his poor attitude to compliance with company procedures. Likewise, I believe his failure to follow procedures in respect of the use of counteraction passwords is indicative of his poor attitude to compliance.
He also sought to discredit the company’s investigations and the breach of contract process rather than accept any responsibility for his actions. He sought to rely on his impeccable record, when his record is not impeccable. In the circumstances outlined above, I don’t believe the company have confidence in Mr. Kelleher continuing to hold the contract to provide Post Office services at Newcastle West. Accordingly, I recommend that Mr. Kelleher’s contract as Post Master at Newcastle West Post Office is terminated with immediate effect.”
36. It follows, therefore, that the appellant was possessed of Mr. Ryan’s report in advance of the appeal hearing.
37. There then followed further correspondence which culminated in a hearing which was scheduled for 4th April 2012. It was agreed that the appellant’s solicitor, Mr. Casey, would make an oral presentation on the substantive hearing and make written submissions on the procedural issues. This duly occurred and on 9th May 2012 his solicitor was sent a summary report of the appeal hearing which had taken place a month earlier. The appellant then responded with some suggested alterations.
38. Following further inquiry by the appellant’s solicitors, Mr. Delany confirmed that a report had been sent by him to the Director of Retail Operations at An Post. On 20th August 2012 An Post wrote to the appellant stating that following receipt of the report from the Director of Retail Operations, no reason had been found to alter the initial decision. His appeal was accordingly rejected and his contract was terminated with immediate effect.
The appellant’s case
39. The appellant essentially raises five points of objection. First, he says that the trial judge was in error in holding that procedures afforded to the appellant by Appendix IV were entirely appropriate. Second, he contends that he ought to have been supplied with a copy of Mr. Ryan’s proposed recommendations to Mr. Delany. In addition, he also submits that there was pre-judgment on the part of Mr. Ryan. Third, he says that he was equally entitled to see Mr. Delany’s report to the Director of Retail Operations. Fourth, he submits that there was improper contact between Mr. Dunleavy and a third party, Mr. McGann. Finally, he says that An Post are not entitled to recover the sum of €31, 525 in the course of this procedure.
40. I propose to consider each of these arguments in turn.
Ground 1: Whether An Post correctly applied the Appendix IV procedure
41. The first ground of appeal is that An Post applied the wrong procedure and that it was Clause 2.39 of the Postmasters’ Manual which was the operative provision. Clause 2.39 provides:
“Any appeal against a disciplinary decision should be made without delay. The decision, or relevant form, should at once be noted “subject to appeal” and the appeal should be forwarded if not later than ten days thereafter, otherwise the right of appeal will lapse. If the punishment be not of a serious nature only one appeal is permitted. In “serious” cases up to three appeals are allows: The first should invariably be made by the officer himself / herself and if he/ she is dissatisfied with the result he / she has the option of making a third appeal to the Regional Manager either on his / her own behalf or through his / her association. Where an appeal is being made by an association, the officer must produce a communication from the association not later than thirteen days after the rejection of his / her own appeal, signifying that an appeal is being lodged on his / her behalf. The association must then forward its appeal within a further period of seven days. If this proves unsuccessful, a final appeal may then be made within a further seven days.”
42. An Post disputes the applicability of this particular provision, saying that it really applies only to disciplinary matters of a minor nature.
43. In the High Court Peart J. agreed with this latter submission, saying that the Clause 2.39 procedure could not have been intended:
“to cover matters of the complexity of the present case and which required such a detailed investigation process, followed by the requirement to afford the plaintiff every opportunity to respond to the issues identified as being of concern to An Post. Clause 2.39 provides for a procedure of much more summary kind…even though it speaks of three appeals. For example, there seems to be no opportunity provided for in Clause 2.39 for an oral hearing and an oral appeal.”
44. Peart J. then went on to note that this issue was raised first raised by the appellant after the disciplinary hearing had concluded:
“It seems to me that the procedure afforded to the [appellant] under Appendix IV procedures were entirely appropriate given the issues involved in this case. In my view, the plaintiff himself considered that [Appendix IV] procedure to be appropriate and participated in same, even though in his letter of 12th October 2011 he stated clearly that he no longer required an oral hearing.”
45. In my view, it is probably unnecessary to express any view as to whether Appendix IV or Clause 2.39 governed this particular disciplinary appeal. It is sufficient to state that the appellant fully participated at all stages in the Appendix IV procedure without objection until the final decision proved adverse to his interests. The entire procedure had been carefully explained to him at the outset by Mr. Ryan and at a later stage by Mr. Delany.
46. There is abundant authority for the proposition that knowing participation in a procedure of this kind operates to create an estoppel against the party who elected to avail of that procedure: see, e.g., the decisions of the Supreme Court in Corrigan v. Irish Land Commission [1977] I.R. 317 (where Henchy J. held that a person who elected to proceed with an administrative hearing knowing of the composition of the adjudicatory panel could not later complain that the panel was irregularly composed) and The State (Byrne) v. Frawley [1978] I.R. 326 (knowing election to proceed with unconstitutional jury).
47. This principle was, in any event, applied in the context of disciplinary hearings by Laffoy J. in Delaney. In that case the plaintiff, with the benefit of independent legal advice, agreed to participate in a psychiatric assessment organised by his employer. In view of this election Laffoy J. held that the plaintiff was then debarred from contending that the referral to the psychiatrist was invalid.
Conclusions in respect of ground 1
48. In my view, the appellant is accordingly debarred by his own conduct in knowingly participating in the process from challenging the validity or appropriateness of the Appendix IV procedure as it was applied to the present case. It follows, therefore, that this ground of objection must fail.
Grounds 2 and 3: Whether the appellant was entitled to Mr. Ryan’s report to Mr. Delany and Mr. Delany’s report to Mr. Dunleavy
49. The appellant submits that he was entitled as a matter of fair procedures to a copy of the respective reports prepared by Mr. Ryan for Mr. Dunleavy and in turn by Mr. Delany to Mr. Dunleavy. In essence, the appellant’s argument is that he was entitled to see the nature of the comments and recommendations made by the party who gathered the evidence prior to any decision being made by the party to whom the report was transmitted. In the High Court Peart J. rejected this argument, saying that:
“That could not be the case in my view. The plaintiff had his appeal hearing. That was where his fair procedure rights are to be afforded to him. That is where he makes his points and arguments. Thereafter the appeal is closed and a decision falls to be made. There is no obligation to be inferred that the appeal officer must once again revert to the appellant.”
50. There is no doubt but that this is correct as a general statement of principle. That, however, is not quite what happened here as the person who gathered the evidence or who prepared the report was not the ultimate decision maker. It is clear from the authorities that in such circumstances the decision maker is not entitled to act on the basis of information concerning issues of fact which was not disclosed to the party affected by the ultimate decision.
51. Perhaps the case which has the closest analogy with the present one is Traynor v. Ryan [2003] IESC 36, [2003] 2 IR 564. This case concerned the operation of the common Consultants’ Contract which envisaged a two stage procedure in respect of certain types of disciplinary complaints. The first stage required the relevant Hospital Manager to assess whether there was something in the nature of a prima facie case against the consultant in question. The second stage provided that in the event that the Manager concluded that there was such a case to answer, the matter was then to be referred to a committee which was appointed by the Minister for Health. The final decision on the substantive merits of the complaints rested with the committee.
52. In Traynor the manager had not only found that there was a case to answer in respect of the majority of the complaints, but had proceeded to make adverse findings on the merits of the dispute. The Supreme Court accepted that the manager had erred by purporting to determine the merits of the dispute when his task was simply to determine whether there was a case to answer. The appellant argued that this meant that there was clear pre-judgment which infected the capacity of the committee to arrive at an objective result. This argument was, however, rejected by Fennelly J. ([2003] 2 IR 564, 577-578 )
“Next, it has to be considered whether the conclusions of the [manager] so infect the entire procedure that it is no longer possible for the appellant to have a fair hearing before the committee. The Minister has been restrained by order of the High Court from acting on foot of the decision of the respondent [manager] referring the matter to him. Accordingly, there is no committee in existence before which the decision of 6th December could have been placed. Counsel for the respondent has emphasised that there is no requirement that the report be placed before the committee. The committee can perform its task without ever seeing the decision. At this point, it seems to me that the Court should presume, in the absence of any indication to the contrary, that the Minister will ensure that all aspects of the procedure before the committee will be conducted fairly. However, I have already stated that it was not any function of the respondent to pronounce conclusions on the merits of the matters in issue. Therefore, such findings would be wholly immaterial to any subsequent step taken in relation to them. All that could be material is the decision simpliciter to refer the matter to the Minister. The possibility of its influencing the deliberations of the committee does not, for these reasons warrant quashing the decision.”
53. It is clear, therefore, that the ultimate decision in Traynor turned on the fact that the adjudicatory committee would not even see the adverse findings of the manager. The clear implication, therefore, is that the disposition of the case would – or, at least, might – have been different had the committee been obliged to consider those findings. It is also important to note that at issue in that case were allegations of professional misconduct which the consultant in question had strenuously denied.
54. As I have already observed, the modern jurisprudence clearly states that a decision-maker is not entitled to act on the basis of material gleaned from outside the hearing and which has not been disclosed to the party affected, albeit that this principle is subject to the important proviso that it only applies to disputed facts. This is illustrated by Georgopoulus v. Beaumont Hospital Board [1998] 3 I.R. 132, 154, Hamilton C.J., giving the judgment of the Supreme Court held as follows:-
“It is submitted on behalf of the plaintiff that the Irish courts have accepted that a breach of fair procedures occurs when a decision-maker acts on the basis of information which had been obtained outside of the hearing and which is not disclosed to the party adversely affected.
I unreservedly accept the submission provided it relates to facts which are relevant to the matters in issue before the Tribunal. It does not apply to questions of legal advice given to a Board or Tribunal in relation to the conduct of an inquiry.” (italics supplied)
55. The application of this principle is also illustrated by a variety of contemporary case-law, of which the following authorities may be taken as representative. In Aziz v. Midland Health Board, Supreme Court, 29th October 1999 the Supreme Court quashed a decision of the hospital to terminate a registrar’s contract where it was said that the latter had failed to attend on a particular day without leave. The hospital’s case was that a particular consultant, a Dr. Taaffe, had given the applicant a written direction to attend on the day in question which the latter had then disobeyed. The applicant maintained that Dr. Taaffe had accepted that his attendance was not required on that day pending a review by the hospital of the necessity for cover on the day in question. It transpired, however, that the hospital’s chief executive officer had subsequently spoken to Dr. Taaffe on this very issue in the absence of the applicant. This was held by the Supreme Court to be a breach of fair procedures.
56. As Keane J. explained:
“The issue which the defendants, acting in a quasi-judicial capacity, had to resolve was whether the plaintiff was entitled to conclude that Dr. Taaffe was accepting his non-attendance on the Saturday morning because of the absence of SHO cover, pending a review of the matter by the hospital administration. That case, however tenuous it might be, was one which the plaintiff was entitled to have considered by the defendants in accordance with accepted norms of natural justice and those norms were unfortunately not met when the Chief Executive Officer elected to have a private discussion with Mr. Bane and Dr. Taaffe in the absence of the plaintiff before arriving at his decision. Given the clear conflict between the plaintiff and Dr. Taaffe as to what happened at the crucial meeting between them on the Friday, this failure to observe proper procedures could not, in my view, be disregarded.
As I must again emphasise, the fact that there was ample evidence to justify the conclusion by the CEO that not merely had the misconduct been established but that it was of sufficient seriousness to warrant the plaintiffs dismissal did not absolve the defendants in a matter of this gravity from adhering scrupulously to fair procedures.”
57. This point also emerges from two other recent High Court decisions. In Delaney v. Central Bank of Ireland [2011] IEHC 212 the applicant had previously made complaints of bullying by some fellow employees. Although these complaints were not upheld, certain findings were made against other employees and there was no question that these complaints had been made on some frivolous basis. Some concerns had been expressed by senior management in the Bank about his mental health and he was ultimately required by his employer to attend a particular psychiatrist, a Dr. Mohan. Dr. Mohan ultimately concluded that the plaintiff was suffering from a particular disorder and this led to his suspension from work.
58. The plaintiff contended that the procedures which led to the report of Dr. Mohan suspension were unfair. Specifically, he objected to the fact that he had been denied access to the material which accompanied the letter from the Bank’s solicitor to Dr. Mohan requesting a review of the plaintiff. There had moreover been a private meeting – which the Bank asserted was covered by legal professional privilege – between Dr. Mohan and the Bank’s representatives. Moreover, one of the persons against whom allegations of bullying had been made, a Mr. Kelly, had himself made contact with Dr. Mohan and had been allowed to put his position in writing which, in the words of Laffoy J., “was designed to, and obviously did, influence Dr. Mohan.”
59. It was for these reasons that Laffoy J. concluded that the process which led to Dr. Mohan’s report had not been conducted in accordance with fair procedures:
“It was entirely inappropriate that Dr. Mohan should be put in a position of having to base his opinion on the view of Mr. Kelly….as to the personal traits, the work performance and the conduct of the plaintiff in the workplace, which he did to a large extent. Whether the views of Mr. Kelly of the plaintiff were correct or not, unfortunately, the appendices to Dr. Mohan’s report give rise to the perception that Mr. Kelly was allowed to be a judge in his own cause.
The decision of the Bank that the plaintiff should not return to work, which was communicated to his solicitors in the Bank’s solicitors’ letter of 7th July, 2008, as that letter indicates, was based entirely on Dr. Mohan’s report and “his views in relation to the seriousness of [the plaintiff’s] condition”. For the reasons I have outlined, the process which led to Dr. Mohan’s report was not conducted in accordance with the plaintiff’s right to fair procedures and, accordingly, that decision cannot stand.”
60. The final authority on this point is that of Herbert J. in Somers v. Minister for Defence [2012] IEHC 447. This was a case where a member of the Defence Forces had (apparently) tested positive following a random drugs test in circumstances where the member concerned maintained that a drink of his must have been tampered with. There were also some differences between the “A and “B” samples. Following a first instance adverse disciplinary decision, the applicant duly appealed to an Appeals Officers. Unbeknownst to the applicant, however, the Appeals Officer sought advice from a specialist drugs testing unit within the Defence Forces upon which advice the Appeals Officer subsequently acted.
61. Herbert J. concluded that this amounted to a breach of fair procedures which entitled the applicant to a quashing order:
“It is not necessary for me to decide and, I do not decide, whether it is a breach of fair procedures for a decision-maker to seek “technical advice”, as distinct from legal advice in relation to the conduct of the inquiry. I am satisfied and I find that the advice sought and obtained by the Appeals Officer in the present case from the Officer in Command Defence Forces Drugs Testing Team and, upon which he acted, was advice relating to facts relevant to the matters at issue before him and in respect of which he was obliged to make a decision. As the Appeals Officer did not inform the applicant that he intended to seek such advice from the Officer in Command Defence Forces Drugs Testing Team and did not furnish the applicant with a copy of each of his letters seeking that advice and did not furnish the applicant with a copy of each of the letters received by him from the Officer in Command Defence Forces Drugs Testing Team in reply, there was a clear breach of fair procedures.”
62. How, then, should these principles be applied to the present case? For my part, if the facts were in controversy, then it seems incontestable in the light of these authorities that the appellant would have been entitled to have seen the report which had been prepared by the person who gathered the evidence for onward transmission to the ultimate decision-maker. It is the separation of the evidence-gatherer from the decision-maker which gives rise to this entitlement: if these were one and the same person than, of course, the principles enunciated by Peart J. would fully apply.
63. It must, however, be observed that the facts are not, however, in controversy. By reason of his letter of October 12th, 2011 the appellant has accepted the substance of the case alleged against him by An Post. He cannot dispute but that the staff at Newcastle West were not properly instructed as to basic security precautions or that he had improperly accessed €12,000 or that he had given his security passwords to an unauthorised person or that he had failed to lodge certain business deposits on a same day basis.
64. In that regard, the present case is very different from cases such as Traynor or Delaney or Somers, as in all of those cases the employees in question had stoutly denied any wrongdoing and the facts of these controversies were hotly in dispute. It may be recalled that in Georgopoulus the Supreme Court confirmed that this entitlement is triggered only where the facts are in controversy. By contrast, the present case has really reduced itself to the question of whether An Post ought to terminate the contract in view of these freely admitted facts. At a human level, one is bound to feel immense sympathy for the tragic outcome for the appellant as a result of terrible misfortune. But that cannot take from the contractual right of An Post to terminate the contract for stated cause provided that fair procedures have been followed.
65. For the reasons I have endeavoured to state, I do not think in the particular circumstances of this case that the appellant was entitled to have access either to Mr. Ryan’s report to Mr. Delaney or, for that matter, the report of Mr. Delaney to Mr. Dunleavy. To that extent, I agree with the ultimate conclusions of Peart J. on this issue, even if I do so for slightly different reasons.
Ground 4: The contact between Mr. McGann and Mr. Dunleavy
66. In his judgment Peart J. noted that the appellant had meet with Mr. McGann (and another IPU representative) at the IPU’s request following a meeting between Mr. McGann and Mr. Dunleavy. I have no doubt at all but that this intervention of Mr. McGann was well-intentioned and prompted by understandable sympathy for the unfortunate plight of the appellant. Reading between the lines, it is hard to avoid the impression that the IPU and its representatives considered that – possibly in the wake of that conversation – it would be best if the appellant were now to take a conciliatory approach in the hope that An Post would in turn exercise some clemency, as it was really pointless simply to deny the substance of the charges in the teeth of all the available evidence.
67. I agree that as counsel of prudence it might have well been better if the conversation in question had not taken place. Conversations of that kind have always the potential for potential confusion and misunderstandings, not least in fraught and difficult cases of this kind.
68. I nevertheless cannot conclude that this conversation was of such a nature such as exhibited pre-judgment or bias on the part of Mr. Dunleavy. In his affidavit (in respect of which he was not cross-examined) Mr. Dunleavy explained that he dealt with the IPU:
“In a situation where a member of the Union is suspended and potentially facing termination it would be very unusual not to have contact from the Union on the case. This is particularly so where the member concerned is a member of the IPU’s National Executive… Mr. Brian McGann, the General Secretary of the IPU, spoke to me in relation to the case. I don’t recall the specifics of any conversation I had, but I believe it was an enquiry of the General Secretary seeking to ensure that he had all relevant information so that he was as well informed as he could be when advising the member concerned. I can categorically state that I would not have sought to influence the type of advice the IPU might wish to give to the [appellant]. This is a matter for the IPU … I can think of no reason why I might have sought to do so… [A]t no time was I or [An Post] seeking to take any action to entrap the [appellant] [An Post] simply wanted to ensure that the [appellant] had a full and fair opportunity to respond to the issues which had been put to him. … [T]his is validated by the fact that when the [appellant] asked that we returned to him unopened the letter he had submitted, we did so.”
69. The present case is accordingly very different from cases such as Aziz where it was clear that the decision-maker had a substantive conversation with one of the protagonists in respect of a disputed issue of fact which was central to the disciplinary proceedings and in respect of which conversation the decision-maker acted.
Conclusions in respect of issue No. 4
70. While it might have been better had the conversation in question not taken place, the evidence does not establish any impropriety on the part of any of the parties. The conversation was well-intentioned and it does not appear that, contrary to cases such as Aziz, the decision maker ever acted on the basis of this conversation or treated it as an opportunity to gather evidence which might be applied to the appellant’s case.
71. In these circumstances, the objection on the grounds of apparent bias or pre-judgment must accordingly fail.
Issue No. 5: The claim by An Post for €31,250 representing 50% of the missing moneys
72. The remaining question is whether the appellant is liable to pay An Post the sum of €31,250. This sum represents 50% of the missing moneys and represents An Post’s evaluation of the extent to which the appellant’s negligence contributed to its loss. It is true that under the terms of the Postmasters’ Manual – which is, in effect, a contract between the parties – a postmaster is contractually liable to repay missing moneys if this is caused by the negligence of the postmaster in question.
73. A claim of this kind cannot, however, be unilaterally determined by An Post as if this were some form of liquidated demand, to be ascertained in the same manner as if the claim was made pursuant to a demand for payment at an agreed rate for contractual services. This claim is not an action for debt (such as might be brought by a credit institution against a defaulting borrower) or even a liquidated demand for money (such as might be brought by a professional person seeking payment for services rendered). It may well be that An Post is contractually entitled to this sum. But where, as here, the sum is disputed then the remedy for An Post is to sue the appellant for this sum as an unliquidated claim for damages for breach of contract.
Conclusions in respect of Issue No. 5
74. It follows, therefore, that An Post had no entitlement unilaterally to specify the sums which it contends were due from the appellant for breach of contract. If An Post claims to be entitled to this sum, then where (as here) such is disputed, it must sue the appellant in substantive proceedings for unliquidated damages for breach of contract
75. I would accordingly allow the appeal against this part of the order of the High Court and grant a declaration to this effect. I would, however, otherwise dismiss the appeal brought by the appellant against the decision of the High Court.
FULL RECOMMENDATION
CD/15/267
RECOMMENDATIONNO.LCR21066
EMBANKMENT PLASTICS LIMITED v A WORKER
DIVISION :
Chairman: Mr Haugh
Employer Member: Ms Doyle
Worker Member: Ms Tanham
SUBJECT:
1. Dismissal
BACKGROUND:
2. This case concerns the Worker’s claim that the was unfairly dismissed. On the 18th August, 2015 the Worker referred the dispute to the Labour Court in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court’s Recommendation.
A Labour Court hearing took place on the 15th October 2015.
WORKERS ‘S ARGUMENTS:
3. 1. The Worker was expected to start work 30 minutes ahead of his shift every day and in addition to that he was required to stay two hours after close of business every day. This was in addition to his regular contracted hours.
2. The Worker was left unemployed for a long number of months as a result of his dismissal.
3. The Worker was never made aware that there was any issue with his performance that would lead to disciplinary action.
EMPLOYER’S ARGUMENTS:
4. 1. The Employer was disappointed with the performance level of the Worker, and felt that he was performing below the expected standard of a Quality Engineer.
2. The Worker had been late arriving to work on some occasions and had been late on his first day.
3. The termination of the contract was in accordance with the terms contained in the contract .
RECOMMENDATION:
1. The Claimant commenced employment as a Quality Engineer with the Respondent on 16 February 2015. The Claimant’s employment was terminated on 27 April 2015 and the Claimant was paid in lieu of one week’s notice.
2. The Respondent’s submission is that the decision to dismiss the Claimant was justified on the following grounds:
a. The Claimant’s performance was below that expected of him;
b. The Claimant had been late arriving at work on “some occasions”;
c. The Claimant refused to comply with the Respondent’s Managing Director’s instruction to work additional hours, over and above his contractually agreed hours of 7.30 a.m. to 4.00 p.m., “for a limited period, to familiarise himself with his role as quickly as possible”.
3. The Claimant’s case is that he was informed by the Managing Director that he would be required to work up to 2.5 hours of unpaid overtime per day for an undefined period of time; that no reason or explanation was given to him for this requirement to work additional hours; and that when he requested an opportunity to consider the request he was dismissed immediately and paid in lieu of notice. The Claimant also submits that he was late on one occasion i.e. his first day of employment but that this was by agreement as he was travelling from the UK on that date and that he left work early on one day, having given notice of this to employer, to deal with a family medical emergency.
4. On questioning of the Parties’ legal representatives, the Court was informed that the Respondent had neglected to apply the following fundamental requirements of fair procedures in its dealings with Claimant:
a. At no stage did the Respondent issue the Claimant with a letter outlining its concerns with the Claimant’s alleged underperformance;
b. The Claimant was not on advance notice that the meeting he attended on 27 April 2015, and at which his employment was terminated, was a disciplinary meeting;
c. The Claimant was not advised of his right to be accompanied and/or represented at the meeting of 27 April 2015;
d. The Claimant was not given advance written notice that he was at risk of having his employment terminated at the aforementioned meeting;
e. The decision to dismiss the Claimant was communicated by the Managing Director in the course of an uninterrupted meeting on 27 April 2005 such that there is no evidence of the Managing Director having taken a break in proceedings to reflect on anything the Claimant may have said in defence of the allegations put to him at the meeting;
f. The Claimant was not issued with a letter of dismissal confirming the reasons for his dismissal and advising him of a right of appeal.
5. The Respondent seeks to rely on the following provision of the Claimant’s contract of employment:
Probationary Period
The first 6 months of your employment will be probationary. This probationary period may be extended if deemed appropriate by Embankment Plastics but will not exceed eleven months in total.
During or at the end of your probationary period, the Company may terminate your employment by giving you one week’s notice or payment in lieu of such notice. The Company’s disciplinary procedure shall not apply to any dismissal during the probation period (or any extension thereof).
6. Counsel for the Respondent drew the Court’s attention to a series of meetings that took place between the Complainant and the Managing Director during March and April 2015 (a number of which are not referenced at all in the Respondent’s written submission to the Court) at which the Respondent’s concerns with the Claimant’s performance and the reasons for the Respondent’s requirement that he work additional hours were allegedly put to the Claimant such that he was fully on notice of the Respondent’s position prior to the meeting of 27 April 2015.
Recommendation
The Court has carefully considered the written and verbal submissions of the Parties. There is a clear conflict of evidence between Parties in relation to the content of the discussions that took place between them about the Respondent’s instruction to the Claimant to work additional hours in excess of his contractually agreed hours; there is also a disparity in their positions as to when certain of those meetings took place. Having regard to the egregious breaches of fair procedures that occurred in the process that culminated in the Claimant’s dismissal, the Court does not need to attempt to reconcile the Parties’ differing accounts of those discussions.
In all the circumstances of this case, the Court finds that the Respondent’s decision not to adhere to either its own disciplinary procedures or be bound by the provisions of the Code of Practice on Grievance and Disciplinary Procedures (S.I. No. 146 of 2000) because the Claimant was on probation was misconceived.
The Court recommends that the Respondent pay to the Claimant compensation of €33,419.38 having regard to Claimant’s financial loss arising from his dismissal. The Claimant was unemployed for a period of 17 weeks during which period his loss was €16,419.38; he is earning some €17.000.00 per annum in his current employment than he did with the Respondent.
The Court so recommends.
Signed on behalf of the Labour Court
Alan Haugh
CO’R______________________
23rd October 2015Deputy Chairman
Bank of Ireland -v- Reilly
[2015] IEHC 241
Noonan J.
Introduction
1. In these proceedings, the defendant (“Mr. Reilly”) alleges that he was unfairly dismissed by the plaintiff (“the bank”) from his employment and has brought a claim pursuant to the Unfair Dismissals Act 1977 (as amended) (“the Act”). The claim originally came before the Employment Appeals Tribunal (“the EAT”), where it was seven days at hearing over a period of about a year. An appeal was brought from the decision of the EAT to the Circuit Court, which took eight days and in turn, the order of the Circuit Court was appealed to this court when the matter was at hearing for ten days. This is without taking account of an initial investigation, a two stage disciplinary process and two internal appeals.
2. By my reckoning, Mr. Reilly has given oral evidence on some eight occasions over a six year period in relation to this matter. Enormous costs have been incurred that Mr. Reilly at least can ill afford. This must be viewed as oppressive to say the least and calls into question the State’s obligations under Article 6 of the European Convention on Human Rights regarding the right to a fair and expeditious trial. Not for the first time has this court been critical of this unacceptable situation – see the remarks of Charleton J. in JVC Europe Limited v Panisi [2011] IEHC 299. Although as a matter of law an appeal lies from the Circuit Court to the High Court under the Act of 1977, a general reading of the Act appears to suggest an underlying assumption that the Circuit Court should be the final tribunal of appeal. It appears to me that it is well past time that this issue was addressed.
Background Facts
3. Mr. Reilly, who is now 33 years of age, is from Blanchardstown, County Dublin. After leaving school, he commenced employment with the bank on the 23rd of April, 2001 as an entry grade bank official. He rose through the ranks quickly. Within a year, he had won a customer service award for the north Dublin region. By 2004, he was promoted to senior bank official at the age of 22, which was a significant achievement. His ability, particularly in the field of consumer lending, was recognised outside the bank. He was approached by Ulster Bank in 2005 offering the position of sales manager and Halifax offered him the position of branch manager. In 2006, he was placed in an acting sales manager role which was formalised in September, 2007, when he was appointed as a sales manager at the age of 25. This would be equivalent in rank to what would formerly have been described as an assistant branch manager. Mr Reilly’sachievement in this regard was extremely unusual if not unique.
4. Most of the facts in this case are not in dispute but in particular, the fact that Mr. Reilly was an excellent employee with an exemplary record who was diligent and hard working.
5. From in or around 2002, Mr. Reilly had his own email address at the bank. His use of that address was subject to the bank’s code of conduct and other policy documents to which I shall refer further.
6. In early February, 2009, a chain email captioned “Hangover Brilliance” was forwarded to an individual in the bank who forwarded it in turn to four members of staff in the bank including Mr. Reilly. One of those staff members sent the email on to persons both inside and outside the bank and it ultimately made its way into the ESB group email system, where it was detected by an IT security manager.
7. On the 5th of February, 2009, the ESB security manager alerted the bank’s head of IT security, Mr. Brian Leahy, of an email abuse in the following terms:
“Brian,
I note from the email below that two Bank of Ireland people were involved in forwarding this around the town. We are tackling the ESB names.”
8. As a result of this communication, Mr. Leahy immediately contacted the bank’s Group Industrial Relations Department (“GIR”) and spoke to Mr. Brian Kelly of that department. In fact, Mr. Kelly was employed within a subset of GIR, namely the Employment Advisory Service (“EAS”). On receiving this information, Mr. Kelly instructed Mr. Leahy to “lift” the mail boxes of the two bank employees who had forwarded the hangover brilliance email. This did not include Mr. Reilly.
9. Lifting a mail box is a term for making a forensic copy of the entirety of the mailbox in question so that the content is of that moment “fingerprinted” and frozen in time. It cannot thereafter be interfered with. The process can be, and was in fact, undertaken without the knowledge of the mailbox user. Recognising that this is a significant invasion of the privacy of the individual concerned and something not to be undertaken lightly, lifting a mailbox cannot take place until it is expressly authorised in writing by three different individuals. A form must be completed which is known as an SDAR and for the authorisation to be complete, the form must be signed by a member of bank IT security, a member of GIR and also a member of HP security, Hewlett Packard being the custodians of the bank’s email system.
10. When the two mailboxes in question were lifted, a colleague of Mr. Kelly’s in EAS, Ms. Margaret Keogh, since deceased, went to view these two mailboxes at the bank’s IT headquarters in Cabinteely, County Dublin. Arising out of Ms. Keogh’s viewing of the two mailboxes, Mr. Kelly then requested that a further three mailboxes be lifted, one of which was that of Mr. Reilly.
11. The SDAR in respect of the latter three mailboxes was signed off on the 17th February, 2009 and on the same date, the mailboxes were lifted and viewed by Ms. Keogh. When she did so, Ms. Keogh discovered a number of inappropriate emails with attached images in Mr. Reilly’s mailbox. Ms. Keogh took what he felt was a representative sample of six of these emails.
12. Evidently, Ms. Keogh had some discussion about these emails with her immediate superior, Mr. Graham Fagan and he or she in turn with Mr. Gerry Mitchell, the head of GIR, as later the same day, or possibly early the next day, the 18th of February, 2009, Mr. Mitchell telephoned Mr. Cyril Macken, who was at that time the head of the bank’s 21 North Dublin branches, which included Blanchardstown. Following that contact, Mr. Macken telephoned Mr. David Donnelly, the Blanchardstown branch manager, and instructed him to put Mr. Reilly on special paid leave with immediate effect. Later that afternoon, Mr. Reilly was summoned by Mr. Donnelly to his office where Ms. Breda Byrne, the customer service manager was also present.
13. Mr. Donnelly told Mr. Reilly that on the instructions of Head Office, he was obliged to suspend him with immediate effect and asked him to hand over his keys of the branch. He said that an issue had arisen in relation to emails but he didn’t know anything about it.
14. The next day, the 19th of February, 2009, Mr. Reilly contacted his union, the Irish Bank Officials Association (“IBOA”) and was put in touch with Mr. Ciaran Mahon for advice and representation. Mr. Mahon was also a Bank of Ireland employee and part-time union official.
15. At the same time, Mr. Macken appointed another bank official, Mr. Paddy Lonergan, to investigate the matter on his behalf.
16. When the mailboxes referred to were lifted, in addition to Mr. Reilly’s mailbox, the mailboxes of four other members of staff at Blanchardstown were also found to contain inappropriate material. Of those five members of staff, three, including Mr. Reilly, were suspended. Mr. Lonergan was charged by Mr. Macken with investigating all five cases.
17. On the 27th of February, 2009, Mr. Mahon met with Mr. Kelly to discuss Mr. Reilly’s case and that of another bank employee’s that he was representing. Mr. Kelly showed Mr. Mahon the offending email images and told him that the bank was viewing the matter as serious as this was a rising trend. Also, on the 27th of February, 2009, Mr. Kelly wrote to Mr. Reilly to advise him that the investigation meeting with Mr. Lonergan would take place on the 12th of February, 2009. Mr. Lonergan began his investigation and appears to have been assisted throughout, where necessary, by Mr. Kelly.
18. The investigation meeting with Mr. Lonergan took place on the 12th of March, 2009. Present were Mr. Reilly, Mr. Lonergan, Mr. Mahon, and Mr. Kelly. In the course of the meeting, Mr. Lonergan put the relevant images to Mr. Reilly for his comments. Mr. Reilly did not deny sending them although he had no particular recollection in relation to some of them. He said he was aware of the email policy but didn’t read it. He said he was gay although he tried to mask this fact by sending some of the emails concerned. He suggested that other senior people in the branch had been sending such emails also.
19. Subsequent to the investigation meeting, on the 18th of March, 2009, Mr. Lonergan travelled to the IT department in Cabinteely to view the entirety of Mr. Reilly’s mailbox. He says he did so in order to satisfy himself that the sample that had been selected by Ms. Keogh was representative. In the course of this inspection, Mr. Lonergan selected one additional email with an attached image to be included in the sample.
20. In his report, Mr. Lonergan found that the bank’s email policy had been breached by Mr. Reilly and that the content of the relevant emails could reasonably be regarded as pornographic, indecent, obscene, offensive, rude and generally distasteful. He considered that they had the potential to reflect unfavourably on the bank. Mr. Lonergan’s report was submitted to Mr. Macken, who, on the 2nd of April, 2009, wrote to Mr. Reilly requesting him to attend a first disciplinary meeting to be held under stage one of the relevant disciplinary procedures. The stage one meeting took place on the 23rd of April, 2009. At this meeting, Mr. Reilly said that emails of this nature were going around everywhere and he described the volume that he would delete off his system as phenomenal. He said there was a huge circle of people sending the emails and he might have sent some on so as to cover up his orientation. He described them in terms of being “banter” between colleagues.
21. Mr. Macken conveyed his decision to Mr. Reilly by letter of the 5th of May, 2009, in which he said that he viewed his behaviour in sending the emails as gross misconduct and an extremely serious breach of the bank’s email policy which warranted the potential disciplinary sanction of dismissal. Before making his final decision, he invited Mr. Reilly to a further meeting known as a stage two meeting. The purpose of this meeting was to facilitate Mr. Reilly in making any representations he wished in relation to the potential sanction of dismissal. The stage two meeting took place on the 13th of May, 2009, when similar issues were raised and discussed, including Mr. Reilly’s excellent work record.
22. Following that meeting, Mr. Macken conveyed his final decision to Mr. Reilly by letter of the 26th of May, 2009, which was to dismiss him with immediate effect. The disciplinary procedure provided for an appeal from this decision to the chief executive of the bank or his nominee. Mr. Gerry Reeves was nominated to hear the appeal, which he did on the 20th of August, 2009. A number of points were made on behalf of Mr. Reilly at the appeal which included a suggestion that the bank had not treated Mr. Reilly in a manner consistent with other comparable cases and the sanction imposed was unduly severe and harsh. Mr. Reilly’s exemplary record was again stressed as was the devastating impact dismissal would have on his life. This appeal was unsuccessful, as was a further final external appeal to Mr. Ray McGee, an independent third party and former deputy chairman of the Labour Court. That appeal was heard on the 13th of January, 2010.
23. It is worthy of some comment that before the appeal to Mr. Reeves was heard, Mr. Reilly wanted an opportunity to view his mailbox in IT headquarters accompanied by Mr. Mahon to assist him in analysing the contents. Mr. Mahon was refused permission to attend and was even refused the customary time off for attending to his union duties on that occasion. Mr. Reilly therefore had to attend on his own to view the mailbox under the supervision of Mr. Leahy and Ms. Keogh. To say the least, this must have been a very awkward and uncomfortable experience for him without Mr. Mahon’s moral support and it is hardly surprising that he left before his allotted time expired. It is difficult to understand what loss would have been on the bank to allow Mr. Mahon attend also and why it was felt necessary to adopt such a rigid approach.
The Employment Documents
24. It was common case that Mr. Reilly was bound by his contract of employment to observance of the bank’s group code of conduct and in particular of a document entitled “Group Information Security Email Usage”, dated the 12th of February, 2008. This document provided (at p. 2):
“Group email systems are provided for in the conduct of group business…
• In email communications, users must not engage in any activity, which is illegal, offensive, disruptive or likely to have negative repercussions for the Group…
The Group reserves the right to monitor and give reasonable grounds for investigation, intercept, access and disclose messages created, received, stored or sent over the group email systems at any time without notice. You agree that the Group may undertake such monitoring and may use such methods and equipment as it considers necessary or appropriate.”
25. The document continues (at p. 5):
“Your usage of the Group email systems should not involve you in any activity that is illegal, offensive or likely to have negative repercussions for the group. Particularly, you must not use, retain, distribute or disseminate any images, text, materials or software that:
• Are or might be considered to be indecent or obscene.
• Are or might be offensive or abusive in that their content is or can be considered to be a personal attack, rude, sexist, racist, pornographic or generally distasteful…
• Adversely impact on the image of the Group.”
26. Finally (at p. 7):
“9: Policy violation.
If you fail to comply with the requirements of this policy, and/or otherwise misuse and/or abuse the Group email systems, you may be liable to disciplinary action up to and including dismissal. The Group will treat any breach of this policy in a serious manner. At the same time, your conduct and/or actions may be illegal and you may be personally liable for the consequences.”
27. The bank also relied on a further document entitled “Disciplinary Procedures” which included the following provision:
“Gross misconduct.
In cases of gross misconduct, an employee may be dismissed without recourse to the earlier steps in the disciplinary procedures. In a situation which may be potentially deemed as gross misconduct, a full investigation will be carried out. An employee may be placed on special paid leave during such an investigation.
Full investigation and careful consideration of the facts will be carried out without undue delay and this may include consultation with any witnesses and the preparation of written statements as appropriate. If the employee’s manager is a witness or the only witness to an alleged case of misconduct, that manager will not conduct the investigation or play a part in the disciplinary decision making process.
If an employee has been found to have committed gross misconduct, there may be mitigating factors which mean that a less serious sanction than dismissal is appropriate. Mitigating factors will be considered bearing in mind the principles of fairness and consistency which underline these disciplinary procedures.
Among the matters which may be described as gross misconduct which may be a cause for dismissal are:-…
4. Breach of Group code of conduct or policies (e.g. group email policy, harassment and bullying policy, etc.).”
28. Although not a contractual document, the bank also placed reliance on a notice by the IBOA, dated the 14th of November, 2006 and addressed to all IBOA members in the Bank of Ireland group. This stated the following:
“Re: use of internet/email and company mobile phones.
Members should be aware that there has been a significant increase in the number of staff being disciplined by the bank for breaches of its email/mobile phone policy. The disciplinary sanctions imposed on staff range from written warnings up to dismissal depending on the severity of the incident.
Members should be aware that the company email and mobile phones are for work related use and should not be used to send material which is not work related.
IBOA are instructing members to familiarise themselves with the bank’s internet/email policy and to ensure that their use of the bank’scomputers/mobile phones comply with this policy.”
29. Mr. Reilly, however, disputed that he had ever actually seen this document.
The Emails
30. Mr. Reilly’s mailbox was analysed for a two-year period between February, 2007 and February, 2009. His sent or outbox contained 1139 documents of which 29 were considered to be inappropriate. Ms. Keogh extracted the original sample of six emails from the outbox and one further was selected by Mr Lonergan. As previously stated, the Hangover Brilliance email which led to Mr. Reilly’s mailbox being examined was received by him but not forwarded. In the order they were presented to the court, the first email was captioned “Tsunami”. Attached to it were several images of naked women posing on a beach. The EAT, in its determination, described these as being in the nature of soft pornography of a type that might be found in some tabloid newspapers. Mr. Reilly’s evidence was that, given his personal orientation, he had no interest in these images.
31. The second email is captioned “Anything to Declare?” The single image attached depicts a man holding a shopping bag with the head of a small Asian child superimposed so that the child appears to be in the bag. On its face, whilst the image is somewhat bizarre, it could not be seen as pornographic, obscene or indecent. It is only when one is made aware that the subject is a former celebrity and notorious paedophile that its intended meaning becomes evident.
32. Mr. Lonergan considered that this image was the most serious of all the images. He described it as being in a category of its own, different from all the others. For reasons which have never been adequately explained, the distribution list for this image was separated from it leaving only the image. This meant that when it was put to Mr. Reilly at the various investigation and disciplinary meetings, it was not possible to detect the source of this email. It was only after Mr. Reilly was dismissed and had commenced proceedings that the distribution list eventually became available. This showed that the email had originated in the bank’sHead Office in Baggot Street, from where it had been forwarded to another bank official who was known to Mr. Reilly. That official forwarded the email to a number of others within the bank and it was forwarded by at least three further bank personnel before it reached Mr. Reilly. There was no evidence that the official in question was ever investigated and in fact, he was subsequently promoted to the level of branch manager.
33. The third email is captioned “Adult Funnies” and includes various images which are vulgar, crude and tasteless. They all purport to be humorous although the humour is of a somewhat juvenile nature.
34. The fourth email is captioned “Mastercard Moments” and has attached to it two images of people in public situations inadvertently exposing themselves. The images include text which purports to be humorous comment. The fifth item is an email with an attached image which shows a group of obese people engaging in sexual activity. The original caption on this email when sent to Mr. Reilly was “What Really Happens at Weight Watchers Meetings!” Mr. Reilly forwarded this email to three male colleagues in the Blanchardstown bank including one with the initials I.W. Before doing so, Mr. Reilly altered the subject line so that it then read “I. in his first brothel”. I.W. was a junior colleague of Mr. Reilly and a friend of his. Mr. Lonergan was particularly concerned about this email, which he felt might be considered as bullying by Mr. Reilly of his junior colleague. However, that view was not apparently shared by Mr. Macken.
35. The sixth email had an attached image of two naked men sitting on a couch. This appears to have been sent by Mr. Reilly from his mobile phone to his bank email address and was then forwarded on by him to his personal email address. It was not circulated to anybody else. Mr. Reilly explained this by saying that he accidentally forwarded the email to his bank address when he intended it to go to his private address.
36. The seventh and final email which was the additional item selected by Mr. Lonergan had attached an image of an extremely large naked woman. Mr. Reillyforwarded this to another colleague in the branch but amended the subject caption so that it read “Put I’s head on this and send it on”. This was a further reference to I.W.
Legislation
37. Insofar as relevant to these proceedings, the Unfair Dismissals Act 1977 (as amended) provides as follows:
“6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal…
(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:…
(b) the conduct of the employee,…
(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.
(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so—
(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal,…
7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:
(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or
(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
(c) (i) If the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under s. 17 of this Act) as is just and equitable having regard to all the circumstances, …
(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—
(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,
(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,
(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,…
(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.”
38. It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned – see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.
39. I respectfully agree with the views expressed by Judge Linnane in Allied Irish Banks v. Purcell [2012] 23 ELR 189, where she commented (at p. 4):
“Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v. Swift [1981] IRLR 91 and the following statement of Lord Denning MR at page 93:
‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.’
It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employers view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”
The Decision to Suspend Mr. Reilly
40. The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future career. As noted by Kearns J. (as he then was) in Morgan v. Trinity College Dublin [2003] 3 IR 157, there are two types of suspension, holding and punitive. However, even a holding suspension can have consequences of the kind mentioned. Inevitably, speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire. In Mr. Reilly’s case, his evidence was that rumours and reports circulated about him ranging from possibly being involved in fraud to participation in a tiger kidnapping.
41. Thus, even a holding suspension ought not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer’s own business and reputation where the conduct in issue is known by those doing business with the employer. In general, however, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process. Indeed, this is explicitly recognised by the bank’s own disciplinary procedures in force at the relevant time. The procedures provide, under the heading “Special Paid Leave”, as follows:
“An employee may be placed on special paid leave in order to facilitate the proper conduct of the disciplinary procedures.”
42. The corollary presumably therefore is that an employee ought not be suspended where suspension is not necessary to facilitate these matters.
43. In the present case, the circumstances surrounding the decision to suspend Mr. Reilly are far from clear. As previously noted, three staff members including Mr. Reilly were suspended and two were not, where all five were being investigated for breach of the bank’s email policy.
44. Mr. Kelly’s evidence was that neither he, Ms. Keogh, their immediate superior Mr. Fagan, head of EAS, or his superior Mr. Mitchell, head of GIR, made the decision to suspend the three staff members. It would not be within their competence to do so. Mr. Kelly was adamant that all the relevant decisions were made by Mr. Macken, with whom he had no contact at that juncture. Neither Mr. Fagan or Mr. Mitchell was called to give evidence in this case. Mr. Kelly said in evidence that he had no involvement in the matter prior to Mr. Reilly being suspended on the 18th of February, 2009. He said Ms. Keogh was the person who had viewed the mailboxes in question and extracted the sample emails. Ms. Keogh was not called to give evidence at the EAT or Circuit Court although she was present at both.
45. When Mr. Macken gave evidence, he was asked in cross-examination when he first became involved in the matter and he said that it was when he got a call from Gerry Mitchell. In the course of that call, Mr. Macken established that there was a problem with misuse of the email system in the Blanchardstown branch and that it was serious. Following the call, Mr. Macken then contacted the branch manager, Mr. Donnelly, with instructions to immediately suspend three of the five staff members concerned.
46. When Mr. Donnelly summoned Mr. Reilly later that day, the only thing he was able to tell Mr. Reilly about the reason for the suspension was that it was to do with email usage. Mr. Reilly’s evidence in that regard was uncontroverted, as neither Mr. Donnelly or Ms. Byrne, who was also present, were called to give evidence.
47. Later in his evidence, Mr. Macken confirmed that the first time he actually saw the material in issue upon which he decided to dismiss Mr. Reilly was when he received Mr. Lonergan’s report some six weeks later. Consequently, when Mr. Macken made the decision to suspend Mr. Reilly, all he knew about the case was what Mr. Mitchell told him. Mr. Mitchell in turn presumably only knew what he had been told by Ms. Keogh either directly or through Mr. Fagan unless he viewed all the emails and images himself, although there is no evidence of that.
48. What seems all the more remarkable about Mr. Macken’s decision, made in the absence of access to any of the relevant evidence, was that he felt able to come to the conclusion that where five people were being investigated in Blanchardstown for the same offence, i.e. breach of the email policy, three of them required to be suspended to facilitate that investigation and two did not. Furthermore, to my mind it has not been demonstrated by the bank how Mr. Reilly’s suspension was necessary in order to facilitate the proper conduct of the disciplinary procedures. None of the factors I have identified above were present in his case. The mailbox with the offending emails was forensically frozen and could not be further interfered with by Mr. Reilly. Nobody had complained about Mr. Reilly’sconduct and indeed it seems likely that nobody knew about it other than those in receipt of the relevant emails. None of those individuals were called to give evidence. It seems highly probable that the danger of repetition of the conduct complained of was to all intents and purposes nil once Mr. Reilly had been made aware of the issue. Mr. Reilly was evidently mystified, not to say shocked, by the suspension as was Mr. Mahon after him. Mr. Mahon is an extremely experienced bank official and union representative whose evidence impressed me. He was diligent and conscientious about his duties and was careful to keep a journal in relation to all relevant events in the cases he was handling. When I asked him about Mr. Reilly’s suspension, he said:
“So I just couldn’t see what the logic was of sending people home to aid an investigation. It didn’t aid an investigation.”
49. Like Mr. Mahon, I can perceive no logic in the course adopted by Mr. Macken. No evidence has been adduced by the bank as to why it was necessary to suspend Mr. Reilly, less still justify the manner in which it was done. After an exemplary career in the bank, Mr. Reilly was summoned at a moment’s notice by the manager to be told he was being suspended. Mr. Donnelly gave him virtually no information as to the reason other than saying he was acting on the instructions of Head Office and it was something to do with emails and without being afforded even the most basic opportunity to offer an explanation or defend himself, he was marched out the door never to return. Indeed, even if Mr. Reilly had a valid explanation, there was little point in him proffering it to Mr. Donnelly, who had been presented with a fait accompli by Head Office. I cannot accept the proposition advanced by counsel for the bank that Mr. Reilly had no entitlement to natural justice or fair procedures in any shape or form at this stage of the proceedings. Whilst of course it must be correct to say that the full panoply of fair procedures may not have been engaged at that stage, I cannot accept that basic fairness did not require at least a rudimentary explanation of the reason for the suspension which admitted of the possibility of some exculpatory response.
50. In the light of the foregoing, I cannot conceive how Mr. Macken could have independently arrived at the decision to suspend Mr. Reilly and two others whilst not suspending a further two staff members accused of the same misconduct. It seems to me that the conclusion is irresistible that either somebody else made the decision and directed Mr. Macken to implement it or alternatively it was suggested to him as the appropriate thing to do and he simply accepted that without further ado. Furthermore, the only possible explanation for selecting three out of the five employees concerned for suspension was that the view was taken that the contents of their mailboxes represented more serious misconduct than that of the two who were not suspended. If that is so, it must follow as a logical consequence that the suspensions were nothing to do with the pending investigation and disciplinary process but rather were an expression by the bank of its view of the seriousness of the matter and its resolve to punish those responsible accordingly.
51. That conclusion is supported by the evidence of Mr. Mahon and Mr. Kelly about their first meeting on the 27th February, 2009 about Mr. Reilly’s case, when Mr. Kelly said that the bank was taking a serious view of the matter which was a rising trend. That comment, when seen against the background of the events of the previous ten days or so, suggests to me that the bank had already determined to make an example of Mr. Reilly.
Discussion
52. The bank’s disciplinary procedures quoted above refer to the concept of gross misconduct which may include breach of the group email policy. Of course, every breach could not constitute gross misconduct, or perhaps misconduct at all, and it is a question of degree in each case. The evidence suggests that the bank took the view from the outset that gross misconduct was involved. Mr. Reilly was quite unaware of this and his evidence was that whilst the matters complained of might amount to misconduct, they were certainly not gross misconduct. Mr. Macken took a different view, concluding that Mr. Reilly’s breach of the email policy did constitute gross misconduct of a degree which warranted dismissal. However, the first time that gross misconduct was mentioned to Mr. Reilly was in Mr. Macken’s letter of the 5th of May, 2009, advising him that he would be dismissed unless he could persuade Mr. Macken otherwise at the stage two meeting. Whether the behaviour complained of was gross misconduct or simply misconduct is clearly a qualitative judgment in much the same way as is an assessment of the content of the emails. Whilst classifying the conduct as falling into a particular category may be viewed by the bank as relevant to the sanction it may impose within the framework of its own procedures, it is, in my view, of limited assistance in determining whether there were substantial grounds justifying the dismissal. In coming to a view on that issue, it is necessary to examine the factual background against which the conduct in issue arose.
53. Mr. Reilly’s evidence was that the practice of circulating these inappropriate emails was widespread. The evidence put before me certainly demonstrated significant evidence of the circulation of this type of material not only within the bank but throughout a large number of public companies and state and semi-state bodies. No evidence was led by the bank to contradict Mr. Reilly’s evidence on this point, which I accept. Mr. Reilly struck me as an honest and truthful witness not given to exaggeration or hyperbole. I also believe that the bank was well aware of the practice. The bank itself relied on the IBOA circular of November, 2006 addressed to breaches of the email policy. I also accept Mr. Reilly’s evidence that he was not aware of this circular although as I have said, the bank certainly was. Further Mr. Kelly’s comment to Mr. Mahon that this was a rising trend indicates a degree of prior knowledge.
54. Despite this knowledge, there was no evidence of any significant attempt by the bank to address this issue. If it was a rising trend as Mr. Kelly said, it seems to me that steps could have been taken whether by way of circular notices, team briefings or whatever method to ensure that staff were left in no doubt as to the bank’s attitude and the likely sanctions that might be imposed for a breach of the policy. In the absence of any such steps by the bank, its employees, whilst aware in general terms of the policy, might well have concluded that it was more honoured in the breach than in the observance. Mr. Mahon’s uncontroverted evidence was that up to the time that Mr. Reilly was suspended, nobody had ever been either suspended or dismissed for breach of the email policy. Some dismissals did occur in the bank’s subsidiary, the ICS and although events were unfolding at that time, the dismissals did not actually occur until post-February, 2009.
55. It seems to me that if a policy of zero tolerance was going to be adopted by the bank to breach of its email policy, its employees were entitled to some notice of this policy shift. This would not have been difficult to achieve. From Mr. Reilly’s perspective, it clearly never occurred to him that in sending on chain emails, he was potentially exposing himself to dismissal. I have no doubt that had he known, he is very unlikely to have engaged in this conduct. He certainly had little reason to anticipate what occurred. His evidence, again undisputed, was that there was a pornographic calendar hanging in the men’s bathroom at the Blanchardstown branch for years without any attempt by management to remove it. This smacks somewhat of a double standard within the bank.
56. In assessing the reasonableness of the employer’s conduct in relation to the dismissal herein, it seems to me that such an assessment must have regard to the surrounding circumstances, including the impact of the conduct on the employer as against the impact of the dismissal on the employee to determine the proportionality of the employer’s response.
57. There is no doubting the inappropriateness of the emails and even Mr. Reilly appears to accept that sending them constituted misconduct deserving of some sanction. It is ultimately a matter of opinion as to whether some or all of the images were pornographic, obscene and so forth but certainly the bank were entitled to come to a view on this. Whether it is a view shared by the court or anyone else is not material as the authorities suggest. The same considerations apply to whether they ought to be regarded as offensive and certainly to some, perhaps most, people that would undoubtedly be the case. However, the fact remains that there is no evidence that anybody was actually offended by any of these emails. Nobody complained. The bank did not call any recipient to give his or her opinion on them. The bank say that they had the potential to reflect unfavourably on it and perhaps even for it to be sued. That may well be so but none of this actually happened over a fairly long period, perhaps because those in receipt of the emails either wanted to receive them or acquiesced in receiving them. Indeed, as the evidence makes clear, it was by mere chance that Mr. Reilly’s behaviour was even detected. In short, there is no evidence that the banksuffered any loss, damage or detriment whatsoever as a result of the conduct complained of.
58. It should also be borne in mind that none of the emails in question originated with Mr. Reilly, with the sole exception of the one he accidentally sent to his bank email and forwarded only to himself. The number of emails was relatively small – 29 over a two year period out of a total outbox of 1139. I think it is also of some significance that there is at least some evidence that Mr. Reilly was not treated on a like footing to others in the bank similarly implicated. Thus, with regard to the “Anything to Declare” email, regarded as the most serious by Mr. Lonergan, despite clear evidence that this originated in Head Office and was sent on by an official subsequently promoted, no steps appear to have been taken by the bank to even investigate the other employees concerned. Furthermore, it seems that the bank went to considerable lengths to conceal the provenance of this email.
59. As against all this, the effect of the dismissal on Mr. Reilly must be considered. At the time of his dismissal, the country had just been plunged into the worst economic catastrophe in its history, brought about in no small measure it must be said, by the activities of our banks. Mr. Reilly’s prospects of re-employment were extremely poor, as turned out to be the case, and as the bank well knew before it dismissed him. He had in the recent past purchased a house close to his parents in Blanchardstown with the benefit of a mortgage from the bank which he now found himself unable to repay. It is clear from his evidence that these events had a catastrophic effect on him and as he says, destroyed his life and ruined his career. Indeed, this was one of the submissions made by Mr. Mahon to Mr. Macken but unfortunately it fell on deaf ears.
60. Having regard to all of the foregoing, I am satisfied that the conduct of the bank in relation to Mr. Reilly’s dismissal and the events leading up to it could not by any objective standard be described as reasonable. The evidence has driven me to the conclusion that at a very early juncture, probably on the 17th of February, 2009, a decision was made within the hierarchy of the bank to make an example of Mr. Reilly in order to deter others from similar behaviour in the future. That decision may or may not have been made by GIR, but as a minimum was strongly influenced by it. Whilst lip service was paid to observance of procedures, it is clear that there was only ever going to be one outcome. The bank’s response in this case was entirely disproportionate and could not in my view be regarded as falling within the range of reasonable responses of a reasonable employer to the conduct in issue.
61. Accordingly, I am satisfied that the bank has failed to discharge the onus of establishing that there were substantial grounds justifying the dismissal in this case.
Remedy
62. Counsel for Mr. Reilly, Mr. Banim SC, submits that the only remedy which will do justice in this case is re-instatement, as ordered by the EAT. For the bank, Mr. Connaughton SC submits that such a remedy would be wholly inappropriate because Mr. Reilly, by his conduct, must be held to have substantially contributed to his dismissal. That contribution must be considered in determining the remedy and in that regard, the bank rely on the judgment of Carroll J. in Memorex World Trade Corporation v. Employment Appeals Tribunal [1990] 2 I.R. 184. That was a case in which the employer sought to judicially review a decision of the EAT on the grounds that it had failed to hear all the evidence and had decided the case effectively at the end of the employer’s case. The court accepted that the hearing was unsatisfactory for these reasons but declined an order of certiorari on the basis that the EAT had erred within jurisdiction and in any event, the appeal procedure that was available was an adequate remedy. It seems therefore that the court considered that its discretion should not be exercised in favour of granting judicial review. In the course of her judgment, Carroll J., in commenting upon the conduct of the case before the EAT, said (at p. 188):
“The Tribunal should hear all evidence available relating to the dismissal not only to determine whether there were substantial grounds but also because the extent to which an employee contributes to his dismissal is a matter which has to be taken into account in determining the appropriate remedy.”
63. It is clear that these remarks by Carroll J. were obiter as they were not directed to the substantive issue in the case which she had already at that point in her judgment decided. Further, there is nothing from the Law Report to suggest that this point was argued before her in any depth or indeed at all as it did not form the basis for the arguments being advanced by either side.
64. In my view therefore, the court did not intend to lay down any rule of general application in making these remarks and in any event, for the reasons already explained, I do not believe I am bound by them.
65. It will be seen from the express wording of s. 7 that the concept of the conduct of the employee contributing to the dismissal is confined to situations where the court considers that compensation is the appropriate remedy. Thus, in McCabe v. Lisney (Unreported, High Court, 16th March, 1981) and Carney v. Balkan Tours [1997] 1 I.R. 153, the court was in each case concerned with a reduction in the award of compensation having regard to the extent of the employee’s contribution to the dismissal. It would of course be unreal to suggest that the court could not have regard to the conduct of the employee in considering in a general sense whether the remedies of re-instatement or re-engagement were appropriate. However, in my view, it is equally true that the mere fact that the employee may have been guilty of some degree of misconduct, even if that were felt to have contributed to the dismissal, cannot of itself preclude the possibility of those remedies being invoked. At the end of the day, the court has to grant the remedy which will do justice between the parties.
66. I have already concluded that the bank’s conduct in this case was unreasonable and disproportionate. I would add to that by saying that the manner in which it predetermined and manipulated the entire process from the outset reflects little credit on it and visited a very grave injustice on Mr. Reilly.
67. In my view, an award of compensation would fall far short of providing adequate redress in this case and the only appropriate remedy is re-instatement.
Higgins & Anor -v- Bank of Ireland & Anor
[2013] IEHC 6
O’Keeffe J.
The Right of Appeal
496. At the time of the appointment of Mr. Dunne to conduct the disciplinary inquiry into the plaintiff, the procedure was regulated by the Disciplinary Procedure for Staff who are not Members of the Union which was effective from 1985. It stated:-
“The object of these procedures is to ensure a fair, effective and speedy arrangement exists for dealing with disciplinary matters in the interest of good staff relations. Disciplinary action will be taken only after thorough investigation and the staff member will be given every opportunity to present his/her case before him.
3.
For the purpose of this agreement, ‘disciplinary actions’ shall mean:
(a) dismissal
(b) action short of dismissal including the following:-
(iii) suspension with or without pay.
4.
The following procedurals shall be followed in any case where it is decided to take disciplinary action against a Staff Member.
(a) The Staff Member will be told of the offence and the disciplinary action proposed. The Staff Member may at this stage make such oral or written representation as he/she sees fit, and may if he/she wishes nominate somebody to represent him/her and be accompanied by this representative at any interview held for the purpose of making oral representations. After such had been made, the bank shall then review the nature of the intended disciplinary action and give notice in writing to the Staff Member of his decision. The bank should give its decision where possible within ten working days after the making of such representations
(b) If the Staff Member wishes to appeal against such decision, he/she can give notice of appeal in writing to the manager or to the personnel department of the bank setting out the reasons for the appeal within ten working days after receipt of the said decision.
(c) Appeals will be heard by the Chief Executive or other Senior Executive or other Senior Executive nominated by the Chief Executive, and should take place as soon as possible. Disciplinary action will not be taken pending the outcome of the hearing of the appeal. At the appeal, the staff member may be accompanied by his/her representative. The bank shall give notice in writing to the staff member of the decision on the appeal. The decision shall where possible be given within ten working days from the hearing.
(d) If the staff member is dissatisfied with the decision given on such appeal, the staff member shall be entitled to appeal further by notice in writing given to the personnel department of the bank within ten working days of the decision being given. The further appeal shall be heard by an independent person agreed between the bank and the individual whose decision shall, subject as hereinafter provided a final and binding on both parties.”
497. Revised Disciplinary Procedures became effective from 1st July, 2002.
498. The revised procedures provided for:-
“Special Paid Leave
Employee may be placed on Special Paid Leave in order to facilitate the proper conduct of the Disciplinary Procedures. An employee on Special Paid Leave will receive full pay pending investigation and/or the holding of the disciplinary meeting and any appeal. An employee who is placed on Special Paid Leave will not be required to work but will be required to be available t to the group for the purpose of the investigation and/or the Disciplinary Procedures. The placing of an employee on Special Paid Leave is not disciplinary sanction. Employees will only be kept on Special Paid Leave for as long as shall be reasonably necessary to conduct and complete a full and proper investigation and/or the Disciplinary Meeting and any appeal.
Disciplinary Sanction
Disciplinary Sanction means:
(i) Dismissal
(ii) Action short for dismissal including the following:
Demotion
Suspension with or without pay.”
499. In procedures where the imposition of a Disciplinary Sanction is being considered, it was provided in relation to an appeal as follows:
“If the employee wishes to appeal against a disciplinary sanction imposed by the decision, he/she will give Notice of Appeal in writing to his or her Human Resources Department setting out the reasons for the appeal within ten working days of the date of the notice of the decision.
Appeals will be heard by the Chief Executive or other Senior Executive nominated by him and will take place as soon as possible after receipt of the Notice of Appeal. The disciplinary sanction, subject of the decision under appeal, will be suspended pending the outcome of the hearing of the appeal.
If the employee wishes to appeal against a disciplinary sanction imposed by the decision given on the appeal, he/she will be entitled to appeal further by notice in writing given to his/her Human Resources Department within ten working days of the date of the notice of the decision on the appeal.
The disciplinary sanction, the subject of the decision given on the appeal, will not be suspended pending the outcome of the hearing of the further appeal.
The further appeal will be heard by an independent person agreed between the Group and the employee and/or the employee’s representative.
If agreement cannot be reached between the Group and the employer in relation to the appointment of the independent person, the independent person shall be a person nominated (a) in the Republic of Ireland by the
Labour Relations Commission…”
500. By letter dated 6th October, 2003, the plaintiff’s solicitors wrote to Mr. Soden, Chief Executive of the Bank of Ireland. They stated the purpose of the letter was to advise the bank of the plaintiff’s position in relation to the proceedings before Mr. Dunne. This letter reiterated the history of the proceedings before Mr. Dunne and other associated matters.
501. By letter dated 6th October, 2003, the plaintiff’s solicitors wrote to Mr. Dunne indicating that his findings against the plaintiff were rejected and informing him of their intention to write to Mr. Soden.
502. On 7th October, 2003, Mr. Dunne referred to an impending meeting with the plaintiff to consider such representations as he might make. Having considered the same he would review the nature of the disciplinary action he had proposed and give notice of such decision to him. It was stated that if he was not satisfied with his decision, the disciplinary procedures provide for an appeal which will be heard by the Chief Executive or other executives nominated by him.
503. On 13th October, 2003, Mr. Dunne wrote to the plaintiff’s solicitors and stated:-
“The bank’s disciplinary procedures had been revised since I commenced hearing the matter in April 2002 under the 1985 disciplinary procedures. This letter should be regarded as the notice of my decision under the revised disciplinary procedures for Bank of Ireland Group dated 1st July, 2002 (‘the procedures’) a copy of which I enclose herewith. The procedures provide for an appeal against the disciplinary section of dismissal imposed by my decision. If your client wishes to bring such an appeal your client should give notice of appeal in writing to the Human Resources Department…setting out the reasons for the appeal within ten working days of the date of this letter (i.e. on or before close of business on 28th October, 2003).
If your client chooses to appeal my decision, the disciplinary sanction will be suspended pending the outcome of the hearing of the appeal.”
504. On 24th October, 2003, Mr. Smith again writes to Mr. Soden and copies such letter to Mr. Dunne and Ms. Nicola O’Brien. This letter, inter alia, states:-
“Mr. Dunne is fully aware, and it is disingenuous to imply otherwise, that in earlier correspondence conveying his decision to dismiss Mr. Higgins and at the meeting of 8th October last, contrary to the provisions of the bank’s disciplinary procedure (1985) he refused to allow Mr. Higgins to challenge his ‘findings’ as set out in his report. Mr. Dunne unlawfully limited Mr. Higgins’ appeal to the issue of ‘sanction’ only as opposed to permitting him to make such oral or written representations as he see fit. As regards his findings, which are perverse, unfounded and defamatory of Mr. Higgins.”
“It is indicative of the bank’s disregard of every legal principle that in spite of Mr. Dunne’s repeated confirmation, both at the hearings on 29th April, 2002, 3rd July, 2002 and 27th November, 2002, and in his letters dated 28th August, 2001and 3rd December, 2002, that he was conducting his inquiry pursuant to the bank’s 1985 Disciplinary Procedure, the bank has now subsisted those procedures with ‘Revised’ Disciplinary Procedures dated 1st July, 2002.
The bank now purports to invite Mr. Higgins to appeal Mr. Dunne’s decision under the July, 2002 procedures. They are not the procedures on foot of which the bank purported to conduct the disciplinary inquiry (and which it subsequently resiled from) and on foot of which Mr. Dunne purported to make his findings and decision. The procedures introduced in July, 2002 were patently introduced by the bank specifically as a result of Mr. Higgins case and arose out of an attempt by the bank to ensure that it could not find itself open to legal challenge regarding its treatment of employees. The bank is now attempting retrospectively to impose restrictive rights on Mr. Higgins…
In view of all the above matters, Mr. Higgins will not be exercising the limited right of appeal now offered by the bank.”
505. The effect of the rule change was that there was now no unrestricted appeal but there was an appeal against the sanction imposed namely dismissal. The nature of special paid leave was also set out in the revised procedures of July 2002.
506. Both Mr. Soden and Mr. Dunne in correspondence refused to acknowledge that the plaintiff was entitled to an appeal under the 1985 procedures. It is claimed that he should have been more vocal and insisted on his right of appeal and that in any event he had no real intention of appealing. Whilst Mr. Dunne cannot say why he changed his stance and referred to the revised 2002 rules having throughout the inquiry indicated that the inquiry was being conducted under 1985 rules, it is likely that he may have got advice to that effect as initially following his decision the right of appeal under the 1985 procedures appears to have been acknowledged..
507. The representations on behalf of the plaintiff made it quite clear that the inquiry had been conducted under the 1985 procedures and the defendant could at any time following receipt of the representations from the plaintiff have acknowledged its error and offered the appeal under the 1985 procedures. It would then be a matter for another forum to determine the nature and extent of such appeal in the light of proceedings before the Tribunal, the acknowledgements made by and on behalf of the plaintiff and all other matters that were in issue. It was not sufficient to assert that the plaintiff should have insisted on the 1985 Procedures.
508. In my opinion, the plaintiff was wrongfully deprived of his right of appeal as the stance of the defendant had made clear.
Special Paid Leave versus Suspension
509. It is the plaintiff’s case that he was suspended from duties by Mr. Byrne on 20th April, 2001. It is the defendant’s case that Mr. Byrne told the plaintiff that he was being placed on special paid leave.
510. The concept of placing an official on special paid leave pending investigation was not provided for in the 1985 procedures. It was, however, provided for in the 2002 procedures where it provides:-
“An Employee may be placed on special paid leave in order to facilitate the proper conduct of the disciplinary procedures. An Employee on special paid leave will receive full pay pending investigation and/or the holding of the disciplinary meeting at any appeal. An Employee who is placed on special paid leave will not be required to work but will be required to be available to the group for the purposes of the investigation and/or the disciplinary procedures. The placing of an employee on special paid leave is not a disciplinary sanction. Employees will only be kept on special paid leave for as long as shall be reasonably necessary to conduct and complete a full and proper investigation and/or the disciplinary meeting and any appeal.”
511. It is claimed that a suspension is disciplinary in nature where as placing a person on special paid leave is not a disciplinary measure as its purpose is investigative.
512. Mr. Mangan gave evidence that when he left the bank in 2003, special paid leave would have been standard but he could not put a date on it. It was leave with pay pending an investigation.
513. According to Mr. Byrne, special paid leave was to allow the investigation to be conducted without the possibility of interference from the person who is being investigated by their interference with their documentation or evidence. The second aspect he said was making a clear statement to the individual that this was a serious matter and that they had to engage with the investigation. It served a purpose to protect the bank and the individual. He had previous experience of persons being placed on special paid leave pending the completion of an investigation for some time. Suspension was something one had on one’s record if there was subsequent misbehaviour. Special paid leave was to allow the investigation.
514. Mr. Gerry Mitchell also gave evidence in relation to special paid leave being in operation. Special paid leave had the benefit in addition to the other matters to give the individual in question time to reflect and prepare for the issues that might arise in the course of a disciplinary procedure. Mr. Mitchell described it is used as custom and practice that had been established two years prior to his arrival in his position.
515. It is surprising that an employer such as the defendant permitted such an important procedural aspect of its employment provisions to be governed by “custom and practice” and was dependant upon each executive’s individual understanding as to how it operated in practice. It has to be remembered that the 2002 procedures in relation to special paid leave were not operative at the time.
516. I am satisfied that the practice of putting persons on special paid leave pending investigation of matters of concern to the bank was established and operational in 2001. In practice, it is likely to have operated along the lines as that contained in the 2002 procedures, but it would have been preferable if it were formally set out and became part of the written procedures of the defendant.
517. Mr. Byrne is adamant that he used the words “special paid leave” rather than “suspend” or any derivative thereof. He was supported in this by Mr. Kennedy who was present and also by his own notes which record the fact that he was placing the plaintiff on special paid leave.
518. I therefore conclude that Mr. Byrne did say he was placing the plaintiff on special paid leave.
519. An early example of the distinction between a suspension as a disciplinary sanction and a suspension for the purpose of an investigation is Rochford v. Storey [1983] WJSC-HC 1022 in which the plaintiffs had been suspended from membership of a trade union sporting club following a dispute over the plaintiffs’ eligibility for membership. The suspensions had been imposed when the plaintiffs’ had failed to attend a meeting at which they had been requested to produce evidence of their entitlement to become full members of the club. Even though O’Hanlon J., concluded that natural justice was complied with when the plaintiffs had been put on notice by letter that the validity of their membership was in dispute, he was also of the opinion that the decision to suspend did not attract the rules of natural justice. The reason was that this was not a suspension inflicted by way of punishment; but rather a suspension made as a holding operation pending inquiries.
520. A similar distinction was made in Quirke v. Board Luthchleas na hEireann [1988] IR 83 where Barr J., stated:-
“…the suspension of a member by a body such as BLE or a trade union or professional association may take two different forms. On the other hand it may be imposed as a holding operation pending the investigation of a complaint. Such suspension does not imply that there has been a finding of any misbehaviour or breach of rules by the suspended person, but merely that an allegation of some such impropriety or misconduct has been made against the member in question. On the other hand a suspension may be imposed not as a holding operation pending the outcome of an enquiry, but as a penalty by way of punishment of a member who has been found guilty of misconduct or breach of rules. The importance of the distinction is that where a suspension is imposed by way of punishment, it follows that the body in question has found its member guilty of significant misconduct or breach of rules.”
521. This passage from the judgment of Barr J. in Quirke v. Board Luthchleas na hEireann was cited with approval by Kearns J. in Morgan v. The Provost and Fellows of Trinity College Dublin, Cyril Smith and John Gerard Buchanan [2003] 3 IR 157. The plaintiff in those proceedings was a senior lecturer in TCD. On 7th October 2002 he was suspended with pay with immediate effect on foot of a complaint made by a colleague alleging physical intimidation and harassment. This particular event occurred in the aftermath of an ongoing investigation into other complaints previously made by another colleague. The report into that earlier matter which had been made available to the plaintiff two days earlier had recommended that he be suspended for a period of three months without pay and that he receive a formal warning. Referring to the distinction between the two suspensions in the course of the proceedings Kearns J. noted the consequences and implications as follows:-
“A suspension may have different consequences and implications by reference to the particular occupation of the person affected. For example, a professional footballer might not regard a suspension, even a lengthy one, as being particularly detrimental or damaging to career or reputation. On the other hand, an allegation of misconduct against a senior medical consultant, or, as in the instant case, a senior academic and lecturer, may well be a more serious matter. It is a simple fact of life that suspension for a person in one of the latter categories may be seen as altogether more damaging. At the opposite end of the spectrum, the Supreme Court found in Murtagh v. Board of Management of St. Emer’s National School [1991] 1 I.R. 482 that the three day suspension of a pupil either by the principal or by the board of management of a school did not amount to an adjudication on or determination of any rights, or the imposition of any liability.”
522. The Trial Judge then went on to deal with the different types of suspension when he said:-
“Equally, the court will have to consider the manner and nature of the suspension. If the suspension is without pay and open-ended, it obviously has far more detrimental effects from the point of view of the person suspended and may more readily be seen as a punishment. Disciplinary procedures may also be found wanting if the person who is about to be suspended has not been fully informed as to the complaint against him and given an opportunity to respond to any proposed suspension. In the case of a second suspension, which is the situation contended for on behalf of the plaintiff in the instant case, the detrimental effects can only be seen as more marked, because such a suspension is more often than not likely to lead inexorably to the possibility of termination of employment, a factor I deemed to be of some importance in McNamara v. South Western Area Health Board [2001] E.L.R. 317.”
523. Kearns J. then went on to quote at length from the judgment of Barr J. in Quirke v. Bord Luthchleas na hÉireann(including the passage quoted above) and then stated:-
“It follows, obviously, that where suspension constitutes a disciplinary sanction, the person affected should be afforded natural justice and fair procedures before the decision to suspend him or her is taken. However, where a person is suspended so that an inquiry can be undertaken as to whether disciplinary action should be taken against the person concerned, the rules of natural justice may not apply. These were the findings of the Supreme Court in Deegan v. The Minister for Finance [2000] E.L.R. 190, in which Keane C.J. stated as follows at pp. 198 to 199:-
“It is clear that the suspension of a person from their employment for a specified period because of irregularities or misconduct on his or her part can constitute a form of disciplinary action which would entitle the person affected to be afforded natural justice or fair procedures before the decision to suspend him or her is taken. The consequences of such suspension can be extremely serious for the person concerned, involving not merely their right to earn a livelihood but also their right to have their good name protected. In John v. Rees [1969] 2 All E.R. 274 at p. 305, McGarry J., in a passage cited by the learned High Court judge, said:-
‘… in essence suspension is merely expulsion pro tanto. Each is penal, and each deprives the member concerned of the enjoyment of his rights of membership or office. Accordingly, in my judgment the rules of natural justice prima facie apply to any process of suspension in the same way that they apply to expulsion.’
524. Kearns J. continued:-
“However, that was not a case in which the suspension was being imposed so that an inquiry could be undertaken as to whether disciplinary action should be taken against the person concerned and, if so, the nature of such a sanction. That distinction was emphasised by Lord Denning M.R. in Lewis v. Heffer [1978] 3 All E.R. 354 a decision to which the attention of the learned High Court Judge does not appear to have been drawn. Having cited the passage from the judgment of Megarry J., Lord Denning went on at p. 364:-
“These words apply, no doubt, to suspensions which are inflicted by way of punishment, as for instance when a member of the Bar is suspended from practice for six months, or when a solicitor is suspended from practice. But they do not apply to suspensions which are made, as a holding operation, pending enquiries.”
“Very often irregularities are disclosed in a government department or in a business house; and a man may be suspended on full pay pending enquiries. Suspicion may rest on him; and so he is suspended until he is cleared of it. No one, so far as I know, has ever questioned such a suspension on the ground that it could not be done unless he is given notice of the charge and an opportunity of defending himself, and so forth. The suspension in such a case is merely done by way of good administration. A situation has arisen in which something must be done at once. The work of the department or the office is being affected by rumours and suspicions. The others will not trust the man. In order to get back to proper work, the man is suspended. At that stage the rules of natural justice do not apply: see Furnell v. Whangarei High Schools Board [1973] 1 All ER 400.”
525. The plaintiff relied on dicta from the Supreme Court decision in Rajpal v Robinson [2005] 3 IR 385. It was a case of suspension not special paid leave. Further, there was no consideration of whether or not the suspension was necessary. In this case Mr. Byrne did consider the action he took as necessary and this was endorsed by Messrs. Crowley and Murphy.
526. The defendant is best equipped to consider whether investigative action should be taken. It must also be remembered that the Defendant is a commercial bank having responsibilities to shareholders, employees, depositors and customers and in particular statutory and regulatory obligations.
527. I hold that the action of placing the plaintiff on special paid leave was not a “knee-jerk” reaction as described by Lady Justice Haley in Gogay v. Hertfordshire County Council [2000] IRLR 703
528. Mr. Horan SC for the plaintiff submitted that Laffoy J. in Cronin v Eircom Ltd. [2007] 3 IR 104 had adopted the implied term of mutual trust and confidence as recognised by the House of Lords in Malik and Mahmud v Bank of Credit and Commerce International SA [1998] AC 20.
529. He also submitted that an employer is under a duty to investigate all allegations/grievances articulated against the plaintiff, namely, the extensive allegations by Mr Muckian and for example the assault charges made by another member of staff against the plaintiff.
530. Mr Horan accepted that there had not yet been a case in this jurisdiction where general damages have been awarded under the implied term of mutual trust and confidence. No case was referred to which defined the limits of this implied term. He sought damages under this implied term arising from the suspension and accepted he was not entitled to damages for his dismissed under this heading.
531. I do not accept that the placing of the plaintiff on special paid leave amounted to circumstances where the implied term arose. Nor do I accept that under this term or any other principle that there is an obligation to disclose to an employee all complaints of every character of which the employer might have been made aware. The employer is entitled to decide the issues on which it proposes to take action against an employee as it did in this case.
532. I accept the principles set out by Keane C.J. in Deegan v. The Minister for Finance [2000] ELR 190 and also those of Kearns J. in Morgan v. The Provost and Fellows of Trinity College Dublin, Cyril Smith and John Gerard Buchanan [2003] 3 IR 157, which are above referred to. The cases draw a distinction between suspension where a disciplinary action is being taken and suspension which is made as a holding operation pending inquiries and to investigate a matter. In these latter circumstances, the rules of natural justice do not apply.
533. What was proposed by Mr. Byrne on 20th April was an investigation to be carried out into areas of concern that had been highlighted by Mr. Kennedy. The correspondence subsequently sent by Mr. Byrne and Mr. Kennedy to the plaintiff sought explanations from the plaintiff in respect of such issues. When the plaintiff was placed on special paid leave the likely period of the special paid leave was unknown and was to be in part determined by the response of the plaintiff to the matters being investigated. On 20th April, it could not be foreseen that the duration would be so long and that responses to the matters under investigation would only emerge in the last three – four days of the Dunne inquiry. The court is conscious (as Mr. Byrne acknowledged) that actions such as placing a person on special paid leave have a capacity to interfere with or damage the future working relationship with the parties involved. This is not in itself a valid reason for saying that a person cannot be placed on special paid leave, in order to facilitate further investigation.
534. I hold that the placing of the plaintiff on special paid leave was for investigative purposes and was lawful and that the rules of natural justice did not apply. Where a court cannot find any improper motive in placing the plaintiff on special paid leave, the court should be slow to condemn such management action from persons within the Defendant who are best equipped to know whether such action is reasonable and necessary in the circumstances and at the time prevailing. Mr. Byrne, having consulted with Mr Murphy and Mr Crowley concluded it was necessary having regard to the manner in which the audit was progressing.
Dismissal
535. The plaintiff’s case, insofar as the termination of his employment is concerned, appears to be:-
1. that his dismissal resulted from a flawed disciplinary process that was part of an unlawful malicious conspiracy to which the person who conducted the inquiry was a party
2. That consequently, by definition, his dismissal was in breach of fair procedures.
3. That, even if there was no conspiracy, there was a breach of fair procedures such as to render his dismissal unlawful
536. The plaintiff’s written submission appear to rely upon a concept of wrongful dismissal that is much wider than the action for wrongful dismissal that is recognized in law. At common law the action for wrongful dismissal lies where a contract of employment is terminated without reasonable notice. Quite separately from the action for wrongful dismissal, in the case of a dismissal for misconduct, the Court has a jurisdiction to intervene if there has been a breach of fair procedures. The plaintiff’s claim in these proceedings is not a wrongful dismissal action for failure to give reasonable notice.
537. It is the defendant’s case that, as a matter of law, the Court does not have any jurisdiction to intervene in relation to the termination of the plaintiff’s employment unless it reaches a finding of a breach of the rules of natural justice, either on the basis of the existence of a conspiracy or otherwise.
538. The law in relation to wrongful dismissal is that, absent express provisions to the contrary, employment contracts can be terminated by notice for good reason, bad reason or no reason. In Sheey v. Ryan and Moriarity [2008] 4 IR 258 , Geoghegan J. stated as follows:-
“The judge in fact went on to point out that the plaintiff had chosen a common law remedy. She could have initiated proceedings under the Unfair Dismissals Act 1967 or under the Redundancy Payments Act. The trial judge then said that the position at common law is that an employer is entitled to dismiss an employee for any reason or no reason on giving reasonable notice. I would slightly qualify that by saying that it does depend on the contract but in the absence of clear terms to the contrary which are unambiguous and unequivocal, that clearly is the position.”
539. A similar view was expressed in England in R v. Hull University [1999] 4 All ER 747 where Donaldson L.J. put it in the following terms:-
“In the ordinary course of events the legal relationship of employer and employee, which is the relationship with which we are concerned, can be determined by either party with or without notice and with or without “good” or any cause. It is a personal relationship and cannot survive its repudiation by either party whether or not the repudiation is accepted by the other. The relationship having ended, all that remains is to determine whether it was wrongful dismissal, which turns on the terms of the contract, or was an unfair dismissal, which turns on the provisions of the relevant English statute.”
540. The Courts are unwilling to extend the common law remedies available in wrongful dismissal in circumstances where the Oireachtas has created an entirely stand alone regime of unfair dismissal. The leading case in this area in England Johnson v. Unysis [2001] ICR 480 sets out the principles. In that case the employee claimed common law damages for breach of the implied term of trust and confidence in an employment relationship. He alleged that, because of the manner in which he had been dismissed, he had suffered a mental breakdown and was unable to work. His claim was struck out as disclosing no reasonable cause of action. The principle annunciated in Johnson is that the implied term of trust and confidence cannot be extended to allow an employee to seek to recover damages for loss arising from the manner of his dismissal. In that case the English Court was unwilling to in effect create a new common law right governing the same ground as that provided under the English statutory scheme similar to that applying in this jurisdiction under the Unfair Dismissals Act. Nicholls LJ. stated that it:-
“…would fly in the face of the limits Parliament has already prescribed on matters such as the classes of employees who have the benefit of the statutory right, the amount of compensation payable and the short time limits for making claims.”
541. What has become known as the Johnson exclusion area has developed from the decision in Johnson v. Unysis. In essence the Courts recognise that a dismissed employee may be compensated for damage caused to him (including personal injury) where the wrong occurred prior to the dismissal. The extent of that exclusion area was considered in Eastwood v. Magnox Electric Plc [2004] IRLR 733 where Nicholls LJ. made the following observations:-
“27. Identifying the boundary of the ‘Johnson exclusion area’, as it has been called, is comparatively straightforward. The statutory code provides remedies for infringement of the statutory right not to be dismissed unfairly. An employee’s remedy for unfair dismissal, whether actual or constructive, is the remedy provided by statute. If before his dismissal, whether actual or constructive, an employee has acquired a cause of action at law, for breach of contract or otherwise, that cause of action remains unimpaired by his subsequent unfair dismissal and the statutory rights flowing therefrom. By definition, in law such a cause of action exists independently of the dismissal.
28. In the ordinary course, suspension apart, an employer’s failure to act fairly in the steps leading to dismissal does not of itself cause the employee financial loss. The loss arises when the employee is dismissed and it arises by reason of his dismissal. Then the resultant claim for loss falls squarely within the Johnson exclusion area.”
542. In the instant case the plaintiff determined, as did the plaintiff in Sheey v. Ryan, to launch his action at common law rather than taking a claim pursuant to the statutory provisions. By doing so he limited his remedies and in particular he cannot ask this Court to act as some type of employment appeals tribunal to determine the fairness of the substantive grounds justifying his dismissal.
543. In Maha Lingam v. HSE [2006] ELR 137, Fennelly J. giving the Judgment for the Court stated as follows:-
“the employer was entitled to give that notice so long as he complied with the contractual obligation of reasonable notice whether he had good reason or bad for doing it. That is the common law position and it is an entirely different matter as to whether a person has been unfairly dismissed and a different scheme of statutory remedy is available to any person dismissed whether with or without notice under the Unfair Dismissals Act, but this is not such an application. This is an action brought at common law for wrongful dismissal in the context of which an injunction was sought.”
544. In McGrath v. Trintech Technologies Ltd and Trintech Group Plc [2005] 16 ELR 49, Laffoy J, at p.391 stated as follows:-
“The first point to be made in relation to that submission is that the plaintiff has not invoked any statutory provision in support of his claim. Although decisions of the Employment Appeals Tribunal were cited, I did not understand the plaintiff to argue that the principles applicable under the statutory scheme should be imported into common law. On the authority of the judgment of Carroll J. in Orr v. Zomax Ltd. [2004] IEHC 131, [2004] 1 IR 486, it would not have been open to them to do so. His claim is grounded entirely in the common law – in contract and tort. In particular his claims for declaratory relief are based on the express or implied terms which he contends for, not on any statutory protection. On the authority of the decision of the Supreme Court in Parsons v. Iarnród Éireann [1997] 2 I.R. 523, however, the plaintiff is not entitled to any declaration which extends beyond the ambit of the contractual rights which he establishes and the breach of those rights. On the same authority, the only other remedy to which he is entitled, if he establishes his claim in contract, is damages.”
545. Prior to her making that observation Laffoy J. expressly referred to Sheehy v. Ryan, Hickey v. The Eastern Health Board, Johnson v. Unysis Ltd and Malik v. BCCI. This matter was also referred to in some detail by Clarke J. in Carroll v. Bus Atha Cliath [2005] 4 IR 184. At page 208 of the Judgment he stated as follows:-
“It is, of course, the case that Parsons v. Iarnród Éireann [1997] 2 I.R. 523 was concerned with dismissal rather than with breaches of terms of an employee’s contract of employment. However, it does appear to be a recent reiteration of the general principle of law to the effect that a court will not grant orders which have, in substance, the effect of ordering specific performance of a contract of employment. In Cassidy v. Shannon Castle Banquets [2000] E.L.R. 248 Budd J. granted a declaration that a purported dismissal was in breach of natural and constitutional justice and that, as a consequence, the dismissal was without efficacy and invalid. However it is made clear that the above declarations did not coerce a reinstatement. In that respect Parsons v. Iarnród Éireann [1997] 2 I.R. 523 was distinguished. It is also clear from a consideration of the judgment of Budd J. in Cassidy v. Shannon Castle Banquets [2000] E.L.R. 248 that a factor taken into account in that case was the entitlement of the plaintiff to clear his name. In that respect it is of some importance to note that there have been significant developments in the typical terms of employment of many employees in recent years. Such changes have a material effect upon the circumstances in which, as a matter of contract, many employees can be dismissed.
The traditional position at common law was that a contract of employment could be terminated on reasonable notice without giving any reason. In those circumstances it was obvious that the only remedy for a breach of contract by way of dismissal was for the payment of the amount that would have been earned had appropriate notice been given. However, it is now frequently the case that employees cannot be dismissed, as a matter of contract, save for good reason such as incapacity, stated misbehaviour, redundancy or the like. It would appear that the development of the law in relation to affording employees a certain compliance with the rules of natural justice in respect of possible dismissal derives, at least in material part, from this development. If the stated reason for seeking to dismiss an employee is an allegation of misconduct then the courts have, consistently, held that there is an obligation to afford that employee fair procedures in respect of any determination leading to such a dismissal. That does not alter the fact that an employer may still, if he is contractually free so to do, dismiss an employee for no reason. It simply means that where an employer is obliged to rely upon stated misconduct for a dismissal or, where not so obliged chooses to rely upon stated misconduct, the employer concerned is obliged to conduct the process leading to a determination as to whether there was such misconduct in accordance with many of the principles of natural justice.
In those circumstances it seems to me that it is open to the court to grant declarations concerning most alleged breaches by an employer of his contractual obligations. Parsons v. Iarnród Éireann [1997] 2 I.R. 523 imposes a limit in cases where the declaration could not avail the plaintiff in any practical way.
Where, as here, the consequence of a declaration as to a breach in respect of the plaintiff’s entitlement to date simply gives rise to a claim in damages then no difficulty, therefore, arises.”
546. In Nolan v. Emo Oil Services Ltd [2009] IEHC 15 Laffoy J. dealt expressly with an attempt by a plaintiff to litigate what was in truth an unfair dismissal claim that is an allegation that he was either unfairly selected for redundancy or alternatively the grounds for his dismissal was not in truth redundancy. She described the plaintiff’s claim in the following terms:-
“Although not articulated in this way by counsel for the plaintiff, the plaintiff’s case, as I understand it, is that it is an implied term of his contract of employment that, notwithstanding the express right to terminate his contract on notice, the plaintiff is entitled to litigate the fairness or otherwise of the termination of his contract on the grounds of redundancy by reference to the statutory code in plenary proceedings in this Court. I base that understanding on the submission of counsel for the plaintiff that the defendant, as his employer, owed a duty of good faith to the plaintiff, in consequence of which it was an implied term of the plaintiff’s contract of employment that, if he was to be let go on the grounds of redundancy, there would have to be a valid redundancy.”
547. Laffoy J. then went on to make reference to the Supreme Court decision in Maha Lingam and noted that in that case the Supreme Court had made reference to Eastwood, a case in which the House of Lords had considered its earlier decision in Johnson v. Unysis Ltd. She then quoted from Lord Nichols and his views on the “Johnson exclusion area” and she then dealt with the case at issue in the following terms:-
“In this case, the plaintiff’s employment with the defendant came to an end on 30th November, 2008 and his last day at work was the 28th November, 2008. In essence, what he is trying to achieve by these proceedings is to get his job back. He got the required notice under his contract of employment and his contract of employment was lawfully terminated. If, as he contends, his dismissal was unfair, then the remedy available to him is the remedy provided by statute. As a matter of fact, that is the only remedy he could pursue because, in my view, he had not acquired a cause of action for breach of contract or otherwise prior to his dismissal. In the circumstances, there is no remedy which he can pursue in this Court.
That conclusion is supported by the decisions of the Supreme Court in the Maha Lingham case and in the Sheehy case.
In my view, it is also correct in principle. There may be situations in which, on the reasoning of Lord Nicholls in the Eastwood case, a dismissed employee is entitled to maintain an action at common law, for example, where he has suffered financial loss from psychiatric or other illness as a result of pre-dismissal unfair treatment which would give rise to an action for damages. That scenario was signposted by Lord Steyn in the Johnson case and recognised in the Eastwood case. The plaintiff’s situation here is entirely different. In effect, he is inviting the Court to develop its common law jurisdiction by reference to the statutory concepts of redundancy and unfair dismissal. Specifically, the Court was invited by counsel for the plaintiff to have regard to the statutory definition of “redundancy” in s. 7 of the Redundancy Payments Act 1967, as amended. The Oireachtas in enacting the Unfair Dismissal Acts 1977 to 2008 and introducing the concept of unfair dismissal provided for specific remedies for unfair dismissal and specific procedures for obtaining such remedies in specific forums, before a Rights Commissioner or the Employment Appeals Tribunal. For the Courts to expand its common law jurisdiction in parallel to the statutory code in relation to unfair dismissal and redundancy would, to adopt Lord Nicholls’s terminology, end up supplanting part of the code.”
548. The above cases from this jurisdiction recite what are the applicable principles to be considered and applied. In the instant case much of what the plaintiff claims relates to the unfairness of the decision to dismiss as distinct from wrongful dismissal and, as such, this Court has no jurisdiction in same.
Conduct or Performance
549. The plaintiff claims there was no misconduct on his part. The case the plaintiff makes is one which went to performance and not conduct. I am satisfied that the plaintiff was employed by the defendant to conduct its banking business in Clanbrassil Street. The matters outlined in the Special Investigation Report were an examination of the manner in which he conducted himself and the affairs of the bank whilst in the defendant’s employment. It was not a case exclusively of performance. Mr. Dunne properly considered the actions and failings of the plaintiff and his disregard for the bank’s procedure as misconduct and the ultimate conclusion as gross misconduct.
Bias
550. There were three meetings on 3rd September, 2001, held by various senior members of the defendant. One such meeting was between Mr. Dunne, Mr. Kennedy, Mr. Mitchell and Ms. O’Brien. Mr. Dunne’s recollection of the meeting is set out earlier. It is likely that the meeting came in the wake of the request by Mr. Smith to have the initial hearing for 4th September postponed in light of the medical condition.
551. In supplemental submissions it is was claimed by counsel for the plaintiff that such meeting was wholly improper and of itself disqualified Mr Dunne as an adjudicator in the disciplinary process. He relied on the case of The State (Hegarty) v. Winters [1956] I.R. In that case the applicant sought a claim to arbitration seeking compensation for disturbance to his lands. Mr. Winters was the arbitrator and had walked the lands with the County Council surveyor after the hearing. The Supreme Court decided that the fundamental rule that not alone should justice be done, but that it must be seen to be done, was broken.
552. In response to these submissions, Mr. Hanratty on 27th July, 2012 (day 50) objected to the introduction at the eleventh hour of a new case of objective bias. He said that objective bias had never been part of the plaintiff’s case. He submitted that it was not pleaded in the statement of claim. He further submitted that there were occasions in the course of the hearing where there were discussions as between the court and counsel on both sides as to what the issues in the case were and on none of those occasions was the question of objective bias introduced or mentioned.
553. On 3rd October, 2012, (day 51) Mr. Hanratty continued his submissions and subsequently Mr. Callanan SC made his closing submissions in response. As far as the court could determine there had been no specific response on behalf of the plaintiff to the submission that objective bias was not specifically pleaded. Having regard to the importance of this matter the Court convened a further sitting of the case as a matter of urgency on 15th January, 2013.
554. In the course of his submissions, Mr. Callanan SC accepted that the term objective bias is not used or pleaded although bias is comprehensively pleaded. He submitted that this was not a judicial review case and was a technical point. He submitted that there was adequate reference in the amended statement of claim to the plea of bias and also to the failure to afford natural and constitutional justice. He referred to the following paragraphs from the Amended Statement of Claim:
Paragraph 58 page 23; para. 22 page 26; para. 59 page 28; para. 78; para. 79; para. 80; para. 81(b).
555 He submitted this was not a new case and had been made during the proceedings. He referred to the mini summit meeting of 15th May, 2001 which was held by the court to have been a privileged occasion and submitted that the defendant must have been aware that such meetings were under scrutiny.
556. He referred to a passage from Administrative Law in Ireland size=”2″ face=”Verdana”> by Hogan J. and Morgan P. where the author stated:-
“In the past decade or so, there has been a good deal of characterisation and jargonisation in this area which is noted at this point. But once you observed that while this may be useful from a descriptive point of view, in most cases, nothing turns on these distinctions. And it should be emphasised that we have used the term ‘bias’ to embrace all members of the family.”
557. The authors continued to their commentary and refer to what Geoghegan J. stated in Orange v. Director of Telecoms (No. 2) [2000] 4 IR 159, where he stated:-
“(1) The rare case of proved actual bias. For such bias to be established it would be necessary actually to prove that the judge or the tribunal or the adjudicator… was deliberately setting out to mark or hold against a particular party irrespective of the evidence….
(2) A situation of apparent bias where the adjudicator has a proprietary or some other definite personal interest in the outcome of the proceeding competition or other matter on which he is adjudicating. In that case there is a presumption of bias without further proof.
(3) Even in cases where there is no evidence of actual bias and no evidence of the adjudicator having any proprietary or other interest in the outcome of the matter, there will still be held to be apparent bias if a reasonable person might have apprehended that there might be bias because of some particular proven circumstance external to the matters to be decided in the case such as for instance a family relationship in circumstances where objection may be taken…”
558. The authors continue by saying that category 1 “actual bias” is sometimes known as “conscious bias”.
559. On 18th January 2013 Mr. Hanratty submitted in reply to Mr Callanan SC that: (i) the objective bias plea was a new one, and (ii) without prejudice to that submission, the test of objective bias is not passed having regard to recent authorities on the subject.
560. He referred to the Amended Statement of Claim and the various contexts in which bias was pleaded. These are recorded in the transcript of evidence as are the various contexts in which the word bias appears in the lengthy submissions of the plaintiff.
561. I accept Mr Hanratty’s submission that the case is pleaded as one of subjective bias, and that the case as heard in Court for over 50 days was one of deliberate prejudgment by persons including Mr. Dunne in a conspiracy in which subjective bias was a major part.
562. In the various exchanges between Counsel and the Court during the hearing to identify the substantial issues in the case objective bias was not raised. Whilst there was reference to the three meetings of 3rd September 2001, including the meeting which Mr. Dunne attended, no complaint was made in the context of objective bias until the supplemental submissions were delivered.
563. Having considered all the pleadings opened to the Court and submissions made on behalf of the plaintiff and defendant I conclude objective bias is a new plea and is also of such a character as it should have been specifically pleaded to enable the parties to litigate the issue in Court. It is not a technical pleading point.
564. The issue of amending the Statement of Claim cannot arise at this late stage and would set in train many consequential matters. The issue of objective bias cannot be pleaded.
565. I reject the Plaintiff’s submission that in the context of this case actual bias encompasses objective bias.
The Alleged Defamation
566. The plaintiff accepted that the claim for defamation must show malice to defeat qualified privilege. The claim related to the Dunne report and the defendant’s communication to the Money Laundering Investigation Unit of the Garda Bureau of Fraud investigation. The plaintiff accepted that the onus was on him to establish malice. He accepted that ordinarily a claim for defamation would not arise out of findings of a disciplinary hearing as the plaintiff employee would be unable to establish that a statement that was on its face defamatory was uttered with malice. The plaintiff relied on the definition of malice in Kirkwood Hackett v. Teirney [1952] IR 185 and Hennessey v. K-Tel [1998] WJSC-SC 8033 which defined malice as:-
“The use of the occasion of qualified privilege for an indirect or improper motive or purpose.”
567. I am not satisfied that the plaintiff has established malice on the part of the defendant either in relation to the Dunne report or the communications with the money laundering section. The plaintiff claimed that whilst no malice was being imputed to Mr. Gibson and his colleagues, they were acting on the instructions of Mr. Kennedy and Mr. Condon who were seeking to precipitate the prosecution of the plaintiff. I have already rejected the conspiracy theory. The publications complained of were made on occasions of qualified privilege. Furthermore, the reporting of parts of the Special Investigation Report and the making of Suspicious Transaction Reports were done pursuant to statutory obligations and were made bona fide.
The Plaintiff’s Claim to Monies
568. Following the plaintiff being placed on special paid leave on 20th April, 2001, the defendant took possession of monies in his briefcase along with the passport which was subsequently returned. The money comprised of Ir£8,000 and STG£8,800. The defendant has not advanced any case for a superior claim to the monies than that advanced by the plaintiff. The plaintiff is entitled to the return of the value of the monies. I will hear the parties in relation to how the sum should be calculated together with the claim, if any, in relation to interest.
Claim for Legal Costs
569. The supplemental submissions of the plaintiff also included a claim for legal costs of representation before the Dunne inquiry. Reliance was placed on the judgment of Barrington J. in Condon v. Córas Iompair Éireann (Unreported, 16th November, 1984) in which the plaintiff as the train driver in the Buttivant train disaster was allowed the cost of his representations for the inquiry in which he was exonerated.
570. Reliance was also placed on a decision of O’Neill J. in Courtney v. Our Lady’s Hospital & Ors (Unreported, 27th May, 2011) in which the plaintiff was successful in a claim for costs of legal representation at the inquest into her daughter’s death. Reliance had been placed on the Condon case.
571. In the present case, the disciplinary procedures are part of the legal relationship between the plaintiff and the defendant. There is no provision in those procedures for costs to be awarded either to the plaintiff or to the defendant following a disciplinary inquiry hearing. The fact that the hearing took so long is not in itself a valid ground for the claim. No case has been put forward in which costs have been allowed to an employee who appears before a disciplinary inquiry.
572. The concluding remarks of Barrington J. relied on the fact that the plaintiff was placed in the position of needing representation as a consequence of the negligence of CIE and this was a reasonably foreseeable consequence. In the instant case, the inquiry did not arise as a consequence of the negligence of the defendant. The disciplinary inquiry arose following the completion of the Special Investigation Report. The matters contained within such report were of sufficient gravity to warrant a disciplinary inquiry. Indeed, the plaintiff during the inquiry acknowledged his failure to comply with many of the defendant’s procedures in relation to the transactions. Furthermore, the requirement of the plaintiff to have legal representation in the circumstances arising was unlike the Condon case, not a reasonably foreseeable consequence.
573. The Courts finding is that Mr. Dunne did not act in any malicious or conspiratorial manner.
574. In the circumstances, the court will disallow the claim.
Money Laundering
575. The court has previously permitted the defendant to make further and better discovery in particular in relation to documents relating to the money laundering section of the bank and its dealings with the Gardaí. The officer of the defendant in charge of this section had statutory obligations to notify the Gardaí and to file where necessary a suspicious transaction report to the Gardaí. Mr. Gibson gave evidence as to his involvement. Relevant details were supplied to the Gardaí. I accept the evidence of Mr. Gibson which is set out in detail in this judgment. Mr. Callanan SC accepted that there was no impropriety associated with Mr. Gibson’s communications with the Garda Money Laundering Investigation Unit. There was no evidence of Mr. Gibson’s involvement in the conspiracy alleged by the plaintiff but that he and his section would have been used as instruments of the bank’s conspiracy. It is evident that the statutory obligations to deal with the Gardaí in connection with the money laundering legislation and the responses of the Gardaí to such notifications are confidential and separate from the other activities of the bank including the disciplinary inquiry. I am satisfied that Mr. Dunne had no knowledge of the dealings between Mr. Gibson and his colleagues with the Gardaí. Mr. Gibson’s evidence is of value to the court since there is no allegation of conspiracy made against him. It is apparent that Mr. Gibson took a serious view in relation to the matters set out in the Special Investigation Report. I am satisfied that Mr. Gibson acted independently and was not improperly influenced by Mr. Kennedy or Mr. Condon.
576. The Court has considered the pleas in the Amended Statement of Claim following the supplemental discovery of documents in relation to the defendant’s reporting of the plaintiff to the Fraud Squad. The Court has already concluded there was no conspiracy in relation to Mr. Kennedy and Mr. Condon, and there was no impropriety on the part of Mr. Gibson. These additional claims are rejected.
Ms. Nicola O’Brien
577. In the third day of the closing submissions of the plaintiff the plaintiff’s counsel asserted that Ms. Nicola O’Brien, solicitor, should not have been doing what she was doing. She was acting as a protagonist and acting in a dual function, it was stated. She was representing the defendant and providing advice to the Dunne Inquiry it was asserted.
578. Repeatedly the Court asked counsel on behalf of the plaintiff during the hearing was Ms. O’Brien involved in the conspiracy or was any allegation being made against her. The Court was told no such matters were being alleged.
579. The Court will not entertain such allegations against Ms. O’Brien. Furthermore, her involvement was known to the plaintiff without protest at the outset of the Inquiry including her letter of 2nd July 2002 to Mr. Dunne as a result of which he took advice from Mr. Given.
Conclusion
580. The primary allegation in this case is a malicious conspiracy by the Defendant’s servants or agents. It is argued that the conspiracy is characterised by an agreement to deny fair procedures to the plaintiff. Surprisingly it is then alleged that if there was no conspiracy the allegations of breaches of fair procedures remain as a separate cause of action.
581. It is arguable that the plaintiff’s case stands or falls on the ability to prove there was a conspiracy to deprive the plaintiff of fair procedures. However, the Court has considered the issues separately. As already found, the Defendant, having confined its allegations to the Special Investigation Report
(i) was not required to produce Mr Muckian for cross examination to, as Mr Horan said, determine “what was his whole process about”
(ii) did not dictate to Mr Dunne the witnesses to be called or documents to be produced relevant to the issues under consideration
582. There were no breaches of procedure by Mr Dunne and the finding of Mr. Dunne of gross misconduct on the part of the plaintiff was a conclusion lawfully arrived at by Mr Dunne.
583. The defendant has argued that the court should not re-open the merits of the disciplinary findings, whilst the plaintiff has invited the Court to do so arguing the dismissal was procedurally unfair in some substantial way or that the finding was substantively wrong or disproportionate or could have justified a lesser sanction as it was in the nature of a first offence. In the Court’s finding many if not all of these issues are appropriate to be determined under Unfair Dismissals legislation.
