Disciplinary Procedures
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.
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
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
S.I. No. 117/1996 – Industrial Relations Act, 1990,
Code of Practice on Disciplinary Procedures (Declaration) Order, 1996.
INDUSTRIAL RELATIONS ACT, 1990, CODE OF PRACTICE ON DISCIPLINARY PROCEDURES (DECLARATION) ORDER, 1996.
WHEREAS the Labour Relations Commission has prepared a draft code of practice on disciplinary procedures;
AND WHEREAS the Labour Relations Commission has complied with subsection (2) of section 42 of the Industrial Relations Act, 1990 (No. 19 of 1990), and has submitted the draft code of practice to the Minister for Enterprise and Employment;
NOW THEREFORE, I, RICHARD BRUTON, Minister for Enterprise and Employment, in exercise of the powers conferred on me by subsection (3) of that section, the Labour (Transfer of Departmental Administration and Ministerial Functions) Order, 1993 ( S.I. No. 18 of 1993 ) and the Industry and Commerce (Alteration of Name of Department and Title of Minister) Order, 1993 ( S.I. No. 19 of 1993 ), hereby order as follows:
1. This Order may be cited as the Industrial Relations Act, 1990 , Code of Practice on Disciplinary Procedures (Declaration) Order, 1996.
2. It is hereby declared that the code of practice set out in the Schedule to this Order shall be a code of practice for the purposes of the Industrial Relations Act, 1990 (No. 19 of 1990).
SCHEDULE
CODE OF PRACTICE ON DISCIPLINARY PROCEDURES
Section I — Introduction
1. Section 42 of the Industrial Relations Act 1990 provides inter alia for the preparation of draft codes of practice by the Labour Relations Commission for submission to the Minister for Enterprise and Employment, 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 (Appendix I).
2. The main purpose of this code of practice is to set out for the guidance of employers, employees and their representatives the general principles which should apply in the operation of disciplinary procedures. For the purposes of this code of practice, “employee representative” includes a colleague of the employee’s choice and an authorised trade union but not any other person or body unconnected with the enterprise.
3. In any enterprise or organisation, it is important that procedures of this kind exist and that the purpose, function and terms of such procedures are known and clearly understood by management, employees and trade unions.
Section II — General
4. This code of practice contains general guidelines on the application of disciplinary procedures and the promotion of best practice in giving effect to such procedures.
5. 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 disciplinary issues.
Section III — Importance of Procedures
6. 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. Apart from considerations of equity and natural justice, the maintenance of a good industrial relations atmosphere at workplace level requires that acceptable procedures be in place and be observed.
7. 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.
Section IV — General Principles
8. The essential elements of any procedure 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.
9. 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 industrial relations practice generally.
10. The procedures applied must comply with the general principles of natural justice and fair procedures which include:
(i) that details of the allegations or complaints be put to the employee concerned;
(ii) that the employee concerned be given the opportunity to respond fully to any such allegations or complaints;
(iii) that the employee concerned is given the opportunity to avail of representation;
(iv) that the employee concerned has the right to a fair and impartial determination of the issues being investigated, taking into account the allegations or complaints themselves, the response of the employee concerned to them, any representations made by or on behalf of the employee concerned and any other relevant or appropriate evidence, factors or circumstances.
11. 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.
12. As a general rule, an attempt should be made to resolve a disciplinary issue between the employee concerned and his or her immediate manager or supervisor. This could be done on an informal or private basis.
Section V — Disciplinary Procedures
13. In the interest of good industrial relations, disciplinary procedures should be in writing and presented in a format and language which is easily understood. Copies of the procedures should be given to all employees and should be included in any induction programme for new employees. The consequences of a departure from rules and employment requirements should be clearly set out, particularly in respect of breaches of discipline which if proved would warrant suspension or dismissal.
14. Disciplinary action may include;—
( a ) an oral warning
( b ) a written warning
( c ) a final written warning
( d ) suspension without pay
( e ) transfer to another task, or section of the enterprise
( f ) demotion
( g ) some other appropriate disciplinary action short of dismissal
( h ) 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.
An employee may be suspended on full pay pending the outcome of an investigation into an alleged breach of discipline.
15. Procedures should set out clearly the different levels in the enterprise or organisation at which the various stages of the procedures will be applied.
16. Warnings should be removed from an employee’s record after a specified period and the employee advised accordingly.
17. The operation of a good disciplinary procedure requires the maintenance of adequate records. It also requires that all members of management, including supervisory personnel and all employees and their representatives be familiar with and adhere to the terms of the procedure.
APPENDIX 1
Codes of Practice:
Section 42 of the Industrial Relations Act, 1990 states:
(1) The Commission shall prepare draft codes of practice concerning industrial relations for submission to the Minister, either on its own initiative or at the request of the Minister.
(2) Before submitting a draft code of practice to the Minister, the Commission shall seek and consider the views of organisations representative of employers and organisations representative of workers, and such other bodies as the Commission considers appropriate.
(3) Where the Minister receives a draft code of practice from the Commission he may by order declare that the code, scheduled to the order, shall be a code of practice for the purposes of this Act.
(4) In any proceedings before a court, the Labour Court, the Commission, the Employment Appeals Tribunal, a rights commissioner or an equality officer, a code of practice shall be admissible in evidence and any provision of the code which appears to the court, body or officer concerned to be relevant to any question arising in the proceedings shall be taken into account in determining that question.
(5) A failure on the part of any person to observe any provision of a code of practice shall not of itself render him liable to any proceedings,
(6) The Minister may at the request of or after consultation with the Commission by order revoke or amend a code of practice.
(7) Every order made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either House within the next twenty-one days on which that House has sat after the order has been laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done hereunder.
GIVEN under my Official Seal, this 6th day of May, 1996.
RICHARD BRUTON,
Minister for Enterprise and Employment
EXPLANATORY NOTE.
The effect of this Order is to declare that the draft code of practice set out in the Schedule to this Order is a code of practice for the purposes of the Industrial Relations Act, 1990 .
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
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
Kelleher -v- An Post
EMBANKMENT PLASTICS LIMITED v A WORKER
Bank of Ireland -v- 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
Iarnrod Eireann – Irish Rail v McKelvey CA
[2018] IECA 346 (08 November 2018)
Irvine J., Whelan J., Baker J.
Judgment by:
Irvine J.
1. This is the appeal of Iarnród Éireann / Irish Rail (“the appellant”) against the judgment and order of the High Court, Murphy J., dated the 28th day of July 2017. By her order she granted an injunction restraining the appellant from commencing a disciplinary hearing against Mr. McKelvey in respect of alleged misconduct notified to him on the 8th May 2017, unless his claimed entitlement to legal representation was agreed to.
2. While many legal arguments were advanced by the respective parties in the High Court it is fair to say that only two issues have been raised by the appellant for the court’s consideration on this appeal. The first is whether the High Court judge erred in law and in fact when she concluded that it would be contrary to the principles of natural justice and fair procedures to require Mr. McKelvey to engage with the disciplinary hearing proposed by the appellant without the benefit of legal representation. The second is whether the High Court judge ought to have rejected Mr. McKelvey’s application for an injunction on the basis that it was premature in that it could not be stated, at the time of his application, that any finding ultimately made at the conclusion of the disciplinary process would be bound to be unsustainable in law, by reason of the fact that he did not have legal representation from the outset.
Background Facts
3. It is first necessary to set out in skeletal form the facts material to the conclusions made by the High Court judge. These are of particular relevance to the submissions of the parties on this appeal as they are to my conclusions.
4. At the time he commenced the within proceedings, Mr. McKelvey was 39 years of age and had been an employee of the appellant since 1999. He was appointed to the role of inspector in May 2013. His responsibilities included managing those employees charged with maintaining the Cork to Dublin railway line. As part of his work, Mr. McKelvey was provided with fuel cards to facilitate the re-fuelling of company vehicles and machinery. Other Iarnród Éireann personnel also have the use of such cards.
5. In late 2016 the appellant became concerned regarding the amount of fuel purchased using the aforementioned cards in Mr. McKelvey’s division i.e. Division 3. As a result, a preliminary investigation was carried out, during the course of which Mr. McKelvey was interviewed on a number of dates including the 21st December 2016. In the course of that meeting Mr. McKelvey was apparently shown copies of spreadsheets relating to purchases made with his fuel card for the years 2014, 2015 and 2016.
6. It is clear from the notes of the aforementioned interview, which are exhibited in one of his affidavits, that Mr. McKelvey had been asked about a number of purchases ostensibly made with his fuel card and that he had explained how some such purchases could have been made using his card without his knowledge. One such possibility was that his card might have been taken without his knowledge by another member of staff.
7. By letter dated the 13th March 2017, Mr. McKelvey was advised that as a result of the ongoing investigations into fuel usage in Division 3 and his meeting with the inquiry panel that he was being suspended on basic pay until further notice. That notification triggered a letter from Mr. McKelvey’s trade union representative, Mr. Paul Cullen, and also a letter from Sinnott Solicitors, challenging the lawfulness of his suspension.
8. On the 8th May 2017, using what is described as Disciplinary Form A, Mr. McKelvey was notified that the appellant had decided to initiate its formal disciplinary process to inquire into the following matter:
“Theft of fuel through the misuse of a company fuel card(s), which has resulted with the company suffering a significant financial loss.”
In the said form Mr. McKelvey was invited to respond to the notification within seven days and to indicate whether he would be requesting “a personal hearing”.
9. By letter dated the 10th May 2017. Mr. McKelvey requested an oral hearing and, having regard to the allegation of “theft”, requested that he be allowed to be represented by solicitor and counsel at the disciplinary hearing. He also complained that the procedures pursuant to which the hearing was to be conducted were unsatisfactory insofar as they provided that he would only receive the documentary evidence to be relied upon in support of the allegation at the commencement of the hearing. It is not disputed that the Grievance and Disciplinary procedure pursuant to which the proposed disciplinary inquiry is to be conducted was notified to him as part of his contract of employment.
10. In circumstances where the issues to be decided on this appeal are relatively net it is not necessary to further detail the communications between the parties exchanged prior to the commencement of these proceedings on the 7th June 2017. It is, however, of note that certain interim orders were made by Humphreys J. on the 7th June 2017 which had the effect of restraining Iarnród Éireann taking any further steps in the disciplinary process until such time as Mr. McKelvey was in a position to apply for the interlocutory relief sought in his notice of motion dated the 7th June 2017.
Judgment of Ms. Justice Murphy
11. Having considered the submissions of the parties and the evidence before her, Murphy J. concluded that the charges levelled against Mr. McKelvey could hardly have been more serious insofar as they put at risk not only his reputation but also his future employment prospects. In those circumstances she was satisfied that his right to fair procedures and natural and constitutional justice were engaged.
12. As to the entitlement of Mr. McKelvey to legal representation, the High Court judge had regard to a number of legal authorities concerning the circumstances in which a party might claim to be entitled to legal representation when faced with the prospect of having to defend allegations of misconduct. In particular, she relied upon the decision of Geoghegan J. in Burns v. Governor of Castlerea Prison [2009] 3 I.R. 682 and that of Webster J. in R v. Home Secretary ex parte, Tarrant [1985] 1 Q.B. 251. The High Court judge specifically considered certain factors identified in Tarrant , and approved of in this jurisdiction in Burns, as relevant to the appellant’s discretion and sought to apply them to the facts of the present case. Having done so she concluded that the inquiry proposed would not be fair unless Mr. McKelvey had legal representation. Accordingly, she made an order restraining the appellant from conducting the proposed inquiry unless it agreed that he might have such representation.
13. In coming to the aforementioned conclusions the High Court judge attached weight to the following factors:-
(i) the seriousness of the charge and the fact that the potential penalty to be imposed might lead to dismissal and adversely affect his employment prospects;
(ii) the outcome had the potential to significantly impact upon Mr. McKelvey’s reputation;
(iii) that multiple points of law were likely to arise, including contentions that there had been flaws in the investigation process, the imprecision of the charges levelled against Mr. McKelvey and the necessity for Iarnród Éireann to establish loss;
(iv) that Mr. McKelvey did not have the capacity to conduct his own defence;
(v) the facts would be complex given that the investigation would relate to the use of multiple fuel cards and would engage with multiple transactions over a period of years. It was, the High Court judge concluded, “ridiculous” to consider that Mr. McKelvey might navigate that process unaided;
(vi) that it was not yet clear how the employer intended to conduct the disciplinary hearing and thus it could not be determined how procedurally difficult it would be for Mr. McKelvey to engage with the process without legal representation; and
(vii) whilst the engagement of lawyers would almost certainly slow the disciplinary process the downside for the appellant would be relatively minor because of the fact that the plaintiff had already been suspended.
14. The trial judge concluded her reasoning with the following statement:-
“Given the complexity of this case the court is satisfied that in order to do so [defend the misconduct alleged] he should be entitled to retain lawyers should he desire to do so.” (Transcript, p. 14, lines 26-27)
15. While at no stage in her judgment does the trial judge expressly state that it would be to deprive Mr. McKelvey of a fair hearing if he was not permitted to have solicitor and counsel present for the duration of the disciplinary process or so that counsel might cross examine such witnesses as might be called by the appellant, it is to be inferred from the fact that she acceded to counsel’s request that she make an order in such terms, that she must have so concluded.
16. For completeness it should also be recorded that the trial judge expressed herself satisfied that the failure on the part of the appellant to provide Mr. McKelvey with all of the evidence upon which it intended to rely in the course of the disciplinary process in advance of the commencement of the process did not, of itself, give rise to any unfairness. This was because the disciplinary procedure to be deployed provided that such evidence would be furnished at the commencement of the hearing and that at that point he could seek an adjournment to consider that evidence, if the same proved necessary. She accordingly concluded that it was premature to propose that Mr. McKelvey’s rights to fair procedures would likely be infringed on that ground. Nonetheless, because she was concerned that such evidence might not be furnished in accordance with the disciplinary procedure advised, the trial judge gave Mr. McKelvey liberty to apply to the court should he find himself in that position.
Submissions of the Parties
Submissions on behalf of Iarnród Éireann
17. Mr. Frank Callanan SC of behalf of the appellant submits that while the High Court judge correctly had regard to the principles to be applied by a court when considering whether or not the principles of natural justice and fair procedures required that a party the subject matter of a disciplinary complaint was entitled to be legally represented by solicitor and counsel, she had misapplied those principles having regard to the particular facts of the case. In this regard he submits that when she engaged with the capacity of Mr. McKelvey to defend the complaint made against him she treated him as an employee that would be “unaided” rather than an employee who would be represented by Mr. Cullen, an experienced trades union official from SIPTU. Further, contrary to the conclusions of the trial judge, there was nothing uncertain about the procedure to be deployed. Mr. McKelvey had been furnished with a copy of the procedure proposed. He had also been advised that it was for the appellant to establish the wrongdoing alleged and that he would enjoy the right to cross examine all witnesses called in support of the misconduct alleged and that he himself might call witnesses. Further, the proposed procedure was in conformity with the code of practice approved under the Industrial Relations Act 1990 and S.I. 146/2000 Industrial Relations Act 1990 (Code of Practice of Grievance and Disciplinary Procedures) (Declaration Order) 2000.
18. Counsel further submits that there was no basis for the finding of the High Court judge that multiple points of law were likely to arise in the course of the disciplinary hearing or that Mr. McKelvey would not, with the assistance of Mr. Cullen, be capable of defending the allegations made against him. The same was to be said of her conclusion that the facts under consideration, might not fairly be dealt with by Mr. McKelvey without the assistance of solicitor and counsel.
19. Mr. Callanan also contends that the High Court judge failed to have regard to the general principle that emerges from the case law concerning the right to legal representation in the context of what are generally described as workplace investigations namely that legal representation should only be required in exceptional circumstances.
20. Counsel submits that it does not follow that just because the facts underlying the allegation of wrongdoing made against Mr. McKelvey might, in other circumstances, form the basis for the criminal charge of theft means that those facts could not fairly be investigated in the course of a workplace disciplinary processes unless the employee was permitted to be legally represented by solicitor and counsel. Further, the fact that the wrongdoing, if established, might lead to the employee’s dismissal was not of itself dispositive of the employee’s entitlement to legal representation. Counsel argues that there is nothing exceptional about an allegation of misconduct that might lead to dismissal in a workplace setting. It cannot be said that it necessarily follows from the fact that the sanction may be significant that the employee cannot have a fair hearing absent legal representation.
21. As to the prematurity issue, Mr. Callanan submits that there is a heavy burden on an applicant who seeks by injunction to arrest the commencement of a disciplinary process and he relies in this regard upon the decision in Rowland v. An Post [2017] 1 I.R. 355. Before intervening the court would have to have been satisfied, at the time the application was made, that it was clear that the result of the investigation was bound to be unsustainable by reason of the fact that Mr. McKelvey would not have legal representation. According to Mr. Callanan, on the facts before the High Court it simply could not be said that any conclusion reached as a result of the disciplinary inquiry was bound to be unsustainable in law. It was, according to counsel “to take a leap in the dark” to conclude that the hearing was bound to be unfair and the result unsustainable.
Submissions on behalf of the Respondent
22. Mr. Jim O’Callaghan SC, on behalf of Mr. McKelvey, submits that the decision of the High Court judge, having regard to the prevailing facts, was fully in accordance with the authorities as to the circumstances in which a party the subject matter of a disciplinary investigation was entitled to claim a right to legal representation by solicitor and counsel. The High Court judge had correctly identified and considered each of the factors identified by Geoghegan J. in Burns in concluding that a fair hearing could not be assured if Mr. McKelvey was to be denied representation by solicitor and counsel. The fact that she considered each of these factors in turn, a process which was criticised by Mr. Callanan SC as being unduly mechanistic, was entirely appropriate.
23. Counsel submits that the High Court judge correctly attached significant weight to the gravity of the wrongdoing alleged against Mr. McKelvey and the fact that it might lead to his dismissal and also adversely impact upon his future employment prospects. The gravity of the wrongdoing alleged against Mr. McKelvey and its likely consequences were, he submits, no different to those to which the medical practitioner was exposed in Borges v. Fitness to Practice Committee [2004] 1 IR 103 where the doctor concerned faced the possibility of being struck off the Registrar of Medical Practitioners for misconduct. He relied upon that part of the judgment of Keane C.J. wherein he had accepted that the medical practitioner had a right to cross examine his accusers “through counsel”. He further replied upon the decisions of Blayney J. in Gallagher v. The Revenue Commissioners [1991] 2 I.R. 370, Gilligan J. in Kinsella v. Ulster Bank (Unreported, 25th October 2016) and Eager J. in Lyons v. Longford Westmeath Education and Training Board [2018] 29 ELR 35; [2017] IEHC 272, all of which he maintains are supportive of the approach of the trial judge.
24. Counsel argues strongly that the High Court judge was also correct to conclude, on the evidence before her, that the factual matters the subject matter of the proposed disciplinary hearing were indeed complex. This was evident from the documents already furnished to Mr. McKelvey in advance of the commencement of the disciplinary process and upon which the appellant clearly intended to rely. In particular, Mr. O’Callaghan referred to information contained in a number of spread sheets detailing the alleged use of fuel cards over several years and also to the content of a three-page memorandum/word document detailing exchanges had between Mr. McKelvey and his employers in the course of the preliminary investigation concerning the excessive purchases of fuel in Division 3. According to Mr. O’Callaghan, Mr. McKelvey needed a solicitor and counsel to examine such documents on his behalf so that he might be properly advised as to their significance and as to what, if any, additional information might be sought in light of their content.
25. Regarding Mr. Callanan’s submission based on the likely consequences for large organisations should all employees facing similar charges of misconduct be entitled to legal representation through solicitor and counsel, Mr. O’Callaghan submits that his client’s rights to natural justice and fair procedures simply cannot be subordinated to considerations such as the speed or efficiency with which a disciplinary process might be concluded or the costs pertaining thereto.
26. Finally, Mr. O’Callaghan submits that his application for interlocutory relief was not premature. It was perfectly clear at the time when the High Court application was made that he could not receive a fair hearing in the course of the disciplinary process without legal representation and that it was beyond doubt that any decision made, absent such representation would not withstand legal scrutiny.
Discussion
27. Given that it was not in dispute between the parties in the High Court that the appellant had the discretion to permit Mr. McKelvey to be legally represented at the disciplinary hearing, notwithstanding that its Grievance, Disciplinary Policies and Procedures refer only to his right to be represented by a fellow employee or trade union representative, the High Court judge was legally correct in the approach which she adopted to the injunction application. She first identified the factors material to an employer’s discretion when faced with a request by an employee that they might be legally represented at a formal disciplinary inquiry. These, of course, are the same factors as would be material to the Court’s discretion on an application, such as that made by Mr. McKelvey, to retrain the commencement of such an inquiry until consent to such a request was forthcoming. Then, the High Court judge considered those factors in the light of the particular circumstances of the case.
28. Before moving to consider the findings of the High Court judge, a brief review of a number of the relevant legal authorities is warranted.
29. There are admittedly two very recent judgments of the High Court which engage with the type of hearing that must be afforded to an employee faced with an investigation into their conduct. As these judgments are in conflict I propose to return to them later in this judgment. See: the judgments of McDermott J. in NM v. Limerick and Clare ETB [2007] IEHC 558 and Eager J. in Lyons v. Longford Westmeath ETB [2018] 29 ELR 35; [2017] IEHC 272. Nonetheless in my view the leading authority pertaining to the central issue on this appeal is, without doubt, the judgment of Geoghegan J. in Burns . That being so I will briefly refer to the relevant facts and the principles which emerge from that decision.
30. In Burns the net issue for the Court’s consideration was whether two prison officers, against whom misconduct had been alleged, were entitled as a matter of natural justice and fair procedures to be legally represented at an oral hearing to be held before the Governor under the 1996 Prison Rules (“the Rules”). Under the Rules, the prisoners were required to be present at the hearing and were entitled to call witnesses. They were also entitled to have advocacy assistance, but only from a prison officer albeit that the judgment records that it was common practice that trade union representatives would regularly act as their advocates.
31. The facts underlying the hearing to be held before the Governor are as follows: the prison officers had been detailed to take a prisoner to a hospital in Galway for treatment. They had returned to the prison at approximately 6.30 p.m. on the day in question and it was later discovered that the prisoners’ business at the hospital had concluded as early as 12.40 p.m. that day. When this was discovered, they were advised that there was to be an inquiry into three charges of breach of discipline. The first charge was that they had made a false report concerning the events of the day in question; the second, that they had failed to carry out their duties promptly or with diligence and the third, that they had made an improper overtime claim. The prison officers were then furnished with a report that had been prepared by the Assistant Governor setting out the evidence to be relied upon to support the aforementioned charges.
32. The prison officers both attended the disciplinary hearing, but did so solely for the purpose of protesting that they were entitled to be legally represented. They were denied that representation on the basis that the disciplinary code did not make any provision for legal representation. The hearing then proceeded and in circumstances where there was no rebuttal evidence it was concluded that the breaches of discipline had been proved. The sanctions imposed were first, that their duties for the following year would all be performed within the prison complex and second, that they were to lose an annual salary increment and third that they would make reparation for the three hours of overtime for which they should not have been paid.
33. The prison officers applied to the High Court to quash the Governor’s decision on the ground that they ought to have been permitted to have legal representation. They were successful in their application in that Butler J. concluded that, in circumstances where the charges made against them concerned dishonesty and they faced a possible reduction in pay or even dismissal if the charges were proved, the rules of natural justice and fair procedures warranted that they be entitled to legal representation.
34. In reversing the High Court decision on appeal Geoghegan J. expressed himself satisfied that on the particular facts of the case, it could not be said that the applicants could not receive a fair hearing without legal representation, that being the central issue which the court had to decide.
35. Of particular relevance in the context of the present appeal is the following statement made by Geoghegan J. at p. 688 of his judgment:-
“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”
36. This statement by Geoghegan J., in my view, provides clear authority for the proposition that if the facts to be considered in the course of a disciplinary hearing are relatively straightforward then, to conduct a disciplinary hearing in respect of those facts cannot be stated to be unfair or in breach of the principles of natural and constitutional justice by reason only of the fact that the person against whom the misconduct is alleged does not have legal representation. Further, when he stated that it was wholly undesirable that lawyers should become involved in disciplinary hearings unless it was clear that any individual hearing would likely offend the principles of constitutional justice, he was not confining his observations to inquiries conducted under the Prison Rules, but rather was stating a principle which he considered relevant to a wide-range of potential investigations including workplace investigations such as the one under consideration here.
37. The decision in Burns is of particular importance insofar as Geoghegan J. specifically adopted in this jurisdiction, as proper matters for consideration by an employer faced with a request that an employee should be entitled to legal representation at a disciplinary hearing, the six factors identified by Webster J. in Regina v. Home Secretary ex parte Tarrant [1985] 1 Q.B. 251. Before considering these factors in detail in the context of the present appeal, it is important to note that in so doing Geoghegan J. added the following rider concerning the said factors:-
“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.”
38. The factors advised in Tarrant are set out by Geoghegan J. at para. 14 of his judgment in the following manner, namely:-
“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.”
39. Of relevance also is the fact that Geoghegan J. further qualified his statement that the aforementioned factors should serve as a starting point for the consideration of any application for legal representation at a disciplinary hearing, by adding the following caveat:-
“[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”.
40. The particular facts of the litigation in which Webster J. came to identify the aforementioned factors are also, in my view, material to the outcome of this appeal and for that reason I will summarise them. In Tarrant , five prisoners were charged with serious offences against prison discipline. Two were charged with mutiny and others with serious breaches of discipline including assault. The charges against them were to be determined by the Board of Visitors of the relevant prisons. Webster J. concluded that in respect of all five prisoners the Board of Prisoners had a discretion to permit legal representation and had erred as a matter of law in failing to engage with that discretion. He also concluded that the two prisoners charged with mutiny, which was a particularly serious offence and one which was complex as a matter of law, should have been entitled to legal representation.
41. From the judgment in Tarrant , it is clear that there was no express bar in the (U.K.) Prisons Act of 1952 or the Prison Rules of 1964 to a prisoner having legal representation. Further, there was nothing in the Rules to permit the prisoners to have anyone attend with them to give them assistance. Indeed, the two applicants charged with mutiny had specifically asked that they might be permitted to have someone accompany them as a “MacKenzieman” but that too had been refused.
42. By the time the court came to consider the Board’s decision to refuse the applicants legal representation the disciplinary hearings had concluded with the result that the two prisoners charged with mutiny had been found guilty of that offence. Each was to lose 400 days remission and 56 days earnings. Regarding the other prisoners not charged with mutiny, one was to lose 112 days privileges whilst another was to endure 77 days of cellular confinement with consequential exclusion from the labour force.
43. Of particular importance, in the context of the present case, is the discussion by Webster J. of the complexities of the charges of mutiny against two of the prisoners. In his judgment he refers to the fact that the offence was one of collective subordination, collective defiance or disregard of authority. Concerning these charges he stated as follows:-
“It seems to me in most, if not all, charges of mutiny, and certainly in these two cases, questions are bound to arise as to whether collective action was intended to be collective, i.e. , whether it was concerted or not, and as to the distinction between mere obedience of a particular order on the one hand and disregard or defiance of authority on the other.
In my judgment, where such questions arise or are likely to arise, no Board of Visitors, properly directing itself, could reasonably decide not to allow the prisoner legal representation.”
44. Finally, of relevance in the context of the present appeal is Webster J.’s reliance upon a report by the Home Office Research Unit which was based on interviews with a number of prisoners after their cases had been adjudicated upon by the Board of Visitors. The report advised that some of the prisoners were poorly educated and were not very intelligent. It recorded that a few of those interviewed spoke poor English and others appeared to have psychiatric problems. It went on to recommend that unless given considerable assistance, it was unrealistic to expect prisoners with difficulties of that nature to prepare an adequate written statement or to present their case effectively. This report was, of course, of particular significance given that the prisoners in Tarrant were not entitled to representation of any type whatsoever. This was obviously of significant importance in the context of the legally complex charges of mutiny.
45. The decision in Burns , because it focuses upon a charge of misconduct which was immediately to become the subject matter of a formal disciplinary hearing, does not engage with the difference between the rights to which an employee may be entitled depending upon whether they are the subject matter of what is often referred to as a preliminary investigation and a formal disciplinary process. The investigative process is usually conducted to ascertain whether there are issues that an employee should be required to answer in a formal disciplinary process and there are no immediate legal consequences that flow from such investigations. On the other hand, a formal disciplinary inquiry, which often follows on from an investigative process, has the potential to have serious consequences for the employee as it is at the end of this process that sanctions may be employed if misconduct is found. Relevant to the rights of the employee in the course of the preliminary investigation is the fact that the findings of fact made in the course of such an investigation are of significance only insofar as they may lead to a formal disciplinary process. If a formal disciplinary inquiry is later commenced the misconduct alleged will have to be proved in the course of that inquiry and for that reason the employee will be entitled to challenge all of the evidence adduced and will be entitled to call their own evidence. The distinction between these two processes is helpfully considered by Laffoy J. in Maher v. Irish Permanent [1998] 4 IR 302.
46. It is important therefore to recognise that this court is not concerned with the rights which Mr. McKelvey enjoyed in the course of the initial investigation into the purchase of fuel in Division 3 but rather with what are undoubtedly his enhanced entitlements having regard to the fact the formal disciplinary inquiry which has been notified to him will expose him to the imposition of a significant potential sanction should the wrongdoing alleged against him be established.
47. This brings me to mention briefly the two contradictory decisions of the High Court earlier referred to. I do not intend to consider these in any great detail because both judgments focus upon the rights of the employee in the course of the investigative process rather than the rights to which they would be entitled in the course of a formal disciplinary inquiry.
48. In his judgment in Lyons Eager J., in my view, departs to a significant extent from the jurisprudence set out in Burns wherein it is stated that even when it comes to a formal disciplinary inquiry, that in order to comply with natural justice and fair procedures, legal representation should be required only in exceptional cases. Eager J. did not consider that the right to legal representation should be so confined. It was his view that before the employer could invoke what is referred to in his judgment as “the stage 4 procedure”, that being the equivalent in most workplace disputes to a formal disciplinary inquiry, it had to be established that the earlier investigation had been conducted in line with fair procedures which included the right to legal representation and cross-examination. Further, in so deciding he did not confine the entitlement of the employee to legal representation in any specific type of case but would appear to have decided that it was the entitlement of the employee in all instances.
49. In stark contrast to the decision in Lyons, McDermott J. in N.M. v. Limerick and Clare Education and Training Board [2017] IEHC 588 concluded, in the context of a preliminary investigation into vastly more serious complaints than those which arose for consideration in Lyons , that the investigative process was fair even though the employee was not legally represented.
50. In my view, however, it is the decision in Burns, because it engages with a consideration of the rights of the individual who may be subjected to a severe sanction if the charges pending against them are proved in the course of a formal disciplinary inquiry, that must guide this court in reaching its judgment.
51. All that said there is, I believe, only one substantial issue that needs to be addressed in this judgment namely whether, on the facts of the present case, it was clear that Mr. McKelvey could not have a fair hearing in the course of the formal disciplinary inquiry absent legal representation by solicitor and counsel. None of his other rights are in dispute. These include:
(i) his right to know the nature of the complaint/allegation made against him;
(ii) his right to know the procedure to be followed in the course of the investigation;
(iii) his right to know the potential implications of the complaint/allegation should it be established, i.e. the sanction/sanctions that might be imposed;
(iv) his right to be heard in relation to the complaint/allegation and to make representations in relation thereto;
(v) his right to challenge such evidence as might be called to establish the complaint/allegation and to cross-examine all witnesses;
(vi) his right to call witnesses in support of his stated position.
Decision
52. Having considered the submissions of the parties and the relevant authorities I am satisfied that the High Court judge erred in law and in fact in concluding, as she did, that the appellant incorrectly exercised its discretion in refusing Mr. McKelvey legal representation for the purposes of the disciplinary inquiry which was due to commence on the 9th June 2017. Having regard to the evidence before her I am not satisfied that there were any special or exceptional circumstances which would have warranted her conclusion that he could not receive a fair hearing in accordance with natural justice unless he was represented by solicitor and counsel.
53. I now propose to deal with the manner of the trial judge’s consideration of the factors identified in Tarrant and Burns in light of the evidence. It is important, I believe, to conduct this exercise mindful of the guidance provided by Geoghegan J. in Burns to the effect that it is wholly undesirable to involve lawyers in workplace investigations unless it be established that there is something exceptional about the matters to be scrutinised such that it would be reasonable to conclude that the proposed hearing could not be a fair one absent legal representation.
54. The first factor relied upon the trial judge was what she described as the serious nature of the allegation made against Mr. McKelvey, which was one of theft which carried the potential sanction of dismissal. I would here observe that whilst the complaints under investigation in Burns where less serious than those faced by Mr. McKelvey, it is nonetheless clear from para. 12 of the judgment of Geoghegan J. that the prison officers concerned were at risk of dismissal or having their rank reduced.
55. It is nonetheless true that the wrongdoing alleged against Mr. McKelvey was properly classified as serious by the trial judge for the reasons which she identified, with the result that this was a factor to be considered by her when assessing the correctness of the appellant’s decision to refuse him the right to be legally represented. However, given that she ultimately granted Mr. McKelvey the injunction which he sought, I consider it likely that she ascribed undue weight to this factor.
56. I do not consider the fact that the conduct under investigation had the potential to result in a criminal prosecution at a later date is a particularly significant factor. Whilst I am not privy to such statistics as might reveal what percentage of charges investigated in the context disciplinary hearings in the workplace might have the potential to support a criminal charge, I would venture to suggest that a reasonable percentage of them would have such potential. For example, any type of theft or assault, significant or otherwise, would carry that possibility. To put it another way, there is nothing particularly unusual or exceptional about an inquiry into an incident or incidents of theft in the work place.
57. Relevant also in this regard is the fact that any finding made against Mr. McKelvey in the course of the disciplinary inquiry would not be admissible as evidence against him in any future criminal proceedings and he would be entitled to be legally represented in that process. Thus, it is hard to see how Mr. McKelvey could be prejudiced in any future criminal proceedings by the fact that the appellant had carried out a disciplinary inquiry into similar facts.
58. I am, accordingly, satisfied that the fact that the circumstances to be investigated in the course of the disciplinary inquiry have the potential to be investigated in the course of criminal proceedings is not a factor which would bring the inquiry proposed within the type of exceptional category described in Burns , particularly given that the charge of misconduct against Mr. McKelvey is, in my view, relatively straightforward one.
59. The trial judge was of course correct to have regard to the fact that the charge made against Mr. McKelvey was one which, if established, could result in his dismissal. However, the sanction of dismissal is hardly an exceptional or unusual feature of disciplinary hearings in the workplace. As already noted, dismissal was a possible sanction in Burns . Thus it is hard to see that this particular factor can be relied on to support a claim that the proposed inquiry is exceptional to the point that Mr. McKelvey might not receive a fair hearing without legal representation.
60. Further, it does not follow that just because the sanction has the potential to be grave that Mr. McKelvey is at any greater risk of receiving an unfair hearing without legal representation than in a case where he might be at risk of a lesser sanction. After all, it is the risk that the employee may not receive a fair hearing absent legal representation that is central to the court’s consideration. This was certainly the view of Geoghegan J. in Burns wherein he noted that Butler J. in the High Court had taken the view that because the charges against the applicants were of dishonesty and they faced possible dismissal, they were entitled to legal representation. He rejected that approach emphasising the need to focus upon whether or not the applicants would, on the facts of that case, have the benefit of a hearing which would be fairly conducted. Relevant to his conclusion that they would receive such a hearing without legal representation was the fact that, in his view, the charges were straightforward and could easily be defended without a lawyer meant. Thus, there was no risk that there would be an unfair hearing absent legal representation.
61. The fact, therefore, that the charges were straightforward and could readily be defended without the need for legal assistance meant, accordingly, in the view of Geoghegan J. that there would be no risk that there would be an unfair hearing absent such representation.
62. Of some guidance as to the weight to be attached to the potential sanction for Mr. McKelvey if the charges against him were to be established, is the judgment of Webster J. in Tarrant wherein he stated that the fact that the prisoners were at risk of forfeiture of remission was not necessarily a reason for concluding that they should have legal representation. At p. 32 of his judgment he stated as follows:-
“The charges against Tangney and Anderson each included one charge of an assault on a prison officer under rule 51. Each of them was, therefore, exposed to the risk of “an award” of forfeiture of remission for a period not exceeding 180 days – more, if, as Mr. Simon Brown contends but which is challenged on behalf of the applicants, a board has the power to make consecutive awards, a point upon which I need express no view. For my part, I do not think it can possibly be said that any reasonable board properly directing itself would be bound to grant legal representation or, in the case of Tangney and Anderson who applied for it, would be bound to have allowed the presence of an advisor. I would, therefore, leave the matter to be decided by any board before which it may come, if it does so.”
63. Whilst obviously a matter of considerable concern to any employee under investigation for alleged wrongdoing in the workplace, there is nothing exceptional about the fact that any finding made against them might have adverse consequences for their future employment prospects or their good name. Whilst these are matters to which a body asked to exercise its discretion and permit legal representation is entitled have regard, they are not in any respect unusual factors and they are somewhat disconnected from the principal consideration, namely, whether or not the employee can be assured of a fair hearing absent legal representation.
64. In light of the aforegoing, whilst the High Court judge was entitled have regard to the serious nature of the charges made against Mr. McKelvey, the potential penalty to which he might be subjected and possible adverse effect of any adverse findings for his reputation and future job prospects, these were all matters which were far from exceptional in the context of work place investigations and as such could not be dispositive of his entitlement to legal representation. Further, they are matters which, in my view, are more peripheral than central to the core issue which is whether it was clear that Mr. McKelvey might not receive a fair hearing absent legal representation.
65. Insofar as Mr. McKelvey sought to support his entitlement to be represented by solicitor and counsel based on the decision of Keane C.J. in Borges , I regret to say that I am satisfied that that decision is of no application to issues under consideration on this appeal. Borges is not authority for the proposition that where an allegation of misconduct is to be the subject matter of a disciplinary hearing and the party against whom the charge is made faces the risk of serious damage to their reputation and their ability to earn a livelihood, that natural justice and fair procedures mandates that they be entitled to legal representation for the purposes of defending that charge.
66. It is true to say that in the course of his judgment in Borges, Keane C.J. made the following observation at para. 26 of his judgment namely:-
“26. 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 practising as a doctor, either for a specified period or indefinitely.”
67. However, having considered the full judgment in Borges , it is clear that the decision had nothing to do with the circumstances in which a party might claim an entitlement to entitled legal representation in the context of a disciplinary hearing, but rather, the entitlement of a party against whom allegations of misconduct have been made, to confront their accuser by way of cross-examination, concerning those charges. That this is so is clear from the relevant facts which I will now summarise.
68. In Borges , the Medical Council had served a notice of intention to hold a disciplinary inquiry under part 5 of the Medical Practitioners Act 1978 in relation to allegations of serious sexual misconduct on the part of the doctor. The Council proposed to prove the misconduct alleged by introducing into evidence a transcript of proceedings which had taken place before the Professional Conduct Committee of the General Medical Council of the United Kingdom where the two complainants had given evidence in relation to the matters referred to in that inquiry. It was also proposed to introduce in evidence the report of that committee and the judgment on appeal of the Privy Council upholding the findings of the Professional Conduct Committee which had decided that the medical practitioner’s name should be erased from the register.
69. Insofar as the complaint before the Medical Council in this jurisdiction was concerned, the complainants were not only unwilling to come to Ireland to give evidence but refused also to make themselves available to be cross examined by way of video link. Neither were they willing to take part in any hearing that might be conducted by the Fitness to Practice Committee in the United Kingdom.
70. Notwithstanding objections on the part of the medical practitioner to the procedure proposed, the Fitness to Practice Committee ruled that it would proceed with the inquiry and admit as evidence the transcript from the U.K. proceedings with the result that the medical practitioner applied to the High Court for an order of certiorari quashing that ruling as unlawful.
71. It is clear from the judgment of Keane C.J. that the issue with which he was concerned was whether or not the Fitness to Practice Committee’s decision to go ahead with the inquiry without the complainants attending and being available for cross-examination constituted a denial of fair procedures and natural justice, and whether the transcripts which it was proposed to admit might, as a matter of law, be admissible as an exception to the hearsay rule. The entire decision centres upon the entitlement of the party against whom serious charges have been made to cross-examine their accusers rather than by whom such a cross examination might be conducted. It was the fact that the Medical Practitioner was to be afforded no opportunity to confront the complainants which led the court to conclude that the proposed inquiry was otherwise than in accordance with the basic fairness of procedures guaranteed by Article 40.3 of the Constitution. Accordingly, Mr. McKelvey’s reliance upon this decision is misplaced.
72. For the sake of completeness, I would here also caution about any over-reliance on such jurisprudence as pertains to fair procedures in the context of hearings conducted by professional regulatory bodies such as the Medical Council. Statutory bodies such as the Medical Council have functions and powers which are in many respects different from those of the employer investigating allegations of misconduct against an employee and that being so different considerations arise. Furthermore, statutory bodies such as the Medical Council have specifically been established to set standards, monitor and investigate the conduct and capacity of the members of that profession. That is their focus and their decisions can- and frequently do-result in the exclusion of the disciplined members from the profession. This is to be contrasted with the practicalities within the workplace setting of dealing with suspected misconduct on the part of an employee in a manner which is fair, just and efficient from the prospective of both parties.
73. Returning to the judgment of the High Court judge, I am satisfied that she was correct as a matter of law to consider whether, in the course of the disciplinary inquiry, any legal issues were likely to arise which might cause prejudice to Mr. McKelvey if he did not have a legal team acting on his behalf. Where I would take issue with the High Court judge is in her conclusion that multiple points of law were likely to arise. In identifying these, she referred first to alleged flaws in the investigation, second to the imprecision of the charges levelled against Mr. McKelvey and third to the need for the appellant to establish loss.
74. In my view these were not factors which, had they been considered by the appellant, would have warranted its agreement to Mr. McKelvey’s request that he be legally represented by solicitor and counsel. There was, in my view, nothing imprecise about the charge of misconduct to be investigated. It was theft by the misuse of his fuel card/cards which had caused financial loss to his employer.
75. Neither, in my view, was there any evidence to suggest that any legal issue could arise in the course of the disciplinary inquiry as might engage with any possible flaws there may have been in the course of the early preliminary investigation. It was only following the conclusion of that investigation that a formal allegation of misconduct was made against Mr. McKelvey and that charge will have to be established based on evidence adduced within the four walls of the formal disciplinary inquiry.
76. Regarding the trial judge’s reliance upon the need for the appellant to establish loss in order that the charge of theft be sustained, it is important to remember that Mr. McKelvey is not to be tried by his employer for the crime of larceny. The appellant will or will not prove as a matter of fact that he used his fuel card to make improper purchases of fuel. If the evidence establishes that certain purchases were made by Mr. McKelvey otherwise than for the purpose of fuelling vehicles or machinery owned by the appellant, it will follow as a matter of fact that the organisation suffered loss to the value of those purchases. I cannot see how it can be contended that Mr. McKelvey would need legal representation so that he could have a fair hearing in relation to the proof of loss arising out of his alleged wrongdoing.
77. Perhaps it is relevant in relation to this issue to reflect upon the origins for the consideration of this factor i.e. the possibility that a complex issue or issues of law might arise in the course of a hearing which might only be fairly dealt with the assistance of legal representation. It was the complexity of the charge of mutiny described by Webster J. in Tarrant which lead to the identification of this factor and its potential importance in the assessment of the exercise of the discretion to afford a party against whom a complaint is made, legal representation. The facts of that case were really quite unique given the complex nature of the charge of mutiny and the proof that would be required to prove it. That is to be contrasted with the appellant’s allegation that as a matter of fact Mr. McKelvey used his fuel card for improper purchases of fuel which cost the company money.
78. It is of course possible that some complex issue might in the course of the disciplinary inquiry. However, if it did, that would be the time for Mr. McKelvey to ask that the inquiry be postponed to enable him obtain legal representation. In my view, at the time when he demanded the right to be legally represented there was no issue of any legal complexity on the horizon which would have warranted the appellant agreeing to Mr. McKelvey’s request.
79. I am also satisfied that there was nothing in the evidence to suggest that the circumstances to be investigated in the course of the disciplinary process would be in any way complex. The alleged misuse by Mr. McKelvey of his fuel card/cards will involve a consideration of the day-to-day use by him of any such card. The fact that the appellant will seek to establish that the fuel card was used inappropriately on more than one occasion or over an extended period does not, in my view, elevate the complaint to one of complexity such that it can be said that the hearing to be conducted against Mr. McKelvey would be unfair unless he was legally represented. The facts to be investigated in the course of the proposed disciplinary inquiry in this case are, in my view, much more straightforward than those that arose for the consideration of Blayney J. in Gallagher v. Revenue Commissioners [1991] 2 IR 370 where the employee was the subject matter of 18 sets of charges (72 charges in all) concerning the seizure of 18 vehicles in the course of his duties as a Customs and Excise officer.
80. Whilst Mr. O’Callaghan claimed that Mr. McKelvey required the assistance of a lawyer to interpret the content and evidential significance of certain documents which had been furnished to him in advance of the hearing, in order that he might have a fair hearing, I am not satisfied that this is so. Counsel first referred to a number of spreadsheets exhibited in the supplemental affidavit of Mr. McKelvey sworn on the 14th June 2017. These set out in tabular form a list of dates and locations where fuel was apparently purchased and the price paid. For my part, I fail to see why a lawyer would be needed to interpret these documents or to advise as to their significance. Their content seems to be self-evident and it is difficult to see how such documents could cause Mr. Cullen and Mr. McKelvey to be confused. Further, it is to be noted that all that is said by Mr. McKelvey in his affidavit of the 6th July 2017 concerning these spreadsheets is that he is not clear as to which of these transactions his employer maintains constitutes theft. Indeed, it might be said that it is to be inferred from his affidavit that Mr. McKelvey well understands the information set out in the spreadsheet, but merely wants to know how many of these entries concerning the purchases of fuel it is alleged were not for the purposes unconnected with his employment. Those are matters which will, in the course of the inquiry, have to be proved.
81. As to a three page Microsoft Word document which records an interview conducted with Mr. McKelvey in the course of the initial investigation, once again it is difficult to see how this document could raise the need for any legal representation at the hearing. It does no more than perhaps give Mr. McKelvey a preview of the transactions likely to be queried in the course of the disciplinary inquiry.
82. Insofar as the trial judge would appear to have concluded that in some way Mr. McKelvey lacked the capacity to defend his interests at the disciplinary hearing and that this was a factor to be taken into account by the appellant when considering his request for legal representation, that finding is not, in my view, supported by the evidence. The capacity of Mr. McKelvey to, as the trial judge stated, “navigate such a process unaided” was not a factor to be considered in circumstances where he was to be represented by Mr. Cullen, an experienced trade union official. The relevance of the capacity of the individual facing a disciplinary inquiry, insofar as it emerges from the decision in Tarrant , is dependent upon the facts in each individual case. In Tarrant , the two prisoners charged with mutiny were not only not entitled to legal representation under the prison rules but neither were they entitled to be accompanied at the hearing by someone who might act as a “MacKenzieman” and it was for this reason that Webster J. engaged with the Home Office Report which referred to the lack of education and intellectual capacity of many prisoners and their inability to defend the charges against them.
83. Accordingly, insofar as the issue of capacity could be a factor relevant to an asserted right to legal representation, the question to be determined by the High Court judge in this case was whether it could be said that Mr. McKelvey, with the assistance of Mr. Cullen or some other trade union representative, would not obtain a fair hearing at the proposed inquiry because of their lack of legal training. In my view, there was no evidence to suggest that Mr. McKelvey would not receive a fair hearing if represented by Mr. Cullen. Indeed, there was some evidence to the contrary given that it was established that Mr. Cullen was defending two other employees facing precisely similar charges.
84. Insofar as the trial judge would appear to have concluded that there was something unclear about the disciplinary procedure to be deployed at the inquiry and that this was a factor to be taken into account by the appellant when considering his application for legal representation, I am not satisfied that there was any evidence to support that conclusion. Mr. McKelvey had been furnished with the company’s Grievance Disciplinary Policies and Procedures which clearly identifies the procedure to be adopted. It is not in dispute that this disciplinary code had been in operation within Iarnród Éireann since it was adopted with the agreement of the relevant trade unions thirty years ago and was, in such circumstances, presumably well known to Mr. Cullen. The disciplinary procedures are clearly set out in that document allied to which, by letter of the 2nd June 2017, it was confirmed that Mr. McKelvey would receive all documents which were to be relied upon in the course of the hearing in advance thereof.
85. For completeness it is perhaps relevant to observe that the disciplinary policy and procedures operated by Iarnród Éireann are fully compliant with the code of practice issued under the Industrial Relations Act 1990 and S.I. 146/2000. That code of practice is stated to promote best practice and outlines the principles of fair procedures for employers and employees generally and is, of course, of particular relevance to disputes in an industrial relations context. It is well understood that the code, promulgated so many years ago, was developed so that disciplinary issues could be handled in accordance with the principles of natural justice and fair procedures and in order that good industrial relations might be maintained in the workplace. It was undoubtedly intended that the code would assist management maintain satisfactory standards whilst providing employees with a fair procedure whereby any alleged failing on their part to comply with those standards could be sensitively addressed. It might be said that the fact that the code is silent on legal representation is perhaps indicative of the view that it should be possible for organisations to carry out inquiries into alleged misconduct on the part of employees on an “in house” basis without the need to involve lawyers. As is observed in many of the authorities, once lawyers become involved, the process is ultimately slowed, becomes more expensive and oftentimes will fracture and irreparably damage relations between employer and employee.
86. Finally, I would observe that it remains open to Mr. McKelvey at any stage during the disciplinary inquiry to renew his request that he be entitled to representation by a solicitor and counsel should matters emerge which neither he nor Mr. Cullen could reasonably be expected to deal with without legal representation.
87. Relevant also, in my view, is the fact that Mr. McKelvey enjoys the right to a full appeal from any findings as may be made against him in the course of the proposed disciplinary inquiry. At that point in time he might, by reference to some particular matter of complexity as may have arisen in the course of the disciplinary inquiry, and which he can demonstrate was critical to the outcome, claim an entitlement to be legally represented at the hearing of his appeal in order to insure a hearing that is fair and in accordance with the principles of natural justice. However, on the facts as they stood at the time the appellant refused Mr. McKelvey’s request that he be entitled to be legally represented, the circumstances were not such that it could reasonably have been contended that he would not obtain a fair hearing in accordance with natural and constitutional justice absent legal representation.
88. For all of the aforementioned reasons, I would allow the appeal.
Conclusion
89. Whilst an employee facing a disciplinary inquiry in respect of alleged misconduct may be at risk of inter alia dismissal from their employment and significant damage to their good name, it should nonetheless generally be possible, save in exceptional circumstances, for such an employee to obtain a fair hearing in accordance with the principles of natural justice without the need for legal representation.
90. It is of course mandatory that all disciplinary inquiries into misconduct alleged against an employee be carried out in a manner which is fair and in a process that meets the requirements of natural and constitutional justice. However, for the process to meet that standard it should not, save in exceptional circumstances, be necessary for the employee to be legally represented. Neither, in my view, should it be necessary that the procedure to be deployed should ape the type of hearings with which we are familiar in criminal or civil proceedings before the courts. Regrettably, once a party against whom an allegation of misconduct is made can make the case that they cannot receive a fair hearing absent legal representation, it is difficult to see how, for example, a fellow employee making such a complaint would not also be entitled to be legally represented. Not only would a disciplinary process which routinely involved the retention of lawyers have the effect of slowing down the process and making it more costly but it would also have significant potential adverse consequences for the relationship between management and the employee under investigation and also as between employees themselves.
91. In my view Geoghegan J. was correct in Burns , when he cautioned that legal representation should only be permitted in those cases where the party applying for that right can demonstrate the existence of exceptional circumstances which would caution that that the employee might not receive a fair hearing absent legal representation.
92. Accordingly, a convenient starting point for a consideration of whether an employee should be permitted legal representation at any proposed disciplinary inquiry is a consideration of the factors advised by Geoghegan J. in Burns .
93. While it is true to say that Mr. McKelvey faces a disciplinary inquiry which could lead to his dismissal and which has the further potential to impact on his future employment prospects and his reputation, in this regard he is no different to a very substantial percentage of employees facing allegations of misconduct in the workplace. In my view, the allegation of misconduct made against Mr. McKelvey is a straightforward one and I am not satisfied that he has identified any factual or legal complexities that may arise that he should not be in a position to deal with adequately with the assistance of Mr. Cullen, an experience trade union official.
94. Should it come to pass that at some future stage of the disciplinary process Mr. McKelvey can point to some matter of significant factual or legal complexity which he could not reasonably be expected to navigate safely without the assistance of legal representation, it would be open to him at that point in time to renew his application on the grounds that he required such representation to guarantee a hearing that was fair and in accordance with natural justice. However, on the evidence before the High Court I am satisfied that the trial judge should not have treated the circumstances of Mr. McKelvey’s case as exceptional such as would have warranted the making of the order which she did.
95. For the aforementioned reasons, I would allow the appeal.
Barry McKelvey v Iarnród Éireann SC
[Appeal No: 2018/178] (WLIE 1)
Supreme Court
11 November 2019
unreported
[2019] IESC 79/1
Mr. Justice Peter Charleton
November 11, 2019
JUDGMENT
1. While the analysis in this judgment reaches the same conclusion as that of Clarke CJ, that this employee has no entitlement to be legally represented at a disciplinary hearing about alleged misappropriation of property, a different analysis of the legal route is possible. Contract governs the relationship between the parties even though a dismissal may be the result of the disciplinary process against an employee. Whereas, because of the position of Iarnród Éireann, as a publicly supported national transport company running the nation’s railway network, public law applies, nothing in the employment contract made between Barry McKelvey and the company requires that criminal trial rights of representation by lawyers and a right to cross-examine should intrude into the issue of his conduct as an employee. Essentially, the company wish to enquire into what is claimed to be the theft of company property. If that theft is supported as probable and the employee as an actor in the misappropriation, the ultimate penalty of dismissal will be contemplated. Preliminary enquiries have already been made and certain facts, apparently, uncovered. In response, the employee has given an explanation. It is now proposed to have an employment hearing in the context of disciplinary procedures that were agreed upon collectively. At that disciplinary hearing the employee may, as a matter of his contract, be represented by a fellow employee or by a trade union official. There is no requirement in the contract, or by the application of public law, for acceding to the employee’s request that a solicitor and barrister represent him at his own expense.
Background
2. It is best to mention the facts only briefly. These are subject to findings that may or may not be made at the disciplinary hearing. Hence, what follows is merely an outline and, in any event, the papers make presumptions as to knowledge which is perhaps well known in the company but with which, as the argument on appeal demonstrated, even the best of outside legal representatives may struggle with.
3. Two interviews are recorded with the employee in the appeal papers. The second will be referenced here as it seems based on a process of investigation that gained detail over time. The employee was with the company for about twenty years and had become a works inspector at Kildare. Prior to that, he was in Carlow. On the railways, various machines are driven by fuel-powered generators. This is not surprising given the need to work at a distance from stations on railway track, rolling stock and supporting signalling equipment. These include power spanners, impact wrenches, boring machines and light towers to illuminate work in the deep countryside. For this, credit cards chargeable to the company are issued to employees at inspector level. It appears that staff at this employee’s level, in travelling, can fill up their cars on the cards. All are pin protected, the same way as any ordinary card but not as securely, it is claimed, since the cards may be shared among people of the same grade and the pin also passed on. What is concerned here, in part, is petrol usage from 2014 through to 2016. An allegation is made of a shift from petrol to diesel over 2014 through to 2015. Some use may have been made of the card at a distance of 100km from the home station. Some use may have been made simultaneously of a card or cards at two locations distant from each other at or around the same time. A large amount of fuel is involved. Another central focus of the enquiry is that the usage of diesel fuel is inconsistent with purchases for travel for work and this is claimed to be worth considering because of the 53 litre capacity of the employee’s car and the purchase on one fill of considerably more fuel than that. As to explanations given, this is not a criminal trial process and hence the contractual duty of care and fidelity requires the employee to state what the answer to an issue is; see the judgment of Barrington J in Mooney v An Post [1998] 4 IR 288 at 298 and that of Clarke J in Rowland v An Post [2017] IESC 20 where at paragraph 5.3 he states that a “Bart Simpson” attitude does not accord with the nature of an employment contract. The explanations given by the employee include that someone else was using the card, that the card was left behind in the depot and taken by another, that fuel was stored in jerry cans for legitimate purposes and that on occasion the employee forgot his wallet in which the card was left. As with many such reports, the person doing the enquiry and the employee share a common knowledge that tends to puzzle outsiders. Here, the proper usage for company or employee vehicles on company business is unexplained, the equipment and how it is fuelled is based on a shared understanding and the significance of distance from a depot must be known to people within the company, as must the system generally.
4. Another issue raised by the employee is that the company has statements from some fellow-employees and, apparently, they claim that on occasion the employee approached them and asked them to say that they had borrowed his card. That issue is asserted to raise a difficult point of law. In reality it does not. Evidence, whether in a criminal trial setting or in the more informal situation of a disciplinary hearing, should be probative. That means that in terms of logic it supports a conclusion being drawn from it, either on its own or through the consideration of that evidence with other evidence. It can be an admission for a person to ask another person to cover for him or her so as to make it appear that he or she had no connection with an incident. That is because, as a matter of logic, to ask someone to assert something wrongly so as to take responsibility on another’s behalf can justifiably lead to the conclusion that the person making the request required an answer at variance with reality. Obviously, whether this happened or not is not something within this Court’s competence on appeal, but it should be a fact that is capable of being found or not. No legal issue is engaged. If a proposed piece of evidence is merely prejudicial, such as that an employee has a particular sexual orientation, that has no place in logic in terms of proving that there has been a breach of employment duties. In criminal cases, prior convictions by an accused are not ordinarily admitted in evidence. But a prior conviction can logically help lead to a conclusion relevant to the case. Thus, in The People (AG) v Kirwan [1943] IR 279 it was logical to prove that the accused had learned butchery while serving a sentence for a prior offence, since the victim of the murder with which he was charged had been dismembered with professional skill. It is not merely prejudice and neither is it a big issue as to whether a person asked another to take responsibility for something he is suspected to have done.
Contract
5. There are few enough employees, apart from those on fixed-term contracts, gardaí and members of the Defence Forces being examples, who do not come within the scope of entitlement to redress under s 2 of the, heavily amended, Unfair Dismissals Act 1977. Section 14(1) provides that an “employer shall, not later than 28 days after” entering “into a contract of employment with an employee, give to the employee a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee.” Representation is at the core of this since ss (3) provides that the procedure referenced is one “that has been agreed upon by or on behalf of the employer concerned and by the employee concerned or a trade union or an excepted body within the meaning of the Trade Union Act, 1941, representing” the employee or which have “been established by the custom and practice of the employment concerned”. Under ss (2), employees should be notified of any alterations in procedure.
6. It is thus to be expected that through collective agreement, or by custom, that both employees and employers will be able to look to a written document in the event that an issue arises, to use the language of s 6 of the 1977 Act, in relation to “the capability, competence or qualifications of the employee for performing work of the kind which,” the employee “was employed by the employer to do” or “the conduct of the employee” or “the redundancy of the employee” or restrictions by law requiring dismissal, such as the employment of non-pharmacists in filling prescriptions. To again use the language of the legislation, at s 6, the employer must show that a dismissal was fair and that will not be so unless “having regard to all the circumstances, there were substantial grounds justifying the dismissal.”
7. Dismissal is therefore about substance; whether an employee is competent or qualified to do the job, or whether misbehaviour is involved. Section 5(b) of the Unfair Dismissals Act 1993 introduced an entitlement to the Workplace Relations Commission to look at procedure and as to “the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal” and the “the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure” agreed for dismissal. In Connolly v McConnell [1983] IR 172, a basic approach to disciplinary proceedings was set as requiring that employers must not remove anemployee “without first according to him natural justice.” Thus an employee “must be given the reasons for [any] proposed dismissal, and an adequate opportunity of making his [or her] defence to the allegations made against him [or her].” Hence, there should be as full an investigation of the relevant events as is reasonable in the circumstances before disciplinary action is taken, the employee should be notified of this so as to enable an answer to be given by him or her and to have the matter impartially decided.
8. There may be employment situations where more than those centrally important principles are required by agreement or statutory instrument to be observed, for instance in the Garda Disciplinary Code, there involving what is, in terms of procedures, essentially a civil trial on a stated ‘charge’. Just because, however, some employees or some sectors have a different or enhanced approach, does not mean that employment disciplinary or grievance hearings should move towards a tribunal of enquiry model of legal representation, cross-examination and evidential objections: that will not help anyone. What should be involved, instead, is a search for the truth with the employee enabled to make a contribution to that process by stating whatever explanation is available to him or her. After all, while this is not a two-stage process where rights are afforded at a second stage, as in McNamee v Revenue Commissioners [2016] IESC 33 and the cases therein cited, once a complaint is validly made to the Workplace Relations Commission, the burden of justifying dismissal is on the employer through the calling of evidence, and the parties may there be legally represented.
Procedures
9. Many contracts incorporate the Industrial Relations Act 1990 code of practice on grievance and disciplinary procedures, as set out in SI 146 of 2000. That was the case here. These do not include any entitlement to legal representation. Instead, as helpfully recounted in Frances Meenan, Employment Law (Dublin, 2014) at pages 885-6:
the general procedures for dealing with issues reflect the varying circumstances of enterprises and organisations, which must comply with the general principles of natural justice and fair procedures, which include that employee grievances are fairly examined and processed; details of any allegations complaint are put to the employee concerned; the employee concerned is given an opportunity to fully respond to any such allegations or complaints; the employee concerned is given an opportunity to avail of the right to be represented during the procedure; and the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by our on behalf of the employee and any other relevant or appropriate evidence, factors or circumstances. Section 3 of the code records the necessity to ensure that disciplinary matters are dealt with in accordance with natural justice. Paragraph 6 of Pt 4 of the Schedule then set 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. These include “[t]hat the employee concerned is given the opportunity to respond fully to any such allegations or complaints” and “[t]hat the employee concerned is given the opportunity to avail of the right to be represented during the procedure”.
10. Thus, the place to start, and often to end, is the contract of employment. That much is clear from the judgment of Barrington J in Mooney v An Post [1998] 4 IR 288 where at 298 he said:
If the contract or the statute governing a person’s employment contains a procedure whereby the employment may be terminated, it usually will be sufficient for the employer to show that he has complied with this procedure. If the contract or the statutes contain a provision whereby an employee is entitled to a hearing before an independent board or arbitrator before it can be dismissed then clearly that independent board arbitrator must conduct the relevant proceedings with due respect to the principles of natural and constitutional justice. If, however, the contract (or the statute) provides that the employee may be dismissed for misconduct without specifying any procedure to be followed, the position may be more difficult. Certainly the employee is entitled to the benefit of fair procedures but what these demand will depend upon the terms of his employment and the circumstances surrounding his proposed dismissal. Certainly the minimum he is entitled to is to be informed of the charge against him and to be given an opportunity to answer it and to make submissions.
11. Because, in other cases, or indeed in this one, concessions have been made whereby a duty to call live evidence has been accepted as part of procedures, or where this has been incorporated in a collective agreement, or where cross-examination is allowed on a case by case basis, these entitlements are specific to individual hearings. An instance of that is Rowland v An Post [2017] IESC 20, but the procedures that are mentioned in that case, in the context of an argument for ever more elaborate procedures, are not of general application.
12. A difficulty may arise where an employment contract is silent as to grievance procedures, thus involving a breach of s 14(1) of the Unfair Dismissals Act 1977. No comment is here made as to whether the appropriate course is to apply the standard grievance procedure promulgated under the Industrial Relations Act 1990. That would appear to many to be a sensible course, bearing in mind the procedures were invented to assist in coming to the truth and, in a proper case, are not an end in themselves. Here, the grievance procedure clearly states that an employee is entitled to be represented at a disciplinary hearing and that for “the purposes of this Code of Practice” that “includes a colleague of the employee’s choice and a registered trade union official”. In case that might be ambiguous, the definition proceeds to state that an employee is not entitled to be represented by “any other person or body unconnected with the enterprise.” As a matter of contract, that disposes of the argument by the employee that the procedures involved require the presence of lawyers.
13. Issues may arise where standard procedures are not those sensibly derived from the 1990 Act but are, instead, incorporated into a contract of employment given to an employee at the commencement of his or her employment or are negotiated collectively with the trade union involved. Mistakes can be made. One of these might be that a person making the accusation of, for instance, bullying, is entitled to sit on the final hearing deciding on whether there was misconduct and what the results should be. It might be argued that a sensible interpretation of the contract, perhaps based upon the officious bystander rule, would lead to a sensible solution. Another situation, which has occurred in practice, was that the decision of a father would be appealed under the contract to an appellate body entirely composed of that man’s son. With good sense, these issues can be resolved so that a fair determination can take place with the object of arriving at the truth.
14. But such examples propose that there are minimum standards which, despite anything written in the contract, cannot be infringed. As much is said by Barrington J in the Mooney case but these are set at a level which recognises that the introduction of criminal trial structures into a procedure that is supposed to be implemented by people without legal training, but through the application of fairness, common sense and shrewdness, is not required as a matter of law. Such cases as support the proposition that a lawyer is sometimes, but very rarely, necessary in employment matters are derived from public law and should be confined within a public law context that is specifically limited.
15. Thus, in R v Secretary of State for the Home Department and Others, ex parte Tarrant [1984] 1 All ER 799, while those facing a disciplinary process were prisoners, and therefore subject to such penalties as close confinement for two months and the loss of liberty by the release date being put back through removing remission for up to 6 months, the reality of the case was that a lawyer was seen as necessary because the prison authorities decided to propose a charge of mutiny; a concept akin in complexity to that of treason. Thereafter, the research in this case has struggled to find any case which followed that precedent because more sensible courses have been followed, most especially that of simply asking whether certain facts did or did not occur. Hence, in Hone v Maze Prison Board [1988] 1 All ER 321 the two applicants were prisoners and were charged respectively with throwing a cup of tea into a prison officer’s face and assaulting another prison officer, causing severe injuries to his face. In essence, these were allegations of fact, if true, and if charged as such, they would constitute criminal offences of assault causing harm. Lord Goff, at 326-7 rejected the proposition that anyone charged with a crime, or the equivalent thereof in terms of facts to be proven in a civil context, and liable to punishment would be entitled as a matter of natural justice to legal representation. In the public law sphere, the context determined what the requirements of natural justice would be. Similarly, in Burns v Governor of Castlerea Prison [2009] 3 IR 682, while approving a list of factors derived from the Tarrant case, Geoghegan J, in this court, was not prepared to impose legal representation for a discipline hearing related to the proper charging of expenses and claiming of overtime.
16. Finally, is worth noting that in a public law context, where an enquiry on behalf of the community takes place, that it is not necessarily the case that a procedure derived from Re Haughey [1971] IR 217 is necessary. Yet, it is precisely there that some discussions of what are or are not fair procedures begin and, furthermore, with the consideration of the case in a completely separate sphere, namely State (Healy) v Donoghue [1976] IR 325, judgement of Gannon J at 334 about legal aid on serious criminal charges. Clark J in Atlantean v Minister for Communications and Natural Resources [2007] IEHC 233 describes basic procedures applicable where someone is to lose rights. A person so affected “is entitled to” some reasonable notice of what might be described as “the charge against him”, with cross-examination or a public hearing not coming into the equation necessarily, that person must “be given an opportunity to answer [the charge] and the chance to make submissions”. That idea, fair notice and a chance to comment, with no doubt an objective investigation as part of the matrix, is also key to the Mooney decision. Then there is the practice, derived from the decision of the English Court of Appeal in Re Pergamon Press Ltd [1971] Ch 388. That concerned an investigation in the public interest by statutory company inspectors about the conduct of a company collapse and how directors, including Robert Maxwell, abided by directors’ ethics. There, in that very serious process, the procedure followed was to make enquiry in the absence of representation by those who may be blamed for public misdemeanours and with no right by them to cross-examine. Instead, on this procedure, a report is drawn up and a draft of preliminary findings together with the material on which this is based is sent to any person who may be criticised. In seeking and in considering whatever comments followed, the duty to consider representations is fulfilled. The various judgments in Shatter v Guerin [2019] IESC 9 emphasise that what might be called full criminal trial rights are not necessary in all circumstances and return instead to the duty to take on board the point of view and of fact of a person who may loose rights and to record that viewpoint and fairly consider it before reaching a conclusion; a procedure echoing Pergamon Press even though what was involved in Shatter v Guerin was not supposed to be an enquiry at all.
17. These are issues which may require consideration in an appropriate case and are merely outlined as to the central point involved, which is that criminal trial rights are not universally applicable to all enquiries.
Injunction
18. The principles as to allowing a measure of appreciation to tribunals to act in good faith in the choice of procedures, where not obvious from an employment contract, not to assume unfairness and deprecating premature interventions by application to court, as derived from the judgments of Clarke J in Becker v Board of Management of Saint Dominic’s Secondary School, Cabra [2006] IEHC 130 and Rowland v An Post [2017] IESC 20, have not been challenged on this appeal. These stand as a proper interpretation of the circumstances where the courts should or should not intervene to divert a disciplinary procedure derived from contract from its ordinary course. Essentially, it is only where something has gone so wrong that contract rights to fair procedures are lost and cannot be corrected that an intervention by the courts is justified.
Result
19. The applicant is entitled by contract to have a fellow employee assist him at the disciplinary hearing, or to be represented by a trade union official. By contract, no other or outside individual may represent him.
Rowland -v- An Post
[2017] IESC 20Judgment of Mr. Justice Clarke delivered the 27th March, 2017.
1. Introduction
1.1 Much has happened since this case was heard in the High Court during March, 2011 and was the subject of a judgment on the 26th July of that year. The case stems from the relationship between the plaintiff/appellant (“Mr. Rowland”) and the defendant/respondent (“An Post”) whereby Mr. Rowland was engaged by An Post as a sub-postmaster in the village of Bofeenaun, Ballina in County Mayo. Mr. Rowland had held that position since 1974.
1.2 Because the precise characterisation of the questions which became the subject of inquiry by An Post is itself the matter of some controversy I will simply use a neutral term of “issues” to describe what emerged in 2008. A process commenced at that time, which it will be necessary to describe in somewhat more detail, as a result of which Mr. Rowland was asked to “comprehensively and credibly” respond to various issues raised by An Post. Thereafter that process continued but it was asserted on behalf of Mr. Rowland that the procedures being followed by An Post were unfair and in breach of his contractual terms. In that context these proceedings were commenced and interim and interlocutory injunctions sought and obtained. The matter came on for plenary hearing before Murphy J. in the High Court in March, 2011 and, for the reasons set out in a judgment of the 26th July of that year, (Rowland v. An Post [2011] IEHC 272) the trial judge dismissed Mr. Rowland’s claim. While it will be necessary to analyse the reasoning of the trial judge in more detail the principal conclusion reached was that the relevant process was still at an investigative stage and that, in that context, there had been no breach of fair procedures.
1.3 However, Mr. Rowland appealed that decision of the High Court to this Court. An application was brought before this Court seeking an order restraining An Post from continuing with the process pending a determination of this appeal. In the context of the hearing of that application an undertaking was given on behalf of An Post that the process would continue in full compliance with the rules of constitutional justice. In those circumstances this Court did not grant the injunction sought and the process continued.
1.4 While, in one sense, not material to the issues which directly arise on this appeal, it is nonetheless of some relevance to note that the process concerned did continue to a conclusion as a result of which Mr. Rowland’s position as sub-postmaster was terminated. Separate proceedings have been commenced in the High Court (“the second proceedings”) in which it is asserted that the termination of the relevant contract was unlawful and various reliefs sought. The second proceedings remain in being although they have not progressed to any significant extent. The reason why that subsequent history is of some relevance is that a question was raised by the Court at the hearing of this appeal as to what, of substance, remained for decision on this appeal. That question arose from the fact that the focus of these proceedings had been to prevent the process from going any further. The order sought was an injunction directed to that end. Clearly there could be no basis on which the Court could now grant the injunction sought for the very process which was sought to be restrained has now been completed. Against that background counsel for Mr. Rowland suggested that, if the Court were persuaded that the trial judge was wrong in his conclusions, it would be open to the Court to make an appropriate form of declaratory order which might, potentially, have an effect on the second proceedings. On the other side of the same coin counsel expressed a concern that, as long as the judgment of the trial judge in this case remained in place, aspects of the argument which Mr. Rowland might wish to put forward in the second proceedings might be precluded.
1.5 Thus the focus of the appeal was as to whether it would be appropriate for the Court to make some form of declaration concerning the process and, as part of the analysis which might lead to a determination of whether it would be so appropriate, an issue arose as to the extent to which the findings of the High Court in this case might bind the High Court in deciding the second proceedings.
1.6 In the particular circumstances of this case it seems to me appropriate to start by looking at the legal test for considering whether the process engaged in by An Post could properly have been interfered with by the High Court at the stage to which the process had progressed at the time of the trial.
2. The Legal Basis
2.1 It seems clear that the key question which the Court must address on this appeal is as to whether the overall conclusion of the High Court, which was in substance to the effect that any application to that court was premature, was correct. If that view of the High Court cannot properly be disturbed then it would follow that the High Court was correct to refuse the injunction sought and, irrespective of the developments which have occurred since then, it would equally follow that it would be inappropriate for this Court to consider making any order in favour of Mr. Rowland whether declaratory or otherwise.
2.2 It must, in that context, first be noted that the proceedings were commenced and progressed to trial at a time where the process, however it might be characterised, was still in train. It must, of course, be recalled that, just after the proceedings were commenced, interim and interlocutory orders were put in place which prevented the process going any further pending trial.
2.3 Those facts raise the question of the standard by reference to which a court should intervene, whether by injunction, declaration or any other means, in a process having a disciplinary or similar character, which is still ongoing. The trial judge placed some reliance in that regard to my decision in the High Court in Becker v The Board of Management of St Dominic’s School & ors [2006] IEHC 130. It is true that Becker was a decision given on an application for an interlocutory injunction seeking to restrain an employment disciplinary procedure. There may well be additional reasons why it may not make sense for the Court to consider injuncting, at an interlocutory stage, an ongoing disciplinary process. In the ordinary way a plaintiff seeking an interlocutory injunction only has to establish an arguable case before the Court goes on to consider the balance of convenience and other similar matters. If, at every stage of a disciplinary process, a party could secure an interlocutory injunction if there was even an argument about whether the procedures adopted were permissible, the practical consequences for any effective disciplinary process would be obvious.
2.4 However, it seems to me that the underlying principle behind Becker is equally true in the context of a full hearing of an application designed to prevent any ongoing process from continuing. In many cases the proper approach of a court when called on to consider the validity of a disciplinary-like process is to look at the entirety of the procedure and determine whether, taken as a whole, the ultimate conclusion can be sustained having regard to the principles of constitutional justice. Many errors of procedure can be corrected by appropriate measures being taken before the process comes to an end. Decision makers in such a process have a significant margin of appreciation as to how the process is to be conducted (subject to any specific rules applying by reason of the contractual or legal terms governing the process concerned). Thus the exact point at which parties may become entitled to exercise rights such as the entitlement to know in sufficient detail the case against them, the entitlement in appropriate cases to challenge the credibility of evidence and the right to make submissions are, at least to a material extent, matters of detail to be decided by the decision maker in question provided that the procedures adopted do not, to an impermissible extent, impair the effectiveness of the exercise of the rights concerned.
2.5 Precisely because procedural problems can be corrected and because there may well be a significant margin of appreciation as to the precise procedures to be followed it will, in a great many cases, be premature for a court to reach any conclusion on the process until it has concluded.
2.6 However, the practical consideration which leans against a court interfering with an ongoing process may point in the opposite direction in a limited number of cases where the conduct of the process, up to the point when the Court is asked to review it, is such that it is clear that the process has gone irremediably wrong. In such a case, rather than the practicalities pointing to letting the process come to its natural conclusion and, if necessary, being reviewed by a court thereafter, those same practicalities point to stopping the process and thus saving all concerned from engaging in what must necessarily turn out to be the fruitless exercise of continuing a process whose conclusions if adverse are almost certain to be quashed.
2.7 However, in order for that latter consideration to become the dominant factor in the Court’s assessment, it follows that the Court must be satisfied that it is clear that the process has gone wrong, that there is nothing that can be done to rectify it and that it follows that it is more or less inevitable that any adverse conclusion reached at the end of the process would be bound to be unsustainable in law. In any case where the plaintiff cannot establish that the case meets that standard it will ordinarily be inappropriate for the Court to intervene at that stage but rather the process should be allowed to continue to its natural conclusion at which stage it can, if any party wishes it, be reviewed.
2.8 But in the light of one of the issues which arose on this appeal, it is important to emphasise that a finding by a court, invited to intervene in an ongoing process, to the effect that it is premature to find the process defective on the basis of the sort of considerations which I have sought to identify, necessarily means that such a finding cannot prevent some or all of the points then sought to be raised from forming part of the proper assessment of a court invited to review the ultimate conclusion reached at the end of the process.
2.9 To take a simple example which arises in the context of one of the issues which it will be necessary to address in this case, the fact that a court may conclude that it is premature to determine that a procedure has gone irrevocably wrong because cross-examination of a particular witness was not allowed at a particular stage cannot be held to mean that a denial of cross-examination at all stages might not, in the circumstances of a particular case, render an ultimate adverse conclusion unsustainable. Indeed, there might even remain an argument, which it would be possible to pursue at the end of the day, that a delay in allowing cross-examination beyond a particular point rendered the process ultimately unfair to the extent that its conclusion should be quashed. Under the test which I propose the Court should only intervene in an ongoing process where it is clear that the process has gone irretrievably wrong. The fact that a court may not be so satisfied does not mean that a court reviewing an ultimate adverse decision made at the end of the process must necessarily disregard the points raised. Such points may not be sufficiently clear, at the stage of a challenge which is found to be premature, to justify intervention. But they, either alone or taken in conjunction with the remainder of the process, may nonetheless be sufficient to persuade a court at the end of the day that the ultimate decision cannot be sustained.
2.10 On that basis it seems to me to follow from the fact that the trial judge dismissed these proceedings on the basis of prematurity that the conclusions of the trial judge cannot be taken to bind any judge tasked with reviewing the sustainability of the ultimate decision taken in this case. Mr. Rowland must be free to rely on any points which can properly be made in the second proceedings. Likewise An Post is entitled to put up any answer which it may consider appropriate. Even if the view of the trial judge is confirmed on this appeal that view amounts to no more than a determination that it was not sufficiently clear that the process was irremediably infirm so as to justify intervention at the relevant stage. It goes no further and cannot affect, one way or the other, the merits of an overall assessment as to whether the final conclusion of the process can be sustained.
2.11 Having indicated the proper approach it seems to me to follow that the first question which arises on this appeal is as to whether it can be said that Mr. Rowland had established that the process embarked on by An Post had, as at the time of the trial, clearly gone irremediably wrong. It can be inferred that the trial judge concluded that Mr. Rowland had not so established. Unless that finding of the trial judge can be displaced then the appeal must necessarily be dismissed.
2.12 In order to assess that issue it is necessary to say a little about the process as conducted, the basis on which it is said that it is in breach of the principles of constitutional justice and the conclusions of the trial judge.
3. The An Post Process
3.1 I should start by noting, in passing, that it was at all times accepted by An Post during these proceedings that An Post were obliged to apply the rules of constructional justice in conducting the process with which these proceedings are concerned. In the light of that concession it is, of course, unnecessary to consider the parameters of the extent to which the rules of constitutional justice apply in relation to a contractual dispute such as the one which is at the heart of this case. Lest this judgment might be misinterpreted as determining that the rules of constitutional justice necessarily apply in all disputes of this type it is important to emphasise that the formal application of those rules, as a matter of law, arises in the context of public law disputes where decisions or determinations which may, as a matter of law, have an adverse effect on the rights or obligations of an individual must be determined by a process which complies with those rules.
3.2 It is also the case that certain private law disputes may give rise to a requirement to apply the rules of constitutional justice because such rules may, either by express inclusion or by implication, be taken to apply to a process arising under a contract whether that be, for example, a contract of employment, the contract which exists between the members of an organisation or, as here, a long term contract providing for a process which may lead to its determination for cause. As noted, some contracts, particularly employment agreements negotiated between employers and the representatives of employees, may make express provision that the rules of constitutional justice are to apply in certain processes. There is no such provision in terms in the contract governing this case although, as will be addressed later, the term “fair opportunity” is used. The extent to which it may be appropriate to imply a requirement to comply with the rules of constitutional justice into any contractual regime which does not make express provision for their inclusion is a matter to be considered on a case by case basis. However, because it is accepted that such rules apply in this case, it is unnecessary to address the criteria by reference to which such a term might generally be implied into a contract.
3.3 Finally, before addressing the specific process which occurred in this case, it is, of course, important to emphasise that the precise application of the rules of constitutional justice in respect of any particular process can be quite case specific even though the general principles, being that a person who may be adversely affected is entitled to know the basis on which it is said that they may suffer to their detriment and that they must be given an opportunity which, in all the circumstances of the particular case, affords them a reasonable opportunity to test and address the basis on which it might be said that an adverse result can arise.
3.4 The specific text of the agreement between the parties in this case which governs the potential determination of the position of a sub-postmaster is in the following terms:-
“An Post process for handling cases involving breach of contract.
A registered letter identifying all matters at issue is sent to the Postmaster for an explanation and giving 14 days for a response. If no reply is received than a follow up letter is issued giving a final 7 days for a response. The response may generate a need for further communications to expand on or clarify some of the responses or to seek additional information.
When the company is satisfied that the Postmaster has been given fair opportunity to respond on all the issues of concern being raised by the Company, the case is then reviewed by the Manager Contractors and a recommendation made to the Head of Contractors on the case. This may range from a warning to a recommendation to terminate the contract due to loss of confidence in the Postmaster. A decision is then taken on the case by the Head of Contractors which is then communicated to the Postmaster.
Should Head of Contractors decide to terminate the contract then a termination letter is issued by registered post advising the Postmaster accordingly and further advising that he/she has 7 days to appeal the decision.
If the Postmaster appeals the decision this is then submitted to the Director of Retail Operations and the Postmaster’s contractual status remains unchanged until the appeal is finalised provide that the Postmaster fully participates in the process.”
3.5 As can be seen the process to be followed is expressed in fairly general terms although it is clear that the postmaster concerned has to be given a “fair opportunity” to respond on “all the issues of concern being raised” by An Post. Furthermore, the so-called “Manager Contractors” is to make a recommendation to the “Head of Contractors” who makes the ultimate decision including a decision to terminate the contract. The process thus described also allows for an appeal procedure.
3.6 It would, I think, be fair to describe the process set out in those contractual terms as being one which is quite flexible as to the precise procedures to be followed. It will be necessary to return to that fact in due course.
3.7 Turning then to the specific facts of the process followed in this case, it should be noted that there is within An Post a mechanism known as a triennial review which is carried out as part of the ordinary contractual arrangements between An Post and a postmaster. On the basis of that triennial review the remuneration level for the following three years is established on the basis of the level of transactions in the review year. Thus the level of transactions in the review year can have significant importance for the level of remuneration in the following period. In this case there was a review year for Mr. Rowland running from the beginning of October 2005 until the end of September 2006 with the review in question being carried out in the earlier part of 2007.
3.8 By letter dated 3rd April, 2007 An Post asked Mr. Rowland for his comments on certain issues arising in the review year. It is not necessary, for the purposes of the issues which arise on this appeal, to go into those issues in any great detail. Suffice it to say that the suggestion made in the letter of the 3rd April is to the effect that there might be a concern that the relevant level of activity had been artificially increased and that, in certain respects, the activity in Mr. Rowland’s post office disclosed in the review was significantly out of line with comparable post offices.
3.9 There followed something of a stand off for a period of almost one year. In an initial responding letter of the 25th April 2007 Mr. Rowland described the inquiries and the request for information as “impertinent”. Various meetings followed involving, initially, the Irish Postmasters’ Union on behalf of Mr. Rowland and latterly his solicitors.
3.10 On the 27th June, 2008 An Post wrote a further letter containing what I think can be described as a detailed list of inquiries requesting answers. It also requires to be noted that the letter in question did suggest that the concerns raised called into question whether An Post could continue to have confidence in Mr. Rowland as a postmaster.
3.11 Mr. Rowland did respond on the 23rd October, 2008 but An Post argues that the response in question was partial and fell short of providing all of the information reasonably required. There followed a letter from An Post of the 4th December which again suggested that full responses were required and offered an oral hearing at which it was suggested Mr. Rowland could provide the necessary responses. That offer was, at least to an extent, taken up, although the solicitors who by then were acting for Mr. Rowland did raise questions as to the procedure to be followed at such a meeting. A date of the 2nd February, 2009 was fixed for the oral hearing but, three days before that date, these proceedings were commenced and an interim injunction was obtained ex parte restraining the hearing. That injunction was continued at the interlocutory stage by Charleton J. on the 30th March, 2009.
3.12 Two aspects of the dispute as to the process, which were raised between the parties between the initial letter raising queries in April 2008 and the commencement of proceedings almost a year later, need to be noted for they form the basis of the issues which arise on this appeal.
3.13 First, it was contended on behalf of Mr. Rowland that he was entitled, at that stage, to see the data emanating from other or typical post offices which gave rise to the queries which were posited on an assertion that Mr. Rowland’s equivalent data was significantly out of line with the norm. Second, it was said that Mr. Rowland ought to be entitled to arrange for the cross-examination of those who were involved in formulating those queries which, on Mr. Rowland’s case, were said to amount to an accusation and, in some respects, findings of fact.
3.14 These questions were also linked with a third issue which arose on this appeal which concerned the identity of the persons who were to conduct any further stages of the process. On Mr. Rowland’s case it was said that it was inappropriate that those who had been involved in formulating the queries and, so far as he was concerned, making accusations and coming to preliminary findings, should be involved in any oral hearing (perhaps other than as a witness if required) or involved in any final decision making.
3.15 In that latter regard it does also require to be noted that, subsequent to the hearing in the High Court, it was ultimately determined by An Post that a person who had had no previous involvement with these issues would make any final decisions. It may be, although it is not necessary to determine this issue for the purposes of the substantive appeal, that questions may arise as to costs arising from the identity of those who were intended to conduct the process but it is clear that the individuals against whom a complaint of lack of objectivity was raised did not ultimately take part in any final decision making process so that that issue, at least at the level of substance, is clearly now moot.
3.16 In essence the substance of the appeal, therefore, comes down to a question of whether the test identified earlier in this judgment, as to the circumstances in which it would be appropriate for a court to intervene in respect of an ongoing process, had been met as of the time when the substantive hearing before the High Court took place on either or both of the grounds identified being the fact that not all of the relevant data had been provided and the issue relating to cross-examination.
3.17 Before considering those issues it is necessary to briefly note the reasoning of the trial judge.
4. The High Court Judgment
4.1 The trial judge described Mr. Rowland’s claim as being to the effect that he was never told about the allegations against him, that there was a refusal of cross-examination and that the personnel who had been designated to conduct the inquiry had a conflict of interest.
4.2 The trial judge held that all issues of concern involving Mr. Rowland had been sent to him through correspondence. It was held that cross-examination did not arise because there were no witnesses to interview. The Court was also satisfied that the personnel appointed to conduct the disciplinary hearing had been altered so as to meet any reasonable concerns on Mr. Rowland’s behalf.
4.3 However, a key finding of the Court was that the disciplinary hearing stage had not yet been arrived at.
4.4 In my view it would be reasonable to characterise the ultimate decision of the trial judge as being one to the effect that it was premature to seek to injunct the disciplinary process. There are, it has to be said, some elements of the judgment which might be taken to have made findings beyond that. However, a finding of prematurity, if upheld, would, of course, be sufficient to dispose of the case and thus render any other findings irrelevant and, for the reasons already identified earlier in this judgment, not binding on any judge who was asked to review the process as a whole.
5. Analysis
5.1 A starting point has to be to note that, after the commencement of the proceedings but before the matter came to trial before Murphy J., An Post wrote a letter to Mr. Rowland’s solicitors on the 3rd June, 2010. At point 2 of that letter it was made clear that Mr. Rowland would be provided “with documentation relied upon by An Post to ground (the relevant allegations) but that documentation may be redacted to remove confidential material…” A requirement for confidentiality was also imposed.
5.2 The same letter, at point 3, indicated that there would be an oral hearing but that the process would be conducted on an inquisitorial basis. However, Mr. John J. Ryan, who was the Manager Contractors and who was to conduct the hearing, was stated to have a discretion to determine whether oral evidence was necessary “in order to adjudicate upon any matter in issue”. It was also indicated that, in such circumstances, either Mr. Rowland or his solicitor would be entitled to address questions through Mr. Ryan “to any person whose evidence may be considered necessary”. The letter then went on to indicate that Mr. Ryan would prepare a report and make a recommendation to Mr. Frank Ennis, the Chief Internal Auditor of An Post, who would give a written decision.
5.3 It is true that, at earlier stages of the process, An Post had set out its initial queries in quite robust terms and had demanded replies without giving Mr. Rowland either access to the data in question or the right to cross examine. However, it does not appear to me to be “clear” that the process could be said to have gone irremediably wrong simply by An Post adopting that initial position. A contract of employment or a long term contract such as that with which the Court is concerned in this case will almost inevitably involve a level of confidence and trust. In the context of such a contract it is not appropriate for a party to whom queries relevant to the performance of the contract are addressed to adopt a position which might be characterised as typical of Bart Simpson and demand proof. Rather it is appropriate to address the issues raised as best they can.
5.4 In addressing the issues raised it may well be that a party could legitimately qualify certain answers by reference to a lack of access to sufficient information. But to refuse to answer questions at all is not, in my view, appropriate, at least as a general proposition. There could, of course, be a whole range of responses to a suggestion that someone’s trading pattern was significantly out of line with the norm and with what might be expected. A credible basis might be put forward for suggesting that the assumption of being out of line with the norm was incorrect. It might be accepted that the pattern was out of line with others but an explanation might be tendered. It might be said that the fact that a trading pattern appeared to be abnormal was not, in the circumstances of the case, relevant to any legitimate issue which might be raised. A whole range of other possibilities might exist in the context of particular cases. It is important to emphasise that the process envisaged in this case involved an ongoing investigation which might ultimately turn into a matter which might lead to adverse findings. But the fact that the initial request for explanations was expressed in robust terms does not mean that the process did not start as an investigation. The extent to which it may be required that evidence be provided or a right to cross examine afforded will depend on the position adopted by the parties.
5.5 In this context it is, perhaps, worth noting the accepted practice in respect of the investigation of criminal offences to which a high level of constitutional protection applies. Gardaí doubtless question, in appropriate cases, individuals in a robust fashion provided that it is not inappropriately oppressive. Gardaí are not necessarily required to let a suspect know of all of the evidence which they have accumulated at the time of such questioning. Depending on the position adopted by the suspect the amount of evidence which may ultimately have to be put before a court may vary. It is difficult to see how a person in respect of whom queries are raised in relation to a long term trading relationship could be said to have a greater level of rights than someone whose liberty may be placed at risk as a possible ultimate conclusion to a criminal investigative process.
5.6 Furthermore, there is no reason in principle why there has to be an oral hearing unless there is a legitimate basis for determining that there is a factual issue which needs to be resolved in order for appropriate conclusions to be reached. There is no reason in principle, therefore, why procedures cannot be put in place to ascertain whether there is such a factual dispute before deciding whether a right to cross examine may be necessary to comply with the rules of constitutional justice. It follows that there is no reason in principle why the process may not evolve from an initial request for information through the formulation of points of concern but importantly provided that, before the process reaches a stage where an adverse decision can be made, the person concerned becomes entitled to any materials which might be relied upon for making an adverse decision and provided the person is given an opportunity to test any evidence (by cross-examination if necessary) where the process to date has established that there is a conflict or issue on the facts requiring to be resolved.
5.7 In other words there is no reason in principle why procedures cannot be put in place which seek to refine the issues in order to determine the precise extent of the materials which require to be disclosed and the precise requirement for cross-examination which may be needed in order that the process as a whole be considered procedurally fair. Unless the entitlement to obtain information or test evidence is afforded at a stage which is so late that it can be said that the person whose interests are in potential jeopardy has suffered an irremediable detriment then it is hard to see how the timing of when information is given or cross-examination allowed could, in and of itself, be regarded as creating a process which breached the rules of constitutional justice.
5.8 It might, of course, have been the case that insufficient information would have actually been given to Mr. Rowland to meet the requirements of fair process. It might have been that the exercise of the discretion to allow or refuse examination of witnesses might have been impermissibly exercised so as to exclude questioning which would have been necessary to reach a sustainable decision. Other things, indeed, could well have gone wrong. But it cannot be assumed that any of these things would have happened.
5.9 Therefore, as of the time of trial, there had undoubtedly been a refusal for a period of time to provide information requested or to allow examination of potentially relevant witnesses. But it was certainly not clear, for the purposes of the Becker test, that any such initial refusal had created a situation whereby the process had gone irremediably wrong. By the time the case came to trial it had been intimated that data would be provided and the potentiality for allowing of the examination of witnesses had also been established subject to persuading Mr. Ryan that any particular examination was necessary. Again it was certainly not clear, for the purposes of the Becker test, that the procedures that were to be followed would inevitably lead to an unsustainable decision.
5.10 For those reasons I am satisfied that the overall and ultimate conclusion of the trial judge, which was to the effect that that Becker test had not been met, was correct. It may be that it was putting things somewhat too far to say that the process had remained, up to the time of trial, at a purely investigative stage. The letter of the 3rd June, 2010 suggested that there were allegations and that, as a result of the hearing contemplated by that letter, potentially adverse recommendations might be made. But even though it may be wrong to characterise the process of having remained at a purely investigative stage, the trial judge was, in my view, correct to take the view that it had not been established that the process had clearly gone irremediably wrong to the extent that it was almost inevitable that any determination at the end of same could not be sustained.
5.11 For those reasons I am satisfied that the trial judge was correct to decline to grant the injunction sought and it follows that it would not be appropriate for this Court to grant any alternative relief.
6. Conclusions
6.1 For the reasons set out in this judgment I am, therefore, satisfied that the trial judge was correct to hold that the point had not been reached when it could be said that it was sufficiently clear, for the purposes of the established jurisprudence, that the disciplinary process in this case had gone irremediably wrong so as to warrant that a court should intervene by way of an injunction to halt the process.
6.2 On that basis I am satisfied that the trial judge’s ultimate conclusion was correct and that the appeal must be dismissed. However, in doing so I would make clear that, in my view, for the reasons addressed earlier in this judgment, any findings of the High Court judge other than the finding of prematurity will not bind any future judge who is called on to consider whether the disciplinary process against Mr. Rowland in its entirety can stand scrutiny. The finding of prematurity is based on upholding the view of the trial judge that it was not clear, for the purposes of the relevant jurisprudence, that the procedure had gone irremediably wrong. That does not mean that any of the factors sought to be relied on by Mr. Rowland in these proceedings cannot also be taken into account by a judge who is asked to review the process as a whole.
Maha Lingham v Health Service Executive (
Supreme Court
4 October 2005
[2006] 17 E.L.R. 137
FENNELLY J.
delivered an ex tempore judgment on October 4, 2005 saying: This application comes to the court by way of an appeal from the judgment of Carroll J. in the High Court. On May 11, 2005 she dismissed the plaintiff/ appellant’s application for an interlocutory injunction restraining the defendant, the Health Service Executive, as the successor of the Southern Health Board, from dismissing him from a post of temporary orthopaedic surgeon in the employment of that health board but specifically at Cork University Hospital and St Mary’s Orthopaedic Hospital in Cork.
The facts set out in the judgment of Carroll J. are not contested in any serious respect. It is sufficient to refer to a very small number of those facts. The applicant is a native of India and he took his initial medical qualifications there and worked there until 1986. However, he did become an Irish citizen in the 1990s and he acquired further high qualifications in surgery, his Primary Fellowship from Edinburgh in 1988 and his final Fellowship in Dublin in 1990. Thereafter he worked at a number of hospitals in Ireland including Sligo, Kilkenny, Beaumont and his connection with Cork began in or about July 1993. Initially he was employed as a registrar by the Southern Health Board but the employments that culminated in the one which is at issue in this case commenced in or about July 1994. There followed a number of successive temporary consultant appointments renewed over a number of years on a three or sixmonth basis perfectly regularly apparently by orders made by the health board communicated to the plaintiff/ appellant. That went on until 2001.
There were already four surgeons in the employment of the board, which at that stage advertised for two other surgeons in effect on a permanent basis. The posts were duly and properly approved by Comhairle na nOspideal and it is part of the background to the plaintiff/appellant’s complaints that he was not treated fairly in connection with that application but in reality neither that application, nor his failure to obtain either of the posts then advertised are material to what is at issue at present, though some of the events that surrounded his failure to obtain either of those posts form part of the grievance that he advances in the present application.
*139
Suffice it to say that the plaintiff/appellant’s complaint is that as a result of lack of support from his fellow orthopaedic surgeons in the health board he failed to be short-listed at one stage and, in his contention, he failed to be properly considered for either of those posts and in the event he did not obtain any appointment with the health board at that stage.
Nonetheless, he continued in the employment of the health board right up to this year. The basis of his employment is somewhat obscure, because it is contested as to whether the board actually had power to appoint him as what was called “a temporary trauma surgeon”. Certainly he was employed. Nonetheless there were difficulties and it is those difficulties that form the background to the present application to a very large extent. There were difficulties in particular with the other surgeons and the lack of support that in part, according to the plaintiff/ appellant, contributed to his not obtaining one of the posts in 2001 continued, and according to the plaintiff/appellant the behaviour of his colleagues amounted in effect to ethnic or racial slurs upon him. This immediately gives rise to the problem that the only defendant in the present action is the Health Service Executive. None of the other surgeons are defendants and, as has been pointed out in the course of the hearing, the persons against whom those allegations are made are not present in court and have not an opportunity to respond to them. This is one reason for being cautious in making any comments on them and another is that of course this is an interlocutory application and the plaintiff/appellant is perfectly entitled to proceed to the full hearing of the action and nothing the court would say at this stage should prejudice either his position or that of the defendant or indeed of that of the other persons mentioned.
It is sufficient to say, for present purposes, that the two aspects of the case that need to be considered by the court are, first, that by a letter of February 28, 2005 the plaintiff/appellant was given three months’ notice of termination of his employment as of May 31, 2005. The defendant contends in the affidavit sworn by Mr McNamara on behalf of the defendant/ respondent that the reason for that notice of termination was that the board, now the executive, had been unable to obtain approval for the continued employment of the plaintiff/appellant in such a temporary consultant post as he had been employed in 2001 so that the position was that the executive, according to what it says, did not have either the funds or the authority to continue his employment and the defendant says that that was the reason why his employment was terminated. Apart altogether from the fact, which is material, of course, that they gave him three months’ notice and no contention has ever been advanced that that period of notice was inadequate in accordance with the general law with regard to the termination of contracts of employment.
On the other hand the contention of the plaintiff/appellant is that this act of dismissal was wrongful by reason of the way in which his colleagues behaved. *140 His colleagues, he claims, were prejudiced against him by reason of his national and/or his racial origin and that they made remarks, a number of which are contained in affidavits referring to his racial origin including remarks such as “you should go back to India” and “you are an outsider” and words of that sort. It is fair to say that it is not contended by the plaintiff/appellant, and quite honourably so, that any such remarks were at any stage made by or on behalf of the defendant or by or on behalf of any of the executives of the defendant or of the health board. Of course Mr O’Reilly on behalf of the plaintiff/appellant seeks to attribute these remarks made to him by his fellow surgeons to the defendant insofar as they were also in the employment of the defendant. What is contended is that the other surgeons in effect brought pressure to bear on Mr McNamara on behalf of the Health Service Executive to the extent that it overbore the independent decision-making power and will of the executive and for that reason the action was wrongful.
Before going further to deal with the implications of that, a couple of quite obvious legal matters can be referred to; first that according to the ordinary law of employment a contract of employment may be terminated by an employer on the giving of reasonable notice of termination and that according to the traditional law at any rate, though perhaps modified to some extent in light of modern developments, according to the traditional interpretation, 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. This is the first general principle.
The second is that the implication of an application of the present sort is that in substance what the plaintiff/appellant is seeking is a mandatory interlocutory injunction and it is well established that the ordinary test of a fair case to be tried is not sufficient to meet the first leg of the test for the grant of an interlocutory injunction where the injunction sought is in effect mandatory. In such a case it is necessary for the applicant to show at least that he has a strong case that he is likely to succeed at the hearing of the action. So it is not sufficient for him simply to show a prima facie case, and in particular the courts have been slow to grant interlocutory injunctions to enforce contracts of employment. None of this is to deny that there had been developments in the law in recent years and it is necessary to refer very briefly to the nature of these developments. The first is that, in this jurisdiction the development can be traced to the judgment of Costello J. in a case of Fennelly v Assiuanazioni Generali (1985) 3 I.L.T.R. 73 in which an injunction was granted directing an *141 employer to continue payment to the plaintiff, in that case pending the hearing of the action, and that type of jurisdiction was exercised in a number of subsequent cases. It is fair to say however, that there is a very strong trend in those cases to the effect that where a person has a clear right to either a particular period of notice or a reasonable notice or has a fixed period of employment, a summary dismissal or a dismissal without notice or without any adequate notice is a first step in establishing the ground for an injunction in those sort of cases. For reasons already given this is not such a case.
A second element in cases of that sort is that, where a dismissal is by reason of an allegation of misconduct by the employee, the courts have in a number of cases at any rate imported an obligation to comply with the rules of natural justice and give fair notice and a fair opportunity to reply. This does not apply in the present case either. The defendant is not making any allegation of improper conduct so it is not the case and it is not contended that the results of natural justice apply. So those aspects of the developing line of case which can be traced from Fennelly v Assiunazioni Generali and subsequent cases including Shortt v Data Packaging Ltd [1994] E.L.R. 251 decided by Keane J., as he then was, do not appear to apply to the present case.
The argument developed by Mr O’Reilly in particular on behalf of the plaintiff/appellant is that there has developed in parallel with the statutory scheme of things the tendency of the courts to imply a term of good faith and mutual trust into contracts of employment. That implies, as far as the employee is concerned that he will work faithfully and respect the employment obligations that he has towards his employer and that is that he should act in good faith towards his employer but by purity of reasoning, therefore, the employer is equally bound not to act so as to undermine the contract of employment but to act also in good faith on the basis that there is a relationship of mutual trust between the parties.
This is a development which is perhaps at its early stages and it is not contested, in the present case, by Mr O’Reilly that he needs to develop that law further in order to bring it to bear in the present case and to secure the injunction that he seeks. There has been a discussion of course of the English case of Eastwood v Magnox Electric plc [2004] 3 All E.R. 991 decided this year and referred to in the judgment of Carroll J. and in particular the majority speech in the House of Lords in that case where Lord Nicholls, as cited by Carroll J., took the view that because of the statutory code relating to unfair dismissal, in effect that it was not for the courts to extend further into the common law, the implied term regarding mutual trust in such a way as to upset the balance set by the legislature. In other words that the principle that there is an implied term of mutual trust and good faith in contracts of employment does not extend so as to prevent the employer terminating a contract of employment by giving proper notice and, having already said that it is not contested that proper period of *142 notice was given in this case, the question is whether the plaintiff has made out the sort of case that would be necessary to show that the contract of employment had been undermined to such an extent by the employer in this case that the employer was deprived of the right to give a proper period of notice of termination.
For reasons already given it would appear necessary for the plaintiff to establish a strong and clear case that this was so in the present case. For reasons already mentioned in the summary of the evidence there is a very significant gap indeed. So far as the defendant is concerned the employment was terminated for the simple straightforward reason that the employment was not authorised and was not funded and that there was no question of the dismissal being motivated by any suggestion of racial discrimination or racial slur. It is not necessary, it seems to the court, to decide on the full ambit of such an implied term. No doubt, if the plaintiff/appellant had been able to produce a strong and clear body of evidence that the defendant in the present case was motivated by a policy of racial discrimination, the matter would be entirely different but, so far as the court can see, the evidence does not measure up anything like to that extent and accordingly in the view of the court the plaintiff/appellant has not made out a case such as satisfies any test that could be posted on the basis of a development of the principle of the implied term of mutual trust.
In addition the plaintiff/appellant relies on the implementation in the Act of 2003, the Protection of Employees (Fixed-Term Work) Act 2003 implementing Council Directive 99/70 of June 28, 1999. However, having looked at that Act the court cannot see that it significantly alters the matter. It is unnecessary to go into it except that the general policy of the directive and the Act seems to be to protect employees who are employed on short term fixed-term contracts and who have been employed on such basis for a certain minimum number of years, either three or four years, and accepting for the sake of the purpose of the present case, that the plaintiff is employed under such a contract of employment, the question would be whether he could make out a case to justify the grant of an interlocutory injunction. There are two major obstacles in the place of the plaintiff/appellant in this context; first that is that the implementing Act, the 2003 Act, contains, like the Unfair Dismissals Act, its own statutory scheme of enforcement and it does not appear to be envisaged by the Act that it was intended to confer independent rights at common law or to modify in general the terms of contracts of employment to be enforced by the common law courts; and the second is that in any event the general provisions and policy of the Act and of the directive seems to be to put persons who were in such short term contracts in the same position as if they were persons who were on fixed long term contracts but in neither event does it appear to interfere with the ordinary right and obligation of the employer to terminate the contract on the giving of reasonable notice and for that reason the matter comes back within the general *143 ambit, therefore, of the sort of remedy that would be available to the plaintiff/ appellant for the termination of the contract. So far as the court can see the plaintiff/appellant has not made out a case for the grant of an interlocutory injunction because the plaintiff/appellant has not met the first leg of the test of showing that he has a strong case and that he is likely to succeed at the hearing of the action and, for these reasons, it is not necessary to go on to consider the balance of convenience. The court will therefore dismiss the appeal.