30
July 1999
BUDD
J:
BACKGROUND
HISTORY
The
Plaintiff is a forty two year old archaeologist who was employed by the Hunt
Museum Trust and worked at Craggaunowen on short term contracts in 1985/6 and
from 1989 on a three year contract and from 1992 on a long term contract on a
pay scale which he says was related to the remuneration of State
archaeologists. The Hunt Museum Trust subsequently granted the Craggaunowen
site to the Shannon Free Airport Development Company (SFADCO) which assigned it
to the Defendant Company ("the Company") so that from 1989 the Plaintiff was
employed with curatorial and managerial duties by the Company. The main offices
of the Company are at Bunratty. The Plaintiff had responsibilities at
Craggaunowen and at Lough Gur as well as at Bunratty.
On
23 December 1998 a fellow employee, a cottage supervisor, employed on a
seasonal basis at Craggaunowen, made an allegation of unwanted sexual advances
having been made to her by the Plaintiff on the evening of 12 October, 1998 in
a public house in Tulla and later outside the gates of Craggaunowen when she
was driving the Plaintiff home. An investigation was instituted by the Company
in the New Year and on 29 January 1999 the Plaintiff was dismissed by the
Company on the grounds of gross misconduct. Proceedings were instituted on
behalf of the Plaintiff by Plenary Summons issued on 17 February 1999 claiming
that the Company had acted in breach of the rules of Natural and Constitutional
Justice in the purported termination of the Plaintiffs employment on 29 January
1999.
I
stress at the outset that the issue to be decided is as to whether the
procedures adopted by the Company in respect of the investigation, which
concluded in the dismissal of the Plaintiff, were flawed. This Court is not
making any decision whatsoever on the merits of the Complainant's allegations
against the Plaintiff. Indeed, the Complainant had the ordeal of having to sit
and listen to evidence and arguments over a number of days about the propriety
of the methods adopted for the inquiry into her complaints by the Defendant
Company. She was not called as a witness and the genuineness of her complaint
is not the issue in question. Regrettably because of the circumstances of the
actual matters in contention before this Court, it is necessary to give an
outline of the background to her complaint and the course of the subsequent
investigation conducted by the Company into her allegations which resulted in
the Plaintiffs' dismissal for gross misconduct.
The
Complainant is a married woman with children, two of whom are of age to be at
University. She joined the Defendant Company in 1993 as a costumed interpreter
at Craggaunowen. She became the cottage supervisor with responsibility for a
staff of about sixteen during the summer season from March to October. The
Plaintiff was her superior in the Company hierarchy.
On
12 October, 1998 both the Plaintiff and the Complainant had attended the
funeral of the sister of a member of the staff. About twenty people went on to
a public house in Tulla after the funeral. By mid-afternoon the Plaintiff had
consumed more drink than he should have and he himself said that he should not
drive his car. The Complainant agreed to give the Plaintiff a lift home. Before
6.00 pm an incident allegedly occurred at the telephone in the public house
involving the Plaintiff and the Complainant who construed what happened as an
improper and unwanted advance. Despite this incident and the Plaintiffs
inebriated condition, the Complainant did drive the Plaintiff in her car to the
house of the bereaved friend. They stayed there for a mere few minutes as the
bereaved friend was absent and only his son and his girlfriend were there. On
the way to the Plaintiffs home the Complainant stopped the car near the gates
of Craggaunowen and a further advance was made which the Complainant found
objectionable. The Plaintiff also vomited over her car both inside and outside.
She left the Plaintiff at his home at about 8.00 pm.
The
Complainant returned to the public house soon after 8.00 pm and spoke to Delma
Carroll who was not yet ready to leave. The Complainant went away and came back
at around 10.30 pm and stayed until 1.00 am. Next morning, as the Plaintiff had
left his car near the public house, the Complainant picked him up along with
his child and dropped the child off on the way and then left the Plaintiff to
Craggaunowen. No complaint was made, but on 14 October 1998 there was a brief
discussion which the Plaintiff felt had cleared the air; in particular he
apologised for vomiting over her car. Nothing of significance seems to have
occurred in the fortnight before the end of the season. In November 1998 the
Complainant went abroad and she sent the Plaintiff a postcard from Australia.
She also had telephoned the Plaintiffs wife to wish her well with her new baby
and left a present for the baby in the Plaintiffs car. Later on she sent them a
Christmas card. Both the Complainant and the Plaintiff had attended a Celtic
festival, the Samhain celebrations, on 31 October 1998, a staff party on 4
November 1998, and the Christmas party without recriminations or unpleasantness.
THE
COMPLAINT AND INVESTIGATION
On
21 December 1998 the Complainant telephoned Paul Adams, the General Manager of
the Company and said that she wished to meet him. She met Mr Adams on 22
December 1998 and complained about incidents on 12 October 1998. She then
attended a meeting on 23 December 1998 with Mr Adams and Deirdre Hughes, the
Human Resources Manager of SFADCO. Ms Hughes made a manuscript note of this
meeting which she retained until 5 January 1999 when she typed it up in memo
form. She then took this typescript memo to a further meeting with the
Complainant and Mr Adams on 5 January 1999. Corrections to the memo were then
made by Deirdre Hughes at the behest of the Complainant and a number of
additions were also typed in towards the end of the memo. Ms Hughes then
destroyed the manuscript notes of both meetings and the typed-up and corrected
memo so that only the amended memo with additions as signed by the Complainant
on 5 January 1999 survives.
On
6 January 1999 the Plaintiff was called to a meeting by Mr Adams to be held at
10.00 am on Thursday 7 January 1999. The Plaintiff thought that this was to
address his long standing grievance about his grading and salary scale. He felt
that he was due an eventual response to his long and careful letter seeking
redress sent to Mr Adams on 4 February 1998. Instead Mr Adams, in the presence
of Ms Hughes informed the Plaintiff of a serious complaint having been made
against him in respect of his conduct on 12 October, 1998. The Plaintiff was
very shocked. He was told that he would be sent a letter outlining the
complaint. This letter dated 7 January 1999 was received by him at 3.30 pm at
Craggaunowen. It gave a brief and incomplete outline of the allegations and
sought a response from him either on the next day, or early the next week.
On
Friday 8 January 1999, on the advice of Maeve Callanan, his Solicitor, the
Plaintiff telephoned Mr Adams and requested the original written complaint. On
Monday 11 January 1999, at about 10.15 am, Mr Adams telephoned the Plaintiff
and said that the written complaint was in the form of an internal memo of an
interview and that it was confidential and was not going to be made available
to the Plaintiff, who responded that he would convey this answer to his
Solicitor. On the advice of his Solicitor, the Plaintiff re-iterated by letter
dated 13 January 1999 that he was advised that he should have been furnished
with a copy of the signed memo and that he was prejudiced in his ability to
respond without this.
The
Plaintiff did make a written response by letter dated 13 January 1999 to such
aspects of the complaint as had been made known to him verbally and by the
letter dated 7 January 1999. The Plaintiffs Solicitor also wrote by letter
dated 13 January 1999 suggesting that a meeting proposed by Mr Adams for 10.30
am on 14 January 1999 should be deferred to allow Mr Adams to consider the
Plaintiffs response. This sensible suggestion was refused and so the Plaintiff
and his Solicitor had to go out to Shannon Town Centre for the meeting
scheduled for 10.30 am. However, having been put under pressure to attend, they
were kept waiting for a quarter of an hour and were then told by Mr Adams and
Ms Hughes that the Defendant needed more time for consideration, as had been
anticipated. The Plaintiffs Solicitor strongly requested the written complaint
and said that the Plaintiff was being severely prejudiced by the failure of Mr
Adams to furnish a copy of this. She pointed out that it should have been
furnished and asked Mr Adams for it. He said that he would consider this and
get back to her. She was sent away without the signed memo of the complaint
which she had requested. By letter dated 15 January 1999 she again wrote
requesting the written memo of the entire complaint made. The Defendant Company
failed to reply to this letter and indeed the Plaintiffs Solicitor received no
written response to any of her several letters until after the Plaintiff had
been dismissed.
On
Friday 15 January 1999 Mr Adams passed the Plaintiff at Bunratty Folk Park and
told him that he had left a message on the Plaintiffs mobile phone. On Saturday
16 January 1999 the Plaintiff learned that this message was to say that he was
to be at a meeting on Tuesday 19 January 1999. On the morning of 19 January
1999 the Plaintiff telephoned Mr Adams and asked to be told the nature of the
agenda for this meeting. Mr Adams said he would have this available for
collection by the Plaintiff at noon. However, he rang to defer this for an
hour. At 1.00 pm the Plaintiff called to collect a letter dated 19 January 1999
from Mr Adams at Bunratty Folkpark. This letter, in a precis of part of a
further interview with the Complainant, contained a new allegation that the
Complainant "now feels threatened in the workplace" with an addendum setting
out some narrative under heading "Incident took place 12 October 1998" together
with intended questions for the Plaintiff. This letter confirmed the clear
impression given to the Plaintiff by Mr Adams that he would be given every
opportunity to respond to the allegations and stated that it was "an internal
investigation being conducted in line with our sexual harassment policy and our
grievance procedure". Neither of the actual memos containing the complaints
were furnished until after the Plaintiffs dismissal. With hindsight it is clear
that the further memo contained inconsistencies, worthy at least of exploration
and explanation, when compared with the previous memo signed on 5 January 1999.
The
Plaintiff and his Solicitor did attend the meeting at 6.00 pm on 19 January
1999 at the Granary with Mr Adams, Ms Hughes and Paul Reidy of IBEC attending
for the Defendant. At the very start of the meeting between the parties at 6.30
pm the Plaintiffs Solicitor reiterated strongly that the refusal to furnish the
written complaint was severely prejudicial as was the failure to furnish the
complaint in full, particularly as the letter of 19 January 1999 was making a
fresh allegation that the Complainant felt afraid in the workplace. Under
protest against the unfairness, the Plaintiff responded to the questions
proposed and other questions until 9.30 pm when there was a break. When he and
his Solicitor returned to the room, she tried to make a summation of her
client's points. Mr Adams cut her short and said that this was only the
investigative stage and that ample opportunity would be given at a later stage
for her to make representations.
On
25 January 1999 the Plaintiff was told of a further meeting he must attend on
26 January 1999. He told his Solicitor who contacted Mr Adams who said that
this was to clarify some points. On 26 January 1999 the Plaintiff attended at
12.30 pm and at 12.45 pm the Plaintiff was given a further list of questions.
At 2.00 pm the Plaintiff and his Solicitor met Mr Adams and Ms Hughes and dealt
with the listed matters. Mr Adams said that they were coining to the end of the
investigation process and he was going to prepare a report and recommendation
for the Board. The Plaintiffs Solicitor requested a copy of the report and Mr
Adams agreed to supply a copy of the written report. This was not furnished nor
was any opportunity given to the Plaintiff or his Solicitor to comment on or
make submissions in respect of this report.
There
is a conflict of evidence as to whether the Plaintiffs Solicitor was told at
the meeting on 19 January 1999 that this was only the investigation stage and
that this was not the time for submissions and that she would be given a chance
in future to make representations. Likewise a conflict arose about the meeting
on 26 January 1999 as to whether she was told that Mr Adams and Ms Hughes would
be preparing a report for the Board of the Company and that she would be given
a copy of the draft so that she would be afforded an opportunity to make
observations and submissions on it. Having studied the documents and having
listened to the evidence and observed the demeanour of Mr Adams and Ms Hughes
on the one hand, and the Plaintiff and his Solicitor on the other hand in
respect of this issue, I have no hesitation in accepting the evidence of the
Plaintiff and his Solicitor on this aspect. I have no doubt she was led to
believe that she would be given a chance to make representations at the
conclusion of the investigation stage before any decision would be made. I
believe that she was given to understand that she would also be given the
opportunity to make representations, if necessary in respect of appropriate
sanctions. For instance, if this was a first complaint then the Plaintiffs
Solicitor might well have had submissions to make bearing in mind the
apparently normal run of relationships between 12 October 1998 and 21 December
1998.
On
Thursday 28 January 1999 the Plaintiff was on his way from Lough Gur when he
received a message from Mr Adams to come to Shannon next morning to receive the
conclusions of the investigation. Ms Callanan advised the Plaintiff to collect
the report and not to react or to say anything until they had studied this
report.
At
11.00 am on Friday 29 January 1999 the Plaintiff met Mr Adams and Ms Hughes. Mr
Adams opened the meeting by stating that on foot of serious allegations, which
the Plaintiff had not denied, he was dismissing the Plaintiff with immediate
effect, following a lengthy investigation regarding a written complaint made on
5 January 1999, on grounds of gross misconduct. He handed the Plaintiff a
letter dated 29 January 1999 adding that he had followed the principles of
natural justice and had been fair to the Plaintiff who had had a Solicitor. The
letter concluded by saying that the Plaintiff could appeal this decision to
Paul Sheane the CEO of Shannon Development within fourteen days.
On
the advice of his Solicitor, the Plaintiff asked Mr Adams at Craggaunowen that
afternoon about the rules governing an appeal and Mr Adams said that he would
let him know. When the Plaintiff rang Mr Adams on Monday 1 February, 1999 Mr
Adams said that he had not had time yet to look this up.
The
Plaintiff did not pursue an appeal but on advice delivered a letter dated 2
February 1999 to the Defendant pointing out that proper procedures had not been
followed and that his dismissal was null and void, and that, unless the
Plaintiff was reinstated, then application would be made for an injunction.
Under
cross examination the Plaintiff said that in retrospect he felt three matters
suggested prejudgment in the investigation. First, on 11 January 1999 he had
been contacted in respect of an audit of keys and was asked if he had keys of
the main administration building at Bunratty Folkpark. He believed that this
was a check as to whether he held these keys. Secondly, on Friday 22 January
1999 he felt Mr Sheane had taken steps to avoid an encounter with him in the
Folkpark. Thirdly, he said that no copy of the year book and diary for 1999 was
delivered to him and that this was in contrast to all of his colleagues. The
Plaintiff candidly agreed that his frame of mind predisposed him to suspicions
of prejudgment, particularly as he was being put under constant pressure to
respond by a series of phone calls from Mr Adams.
The
Plaintiff stressed that when he was dismissed the letter dated 29 January 1999
referred to "a written complaint" made on 5 January, 1999. Despite repeated
requests from himself and his Solicitor the Defendants refused to furnish this
and kept saying that this memo was internal and confidential. 'He asserted that
on 7 January 1999 when he was told of the complaint that he was in a state of
shock and was only given an outline of a precis which he then had to try and
remember so as to relate what was alleged to his Solicitor. This was a brief
meeting and I conclude from the evidence of the Plaintiff, Mr Adams and Ms
Hughes that only the barest outline of the contents in the typed three page
memo made by Ms Hughes and signed by the Complainant and Mr Adams on 5 January,
1999 could have been given to the Plaintiff, who must in any event have been in
a shocked state.
Not
only were the original notes of the interviews with the Complainant destroyed
but the memos made by Ms Hughes incorporating amendments to the original notes
were not furnished to the Plaintiff despite his Solicitor's repeated and
forthright requests. Furthermore a medical report was obtained at the
suggestion of Ms Hughes, the Human Resources Manager, which report was
admittedly taken into account by Mr Adams in reaching his decision. Indeed, it
is clear from his report that he was influenced by the contents of this medical
report. It seems that on 4 January 1999 Ms Hughes suggested to the Complainant
that she should attend a doctor. On learning on 15 January 1999 that the
Complainant had not seen a doctor, Ms Hughes arranged an appointment for her
for 20 January 1999 with Doctor Mary Gray, who had never treated the
Complainant before and was apparently given an outline of the circumstances by
Ms Hughes. Dr Gray's report dated 26 January 1999 was faxed to Ms Hughes and
contained a history of the Complainant's allegations about the Plaintiffs
misconduct and an account of the serious effects on her health and well being.
Neither the fact of suggestion and arrangement of this appointment by Ms
Hughes, nor the obtaining and contents of this medical report, including some
novel material, were made known to the Plaintiff or his Solicitor. Mr Adams
candidly admitted that this report had been obtained and had been taken into
account by him in the investigation and in reaching his decision. The report
dated 26 January 1999 contains a section:-
"G
-- Medical Evidence
DH
suggested to (the Complainant) at the meeting on 4 January, that she might see
a doctor.
Names
and Numbers were provided. It was agreed that (the Complainant) would consider
attending a doctor.
It
came to light on 15 January, that she hadn't seen a doctor so DH called her and
offered to set it up.
(The
complainant,) did attend Dr Mary Gray on 20 January, and a medical report is
attached see appendix 11. This confirms that (the complainant,) was distressed,
wasn't sleeping and had lost weight." Further on in "Conclusion of PA/DH it
states:
"(The
Complainant) is very upset by the incident, this is confirmed by medical
evidence."
IBEC
ADVICE
Ms
Hughes sensibly sought advice from IBEC. On 23 December, 1998 Adrian Beatty of
IBEC gave advice on the telephone to Ms Hughes on the procedures to be adopted.
In particular from her hand written memo of his advice it would seem that he
said that they should take full details from the Complainant and that they
should read back the complaint and obtain her agreement that it was an accurate
reflection and should then go to the Plaintiff. They should also give the
Plaintiff a copy of the harassment policy document.
Regrettably
neither this memo nor a further subsequent hand written memo of advices from
Paul Reidy of IBEC were included in the Affidavit of Discovery which was
actually sworn on behalf of the Defendant by Ms Hughes. Both documents were in
her file which she had in Court and she explained that she had handed her file
to her secretary and asked her to copy all the relevant documents for their
Solicitor. Apparently she did not realise when she swore the Affidavit that
these manuscript notes of her conversations with Adrian Beatty and Paul Reidy
of IBEC had been omitted from the list of documents in the Affidavit of
Discovery. The third hand written memo made by Ms Hughes of advices from Paul
Reidy is a three page document headed "Meeting 18 Jan -- Paul Reidy". The third
line reads:- "-- He denies the allegations made." This is manifestly a
reference to the Plaintiffs denial and is difficult to reconcile with Mr Adam's
pronouncement on, 29 January 1999 that the Plaintiff had not denied the
allegations
On
the third page this statement appears:-
"Suspension
Discussed
this and decided not to suspend for foll reasons.
She
is seasonal worker.
If
the first part of the meeting doesn't go well then attempt to put the questions
and ask for reply."
I
abstain from conjecture as to what would constitute the meeting going well or
badly.
It
is unfortunate that these documents were not included in the Affidavit of
Discovery. Their significance is obvious. It is clear that the Company were
seeking advice on proper procedures to adopt before Christmas 1998 and that
Adrian Beatty envisaged that the complaint would be taken down in writing and
read back to the Complainant and that full details would have been taken from
her and that her agreement would have been sought to the accuracy of the memo.
It is clear from a typed memo headed
"Call
to IBEC re: advice 6 January, 1999
that
Ms Hughes sought further advice from IBEC. This typed memo was included in the
Affidavit of Discovery. This contains:-
"Paul
Reidy Re alleged Sexual Harassment.
Get
complaint written and signed.
Conduct
structured interviews and put the complaint to the accused. Explain the
procedure.
Give
time to respond.
Mr
Reidy apparently outlined the procedure for the first interview and for the
second interview and then Ms Hughes noted:-
"NOTE:
Try to keep Solicitors out of this.
Internal
issue.
No
accusations.
Want
to find the truth."
POSSIBLE
OUTCOMES
Make
a decision having investigated the facts.
If
outcome is that the accusation is correct then in IBEC's View an attack of a
sexual nature which was violent and forceful is a criminal offence and as such
should not be treated any differently in the workplace, ie dismissal would be
justified."
There
are further manuscript memos made by Ms Hughes on 14 January, 1999, 18 January
1999 and 27 January 1999. This last memo sets out the steps to be taken if the
Plaintiff was to be dismissed for gross misconduct. It was sensible for the
Defendant Company to take advice when dealing with such a sensitive issue,
provided that the advice was acted upon to ensure fairness and not to achieve a
predetermined outcome . . .
Mr
Reidy of IBEC was not called, so the Court was not given the chance to learn
how he would have reacted to the procuring of a medical report, the existence
and content of which was never disclosed to the Plaintiff so that no
opportunity was given to the Plaintiffs Solicitor to question the history and
findings therein. Nor was the Court given Mr Reidy's views on the suggestion
made that the IBEC advice was to negate the efficacy of the Plaintiffs
Solicitor which was achieved by the persistent refusal to give her the
manuscript note of the interviews with the Complainant, the first memo of time
interview which took place on 23 December 1999, the manuscript of the further
interview on 5 January 1999 and the memo subsequently produced with corrections
from the first interview together with additions from the second interview. The
additions were made after receipt of advice from IBEC and contained matters
pertaining to and relating to the workplace.
The
Rules of Natural Justice and the Company's complaints procedure
It
is common case that the rules of natural justice apply as a touchstone in
respect of the procedures adopted as to the inquiry leading to the dismissal
for gross misconduct.
At
the meeting on Thursday 7 January 1999 the Plaintiff was handed a copy of the
Shannon Development Equal Opportunity and Sexual Harassment Policy by Deirdre
Hughes. This contains the following:-
"Complaints
Procedure"
".
. .
3.
All complaints will be dealt with promptly and confidentially. All involved are
guaranteed a fair and impartial hearing.
4.
Because of the serious implications of an allegation of sexual harassment the
reputations of all concerned need to be protected from the very start.
Accordingly, any complaint which is made must be specific and the aggrieved
person must be prepared to put it in writing if requested to do so at any stage
of the procedure.
5.
The alleged harasser will be given details of the allegation and the
opportunity to reply to it/them.
Both
parties may if they wish be represented by their Trade Union.
6.
If after investigation it appears that the complaint was valid disciplinary
action will be taken to stop the harassment immediately and prevent its
recurrence. Possible sanctions may range from verbal warning to transfer or
dismissal. Management in discussion with the complainant will decide what
action s/he wishes to be taken. Sometimes an apology and assurance of no
recurrence will suffice. However, if a transfer is necessary every effort will
be made to relocate the harasser, not the victim."
One
might infer from this that it is envisaged that specifics of any such
allegation would be in writing and that details of the allegations would be
given to the accused person with an opportunity being given to respond to each
of them and also with a facility for proper representation and a chance to
respond by calling evidence, confronting and examining the accuser as
appropriate and making submissions both as to the allegations and subsequently,
if necessary, as to the sanctions in contemplation.
Reference
was also made to a draft agreement dated 16 October, 1998 between Shannon
Castle Banquets and Heritage Limited and Services, Industrial, Professional and
Technical Union and to the heading at paragraph 13 thereof "Disciplinary
Procedure". The Plaintiff was not a member of this union and while the heading
at paragraph 12 thereof "Grievance Procedure" may well have given rise to the
frequent use of this phrase by Mr Adams in the memos and in correspondence,
nevertheless the document seems of peripheral importance apart from the fact
that it lays down a process of stages and warnings; however, it also makes an
exception to this in respect of dismissal for gross misconduct.
THE
LAW AS TO THE RULES OF NATURAL JUSTICE APPLICABLE
In
a judgment delivered on 20 March 1997 in the Supreme Court in Charles Mooney v
An Post Barrington J (Nem Diss) commented on two passages which appear in the
judgments in Gunn v Bord an Choldiste Naisiunta Ealaine is Deartha [1990] 2 IR
168 and have caused difficulties to trial judges in that they cast doubt on the
relevance to Irish law of the speech of Lord Reid in Ridge v Baldwin
[1964] AC 40 and on the reasoning of Kenny J in Glover v BLN Limited [1973] IR 388. The
first is a passage which appears in the judgment of Walsh J (at page 181) of
the report and reads as follows:-
"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 BLN Limited [1973] IR 388 The quality of
justice does not depend on such distinctions."
Further
on in Gunn Walsh J said:-
"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."
Barrington
J also adverted to a passage from the judgment of McCarthy J at page 183 of
Gunn which reads as follows:-
"I
share the view of Walsh J that, in the absence of any particular prescribed
procedure, the principles of natural justice or constitutional justice would
govern the relationship between the plaintiff and An Bord. These principles are
not the monopoly of any particular class."
The
third member of the Court in Gunn, Griffin J, agreed with the judgments of
Walsh and McCarthy JJ Barrington J in Mooney went on to explain the position:-
"It
has been said that, because the Supreme court held that the Plaintiff in that
case was in fact an office holder that the passages quoted were in fact obiter.
But the purpose of the passages was to emphasise that the difference between
employee and office holder was not the determining issue as to whether the
principles of Natural and Constitutional Justice applied. Certainly the Court
appears to have gone out of its way to emphasise this point. It appears to me
that what the Court was saying is that society is not divided into two classes
one of whom -- office holders -- is entitled to the protection of the
principles of Natural and Constitutional Justice and the other of whom --
employees -- is not. Dismissal from one's employment for alleged misconduct
with possible loss of pension rights and damage to one' good name, may, in
modern society, be disastrous for any citizen. These are circumstances in which
any citizen, however humble, may be entitled to the protection of Natural and
Constitutional Justice.
The
terms Natural and Constitutional Justice are broad terms and what the justice
of a particular case will require will vary with the circumstances of the case.
Indeed two of the best known precepts of Natural and Constitutional Justice may
not be applicable at all in certain cases. As the learned trial Judge has
pointed out the principle of nemo iudex in sua causa seldom applies in relation
to a contract of employment where the employer judges the issue and is an
interested party. Likewise it is difficult to apply, to a contract of
employment, the principle of audi alteram partem which implies the existence of
an independent Judge who listens first to one side and then to the other. If
the contract or the statute governing a person's' employment contains procedure
whereby the employment may be terminated it usually will be sufficient for the
employer to show that he had complied with this procedure. If the contract or
the statute contains a provision whereby an employee is entitled to a hearing
before an independent board or arbitrator before he can be dismissed then
clearly that independent board or 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."
When
an employer is confronted with an allegation of misconduct against an employee,
then it seems that before a decision is made to dismiss, the person accused
must be informed clearly of that with which he is charged. He must then get a
fair hearing. This does not necessarily mean such a hearing as he would get in
a court of law but it does mean that he should be treated fairly according to
the ordinary reasonable standards of fair play. He must be given a fair
opportunity of refuting the charges and implicit $99 hi this is that he must be
told reasonably full particulars of the charges. Guidance as to what is
required can be gleaned from the two cases of Paul Gallagher v The Revenue
Commissioners and David J O'Gallaghan. In Gallagher v Revenue Commissioners
[1991] 2IR 370, the Plaintiff in January 1988 was an officer of Customs and
Excise who was suspended on the grounds that he had put in false reports
grossly understating the value of vehicles seized. He was informed that he
could have an oral hearing which would be conducted by the second Defendant but
was not entitled to be legally represented. His solicitor requested copies of
all statements and documents relating to the charges and this entitlement was
denied. Blayney J said at p 377:
"I
am satisfied that by virtue of his right to fair procedures the plaintiff was
entitled to be furnished, well in advance of the oral hearing, with a copy of
the transcript of his interview with Messrs Darcy and Cullen, and with a copy
of the evidence to be tendered against him, and the defendants were accordingly
at fault in refusing to comply with the plaintiffs solicitor's request for
these."
In
Gallagher v Revenue Commissioners (No 2) [1995] 1 IR 55, at page 61, Morris J
said:-
"If
therefore, the offence is to be found to be established then in my view proper
and acceptable evidence as to value must be tendered to the inquiry. The
applicant's Counsel has referred the court to the well known passage of
O'Dalaigh CJ in In re Haughey [1971] IR 217 at p 264 in which the Chief Justice
defines a citizen's constitutional rights insofar as are relevant where a
citizen is appearing before a committee or tribunal and comments that a person
whose conduct is impugned, as part of the subject matter of the inquiry, must
be afforded reasonable means of defending himself The Chief Justice asks "what
are these means". He says "they have already been enumerated" and he goes on to
define them as:-
"a)
that he should be furnished with a copy of the evidence which reflected on his
good name;
b)
that he should be allowed to cross examine, by Counsel, his accuser or accusers;
c)
that he should be allowed to give rebutting evidence; and
d)
that he should be permitted to address, again by Counsel, the Committee in his
own defence."
The
Chief Justice comments that "without the two rights which the Committee's
procedures have purported to exclude no accused -- I speak within the context
of the terms of the inquiry -- could hope to make any adequate defence of his
good name."
I
have not the slightest doubt that the applicant in this case stood in the
position of somebody who was accused and whose conduct was being impugned and I
have no doubt that he was confronted with a sufficiently serious situation to
bring himself within the ambit of circumstances envisaged by the Chief Justice
in In re Haughey [1971] IR 217."
A.
Audi Alteram Partem
Both
Morris J and Hamilton CJ in the Supreme Court quoted with approval from the
judgment of Henchy J in Kiely v Minister for Social Welfare
[1977] IR 267 at
page 281 where he states:-
"Of
one thing I feel certain, that natural justice is not observed if the scales of
justice are tilted against one side all through the proceedings. 'Audi alterani
partem' means that both sides must be fairly heard. That is not done if one
party is allowed to send in his evidence in writing, free from the
truth-eliciting processes of a confrontation which are inherent in an oral
hearing, while his opponent is compelled to run the gauntlet of oral
examination amid cross-examination. The dispensation of justice, in order to
achieve its ends, must be even-handed inform as well as in content. Any lawyer
of experience would readily recall cases where injustice would certainly have
been done if a party or a witness who had committed his evidence to writing had
been allowed to stay away from the hearing, and the opposing party had been
confined to controverting him simply be adducing his own evidence."
Hamilton
CJ, omitted the last sentence but included a later passage from p 281:-
"Where
essential facts are in controversy a hearing which is required to be oral and
confrontational for one side but which is allowed to be based on written and,
therefore, effectively unquestionable evidence on the other side has neither
the semblance nor the substance of a fair hearing. It is contrary to natural
justice".
In
Kiely's case medical reports were given in written form to rebut a claim for
death benefit being claimed by a widow. Earlier, on page 281 Henchy J said:-
"This
Court has held, in cases such as In re Haughey, that Article 40, s 3, of the
Constitution implies a guarantee to the citizen of basic fairness of
procedures. The rules of natural justice must be construed accordingly.
Tribunals exercising quasi judicial functions are frequently allowed to act
informally -- to receive unsworn evidence, to act on hearsay, to depart from
the rules of evidence, to ignore courtroom procedures, and the like -- but they
may not act in such a way as to imperil a fair hearing or a fair result. I do
not attempt an exposition of what they may not do for, to quote the
frequently-cited dictum of Tucker LJ in Russell v Duke of Norfolk "There are,
in my view, no words which are of universal application to every kind of
inquiry and every kind of domestic tribunal. The requirements of natural
justice must depend on the circumstances of the case, the nature of the
inquiry, the rules under which the tribunal is acting, the subject-matter that
is being dealt with, and so forth".
B.
Nemo Iudex in sua Causa
In
Heneghan v The Western Regional Fisheries Board [1986] ILRM 225 the Plaintiff
was a Fisheries Inspector who held office with the Defendant Board. His terms
of employment provided that he could not be dismissed without full
investigation by the Board. The Board delegated its functions of 'deployment
and control of staff to its regional manager. A dispute arose between the
Plaintiff and the Regional Manager: purporting to exercise his power of
control, the manager suspended and then dismissed the Plaintiff. When the
Plaintiff sought a declaration that his dismissal was void, Carroll J granted
the declaration on two grounds; first, that the Plaintiffs contract required an
investigation by the Board itself, not a delegate, before he could be dismissed
and since no such investigation had taken place, the dismissal was void;
secondly, the dismissal was also void for want of natural justice (to which the
Plaintiff, as an office holder, was entitled) as a party to the dispute had
acted as prosecutor and judge. At page 228 under the heading Lack of Natural
Justice, Carroll J said:-
"Quite
apart from the contractual point, I am also of opinion that there was a lack of
natural justice in the way the dismissal was carried out. Mr Kennedy was the
prosecutor in the dismissal. It was at his instance, related to the behaviour
of Mr Heneghan 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.
Mr
Heneghan is an office-holder under the
Fisheries Act, 1980. Mr Kennedy is not
his employer. He is a fellow officer who is his supervisor. Mr Heneghan was
entitled to natural justice in regard to any suspension or any dismissal. He
did get notice of the grounds alleged against him and an opportunity to make
representations but there was no regard for the principle 'nemo iudex in causa
sua'. In my opinion it was highly objectionable that Mr Kennedy who is the
prime mover in the dismissal process, one of the main reasons for which was the
element of personal antagonism and whose version of facts was challenged by Mr
Heneghan, should decide the whole question. Assuming for the purpose of
deciding this point, that Mr Kennedy had been delegated power to dismiss (which
is doubtful,) he should have disqualified himself and referred the matter back
to the Board to decide in another way.
In
a much milder case, O'Donohue v The Veterinary Council [1975] IR 398 where a
member of the Council who voted to suspend a veterinary surgeon, had allowed
his name to be used as prosecutor in the inquiry preceding the resolution to
suspend, but otherwise took no part, it was held the decision was void because
the principle 'nemno iudex in sua causa' was not observed.
This
case is much stronger. Here Mr Kennedy was witness, prosecutor, judge, jury and
appeal court."
In
Tim Maher v Irish Permanent Plc an unreported judgment delivered on 29 August,
1997, Laffoy J was dealing with an application for:
(a)
an Order restraining the Defendant from terminating the Plaintiffs employment
with the Defendant save in accordance with the Defendant's disciplinary
procedure and the principles of natural justice; and (b) an Order reinstating
the Plaintiff to his position as manager of the Defendant's branch at Killarney.
The
Plaintiff was challenging the conduct of the investigation of sexual harassment
charges against him by the Defendant as being in breach of the Defendant's
disciplinary procedures and also his constitutional entitlement to fair
procedures. The Plaintiff denied the allegations and the Defendant decided to
convene an oral hearing in which there would be a face to face confrontation
between the Plaintiff and his accusers in aid of determining whether the
allegations were well founded. Laffoy J said that the Defendant was under a
duty to ensure that fair procedures appropriate to such a forum were
implemented. She continued at p20:-
"Having
regard to the multiplicity of the allegations against the Plaintiff and the
diverse nature of those allegations and, in particular, having regard to time
significance of credibility in determining whether the allegations of sexual
harassment were well founded, in my view, the Plaintiff was entitled to be
furnished with copies of the statements made by the staff members in advance of
the hearing and he was entitled to be legally represented at the hearing."
APPLICATION
OF THE LAW TO THE FACTS
I
take the view that in the present case credibility was very important in
determining whether the allegations of sexual harassment were well founded and,
in the absence of contemporaneous complaint and of independent testimony of a
corroborative nature in regard to the Complaint's allegations, in these
circumstances the Plaintiff was entitled to be furnished with a copy of the
statement made by the Complainant or at least a copy of the memo which
purported to be a record of her complaint.
As
the Plaintiff was purportedly dismissed on grounds of gross misconduct the
Defendant was obliged to ensure and the Plaintiff was entitled to expect that
the rules of natural and constitutional justice would be applied (see Paul
Gallagher v Revenue Commissioners and Ors (No 2) [1995] 1 IR 55 at p 61162 and
In re Haughey [1971] IR 217 at p 264)
The
requirements of Natural and Constitutional Justice are variable having regard
to the circumstances of the particular case. I find that on the evidence and in
the circumstances of this case there was non compliance by the Defendant with
the requirements of natural and constitutional justice.
The
procedures and conduct of the investigation adopted by the Defendant were
flawed and of basic unfairness for several reasons:-
1.
Failure to comply with Audi Alteram Partem
There
was a failure to comply with audi alteram partem, the principle that an
opportunity must be given for the other side to be heard. The actual manuscript
of the interviews made by Ms Hughes was not furnished. Even an amalgamated and
amended version with variations with additional complaints and matters added
was not supplied despite the strong and repeated demands of the Plaintiff and
his Solicitor. Such information as was given about the complaints was given
piecemeal and verbally. Even the memo of the statement taken on 19 January,
1999 was only outlined in part and was never furnished in full until after 12
March, 1999. This conduct was correctly characterised by Counsel for the
Plaintiff as trial by ambush in that the information about the complaints was
given "drip by drip" and the Defendant avoided giving one clear statement of
the accusations being made and what matters were likely to be taken into
account. This was effectively a negation of the role of the Plaintiffs
solicitor. If she had been given a proper statement or unexpurgated manuscript
note of the details of the complaint then the Plaintiffs Solicitor would surely
have explored the several inconsistencies therein and would have compared
contradictions in the versions from the Plaintiff as to what had occurred. She
would in all probability have sought to cross-examine the Complainant and might
well have sought to call other witnesses and have required that the Complainant
be confronted by the accused. This would have been reasonable in the context
particularly of his denial of her version of events, the lack of corroboration
of her account, the long time lag between 12 October, 1998 when the incidents
are alleged to have occurred and 21 December, 1999 when she first made her
complaint and also the apparently normal relations pertaining in the meantime.
Counsel
for the Plaintiff in closing laid particular stress on the point that Lie
decision maker here acted on the basis of information which had not been
disclosed to the Plaintiff. He referred to the medical report and the
statements from Delma Carroll and Siobhan Shanahan-Moloney. The symptoms noted
by Dr Gray, if the report had been made known to the Plaintiffs Solicitor,
would almost certainly have caused her to make inquiry into the Complainant's
life history. On this aspect Counsel referred to the decision of the Supreme
Court in Georgopoulos v Beaumount Hospital Board delivered on the 4 June 1997,
and particularly the statement at p 22 that:
"It
is submitted on behalf of the Appellant that the Irish Courts have accepted
that a breach of fair procedures occurs when a decision maker acts on the basis
of information which had been obtained outside of the hearing and which is not
disclosed to the party adversely affected. I unreservedly accept this
submission provided it relates to facts which are relevant to the matters in
issue before the tribunal."
Furthermore,
there was a failure to accord an opportunity to the Plaintiffs Solicitor to
make representations, observations and submissions at the conclusion of the
investigation stage and in respect of the contents of the draft report to the
decision maker and in regard to such sanctions as might be contemplated. The
Plaintiff and his Solicitor were advised at all times:-
(a)
that there was no accusation being made against him by the company;
(b)
that what was in train was an investigation only;
(c)
that an opportunity to make submissions would be afforded to the Plaintiff.
The
Plaintiff and his Solicitor were led to believe that at the conclusion of the
investigation the findings of the investigation and the report thereon would be
made available to them and that an opportunity to respond and to make
submissions thereon would be given before any decision would be made. The
Plaintiff and his Solicitor were entitled to expect that they would be able to
make representations in respect of discrepancies and inconsistencies and, if
appropriate, to respond to matters being taken into consideration by bringing
in the evidence of witnesses. They should also have been given the chance to
make submissions, if necessary, on the appropriate sanctions in the event of
the employer making an adverse finding against the Plaintiff.
2.
Failure to comply with Nemo Iudex in Sua Causa
There
was a failure to comply with nemo iudex in sua causa, the principle that no one
should be adjudicator in a case in which he has a personal involvement. The
report composed by Paul Adams and Deirdre Hughes ends with a recommendation for
dismissal
Both
in the affidavits sworn for the interlocutory hearing at paragraph 18 and in
evidence Paul Adams maintained that he had the role of decision maker. Counsel
or the Plaintiff contended that Paul Adams was involved in four roles, namely,
"witness, prosecutor, judge and jury". Furthermore it was put to Mr Adams in
cross-examination that there was already animosity between himself and the
Plaintiff. He denied this. The history of this friction was given by the
Plaintiff and I accept his evidence that he had been engaged originally by the
Hunt Museum Trust as an archaeologist with curatorial skills with cognisance
being taken in 1992 by Mr Lynch of salary scales for State archaeologists. In
April 1996 the Plaintiff initiated discussions with Mr Adams in respect of the
Plaintiffs status and salary. Mr Adams indicated that he regarded the Plaintiff
simply as a supervisor for salary purposes and suggested that the previous ten
years of service was only probationary. I have no doubt that Mr Adams was well
aware that the Plaintiff resented not only the ignoring of his qualifications
as an archaeologist in respect of salary grades but also his failure to reply
to a long and reasoned letter dated 4 February, 1998 from the Plaintiff in
respect of this which was rankling with the Plaintiff. This sense of grievance
in regard to the attitude of Mr Adams was further increased by the apparent
ignoring of two curatorial reports made by the Plaintiff in 1998 in respect of
the loss and deterioration of artefacts being allowed to take place under the
management of Mr Adams. I make no comment on these criticisms except to note
that Mr Adams must have been aware that the Plaintiff already felt that he was
getting a raw deal from Mr Adams and was being treated with contempt since his
careful letter of 4 February, 1998 had received no considered written response.
The Plaintiff had already been manager at Craggaunowen and at Lough Gur and had
been Director there and had been secretary to the Board of the Hunt Museum
Trust and it was not surprising that he resented being told that he was
regarded as a senior supervisor for salary and seniority purposes. After many
verbal and e-mail requests Mr Adams had agreed to meet the Plaintiff on 18
December, 1998. The meeting was unpleasant. The Plaintiff was horrified when he
was told that being an archaeologist was incidental to his duties. The
Plaintiff felt that, with his years of service and status as the only licensed
archaeologist in the Company and having been engaged in 1992 at a salary
related to the scale for archaeologists in State service, he was entitled to a
salary considerably greater than that on the scale for supervisors. This
grievance was unresolved on 18 December, 1998 nor had Mr Adams yet responded in
writing to the Plaintiffs letter dated 4 February, 1998. It must have been
quite clear to Mr Adams that the Plaintiff regarded his attitude towards him as
contemptuous and dismissive. The Plaintiff said that when Mr Adams became
General Manager he would say in jest: "the Philistines have taken over now."
This would appear to corroborate that Mr Adams was aware that his approach was
regarded as inimical to the Plaintiff.
It
was explained in evidence that the Defendant is a subsidiary of SFADCO which:
is a large State sponsored body. Ms Hughes as Human Resources Manager has a
staff of about ten working with her. Different considerations apply as to what
is a fair procedure in respect of investigation and adjudication in a small
firm employing a few people and in a large organisation such as the Defendant
with its integral relationship with SFADCO.
I
note that in paragraph 18 of his Affidavit sworn on 12 March, 1999 Mr Adams
said:-
"In
further reply to paragraph 21, I say that the only document that the Plaintiff
sought at any time was a copy of the "written complaint". I accept that I did
not supply him with a copy of the minute of 23 December, 1998, however I say
that there were no other documents upon which I based my ultimate decision."
I
accept his evidence that he was the decision maker. On his own evidence before
me it is quite clear that he had before him the statements of Delma Carroll and
Siobhan Shanahan -- Moloney and also that he took into account the contents of
the medical report. Accordingly I doubt his averment that "there were no other
documents upon which I based my ultimate decision".
It
is only in unusual circumstances in the employment context that a general
manager should not investigate and decide on such a complaint himself Mr Adams
should have realised that after the meeting on 18 December, 1998 that the
Plaintiff would have reservations about his capacity for objective
investigation and adjudication. I do not regard this aspect as conclusive but
it contributes to the overall accumulation of unfair conduct.
3.
NULLIFICATION OF ROLE OF PLAINTIFFS SOLICITOR AND OTHER ASPECTS
In
a case involving sexual allegations it seems strange that an experienced
personnel manager, who had to be aware of the sensitivity of such allegations
of sexual misconduct and the need for scrutiny of the veracity and reality of
such allegations, particularly where there was an absence of independent
corroborative evidence, should destroy her actual notes of the interviews and
even the amended type script. Perhaps a lawyer is more alive to the importance
of discrepancies, inconsistencies amid corrections as often constituting the
frayed ends of threads which, when pulled, can unravel the web if the textile
of a story is interwoven with untruths. The shredding of such notes prevents
scrutiny for clues to lack of veracity and effectively thwarts the fruits of
analysis by a lawyer. Having listened to the Plaintiffs Solicitor's concise
description of the several discrepancies in the memos which she received after
the dismissal, I am convinced that she would have had ample material justifying
the seeking of a hearing at which to test the Complainant's credibility. If the
Plaintiffs Solicitor had been given the Complainant's own version of events,
the statements of Delma Carroll and Siobhan Shanahan-Moloney and the medical
report obtained by the Defendants then it is quite clear from a comparison of
the memo of the interview on 19 January, 1999 with the amalgamated memo signed
on 5 January, 1999, finally extracted from the Defendants after the dismissal,
that there were significant variations and contradictions. An astute Solicitor,
such as the Plaintiffs Solicitor undoubtedly is, would have spotted and
explored the discrepancies and would have linked this to the time lag before
any complaint and the lack of corroboration.
The
Plaintiff was dismissed at about 11.00 am on 29 January, 1998. Mr Adams told a
meeting with the Plaintiffs colleagues at 11.30 am that the Plaintiff had been
dismissed and he sent a fax memo or e-mail informing about fifty of their
colleagues at Bunratty, Knappogue and in Aer Rianta of the dismissal. The
Plaintiff was upset by the speed of this spreading of the news of his dismissal
at a time when Mr Adams was telling him that he, Mr Adams, had not had time to
look out information on the appeal procedure offered.
Ms
Hughes repeated in her evidence on a number of occasions that the Complainant
was extremely upset when giving her version of events and that she was
hysterical and out of control at points as she tried to outline events. While
on the one hand her state of agitation must have impressed Mr Adams and Ms
Hughes with the seriousness and sensitivity of the situation, on the other hand
they must have been concerned by this impression of hysteria.
Counsel
for the Company submits that at no stage did the Plaintiff or his Solicitor
request that the Complainant or any other person would be made available for
cross-examination. Since the Plaintiff was unaware of the discrepancies in the
statements made by the Complainant and was unaware that the Company had in
their possession the statements from Delma Carroll and Siobhan Shanahan-Moloney
and the medical report from Dr Gray, it seems that, by not giving these
documents to the Plaintiffs Solicitors, the Company prevented the Plaintiffs
Solicitor from analysing the allegations being made by the Complainant and
thereby precluded her from making proper enquiries into inconsistencies and
matters which were in conflict in the versions given by the Complainant and the
Plaintiff.
This
course of conduct also precluded the Plaintiffs Solicitor from seeking to
cross-examine the Complainant or from making submissions with regard to the
contents of the Plaintiffs statement, the medical report and the two other
statements. While the Plaintiff was allowed to have his Solicitor at the
meetings, her efficacy was nullified because the Defendant prevented her having
an effective role by denying her the statements and the opportunities to make
representations and submissions.
If
the Complainant was prepared to sign a written memorandum of complaint, then it
is difficult to see the logic from her point of view of a refusal to allow this
to be furnished to the accused person, particularly if it was explained to her
that this would be necessary to ensure fairness to the Plaintiff.
THE
DEFENDANT'S CONTENTION THAT DECLARATORY RELIEF IS NOT AVAILABLE TO THE PLAINTIFF
Counsel
for the Defendant contended that the Plaintiff is not entitled to a declaration
simply to the effect that he is and continues to be employed by the Defendant
as project manager pursuant to a contract of service. They say that the
remedies available to a Plaintiff where he has been dismissed are either to
proceed under the Unfair Dismissals Act or alternatively to pursue a common law
claim for damages for wrongful dismissal. They submit that in Parsons v Iarnrod
Eireann [1997] ELR 203 the Supreme Court said that the traditional relief at
common law for wrongful dismissal was a claim for damages and whereas the
Plaintiff may have had an entitlement to declarations these were in aid of the
common law remedy and had no independent existence apart from it:-
"What
the
Unfair Dismissals Act, 1977 does is to give to the worker who feels that he
has been unfairly dismissed an additional remedy which may carry with it the
very far-reaching relief of reinstatement in his previous employment. It does
not limit the workers rights,' it extends them. At the same time
section 15 of
the
Unfair Dismissals Act provides that the worker must choose between suing
for damages at common law and claiming relief under the new Act.
Subsection 2
accordingly provides that if he claims relief under the act he is not entitled
to recover damages at common law; while
subsection 3 provides that where
proceedings for damages at common law for wrongful dismissal are initiated by
or on behalf of an employee the employee shall not be entitled to redress under
the Unfair Dismissal Act in respect of the same dismissal.
The
traditional relief at common law for unfair dismissal was a claim for damages.
The Plaintiff may also have been entitled to declarations in certain
circumstances such as, for instance that there was an implied term in his
contract entitling him to fair procedures before he was dismissed. But such
declarations were in aid of his common law remedy and had no independent
existence apart from it. If the Plaintiff loses his might to sue/or damages at
common law the heart is gone out of his claim and there is no other
free-standing relief which he can claim at law or in equity."
In
Parsons the declaratory relief was refused. The Plaintiff had been dismissed
and brought a claim for unfair dismissal. He thereby forfeited his right to
bring an action for damages for wrongful dismissal. The declaratory relief
sought in these circumstances could avail him nothing and was quite properly
refused. It is expressly stated that a Plaintiff may be entitled to declaratory
relief where there has been an employment term in his contract entitling him to
fair procedures before he is dismissed. The case is authority for the
proposition that declaratory relief is available unless precluded by the option
having been taken of making a claim under the
Unfair Dismissals Act.
While
in the distant past an action at common law for a declaration was unknown,
since the Judicature Acts the common law courts followed the chancery practice
of making declaratory judgments as an equitable remedy. In a number of Irish
cases the Courts have granted such declarations in purported dismissal cases.
FOE example, in Garvey v Ireland [1981] IR 76 the Supreme Court held that the
Plaintiff, The Commissioner of the Garda Siochana, was the holder of an office
and was not employed under a contract of employment; that the guarantee of fair
procedures provided by Article 40
s 3 of the Constitution applied to the
exercise by the Government of the power of removal conferred by s 6 subs 2 of
the Act of 1925; and that the purported removal of the Plaintiff was void since
the Government had not informed the Plaintiff of the reason for his removal and
had failed co give him, an opportunity to make representations in that respect.
In the High Court McWilliam J had made an Order declaring that the
Police
Forces Amalgamation Act, 1925 does not empower the Government of Ireland to
terminate the office of the Commissioner of the Garda Siochana at any time,
without prior notice, without giving reasons, without giving the holder of the
office an opportunity to make representations in relation thereto. The Supreme
Court dismissed the State's appeal and so the declaration stood. Since the
passing of the Chancery (Ireland) Act, 1867 and in particular Section 155 the
way has been open to the making of such a declaratory Order. Support for this
view is derived from O'Donnell v Dun Laoghaire Corporation ILRM 301 at page
311, where Costello J stated:-
"The
Chancery (Ireland) Act 1867 conferred, by s 155, jurisdiction on the courts to
make declaratory orders by providing that no action would be open to the
objection that a merely declaratory decree or order was sought and rules of
Court have since been made with similar provisions. The 1905 rules provided (by
O XXV r 5) that no objection could be taken to a claim merely because
declaratory relief was claimed by a Plaintiff and an identical provision is to
be found in the current rules (O 19, r 29)."
In
the present case the Plaintiffs are seeking an order that the purported
dismissal was in breach of natural and constitutional justice and accordingly
that such purported dismissal is without efficacy and invalid. It seems to me
that, if the procedure to terminate the Plaintiffs employment was invalid, then
a declaration is the appropriate relief. Such a declaration does not coerce a
reinstatement, which might be illogical or unnecessary, but it is declaratory
of the Plaintiffs rights and position. It also enables the Defendant to
proceed, if it wishes, in accordance with law to conduct a further inquiry and
to afford the Plaintiff an opportunity to vindicate his name.
CONCLUSIONS
I
have come to the conclusion that the General Manager did not act or adopt
procedures or conduct the inquiry in such a way as would have been done by a
fair and reasonable employer nor did he ensure that there was "fair play in
action" in respect of the employee. Reliance on frequent repetition of mantras
about affording a fair hearing and keeping an open mind as suggested in the
IBEC advices is no substitute for calm and reasonable consideration on the part
of an employer as to whether fair play is being accorded to an accused employee
in such manner as should be afforded by a reasonable and just employer. I have
no doubt that the principles involved in audi alteram partem were contravened
by the failure to furnish the copy statements and medical report and thus
preventing any effective representation by the Plaintiffs Solicitor.
With
regard to whether there was a contravention of the principle that no one should
be a judge in their own cause, I have reservations about this being as clear
cut in the employment relationship. However, I have come to the conclusion on
the balance of probabilities that the General Manager was well aware of the
Plaintiff's antagonistic feelings and belief that he was getting a raw deal
from the General Manager. In view of the linkage between the Defendant and
SFADCO, there were other persons who could have carried out the inquiry without
the taint of the suggestions of bias, motives for pre-judgment, lack of
impartiality and personal involvement.
The
effect of the findings are that the purported dismissal was invalid. No order
in respect of reinstatement is required (see Garvey [1981] IR 76 at p 89). In
essence the Plaintiff is seeking a declaration in the terms of paragraph 2 of
the plea in the Statement of Claim and an order for liberty to apply after the
parties have taken stock of the situation . . . I will hear Counsel for the
parties as to the form of the order to be made and I will give liberty to apply
for such further order as is required once the ramifications of this decision
have been considered by the parties.
There
is one final matter: the Affidavit of Discovery sworn on behalf of the
Defendant failed to disclose the sequence of destruction of the manuscript
notes of the interviews with the Complainant and also to reveal the existence
of advices from IBEC prior to Christmas 1998 and some subsequent notes of
advice from IBEC. Apparently the notes at the meetings on 23 December, 1998 and
of 19 January, 1999 were shredded. One would have thought that the Human
Resources Manager would have been only too well aware of a lie seriousness of
the allegations as she and the General Manager kept stressing this and that she
would have been aware of the need to keep the original statements in her file.
If the outcome of this case had been different, then the failure to make
discovery of several vital documents would have inclined me to make an Order to
the effect that the Defendant should have to bear a substantial part of the
costs, because the Plaintiff had been deprived of knowledge and sight of
documents of importance, the existence and significance of which he was
entitled to have taken in to his reckoning before coming in to Court.
I
reiterate that nothing in this judgment is intended to be or should be
construed as the expression of a view as to whether the allegations made
against the Plaintiff are well founded or not.
