The High Court 

Murphy v ACC Bank Plc

2000/474 P 

4 February 2000 

O'SULLIVAN J: 

On 11 January 1999 a customer of the Kilrush Branch of the Defendant Bank approached the Plaintiff (the manager of that Branch) outside the Bank's premises with £100,000 in cash in a bag for lodgment at that Branch. The Plaintiff contacted the internal audit department of the Defendant Bank for guidance but deposited the money in a new account before that guidance was given. Having telephoned the internal audit department on the next day, the 12 January, the Plaintiff sent a written memorandum confirming his request for advice. 

The depositor had been under investigation by the Criminal Assets Bureau (CAB) but told the Plaintiff on the 11th that these inquiries were completed. Subsequently the Plaintiff arranged a loan for the depositor with the Defendant Bank. These events and the surrounding events are more completely detailed in correspondence to which I will refer at a later point in this judgment. 

The Defendant says that these activities of the Plaintiff were in gross breach of any normal banking practice and of all relevant norms and standards. By accepting the money from the depositor and lodging it before the internal audit department had an opportunity to give advice the Defendant Bank was, it is submitted, put into a contractual relationship with the depositor which was wholly inappropriate and which subsequently tied its hands in its relationship with him. 

In the context of the Plaintiff arranging the subsequent loan, the Defendant complains that the Plaintiff failed to disclose relevant information available to him to the discredit of the depositor. 

By letter of 11 January 2000 the Plaintiff was dismissed. That letter reads as follows: 

"I refer to our meetings of 10 December 1999 and 17 December 1999 in the presence of your representatives. The following facts have now been established:- 

1. You have admitted receiving money in a plastic bag from a customer on 11 January, 1999 and without counting it or providing a receipt continued home for your dinner. You then held the cash overnight in Kilrush branch without putting in place the proper level of insurance cover. 

The above issues are contrary to all reasonable standards of good banking practice. Moreover they were done with the prior knowledge that the said customer was being Investigated by the Criminal Assets Bureau (CAB). 

2. Subsequent to accepting the cash you then asked Internal Audit for advice yet before they replied you took it upon yourself to lodge the said cash to a deposit account. 

This action is inexplicable particularly in light of the fact that you were sufficiently on your guard to phone Internal Audit to ask for advice in the first instance. 

3. You subsequently proposed a number of loans (for the same customer) to Area Credit Management yet failed to divulge any background character information on the said client despite becoming aware at a date unknown that:- 

a) CAB had not concluded their investigations into his affairs. 

b) That the CAB investigation was more than a TAX and VAT matter. 

c) That the said individual was implicated in assisting in an armed raid in Galway on 19 January, 1999 during which £300,000 in jewellery was taken. 

"Points a-c above were conveyed to you by Declan McGrath (of Internal Audit) after the lodgement of the £100,000. You initially stated at our meeting on the 10 December that you were aware of all these facts prior to the sanctioning of any loans by Area Office. Later during the same meeting you said that you weren't aware of the full extent of these issues until after the 15 March 1999 by which time Area Office had sanctioned these loans. 

"Even if one is to accept this point, you then proposed a £20k facility to credit in full knowledge of all this background information on the customer. 

"A very serious view is taken of all of the above matters as they reflect on your honesty, integrity and competence. Employees of the bank must have the highest degree of trust. The above actions taken by you in relation to these matters clearly breach this trust, question your honesty and are grossly incompetent. 

"Having considered all of the above and carefully taken on board the points made in your defence by your solicitor and union representative, the bank considers that we have no alternative but to terminate your employment with immediate effect. Any outstanding monies will be forwarded to you in due course. 

It is apparent from the text of that letter that the Plaintiff did not accept, and still does not accept, the entire of the averments therein recited. 

The relevant part of the procedures which the Defendant accepts governed the process to which the Plaintiff was entitled and which would have led up to the foregoing dismissal include at paragraph 5 under the heading 'Disciplinary Procedure': "The employee will also be informed of the charge or complaint against him/her". The Defendant accepts that it did not so inform the Plaintiff in explicit terms in writing although it does rely on a letter sent on 26 November 1999 and also on an averment to the effect that the Plaintiff was verbally informed of the charge against him. The letter of 26 November 1999 to the Plaintiff is signed by Patrick G Horgan, Area Manager Midlands West, and is headed 'Meeting with Alastair Purdy and Paddy Horgan'. Alastair Purdy, who has sworn affidavits on behalf of the Defendant in this matter general manager of human resources with the Defendant, or so signs himself in the dismissal letter. The text of the letter of 26 November 1999 is as follows: 

"The Agenda for this Meeting is in my view to seek explanations why:- 

1. The Area Office were not advised of important information when asked to approve loan applications. 

The information concerned is: 

a) The known CAB involvement. 

b) The numerous allegations and rumours circulating locally in regard to drugs, arson, robbery and thugery. 

c) Their reputation. 

2. Explore your views on creating exposures in such situations, even if you expected the information as outlined above to be supplied by another party. 

I enclose copies of the loan applications including your Reports which are the only relevant documents." 

I note from that letter that there is no reference whatsoever to the events of 11 January 2000 wherein the Plaintiff accepted money from the depositor, lodged it and sought advice. That letter is concerned with the subsequent issuing of loan approval on loan applications. 

Following receipt of this letter the Plaintiff communicated with the Defendant on a number of occasions. I would refer to two communications, one dated 25 November 1999 to Alastair Purdy in which the Plaintiff says: 

"I refer to yours of 23rd instant and advise that due to the proximity of notification to the above meeting, and being unable to arrange for representatives to attend, I wish to have the proposed meeting re-scheduled to a later date. 

"Prior to such meeting being arranged, I wish to be notified of the agenda of same and in addition, if I am to be required to comment on any documents or memos, I wish to be supplied in advance with copies of any such documents." 

On 3 December 1999 the Plaintiff wrote to the same individual. Without citing this communication in full, it is clear therefrom that the Plaintiff was seeking details in relation to the internal reporting procedures in force in the period of 1 January 1999. 

From this and other correspondence in the case it seems to me that it is not fair to say that the Plaintiff was clearly aware of the charges which were being made against him by the Defendant, nor was he aware of the fact that he was facing the gravest of the potential disciplinary sanctions referred to in the document dealing with the procedures, namely: dismissal. The Defendant submits that it was not obliged to inform the Plaintiff of these charges in writing. That may be so. However, if so, then in my view the Defendant takes on the onus of satisfying the test laid down in the Supreme Court by Barrington J in Mooney v An Post (judgment delivered on 20 March 1997) at page 18 to the effect that ". . . the minimum he is entitled to is to be informed of the charge against him . . ." and that he must be given an opportunity to deal with it. 

Apart from a lack of clarity in the present case as to what precisely were the charges against him, in my view it would not have been clear to the Plaintiff as to which of the range of potential sanctions he was facing: from dismissal down to a verbal warning. 

On this interlocutory application it is my opinion that the Plaintiff has made out a case that a substantial question falls to be tried at the hearing of the action, namely: as to whether the Defendant complied with its procedures, in particular in regard to the part thereof to which I have referred. Having reached that conclusion I do not therefore have to deal with the other suggested questions for trial, questions which the Plaintiffs Counsel submits have also been established. Before leaving this topic I should add that Counsel for the Defendant has submitted (not very forcefully, I think) that these breaches were so grave that they would have entitled the Defendant to dismiss the Plaintiff instantly. In my view these alleged breaches may well come close to reaching that category but the Defendant, by adopting the procedures which it did, has accepted that the breach is not in that category because the procedures apply. 

I move now to consider the question of damages in the overall context of the balance of convenience. In Harte v Kelly (judgment delivered on 16 July 1997) Laffoy J dealt with a case where the Plaintiffs only income was from the Defendant. For that and other reasons therein recited she took the view that damages which would be payable at or, after the trial, assuming the Plaintiff succeeded, were not an adequate remedy. 

Here the Plaintiff is in a similar situation to the Plaintiff in that earlier case. He is from a small close-knit community. He has decades of service with the Defendant and has dependent family responsibilities. In the event that the Plaintiff succeeds, I do, not think that the payment thereafter of damages will prove to be an adequate remedy given that the Plaintiff's only source of income is his salary from the Defendant and given that he has ongoing financial obligations to the members of his family. In my view the disruption caused would be disproportionate in the circumstances of this case. If the Plaintiff is in receipt of salary or of any moneys from the Defendant pending the hearing of his case, he has given an undertaking to recoup such moneys to the Defendant on the basis of his undertaking as to damages. He also says that he is anxious to do any work as the Defendant requires. His Counsel submits that he would also be entitled to an order directing the Defendant to continue him in his present employment if the Court were to come to the conclusion that there was no objective basis for the Defendant's decision to dismiss. Far from reaching such a conclusion, I have already commented that the breaches complained of by the Defendant in this present case may well, if such is the law, reach a category justifying instant dismissal. I have not, of course, had to deeply consider this point. Certainly I could not go any length of the way in agreeing with the submission on behalf of the Plaintiff that the Defendant lacks an objective basis for its view. 

In these circumstances I consider that the Plaintiff is entitled to interlocutory relief. Subject to any detailing of phraseology that Counsel may wish to submit, I propose in principle to grant the Plaintiff an order in the terms of paragraphs 1 and 4 of the Notice of Motion pending the hearing of the case. In this context I am noting the undertaking of the Plaintiff as to damages. I should add that I will be making whatever arrangements are appropriate to ensure a speedy trial of the Plaintiffs case against the Defendant.