Maher v. Irish Permanent plc [1997] IEHC 150; [1998] 4 IR 302 (29th August, 1997)

1. In September 1985, the Plaintiff was appointed Branch Manager of the Defendant's branch at Killarney, County Kerry. On 30th August, 1996, the Plaintiff was suspended from that position, without loss of pay or benefits, pending the outcome of an investigation by the Defendant into allegations made against the Plaintiff by an official and a local representative of the MSF trade union ("MSF") representing a number of staff members in the Killarney branch. Following an investigation, on 2nd October, 1996, the Plaintiff was notified of the Defendant's decision to dismiss him, but that the decision would not be finalised until 5.30 p.m. on 9th October, 1996, thus allowing the Plaintiff time to make any representation as to why the decision should not be implemented.

6. The code provides that, if the employee's conduct or performance continues to be unsatisfactory after a final written warning, he or she will be dismissed. If it is decided by the Defendant that the employee should not be dismissed but that some form of disciplinary action should be taken, such action, for example, demotion, deferment of increment, or withdrawal of other benefits, may be implemented. At all stages of the procedure when an employee is interviewed by his or her line manager, he or she may be represented by a colleague. The code specifically provides that the foregoing procedure applies to first breaches and that subsequent breaches will be dealt with by only one written warning.

7. The second section of the code governs the disciplinary action to be taken in the case of gross misconduct and provides that an employee who has committed, or is suspected or having committed, a breach of discipline which amounts to gross misconduct, may be suspended immediately pending investigation and, at the discretion of the Defendant, the suspension may be with full pay. The investigation will be carried out at quickly as possible. The employee is entitled to be informed of the nature of his or her misconduct and given an opportunity to state his or her case. If the Defendant decides that gross misconduct has taken place, the employee will be dismissed. Alternatively, if it is decided that some degree of blame attaches to the employee, the company may implement disciplinary action such as demotion, deferment of increment or withdrawal of other benefits.

8. The third section of the code gives an employee the right to appeal against any disciplinary action taken against him or her by recourse to the grievance procedure. It is provided, however, that where the decision of the Defendant is dismissal, the employee will be suspended on notice of dismissal for one week before the dismissal is implemented to allow for representation. The statutory rights of the employee under the Unfair Dismissals Act, 1977 are expressly acknowledged.

9. The Defendant also has procedures in place for ensuring equal opportunities for all its employees and for dealing with discrimination, including discrimination on the basis of sex. These procedures provide that no employee should be subjected to sexual harassment of any kind from any other employee and that instances of sexual harassment should be reported to management and will be dealt with in strictest confidence through the grievance and disciplinary procedures.

12. On 16th February, 1996, the Plaintiff was given a verbal warning by his superior, Philip Mongan ("Mr. Mongan"), arising out of two allegations of sexual harassment which had been brought to Mr. Mongan's attention but of which there had not been official complaints. I am satisfied, on the evidence, that the Plaintiff tacitly, if not expressly, accepted the verbal warning.

13. At the end of February and at the beginning of March 1996, the four other staff members in the Killarney branch met with Donal Garvey ("Mr. Garvey"), the Plaintiff's immediate superior, twice at their request and made allegations against the Plaintiff. Subsequently, on 25th March, 1996, the staff members wrote to Mr. Garvey outlining various further incidents which they alleged had occurred since the meetings. The Plaintiff was requested to attend a meeting at the Defendant's head office in Dublin on 27th March, 1996. He attended without representation and without having been furnished with an agenda for the meeting or with written details of the allegations against him. As a result of the meeting, a final written warning issued to the Plaintiff on 28th March, 1996. In it, the issues which had been discussed at the meeting were outlined, namely:-

14. The Plaintiff was warned that, if further complaints of a similar nature were received from customers or colleagues and found to be accurate, the Defendant would have no option but to terminate the Plaintiff's employment. It is clear from the evidence that the Plaintiff implicitly accepted the final written warning and attempted to make amends with the staff in the branch.

15. On 30th August, 1996, a local staff representative and a full-time official of MSF, representing the four staff members in the Killarney branch, complained to the Defendant about alleged incidents of sexual harassment, bullying, intimidation and operational breaches on the part of the Plaintiff and intimated that the staff members were no longer prepared to work with the Plaintiff and threatened to put a picket on the Killarney branch. In consequence of these complaints, David Iredale ("Mr. Iredale"), the Defendant's Head of Human Resources, decided to suspend the Plaintiff with pay pending the investigation of the complaints. The Plaintiff was notified of his suspension by telephone at around 4.30 p.m. on Friday 30th August, 1996. Mr. Iredale also contacted Mr. Joseph Pitcher ("Mr. Pitcher"), who is the manager of the Defendant's branch at Blanchardstown, County Dublin, and is the special representative elected by the membership of the Management Association which represents the interests of managers employed by the Defendant, and advised him of the suspension. Mr. Pitcher contacted the Plaintiff that evening. At that stage, the Plaintiff was not aware of the precise reasons for his suspension. He requested that Mr. Pitcher represent him.

16. The investigation of the complaints took the following course. Mr. Iredale met with three of the staff members in the Killarney branch on 3rd September, 1996. The MSF local representative was also in attendance. Mr. Iredale was given four typed pages of complaints by the staff against the Plaintiff in relation to alleged incidents of mistreatment and operational breaches which had occurred since the final written warning issued to the Plaintiff at the end of March 1996. There was no allegation of sexual harassment amongst the complaints. Mr. Iredale did not interview the staff members individually nor did he take individual statements from them. The arrangement was that the staff members would furnish individual written statements. On the 4th or 5th September, 1996, Mr. Iredale received written signed statements from three staff members, Mary Walsh, Yvonne Flynn and Dermot Cronin. In their respective statements, Mary Walsh and Yvonne Flynn both made allegations of sexual harassment against the Plaintiff. On 6th September, verification was sought from each of the three staff members on points arising from their statements and, on the same day, each staff member furnished written signed clarification on the points raised.

18. By letter dated 10th September, 1996, the Plaintiff was requested to attend a meeting at the Defendant's head office in Dublin on 17th September, 1996. Lists of the matters to be discussed at the meeting were enclosed. There were six lists in all. The first list was, in effect, the agenda for the meeting. The first item for discussion was whether the Plaintiff was guilty of any wrongdoing or breach of duty or of contract under the following headings:-

19. The second item for discussion was whether, in the event of the Plaintiff being found guilty of any such wrongdoing, he was incapable of performing his duties as an employee of the Defendant. The remaining five lists contained particulars of the allegations in relation to each category of alleged wrongdoing. There were eleven allegations of unacceptable behaviour with female colleagues, six allegations of unacceptable behaviour in dealing with female customers, fifteen allegations of damaging staff morale, eight allegations of damaging the reputation of the Defendant in the South Kerry area, and two allegations of breaches of policies and procedures. On 16th September, 1996, Mr. Iredale furnished to Mr. Pitcher further details of some of the allegations which appeared on each of the five lists and, in addition, Mr. Pitcher was given details of allegations which had been made by staff members but which were not being pursued by the Defendant.

20. Mr. Pitcher was effectively representing the Plaintiff's interest from 2nd September, 1997 and was in frequent contact with Mr. Iredale. Before Mr. Iredale went to Killarney on 3rd September, 1996 to interview the staff members, Mr. Pitcher specifically requested that the staff members be interviewed separately and that a full statement be taken from each on the day, as Mr. Pitcher believed that this course was necessary to ensure that the Plaintiff's rights were not infringed. Although he sought copies of the staff members' statements, these were not furnished to Mr. Pitcher. The only documentation he had been furnished with prior to the meeting on 17th September, 1996 consisted of the Plaintiff's personnel file, the agenda and list of allegations furnished on 10th September, 1996 and the further details furnished on 16th September, 1996.

21. Prior to the meeting on 17th September, 1996, the Plaintiff had met with Mr. Pitcher and David O'Neill ("Mr. O'Neill"), another representative of the Management Association, on a number of occasions. The Management Association representatives had consulted their own solicitors, Messrs. Bowler Geraghty & Company, in relation to the Plaintiff's position on a number of occasions and the Plaintiff had been present at a consultation with Messrs. Bowler Geraghty on 2nd September, 1996. At the meeting on 17th September, 1996, the Defendant was represented by Mr. Iredale, Mr. Mongan and Frank Singleton. Mr. Pitcher and Mr. O'Neill accompanied the Plaintiff. The meeting lasted three and a half hours. Following representations made by Mr. O'Neill on behalf of the Plaintiff and a statement made by the Plaintiff, each of the allegations on the five lists of allegations was put to the Plaintiff and the Plaintiff responded to each of them. A minute of the meeting has been put in evidence and the Plaintiff acknowledged in evidence that the minute is a reasonably accurate record of his responses to the allegations at the meeting. The minute does not give any impression that the Plaintiff was hindered in responding to any allegation because of any lack of clarity or detail as to what was being alleged. At the end of the meeting, it was agreed that the Defendant's representatives would have to consider the Plaintiff's responses and deliberate on what course of action would ensue.

22. By 20th September, 1996, Mr. Iredale had determined on the course he proposed adopting. He wrote to the Plaintiff on that day requiring him to attend a meeting on the following Friday, 27th September, 1996 at a hotel in Limerick. The Plaintiff was told that he was entitled to be accompanied by Mr. Pitcher and Mr. O'Neill at the meeting. The staff who had made allegations would be present at the meeting and would be accompanied by their representative. It was intended that four separate meetings would take place involving the respective staff member and his or her representative and that the Plaintiff would be afforded the opportunity to question each staff member regarding his or her allegations.

23. The Plaintiff had first consulted Mr. Ó Catháin, a solicitor practising in Cork city, on 13th September, 1996. Before or on 24th September, 1996, it was intimated to Mr. Iredale through Mr. Pitcher that the Plaintiff required to have legal representation at the meeting on Friday 27th September, 1996. By letter dated 24th September, 1996 to the Plaintiff, Mr. Iredale stated that the Defendant required the Plaintiff to formally make the request to be accompanied by a solicitor in writing and, additionally, to state the name of the solicitor and his or her practice and the reasons why both management representation and legal representation was required. A deadline of 5.00 p.m. on the following day, 25th September, 1996, was imposed for a response. That letter precipitated correspondence between the Plaintiff's solicitors, Ó Catháin & Co., on the one hand, and the Defendant and the Defendant's Chief Legal Officer, on the other hand, and ultimately these proceedings. It is necessary to consider that correspondence in some detail.

24. The opening sally was a letter which was faxed on 26th September, 1996 from the Plaintiff's solicitors to Mr. Iredale. This letter expressed outrage at what was perceived as an attempt by the Defendant by the letter of 24th September, 1996 to refuse legal representation to the Plaintiff and to require him to obtain the Defendant's consent to his choice of solicitor. The letter contained the following demands:-

25. The Defendant's solicitor responded by a letter of the same date, 26th September, 1996, which was transmitted by fax on that day. Apropos of the Plaintiff's solicitors' perception of the letter of 24th September, 1996, it was pointed out that it was not a refusal of a right to legal representation or the Defendant's veto on a choice of solicitor. It was pointed out that the Plaintiff was an employee of the Defendant and that he was expected to attend the meeting in Limerick on the following day. If he wished to bring a legal adviser, he must reply to the letter of 24th September, 1996 and the time limit for so replying was extended to 5.30 p.m. on that day, 26th September, 1996. The demands made by the Plaintiff's solicitors were answered as follows:-

26. Finally, it was intimated that, if the Plaintiff did not attend the meeting on the following day, Mr. Iredale would proceed in his absence. On receipt of that letter, the Plaintiff's solicitors responded by a letter of the same day, 26th September, 1996, and this response was also transmitted by fax on that day. The thrust of this letter was to reiterate the demands contained in the earlier letter and to contend that the Plaintiff and his freely chosen representatives were entitled to the information and documentation and were entitled to adequate time within which to consider it before responding to it. It was pointed out that, if the Defendant proceeded with the hearing on the following day in his absence, it would do so at its own risk. The final letter in the series was the response from the Defendant's solicitor which was dated 27th September, 1996 and which was transmitted by fax on that morning. In relation to the Plaintiff's demands, the Defendant's position, as set out in its solicitor's letter of the previous day, was restated. It was stated that, while the Defendant had not received any reasons why legal representation should be allowed, if the Plaintiff attended the meeting that morning he would be allowed to have a legal adviser present.

27. The meeting in Limerick on 27th September, 1996 went ahead, although neither the Plaintiff nor any representative on his behalf was present. Mr. Pitcher and Mr. O'Neill had ceased to represent the Plaintiff when his solicitors, Ó Catháin & Company, had entered into correspondence with the Defendant. The meeting was attended by Mr. Iredale, Mr. Mongan and Mr. Garvey on the employer's side. Three of the staff members, Mary Walsh, Yvonne Flynn and Dermot Cronin, were in attendance and they were accompanied by a local MSF representative, by a full-time MSF official, by a solicitor and by Counsel. It had been intimated to Mr. Iredale by MSF that the staff members required legal representation at the meeting and, on 24th September, 1996, Mr. Iredale wrote to MSF in terms similar to his letter of that date to the Plaintiff. On 25th September, 1996, the Defendants received a letter from Spring Murray & Company, Solicitors, stating that the staff members had requested them to attend to advise as the need should arise and that a solicitor from their firm, accompanied by Counsel, would attend the hearing. Minutes of the meeting have been put in evidence. These disclose that Mr. Iredale questioned each staff member in relation to his or her allegations. Counsel for the staff members was permitted to question the staff members and to raise matters with Mr. Iredale.

28. By letter dated 27th September, 1996 from Mr. Iredale to the Plaintiff, the Plaintiff was apprised that the Defendant had completed its investigation into the allegations and was instructed to attend a meeting with Mr. Kane at head office in Dublin at 3.00 p.m. on 2nd October, 1996 to discuss the investigation and his refusal to obey the instruction to attend at the meeting in Limerick on that day. Following intervening correspondence between the Plaintiff's solicitors and the Defendant's solicitor, it was confirmed by a letter of 2nd October, 1996 from the Defendant's solicitor that Mr. Ó Catháin, the Plaintiff's solicitor, would be allowed attend the meeting with Mr. Kane and that the Defendant's solicitor would also be in attendance.

29. Prior to the meeting of 2nd October, 1996, Mr. Iredale had presented a report on his investigations into the allegations against the Plaintiff to Mr. Kane in which he set out his findings that the relationship between the Plaintiff and his staff had deteriorated to a level that was totally unacceptable, that the Plaintiff's behaviour in his dealings with female staff members amounted to gross misconduct, that it was reasonable to assume that the allegations relating to female customers were substantially correct and amounted to gross misconduct, and that the Plaintiff's management of business procedures and of policy within the branch was also unacceptable. Based on these findings, Mr. Iredale recommended that the Plaintiff's employment with the Defendant be terminated. He submitted to Mr. Kane with the report certain documentation including the minutes of the meeting of 27th September, 1996. At the meeting of 2nd October, 1996, copies of the report and the minutes were tendered to the Plaintiff and they were accepted by Mr. Ó Catháin for information purposes only. The Plaintiff, through his solicitor, declined an invitation to make representations and intimated that representations would be made at the appropriate time in the appropriate manner. Mr. Kane told the Plaintiff that a decision to dismiss the Plaintiff was warranted but that the decision would not be finalised for one week and that he would have an opportunity to make representations. Following the meeting, Mr. Kane wrote to the Plaintiff by letter dated 2nd October, 1996 confirming that the Defendant's decision was to dismiss the Plaintiff but that, in accordance with the disciplinary procedure, the decision would not be finalised until 5.30 p.m. on Wednesday 9th October, 1996.

30. As I said at the outset, the plenary summons initiating these proceeding was issued on 2nd October, 1996. By Order of this Court made by McCracken J. on 25th October, 1996, it was ordered that the Defendant be restrained pending the trial of this action from taking any further steps to terminate the Plaintiff's employment with the Defendant or otherwise to seek to attempt to implement his purported dismissal on the basis that the Plaintiff would remain suspended from his position without pay and would not attend at the Killarney branch of the Defendant.

31. It is agreed between the parties that the Court is not concerned with whether the allegations against the Plaintiff, which gave rise to the investigation, were well founded. The Court is only concerned with whether the Defendant, in conducting the investigation and in dealing with the Plaintiff, complied with its own disciplinary code and had regard to fair procedures.

32. Counsel for the Plaintiff challenged the validity of the suspension and of the decision to dismiss on the ground of breach of the Defendant's disciplinary code and its contractual obligations to the Plaintiff and also on the ground of failure to comply with fair procedures. He contended that at every stage the procedure was tainted with unfairness and pointed to:-

(6) proceeding with the oral hearing on 27th September, 1996 in the absence of the Plaintiff, who was justified in not attending, because the hearing would inevitably be an unfair hearing given that the Plaintiff had not been furnished with the documentation he had sought and which he had been advised he needed in order to rebut the allegations which would be made at the hearing.

33. On behalf of the Defendant, it was submitted that the Plaintiff had complied with the disciplinary code and with its contractual obligations to the Plaintiff and had conducted the investigation in accordance with fair procedures. The Plaintiff had acquiesced the investigation and the procedures adopted up to 26th September, 1996. He had gone to the meeting on 17th September, 1996 with the benefit of prior legal advice and of management representation and he had been able to respond to all the charges made against him at that meeting. The Defendant was not conducting a tribunal; it was conducting an internal investigation in relation to its employee. The Plaintiff's conduct after 17th September, 1996 amounted to obfuscation and obstruction. The Plaintiff was not prepared to face his accusers. The letter of 24th September, 1996 was neither a refusal of legal representation nor an interference with the Plaintiff's choice of legal adviser. The Plaintiff deliberately chose spurious grounds for non-attendance. He had been instructed to attend and, as he was an employee of the company who was suspended on full pay, who was being given an opportunity to explain his position, he should have attended. The Defendant had a duty to protect its younger and more junior staff. The procedure arranged for 27th September, 1996 was the best conceivable example of fair procedures and the Defendant was not under any obligation to postpone the hearing merely because the Plaintiff did not comply with the instruction to attend. The Plaintiff chose not to make any representations to Mr. Kane on 2nd October, 1996 or within the following week although he had an opportunity to do so. The Plaintiff has not established his case, it was contended.

34. Since the decision of the Supreme Court in Glover -v- BLN Limited [1973] I.R. 388, it has been recognised 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 (see the judgment of Walsh J. at page 425).

35. If there could have been any doubt as to whether this principle applies to an agreement regulating the relationship of an employer and an employee, such doubt must have been dispelled by the decision of the Supreme Court in Gunn -v- Bord an Cholaiste Naisisiunta Ealaine is Deartha [1990] 2 I.R. 168. Commenting on passages from the judgments of Walsh J. and McCarthy J. in that case, Barrington J. in delivering judgment in the Supreme Court in Mooney -v- An Post on 20th March, 1997 stated:-

"... 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's 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".

36. It was pointed out by Barrington J. in Mooney -v- An Post , that what the justice of a particular case will require will vary with the circumstances of the case, for example, in a case involving a contract of employment, whether it stipulates the procedure to be followed in dismissing an employee for misconduct or not. If no procedure is stipulated, 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. The minimum an employee is entitled to is to be informed of the charges against him and to be afforded an adequate opportunity to rebut or attempt to rebut them.

37. The extent to which an employer, in adjudicating on charges of misconduct against an employee, is constrained by the requirement to adhere to basic fairness of procedures was considered by the Supreme Court in Gallagher -v- The Revenue Commissioners (No. 2) [1995] 1 I.R. 55. Hamilton C.J. adopted the following passage from the judgment of Henchy J. in Kiely -v- The Minister for Social Welfare [1977] IR 267 at page 281:-

38. On 30th August, 1996, the Defendant was confronted with allegations about the behaviour and conduct of the Plaintiff made by the staff members in the Killarney branch through their trade union representatives, which were represented as being so serious that the staff members could no longer work with the Plaintiff and were prepared to embark on industrial action to have the situation redressed. Having regard to what had transpired in February and March 1996, in my view, the Defendant was justified in suspecting the Plaintiff of a breach of duty which constituted gross misconduct and was justified in suspending the Plaintiff on full pay summarily pending the investigation of the allegations. Under the disciplinary code, the Plaintiff was entitled to have the allegations investigated promptly and he was also entitled to be informed of the allegations and to be given an adequate opportunity to rebut them.

39. In my view, the Defendant embarked on and conducted the investigation into the allegations with due promptness. Moreover, in my view, the Defendant strove to conduct the investigation fairly and with due regard to proper procedures up to and including the meeting on 17th September, 1996. While it would have been preferable had a senior management figure interviewed each complainant separately and obtained a signed written statement of his or her allegations, weeding out as far as possible allegations based on hearsay, while simultaneously clarifying any points which needed to be clarified, one has to have regard to the practicalities of the situation and, in particular, the necessity to conduct business at the Killarney branch as normal, or as near to normal, as was possible, and the necessity of carrying out parallel investigations in Dublin and of keeping Mr. Pitcher apprised of the course of the investigation.

40. Having regard to the decision taken following the meeting on 17th September, 1996, the only reasonable inference which can be drawn is that Mr. Iredale and his colleagues were not satisfied that a determination could be made as to whether the allegations against the Plaintiff were well founded without convening an oral hearing of the type planned for 27th September, 1996. It was the Defendant which chose the forum 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 and the Defendant was under a duty to ensure that fair procedures appropriate to such a forum were implemented. Having regard to the multiplicity of the allegations against the Plaintiff and the diverse nature of those allegations and, in particular, having regard to the 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.

41. It was not made clear to the Plaintiff until the morning of the hearing that he would be allowed legal representation, if he attended at the hearing. This was far too late given that the Plaintiff resided in Killarney, his solicitor practised in Cork and the meeting was to be held in Limerick. It was also far too late given that the Defendant had been notified two days earlier that the staff members would be represented at the hearing by a solicitor and Counsel. The stance adopted by the Defendant in relation to the meeting of 27th September, 1996 in advance of that meeting imperilled a fair hearing and a fair result. In the absence of the Plaintiff and his legal representative, the hearing was not a fair hearing because only one side of the story emerged and there was no one to rebut, or to attempt to rebut, that version. That one sided hearing could not and did not present a fair result. In my view, the blame for this cannot be ascribed to the Plaintiff.

42. The decision made on 2nd October, 1996 to dismiss the Plaintiff was based on the recommendation of Mr. Iredale which, in turn, was informed by what transpired at the meeting in Limerick on 27th September, 1996. The decision to dismiss, being based on a hearing which contravened the most elementary requirement of fair procedures, in that it was conducted in the absence of the person against whom the allegations were made, cannot stand. Accordingly, the Plaintiff's employment with the Defendant did not terminate on the 9th October, 1996 and subsists.

45. As no argument was advanced that the suspension of the Plaintiff, which, in effect, was suspension without pay from 25th October, 1996, became invalid at some stage after 30th August, 1996, as opposed to being invalid ab initio, I express no view on this point. Moreover, nothing in this judgment is intended to be or should be construed as the expression of any view as to whether the allegations made against the Plaintiff are well founded or not.

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Maher v. Irish Permanent plc [1997] IEHC 150; [1998] 4 IR 302 (29th August, 1997) URL: http://www.bailii.org/ie/cases/IEHC/1997/150.html Cite as: [1998] 4 IR 302, [1997] IEHC 150

High Court of Ireland Decisions

Maher v. Irish Permanent plc [1997] IEHC 150; [1998] 4 IR 302 (29th August, 1997)