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Fanning v. University College Cork [2002] IEHC 85 (25 July 2002)

THE HIGH COURT

Record No. 2001/15653P

Between

CONNELL M. FANNING

Plaintiff

-and-

UNIVERSITY COLLEGE CORK

Defendant

Judgment of Mr. Justice Vivian Lavan delivered on the 25^th day of July, 2002.

I heard this case commencing on the 11th of June 2002 and thereafter on the 12th, 13th, 14th, 18th and 19th days of June.

1.      The evidence of the plaintiff and his secretary and the evidence adduced on behalf of the defendant took little over a day. The remainder of the six days of trial included a very lengthy opening and concluded with two days of closing submissions.

2.      In his statement of claim the plaintiff claims extensive reliefs as is hereinafter set out. The defendant's defence denies the plaintiff's entitlement to the reliefs sought and it runs to some 57 separate pleas. Of those pleas the following were not relied upon at the hearing of the action before me, namely, paragraphs 42, 43, 44, 45, 46, 47, 48, 51, 52, 53, 54, 55.

3.      The plaintiff set out an elaborate case. In order to establish that case he gave evidence. It was evidence totally lacking in candour and clarity. It was delivered in a defensive and a limited fashion and far from telling the truth, the whole truth and nothing but the truth it was an exercise in skirmishing and avoiding the issues. I doubt if I have heard another witness who was as less convincing. The plaintiff is a very overbearing and self righteous personality who considers that once he has convinced himself of his righteousness that is the end of the matter.

4.      I do not accept the plaintiff's evidence. Undoubtedly unhappy differences have arisen between the plaintiff and various members of the defendant's staff which ought to have been resolved out of Court without the necessity for this action and other actions which the plaintiff is involved in against the University.

5.      It is an essential rule of law that he who seeks equity must come with clean hands. With great regret I conclude that this plaintiff has signally failed to do this.

6.      For completeness sake I will set out the various submissions made on behalf of the plaintiff and rejected by the defendant. These seem to be moot having regard to the findings I have made of the plaintiff and the evidence which he has given and which I reject.

1. Introduction

7.      This case arises out of an incident that occurred on 31st August, 2001 involving the plaintiff, Mr. Connell Fanning, Professor of Economics and Head of the Department of Economics at University College Cork (UCC) and Ms. Joan Buckley, who at that time was an employee at the Language Centre at UCC, the defendant in these proceedings. This incident occurred at lunch time and out-of-term in a staff car park in the grounds of UCC. The plaintiff and the Ms. Buckley had not and would not normally come upon each other when engaged in their respective employment, and the incident was the first time they met. According to the account of the plaintiff, immediately prior to the incident, the plaintiff was walking his dog in a car park adjacent to Aras na Laoi, where the Department of Economics is located, and was talking to his wife on the phone. The dog was near to a car that moved forward, and when the plaintiff apprehended that there was some danger to the dog, words were exchanged between the plaintiff and Ms. Buckley, who was driving the car. Ms. Buckley alleged that she was assaulted by the plaintiff, an allegation strenuously denied by Mr. Fanning.

8.      Ms. Buckley made a report of this incident in a latter dated 4th September, 2001, to the Director of Human Resources at UCC, Mr. Noel Keeley. The letter was given to two officials of the Human Resources Department by Ms. Buckley at a meeting with them on 7th September, 2001. At paragraph four of the submission of UCC, it is stated that Ms. Buckley approved the record of 7th September, 2001 on 12th September, 2001. On 5th October, 2001, Mr. Keeley informed the plaintiff that Mr. John Horgan had been appointed to investigate the incident. Mr. Horgan was a former chairman of the Labour Court. In the meantime, threats of litigation had been exchanged between the plaintiff and Ms. Buckley. However, on or about 16th October, 2001, the plaintiff and Ms. Buckley came to what the plaintiff avers, but which the defendant denies, to be an "amicable resolution" of their differences; in any event, in a letter of that date, solicitors for Ms. Buckley stated in a letter that she wished to put the incident behind her and did not intend to take any further steps in pursuance of it. In a letter dated 15th October, 2001, Ms. Buckley's solicitors wrote to Mr. Keeley stating that she was withdrawing the reporting of the incident and that she at all times wished to record the incident, but that she did not require that it be investigated.

9.      In a letter dated 13th September, 2001, Mr. Keeley sent a letter to the plaintiff advising him that a "very serious allegation" had been made against him In a letter dated 10th October, 2001, Mr. Keeley stated to the plaintiff's solicitors that Mr. Horgan's function would be to interview Ms. Buckley and others with a view to determining whether a prima facie case exists to submit to a disciplinary hearing committee. Mr. Horgan's report was submitted to the UCC authorities on 19th October, 2001 in which Mr. Horgan stated that a prima facie case did exist against Mr Fanning arising from the incident. Mr. Fanning became aware of the report and, given that it was Mr. Fanning's belief, averred to on page five of his written submission, that his suspension would automatically follow pursuant to UCC regulations in the area (Statute E as adopted by the Governing Body as its meeting on 30th January, 2001, pursuant to s. 25(6) of the Universities Act 1997 and the Disciplinary Procedure issued subsequent to the adoption of Statute E), Mr. Fanning instituted proceedings before the High Court seeking interim relief restraining his suspension. Smyth J. in the High Court granted the relief as sought on 22nd October, 2001. An interlocutory order was made on 27th November, 2001, on the same terms, but with the proviso that the defendant was permitted to begin disciplinary proceedings against the plaintiff.

10.      The defendant proceeded to do so, and it is against these disciplinary proceedings of the defendant that the plaintiff's action in this case is directed. This Court is not concerned with establishing as a matter of fact the details of the incident of 21st August, 2001 between the plaintiff and Ms. Buckley. Rather the Court is concerned with whether the defendant may invoke as it has purported to do disciplinary proceedings against the plaintiff as a result of the incident. The defendant may or not be entitled to do so without prejudice as to which version of events of that incident might eventually be determined to be true by whatever forum may be competent to determine the issue (here, putatively, the disciplinary body pursuant to Statute E and the Disciplinary Procedure of the defendant).

2. The Universities Act 1997

11.      Section 25(6) of the Universities Act 1997 provides as follows:

A university may suspend or dismiss any employee but only in accordance with procedures, and subject to any conditions, specified in a statute made following consultation through normal industrial relations structures operating in the university with recognised staff associations or Trade Unions, which procedures or conditions may provide for the delegation of powers relating to suspension or dismissal to the chief officer and shall provide for the tenure of officers.

12.      Section 25(8), upon which the fifth argument advanced on behalf of the plaintiff is based, provides as follows:

(8) For the removal of doubt, it is hereby declared that -

(a) The rights and entitlement in respect of tenure, remuneration, fees, allowances, expenses and superannuation enjoyed on the commencement of this section by persons who are employees, and in the case of superannuation former employees, of a university to which this Act applies shall not, by virtue of the operation of this Act be any less beneficial than those rights and entitlements enjoyed by those persons as employees of the university or corresponding constituent college or Recognised College immediately before that commencement, and

(b) The conditions of service, restrictions and obligations to which such persons were subject immediately before the commencement of this Act, shall, unless they are varied by agreement, continue to apply to such persons and shall be exercised or imposed by the university or the chief officer as may be appropriate, while such persons are employed by the university.

13.      Section 33 of the Act provides as follows:

(1) Subject to this Act and to the Charter, if any, of the university, a governing

14.      Authority of a university or the Senate may, and where required by this Act to do so shall, make such and so many statutes and regulations as it considers appropriate to regulate the affairs of the university.

(2) A governing authority shall, as soon as practicable after the making of a statute or regulation under section 17(2) or 24(1), inform an tUdaras and the Minister of the making of the statute and shall arrange for its publication in the Iris Oifigiuil.

(3) The statutes in force immediately before the commencement of this Part in a university to which this Act applies or its corresponding constituent college or Recognised College shall, so far as they are consistent with this Act, continue in force as Statutes of the university or the corresponding constituent university on and after that commencement but may be repealed or amended by a statute made under subsection (1).

3. Reliefs Claimed

15.      The final reliefs sought by the plaintiffs, as set out at pages five and six of the plaintiff's written submissions, are as follows:

(a) A declaration that the Disciplinary Procedure promulgated by the defendant and as applied to the plaintiff is unlawful and ultra vires the defendant;

(b) A declaration that the Disciplinary Procedure promulgated by the defendant does not apply to the plaintiff having regard to his statutory appointment;

(c) A declaration that there is in existence no matter, dispute, report, or complaint involving the plaintiff that could properly be the subject of any disciplinary procedure or inquiry;

(d) A declaration that the appointment of John Horgan to conduct a preliminary investigation is ultra vires the defendant;

(e) A declaration that the defendant, its servants or agents, has pre-judged the issue against the plaintiff and in the circumstances is biased against the plaintiff (this relates to a statement by Noel Keeley on affidavit that the incident occurred "in the course of employment" being a contentious issues which had yet to be determined);

(f) An injunction restraining the defendant, its servants or agents from holding any disciplinary inquiry involving the plaintiff relating to an alleged incident which occurred or about 31st August, 2001;

(g) An injunction restraining the defendant, its servants or agents from effecting any suspension of the plaintiff from his position as Professor of Economics and Head of The Department of Economics at University College Cork;

(h) An injunction restraining the defendant, its servants or agents from taking any steps whatsoever against the plaintiff relating to the alleged incident which occurred on or about 31st August, 2001;

(i) An injunction restraining the defendant, its servants or agents from taking any steps whatsoever to discipline, suspend or dismiss the plaintiff (arising out of the alleged incident which occurred on or about 31st August, 2001);

(j) Damages for breach of contract;

(k) Costs.

4. Points in Issue

16.      The plaintiff makes twelve arguments in support of the application. The validity of each of these twelve grounds is denied in turn by the defendant. The arguments and the countervailing positions of the defendant are set out below:

1. The dismissal/suspension procedures are not specified in a statute:

17.      The plaintiff submits that pursuant to ss. 25(6) and 33 of the Universities Act 1997, any dismissal procedures must be fully elaborated in a Statute. The plaintiff emphasises the use of the word "specified" as indicating the statutory intent that the procedures be set out in detail in a statute. The defendant has sought to apply against the plaintiff, in the plaintiff's view, procedures that have not been specified in a statute as required; in particular, refers to the absence of a definition in Statute E of the defendant of a definition of "gross misconduct", a basis upon which the defendant has proceeded against the plaintiff. Further, the plaintiff submits that the s. 33 of the 1997 Act recognises a distinction between statutes and regulations, furthering indicating the necessity that disciplinary procedures be specified in a statute, and not in a regulation.

18.      The defendant makes a number of arguments against the plaintiff's submissions in this regard. It argues, first, that the reference in s. 25(6) of the 1997 Act to "procedures" excludes from its scope gross misconduct since this is not, as such, a procedure. Further, the defendant submits that it is unnecessary to define gross misconduct, since it would not be possible to specify exhaustively a definition of the term. Finally, the defendant argues that as Mr. Fanning was appointed to his position prior to June 1997, the provisions of Statute 1, Chapter XXXIV of UCC apply and meet the requirement of s. 25(6) of the 1997 Act (i.e. that procedures be set out in a statute). Chapter XXXIV of Statute 1 provides that any president, professor, or lecturer appointed by the National University of Ireland may upon due cause in an application by the Governing Body of the college [i.e. a constituent college of the University], in the manner prescribed by the statutes of the University, be removed from office by the University, but that an appeal shall lie to the university visitor against any removal.

2. Even if the Statute had power to delegate the making of further disciplinary procedures, they could only themselves be made by statute:

19.      The plaintiff submits that the words "but only" in s. 25(6) of the 1997 Act indicate that disciplinary procedures must be contained or specified in a statute, and that the disciplinary procedures on which the defendant relied were not so specified.

20.      The defendant makes two arguments in reply to this ground. First, and following from the argument made that "gross misconduct" need not be defined in the Statute, the Statute does adequately set out the procedures to be followed and that any more detailed elaboration of gross misconduct would be otiose and unnecessary and would represent no valid ground of complaint to Professor Fanning. Alternatively, the defendant submits that if the procedures should have been specified in more detail than the defendant has done, that the defendant has effected "substantial compliance" with s. 25(6) of the 1997 Act and that its actions should be found intra vires. In support of this contention, the defendant relies on Megarry J. in Bates v. Lord Hailsham [1972] 1 WLR 1373 (at 1378-1379) (where the phrase "fairly and substantially followed" was used) and on the 7th edition of Craies on Statute Law, a quotation from the 3rd edition of which and that was also contained in the 7th edition, was approvingly cited by Smyth J. in delivering judgment at the interlocutory stage of these proceedings. Craies, at 256, in turn cites Hammond v. Hocking (1884) 12 QBD 291, where Cave J., referring to the Bills of Sale Act (1878) Amendment Act 1882, appeared to endorse a principle of construction whereby the courts will, where possible, seek to not avoid a contract.

3. Wrongful delegation of the issue of the definition of gross misconduct:

21.      The plaintiff submits that the intent of s. 25(6) of the 1997 Act was clearly that the procedures be specified in Statute; the statutory intent would be undermined if the widest possible definition of "gross misconduct" were to justify suspension and the disappplication of the normal graduated disciplinary procedure. The defendant seeks to counter this argument by proposing that "gross misconduct" is not a procedure and, therefore, does not come within the requirement in s. 25(6) that procedures be set out in a statute.

4. The definition of gross misconduct is outside the delegated power of Statute E:

22.      The plaintiff argues that even if the defendant had power to make disciplinary procedures otherwise than by way of statute and to delegate the making of those disciplinary procedures out of Statute E, the purported disciplinary procedures are not within the scope of the delegated powers since they do comply with the requirement to define and to specify "gross misconduct" under both Article 3(b) of Chapter 1 of Statute E and s. 25(6) of the 1997 Act. Such definition as there purports to be in paragraph 15 of the Disciplinary Procedure is so wide, it is argued, that it offers no indication of the practical scope of the term.

23.      In reply, the defendant submits that the behaviour of the plaintiff in relation to the incident of 21st August, 2001, would be, if true, so clearly constitute an instance of gross misconduct that the charge of vagueness has no application to this case. Further, the defendant suggests that reliance by the plaintiff on King v. Attorney General [1981] IR 233 is misplaced in that that case related to vagueness of a criminal offence. Finally, the defendant submits that the examples given of gross misconduct in paragraph 15 of the Disciplinary Procedure were not meant to be, nor could reasonably be expected to be, exhaustive.

5. The suspension/dismissal procedures do not provide for the tenure of officers:

24.      The plaintiff argues that the provisions of Statute E in so far as they affect the issue of tenure of office of officers of the University, of which the plaintiff is one in his role as Professor of Economics and Head of the Department of Economics, are contrary to s. 25(6) & (8) of the 1997 Act. Section 25(6) provides, inter alia, that the Statute shall provide for "the tenure of officers". The plaintiff suggests that the Statute does not so provide and actually undermines the concept of tenure in so far as some of the Statute's provisions are vague and uncertain. In relation to s. 26(8), the plaintiff submits that the scheme of disciplinary proceedings proposed by the defendant reduces the plaintiff's entitlements as compared to the applicable rules prior to the 1997 Act; s. 25(8) specifically provides that rights and entitlements in relation to, inter alia, tenure, shall not be any less beneficial following the Act unless by agreement between the parties. As matters stood before the Act, the plaintiff submits, under Chapters III(iv) and IV of the Charter of the National University of Ireland (NUI), only the NUI had the power to dismiss the plaintiff; further, the plaintiff had a right of appeal to a board of four visitors, who had to agree unanimously to a purported dismissal before it became operative or valid. The limited power of the President of UCC in this regard, the plaintiff submits, was reinforced by Chapter XII(v) and Chapter XXXIV of Statute 1 of the Charter of UCC.

25.      The defendants make a number of arguments against these submissions of the plaintiff. First, the defendants submit that on a proper construction, the statute does not require that provisions as to the tenure of officers be contained in a statute. Alternatively, the defendants submit that if the statute does in fact so require, UCC has conformed with the requirement through the provisions contained in paragraph 3(b) of Statute E and paragraph 24 of the Disciplinary Procedure providing for suspension with pay pending investigation of alleged gross misconduct; s. 25(6), it is submitted, clearly envisages suspension and such suspension, cannot, therefore, be deemed to adversely affect tenure within the terms of the Act. In effect, the defendant seems to submit that if the Act requires that provision be made as to tenure, this requirement is met by the fact that the provisions as to suspension, read in the context of the Act, cannot be said to adversely affect tenure.

26.      Further, the defendant states, in relation to s. 25(8)(a) that provision is made as to tenure in paragraph 6 of Chapter 1 of Statute E concerning dismissal and the application of Chapter XXXIV of Statute 1 and by the provisions of paragraph 44 of the Disciplinary Procedure to similar effect. In addition, the defendant submits that the defendant's tenure is not any less beneficial as a result of the 1997 Act, and that in so far as the Act envisages both the possibility of suspension and also the protection of tenure, suspension cannot be said, on a proper construction of the statute, of itself to adversely affect tenure.

27.      In relation to s. 25(8)(b), the defendant submits that it has no application to this case because it applies to restrictions and obligations to which employees were subject before the commencement of the 1997 Act and those conditions, restrictions, and obligations continue to apply.

28.      Finally, the defendant agrees that if there is any inconsistency between the 1997 Act and Statutes or measures of UCC (which the defendant denies), any such provisions do not continue in force as a consequence of s. 33(3) of the Act.

.

6. No power to suspend Professor Fanning:

29.      The plaintiff submits that prior to the 1997 Act, the only way the tenure of a professor's office could be interfered with was by way of a decision by the National University of Ireland to dismiss him, and he or she could not be suspended as a result of a mere allegation. This diminution in the level of protection afforded to tenure was inconsistent with s. 25(8) of the 1997 Act.

30.      The defendant submits that this argument is misconceived because the 1997 Act expressly provides for the protection of an officer's tenure and for suspension; as a result, the defendant submits, suspension cannot be regarded as interfering with tenure.

7. The procedures themselves were not complied with:

31.      As a follow on to the previous arguments, the plaintiff submits that if any disciplinary procedure is applicable, it is not that which is applicable to alleged gross misconduct, but the progressive or graduated procedure provided for under Chapter 1 of Statute E and applicable to allegations of misconduct in general (i.e. other than of gross misconduct).

32.      The defendant rejects this argument and submits that on any reasonable view, the alleged misconduct of the plaintiff comes within the term gross misconduct. In this regard, the defendant notes that in cross examination, the plaintiff accepted that the allegation made in relation to the incident of 21st August, 2001 by Ms. Buckley in her initial report was a "very serious allegation".

8. The Director of Human Resources had no power, though he purported, to categorise the allegation as one of gross misconduct and to invoke disciplinary procedures and suspension:

33.      The plaintiff submits that under the 1997 Act or the Irish Universities Act 1908, the Director of Human Resources is not a person recognised as having any power over a professor of the NUI. Further, under Article 1 of Chapter 1 of Statute E, even if the Statute is applicable, the University, and not Mr. Keeley, is the entity that may exercise a power of suspension.

34.      The defendant submits that pursuant to paragraph 3(1) of the Fourth Schedule of the 1997 Act, the Chief Officer (in the case of UCC, the President) may delegate any of his or her functions, including functions delegated to the Chief Officer in accordance with s. 25(2) of the 1997 Act, to an employee of the University unless those functions of the Chief Officer are subject to a condition of non-delegation. Here, the defendant submits that Mr. Keeley was delegated the functions he exercised in the matters in issue in these proceedings. Further, the defendant asserts that Mr. Keeley did not actually threaten to suspend or purport to suspend Mr. Fanning.

9. The engagement of John Horgan to carry out an investigation:

35.      The plaintiff submits that Mr. John Horgan was assigned an adjudicative function in relation to matters in issue in the case and that the legislation and Statute E of the University do not recognise such an appointee as having any such authority or power. Further, the plaintiff submits that, in line with previous argument, Mr. Keeley has no authority to make such an appointment. More generally, the plaintiff submits that the procedures applied in the case "was essentially made up by UCC as it went along". The plaintiff provides an example of what he submits is the obvious lacuna in the procedures of UCC in relation to dismissal. Under s. 15 of the Disciplinary Procedure, which seeks to define though not definitively, the term gross misconduct, assault and theft are specified as instances of behaviour constituting gross misconduct. The plaintiff submits that it would be obviously inconsistent with the legislative intent if incidents that technically might constitute assault or theft (such as throwing a napkin at a fellow staff member at a party or photocopying a page using a university copier for one's child's school project) could be classified as gross misconduct and result in the automatic disapplication of the graduated procedure that generally applies to misconduct. In the absence of any filtering mechanism for determining what cases are to be proceeded with on the assumption that the alleged behaviour could constitute gross misconduct, the plaintiff asserts that the defendant adopted an ad hoc and ultra vires procedure. Further, the plaintiff states that Mr. Keeley's actions contaminated the entire procedure because the determination of Mr. Horgan, the purported appointee of Mr. Keeley, was what led to the application of disciplinary proceedings against Mr. Fanning. Finally, the plaintiff submits that Mr. Horgan's previous role as an expert witness testifying on behalf of UCC in another case for which he was paid (though he did not actually testify) resulted in him being "conflicted" in the current case and an inappropriate person to involve as happened.

36.      The plaintiff makes a number of counter arguments in this regard. First, the defendant submits that the President of UCC could have invoked disciplinary procedures without there having been any involvement by Mr. Horgan, and that the involvement of Mr. Horgan was a "filtering device" arranged "in the ease" of Mr. Fanning given the dissatisfaction expressed by Mr. Fanning in a solicitor's letter of 1st October, 2001 with respect to the involvement of Mr. Keeley, the Director of Human Resources. Having regard to the contents of this letter, the defendant submits that "it was felt appropriate that an independent person should carry out this initial filtering exercise". Further, it is submitted that Mr. Horgan's appointment was in any event irrelevant to the disciplinary procedure in that his report, concluding that there was a prima facie case against Mr. Fanning, was not furnished to the Disciplinary Hearing Committee and the Committee was unaware of its content. In this regard, the defendant denies that Mr. Horgan's involvement "contaminated the whole procedure". In addition, the defendant asserts that the suggestion that Mr. Horgan's involvement was irrelevant to the Committee would appear to be with respect to the actual deliberations of the Committee, rather than more generally with respect to the involvement or the fact of the involvement of the Disciplinary Committee; the defendant acknowledges that had Mr. Horgan's report concluded that there was no prima facie case against Mr. Horgan, then the disciplinary procedure would not have been operated.

37.      In addition, the defendant submits, in relation to oral arguments adduced by Mr. Fanning, that although it could be argued that the principles of natural and constitutional justice did not apply at the stage of Mr. Horgan's involvement (citing Moran v. Lloyd's [1981] 1 Lloyd's Reps 423; Herring v. Templeman [1973] 3 ALL ER 569; Gilligan v. Governor of Portlaoise Prison (Unreported, High Court, McKechnie J., 12th April 2001)), Mr. Horgan did comply with these principles and the non-involvement of Mr. Fanning in the deliberations of Mr. Horgan was because Mr. Fanning chose not to participate. Finally, in relation to the plaintiff's argument that Mr. Horgan's prior involvement in a dispute in which UCC was one of the parties, the defendant submits that it did not give rise to any reasonable apprehension of bias in relation to Mr. Horgan. The defendant refers to Dublin Well Woman Centre Ltd. v. Ireland [1995] 1 ILRM 408; Bula Ltd. v. Tara Mines Ltd. (No. 6) [2000] 4 IR 412; and Rooney v. Minister for Agriculture and Food (Unreported, Supreme Court, 23rd October 2000). The defendant also refers to Judicial Review of Administrative Action: A Comparative Analysis (2001), in which the author, having reviewed a number of authorities, at page 174, concludes that:

. . . the reality is that some previous knowledge of the parties may be unavoidable

and it may be tolerated provided that the test that no reasonable apprehension of bias is satisfied (sic - check quote).

10. The disciplinary procedures are inapplicable because the acts were not in the course of his/her employment:

38.      The plaintiff submits that disciplinary procedures are applicable only to acts that occur during the course of employment and that the incident in question cannot be said to come within this category. In support of this contention, the plaintiff points to the fact that the incident occurred outside of term time, during lunch hour, when the plaintiff was walking his dog and talking to his wife on the phone, and between two people who did not know each other and would have no cause to know each other during the course of their work. Further, the plaintiff submits that the fact the incident occurred on UCC premises, in a staff car park, is of no relevance, because it could just as well have happened outside of UCC. The plaintiff refers to a number of authorities in this regard: Buckley Stores Ltd. & Anor. V. National Employers Mutual general Insurance Association Ltd. [1978] IR 351, Nottingham v. Aldridge & Anor. [1971] 2 QB 739, and Listor v. Hesley Hall Ltd. [2002] 1 AC 215. The thrust of the plaintiff's argument and submissions on these authorities is that a sufficiently close connection or nexus must exist between the plaintiff's actions and the duties of the plaintiff's employment. In the plaintiff's submission, such a test is not met given the circumstances of the incident of 21st August, 2001 involving the plaintiff and Ms. Buckley.

39.      The defendant submits, in relation to this issue, first, that it is not necessary for the conduct of the plaintiff to have occurred during the course of his employment for the disciplinary procedures to be applicable. The defendant submits that, in general, some conduct may be of such a nature that it is irrelevant that it was committed other than during the course of employment for the purpose of the applicability of disciplinary proceedings by an employer, and gives as an example murder or rape. In the defendant's submission, the plaintiff's alleged misconduct comes within this category of conduct that renders irrelevant the consideration that the impugned actions occurred during or outside the course of employment.

40.      Alternatively, the defendant submits that if the alleged misconduct must have occurred during the course of employment, then this test is met in this case. The defendant points to the fact that the incident occurred on UCC property, in a car park for staff members. The defendant further proposes that "the fact that it occurred out of term time and at lunch hour is, it is respectfully submitted, irrelevant having regard to the nature and duties of a college professor which are not confined to term time and to standard predetermined working hours". Further, the defendant submits that the cases cited by the plaintiff, other than Lister and Others v. Hesley Hall Ltd. [2002] AC 215, are not applicable. Finally, the defendant submits in this regard that if the principles in Lister are applicable, the term "during the course of employment" should be broadly construed. In the defendant's submission, the decision of the Court of Appeal of England and Wales in Jones v. Tower Boots Co. Ltd. [1997] 2 ALL ER 406 supports such a broad construction of the concept of employment in cases that do not involve the application of vicarious liability in tort.

11. Comments of the Director of Human Resources and the issue of prejudice:

41.      The plaintiff submitted that Mr. Keeley prejudged the issue as to whether the incident of 21st August, 2001 occurred during the course of employment in his affidavit sworn 5th November, 2001, at paragraph 22.

42.      The defendant seeks to counter this argument first by submitting, as previously, that there is no requirement that the alleged misconduct take place during the course of Mr. Fanning's employment. Further, the defendant submits that, whether or not Mr. Keeley did prejudge the issue (which the defendant denies), that the determination of it was left entirely to the disciplinary committee, which, the defendant states, did not have Mr. Keeley's affidavit.

12. The disciplinary procedures are inapplicable because the matter has been amicably resolved:

43.      The plaintiff proposes that paragraph 1 of the disciplinary procedures of UCC make it clear, particularly through the use of the phrase "wherever possible", that amicable resolution is the object of the disciplinary procedures, the plaintiff submits that as all issues between Mr. Fanning and Ms. Buckley arising from the incident of 21st August, 2001 have been amicably resolved and that as a result, the disciplinary procedures should not be applied.

44.      The defendant first denies that there has been any such amicable resolution of the issues between Mr. Fanning and Ms. Buckley. Secondly, the defendant suggests that the Disciplinary Procedure make no reference to a concept of amicable resolution, apparently basing this contention on the fact that a verb and adverb, rather than a noun and adjective, are used in paragraph 1, which refers to the University's intention to ". . . amicably resolve . . ." wherever possible disciplinary matters. In addition, the defendant submits that the relevant parties to an amicable resolution, in any case, as envisaged by the Disciplinary Procedure are the University and the employee, and that the alleged amicable resolution in this instance was between Mr. Fanning and Ms. Buckley. Further, the defendant submits that the reference to "wherever possible" qualifies the University's intention in this regard as set out in paragraph 1.

45.      In my view far from the issues between Ms. Buckley and the plaintiff being amicably resolved I conclude that the plaintiff's conduct towards Ms. Buckley was so overbearing and intimidatory that she was over borne by his threats conveyed through his solicitors towards a junior member of the defendant's staff (Ms. Buckley) some few weeks before her wedding.

46.      Seeing and hearing both of these people in Court I have no doubt, on the balance of probabilities, as to the correctness of my conclusions in this regard. The plaintiff, abusing his senior status, intimidated Ms. Buckley. I am satisfied that she fled from his wrath and unreasonableness. I can well sympathise with her decision. I find as fact that Ms. Buckley's withdrawal of complaint was not the result of the matters being amicably resolved but was the result of the plaintiff's overbearing and intimidatory conduct.

47.      For the purpose of completeness I have set out the nature of the plaintiff's case as it describes in detail the lengths he is prepared to go to support his egotistical and overbearing personality.

48.      I do not consider it necessary to make findings on the important issues raised by the pleadings. I have determined that this plaintiff has not come to equity with clean hands. I regret that I do not accept his evidence as being given in a full and frank manner. In the circumstances this plaintiff has disentitled himself to the equitable reliefs he seeks in this case. In the result I therefore dismiss his case.