Dermot Minnock (plaintiff) v. Irish Casing Company Ltd and Robert Stewart (defendants): Injunction - Interlocutory - Employment - Application to restrain continuing disciplinary proceedings - Whether interlocutory order would interfere with existing disciplinary process - Whether fatal flaws in the investigation warranting intervention of court - Whether interlocutory application premature - Whether balance of convenience favours the continuance of the process.
The High Court (Mr Justice Clarke); judgment delivered on May 24th, 2007.
As a matter of law, the court will not interfere necessarily in the course of a disciplinary process unless a clear case has been made out that there is a serious risk that the process is sufficiently flawed and incapable of being cured that it might cause irreparable harm to a plaintiff if the process is permitted to continue. Where an inquiry is a pure investigation which does not involve any findings, the rules of natural justice does not apply and is not a matter therefore which the courts should interfere with.
The fact that an employee may be obliged as a matter of contract of employment to assist in any such investigation does not confer on it the status of an inquiry which carries with it an obligation to act in accordance with the rules of natural justice. Where there are inquiries which can make formal findings the rules of natural justice do apply and it may well be that in those circumstances the court would need to consider whether it is appropriate to intervene by making an interlocutory order where a case has been established that there has been a significant flaw in the process.
The court so held in granting the plaintiff an interlocutory injunction restraining, pending the trial of the action, the continuance of the investigation being conducted by the second-named defendant.
Ercus Stewart SC and John Curran BL for the plaintiff; Niall Byrne BL for the defendant.
Mr Justice Clarke commenced his judgment by stating that the plaintiff had sought at the interlocutory stage an injunction restraining continuing disciplinary proceedings which were in being against him arising out of his employment with the first named defendant. There was an investigation being conducted by the second named defendant into certain allegations of wrongdoing. In addition, the plaintiff sought an order requiring the second named defendant to conduct an inquiry into certain allegations of bullying and harassment which he says were made.
Mr Justice Clarke, dealing firstly with the second issue, stated that it did not appear that the defendants were maintaining that they did not have an obligation under the code of practice to investigate a claim which was made by the plaintiff. Mr Justice Clarke did not, in those circumstances, deem it as appropriate to make a mandatory order in relation to that aspect of the case. It was pointed out that if, despite what was said in court by counsel on behalf of the first named defendant, there was an inappropriate failure to follow up on any formal complaint made on behalf of the plaintiff, then that matter could be re-entered to deal with that. Mr Justice Clarke said that the more contentious aspect between the parties was whether it is appropriate to make an interlocutory order which would interfere with the existing disciplinary process. The allegations which were made on behalf of the plaintiff concerned the investigation being conducted by the second named defendant on behalf of the company. It had been said that the manner in which the investigation had been conducted demonstrated serious flaws such as would warrant the court in taking the view that it was appropriate to intervene at an interlocutory stage. Counsel for the defendant had suggested that any interlocutory application was premature at this stage and placed reliance on a contention that the only matter being conducted by the second named defendant was an investigation which would be followed by a full disciplinary hearing should that arise as a result of the investigation.
Mr Justice Clarke said that it appeared to be firstly, as a matter of law that the authorities were now beginning to settle upon a test as to the appropriate attitude to be taken or the test to be applied in cases such as the instant one. Mr Justice Clarke said that it is clear that in the ordinary way, the court will not intervene in the course of a disciplinary process unless a clear case has been made out that there is a serious risk that the process is sufficiently flawed and that irreparable harm to the plaintiff would result if the process was permitted to continue. Mr Justice Clarke referred to his decision in O'Brien v Insurance Managers IEHC 3, January 14th, 2005, and Byrne and Leahy v Shannon Foynes Port Company and Minister for Transport High Court, Clarke J, February 2nd, 2007. In O'Brien v Insurance Managers, the plaintiff failed to obtain an interlocutory injunction as it was clear that the investigation being carried out was a pure investigation. In Byrne and Leahy v Shannon Foynes Port Company and Minister for Transport, which Mr Justice Clarke noted was not dissimilar to the facts of the instant case, there was cogent evidence to support the view that an enquiry being conducted on behalf of the board of the company was flawed. Against that legal background, it was necessary to address the specific issues that were put forward on behalf of the plaintiff in the instant case for saying that the enquiry be conducted by the second-named defendant was flawed.
Mr Justice Clarke found that the arguments made on behalf of the defendants that the second named defendant was only carrying out an investigation, was only partly true. As was pointed out in some of the authorities, the range of preliminary inquiries that can be conducted may flow from one end of the scale where there is a pure investigation where no findings of any sort are made on behalf of the enquirer other than to determine whether there is sufficient evidence or materials to warrant a formal disciplinary process. Mr Justice Clarke stated that it is clear on all the authorities that that type of pure investigation which does not involved any findings is not a matter to which the rules of natural justice apply and is not a matter therefore which the court should interfere with. The fact that an employee may be obliged as a matter of his contract of employment to assist in any such investigation does not confer on it the status of an inquiry which carries with it an obligation to act in accordance with the rules of natural justice. Mr Justice Clarke said that at the other extreme, there are inquiries which can make formal findings which may, for example, be part of a statutory process or the like in respect of which it does appear on the balance of the authorities to be settled that the rules of natural justice do apply. It may well be that in those circumstances, the court would need to consider whether it is appropriate to intervene by making an interlocutory order where a case has been established that there has been a significant flaw in the process.
Mr Justice Clarke stated that the instant case appeared to fall in between the two extremes of the spectrum, but that it did not seem to be correct to describe it as a pure investigation. It was clear that the second named defendant had purported to make findings and had therefore not confined himself to collecting evidence and determining whether there was a case to answer to warrant formal disciplinary proceedings. The second named defendant had gone further that that and as such, the inquiry was not of a pure evidence gathering type to which the rules of natural justice did not apply. Mr Justice Clarke also found that there was a significant degree of confusion created by the failure of the defendants to specify the nature of the process in advance which they were engaged in. Mr Justice Clarke did not agree with the submission made on behalf of the plaintiff and repeated in much of the pre-litigation correspondence to the effect that there was an obligation on the defendants to agree with a person in the position such as the plaintiff as to what the procedure was and to that extent, the defendants were correct in that the plaintiff was not entitled to be able to prevent an inquiry going ahead without his agreement on the procedures. Mr Justice Clarke stated, however, that it was not to say that there was no obligation on the defendants to set out the process that they intended to pursue and particularly, when asked to do so in advance. In the instant case it was only after the proceedings had commenced that the defendants had set out in clear terms what the process was and stated that what was intended was that the second named defendant would complete his inquiry and if it warranted formal disciplinary process, a separate de novo disciplinary process would take place.
Mr Justice Clark said that counsel for the plaintiff was correct when he submitted that if the process had been set out in clear terms in advance and if the second named defendant had confined himself to an evidence gathering exercise without making any findings other than to find that there was a sufficient case to warrant a disciplinary hearing, it would have been very difficult for the plaintiff to make any case but it was by no means clear at the time when the central events which led to the commencement of these proceedings occurred that that was the process that was being engaged in. Mr Justice Clarke went on to say that the reason it was not clear was because the defendants did not specify in advance what the process was.
Mr Justice Clarke said that the central issue between the parties was the fact that a hearing was conducted in the absence of the plaintiff which was fixed initially for the Wednesday before Easter Sunday but was conducted on the Thursday before Easter Sunday in circumstances where the plaintiff through his solicitors had sought an adjournment. Mr Justice Clarke said that that adjournment had to be seek against the background of the failure to that date to set out the process that was to be followed clearly. Secondly, it had to be seen against the background that it was only on the Monday of that week that the plaintiff received a detailed account of the financial allegations being made against him. While they had been mentioned in broad terms and while the plaintiff might have been aware of some of the details from previous meetings it was clear from the correspondence that despite being pressed for those details and, indeed, despite the statement in some of the replying letters to the effect that the plaintiff had been given details, there was no evidence before the court that satisfied Mr Justice Clarke that there was an arguable case that he was given those details other than two days before what was going to be an important hearing.
On the basis of those circumstances and against the background of the failure of the defendants to make clear what the process was going to be, it appeared to Mr Justice Clarke that there was a strong arguable case on the part of the plaintiff to the effect that for reasons similar to those adopted in Carroll v Bus Atha Cliath E.L.R. 192 and unreported High Court, August 4th, 2005, that the hearing was a nullity and that the process being conducted by the second named defendant was one which could not be legally permitted. Mr Justice Clarke said that this was only a conclusion on the criteria put forward at the interlocutory hearing and did not amount to a finding but that a strong arguable case had been made out. It appeared that the balance of convenience favoured the restraint of any continuing investigation being conducted by the second named defendant. It appeared to Mr Justice Clarke that the order to which the plaintiff had established an entitlement to was confined to that. Mr Justice Clarke concluded that if the first named defendant wanted to commence a finding inquiry conducted by some other person other than the second named defendant they were free to do so. If, as a result of that inquiry, that person recommended that a formal disciplinary process should be conducted in the manner suggested then there was no reason why that should be restrained.
Mr Justice Clarke granted an interlocutory injunction restraining, pending the trial of the action, the continuance of the investigation being conducted by the second named defendant and reserved costs.
Solicitors: TP Robinson (Dublin) (for the plaintiff); A &L Goodbody Solicitors (Dublin) (for the defendants).
Emma L. Callanan, barrister