Turner -v- O'Reilly trading as Fintan O'Reilly Co
HIGH COURT
Judgment was delivered by Mr Justice Hedigan on
April 8th, 2008.
JUDGMENT
The High Court rejected an application by an
employee for an interlocutory injunction against her employer
before the completion of an investigation of gross misconduct. The
application was premature, the court found, and the investigation
had not been tainted by unfairness and should be allowed to
continue to its conclusion.
BACKGROUND
Elizabeth Turner, the plaintiff, is a legal
executive working for the defendant, Fintan O'Reilly Co, for the
past 11½ years in Athlone, Co Westmeath. She had worked
her way up from a position as receptionist.
She was suspended on full pay from the firm in February 2008.
Ms Turner had no written contract of employment and the firm had no disciplinary procedure.
On February 18th, after a heated row about salary, Ms Turner was given a letter of dismissal from her employer and told to leave the office. Another argument followed and Ms Turner left.
Two days later, she received a letter from Gerard Gallagher, a solicitor with the company, informing her that there was an allegation of gross misconduct against her because of the remarks she made.
There were also allegations that she had made derogatory remarks about other staff members. She was told she was being put on paid suspension pending the outcome of a disciplinary investigation.
On February 21st, Ms Turner was sent another letter alleging she had contacted a former partner of the company who had left after issues of breach of trust, and by doing so, had given rise to questions about her reliability and trustworthiness.
Ms Turner applied to the court for an order to restrain the company from dismissing her and appointing someone else to her job.
She also asked for an order requiring the company to pay her salary and to allow her right to appeal any disciplinary action to an independent third party.
DECISION
Mr Justice Hedigan said the application by the
plaintiff amounted to an application for interlocutory mandatory
relief.
He said that in a judgment on a similar type of case, Bergin v Galway Clinic Doughiska Ltd, in November 2007, Mr Justice Clarke held that it was necessary "for the employee concerned to establish a strong case in order to obtain interlocutory relief".
Mr Justice Clarke had said the fact that an argument about whether a disciplinary process has taken the appropriate course does not of itself justify the court in intervening.
"The court should intervene only where it has been demonstrated that the process has already been so tainted with an absence of fair procedures that it cannot be allowed to continue," he had said.
Mr Justice Hedigan said the attempt to dismiss the plaintiff on February 18th was "entirely improper and made no regard to fair procedures".
However, he said, he could not assume that any disciplinary investigation would not be a fair one.
He said the only question to answer was whether the process had been so tainted with an absence of fair procedures that it could not be allowed to continue.
"Nothing so far has tainted the disciplinary investigation and I think it should be allowed to proceed to its conclusion," Mr Justice Hedigan said.
He said after the investigation had concluded, the plaintiff could take proceedings if she considered it unfair.
"For the court to intervene at this stage would, in my view, be premature."
However, he said, because of the initial attempt to dismiss the plaintiff, he would reserve the costs of the application to be "costs in action".
The full text of this judgment is on www.courts.ie
Tiernan Lowey, instructed by Purdy Legal Services, Galway, for the applicant; Tom Mallon BL instructed by Cannons, Ranelagh, Dublin, for the respondent