High Court

Maher v Irish Permanent PLC 

1997/11468 P 

7 October 1997 

COSTELLO P: 

This is an application brought in proceedings which have been instituted in the last few days. 

The Plaintiff in these proceedings was appointed manager of the Defendant Company's Branch in Killarney, County Kerry, in September 1985. Serious allegations of misconduct were made against the Plaintiff in 1996 and on 3 August 1996 the Plaintiff was suspended from his position. An investigation was held into the allegations of misconduct and on 2 October 1996 the Plaintiff was informed of the Defendant's decision to dismiss him. He was also told that the decision would not be finalised until 9 October and was thus allowed an opportunity to make representations. 

On 2 October proceedings were taken by the Plaintiff against the Defendant and I will refer to these as the first set of proceedings. In the first set of proceedings the Plaintiff sought interlocutory relief. There was then a full hearing over four days in July of this year before my colleague Laffoy J. On 29 August 1997 Laffoy J delivered a very full judgment in which she concluded that the procedures adopted by the Defendant in reaching the decision of dismissal were unfair and that the decision could not stand. She made an order that the Defendant its servants or agents be restrained from dismissing the Plaintiff otherwise than in accordance with the Defendant's disciplinary procedures and the principles of natural justice. After that judgment was delivered correspondence took place between the parties. 

It is clear that the Defendant took the view that it was entitled to proceed to investigate the serious complaints which had been made against the Plaintiff. I think that I am correct in saying that the Plaintiff has not made the case that the Defendant is not entitled to proceed to investigate the complaints and, if they be well founded, to dismiss him, should that be the view of the Defendant, provided, of course, that the complaints are established. However, the complaint of the Plaintiff in these present proceedings relates to the procedures which are proposed to be adopted in investigating the complaints. These proceedings were instituted after the Plaintiff had complained and intimated perfectly explicitly that the proposed procedures were so unfair that he was not going to attend the hearing nor would he presumably be represented at it by his legal advisers. 

The proceedings which are now before me were commenced by way of Plenary Summons. In this second action the Plaintiff applied for and obtained an order by way of interim injunction on an ex parte basis ordering the Defendant until today to be restrained from carrying out or continuing any disciplinary inquiry or investigation into allegations concerning his conduct otherwise than in accordance with the Defendant's disciplinary procedures and the principles of natural justice, particularly with regard to hearsay evidence. This was followed by a Notice of Motion dated 3 October 1997 in which a number of reliefs are claimed but Counsel now informs me that orders are sought only in respect of paragraphs 1 and 2 of the Notice of Motion. 

In respect of the relief that is now claimed it is stated in paragraph 1 of the Notice of Motion that what is sought until the trial of the action is an order by way of injunction restraining the Defendant from continuing any disciplinary inquiry or investigation into allegations concerning the conduct of the Plaintiff otherwise than in accordance with the Defendant's disciplinary procedures and the principles of natural justice. It is then particularize how it is alleged that the proposed disciplinary procedures would breach the Defendant's own procedures and the principles of natural justice. It is stated a subparagraph (a) that the Defendant should be restrained from inquiring into or investigating allegations based on hearsay. At subparagraph (b) it is stated that the Defendant should be restrained from admitting or inviting hearsay evidence. At subparagraph (c) it is stated that the Defendant should be restrained from inquiring into or considering allegations relating to conduct prior to a disciplinary meeting held on 27 March 1996 as a result of which a letter of final warning issued to the Plaintiff on 28 March 1996. 

Paragraph 2 of the Notice of Motion seeks an order restraining the Defendant from holding any purported investigation or inquiry pending the hearing of this action. 

As to the issue raised in paragraph 1(c) of the Notice of Motion, the Defendant's disciplinary procedure make provision for giving a final warning to an employee against whom misconduct is alleged. After a final warning has been given, proceedings may be taken against the employee should the final warning not be properly adverted to. In this case a final warning was given to the Plaintiff on 27 March, reference to which was made by Laffoy J, at page 5 of her Judgment when she stated as follows: 

"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." 

Having heard the case over four days, Laffoy J came to the conclusion that the Plaintiff accepted the final warning and that he attempted to make amends with the staff. The Defendant now says that the Plaintiff failed. The Defendant's case is that, notwithstanding the opinion of Laffoy J that the Plaintiff had accepted the final warning and had attempted to make amends, he failed. And it is now suggested that in some way the principles of natural justice prohibit any reference to the allegations which led up to the final warning being given to the Plaintiff. 

I do not think that that is a correct view of the law. For example, if an employee who is alleged to have misapplied the funds of his employer (small sums of, say, £10, £20 or £100) is warned, accepts the warning and tries to make amends but fails, I can see no reason why the employer is not entitled to consider the past conduct of the erring employee in investigating and deciding whether or not new allegations of wrongdoing are true. 

In this case the position is that a great number of allegations of a serious kind of sexual harrassment were made against the Plaintiff in respect of a number of his staff. These allegations were investigated by the Defendant Company. Prior to the investigation the allegations were listed in great detail. In its new investigation the Defendant does not, I am now informed, propose to consider five of these allegations which have been numbered and identified. Counsel for the Defendant has today made clear that it is not proposed to further investigate these five allegations which were set out last year in a letter. That will be the position at tomorrow's proposed hearing. Be that as it may, I wish to make it clear that the person investigating these charges is not in breach of the rules of natural justice or of the disciplinary procedures laid down by the Defendant Company if he takes into account the complaints which were the subject matter of the warning notice. 

In relation to the apprehension of the Plaintiff that the procedures which are to take place at tomorrow's hearing are in breach of the rules of natural justice and in breach of the Defendant Company's procedures, I have considered what the Defendant proposes to do. The procedures which the Defendant proposes to adopt are set out in particular in its two letters of 25 September and in a third letter of 29 September. If the hearing is carried out in accordance with what is said in those letters, in my view there can be no justifiable complaint about the procedures. It is to be borne in mind as has been pointed out in the course of the correspondence, that tomorrow's hearing is not a civil or a criminal court hearing. The disciplinary procedures of the Defendant have, of course, to be carried out in accordance with the rules of natural justice. It seems to me that the law on this matter is perfectly clear. It has been clarified in the case of Mooney v An Post (Supreme Court 20 March 1997) and has been stated by Henchy J in Kiely v Minister for Social Welfare [1977] IR 267 at 281 as follows: 

"Tribunals exercising quasi-judicial functions are frequently allowed to act informally -- to receive unsworn evidence, to act on hearsay, to depart from the rules of evidence, to ignore courtroom procedures, and the like -- but they may not act in such a way as to imperil a fair hearing or a fair result." 

As to the issue raised at subparagraph (b), I am asked to hold that in no circumstances can hearsay evidence be heard at tomorrow's hearing in Killarney. I cannot make such a finding. I cannot hold that hearsay evidence should not be accepted under any circumstances at tomorrow's hearing in Killarney. I cannot assume that the person holding the hearing will act unfairly. His duty is to hold a fair hearing and to produce a fair result. It may well be that it would be wrong to accept hearsay evidence in certain circumstances and that hearsay evidence should be accepted in other circumstances. It has been made perfectly clear in the course of the correspondence that that is what he is going to do. 

As to subparagraph (a), obviously it would be grossly unfair to dismiss the Plaintiff on the basis of something which somebody told somebody else and on which there is no evidence. I cannot assume that the Defendant is going to act in a grossly unfair manner. I cannot assume that the allegations which have been made against the Plaintiff will not be supported in any way. I cannot assume that there will be no evidence other than properly admissible evidence. Obviously the procedures would not be fair if a finding of guilt was made against the Plaintiff on allegations which had no evidential basis but I cannot assume that that will be the case. 

Accordingly, in my view the Plaintiff has failed to make out any case for an injunction. Should the Plaintiff choose not to turn up at tomorrow's hearing either alone or with his representatives, or should he decide that his representatives only should turn up, I wish to make it clear that on the evidence before me it is proper for the hearing to be held. Dr Bradley will listen to the witnesses and they can be cross-examined if the Plaintiff or his Counsel is present. If not, the witnesses are not cross-examined and it is a matter for the person holding the inquiry to decide what weight to give to the evidence and what penalty should be imposed. 

I refuse this application and reserve the question of costs.