Boyle v an Post

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 23 September 2015
• Neutral Citation: [2015] IEHC 589
• Court: High Court
• Date: 23 September 2015

[2015] IEHC 589

THE HIGH COURT

Record No. 6739P/2015

Boyle v An Post

BETWEEN/

GARY BOYLE

Plaintiff

and

AN POST

Defendant

Employment – Unfair Dismissals Act – S. 84 of the Postal and Telecommunications Services Act, 1983 and S. 53 of the Communications Regulation (Postal Services) Act 2011 – Damages – Injunctive reliefs – Whether fair procedures had been followed in the dismissal of the plaintiff.

Facts: The plaintiff sought interlocutory injunctions against the defendant for allegedly wrongfully dismissing the plaintiff from the employment on the grounds of misconduct as a result of re-posting of certain mail. The plaintiff claimed that fair procedures were not followed in the dismissal and that the plaintiff suffered significant reputational damage. The defendant contended that the dismissal had been effected on notice therefore; there can be no claim of unfair dismissal. The defendant claimed that the re-posting of the mail potentially constituted a criminal offence under s. 84 of the Postal and Telecommunications Services Act, 1983 and s. 53 of the Communications Regulation (Postal Services) Act 2011.

Mr. Justice Max Barrett held that the interlocutory injunctions against the defendant for allegedly wrongfully dismissing the plaintiff from the employment would be denied. The Court observed that the claim of breach of Unfair Dismissals Acts would fail. The Court observed that no significant reputational damage had been caused to the plaintiff. The Court held that the balance of convenience favoured the defendant.

PART I: OVERVIEW.

1 1. Postmen and postwomen are important pillars of community life, entrusted with the safe carriage and delivery of all manner of business and private correspondence. Mr Boyle was, until recently, a postman in the Dublin area. To his vexation, he has been dismissed by An Post for alleged 're-posting' of mail. In other words, An Post has formed the view that instead of delivering certain post that was entrusted to him for safe delivery, Mr Boyle re-posted it in a letter-box close by his home. Mr Boyle emphatically denies the allegation made by An Post. He asserts that there would be no sense in him re-posting mail because he would only end up having to deliver it anyway once it got back to the post office. Plus, he maintains, if he was going to re-post mail he would hardly do so at the post-box closest to his home. An Post does not believe Mr Boyle's protestations. It considers his misbehaviour to have been so bad as to merit termination of his employment for misconduct. It treats this form of misconduct with some seriousness, not just because it naturally has an impact on the ordinary running of An Post as a commercial entity but also because re-posting has the potential to constitute a criminal offence under s.84 of the Postal and Telecommunications Services Act, 1983 and s.53 of the Communications Regulation (Postal Services) Act 2011.

2 2. Notwithstanding An Post's view that Mr Boyle's alleged re-posting of mail constitutes misconduct of a sufficiently serious nature as to warrant dismissal, it has effected dismissal pursuant to the standard notice provisions contained in his contract of employment and paid him all the payments to which he would have been entitled on the ordinary termination of his contract. In addition, prior to the termination of his contract of employment, Mr Boyle went through an investigation and disciplinary process with An Post. He comes to court complaining that An Post did not adhere to fair procedures throughout that process and that, as a consequence, he was wrongfully dismissed. At this time he seeks of the court (1) an interlocutory injunction reinstating him to his position with An Post, (2) by way of alternative to (1), an interlocutory injunction compelling An Post to pay Mr Boyle a salary pending the determination of his wrongful dismissal proceedings, (3) an interlocutory injunction preventing An Post, its servants or agents, from dismissing him for misconduct save in accordance with fair procedures, and (4) an interlocutory injunction restraining An Post, its servants or agents, from appointing a replacement for Mr Boyle on anything other than a temporary basis. Items (1) and (2) are mandatory in their terms. Item (3) has been overtaken by events in that Mr Boyle has been dismissed in accordance with the standard notice provisions of his contract and he acknowledges himself in his affidavit evidence to have been dismissed. Item (4), though expressed in negative form is mandatory in effect as it would direct An Post as to what basis it could employ a replacement for Mr Boyle. Thus Items (1), (2) and (4) seek mandatory relief and so are subject to the 'strong case' requirement considered hereafter. Relief in the form of Item (3) is now without meaning.

PART II: KEY ISSUE ARISING.

3 3. The principal dispute arising between the parties, though not a matter for adjudication in the within application, is whether An Post adhered to fair procedures in dismissing Mr Boyle. (Fair procedures, not perfect procedures. The law does not demand the impossible: fairness is ever required; perfection is unattainable). In this application for interlocutory injunctive relief the court's focus is on the procedural issues that such an application typically presents. Even so, it is necessary to provide some detail as to the principal dispute arising.

PART III: MR BOYLE'S CASE IN SUMMARY.

4 4. It appears to the court that Mr Boyle's contentions as regards the principal dispute arising between him and An Post can perhaps be summarised as follows: (1) a letter sent to him on 16 ^th December, 2014, which initiated the disciplinary process evidences on its face, he claims, pre-judgment and bias; (2) Mr Boyle allegedly suffered a deficit of information by not being given the notes of one or more meetings, as well as various internal memoranda; (3) An Post's investigation was allegedly inadequate in that there was a failure on its part to inquire adequately into other potential reasons for mail being where it ought not to be; (4) Mr Boyle understood from his trade union that there could be no dismissal for re-posting; and (5) other alleged deficiencies as regards fair procedure arose from Mr Boyle's allegedly not receiving the notes of certain meetings.

PART IV: AN POST'S CASE IN SUMMARY.

5 5. An Post's contentions as regards the principal dispute arising between the parties can perhaps be summarised as follows: (1) Mr Boyle has been dismissed and his dismissal was effected on notice, so there can be no claim of unfair dismissal; (2) the essential facts in issue were basic in that substantial quantities of mail were allegedly re-posted and An Post concluded that Mr Boyle was responsible for same; (3) damages are, An Post claims, an adequate remedy and Mr Boyle, on his own admission, does not have the financial wherewithal in any event to meet an undertaking as to damages; (4) this, An Post claims, is a case for the Employment Appeals Tribunal given the somewhat modest level of Mr Boyle's income, the fact that dismissal has been effected, and an apparent loss of trust between the parties.

PART V: STRONG CASE THAT LIKELY TO SUCCEED?

i. Maha Lingham, etc.

6 6. It is settled law since at least the time of the ex tempore judgment delivered for the Supreme Court by Fennelly J. in Maha Lingham v. HSE [2006] 17 ELR 137, 140 that where a plaintiff employee is seeking a mandatory interlocutory injunction against her employer, it is necessary for the plaintiff "to show at least that he has a strong case that he is likely tosucceed at the hearing of the action". Additionally, per Clarke J. in Bergin v. Galway Clinic Doughiska Ltd [2008] 2 I.R. 205, 216:

"[Where a plaintiff employee] seeks to prevent a dismissal or a process leading to dismissal, as a matter of common law and in whatever terms the claim is couched, the employee concerned is seeking what is, in substance, a mandatory injunction....In those circumstances it is necessary for the employee concerned to establish a strong case in order to obtain interlocutory relief."

7 7. The court considers that the decision in Maha Lingham is applicable to, and thus binding upon it in, the within application. The court also respectfully agrees that the judgment in Bergin is correct in its statement of applicable law, though the court has in any event concluded that the various available reliefs being sought in the within proceedings are mandatory and thus that the burden of establishing the required "strong case" presents.

ii. Fair procedures?

8 8. Has Mr Boyle shown that he has a strong case in which he is likely to succeed at the hearing of the action? When it comes to fair procedures, principles evolve and particulars change: the requirements of natural and constitutional justice derive from current principle and are applied to present facts. As Barrington J., giving judgment for the Supreme Court, observed in Mooney v. An Post [1998] 4 I.R. 288, 298 "The terms natural and constitutional justice are broad terms and what the justice of a particular case will require will vary with the circumstances of the case" In the seminal decision of Glover v. BLN Ltd. [1973] I.R. 388, Walsh J. stated as a matter of general principle, at 425, that:

"[P] ublic 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."

9 9. However, on the particular facts of Glover, Walsh J. noted, at 425:

"The plaintiff was neither told of the charges against him nor was he given any opportunity of dealing with them before the board of directors arrived at its decision to dismiss him. In my view this...