Buttimer v Oak Fuel Supermarket Ltd Trading as Costcutter Rathcormac

• Jurisdiction: Ireland
• Judge: Mr Justice Dignam
• Judgment Date: 23 February 2023
• Neutral Citation: [2023] IEHC 126
• Court: High Court
• Docket Number: [RECORD NO 2022/2038 P]

Between

Anna Buttimer

Plaintiff

and

Oak Fuel Supermarket Limited Trading As Costcutter Rathcormac.

Defendants

[2023] IEHC 126

[RECORD NO 2022/2038 P]

THE HIGH COURT

Judgment of Mr Justice Dignam delivered on the 23 ^rd day of February 2023 .

Introduction and Background

1 This matter comes before the Court by way of an application by the plaintiff for interlocutory Orders:

• (i) restraining the defendant from treating the plaintiff as otherwise than employed by the defendant;

• (ii) requiring the defendant to pay the plaintiff's salary and associated emoluments and benefits as they fall due in addition to bonuses and commissions owed;

• (iii) restraining the defendant from taking any steps to appoint any other person to the Plaintiff's position or from assigning the plaintiff's duties to any other person;

• (iv) restraining the defendant from terminating the plaintiff's contract of employment other than in accordance with the plaintiff's contractual and legal entitlement;

• (v) restraining the defendant from treating the plaintiff as other than continuing to be employed by the defendant;

• (vi) restraining the defendant from publishing or communicating to any party that the plaintiff is no longer connected with the defendant company.

2 At its core, the dispute between the parties lies in a conflict as to what occurred between the parties on the 17 ^th and 18 ^th May 2022. It is first necessary to set out the background to the events of those days.

3 The defendant operates a fuel station and shop in Rathcormac, Cork. The plaintiff commenced employment with the defendant on the 7 ^th March 2022 as a supervisor with a promise that, subject to performance, she would be promoted to the position of store manager in a month's time. From the beginning of her employment, she performed the role of manager. Mr Mullane, the defendant's operations manager, who recruited the plaintiff, told the other staff that the plaintiff was store manager from the date of her commencement. The plaintiff did not have any previous experience as a manager.

4 Towards the end of March, an employee made a number of allegations against the plaintiff. Mr. Mullane, who swore the affidavits on behalf of the defendant, deposes that this employee made him aware on the 24 ^th March 2022 of issues that she had with the plaintiff and then put these allegations in writing on the 31 ^st March. He describes them as centering on “ the Plaintiff's management duties and interpersonal relationship with her at work.” The full detail of these allegations is not relevant to the current dispute but the nature of some of the allegations is of relevance. I therefore propose to summarise the relevant allegations. They were (as described in the plaintiff's grounding affidavit) that the plaintiff had said of the complainant that she was “ all smiles, laughing and talking to everyone we don't see the real [Mary]” (this is not her real name – her name is not relevant to the issues); that the plaintiff had concealed certain conversations; that she had told the complainant that she, the complainant, could leave her job because there were multiple people looking for employment; and that the plaintiff used foul language and inappropriate commentary. The plaintiff's view is that these allegations were made against her as part of an effort by a number of staff members to have her removed. The Court does not have to deal with this.

5 On the 1 ^st April 2022 the defendant engaged the services of an external human resources consultancy firm to carry out a formal investigation into these allegations. The plaintiff was told by the firm conducting the investigation in a letter of the 6 ^th April that it would be conducted in accordance with the defendant's Bullying and Harassment policies and relevant codes of practice. The letter also referred to the company's disciplinary procedure and set out the terms of reference for the investigation.

6 The letter stated, inter alia:

“Oakfuel Ltd t/a Costcutter Rathcormac has engaged our services to formally investigate a complaint which has been received from your colleague…

This investigation will be conducted as a formal investigation in accordance with Company's Bullying and Harassment policy and the relevant Codes of Practice. I have enclosed a copy of this policy for your attention, along with the Terms of Reference, as the investigation will be conducted in line with the procedure laid out in these policies. Please review the attached Terms of Reference document. I would appreciate if you would sign this document and return a signed copy to me by 4pm on Friday 8 ^th April 2022.

…

Please note that there is no presumption at this point of any wrongdoing by any person – the purpose of this investigation is to give every person involved an opportunity to explain the situation from their perspective, so that we come to fair and reasoned conclusion as to what might have happened and what actions may be necessary to resolve the matter. The investigation will be conducted with objectivity and sensitivity, discretion and with due respect for the rights of all parties concerned.

However, please note that if this investigation should conclude that any of the parties to be investigated have been involved in some form of misconduct, then the company may decide to proceed this matter through its Disciplinary procedure, which may lead to sanctions up to an including dismissal.

…”

7 The terms of reference which were attached to the letter provided, inter alia:

“ The investigation will be completed in accordance with these Terms of Reference, the relevant Bullying and Harassment policy and the relevant Codes of Practice. The Company Disciplinary Procedure may also apply if the matters alleged are substantiated by the Investigator.”

8 They also set out a detailed process for the investigation and provided that:

“ The principles of Natural Justice will be applied at all times. The burden of proof in substantiating complaints made, is on the balance of probabilities.”

9 The details of the investigation are not relevant to the issue before the Court other than to note (because the parties rely on these points) (i) that the plaintiff told the investigator that this was her first managerial position and that she had undoubtedly made mistakes and would do certain things differently, but that she had not bullied or harassed anyone (these comments are reflected in the plaintiff's affidavits), and (ii) that the investigation progressed during April and May and was still ongoing on the 17 ^th May when the plaintiff was told her employment was being brought to an end.

10 The plaintiff was promoted to the position of store manager on the 25 ^th April 2022 while this investigation was continuing. As noted above, she had been performing this role since the beginning of her employment and indeed, Mr. Mullane had told the other staff that the plaintiff was store manager from the date of her commencement.

11 The plaintiff signed her contract of employment as store manager on the 25 ^th April 2022. It may be worth pausing to refer to some of the features of the contract as they form a central part of the defendant's case.

12 The contract was of indefinite duration, terminable on one week's notice after completion of thirteen week's service, subject to a probationary period of six months extendable for a further five months. The contract provided that during that probationary period management would regularly assess the plaintiff's performance and monitor her progress and that if feedback was given it had to be listened to because if she was reasonably deemed unsuitable, she would not pass the probationary period and would be let go. The Introduction Section of the contract stated that the Company Handbook and Safety Statement outline a variety of policies and procedures in place within the company. It goes on to say “ while these policies and procedures do not form part of your Contract of Employment the company requires you to comply with the content of these documents. Failure to do so may, after a full investigation, result in disciplinary action being considered.” It also stated that where there was conflict between the contract and the Handbook, the terms of the contract prevailed. The Handbook stated that it, along with the contract of employment, formed part of the terms and conditions of employment.

13 The Handbook provides, under the heading “ Disciplinary Procedure”:

“ This procedure applies to all employees. Standards of conduct and performance etc. are required in any organisation to ensure order, effective operation of the business and a safe and healthy working environment. This policy has been written to ensure that if standards are believed to be lacking – or a breach is believed to have occurred – there should be a fair and systematic approach to investigating these matters and to taking appropriate corrective action.

Standards of conduct are – though not exclusively – those defined by company rules and procedures by legal requirements and by what is generally recognised as acceptable workplace performance and behaviour.”

14 It then defines misconduct as referring to:

• “• Breaches of standards of behaviour – The failure to adhere to acceptable and appropriate levels of conduct.

• • Breaches of company rules and regulations or the failure to adhere to them.

• • Failure to carry out instruction of Supervisors, Managers or Directors.”

15 While the section of the Handbook quoted above states that “the disciplinary procedure applies to all employees”, the contract of employment states that “ The standard disciplinary procedure will not be used during the probationary period”.

16 Section 15 of the contract provides that “ The company requires all employees mutually respect each other and has a Dignity at Work policy in place which details our stance on Bullying...