Cassidy v Shannon Castle Banquets & Heritage Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Declan Budd
• Judgment Date: 30 July 1999
• Neutral Citation: [1999] IEHC 245
• Docket Number: 1691p/1999
• Court: High Court
• Date: 30 July 1999

[1999] IEHC 245

THE HIGH COURT

1691p/1999

CASSIDY v. SHANNON CASTLE BANQUETS & HERITAGE LTD.

BETWEEN

TOM CASSIDY

PLAINTIFF

AND

SHANNON CASTLE BANQUETS AND HERITAGE LIMITED

DEFENDANT

Citations:

MOONEY V AN POST 1998 ELR 238

GUNN V BORD AN CHOLAISTE NAISIUNTA IS DEARTHA 1990 2 IR 168

RIDGE V BALDWIN 1964 AC 40

GLOVER V BLN LTD 1973 IR 388

GALLAGHER V REVENUE COMMISSIONERS 1991 2 IR 370

GALLAGHER V REVENUE COMMISSIONERS (NO 2) 1995 1 IR 55

HAUGHEY, IN RE 1971 IR 217

KIELY V MIN FOR SOCIAL WELFARE 1977 IR 267

CONSTITUTION ART 40.3

RUSSELL V DUKE OF NORFOLK 1949 1 AER 118

HENEGHAN V WESTERN REGIONAL FISHERIES BOARD 1986 ILRM 225

O'DONOHUE V VETERINARY COUNCIL 1975 IR 398

MAHER V IRISH PERMANENT PLC 1998 4 IR 302

GEORGOPOULUS V BEAUMONT HOSPITAL BOARD 1998 3 IR 142

PARSONS V IARNROD EIREANN 1997 ELR 203

UNFAIR DISMISSALS ACT 1977

GARVEY V IRELAND 1981 IR 76

CHANCERY (IRL) ACT 1867 S155

O'DONNELL V DUN LAOGHAIRE CORP 1991 ILRM 301

Synopsis

Employment

Employment; dismissal; administrative; natural justice; audi alteram partem; nemo iudex in causa sua; allegation of unwanted sexual advances by plaintiff made by fellow employee of plaintiff in defendant company; investigation; plaintiff dismissed on grounds of gross misconduct; plaintiff seeks order that purported dismissal was in breach of natural and constitutional justice and was invalid; whether plaintiff was entitled to be furnished with copy of complainant's statement and medical report; whether an adequate opportunity was given to the plaintiff to be heard; whether role of plaintiff's solicitor was nullified by denying her the complainant's statement and an opportunity to make representations and submissions; whether general manager of defendant company acted as judge in his own cause.

Held: The conduct of the investigation by defendant did not comply with the requirements of natural justice; declaration granted.

Cassidy v. Shannon Castle Banquets and Heritage Limited High Court: Budd J. 30/07/1999

That declaratory relief is available in employment situations unless precluded by pursuing rights under the Unfair Dismissals Act. That “fair hearing” means to be treated fairly according to the ordinary reasonable standards of fair play. That the employer is obliged to apply the rules of natural and constitutional justice in investigating misconduct. That if an employer does not provide the employee with either a full account of the allegations made against him, or an opportunity to refute the allegations a subsequent dismissal is unlawful. The court so held in granting the relief claimed.

1 30th day of July 1999 by Mr. Justice Declan Budd BACKGROUND HISTORY

2 The Plaintiff is a forty two year old archaeologist who was employed by the Hunt Museum Trust and worked at Craggaunowen on short term contracts in 1985/6 and from 1989 on a three year contract and from 1992 on a long term contract on a pay scale which he says was related to the remuneration of State archaeologists. The Hune Museum Trust subsequently granted the Craggaunowen site to the Shannon Free Airport Development Company (SFADCO) which assigned it to the Defendant Company (" the Company") so that from 1989 the Plaintiff was employed was employed with curatorial and managerial duties the Company. The main offices of the Company are at Bunratty. The Plaintiff had responsibilities at Craggaunowen and at Lough Gur as well as at Bunratty.

3 On 23rd December 1998 a fellow employee, a cottage supervisor, employed on a seasonal basis at Craggaunowen, made an allegation of unwanted sexual advances having been made to her by the Plaintiff on the evening of 12th October, 1998 in a public house in Tulla and later outside the gates of Craggaunowen when she was driving the Plaintiff home. An investigation was instituted by the Company in the New Year and on 29th January 1999 the Plaintiff was dismissed by the Company on the grounds of gross misconduct. Proceedings were instituted on behalf of the Plaintiff by Plenary Summons issued on 17th February 1999 claiming that the Company had acted of the rules of Natural and Constitutional Justice in the purported termination of the Plaintiff's employment on 29th January 1999.

4 I stress at the outset that the issue to be decided is as to whether the procedures adopted by the Company in respect of the investigation, which concluded in the dismissal of the Plaintiff, were flawed. This Court is not making any decision whatsoever on the merits of the Complainant's allegations against the Plaintiff. Indeed, the Complainant had the ordeal of having to sit and listen to evidence and arguments over a number of days about the propriety of the methods adopted for the inquiry into her complaints by the Defendant Company. she was not called as a witness and the genuineness of her complaint is not the issue in question. Regrettably because of the circumstances of the actual matters in contention before this Court, it is necessary to give an outline of the background to her complaint and the course of the subsequent investigation conducted by the Company into her allegations which resulted in the Plaintiff''s dismissal for gross misconduct.

5 The Complainant is a married woman with children, two of whom are of age to be at University. She joined the Defendant company in 1993 as costumed interpreter at Craggaunowen. She became cottage supervisor with responsibility for a staff of about sixteen during the summer season from March to October. The Plaintiff was her superior in the Company hierarchy.

6 On 12th October, 1998 both the Plaintiff and the Complainant had attended the funeral of the sister of a member of the staff. About twenty people went on to a public house in Tulla after the funeral. By mid-afternoon the Plaintiff had consumed more drink than he should have and he himself said that he should not drive his car. The Complainant agreed to give the Plaintiff a lift home. Before 6.00p.m. an allegedly occurred at the telephone in the public house involving the Plaintiff and the Complainant who construed what happened as an improper and unwanted advance. Despite this incident and the Plaintiff's inebriated condition, the Complainant did Plaintiff in her car to the house of the bereaved friend. They stayed there for a mere few minutes as the bereaved friend was absent and only his son and his girlfriend were there. On the way to the Plaintiff's home the Complainant stopped the car near the gates of Craggaunowen and a further advance was made which the Complainant found objectionable. The Plaintiff also vomited over her car both inside and outside. She left the Plaintiff at his home at about 8.00p.m.

7 The Complainant returned to the public house soon after 8.00p.m. and spoke to Delma Carroll who was not yet ready to leave. The Complainant went away and came back at around 10.30p.m. and stayed until 1.00a.m. Next morning, as the Plaintiff had left his car near the public house, the Complainant picked him up along with his child and dropped the child off on the way and then left the Plaintiff to Craggaunowen. No complaint was made, but on 14th October 1998 there was a brief discussion which the Plaintiff felt had cleared the air; in particular he apologised for vomiting over her car. Nothing of significance seems to have occurred in the fortnight before the end of the season. In November 1998 the Complainant went abroad and she sent the Plaintiff a postcard from Australia. She also had telephoned the Plaintiff's wife to wish her well with her new baby and left a present for the baby in the Plaintiff's car. Later on she sent them a Christmas card. Both the Complainant and the Plaintiff had attended a Celtic festival, the Samhain celebrations, on 31st October 1998, a staff party on 4th November 1998, and the Christmas party without recriminations or unpleasantness.

THE COMPLAINT AND INVESTIGATION

8 On 21st December 1998 the Complainant telephoned Paul Adams, the General Manager of the Company and said that she wished to meet him. She met Mr. Adams on 22nd December 1998 and complained about incidents on 12th October 1998. She then attended a meeting on 23rd December 1998 with Mr. Adams and Hughes, the Human Resources Manager of SFADCO. Ms Hughes made a manuscript note of this meeting which she retained until 5th January 1999 when she typed it up in memo form. She then took this typescript memo to a further meeting with the Complainant and Mr. Adams on 5th January 1999. Corrections to the memo were then made by Deirdre Hughes at the behest of the Complainant and a number of additions were also typed in towards the end of the memo. Ms Hughes then destroyed the manuscript notes of both meetings and the typed-up and corrected memo so that only the amended memo with additions as signed by the Complainant on 5th January 1999 survives.

9 On 6th January 1999 the Plaintiff was called to a meeting by Mr. Adams to be held at 10:00a.m. on Thursday 7th January 1999. The Plaintiff though that this was to address his along standing grievance about his grading and salary scale. He felt that he was due an eventual response to his long and careful letter seeking redress sent to Mr. Adams on 4th February 1998. Instead Mr. Adams, in the presence of Ms Hughes informed the Plaintiff of a serious complaint having been made against him in respect of his conduct on 12th October, 1998. The Plaintiff was very shocked. He was told that he would be sent a letter outlining the complaint. This letter dated 7th January 1999 was received by him at 3.30p.m. at Craggaunowen. It gave a brief and incomplete outline of the allegations and sought a response from him either on the next day, or early the next week.

10 On Friday 8th January 1999, on the advice of Maeve Callanan, his Solicitor, the Plaintiff telephoned Mr. Adams and requested the original written complaint. On Monday 11th January 1999, at...