Charlton v HH The Aga Khan’s Studs Société Civile

• Jurisdiction: Ireland
• Judge: Justice Laffoy
• Judgment Date: 22 December 1998
• Neutral Citation: [1998] IEHC 186
• Docket Number: No. 9515 P/1998
• Court: High Court
• Date: 22 December 1998

CHARLTON v. H.H. THE AGA KHAN'S STUDS SOCIETE CIVILE

BETWEEN

MARY CHARLTON

PLAINTIFF

AND

H. H. THE AGA KHAN'S STUDS SOCIETE CIVILE

DEFENDANT

[1998] IEHC 186

No. 9515 P/1998

THE HIGH COURT

Synopsis

Employment

Employment; interlocutory injunction; discipline; fair procedures; sick pay; inquiry held as to disciplinary matters concerning the plaintiff as employee of the defendant; allegation of improper use of the resources of the defendant; whether there was a denial of fair procedures; whether it is an investigation or a disciplinary process; whether a hearing in compliance with natural and constitutional justice can be assured; whether damages would be an adequate remedy; whether balance of convenience favours granting an injunction to restrain the inquiry; whether there was an implied term that the plaintiff was entitled to sick pay while absent from work on medical grounds Held: Injunction granted; plaintiff entitled to sick pay, on condition that she produce a medical certificate - (High Court: Laffoy J. - 22/12/1998)

Charlton v. H.H. The Aga Khan's Studs Societe Civile

The plaintiff who had given an undertaking as to damages had established that there were fair issues to be tried and that the balance of convenience favoured an injunction preventing further prosecution of the enquiry into the allegations made against her. The High Court so held in granting the relief sought and further saying that the plaintiff was entitled to sick pay pending the determination of the action.

Citations:

HUBBARD V VOSPER 1972 1 AER 1023

HALSBURYS LAWS OF ENGLAND 4ED V16 PARA 24

FENNELLY V ASSICURIZONI GENERALI SPA 1985 3 ILTR 73

Justice Laffoy

delivered on the 22nd day of December, 1998

1 In these proceedings, which were instituted by Plenary Summons which issued on 28th August, 1998, the Plaintiff seeks, inter alia, various declarations and injunctions in relation to her position as an employee of the Defendant. On this application, which was initiated by a Notice of Motion which was contemporaneous with the Plenary Summons, the Plaintiff Summons. In reality, however, two matters only arise for consideration on this application, namely, whether pending the trial of the action:-

2 (a) the Defendant should be restrained from continuing an enquiry into disciplinary matters of which the Plaintiff was first notified by letter dated 28th July, 1998 from the Defendant's Personnel Manager, Frank Faughnan (Mr. Faughnan); and

3 (b) the Defendant should be obliged to pay to the Plaintiff sick pay during her absence from work on medical grounds and the other perquisites of her employment.

4 In July 1998 the Plaintiff had been in the employment of the Defendant for 27 years as secretary to the Manager of the Defendant's Studs in Ireland. From 1975 until in or about June 1998 the Manager of the Studs was a Mr. Drion, and throughout that period the Plaintiff acted as Mr. Drion's secretary and took her institutions from him. In July 1998 her gross salary was £1,286,13 per month. She was also paid an annual bonus in line with other equivalent employees. The sum of £68,64 per month was deducted from her salary to fund a pension. It is not in controversy that the Plaintiff applied herself diligently on the Defendant's behalf over the years and can point to a work and attendance record which bears favourable comparison with any of her co-workers.

5 On the afternoon of 28th July, 1998 Mr. Faughnan handed a letter written by him to the Plaintiff. Earlier on the same afternoon there was a brief discussion between Mr. Faughnan and the Plaintiff in relation to the matter which was covered by the letter. There is some conflict as to what transpired during that discussion. In any event, in the letter which was headed, "Enquiry into disciplinary matters", Mr. Faughnan confirmed that he was holding an enquiry "into matters relating to your involvement in the improper use of HH the Aga Khan's Studs' resources and/or property". It was stated that an enquiry, conducted by Mr. Faughnan, would take place on 4th August, 1998 at 10 a.m. at which Mr. Faughnan would be enquiring, in particular, into the Plaintiff's role in the improper use of the Studs' resources by certain individuals, including Mr. Drion, and certain companies and institutions. The Plaintiff was told that she might attend with a representative, if she wished, and that she would be presented with material bearing on the matter being enquired into and would have an opportunity of asking questions and "of presenting a defence". The Plaintiff was advised that the matter was "most serious" and she might wish to take advice. Specifically she was apprised of the possible outcome of the enquiry in the following terms:-

"If it is determined that you were involved in assisting any of the above in the improper use of the Studs' resources, disciplinary action may be taken against you up to and including your dismissal".

6 On the following day, 29th July, 1998, the Plaintiff was furnished with a written statement of the allegations of misconduct being enquired into, namely, at various times during the period 1988 to 1998 being involved in the following activities:-

7 (1) Using the Defendant's resources in the production of invoices and/or instructions on behalf of persons or companies or entities whose operations were damaging to the interests of the Defendant;

8 (2) Assisting in the administration on behalf of various persons or companies or entities, such companies' and entities', operations and activities being damaging to the interests of the Defendant; and

9 (3) Assisting in the administration on behalf of various persons or companies or entities involved in the fraudulent use of the Defendant's property or resources.

10 The various persons, companies and entities were identified and included by Mr. Drion, and the various resources were identified as the Defendant's farms in Co. Kildare, transport owned by the Defendant, staff and computers.

11 By letter dated 30th July, 1998 to Mr. Faughnan, the Plaintiff's solicitors sought a postponement of the enquiry and sought "material bearing on the matter being enquired into" which had been promised. By letter dated 31st July, 1998 both requests were refused and the commencement of the enquiry on 4th August, 1998, the Tuesday after the August Bank Holiday, was confirmed. By further letter of 31st July, 1998 the Plaintiff's solicitors sought particulars in relation to the enquiry and this elicited a faxed response dated 1st August, 1998, the Saturday of the August Bank Holiday weekend, indicating that Mr. Faughnan would deal with the Plaintiff's requests at the hearing on the following Tuesday in the course of setting out the procedural aspects of the enquiry and requiring that the Plaintiff attend the enquiry.

12 In the events, the Plaintiff did not attend on 4th August, 1998. On that date her solicitors informed Mr. Faughnan that the Plaintiff was then not in a position to attend the enquiry, that she was under the care of her doctor and that verifying medical certification would be furnished.

13 By letter dated 4th August, 1998 Mr. Faughnan apprised the Plaintiff that the enquiry would be held on Friday, 7th August, 1998 and that the Plaintiff was required to attend at that time. Mr. Faughnan furnished to the Plaintiff's solicitors certain documentation, including an outline of the procedures which would be followed at the enquiry, five pages of questions which it was intended to put to the Plaintiff and a list of fifteen documents relating to the enquiry, including copies of the documents in question. As to the conduct of the enquiry, the documentation indicated that Mr. Faughnan intended that his decision would be made without any undue delay and that, as soon as he had come to a view on the allegations, he would inform the Plaintiff and arrange a meeting at which she could be represented. If the she were to make "a determination of misconduct", the Plaintiff or a representative might make submissions on her behalf before "any question of consequences or punishment are considered". Subsequently, the Plaintiff presented a medical certificate from her General Practitioner certifying that she was unfit for work and her solicitors informed Mr. Faughnan that she would not be attending the enquiry on 7th August, 1998.

14 The enquiry was subsequently postponed until 14th August, then until 25th August and, finally, to 3rd...