O'Connor v Adigun Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Twomey
• Judgment Date: 09 March 2017
• Neutral Citation: [2017] IEHC 123
• Docket Number: [2017 No. 1221P]
• Court: High Court
• Date: 09 March 2017

[2017] IEHC 123

THE HIGH COURT

CHANCERY

Twomey J.

[2017 No. 1221P]

BETWEEN:

MARLA O'CONNOR

PLAINTIFF

-AND-

ADIGUN LIMITED

DEFENDANT

Employment – Interlocutory injunction – Restrain on disciplinary proceedings – Denial of fair procedures

Facts: Following the grant of an ex-parte injunction by the High Court, the plaintiff now sought an order for interlocutory injunction against the defendant for restraining the defendant from holding the proposed disciplinary hearing against the plaintiff. The plaintiff, who worked as a pharmacist in a pharmacy owned by the defendant, argued that since the outcome of the proposed disciplinary procedure was known to the defendant, the plaintiff would be denied fair procedures.

Mr. Justice Twomey refused to grant the desired relied to the plaintiff. The Court found that the plaintiff did not disclose the full facts to the Court while obtaining an ex-parte injunction earlier. The Court held that the relevant letter issued by the defendant in relation to the initiation of disciplinary hearing provided for the right to effective hearing to the plaintiff with or without the aid of counsel with further right of appeal and thus, it could not be said that there was denial of fair procedures. The Court found that the plaintiff herself averred in her affidavit that she had previously been involved in seven incidents of dispensing error, which was a matter of concern for the defendant. The Court observed that since the defendant had allowed the plaintiff to acquire her employment rights supports and did not dismiss her from the services, it was clear that the defendant afforded fair procedures to the plaintiff.

EX TEMPORE JUDGMENT of Mr. Justice Twomey delivered on the 9th day of March, 2017.

1 The plaintiff is a pharmacist in a pharmacy known as “Burke's Pharmacy” which is owned by the defendant. In these proceedings, she seeks, inter alia, an interlocutory injunction restraining the defendant from taking any further steps in a disciplinary procedure against her in connection with an alleged dispensing error by her, which it is alleged constitutes gross negligence on her part. The plaintiff alleges that this proposed disciplinary procedure breaches her right to fair procedures since, inter alia, the outcome of the procedure has been pre-determined by the defendant. An ex parte injunction restraining the holding of the disciplinary hearing was granted by Gilligan J. on the 9th February, 2017.

Ex parte proceedings before Gilligan J.

2 This Court will first refer to the ex parte proceedings before Gilligan J. The background to those proceedings is that the alleged dispensing error took place on the 1st February, 2017, when the plaintiff was working in the pharmacy, although the defendant did not become aware of it until the 3rd February, 2017, on which date the plaintiff was off work. This may have been why the two letters from the Company which were given to the plaintiff on the 6th February, 2017, incorrectly refer to the dispensing error having occurred on the 3rd February, 2017. However, the managing director of the defendant, Ms Joan Kilgallen, avers in her affidavit dated 23rd February, 2017 that there was a conversation between her and the plaintiff on the 2nd February, 2017, regarding the alleged dispensing error which would have made it clear to the plaintiff that the alleged error took place on the 1st February and not on the 3rd February. The plaintiff, in her affidavit for these proceedings which was sworn on the 2nd March, 2017, accepts that Ms. Kilgallen discussed the dispensing errors with her on the 2nd February, 2017, although in this affidavit the plaintiff puts the matter as follows:-

‘I say that I went through the dispensing errors briefly with Ms. Kilgallen via telephone conversation on the 2nd February.’

3 On this basis therefore, it is this Court's view that the plaintiff knew that there was an allegation of a dispensing error against her which had occurred on the 1st February, 2017. In this context, it is relevant to note that in seeking an ex parte injunction before Gilligan J. the plaintiff swore an affidavit dated 9th February, 2017. In this affidavit, she exhibited two letters from the defendant dated 6th February, 2017. The first letter suspended the plaintiff on full pay, while the second letter notified her of the disciplinary hearing scheduled for 9th February, 2017. In both letters reference is made to the dispensing error having been made on the 3rd February, 2017 rather than on the 1st February, 2017. In her affidavit before Gilligan J. the plaintiff makes no reference to her conversation with Ms. Kilgallen which had taken place just seven days previously on the 2nd February, 2017 and during which they discussed the dispensing error which occurred on the 1st February 2017. Instead she baldly avers that:-

‘Your Deponent did not attend work with the Defendant on 3rd February 2017 so I am ( sic) do not understand how it is alleged that I could have dispensed incorrect medication on that date.’

4 Gilligan J. was therefore presented with facts that suggested that there was absolutely no way that the plaintiff could have been guilty of the alleged dispensing error, since she was not working on the relevant date, when the truth was that the plaintiff knew that the dispensing error had taken place on the 1st February, 2017 and she would have also known that the reference in the letter to the 3rd February, 2017, should have been to the 1st February, 2017. The impression was given therefore to Gilligan J., in the proceedings in which the defendant was not represented, that the defendant was knowingly embarking upon a disciplinary procedure in relation to which the defendant knew, or should have known, that the plaintiff was innocent.

5 In ex parte proceedings, it is well established, most recently in the judgment of Keane J. in McDonagh v Ulster Bank [2014] IEHC 476, that the applicant party is...