Darren Keogh v A v Pound & Company Ltd

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Allen
Judgment Date08 October 2021
Neutral Citation[2021] IEHC 640
Docket Number[2021 No. 2148P.]
Between
Darren Keogh
Plaintiff
and
A V Pound & Co. Limited
Defendant

[2021] IEHC 640

[2021 No. 2148P.]

THE HIGH COURT

Costs – Mootness – Interlocutory motion – Parties seeking costs – Whether the application was made moot by the unilateral action of the defendant in response to the motion

Facts: The plaintiff, Mr Keogh, on 9th March, 2021 was suspended from work by his employer pending an investigation into an allegation that he had failed to follow company policy by failing to disclose a personal relationship between himself and his immediate manager. By notice of motion issued on 7th April, 2021 the plaintiff applied for interlocutory injunctions restraining the continuation of the suspension and investigation. On 20th April, 2021 the defendant, AV Pound & Co. Ltd, lifted the suspension and on 28th April, 2021 notified the plaintiff that the investigation would not be proceeding. In those circumstances the substantive motion did not proceed but each side argued that the other should have to pay the costs. Both parties contended that the interlocutory application became moot by the lifting of the suspension and the abandonment of the investigation. The plaintiff’s case was that the application was made moot by the unilateral action of the defendant in response to the motion. The defendant argued that the motion was unnecessary and premature. The defendant contested the suggestion that the lifting of the suspension and the cessation of the investigation were precipitated by the motion and argued that this would have happened in any event.

Held by the High Court (Allen J) that while the necessity for the interlocutory orders sought by the plaintiff on 1st April, 2021 was overtaken by the lifting of the plaintiff’s suspension on 20th April, 2021 and the cessation of the defendant’s investigation on 28th April, 2021, the core issue as to the defendant’s entitlement to have suspended the plaintiff and initiate the investigation remained to be decided. In Allen J’s view the justice of the case required that whichever of the plaintiff or the defendant ultimately prevailed on that issue should have the costs of the interlocutory motion.

Allen J held that the costs of both parties of the interlocutory motion, and the plaintiff’s costs of the ex parte application for short service, would be costs in the cause.

Costs in the cause.

JUDGMENT of Mr. Justice Allen delivered on the 8th day of October, 2021

Introduction
1

On 9th March, 2021 the plaintiff was suspended from work by his employer pending an investigation into an allegation that he had failed to follow company policy by failing to disclose a personal relationship between himself and his immediate manager. By notice of motion issued on 7th April, 2021 the plaintiff applied for interlocutory injunctions restraining the continuation of the suspension and investigation. On 20th April, 2021 the defendant lifted the suspension and on 28th April, 2021 notified the plaintiff that the investigation would not be proceeding.

2

In those circumstances the substantive motion did not proceed but each side argued that the other should have to pay the costs. Both parties contend that the interlocutory application became moot by the lifting of the suspension and the abandonment of the investigation but for very different reasons. The plaintiff's case is that the application was made moot by the unilateral action of the defendant in response to the motion. The defendant, however, argues that the motion was unnecessary and premature. The defendant contests the suggestion that the lifting of the suspension and the cessation of the investigation were precipitated by the motion and argues that this would have happened in any event.

The evidence
3

On 7th January, 2019 the plaintiff commenced employment with the defendant as a shipping coordinator. Before taking up his employment the plaintiff was provided with a four page document which he signed on 12th December, 2018. The plaintiff refers to this four page document as his Contract of Employment but on its face, it is entitled “Statement of Main Terms of Employment” and provides that “ This Statement, together with the Employee Handbook, forms part of your Contract of Employment and sets out particulars of the main terms on which AV Pound & Co Limited [address] employs Darren Keogh.”

4

The Statement of Main Terms of Employment set out the plaintiff's job title as Shipping Coordinator reporting to the Group Financial Manager or his or her designate, and set out his place and hours of work, remuneration, holiday and sick pay entitlements and so on.

5

The Employee Handbook – which the plaintiff acknowledged he was provided with – was a 49 page booklet which addressed a number of matters such as employee training, performance and review, working time policy, study leave, behaviour at work and outside work and so on. Paragraph G, under the heading Intra Company Personal Relationship, provided:-

“Due to the nature of these relationships, the Company requires that you inform the Group HR Manager if you are involved in a relationship with another employee of the Company. The Company needs to be aware of potential Conflicts of Interest or any other matters that can arise in such situations.”

6

From at least January, 2021 the plaintiff was involved in a personal relationship with his line manager, Ms. Linda O'Brien. The plaintiff has deposed that the relationship started in January, 2021 but the defendant's HR manager has expressed the belief that it was ongoing for quite some time. On 22nd February, 2021 – in circumstances not spelled out by the plaintiff but to which I shall come – Ms. O'Brien reported the relationship to her manager, Ms. Michelle Bourke, who advised Ms. O'Brien to report it to Human Resources.

7

Between 25th February, 2021 and 8th March, 2021 the defendant's Group HR Manager, Mr. Mark Hele, conducted a series of five investigation meetings. On 9th March, 2021 the plaintiff was suspended on full pay pending what the defendant said was an investigation and the plaintiff insists was a purported investigation into a suggested failure by the plaintiff to follow company policy in disclosing the personal relationship. What was said in the defendant's letter of 9th March, 2021 was that the company had engaged the services of an independent professional to conduct the investigation and provide recommendations.

8

The plaintiff's case is that he was so shocked and distressed by the manner in which Mr. Hele had conducted the investigation and – as the plaintiff saw it – had prejudged his dismissal that he went on certified sick leave. The defendant contests the plaintiff's account or perception of what was said at those five meetings and categorically denies the suggestion of prejudgment. The defendant acknowledges that in the weeks immediately following the disclosure of his relationship the plaintiff was dealing with very personal and sensitive issues concerning his marital and romantic relationships and that the event was difficult for him but denies that it was responsible for the stressful issues in the plaintiff's private life.

9

By letter dated 16th March, 2021 the plaintiff, by his solicitors, demanded the immediate termination of what was said to be the purported investigation and his return to work: failing which he would apply for injunctive relief without further notice. The plaintiff asserted that the outcome of the investigation had been prejudged. He protested that he had been harassed, bullied and intimidated; that he had been defamed; that his contract of employment had been breached by a pre-determined investigation; and that the purported investigation was a sham and had been contrived with the sole purpose of terminating his employment. He also asserted that what was described as the purported requirement that he should report personal relationships breached his privacy rights, was discriminatory, and was wholly unjustifiable.

10

The plaintiff's solicitors' letter of 16th March, 2021 was acknowledged by the defendant by e-mail dated 19th March, 2021 by which Mr. Hele said that the defendant was seeking an independent opinion and would respond in due course. It was said that the plaintiff could rest assured that the company would handle the matter both fairly and equitably.

11

By letter dated 23rd March, 2021 the plaintiff's solicitors took the position that the defendant's response was wholly inadequate and failed to address any of the matters addressed in what they referred to as their initiating letter. They repeated the demand for the immediate cessation of what they characterised as the purported and contrived investigation and the plaintiff's immediate return to work, and the plaintiff's threat of a court application in the absence of confirmation by 29th March, 2021.

12

The defendant, as it had said it would, commissioned an external HR consultant to write a report on the potential impact of a personal relationship between a notional supply chain manager and a notional logistics coordinator on the working environment of a small and closely-knit team; the management of such a team; the handling by the manager of any complaints that might be made against the coordinator; the potential impact on other team members and so forth. The HR consultant expressed his opinion in a report of 23rd March, 2021. In short, his opinion was that the existence of a personal relationship between a manager and a subordinate could compromise judgment, decisions or actions in the workplace and so give rise to a conflict of interest. That report was sent to the plaintiff by e-mail on 24th March, 2021 with an invitation to him to make any observations on it and respond: which he never did.

13

At about the same time the defendant instructed solicitors who wrote to the plaintiff's solicitors on 26th March, 2021, in response to the latter's letters of...

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