Fanning v University College Cork

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 28 October 2008
• Neutral Citation: [2008] IESC 59
• Court: Supreme Court
• Docket Number: [S.C. No. 323 of 2005],[S.C. No.323of 2005]
• Date: 28 October 2008

THE SUPREME COURT

Hardiman J.

Geoghegan J.

Kearns J.

[S.C. No. 323 of 2005]

BETWEEN

CONNELL M. FANNING

PLAINTIFF/RESPONDENT

AND

UNIVERSITY COLLEGE CORK

DEFENDANT/APPELLANT

Abstract:

Employment law - Disciplinary procedures - Pre-Universities Act 1997 officer -Tenured - Incident - Alleged assault - Fair procedures - Whether broad range of disciplinary procedures could be invoked against pre-University Act 1997 appointee

Facts: An appeal was brought from a decision of the High Court which had held that the defendant was precluded from implementing its disciplinary procedures against the plaintiff arising from an incident that occurred in the staff car park of UCC in 2001, where the plaintiff was alleged to have assaulted a staff member. The plaintiff alleged that he was unable to obtain fair and impartial treatment and that the disciplinary procedures being invoked against him were not possible in light of his appointment prior to the Universities Act 1997, which entailed that limited disciplinary measures could be invoked against him, whereas after the Act of 1997, wider disciplinary measures could be invoked against academic staff. A Statute N had been adopted by UCC in 2008 to deal with pre-Universities Act officers, unless otherwise agreed.

Held by the Supreme Court per Kearns J (Hardiman, Geoghegan JJ. concurring) that the plaintiff was at all times an officer appointed prior to the Universities Act 1997 and was thus subject to a very limited disciplinary regime. He was bound only by statues or regulations of a college related to his duties and no further measures had been enacted that would enable disciplinary action against him. It was never open to the University to discipline the plaintiff in the omnibus manner suggested by the defendant. Statute N was an acknowledgment of the position of officers such as the plaintiff. They could be dealt with only on the basis of pre-1997 statues where the action interfered with their rights of tenure or conditions of service. The decision of the High Court would be upheld.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Kearns delivered the 28th day of October, 2008

2 This is an appeal brought from the judgment and order of the High Court (Gilligan J.) made on 24th June, 2005 wherein it was held that the defendant was precluded from implementing its disciplinary procedures against the plaintiff arising out of an incident which occurred in the staff car park on the campus of University College Cork (UCC) on 31st August, 2001.

BACKGROUND

3 On the 31st August, 2001, which was outside term, the plaintiff, who is a professor of economics employed in UCC, was walking his dog in the car park of the college campus during the lunch hour break and speaking to his wife on his mobile telephone. Ms. Joan Buckley, a staff member who worked in a different department and who did not know the plaintiff, had just got into her car in the car park and started the engine. As she went to drive forward, the plaintiff made a sudden gesture to her to stop the car which she duly did. A dog then appeared from directly in front of her and she realised the man had intended to warn her as she had not seen the dog in front of her car prior to that moment. The plaintiff then approached the car window at the driver’s side and began conversation with the driver. It is common case that a fairly heated exchange then ensued between them.

4 In her subsequent report to the Department of Human Resources of UCC, Ms. Buckley claimed that the plaintiff in the course of this altercation stuck his hand in the window and grabbed Ms. Buckley by the neck, squeezing and shaking her. According to Ms. Buckley the man was shouting and roaring while this occurred but because she was panicking she could not make out what he was saying. She reported that she drove off. The man, on her account, ran alongside the car as it moved persisting with the shaking motion until she lost him by driving off. The plaintiff for his part accepts that there was an incident with Ms. Buckley but vehemently denies that he assaulted her in the manner alleged or at all.

5 There were no witnesses to the event and the relevant security camera was out of operation. Having returned from lunch, Ms. Buckley reported the matter to security and provided a description of the man in question from which it became possible to identify the plaintiff. Ms. Buckley reported the matter to the Department of Human Resources on 6th September, 2001 and on 7th September, 2001 attended a meeting with a number of Department of Human Resources officials and furnished a written report of what she said occurred. At this meeting Ms. Buckley made it clear that she wished merely to report the matter and was not making a complaint as such. On the basis of the report, however, the Director of Human Resources, Mr. Noel Keely, at the request of the President of University College Cork, Professor Gerard Wrixon, was asked to deal with the matter and he wrote to the plaintiff on 13th September, 2001 stating that

6 “a serious allegation has been made by Ms. Joan Buckley (a member of staff of the University) that you assaulted her on Friday, 31 August, in the Aras ni Laoi car park on University property”.

7 The letter continued:

8 “Ms. Buckley has stated that she does not want to make a complaint regarding the alleged incident. However, she has, as the enclosed documentation makes clear, put the University on notice of her allegation against you. Therefore, I must, on behalf of the University, put to you this allegation and request your urgent written response to it.”

9 With that letter was enclosed a report of the meeting between Ms. Buckley and the members of the Department of Human Resources and a letter written by Ms. Buckley dated 4th September, 2001, together with the record of a meeting between various departmental staff in relation to the complaint on 7th September, 2001.

10 The plaintiff wrote to the President on 27th September, 2001 stating that in his view he was unable to receive fair and impartial treatment from the Director of Human Resources and further stating that he had in the past referred examples of Mr. Keely’s actions towards him to his legal advisors for attention. He did not in that letter respond specifically to Mr. Keely’s request that he furnish an urgent written response to the allegation advanced by Ms. Buckley. Mr. Keely wrote a further letter to the plaintiff dated 1st October fixing a deadline of 5 p.m. on Wednesday, 3rd October for a response. This letter may have crossed with a letter of the same date sent by the plaintiff’s solicitors to the Secretary of UCC wherein it was claimed that Mr. Keely’s letter and the statements attached thereto were grossly inaccurate, defamatory and contained very serious unfounded allegations which had damaged their client’s reputation. The

11 letter called upon the College authorities to apologise to the plaintiff and compensate him for his alleged loss and damage.

12 A letter which is critical to everything that followed was then sent to the plaintiff by Mr. Keely on 5th October, 2001. It states:

“Allegation by Ms. Joan Buckley

13 I refer to a letter which the University has received on your behalf from Stokes & Co., Solicitors, dated 1st October, 2001 regarding the above matter.

14 A copy of this letter was forwarded by me to Ms. Buckley on 2nd October accompanied by a letter requesting her to respond to your solicitor’s assertions that her version of the event was “grossly inaccurate, defamatory and contained very serious unfounded allegations”, in addition to requesting Ms. Buckley in that context to confirm her recollection of the incident. I attach a copy of that letter and a copy of Ms. Buckley’s response dated 3 October.

15 As Ms. Buckley has confirmed her original statement regarding this matter and in the absence of a substantive response from you, the University has no option but to consider the letter of 1st October from your solicitors as a denial of her allegation. I am writing to advise you that the University must now consider Ms. Buckley’s allegation as an allegation of gross misconduct on your part and, that given the circumstance, the University must now invoke its disciplinary procedures (attached) to deal with this matter.

16 While the procedures provide for the University to suspend with pay an employee alleged to have engaged in gross misconduct, the University is anxious to consider your substantive response to Ms. Buckley’s allegation before contemplating such action.

17 To that end the University has engaged the services of an independent person, namely Mr. John Horgan, former Chairman of the Labour Court, to conduct an investigation into this matter in line with its procedures. Mr. Horgan has indicated that he will commence the investigation on Thursday, 11th October and I would request that you make yourself available as required by him. He will be contacted early

18 next week with respect to an appointment. Every effort will be made to complete this investigation in as timely a manner as possible. Should you require further information as to the form the investigation process might take and your rights as an employee under the University’s disciplinary procedures, I suggest you contact Mr. Paul Ryan, Employee Relations Manager, who will be able to provide further information.

19 Having regard to the letter written on your behalf to the Secretary/Bursar of 1 October, I am contemporaneously faxing a copy of this letter to your solicitors, Stokes & Co. I also confirm that we have written to Ms. Buckley notifying her of the investigation by Mr. Horgan.”

20 As appears from the foregoing, the disciplinary procedures which it was proposed to apply to the plaintiff were attached to the said letter. It is important to interrupt the narrative at this juncture for the purpose of...