Fanning v University College Cork

• Jurisdiction: Ireland
• Judge: Mr. Justice Gilligan
• Judgment Date: 24 June 2005
• Neutral Citation: [2005] IEHC 264
• Court: High Court
• Date: 24 June 2005

[2005] IEHC 264

THE HIGH COURT

No. 15653p/2001

Fanning v University College Cork

BETWEEN

CONNELL M. FANNING

PLAINTIFF

AND

UNIVERSITY COLLEGE CORK

DEFENDANT

Abstract:

Employment law - Disciplinary proceedings - Whether the defendant was entitled to initiate disciplinary proceedings against the plaintiff and if so permitted, whether those disciplinary procedures properly complied with - Irish Universities Act,1908 - National University of Ireland (NUI) Statute 86 (1951)

Facts: The plaintiff, who was a Professor of Economics and Head of the Department of Economics at University College Cork (UCC) was the subject of a disciplinary inquiry arising out of a complaint by a fellow employee that he had assaulted her. However in compliance with a court order, the result of that inquiry was placed in a sealed envelope in a safe pending the outcome of these proceedings. The plaintiff sought a number of declarations including a declaration that the disciplinary procedure promulgated by the defendant and used against him was unlawful and ultra vires the defendant and further a declaration that the aforementioned disciplinary procedure did not apply to the plaintiff having regard to this statutory appointment. Specifically the plaintiff alleged that as he was appointed pursuant to the Statute of the NUI, it was the Senate of the NUI alone who had the power to remove him from office. He submitted that the defendant had no disciplinary powers over statutorily appointed Professors and accordingly had no disciplinary jurisdiction over him, and therefore the procedure implemented against him was ultra vires.

Held by Gilligan J. in favour of the plaintiff:

That the provisions of NUI Statute 86 entitled the defendant to regulate the plaintiff’s conduct only insofar as such conduct related to the giving of lectures by the plaintiff and/or the provision of assistance to his students. Consequently, applying the maxim expressio unis est exclusio alterius it was clear that the defendant was not entitled to exercise disciplinary jurisdiction over the plaintiff in relation to the alleged incident the subject matter of these proceedings as that incident was totally unrelated to any failure on the plaintiff’s part to give lectures or provide his students with assistance.

Reporter: L.O’S.

1 Mr. Justice Gilligan delivered on the 24th day of June, 2005 .

2 The plaintiff in these proceedings is Professor of Economics and Head of the Department of Economics at University College Cork. He joined the Department of Economics at the University in 1978 as a Junior College Lecturer and in 1980 was appointed Statutory Lecturer in Economics. From 1985 to 1989 he was the Dean of the Faculty of Commerce and in 1988 was appointed Acting Head of the Department of Economics. In 1989 he was promoted to Associate Professor of Economics and in 1990 he was appointed by statute of the National University of Ireland as Professor of Economics which post included being Head of the Department of Economics. This claim arises out of an attempt by the defendant to apply certain disciplinary procedures to the plaintiff arising from an incident which allegedly occurred on 31st August, 2001, in a staff cark park on the campus of University College Cork. On the occasion in question which was outside term the plaintiff attended at the university for the purpose of work but brought his dog with him, leaving him in the car. During the lunch hour break the plaintiff was walking his dog in the car park and speaking to his wife on his mobile telephone. Ms. Buckley who works in a separate department and who did not know the plaintiff, as he did not know her, was driving her car from a parked position in the car park when the plaintiff became concerned that she might injure his dog which Ms. Buckley had failed to see. This led to an exchange of words between the plaintiff and Ms. Buckley, with Ms. Buckley alleging that the situation became heated and the plaintiff put his hand in the window and grabbed her and began tugging at her neck. While he did so, she drove off causing the plaintiff to release her. The plaintiff accepts that there was an incident with Ms. Buckley but vehemently denies that he assaulted her in anyway.

3 Ms. Buckley reported the matter to the Department of Human Resources on 6th September, 2001, and on the 7th September, 2001, attended a meeting with a number of Department of Human Resources officials and furnished a written account as to what she says occurred. Ms. Buckley made it clear that she wished merely to report the matter and was not making a complaint as such. However, on the basis of the report, the Director of Human Resources 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. The plaintiff wrote to the President of University College Cork on the 27th September, 2001, stating that in his view he was personally unable to receive fair and impartial treatment from the Director of Human Resources and that he had referred examples of Mr. Keely's actions towards him to his legal advisor for attention.

4 In the absence of any reply to the letter of the 13th September, 2001, from the plaintiff, Mr. Keely wrote again on the 1st October, 2001. By letter of 3rd October, 2001, he received confirmation from Ms. Buckley that everything in her account of events was completely accurate and she wished to change nothing.

5 Mr. Keely informed the plaintiff that Ms. Buckley's allegation must be regarded by the University as an allegation of gross misconduct and it was proposed to invoke the University's disciplinary procedures to deal with the matter. It was pointed out however that while the disciplinary procedures provided for the suspension by the University with pay of an employee alleged to have engaged in gross misconduct, the University was anxious to consider Professor Fanning's substantive response to the allegation before contemplating such action and, with this in mind, the University retained John Horgan, a former Chairman of the Labour Court, to conduct an investigation into the matter. The reason why Mr. Horgan was appointed was due to allegations made against the University by the plaintiff's solicitors in a letter as dated 1st October, 2001, and to the allegations as made against Mr. Keely by the plaintiff in his letter of 27th September, 2001.

6 Neither Ms. Buckley nor the plaintiff participated in the enquiry as carried out by Mr. Horgan and he was left to conduct the enquiry relying on written documentation and by interviewing certain identified third parties. In the background, the solicitors for the plaintiff and Ms. Buckley were exchanging heated correspondence, the plaintiff's solicitors alleging that their client had been defamed as a result of the very serious unfounded allegations made against him and threatening legal proceedings unless Ms. Buckley admitted liability, apologised and agreed to compensate the plaintiff for such loss and damage as suffered by him. Ms. Buckley's solicitors were intimating a claim for damages for personal injuries loss and damage against a background where she was shortly due to be married.

7 The plaintiff and Ms. Buckley then reached an agreement whereby neither would issue proceedings against the other, with the plaintiff's solicitors indicating that he wished to put the matter behind him insofar as it related to Ms. Buckley and he passed on good wishes in respect of her forthcoming marriage.

8 The solicitors for Ms. Buckley confirmed that she would take no further steps against the plaintiff in relation to the incident which occurred on 31st August, 2001, in the car park of University College Cork and that she would not partake in any investigation, in relation to her original report, which might be conducted by the University and it was indicated on her behalf that she had put the matter behind her and it was noted that the plaintiff was of the same view. This settlement of matters as between the plaintiff and Ms. Buckley resulted in a letter of 15th October, 2001, from Ms. Buckley's solicitors to Noel Keely, Director of Human Resources at the University, wherein it was intimated that Ms. Buckley, having carefully considered all of the issues involved, had now instructed her solicitors to withdraw the reporting of the incident and pointing out that she did not wish to participate in the investigation.

9 Against this background, Mr. Horgan continued with his enquiry and on 19th October, 2001, released a report concluding that a prima facie case existed against the plaintiff which should be dealt with through the appropriate disciplinary procedures.

10 Subsequent to the issuing of the report by Mr. Horgan, the plaintiff applied for and obtained an interim injunction on 22nd October, 2001, from this court (Smyth J.) restraining the University from taking any steps whatsoever to discipline suspend or dismiss the plaintiff. Subsequently on 27th November, 2001, this court (Smyth J.) made an order restraining the plaintiff's suspension with pay pending implementation of the disciplinary procedures and restraining publication of the determination of any disciplinary proceeding pending the determination of these proceedings.

11 The President of University College Cork proceeded to appoint a disciplinary committee and a hearing was subsequently held over 3 days during the months of February, March and April, 2001 at which Ms. Buckley gave evidence, the plaintiff was legally represented and the result of the enquiry has been placed in a sealed envelope in a safe pending the outcome of these proceedings.

Relief sought

12 The plaintiff seeks the following relief:

13 1. A declaration that the disciplinary procedure promulgated by the defendant and as applied against the plaintiff is...