Foley v Workplace Relations Commission

• Jurisdiction: Ireland
• Judge: Mr. Justice Twomey
• Judgment Date: 25 October 2016
• Neutral Citation: [2016] IEHC 585
• Court: High Court
• Docket Number: [2016 No. 344JR]
• Date: 25 October 2016

[2016] IEHC 585

THE HIGH COURT

JUDICIAL REVIEW

Twomey J.

[2016 No. 344JR]

BETWEEN:

DEIRDRE FOLEY

AND

D2 PRIVATE LIMITED

APPLICANTS

-AND-

WORKPLACE RELATIONS COMMISSION, JAMES KELLY

AND

PAT PHELAN

RESPONDENTS

-AND-

NATRIUM LIMITED

NOTICE PARTY

Employment – Protection of Employment Act, 1977 – Investigation of collective redundancies – Legality of investigation – Workplace Relations Act, 2015 – Certiorari

Facts: The applicants sought an order of certiorari for quashing the requirements made of the applicants by the second and third named respondents being the inspectors of the first named respondent during their entry into the relevant premises belonging to the applicants and seizure of materials from those premises. The applicants submitted that the second and third named respondents did not have an authority to access the premises without permission while the respondents contended that such power had been derived under s. 27 of the Workplace Relations Act, 2015 and that power was exercised for the purpose of investigation of collective redundancies. The key issue was whether the Court's intervention was justified in the investigating criminal process of a State agency at the preliminary stage.

Mr. Justice Twomey refused to grant the desired relief to the applicants. The Court held that since the investigation process was at its initial stage and the criminal trial had not begun, it was premature to grant any relief as claimed by the applicants, as the required threshold to grant an order of certiorari was exceptionally high. The Court found that the legality of the investigation that was carried out by the respondents and the determination of issues concerning privileged documents were the matters that needed to be litigated at trial and not the judicial review. The Court held that the term “any place of work or any premises” used under s. 27 (1) (a) (i) of the Protection of Employment Act, 1977 had broad connotation, thereby, granting the right to the respondents to enter into the relevant premises on the basis that it was a place of work of persons notwithstanding the fact that it was not a place of work of Clery's employees. The Court held that the acts of the respondents in entering, searching, and seizing the materials were not completely irrational as they were entitled to make a thorough investigation encompassing the examination of material, which might not be relevant.

JUDGMENT of Mr. Justice Twomey delivered on the 25th day of October, 2016.

Mr. Justice Twomey

Introduction

1 These proceedings concern the actions of two Inspectors of the first named respondent, the Workplace Relations Commission (the ‘WRC’), in the course of their investigations into the collective redundancies (‘the Clerys' Redundancies’) of people who worked in the Clerys' department store in Dublin as employees of OCS Operations (‘the Clerys' Workers’). These redundancies took place on the 12th June, 2015. The Inspectors were investigating the Clerys' Redundancies and in particular whether a criminal offence had been committed as a result of the alleged failure of the employer of the Clerys' Workers to comply with ss. 9 and 10 of the Protection of Employment Act, 1977 (‘the 1977 Act’).

2 A significant issue in this case concerns the entry, on the 19th May, 2016, by those Inspectors onto the premises of the second named applicant, D2 Private Limited (‘D2’) which are situated at 20 Harcourt Terrace in Dublin (the ‘Harcourt Premises’) and the seizure of material from those premises. The Inspectors who entered the Harcourt Premises are the second named respondent, Mr. James Kelly (‘Mr. Kelly’) and the third named respondent, Mr. Pat Phelan (‘Mr. Phelan’). D2 is wholly owned by the first-named applicant, Ms. Deirdre Foley (‘Ms. Foley’) and she is also the CEO of D2.

3 The WRC is a statutory body established pursuant to the Workplace Relations Act, 2015 (‘the 2015 Act’), and Mr. Kelly and Mr. Phelan were deemed to be Inspectors of the WRC under s. 26(2) of the 2015 Act, by virtue of being appointed as Authorised Officers under,inter alia, the 1977 Act. The notice party in these proceedings, Natrium Limited (‘Natrium’), is the joint venture company that was used for the purchase of the Clerys' business and department store in Dublin. Natrium is owned as to 80% by Cheyne Captial Management (UK) LLP and as to 20% by FAM Assets Limited, which is a company in which Ms. Foley has an interest.

4 The key reliefs sought by the applicants can be summarised as:-

• an order of certiorari quashing the requirements made of the applicants by the respondents during the entry into the Harcourt Premises in purported reliance upon s. 27 (1) of the 2015 Act;

• a declaration that the use of investigatory powers pursuant to the 1977 Act and/or the 2015 Act to obtain access to the Harcourt Premises and to obtain documents is unlawful andultra vires;

• an injunction to restrain the respondents from exercising any further powers in respect of the applicants or entering their premises under the 1977 Act or the 2015 Act in the investigation of the Clerys' Redundancies;

• an injunction restraining the respondents from making any use of material given to them by the applicants pursuant to the requirements made of them by the respondents during the entry into the Harcourt Premises;

• an order requiring the respondents to return to the applicants material obtained by them pursuant to the requirements made of them by the respondents during their entry into the Harcourt Premises, as well as damages and ancillary orders.

5 It is important to bear in mind that this is not a criminal trial or a case about whether the applicants are guilty of offences in relation to the Clerys' Redundancies. Rather, it is much more preliminary in nature since it is a case about the legality of an investigation by Inspectors into who may have had a role in the Clerys' Redundancies and in particular the legality of their entry into the Harcourt Premises and their seizure of material as part of that investigation.

6 The key issue in this case is whether the entry into the Harcourt Premises and the seizure of material by the Inspectors, as part of their investigation, was lawful. In summary, the applicants say that, on their interpretation of s. 27 of the 2015 Act, the entry and seizure of material was unlawful as the applicants are not the employers of the workers, the subject of the Clerys' Redundancies. On this basis they say that the Harcourt Premises did not fall within the definition of premises which can be entered by Inspectors under s. 27. They also say that the entry and seizure was unlawful because the Inspectors were exercising this power for an improper purpose (namely an investigation into the Clerys' Takeover (referred to below) rather than the Clerys' Redundancies).

7 The respondents contend that, on their interpretation of s. 27 of the 2015 Act, it was within their powers to enter the Harcourt Premises and seize material and they say that this power was only exercised for the purpose of investigating the Clerys' Redundancies. The respondents also say that, in any case, this matter is only at the investigation stage and it is not open to the applicants to interfere in their investigation into the commission of an alleged criminal offence and in particular to interfere into their investigation into whether the applicants might be linked with alleged offences relating to the Clerys' Redundancies. During the hearing of this matter the respondents confirmed that as of yet no prosecution had been instituted against any of the applicants.

8 A major issue for determination in this case is whether it is permissible for this Court to interfere in the investigation of a criminal offence, where that investigation is alleged to have been carried out in an unlawful manner, before a criminal trial has been held.

9 For the reasons set out in this judgment, this Court finds that it is not permissible for the applicants to seek to interfere in the investigation by the Inspectors into the connection, if any, that the applicants may have with the Clerys' Redundancies. If the applicants wish to challenge the legality of the entry or the admissibility of evidence obtained during that entry, this should be done at the criminal trial, if and when such a trial results from the investigation, and not during the course of the investigation.

Background to the Clerys' Takeover and the Clerys' Redundancies

10 Prior to 2012, Clerys was owned and operated by Clery & Co. (1941) plc, Denis Guiney Ltd. and Yterrbium Ltd. The company was placed in receivership by Bank of Ireland in 2012. In September 2012, the Clerys' business and the department store were bought from receivership by Gordon Brothers Europe (‘Gordon Brothers’) the trading name of Gordon Brothers International LLC, the UK incorporated subsidiary of Gordon Brothers Group LLC, a company based in the United States. To acquire Clerys, Gordon Brothers set up a holding company, OCS Investment Holdings Ltd. (‘OIHL’). Two fully owned subsidiaries of OIHL, namely OCS Operations Ltd. (‘OCS Operations’), a trading company, and OCS Properties Ltd. (‘OCS Properties’), a property owning company, were incorporated. OIHL, OCS Properties and OCS Operations are collectively referred to as the ‘OCS Group’. As part of the takeover by Gordon Brothers of Clerys in September 2012, OCS Operations acquired the business and assets of Clerys which included,inter alia, its employees, intellectual property and goodwill, but did not include the title to the Clerys' department store on O'Connell Street. The property interest in the store on O'Connell Street was held by OCS Properties. Upon the purchase of Clerys, out of receivership by Gordon Brothers in 2012, the staff of Clerys became employees of OCS Operations.

11 At the time of the takeover of Clerys by Gordon Brothers in...