Foy v University of Limerick
| Jurisdiction | Ireland |
| Judge | Mr. Justice Twomey |
| Judgment Date | 10 February 2021 |
| Neutral Citation | [2021] IEHC 87 |
| Docket Number | [2020 No. 6116 P] |
| Court | High Court |
| Date | 10 February 2021 |
[2021] IEHC 87
Twomey
[2020 No. 6116 P]
THE HIGH COURT
This case considers the extent to which the public interest (in investigating the alleged misuse of the money in a publicly funded institution such as a university) is a factor in determining whether to grant an injunction to an employee who wishes to prohibit that investigation because of his fear of the potential harm the investigation may cause to his reputation.
The injunction is sought by the plaintiff (“Dr. Foy”), who is the subject of that investigation, against the defendant (the “University”). The background to the investigation is a matter of considerable public interest as evidenced by the fact that there was a Prime Time Investigates programme broadcast on RTÉ in May 2017 about the alleged misuse of funds in the University. This was followed by a hearing before the Dáil Public Accounts Committee on the 22nd June, 2017 and by a Special Report by the Comptroller and Auditor General on the Handling of Remuneration for certain senior staff in the University of Limerick in August 2018 which dealt with, in particular, the “ discretionary awarding of ‘professional added years’ for pension purposes”.
Dr. Foy, who was the Director of Human Resources at the University at the relevant time, objects to the proposed investigation because he signed a settlement letter with the University dated 5th July, 2018 (the “Settlement Letter”) at the end of a mediation process. That mediation arose from concerns over his role in the giving of pension entitlements to employees, and in particular the award of professional added years to the pensions of certain employees of the University, including the pension of one particular employee, referred to herein as Mr. X.
Dr. Foy claims that the terms of this Settlement Letter are such as to prevent the University from investigating its current concerns (outlined in the letter dated 30th July, 2020 from the University to Dr. Foy - the “Investigation Letter”) over one particular aspect of Mr. X's pension entitlements.
This relates to the transfer of years of pensionable service from Mr. X's pension with his previous employer to Mr. X's pension with the University. It is claimed that, as Mr. X received a refund of that pensionable service from his previous employer, he was not entitled to have those years transferred to his University pension. The University claims that the alleged unlawful transfer of additional years to Mr. X's pension amounts to a loss to the University of almost €200,000.
Dr. Foy claims that the proposed investigation amounts to a breach of the Settlement Letter, which he says settled matters regarding the University's concerns over his role in pension entitlements of employees of the University, including those of Mr. X. It is Dr. Foy's contention that the Settlement Letter amounts to a full and final settlement of matters known to the University at the time of its signing, including its concerns over the transfer of years of pensionable service from Mr. X's previous employer to Mr. X's pension with the University.
The University claims that there is nothing in the Settlement Letter (which consists of three sentences) which prevents it from investigating matters of serious concern, such as its proposed investigation into the role of Dr. Foy in the transfer of Mr. X's years of pensionable service.
To determine this issue, this Court considered not only the terms of the Settlement Letter but, as both parties have waived privilege, the terms of certain ‘ without prejudice’ correspondence exchanged prior to the execution of the Settlement Letter. It also considered the false sworn evidence provided by Dr. Foy in support of this application (which Dr. Foy now accepts is incorrect) and the public interest in the investigation of the alleged misuse of funds at a publicly funded institution.
For the reasons set out below, this Court concludes that the interlocutory injunction preventing the investigation, pending the trial of the action, should not be granted.
Dr. Foy commenced employment with the University on 20th October, 2005. On 28th May, 2008, he was appointed Director of Human of Resources and continued in that role until 5th July, 2018, the date on which the Settlement Letter was signed. He remains employed by the University although, in line with the terms of the Settlement Letter, he is currently on secondment to UniJobs, a subsidiary company of the University, where he is employed as Managing Director. Under the terms of the Settlement Letter, Dr. Foy's employment with the University is due to end on 6th July, 2022.
The University claims that Dr. Foy, during his time as Director of Human Resources in the University procured the unlawful giving of pension credits to Mr. X, who was an employee of the University. In particular, the University claims that Dr. Foy procured the transfer of a number of years of pensionable service from Mr. X's previous employer to Mr. X's pension with the University, even though Mr. X had received a refund of contributions in respect of those years of service from his previous employer and therefore those years were not transferable.
The University claims that, in addition, Dr. Foy processed this transfer of additional years in an unusual manner by contacting the Pension Human Resources Officer in person to arrange the processing of the pension, that he instructed the Human Resources Officer what to process even though that was not within the rules of the scheme and that this resulted in no validation of data and no independent review of the process. Furthermore, the University avers that no instruction regarding the process was ever put in writing by Dr. Foy, which the University avers is most unusual. On this basis, the University wishes to investigate these matters.
It is helpful for an understanding of the issues raised, to set out in some detail the exact timeline regarding the various investigations conducted into the University, and the conclusions, where relevant, reached in the subsequent reports.
In May 2017, an RTÉ Prime Time Investigates programme reported on the financial affairs of certain third level institutions in Ireland, including the University of Limerick. The programme raised serious concerns in relation to the mismanagement of taxpayers' money by the University, and, in particular, concerns were expressed regarding certain payments made by the University to former employees, including those payments made to Mr. X in relation to his pension.
On foot of the issues raised in the RTÉ Prime Time Investigates programme, in May/June 2017 the Public Accounts Committee (“PAC”) held meetings to discuss the financial accounts of the institutions mentioned in the programme, including those of the University. At one of these meetings, on 22nd June, 2017, the then newly appointed President of the University, Dr. Des Fitzgerald, was called and examined before the PAC and made a statement wherein he sought to address the allegations raised in relation to the finances of the University, including those concerns highlighted by the Prime Time Investigates programme. This Statement addressed several issues, including ‘severance and other payments’ made by the University. These ‘ other payments’ were set out as comprising ‘ pension lump sum payments’ and ‘ pensionable added years’ given to two employees of the University, including Mr. X.
In the weeks and months following the broadcast of the Prime Time Investigates programme, several investigations and reports were commissioned by various institutions, including an internal review commissioned by the University itself.
In May/June 2017 the Higher Education Authority (“HEA”) was instructed by the Minister for Education to arrange for an independent review into the practices of the University regarding, inter alia, its financial governance, the review to be entitled ‘Independent Review of Certain Matters and Allegations relating to the University of Limerick’. The HEA engaged Dr. Richard Thorn to carry out this review and to prepare a report on foot of his findings (the “Thorn Report”).
On 27th September, 2017, Dr. Foy was sent in advance a précis of the conclusions reached in the Thorn Report, specifically those conclusions reached pertaining to the actions of Dr. Foy himself as Director of HR. Those conclusions related, inter alia, to ‘ severance payments’ made by the University and noted that ‘ at least some of those severance payments breached public pay policy guidelines’.
The finalised Thorn Report was published in October 2017. That Report reached several conclusions, including in relation to payments made to senior managers employed by the University, including those payments made to Mr. X. The Report also made several recommendations, one recommendation being that the issue of payments made by the University to Mr. X, should be more fully investigated.
Arising from the recommendations made in the first Thorn Report, the HEA commissioned a second review, again to be conducted by Dr. Thorn. The terms of reference for this follow-up review set out that this ‘ specific review’ was to focus on matters relating to payments made to Mr. X. As part of this review, Dr. Thorn was asked to ‘examine and report on’ the ‘processes and procedures’ followed in relation to the aforementioned payments and to examine the ‘ supporting documentation, senior management oversight and approval processes’ adopted during the relevant period.
It is helpful to recite in full the relevant terms of reference for this review:
“The HEA [Higher Education...
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