Giblin v Irish Life & Permanent Plc

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 10 February 2010
• Neutral Citation: [2010] IEHC 36
• Docket Number: [No. 140P/2010]
• Court: High Court
• Date: 10 February 2010

[2010] IEHC 36

THE HIGH COURT

[No. 140P/2010]

Giblin v Irish Life & Permanent Plc

BETWEEN

CHRISTOPHER GIBLIN

AND

PLAINTIFF

IRISH LIFE & PERMANENT PLC

DEFENDANT

BERGIN v GALWAY CLINIC DOUGHISKA LTD 2008 2 IR 205 2007/5/956 2007 IEHC 386

GLOVER v BLN LTD & ORS 1973 IR 388

MOONEY v AN POST 1998 4 IR 288 1997/10/3360

LINGHAM v HEALTH SERVICE EXECUTIVE 2006 17 ELR 137 2005/36/7565 2005 IESC 89

Judgment of

Miss Justice Laffoy

1 delivered on the 10th day of February, 2010.

2 When the events the subject of these proceedings commenced, the plaintiff had been an employee of the defendant for almost 30 years. Latterly he was the manager of the defendant's branch at College Green, Dublin, 2.

3 By letter dated 31^st August, 2009 from the defendant (as Permanent TSB) the plaintiff was informed that the defendant was investigating various accounts held in his own name or with which he was associated. He was informed that he was being placed on special leave with full pay until a full investigation had been completed. It was emphasised that the action being taken was "not a form of disciplinary action and should not be regarded as a pre-judging of the issues". In a subsequent letter from the defendant's solicitor to the plaintiff's solicitors dated 4^th September, 2009, in which it was acknowledged that the defendant accepted that the plaintiff had "a long and unblemished record", the provisions of the defendant's document entitled "Disciplinary Procedures" (the Disciplinary Procedures), a copy of which was enclosed, on which the defendant was relying in conducting the investigation and in placing the plaintiff on special leave were outlined.

4 In the Disciplinary Procedures the definition of "disciplinary action" encompasses three types of sanction: warnings, oral or written; action short of dismissal, which covers ten different types of sanction from withdrawal of privileges to transfer; and dismissal with or without notice. The defendant's entitlement to place an employee on special leave derives from the following provision:

"Where serious misconduct is suspected the staff member may at the [defendant's] discretion be placed on special leave with full pay as a precautionary measure pending investigation of the matter. This is not a form of disciplinary action."

5 That is the provision which the defendant invoked when issuing the letter of 31^st August, 2009.

6 The plaintiff was given particulars of the nature of the investigation into "suspected serious misconduct" being carried out by the defendant in a letter dated 14^th September, 2009 from the defendant's solicitors. The nature of the inquiries being carried out by the Internal Audit department of the defendant and the accounts, account holders and transactions being enquired into were summarised. The plaintiff was informed that, if on receipt of the Internal Audit report the defendant was of the view that allegations would have to be put to the plaintiff, "the investigation would be conducted by" Mr. Frank Singleton and Mr. Ger Mitchell (the Investigation Team), each of whom described himself as "a Human Resources Executive" in his replying affidavit filed in response to this application.

7 Particulars of additional issues being reviewed by Internal Audit in the continuing enquiries were furnished to the plaintiff's solicitors on 21^st September, 2009. By letter dated 22^nd September, 2009 from the defendant's solicitor, the plaintiff was informed that the defendant had requested the Investigation Team "to investigate suspected serious misconduct" by the plaintiff. The plaintiff was informed that specific allegations would be sent by the Investigation Team to him on or before 25^th September, 2009.

8 On 25^th September, 2009 the Investigation Team sent, in a letter to the plaintiff, over 50 pages of queries, which the plaintiff has averred contained a total of 907 queries covering the period from January 2007 to 31^st August, 2009. The letter outlined various procedures, codes and policy documents of the defendant, compliance with which in relation to various transactions the subject of the queries was being investigated. The plaintiff was asked to attend before the Investigation Team in Dublin on 9^th October, 2009 to deal with the issues raised in the letter. The plaintiff was informed that he was entitled to have a representative to accompany him. He was also informed that, after hearing his answers to the questions outlined, the Investigation Team would decide whether or not his conduct "amounts to serious misconduct and if so, what sanctions if any should be applied, which sanctions could include your dismissal".

9 The arrangements for the plaintiff to respond to the queries of the Investigation Team were subsequently changed. The circumstances are not material in the context of the application with which the Court is concerned, although they may be material at the trial of the action. In any event, in a comprehensive letter of 27^th October, 2007, comprising 29 pages, the plaintiff's solicitors, on his behalf, answered each of the queries raised by the Investigation Team. That response was met by a letter dated 6^th November, 2009 from the defendant's solicitor raising further queries and seeking clarifications on behalf of the Investigation Team. The queries and clarifications sought ran to eleven pages. The plaintiff's solicitors were informed that the Investigation Team required written responses before the close of business on 13^th November, 2009. Once again the arrangements were varied at the behest of the plaintiff, in that, ultimately, the plaintiff's solicitors were informed that the Investigation Team would meet on 19^th November, 2009 and that the plaintiff could give verbal responses to the queries contained in the letter of 6^th November, 2009. The plaintiff was warned in a letter of 17^th November, 2009 that, if he elected not to attend the meeting, the Investigation Team would proceed on the basis of the responses set out in the letter dated 27^th October, 2009 from his solicitors.

10 The plaintiff did attend the meeting on 19^th November, 2009 with his solicitor and counsel, but it was made clear that, while he was willing to co-operate with the investigation, he was attending under protest. The position of the defendant in relation to the meeting was that the plaintiff had refused to furnish the clarifications and explanations sought. By letter dated 23^rd November, 2009, the defendant's solicitor, on behalf of the Investigation Team, requested that the information sought in the letter of 6^th November, 2009 be furnished by the following day, 24^th November, 2009, as the plaintiff's solicitors had stated would be done at the meeting. A comprehensive letter of 24^th November, 2009 from the plaintiff's solicitors, comprising about 30 pages, dealt with the matters raised in the letter of 6^th November, 2009.

11 The next letter from the defendant's solicitor to the plaintiff's solicitors has been represented by the plaintiff as a watershed in the process from August 2009 onwards which led to these proceedings. It was a letter dated 25^th November, 2009 from the defendant's solicitor to the plaintiff's solicitors sending the specific allegations which the Investigation Team were putting to the plaintiff. The letter was accompanied by 26 pages of allegations, which the plaintiff has averred listed 340 allegations, including alleged breaches of certain procedures, policy documents and the defendant's Code of Ethics, which the plaintiff has averred he does not recollect ever seeing or reading. The plaintiff was informed that a meeting had been fixed for 14^th December, 2009 to enable the plaintiff to give his responses to each and every allegation. The plaintiff was informed that the Investigation Team, after considering the plaintiff's responses and any submissions made on his behalf, would "consider if any of his actions and/or omissions amount to serious misconduct and if yes what sanctions, if any, should be imposed up to and including dismissal".

12 The response of the plaintiff's solicitors, by letter dated 27^th November, 2009, was that, given that the plaintiff had been furnished with allegations of misconduct, it was clear that the investigation had turned into disciplinary proceedings and, in the circumstances, the Investigation Team could not continue its investigation. To do so would contravene the Disciplinary Procedures, it was asserted. The plaintiff's solicitors sought confirmation that the investigation was at an end and that the defendant would proceed in accordance with the Disciplinary Procedures. The defendant did not accept that proposition and, by letter dated 1^st December, 2009 from the defendant's solicitor, the plaintiff was informed that the investigation was not fully complete, as there were a number of clarifications which the Investigation Team wished the plaintiff to furnish. A six page list of "clarifications required" was enclosed.

13 By letter dated 10^th December, 2009, the plaintiff's solicitors reiterated their contention that the Investigation Team could not continue "its purported investigation" once allegations of misconduct had been made against the plaintiff. The defendant was requested to cancel the proposed meeting on 14^th December, 2009. The defendant's solicitor's response, by letter dated 14^th December, 2009, was that the issues raised on behalf of the plaintiff could be raised with the Investigation Team at the meeting.

14 The meeting of 14^th December, 2009 went ahead, The plaintiff attended with his solicitor and counsel. The plaintiff and his legal advisers maintained the position that had been set out in the letter of 10^th December, 2009, contending that an investigation cannot be run in parallel with a disciplinary hearing. The plaintiff did not answer any...