Iarnrod Eireann / Irish Rail v McKelvey

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 31 October 2018
• Neutral Citation: [2018] IECA 346
• Date: 31 October 2018
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 346 [2017/394]

BETWEEN

IARNRÓD ÉIREANN / IRISH RAIL

APPELLANT

- AND -

BARRY McKELVEY

RESPONDENT

[2018] IECA 346

Neutral Citation Number: [2018] IECA 346

[2017/394]

THE COURT OF APPEAL

Injunction – Disciplinary hearing – Legal representation – Appellant seeking to appeal against the judgment and order of the High Court granting an injunction restraining the appellant from commencing a disciplinary hearing against the respondent – Whether the High Court judge erred in law and in fact when she concluded that it would be contrary to the principles of natural justice and fair procedures to require the respondent to engage with the disciplinary hearing proposed by the appellant without the benefit of legal representation

Facts: The appellant, Iarnród Éireann/Irish Rail, appealed to the Court of Appeal against the judgment and order of the High Court, Murphy J, dated the 28th day of July 2017. By her order she granted an injunction restraining the appellant from commencing a disciplinary hearing against the respondent, Mr McKelvey, in respect of alleged misconduct notified to him on the 8th May 2017, unless his claimed entitlement to legal representation was agreed to. Two issues were raised by the appellant for the court's consideration on appeal. The first was whether the High Court judge erred in law and in fact when she concluded that it would be contrary to the principles of natural justice and fair procedures to require Mr McKelvey to engage with the disciplinary hearing proposed by the appellant without the benefit of legal representation. The second was whether the High Court judge ought to have rejected Mr McKelvey's application for an injunction on the basis that it was premature in that it could not be stated, at the time of his application, that any finding ultimately made at the conclusion of the disciplinary process would be bound to be unsustainable in law, by reason of the fact that he did not have legal representation from the outset.

Held by Irvine J that on the facts as they stood at the time the appellant refused Mr McKelvey's request that he be entitled to be legally represented, the circumstances were not such that it could reasonably have been contended that he would not obtain a fair hearing in accordance with natural and constitutional justice absent legal representation.

Irvine J held that she would allow the appeal.

Appeal allowed.

JUDGMENT of Ms. Justice Irvine delivered on the 31st day of October 2018

1 This is the appeal of Iarnród Éireann / Irish Rail ('the appellant') against the judgment and order of the High Court, Murphy J., dated the 28th day of July 2017. By her order she granted an injunction restraining the appellant from commencing a disciplinary hearing against Mr. McKelvey in respect of alleged misconduct notified to him on the 8th May 2017, unless his claimed entitlement to legal representation was agreed to.

2 While many legal arguments were advanced by the respective parties in the High Court it is fair to say that only two issues have been raised by the appellant for the court's consideration on this appeal. The first is whether the High Court judge erred in law and in fact when she concluded that it would be contrary to the principles of natural justice and fair procedures to require Mr. McKelvey to engage with the disciplinary hearing proposed by the appellant without the benefit of legal representation. The second is whether the High Court judge ought to have rejected Mr. McKelvey's application for an injunction on the basis that it was premature in that it could not be stated, at the time of his application, that any finding ultimately made at the conclusion of the disciplinary process would be bound to be unsustainable in law, by reason of the fact that he did not have legal representation from the outset.

Background Facts

3 It is first necessary to set out in skeletal form the facts material to the conclusions made by the High Court judge. These are of particular relevance to the submissions of the parties on this appeal as they are to my conclusions.

4 At the time he commenced the within proceedings, Mr. McKelvey was 39 years of age and had been an employee of the appellant since 1999. He was appointed to the role of inspector in May 2013. His responsibilities included managing those employees charged with maintaining the Cork to Dublin railway line. As part of his work, Mr. McKelvey was provided with fuel cards to facilitate the re-fuelling of company vehicles and machinery. Other Iarnród Éireann personnel also have the use of such cards.

5 In late 2016 the appellant became concerned regarding the amount of fuel purchased using the aforementioned cards in Mr. McKelvey's division i.e. Division 3. As a result, a preliminary investigation was carried out, during the course of which Mr. McKelvey was interviewed on a number of dates including the 21st December 2016. In the course of that meeting Mr. McKelvey was apparently shown copies of spreadsheets relating to purchases made with his fuel card for the years 2014, 2015 and 2016.

6 It is clear from the notes of the aforementioned interview, which are exhibited in one of his affidavits, that Mr. McKelvey had been asked about a number of purchases ostensibly made with his fuel card and that he had explained how some such purchases could have been made using his card without his knowledge. One such possibility was that his card might have been taken without his knowledge by another member of staff.

7 By letter dated the 13th March 2017, Mr. McKelvey was advised that as a result of the ongoing investigations into fuel usage in Division 3 and his meeting with the inquiry panel that he was being suspended on basic pay until further notice. That notification triggered a letter from Mr. McKelvey's trade union representative, Mr. Paul Cullen, and also a letter from Sinnott Solicitors, challenging the lawfulness of his suspension.

8 On the 8th May 2017, using what is described as Disciplinary Form A, Mr. McKelvey was notified that the appellant had decided to initiate its formal disciplinary process to inquire into the following matter:

'Theft of fuel through the misuse of a company fuel card(s), which has resulted with the company suffering a significant financial loss.'

In the said form Mr. McKelvey was invited to respond to the notification within seven days and to indicate whether he would be requesting 'a personal hearing'.

9 By letter dated the 10th May 2017. Mr. McKelvey requested an oral hearing and, having regard to the allegation of 'theft', requested that he be allowed to be represented by solicitor and counsel at the disciplinary hearing. He also complained that the procedures pursuant to which the hearing was to be conducted were unsatisfactory insofar as they provided that he would only receive the documentary evidence to be relied upon in support of the allegation at the commencement of the hearing. It is not disputed that the Grievance and Disciplinary procedure pursuant to which the proposed disciplinary inquiry is to be conducted was notified to him as part of his contract of employment.

10 In circumstances where the issues to be decided on this appeal are relatively net it is not necessary to further detail the communications between the parties exchanged prior to the commencement of these proceedings on the 7th June 2017. It is, however, of note that certain interim orders were made by Humphreys J. on the 7th June 2017 which had the effect of restraining Iarnród Éireann taking any further steps in the disciplinary process until such time as Mr. McKelvey was in a position to apply for the interlocutory relief sought in his notice of motion dated the 7th June 2017.

Judgment of Ms. Justice Murphy

11 Having considered the submissions of the parties and the evidence before her, Murphy J. concluded that the charges levelled against Mr. McKelvey could hardly have been more serious insofar as they put at risk not only his reputation but also his future employment prospects. In those circumstances she was satisfied that his right to fair procedures and natural and constitutional justice were engaged.

12 As to the entitlement of Mr. McKelvey to legal representation, the High Court judge had regard to a number of legal authorities concerning the circumstances in which a party might claim to be entitled to legal representation when faced with the prospect of having to defend allegations of misconduct. In particular, she relied upon the decision of Geoghegan J. in Burns v. Governor of Castlerea Prison [2009] 3 I.R. 682 and that of Webster J. in R v. Home Secretary ex parte, Tarrant [1985] 1 Q.B. 251. The High Court judge specifically considered certain factors identified in Tarrant, and approved of in this jurisdiction in Burns, as relevant to the appellant's discretion and sought to apply them to the facts of the present case. Having done so she concluded that the inquiry proposed would not be fair unless Mr. McKelvey had legal representation. Accordingly, she made an order restraining the appellant from conducting the proposed inquiry unless it agreed that he might have such representation.

13 In coming to the aforementioned conclusions the High Court judge attached weight to the following factors:-

(i) the seriousness of the charge and the fact that the potential penalty to be imposed might lead to dismissal and adversely affect his employment prospects;

(ii) the outcome had the potential to significantly impact upon Mr. McKelvey's reputation;

(iii) that multiple points of law were likely to arise, including contentions that there had been flaws in the investigation process, the imprecision of the charges levelled against Mr. McKelvey and the necessity for Iarnród Éireann to establish loss;

(iv) that Mr. McKelvey did not have the capacity to conduct his own defence;

(v) the facts would be complex given that the investigation would relate to the use...