John Elmes and Others v Vedanta Lisheen Mining Ltd and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Ryan
• Judgment Date: 21 February 2014
• Neutral Citation: [2014] IEHC 73
• Judgment citation (vLex): [2014] 2 JIC 2106
• Court: High Court
• Date: 21 February 2014

[2014] IEHC 73

THE HIGH COURT

Record No. 11947P/2013

Record No. 11946P/2013

Record No. 11948P/2013

Elmes & Ors v Vedanta Lisheen Mining Limited & Ors

No Redaction Needed

BETWEEN:

JOHN ELMES AND BRIAN KEADY AND SEAN CALLERY

PLAINTIFF

AND

VEDANTA LISHEEN MINING LIMITED, VEDANTA ZINC INTERNATIONAL, AFRICA AND IRELAND AND VEDANTA RESOURCES PLC

DEFENDANTS

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Employment law - Practice and procedure - Grievance - Suspension - Sick pay - Disciplinary proceedings - Threatened - Prohibited - Interlocutory - Strong case - Whether balance of convenience favoured granting reliefs sought

Facts: The plaintiffs were members of the senior management team. The plaintiffs had been out of work since 2013 due to stress related illness. Six weeks after they certified themselves unable to work, their sick pay was suspended. They sought a declaration that the suspension of sick pay was void and sought to bar disciplinary proceedings against them. They sought interlocutory reliefs as to sick pay, an independent investigation and the Court considered whether disciplinary proceedings were in being or threatened and should be prohibited.

Held by Ryan J. that the plaintiffs had established a strong case in respect of the sick pay argument but not the disciplinary process. It appeared reasonable to consider the seniority of the plaintiffs, their work records, the nature of their illnesses and past discretionary practices so as to fix a period of six months. It was a matter for the defendants to determine on the merits of the applications the prognosis in each case.

1 JUDGMENT of Mr Justice Ryan delivered on the 21st February, 2014

Introduction

2 The plaintiffs are members of the senior management team employed at the Lisheen Mine in Co. Tipperary. Mr. John Elmes is the general manager, and employed by the first named defendant company, Vedanta Lisheen Mining Limited which operates the mine. Mr. Elmes was previously employed in the same role as he currently occupies by Anglo American plc, the company that owned the mine prior to its takeover by the third defendant, Vedanta Resources Plc. The second plaintiff, Mr. Brian Keady, is the mine manager and has occupied that role since 2002 and was also previously employed by Anglo American plc prior to the takeover by Vedanta. The third named plaintiff, Mr. Sean Callery, is the mine closure and site services manager and has been employed in that role since 2007.

3 The first defendant operates the mine at Lisheen, County Tipperary. The second defendant is a business division of the third named defendant and not a separate legal entity. The third named defendant is the parent company of the first defendant.

4 The plaintiffs are currently on sick leave from their positions as members of the management of Lisheen. Six weeks after the date at which each of the plaintiffs first certified themselves as unable to work due to illness or injury their sick pay was suspended. The plenary summons seeks a number of declaratory and injunctive reliefs in relation to disputes that have arisen in circumstances described below. This application comes before the Court by way of notice of motion seeking interlocutory relief in three areas, namely, sick pay, an inquiry into grievances and disciplinary action that the plaintiffs apprehend. It is necessary first to outline the nature and cause of the difficulties which have arisen between the parties before turning to the reliefs which have been sought by the plaintiffs on this application.

Background Facts

5 There is a history of suspicion and unease on the part of the plaintiffs going back to February 2011, when the defendant companies took over Lisheen mines in place of the previous owners, Anglo American plc. The spark that ignited the disputes giving rise to this application for interlocutory relief began on the 4 ^th April, 2013 at approximately 16.30 when a tragedy occurred with the death of Mario Francis, a miner from the Philippines who had been working for twelve years at Lisheen mines. Vedanta headquarters in South Africa reacted swiftly to the tragedy. On the very day that the accident happened, Mr. Anton Lubbe had been appointed chief operating officer of Vedanta Zinc International. He was dispatched to the mine and arrived on the 10 ^th April, 2013, and immediately began an investigation. Mr. Lubbe was accompanied on his visit to the mine by Stephen Godden, an expert in mining safety employed by a company named AMEC Americas Limited of Vancouver, British Columbia. Present in addition were Vedanta representatives from Black Mountain mine in South Africa. Mr. Lubbe spent a little over a day at the mine and completed his investigation and produced a draft report on the 11 ^th April, which he presented to management on the next day. Mr. Godden's investigation was of a more technical and detailed nature and he carried out his inspection in the week beginning Monday 8 ^th April, 2013, but it is not stated in Mr. Godden's report just how long he spent at the mine. His report which he made to Mr. Lubbe is dated the 30 ^th April, 2013.

6 Mr. Elmes deposes in his affidavit that Mr. Anton Lubbe told him that he had been appointed to investigate not just the accident of the 4 ^th April, 2013, but also a previous fatality at the site, but he was unaware that the latter event had happened a considerable time previously and had been determined as suicide. Mr. Elmes says that Mr. Lubbe told him that:

"His investigations would find fault with senior management in respect of both fatalities". Mr. Lubbe expressly advised me that he had instructions from Mr. Kumar to find management responsible for failings in respect of both of the foregoing matters."

7 The unfortunate Mr. Francis was killed when there was a major fall of ground of around 500 tons when he was in the mine. He was operating a remote LHD/scoop and he had finished loading his last truck when he, to quote Mr. Lubbe's summary, "for an unknown reason, but probably to clean loose dirt, entered the stope with his LHD and he was fatally injured" when the fall of ground occurred. Mr. Lubbe's report is essentially a two page summary in which he lists what he calls substandard acts, a substandard condition, basic causes and remedial action. In this summary, Mr. Lubbe describes shortly things that the unfortunate deceased should not have done and also identifies a dangerous condition which had "high risk of falls of ground". He described contributory personal factors and job/system factors. Among the personal factors, he said that the employee's personal discipline was lacking and that management inadequately reinforced proper behaviour. Under jobs/system factors, he listed the following:-

8 (a) Management inadequately reviewed potential loss exposures and systems

9 (b) Management had inadequate controls in place and

10 (c) Management inadequately monitored compliance and procedures.

11 He listed remedial actions under the heading "Immediate" of which the final one was:-

12 a "(g) Vedanta Lisheen Mining Limited should give consideration to whether or not it is appropriate to potentially invoke disciplinary procedure in respect of senior management at Lisheen for possible failure of control/discipline."

13 In Mr. Godden's more detailed technical report, he said that there was nothing intrinsically wrong with the production planning at the mine provided that there were appropriate operational systems and procedures in place, the support systems and strategies were appropriate for the prevailing ground conditions and safety and risk management were strongly and consistently reinforced. He did not find fault with the management, as I read his report, but he did emphasise the need for positive action:

"Centred on the reduction or prevention of risk through awareness campaigns that counter complacency borne of familiarity, hence the taking of avoidable risk by individuals' underground; and coupled with the introduction of systems that reduce the potential for workers to take risks."

14 On the 16 ^th April, 2013, a video link presentation to the executive committee of Vedanta Resources Worldwide was held. Mr. Elmes in his affidavit grounding the motion says that Vedanta is a huge multinational company with branches and subsidiaries all over the world and the executives of those units dialled into the conference and witnessed the events. Mr. Elmes had previously seen a slide referring to the fatal...