Keenan v Iarnród Éireann

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice John MacMenamin
Judgment Date22 January 2010
Neutral Citation[2010] IEHC 15
Date22 January 2010

[2010] IEHC 15

THE HIGH COURT

[No. 11325 P/2009]
Keenan v Iarnród Éireann
BETWEEN/
JOHN KEENAN
PLAINTIFF

AND

IARNRÓD ÉIREANN
DEFENDANT

EMPLOYMENT EQUALITY ACT 1998 S74(2)

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

MORGAN v TRINITY COLLEGE DUBLIN & ORS 2003 3 IR 157 2004 15 ELR 235 2003/38/9088

QUIRKE v BORD LUTHCHLEAS NA HEIREANN 1988 IR 83 1989 ILRM 129 1988/6/1650

MULCAHY v AVOCA CAPITAL HOLDINGS LTD UNREP CLARKE 26.1.2005 2005/40/8311 2005 IEHC 70

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

O'DONOGHUE v SOUTH EASTERN HEALTH BOARD 2005 4 IR 217 2005/47/9861 2005 IEHC 349

ALI v SOUTHWARK LONDON BOROUGH COUNCIL 1988 IRLR 100 1988 ICR 567

GAVIN & ORS v MIN FOR FINANCE 2000 ELR 190 1999/12/3088

LEWIS v HEFFER 1978 3 AER 354 1978 1 WLR 1061

AHMED v HEALTH SERVICE EXECUTIVE UNREP LAFFOY 29.8.2007 2007/3/469 2007 IEHC 312

YAP v CHILDRENS UNIVERSITY HOSPITAL TEMPLE STREET LTD 2006 4 IR 298 2006/59/12510 2006 IEHC 308

CARROLL v BUS ATHA CLIATH/DUBLIN BUS 2005 4 IR 184

INJUNCTIONS

Interlocutory injunction

Mandatory relief - Disciplinary proceedings - Suspension - Natural justice - Fair procedures - Standard of proof - Strong case - Balance of convenience - Damages - Degree of supervision of court - Whether strong case likely to succeed at trial - Whether suspension lawful - Whether defendant's actions were proportionate, fair, reasonable or rational - Whether investigation taking place - Maha Lingham v Health Service Executive [2006] ELR 137; Morgan v Trinity College Dublin [2003] 3 IR 157; Quirke v Board Lúthchleas na hÉireann [1988] IR 83; Mulcahy v Avoca Capital Holdings Ltd [2005] IEHC 136, (Unrep, Clarke J, 14/4/2005); Bergin v Galway Clinic Doughiska [2007] IEHC 386, [2008] 2 IR 205; O'Donoghue v South Eastern Health Board [2005] IEHC 349, [2005] 4 IR 217; Ali v London Borough of Southwark [1988] ILRL 100; Deegan v Minister for Finance [2000] ELR 190; Lewis v Heffer [1979] 3 All ER 351; Ahmed v Health Service Executive [2007] IEHC 312, (Unrep, Laffoy J, 29/8/2007); Yap v Children's University Hospital (Temple St Ltd) [2006] IEHC 308, [2006] 4 IR 298 and Carroll v Dublin Bus [2006] ELR 149 considered - Application dismissed (2009/11325P - MacMenamin J - 22/1/2010) [2010] IEHC 15

Keenan v Iarnród Éireann

Facts: The plaintiff was the director of Human Resources in the defendant company and sought an interlocutory injunction directing the defendant to allow the plaintiff to perform his duties and restraining the defendant from removing him from his position. The plaintiff had been informed that he was being relieved of his position in late 2009 as confidence had been lost in him. He alleged that the sole incident at stake was an alleged delay in informing the Chief Executive about the outcome of an Equality Tribunal case. The plaintiff was suspended and no specific investigation had yet been undertaken. There was conflicting evidence as to the trigger of the dispute between the parties, including a controversial series of events involving fraudulent practices in the organization of the defendant, which was the subject of high profile investigation. The issue arose as to where the balance of convenience lay and whether the plaintiff had a strong case which was likely to succeed at trial

Held by MacMenamin J. that the balance of convenience fell against the plaintiff. The breakdown of the relationship fell against the plaintiff. The plaintiff continued to be paid his salary. The interlocutory injunction would be dismissed. The case required a degree of supervision by the Court. The defendant would be entitled to a reasonable period to carry out an investigation and to bring any disciplinary proceedings. The balance of convenience could be altered if court intervention was necessary.

Reporter: E.F.

1

The plaintiff has been employed by the defendant or its predecessors in title since 1973. Having been promoted on a number of occasions he was appointed manager, (now Director), Human Resources in Iarnród Éireann in 1995. He states that he is the most experienced manager in the Personnel/Human Resources area of the defendant, and that he has built a "strong reputation" as a human resources professional, gaining the respect both of management and trade unions in an organisation which in the past has had many industrial relations difficulties.

2

The relief which the plaintiff claims is for interlocutory injunctions directing Iarnród Éireann to allow the plaintiff to perform his duties as Director of Human Resources without interference; and restraining the defendant from taking any steps to remove him from his position. The plaintiff claims an ancillary relief restraining the defendant or its servants or agents from communicating with any third party that he has been removed, that he has "stood aside" or been relieved of his duties. He seeks the continuance of his salary pending a suspension which has arisen in the following way. The last two issues are not in dispute. But in view of the mandatory nature of the relief now sought by the plaintiff the allegations and counter allegations must be clearly identified.

Chronology
3

On 3 rd December, 2009, Mr. Keenan was informed by Mr. Richard Fearn, the Chief Executive of the defendant that he was being relieved of his responsibilities as Director of Human Resources. He states that Mr. Fearn told him this because he had lost confidence in him, owing, "solely", to an alleged delay informing him about the outcome of a recent equality tribunal case taken by an employee against larnród Éireann. The plaintiff says he was directed to take his personal effects, leave his office and that he would be contacted further.

4

On 6 th December, 2009, an article appeared in the Sunday Independent apparently quoting a senior executive of Iarnród Éireann saying that the plaintiff had stood aside from his post. On 11 th December, the plaintiff's solicitors sent a letter challenging what had occurred. On 14 th December, the proceedings herein were issued. Liberty was granted by the High Court (Murphy J.) for short service of this application to Thursday, 17 th December. On 17 th December, the application was adjourned to 13 th January for the defendants to deliver affidavits by 21 st December, 2009 and the plaintiff to deliver his responding affidavit by 8 th January, 2010. On 17 th December a further letter was sent by the chief executive of the defendant raising an additional matter that according to the defendant required a response. The nature of these matters will be explained below.

5

Despite the fact that the plaintiff has been suspended and, an investigation is said to be in contemplation in relation to issues now raised by the defendant, no specific investigator has been appointed for these and therefore no time scale is identifiable at this point for the course of any investigation, or (if the defendants so decide) any disciplinary proceedings against the plaintiff. The plaintiff has not responded to the correspondence from his employer save through his solicitor. The substance of the issues has been outlined but not particularised; potential witnesses have not all been identified; no statements have been furnished to the plaintiff; no disciplinary allegations have yet been made in the context of a hearing. No formal hearing of any type was conducted subsequently to the 3 rd December, 2009.

6

There is conflicting evidence as to what was the trigger point giving rise to the dispute between the parties. The plaintiff says that there has been a controversial series of events within Iarnród Éireann involving fraudulent practices. He says these were originally identified by an investigation carried out under his direction from 2005 onwards. He says that evidence emerged of collusion between certain Iarnród Éireann personnel and third party contractors. Disciplinary actions ensued and dismissals followed; the gardaí were involved and criminal prosecutions were brought resulting in convictions. As matters progressed and became more complex he proposed that expert forensic accountants be retained to take the investigation further and this was agreed. Accordingly the firm of Baker Tilly Ryan Glennon ("Baker Tilly") were appointed following a procurement process. They began their work in the second quarter of 2007.

7

The plaintiff says that in October 2007, he was asked by the chief executive to prepare a report for the C.I.E. Audit Committee. This report set out the progress made in respect of disciplinary charges issued in the case of an Iarnród Éireann employee, one of the subjects of the Baker Tilly investigation. In the final sentence of a report made to the C.I.E. Audit Committee on 4 th October, 2007, Mr. Keenan says that in his estimation losses over a period of three years under review, 2004-2007, amounted to a seven or eight digit sum. He says this report triggered a very adverse reaction against him and to the investigations.

8

He says the Audit Committee received the report at its October 2007 meeting. He avers that, within a couple of days, he received an irate phone call from Dr. John Lynch, chairman of C.I.E. (the defendant's parent company), berating him for reporting the loss at such a high level. He says that Dr. Lynch and Mr. Paul Kiely, the chairman of the Audit Committee believed that this aspect of the report jeopardised their positions and that he was told that he was stupid and should have known better than to suggest such high losses in writing to a Board sub-committee. I emphasise none of these matters have been tested in evidence or cross-examination.

9

The plaintiff continued to direct the Cost Audit Unit. He says that in December, 2007, there was a direction given that no minutes be kept of meetings of a...

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1 cases
  • Bennett v Minister for Justice and Equality
    • Ireland
    • High Court
    • 5 May 2017
    ...by virtue of the casting of the aspersions aforesaid, and that this was a factor of relevance by virtue of Keenan v. Iarnród Éireann [2010] IEHC 15. However, in this regard the court notes that: (1) there is no evidence before the court of any such difficulty arising, despite the fact that ......

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