Kelleher v an Post

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 28 June 2016
• Neutral Citation: [2016] IECA 195
• Docket Number: 2014, No. 973 [Article 64 Transfer]
• Court: Court of Appeal (Ireland)
• Date: 28 June 2016

[2016] IECA 195

THE COURT OF APPEAL

Hogan J.

2014, No. 973

[Article 64 Transfer]

Dunne J.

Hogan J.

Murphy J.

BETWEEN/

TOM KELLEHER

PLAINTIFF / APPELLANT

- AND -

AN POST

DEFENDANT / RESPONDENT

Suspension – Termination of appointment – Contractual liability – Appellant seeking to appeal against High Court order dismissing his claims – Whether respondent was entitled to recover ?31,250

Facts: The appellant, Mr Kelleher Snr, was the postmaster at Newcastle West, Co. Limerick. On 28th June 2011 he was on annual leave and had just gone on holiday to Spain with his wife when an adult son of his, Mr Kelleher Jnr, was kidnapped at gunpoint and taken hostage. In the appellant?s absence, the staff at the Post Office at Newcastle West, who obviously feared for Mr Kelleher Jnr?s life, agreed to hand over ?105,000 at a specified location to the kidnappers by way of payment of a ransom demand. Mr Kelleher Jnr was released without physical harm. These events set in motion a disciplinary process which ultimately resulted in the termination of the appellant?s contract qua postmaster, together with a finding that he was contractually liable to pay the respondent, An Post, 50% of the missing moneys. The appellant claimed, in essence, that the procedure which resulted in the termination of the appointment was unfair and that he had no contractual liability to An Post in respect of the missing moneys. In the High Court, Peart J dismissed these claims in a reserved judgment delivered on 16th May 2013 ([2013] IEHC 328). The appellant appealed to the Court of Appeal against that decision. The appellant raised five points of objection. First, he said that the trial judge was in error in holding that procedures afforded to the appellant by Appendix IV were entirely appropriate. Second, he contended that he ought to have been supplied with a copy of the proposed recommendations of the relevant manager from An Post, Mr Ryan, to Mr Delany, the Human Resources Manager appointed to hear the appeal. In addition, he also submitted that there was pre-judgment on the part of Mr Ryan. Third, he said that he was equally entitled to see Mr Delany?s report to the Director of Retail Operations. Fourth, he submitted that there was improper contact between Mr Dunleavy, the Head of Contactors, and a third party, Mr McGann. Finally, he said that An Post were not entitled to recover the sum of ?31,250 (50% of the remaining missing moneys) in the course of this procedure.

Held by Hogan J that the appellant was debarred by his own conduct in knowingly participating in the process from challenging the validity or appropriateness of the Appendix IV procedure as it was applied to the case. Hogan J did not think in the particular circumstances of the case that the appellant was entitled to have access either to Mr Ryan?s report to Mr Delaney or, for that matter, the report of Mr Delaney to Mr Dunleavy. To that extent, Hogan J agreed with the ultimate conclusions of Peart J on that issue. Hogan J held that while it might have been better had the conversation between Mr Dunleavy and Mr McGann not taken place, the evidence did not establish any impropriety on the part of any of the parties; the conversation was well-intentioned and it did not appear that, contrary to cases such as?Aziz v Midland Health Board (Supreme Court, 29th October 1999), the decision maker ever acted on the basis of this conversation or treated it as an opportunity to gather evidence which might be applied to the appellant?s case. In those circumstances, Hogan J held that the objection on the grounds of apparent bias or pre-judgment must fail. Hogan J held that An Post had no entitlement unilaterally to specify the sums which it contended were due from the appellant for breach of contract; if An Post claimed to be entitled to this sum, then where such is disputed, it must sue the appellant in substantive proceedings for unliquidated damages for breach of contract.

Hogan J held that he would allow the appeal against that part of the order of the High Court concerning the claim by An Post for ?31,250 and would grant a declaration to that effect. He held that he would, however, otherwise dismiss the appeal brought by the appellant against the decision of the High Court.

Appeal dismissed in part.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 28th day of June 2016

1 On Tuesday 28th June 2011 a dreadful kidnapping incident took place which has had life changing implications for the appellant and his family. The appellant, Mr. Tom Kelleher Snr., was at the time the postmaster at Newcastle West, Co. Limerick. On that particular day he was on annual leave and he had just gone on holiday to Spain with his wife when an adult son of his, Tom Jnr., was kidnapped at gunpoint and taken hostage. On that morning Tom Jnr. had just arrived at the rear of the post office in his father's car when he was abducted. The appellant's holiday was obviously interrupted and he had to return to Ireland immediately.

2 The appellant had left another son, Ronan, and two other employees in charge of the post office. In the appellant's absence, however, the staff at the Post Office at Newcastle West – who obviously feared for Tom Jnr.'s life - agreed to hand over ?105,000 at a specified location to the kidnappers by way of payment of a ransom demand. It was fortunate that Tom was released without physical harm from what must have been a terrifying incident.

3 These were obviously deeply traumatic events for the appellant and his family, although the fact that Tom was not physically harmed must be regarded as very positive news indeed. The appellant's ordeal was not, however, over because these events set in train a disciplinary process which ultimately resulted in the termination of his contract qua postmaster, together with a finding that he was contractually liable to pay An Post 50% of the missing moneys.

4 These events must have come as a terrible blow to the appellant. He had served as postmaster for 19 years and he had also built the premises (which he owns) from which the post office at Newcastle West operates. His wife and one of his sons are employed there. Following his suspension from his position on the previous day, the appellant's salary was stopped on 30th June 2011 and he says that he has been dependent on social security payments since that date.

5 It is these events which have given rise to these proceedings. The appellant has claimed, in essence, that the procedure which resulted in the termination of the appointment was unfair and that he has no contractual liability to An Post in respect of the missing moneys. In the High Court, Peart J. dismissed these claims in a reserved judgment delivered on 16th May 2013: see Kelleher v. An Post [2013] IEHC 328. The appellant now appeals against that decision.

The suspension of the appellant and the four issues raised by An Post

6 Before examining any of these issues in detail, it is necessary first to recount the events which led to the termination of the contract in the first place. Following the release of Tom Jnr. by the kidnappers, a follow-up check of accounts at the Newcastle West Post Office took place on 29th June 2011 which was carried out by An Post's Waterford audit team. A number of issues were then identified and the appellant was interviewed. Following this, the appellant was handed a notice at about 8.30 pm on the evening of 29th June suspending him from his contract.

7 On 19th July 2011 Mr. J.J. Ryan, the relevant manager from An Post, wrote to the appellant. While the letter very properly expressed sympathy with the family's plight and ordeal, Mr. Ryan nevertheless outlined the issues of concern to the company and indicated that the question of whether the appellant could continue to hold a contract as postmaster was now under consideration. Mr. Ryan outlined four issues for consideration.

Issue 1: Failure to follow company security procedures in the course of the kidnap incident on 28th June 2011.

8 Mr. Ryan stated that the staff at the Post Office did not contact a dedicated telephone help line in accordance with An Post security policy during the course of the kidnap incident. The sum of ?105,000 was, moreover, handed over to the kidnappers without any contact having been made with An Garda Síochána, An Post or, indeed, with the appellant himself. An Post contended that there would have been time to do this, because a member of staff left with the money at 11.15am on the 28th June, but contact was made with An Garda Síochána only at 3pm that afternoon.

9 The staff at the Post Office had, however, informed the audit team that they were unaware of the special security telephone helpline and they also stated that they had never attended any security seminars. Mr. Ryan stated that An Post took the view that even though Mr. Kelleher was on holidays at the time of the kidnap, it was incumbent upon him to ensure that the staff who were left in charge were fully aware of the security procedures.

10 Mr. Ryan noted that the appellant had stated during his interview that he had not advised his staff of the relevant security telephone number to contact in the event of a hostage taking because he believed that this was for postmasters only. Mr. Ryan stated that the company could not accept this, particularly since the appellant had attended a particular security seminar in September 2009 where it had been made clear to all those attending that the number should be made available to all staff.

11 Mr. Ryan then explained that An Post considered that the failure to follow the security policy had facilitated the theft of the ?105,000, increased the risk to the hostage and also significantly increased the risk ?to other offices which may be seen as a soft target....