Kevin Rogers v an Post
| Jurisdiction | Ireland |
| Judge | Mr Justice Keane |
| Judgment Date | 25 July 2014 |
| Neutral Citation | [2014] IEHC 412 |
| Docket Number | [No. 3750 P/2014] |
| Court | High Court |
| Date | 25 July 2014 |
[2014] IEHC 412
HIGH COURT
BETWEEN
AND
O'FLYNN v MID WESTERN HEALTH BOARD 1991 2 IR 223
DILLON v DUNNES STORES (GEORGES STREET) LTD & ORS 1966 IR 397
CARROLL v LAW SOCIETY OF IRELAND & AG (NO 2) 2003 1 IR 284 2000 1 ILRM 161 1999/4/742
CARROLL v BUS ATHA CLIATH (DUBLIN BUS) 2005 4 IR 184 2005 ELR 192 2004/6/1392
SOLICITORS ACT 1954 S56
SOLICITORS ACT 1954 S77
PROCEEDS OF CRIME 1996 S9
M (M) v D (D) 1998 3 IR 175 1998/24/9319
GILLIGAN v CRIMINAL ASSETS BUREAU (CAB) & ORS 1998 3 IR 185 1998/7/1996
MOONEY v AN POST 1998 4 IR 288 1997/10/3360
CAMPUS OIL LTD & ORS v MIN FOR INDUSTRY & ORS (NO 2) 1983 IR 88 1984 ILRM 45
JACOB v IRISH AMATEUR ROWING UNION LTD 2008 4 IR 731 2008/30/6618 2008 IEHC 196
AMERICAN CYANAMID CO v ETHICON LTD (NO 1) 1975 AC 396 1975 2 WLR 316 1975 1 AER 504
CAYNE v GLOBAL NATURAL RESOURCES PLC 1984 1 AER 225
DUNNE & LUCAS v DUN LAOGHAIRE-RATHDOWN CO COUNCIL [CARRICKMINES CASE] 2003 1 IR 567 2003 2 ILRM 147 2003/13/2782
Interlocutory Injunction Application – Disciplinary Proceedings – Employment – Serious Misconduct – Procedure – Pending Criminal Proceedings – Fairness – Trial process
The facts of this case involved the plaintiff, a branch manager at Roscommon Post Office, being suspended on full pay by the defendant, An Post, the national postal service. More than two years later, the plaintiff remains suspended on full pay pending the determination of disciplinary proceedings against him. The plaintiff sought an injunction restraining the defendant from taking any further steps in the disciplinary process relating to the plaintiff until the determination of criminal proceedings currently pending before Roscommon Circuit Criminal Court. The defendant seeks to investigate whether the plaintiff has engaged in serious misconduct: namely for the mistreatment of an item of registered post containing a urine sample from another postal worker. The issue came before Keane J. in the High Court.
The plaintiff argued that unless the relief requested is granted he would be subject to irremediable prejudice either through being constrained or inhibited in his participation in the disciplinary process or by potentially losing the benefit of the privilege against self-incrimination in the criminal process. The plaintiff argued that the defendant has not set out precisely what allegation is being leveled against him, rendering it impossible for him to defend himself. Additionally no allegation can be fairly or properly established against him except through the evidence of witnesses, and that the legal representation he has been permitted to have at the proposed oral hearing confers no benefit upon him unless the process is conducted in that way. The plaintiff contended that his application is governed by the Campus Oil guidelines. Keane J. found that it is clear that in this case the grant of an interlocutory injunction would have the practical effect of determining the proceedings as a whole because the plaintiff will have obtained in advance of trial the very relief that he is seeking at the trial of the action. Guided by the principles identified by Laffoy J. in Jacob v. Irish Amateur Rowing Union Ltd, Keane J stated that the purpose of an interlocutory injunction is designed as a temporary measure, maintaining the status quo until the rights and obligations of the parties can be properly determined at trial. Keane J stated that it seems that the real significance of the particular wording used is that it serves to indicate an implied acceptance by the plaintiff that the interlocutory relief he seeks would, if granted, determine the ultimate issue in the main action in his favor. Keane J. decided that it would be an injustice to grant the injunction now sought at the interlocutory stage, as there is a very great likelihood that this would effectively preclude the defendant from the opportunity of having its rights determined at a full trial. Keane J. did not purport to finally decide any factual or legal aspects of the plaintiff”s claim, as it would not be appropriate to do so when, at trial, the evidence may be different and more ample and the law will be debated at greater length. Accordingly Keane J. refused the plaintiff”s application for injunctive relief.
The plaintiff in these proceedings was the acting branch manager at Roscommon Post Office when, on the 28th March 2012, he was suspended on full pay by the defendant An Post, which is, of course, the national postal service. More than two years later, the plaintiff remains suspended on full pay pending the determination of disciplinary proceedings against him.
A plenary summons was issued on behalf of the plaintiff on the 10th April 2014. In those proceedings, the plaintiff seeks a single substantial relief, namely, "an injunction restraining the defendant from taking any further steps in the disciplinary process relating to the plaintiff until the determination of criminal proceedings currently pending before Roscommon Circuit Criminal Court and titled The Director of Public Prosecutions v. Kevin Rogers, Accused, Bill No. RNDP/0004/13."
On the 11th April 2014, the plaintiff was granted leave to issue, and effect short service of, the motion now before the Court. The single substantive interlocutory relief, the subject of that motion, is: "an order restraining the defendant from taking any further steps in the disciplinary process relating to the plaintiff until the determination of criminal proceedings currently pending before Roscommon Circuit Criminal Court and titled The Director of Public Prosecutions v Kevin Rogers, Accused, Bill No. RNDP/0004/13."
The defendant seeks to investigate whether the plaintiff has engaged in serious misconduct: specifically, whether, on or about the 5th March 2012 at Roscommon Post Office, he was responsible for the mistreatment of an item of registered post containing a urine sample from another postal worker, which was en route from a member of An Garda Síochána in Roscommon to the Medical Bureau of Road Safety in Dublin for analysis in connection with a suspected drink driving offence.
On the 28th March 2012, the plaintiff was detained for questioning by An Garda Síochána. On the 2nd October 2012, the plaintiff was charged with an offence of perverting the course of justice, contrary to common law. The particulars of that offence are that on or about the 5th March 2012 the plaintiff tampered with a drink driving sample which had been posted by An Garda Síochána to the Medical Bureau of Road Safety for analysis.
The trial of the plaintiff took place before a judge and jury at Roscommon Circuit Criminal Court between the 26th November 2013 and the 5th December 2013. The jury could not agree upon a verdict and was discharged. A re-trial has now been fixed to commence on either the 9th or the 10th December 2014.
On the 6th September 2012, An Post wrote to the plaintiff specifically describing the suspected serious misconduct of the plaintiff that was under investigation; providing what amounts to a précis of the relevant evidence; and describing the course of action that An Post was proposing to take in the following terms:
"The Company views this matter very seriously and is considering taking disciplinary action against you, including recommending your dismissal from employment with An Post."
In order to afford you an opportunity of furnishing any explanation, making any union representations or other representations you may wish to offer in respect of the above matters no further action shall be taken for a period of fourteen days (21st September 2012). If you fail to reply to this letter before that date the Company will proceed on the basis that you have no explanation to offer.
You are also being afforded the opportunity, should you so wish, of attending an oral hearing in addition to, or as an alternative to furnishing a written explanation. You may be accompanied at such a hearing by a union representative or by a friend. If you do wish to avail of the opportunity of attending an oral hearing, please inform me in writing of your intention to request such a hearing within three working days of receipt of this letter. Alternatively, you may contact [An Post by telephone] to arrange same."
8. That letter marked the beginning of an extensive exchange of correspondence between the parties' legal representatives. The salient points to emerge for the purposes of the present application, according to the arguments advanced, are the following:
(a) The defendant initially acceded to a request by the plaintiff s solicitors that the disciplinary process be deferred pending the determination of the criminal charge against the plaintiff.
(b) After the plaintiff s criminal trial resulted in a hung jury, the defendant informed the plaintiff of its intention to re-initiate the disciplinary process against him. The plaintiff was again invited to furnish any explanation or make any representations he might wish, and was again offered an oral hearing, in the same terms as were contained in the defendant's earlier letter of the 6th September 2012.
(c) The plaintiff objects to the resumption of the disciplinary process on the basis that it was (and is) proposed to conduct a retrial of the criminal charge against him. Without prejudice to that submission, the plaintiff requires an oral hearing and requires to be represented by Senior and Junior Counsel, instructed by his solicitor, for that purpose.
(d) The defendant is willing to permit the plaintiff to be represented at the proposed oral hearing by solicitor and counsel, even though that is not contemplated under the defendant's agreed disciplinary...
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