O'Leary v an Post

CourtHigh Court
JudgeMr. Justice David Keane
Judgment Date12 May 2016
Neutral Citation[2016] IEHC 237
Docket Number[2015 3070 P]
Date12 May 2016
[2016] IEHC 237

[2015 3070 P]


Employment – Contract of employment – Irregularities in financial transactions – Disciplinary proceedings – Dismissal from employment – Mandatory injunction Establishment of strong case – Fair procedures

Facts: Following the dismissal of the plaintiff by the defendant after the conclusion of the disciplinary hearing, the plaintiff now filed the present application seeking injunctions to the effect of restraining the defendant from giving effect to its decision of dismissal and hearing the plaintiff's appeal. The plaintiff alleged that the defendant had breached the principle of natural justice in not providing him the specific findings of serious misconduct that formed the basis of his dismissal and depriving the plaintiff to cross-examine the concerned witnesses.

Mr. Justice David Keane granted an interlocutory injunction, thereby restraining the defendant from hearing the plaintiff's appeal unless the defendant provided a statement of serious misconduct to the plaintiff forming the basis of the dismissal of the plaintiff from the employment of the defendant. The Court held that an applicant who wished to challenge a process of dismissal must make out a strong case in order to obtain an interlocutory relief. The Court observed that it would not intervene in the decisions of a disciplinary body unless there was a fundamental flaw in the procedure adopted by the said disciplinary body. The Court found that the plaintiff's contention of being devoid of an opportunity to cross-examine the witnesses could be redressed by way of an appeal. The Court observed that since the employer had levied charges of serious misconduct against the employee, the employer was obliged to provide the exact nature of charges and the basis on which those charges were made to the employee. The Court found that the statement by the defendant that it had lost trust and confidence in the plaintiff would not be sufficient to comply with the principles of fair procedures.

JUDGMENT of Mr. Justice David Keane delivered on the 12th day of May 2016

This is an application for various employment injunctions. The plaintiff seeks to restrain the defendant from giving effect to its decision to dismiss him from its employment. Unusually, the plaintiff also seeks to restrain the defendant from taking any further step to consider his appeal against that dismissal and, specifically, from conducting the oral hearing of that appeal that he has himself requested.


When the present application for interlocutory relief came on for hearing, the plaintiff had not yet taken any steps in the underlying action beyond the issue and service of a plenary summons. The general indorsement of claim set out in that summons identifies the core reliefs sought as a mandatory injunction directing the plaintiff's reinstatement as an employee of the defendant and damages for breach of contract and mental distress. While the plaintiff also seeks an order in the proceedings directing the payment to him of all salary and other emoluments due, to include any arrears, both sides acknowledge that the plaintiff, though suspended from work, remains in receipt of full pay pending the determination of his appeal against dismissal. Hence, it would seem that the present interlocutory reliefs are sought pending the determination of a claim by the plaintiff for full reinstatement in employment or for damages, or both.


The plaintiff commenced employment with the defendant in 1993 in a temporary capacity. On the 11th February 1997, the plaintiff signed a contract of employment with the defendant as a ‘permanent post office clerk.’

Disciplinary policy and procedure

That contract includes the following provisions:

‘12. Termination of Employment:

The Company reserves the right to terminate the contract of employment without notice or pay in lieu of notice in cases of serious misconduct.

16. Integrity and Confidentiality: The Company requires that the employee's honesty and integrity be beyond doubt.

18. Disciplinary Measures: Infringement of a term of this contract or of Company (sic), can lead, depending on the gravity of the breach, to a reprimand, a verbal or written warning, a transfer to other duties, loss of privileges, deferment of increment, reduction in pay, demotion, relocation, dismissal or other such action as the Company may determine. Persistent breaches of this contract or of Company rules or persistently inadequate work performance can lead to dismissal.

A serious breach of this contract or of a Company rule can lead to dismissal on the first occasion such a breach occurs.

19. Disciplinary Procedures: Before any disciplinary action is taken by the Company the employee shall be notified of any alleged breach of discipline and shall be offered the opportunity of providing an explanation. The employee will be required to co-operate with the Company by providing written or oral information as requested to establish the facts of any matter which in the Company's view, warrants investigation.

Where the dismissal of the employee is under consideration the employee will be given the particulars of the reasons why dismissal is under consideration and given the opportunity of making representations or having representations made on the employee's behalf by the a (sic) recognised staff organisation. These representations will be taken into consideration before any decision is made.’


Appendix A to the said contract contains 14 itemised ‘examples of misconduct’, one of which – no one could be surprised to learn – is ‘dishonesty.’ Another is ‘neglect of duty.’


The defendant has a ‘Discipline Policy & Procedure’, agreed by the defendant and the trade unions and staff associations representing its staff. The material iteration of that policy came into effect on the 17th December 2012. Those parts of the Discipline Policy of particular relevance to the present application include the following:

‘4. Disciplinary action will arise in the following circumstances:

• specific incidents of a serious nature related to an employee's work performance, misconduct …

5. Although the aim of the disciplinary policy/procedure is remedial there are instances where an employee's action(s) will merit the application of a higher level disciplinary sanction in the first instance, reflecting the seriousness of the matter.

7. Where the disciplinary procedure is invoked the employee shall have the following entitlements:

• the right to be notified of the specific matters in respect of which disciplinary action is being considered at the time any proceedings are initiated and receive any relevant material, records or sources of data at that time, to the extent that they have been relied upon by management in initiating the proceedings

• the right to respond to the allegation(s) prior to any disciplinary decision being made

• the right to representation by a trade union representative at all stages of the procedure, including the appeal stage. Alternatively, the employee may choose to be represented by a fellow employee of his/her choice provided the fellow employee they nominate is immediately available or available within a reasonable period of time, so that proceedings are not unusually delayed

• The right to consideration of any matters he or she puts forward to the Company or is put forward on their behalf in the course of the disciplinary process

• The right to be advised of the outcome of the Company's disciplinary investigation

• the right to appeal against any disciplinary sanction decided by the Company’


The material provisions of the Disciplinary Procedure include the following:


3.1 At all stages of the procedure (including the appeal stage) employees will be advised of their entitlement to Union Assistance in making representations or responding to any matter raised with them under this procedure. In advance of attending any meeting held under the procedure the employee will also be advised of their right to be accompanied by a Trade Union representative or a fellow employee of his/her choice, provided any fellow employee they nominate is immediately available within a reasonable period of time, so that proceedings are not unduly delayed.


4.1 Each disciplinary case relates to a unique set of circumstances and, therefore, it is not possible to be prescriptive about the time frame in which individual cases should be completed. … In cases where a higher level sanction (second level written warning to dismissal) is a consideration without any related disciplinary sanction having been applied in the past the disciplinary process may be more extended but, in general, should not extend beyond four months unless a more extended period is required to adequately safeguard an employee's rights under the Company's Disciplinary Policy and this procedure.

4.2 It is the responsibility of the manager/supervisor, however, to ensure that matters are progressed as quickly as possible. Employees are expected to co-operate by responding promptly to any requests for information/explanation sought by the supervisor/manager during the course of the proceedings.

4.3. The employee will be given adequate opportunity to consider his/her position and take advice, before being required to respond to any allegations or requests for information/explanation.


6.1 Prior to any disciplinary proceedings being initiated under these procedures a process of preliminary enquiry aimed at establishing basic facts and determining whether disciplinary proceedings against any individual is warranted will be undertaken. The extent of those enquiries will vary according to circumstance and...

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  • Hughes v Irish Blood Transfusion Service
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    ...applicant relies on Mooney v. An Post [1998] 4 IR 288, Frizelle v. New Ross Credit Union Ltd [1997] IEHC 137 and O'Leary v. An Post [2016] IEHC 237 in this regard. It is further contended that the process leading to the applicant's dismissal was fundamentally different to that initiated ......
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    ...v. Royal Liver Assurance Ltd [2008] IEHC 332; Elmes & Anor v. Vedanta Lisheen Mining Ltd & Ors [2014] IEHC 73; O'Leary v. An Post [2016] IEHC 237 and a decision of the Employment Appeals Tribunal in Moore v. Notts Hotel and Resort Ltd case no. UD 27/204 given the 17th May, 42 Having rega......
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    ...to be at odds with other decisions of the High Court (including Shortt v Royal Liver Assurance Ltd [2008] IEHC 33 and O’Leary v An Post [2016] IEHC 237) and with decisions of the Supreme Court in cases such as Mooney v An Post [1998] 9 ELR 238 and Rowland v An Post [2017] 1 IR 355. Those ot......
  • Case Number: ADJ-00019005. Employment Appeals Tribunal
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    • Employment Appeal Tribunal (Ireland)
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    ...to be at odds with other decisions of the High Court (including Shortt v Royal Liver Assurance Ltd [2008] IEHC 33 and O’Leary v An Post [2016] IEHC 237) and with decisions of the Supreme Court in cases such as Mooney v An Post [1998] 9 ELR 238 and Rowland v An Post [2017] 1 IR 355. Those ot......
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