Maher v Irish Permanent Plc

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 01 January 1998
• Neutral Citation: [1997] IEHC 150
• Docket Number: [1996 No. 8530P]
• Court: High Court
• Date: 01 January 1998

[1997] IEHC 150

THE HIGH COURT

No. 8530p/1996

MAHER v. IRISH PERMANENT PLC

BETWEEN

TIM MAHER

PLAINTIFF

AND

IRISH PERMANENT PLC

DEFENDANT

Citations:

UNFAIR DISMISSALS ACT 1977

GLOVER V BLN LTD 1973 IR 388

GUNN V BORD AN CHOLAISTE NAISIIUNTA EALAINE IS DEARTHA 1990 2 IR 168

MOONEY V AN POST 1998 4 IR 288

GALLAGHER V REVENUE COMMISSIONERS (NO 2) 1995 1 IR 55

KIELY V MIN FOR SOCIAL WELFARE 1977 IR 267

Synopsis:

EMPLOYMENT

Suspension; investigation; dismissal; breach of disciplinary procedures; breach of constitutional right to fair procedure; whether investigation complied with Defendants" disciplinary code and fair procedures; relationship of an employer and an employee Held: Employment not to be terminated pending further disciplinary procedure in accordance with the principles of natural justice High Court: Laffoy J. 29/08/1997

Maher v. Irish Permanent Plc - [1998] 4 IR 302

LABOUR

Employee misconduct; investigation by employer; decision to dismiss; order sought restraining implementation of dismissal save in accordance with employer's disciplinary code and fair procedures; order sought reinstating employee; whether investigation carried out in accordance with fair procedures; whether fair procedures breached when employee denied statements prior to hearing and permission to be legally represented until morning of hearing; whether decision to dismiss valid based on hearing conducted in absence of employee Held: Restraining order granted; reinstatement refused (High Court: Laffoy J. 29/08/1997)

Maher v. Irish Permanent Plc. - [1998] 4 IR 302

1 Judgment of Miss Justice Laffoy delivered on 29th August, 1997

THE PLAINTIFF'S CLAIM

2 In September 1985, the Plaintiff was appointed Branch Manager of the Defendant's branch at Killarney, County Kerry. On 30th August, 1996, the plaintiff was suspended from that position, without loss of pay or benefits, pending the outcome of an investigation by the Defendant into allegations made against the Plaintiff by an official and a local representative of the MSF trade union ("MSF") representing a number of staff members in the Killarney branch. Following an investigation, on 2nd October, 1996, the Plaintiff was notified of the Defendant's decision to dismiss him, but that the decision would not be finalised until 5.30 p.m. on 9th October, 1996, thus allowing the Plaintiff time to make any representation as to why the decision should not be implemented.

3 These proceedings were instituted by plenary summons which issued on 2nd October, 1996. The relief which the Plaintiff claims, which was amended by consent during the course of the hearing, is as follows:- an order restraining the Defendant from taking any further steps to terminate the Plaintiff's employment with the Defendant or otherwise to seek to implement his purported dismissal, save in accordance with the Defendant's disciplinary procedure and the principles of natural justice; and

4 (b) an order reinstating the Plaintiff to his position as manager of the Defendant's branch at Killarney in the County of Kerry.

5 The Plaintiff grounds his claim for the foregoing reliefs on his contention that the conduct of the investigation of the allegations against by him by the Defendant was in breach of the Defendant's disciplinary procedures and also his constitutional entitlement to fair procedures.

THE DEFENDANT'S DISCIPLINARY PROCEDURE

6 It is common case that the Defendant's disciplinary procedure code formed part of the Plaintiff's terms of employment with the Defendant. The code is divided into three sections.

7 The first section deals with unsatisfactory or unacceptable conduct or performance on the part of an employee and provides for -

8 (a) an initial verbal warning, a record of which is kept on file until the expiration of one year's satisfactory conduct and performance,

9 (b) a first written warning, a record of which is kept on file until the expiration of two year's satisfactory conduct and performance, and

10 (c) a final written warning, which refers to the first written warning and contains a precise written account, with relevant dates, of the employee's subsequent unsatisfactory conduct or performance and a caveat that, if the necessary improvements are not made, the employee's employment with the Defendant will be terminated.

11 The code provides that, if the employee's conduct or performance continues to be unsatisfactory after a final written warning, he or she will he dismissed. If it is decided by the Defendant that the employee should not be dismissed but that some form of disciplinary action should be taken, such action, for example, demotion, deferment of increment, or withdrawal of other benefits, may be implemented. At all stages of the procedure when an employee is interviewed by his or her line manager, he or she may be represented by a colleague. The code specifically provides that the foregoing procedure applies to first breaches and that subsequent breaches will be dealt with by only one written warning.

12 The second section of the code governs the disciplinary action to be taken in the case of gross misconduct and provides that an employee who has committed, or is suspected or having committed, a breach of discipline which amounts to gross misconduct, may be suspended immediately pending investigation and, at the discretion of the Defendant, the suspension may be with full pay. The investigation will be carried out at quickly as possible. The employee is entitled to be informed of the nature of his or her misconduct and given an opportunity to state his or her case. If the Defendant decides that gross misconduct has taken place, the employee will be dismissed. Alternatively, if it is decided that some degree of blame attaches to the employee, the company may implement disciplinary action such as demotion, deferment of increment or withdrawal of other benefits.

13 The third section of the code gives an employee the right to appeal against any disciplinary action taken against him or her by recourse to the grievance procedure. It is provided, however, that where the decision of the Defendant is dismissal, the employee will be suspended on notice of dismissal for one week before the dismissal is implemented to allow for representation. The statutory rights of the employee under the Unfair Dismissals Act, 1977are expressly acknowledged.

14 The Defendant also has procedures in place for ensuring equal opportunities for all its employees and for dealing with discrimination, including discrimination on the basis of sex. These procedures provide that no employee should be subjected to sexual harassment of any kind from any other employee and that instances of sexual harassment should be reported to management and will be dealt with in strictest confidence through the grievance and disciplinary procedures.

THE INVESTIGATION

15 Before outlining the conduct of the investigation on foot of the allegations made on 30th August, 1996, it is necessary to refer to previous incidents of the invocation of the disciplinary procedure by the Defendant against the Plaintiff.

16 In October 1991, a final written warning had issued to the Plaintiff in respect of breaches of procedure in relation to external accounts and certain sanctions had been imposed on the Plaintiff, including demotion to Assistant Branch Manager level for six months.

17 On 16th February, 1996, the Plaintiff was given a verbal warning by his superior, Philip Mongan ("Mr. Mongan"), arising out of two allegations of sexual harassment which had been brought to Mr. Mongan's attention but of which there had not been official complaints. I am satisfied, on the evidence, that the Plaintiff tacitly, if not expressly, accepted the verbal warning.

18 At the end of February and at the beginning of March 1996, the four other staff members in the Killarney branch met with Donal Garvey ("Mr. Garvey"), the Plaintiff's immediate superior, twice at their request and made allegations against the Plaintiff. Subsequently, on 25th March, 1996, the staff members wrote to Mr. Garvey outlining various further incidents which they alleged had occurred since the meetings. The Plaintiff was requested to attend a meeting at the Defendant's head office in Dublin on 27th March, 1996. He attended without representation and without having been furnished with an agenda for the meeting or with written details of the allegations against him. As a result of the meeting, a final written warning issued to the Plaintiff on 28th March, 1996. In it, the issues which had been discussed at the meeting were outlined, namely:-

19 (1) the Plaintiff's unacceptable behaviour in his dealings with female colleagues;

20 (2) complaints received from female customers;

21 (3) the impact of the Plaintiff's people management style and behaviour was having on the morale of his staff;

22 (4) rumours and hearsay surrounding the Plaintiff's personal activities in Killarney and the serious impact they might have on the profile of the Defendant; and

23 (5) breaches of policy and procedures.

24 The Plaintiff was warned that, if further complaints of a similar nature were received from customers or colleagues and found to be accurate, the Defendant would have no option but to terminate the Plaintiff's employment. It is clear from the evidence that the Plaintiff implicitly accepted the final written warning and attempted to make amends with the staff in the branch.

25 On 30th August, 1996, a local staff representative and a full-time official of MSF, representing the four staff members in the Killarney branch, complained to the Defendant about alleged incidents of sexual harassment, bullying, intimidation and operational breaches on the part of the Plaintiff and intimated that the staff members were no longer prepared to work with the Plaintiff and threatened to put a picket on...