Martin v Nationwide Building Society

• Jurisdiction: Ireland
• Judge: Mrs. Justice Macken
• Judgment Date: 18 May 1999
• Neutral Citation: [1999] IEHC 163
• Docket Number: [1999 No. 1503P],No. 1503P/1999
• Court: High Court
• Date: 18 May 1999

[1999] IEHC 163

THE HIGH COURT

No. 1503P/1999

MARTIN v. NATIONWIDE BUILDING SOCIETY

BETWEEN

JOHN A. MARTIN (OTHERWISE SEAN MARTIN)

PLAINTIFF

AND

THE NATIONWIDE BUILDING SOCIETY

DEFENDANT

Citations:

FENNELLY V ASSIOURAZIONI SPA 1985 3 ILTR 73

PHELAN V BIC BIRO 1997 ELR 208

SHORTT V DATAPACKAGING 1994 ELR 251

CHARLTON V HH AGA KHANS STUD SOCIETE CIVILE UNREP LAFFOY 22.12.1998

Synopsis

Employment

Suspension; misconduct; delay; interlocutory application; plaintiff was manager of one of defendant's branch offices; allegation that plaintiff continued to be involved in an auctioneering business; defendant caused plaintiff to be suspended with full pay; plaintiff was informed that suspension was intended to be for five days; suspension persisted for some months; whether plaintiff was entitled to be reinstated pending completion of disciplinary process.

Held: Delay was inordinate and unjust; if suspension were not set aside plaintiff would suffer irreparable loss and defendant would not; application granted.

Martin v. Nationwide Building Society High Court: Macken J. 18/05/1999 - [2001] 1 IR 228

While the plaintiff had been suspended for five days on full pay on November 3 1998 from the position as manager of one of the defendant's branch office pending investigation by the defendant of a disciplinary complaint and while he had remained suspended up to the present, the court was satisfied that the delay in dealing with the complaint or allegation against the plaintiff had been inordinate and unjust. The plaintiff was entitled to have such matters dealt within a reasonably speedy time scale. In looking to see whether in the context of an interlocutory application it would be appropriate to set aside the suspension because of the time delay, the plaintiff had established a fair issue to be tried on the question of undue delay and that he would suffer irreparable loss and damage. The court did not think that the loss which the defendant might suffer would be of an irreparable type even if there was clear evidence of this on the affidavits and there was none. The court did not have to consider the balance of convenience. The High Court so held in granting the relief sought.

1 OUTLINE JUDGMENT of Mrs. Justice Mackendelivered on the 18th day of May1999

2 This is an application for interlocutory relief. An Interim Order was made on the 12th day of February 1999 by Miss Justice Laffoy. pursuant to which she ordered that the Defendant be restrained from prosecuting a disciplinary enquiry as to matters concerning the Plaintiff. The claim in these proceedings is for an Order for the reinstatement of the Plaintiff back, into his position as Branch Manager at the Defendant's branch office in Cavan Town. The Defendant is a building society of national renown.

3 The background to the matter can be easily summarised. Prior to 1986, the Plaintiff was involved in an auctioneering business together with his brother. The details of this are not important to the decision I have to make, but at some time around the year 1986 the Plaintiff was the successful applicant for the position of Manager of the then new branch of the Defendant in Cavan Town. It is said by the Plaintiff that this previous involvement in auctioneering was well known to the Defendant and the Defendant's senior management. This is disputed by the Defendant who say that, while it was known that the Plaintiff hadbeen involved in his brother's business, it was intended by the Defendant (and indeed it says. represented to it by the Plaintiff) that he was ceasing his involvement in that business. save for what was termed "tidying up" and that he would thereafter be devoting himself exclusively to the business of the Defendant. On the facts before me, it would not be possible to resolve this particular issue, because it will depend, at the end of the day, on the evidence which is given in relation to the same.

4 Some years passed since 1986 and eventually on the 3rd November 1998. the Plaintiff was suspended from his position as Manager with the Defendant. It is clear from the correspondence that this initial suspension was to be for a period of five days only. but, in fact, the Plaintiff remains suspended right up to the present day. And, from the tenor of the Defendant's submissions, there is no indication as to how long that suspension may continue. The suspension had been imposed, the Defendant says, so as to enable it proceed through the disciplinary process which it says covers a situation such as has arisen here.

5 The Plaintiff, while suspended, is nevertheless in receipt of full pay. The Plaintiff contends however, that having regard to the length of time which has passed since the commencement of his suspension and since the investigation process took place, it is wrong that this should be permitted to continue. Counsel further argues on behalf of the Plaintiff that the suspension was invalid because no reasons were given to the Plaintiff. In the alternative, he says that the reasons now being put forward by the Defendant are not reasons which were ever given to him previously and they could not therefore form part of the reasons for hissuspension.

6 The general law relating to dismissals from employment is well established at this time. This is so even in relation to interlocutory injunctions in employment cases where previously there was a marked reluctance to order reinstatement. The principles have been established in cases such as Eennelly -v- Assiourazioni Spa (1985)3 I.L.T.R. 73. Phelan -v- Bic Biro ( 1996) I.L.R.M.. Shortt -v-Datapackaging (1994) E.L.R. 25 land many others as relied on by the Plaintiff.

7 However. I am not satisfied that these cases are on the point insofar as the facts in this case are concerned. In the present case, the Plaintiff, although suspended, is on full pay. Moreover, even in the cases where reinstatement has been sought at interlocutory stage, the above cases and others make it clear that if the employee does not enjoy the wholehearted support or confidence of his employer, the Court will be very slow indeed to reinstate the employee pending the fullaction.

8 What is sought here is something different. Essentially what is said is that (a) the suspension has being going on too long. That has nothing to do with purported dismissal. And (b) the reasons which were originally given are not the reasons which are now sought to be relied on. and the Plaintiff had no opportunity to answer the reasons now sought to be the basis for the suspension. The Defendant says that this is not a case in which any dismissal is taking place, and therefore the several dismissal cases which have been relied on by the Plaintiff are not applicable. It says that what is happening here is no more that what is provided for by the disciplinary code or procedures which govern the Plaintiffs employment. The Defendant says that these disciplinary procedures have not yet been concluded. The Defendant says, through the affidavit of Fiona Couse. that no decision has been taken and that everything will be considered before any such decision is in fact made. Absent any such decision. I am of the view that this is a correct approach, namely, that the disciplinary procedure should ordinarily proceed. I cannot at this time take the view that any decision will be made on the basis of material not put before the Plaintiff, or in respect of which the Plaintiff will not be given an opportunity of being heard. If the Defendant takes a step to dismiss the Plaintiff without providing for the rules of natural and constitutional justice, thenthe Plaintiff will have a remedy for such action. But that remedy cannot be invoked at this time when it is clear that the investigation is not yet complete.

9 That of course does not end the matter. On the question as to whether the suspension has gone on for too long a period, this is a question of fact and judgment in my view. It was originally intended that the matter would be resolved in a matter of days, and that the suspension would be for a period of five days or thereabouts. That appears to me to be quite a reasonable period of time and one which the Plaintiff did not. quite properly, dispute. It is a period of time during which, having regard to the nature of the claims being made by the Defendant, all necessary enquiries could ordinarily have been made and the matter concluded one way or another.

10 But the best intentions of parties can be thwarted for good and valid reasons, not anticipated at the commencement of an investigation, and so I now must look to see whether any good or valid reasons exist for the fact that the investigation did not conclude during the intended time or during a reasonable period.

11 The time schedule appears to have been as follows:-

12 (a) The Plaintiff was suspended on the 3rd November. 1998:

13 (b) On the 3rd November. 1998 the Plaintiff...