McKelvey v Iarnród Éireann Irish Rail

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke,Mr Justice Peter Charleton
• Judgment Date: 11 November 2019
• Neutral Citation: [2019] IESC 79
• Court: Supreme Court
• Docket Number: Supreme Court appeal number: S:AP:IE:2018:000178 Court of Appeal record number 2017/394 [2018] IECA 346 High Court record number 2017/5121P,[S.C. No. 178 of 2018]
• Date: 11 November 2019

[2019] IESC 79

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Clarke C.J.

MacMenamin J.

Dunne J.

Charleton J.

O’Malley J.

Supreme Court appeal number: S:AP:IE:2018:000178

[2019] IESC 000

Court of Appeal record number 2017/394

[2018] IECA 346

High Court record number 2017/5121P

BETWEEN

BARRY MCKELVEY

PLAINTIFF/APPELLANT

- AND -

IARNRÓD ÉIREANN

DEFENDANT/RESPONDENT

Fair process – Legal representation – Disciplinary proceedings– Appellant seeking injunction restraining disciplinary process – Whether a fair process could ensue without legal representation

Facts: The plaintiff/appellant, Mr McKelvey, was an employee of the defendant/respondent, Iarnród Éireann. He was initially subject to an investigation concerning what was said to be the potentially irregular purchase of fuel using a company card. As a result of that investigative process, Iarnród Éireann proposed to commence disciplinary proceedings alleging, in substance, misuse of the card in question amounting to what might reasonably be called theft of fuel. Solicitors on behalf of Mr McKelvey raised various issues concerning the process but asserted an entitlement to represent Mr McKelvey at any hearing or hearings which might take place as part of that disciplinary process. Iarnród Éireann made clear that they did not consider that Mr McKelvey was entitled to be so represented. In those circumstances, an injunction was sought from the High Court to prevent the disciplinary process going ahead. A number of grounds were relied on, including the assertion that Mr McKelvey was entitled to legal representation and that Iarnród Éireann had declined to recognise this fact. For the reasons set out in an unreported judgment delivered on 28 July 2017, the High Court (Murphy J) granted Mr McKelvey an injunction in the following terms: “It is ordered that the Defendant Iarnród Éireann/Irish Rail be restrained from commencing with the disciplinary hearing in respect of the said Plaintiff unless his entitlement to be legally represented is granted.” Iarnród Éireann appealed to the Court of Appeal. For the reasons set out in the judgment of Irvine J (Baker and Whelan JJ concurring) ([2018] IECA 346), the appeal was allowed and the injunction discharged. Thereafter, Mr McKelvey sought and obtained leave to appeal to the Supreme Court.

Held by Clarke CJ that, having applied the approach adopted in Burns v Governor of Castlerea Prison [2009] IESC 33, he was not satisfied that it had been established that this was the sort of clear case where it could be said that a fair process could not ensue without legal representation. On that basis, Clarke CJ was satisfied that the Court of Appeal was correct to allow the appeal from the High Court in this case and to decline to grant Mr McKelvey an injunction restraining the process. It did not seem to Clarke CJ that this necessarily would bar Mr McKelvey from asserting at a subsequent stage in the process that he was entitled to legal representation because of the way in which the process had evolved.

Clarke CJ held that the appeal would be dismissed.

Appeal dismissed.

Judgment of Mr. Justice Clarke , Chief Justice delivered the 11th November, 2019.

1. Introduction

1.1 There are very many recent cases in which both first instance and appellate courts have had to consider the circumstances in which it is appropriate to grant injunctions in the context of workplace disciplinary proceedings. It might well have been thought that the law in this area is reasonably well settled. However, the particular, and important, issue which came into focus in these proceedings before both the High Court and the Court of Appeal was the question of the entitlement of an employee who was the subject of disciplinary proceedings to be legally represented at an internal hearing to be conducted by his employer as part of an agreed code.

1.2 The plaintiff/appellant (“Mr. McKelvey”) is an employee of the defendant/respondent (“Iarnród Éireann”). In circumstances which it will be necessary to outline in a little more detail in due course, he was initially subject to an investigation concerning what was said to be the potentially irregular purchase of fuel using a company card. As a result of that investigative process, Iarnród Éireann proposed to commence disciplinary proceedings alleging, in substance, misuse of the card in question amounting to what might reasonably be called theft of fuel. Solicitors on behalf of Mr. McKelvey raised various issues concerning the process but, so far as the appeal to this Court is concerned, asserted an entitlement to represent Mr. McKelvey at any hearing or hearings which might take place as part of that disciplinary process. Iarnród Éireann made clear that they did not consider that Mr. McKelvey was entitled to be so represented.

1.3 In those circumstances, an injunction was sought from the High Court to prevent the disciplinary process going ahead. A number of grounds were relied on, including the assertion that Mr. McKelvey was entitled to legal representation and that Iarnród Éireann had declined to recognise this fact. For the reasons set out in her unreported judgment delivered on 28 July 2017, the High Court (Murphy J.) granted Mr. McKelvey an injunction in the following terms:-

“It is ordered that the Defendant Iarnród Éireann/Irish Rail be restrained from commencing with the disciplinary hearing in respect of the said Plaintiff unless his entitlement to be legally represented is granted”

1.4 Iarnród Éireann appealed to the Court of Appeal. For the reasons set out in the judgment of Irvine J. (Baker and Whelan JJ. concurring) (see Iarnród Éireann/Irish Rail v. McKelvey [2018] IECA 346), the appeal was allowed and the injunction discharged. Thereafter, Mr. McKelvey sought and obtained leave to appeal to this Court. It is appropriate, therefore, to start with the basis on which leave to appeal was granted.

2. The Leave to Appeal

2.1 In the application for leave filed, it was asserted by Mr. McKelvey that leave to appeal to the Supreme Court should be granted on the basis that the issue of the circumstances in which an employee ought to be afforded the benefit of legal representation at a workplace disciplinary hearing was a matter of general public importance. Mr. McKelvey further sought to query the extent to which an employer can rely on the code of practice issued under the Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 (S.I. 146/2000) in order to refuse a request for legal representation. In the respondent's notice, Iarnród Éireann, opposing the application for leave, asserted that Mr. McKelvey's application for an interlocutory injunction was premature and that the decision of the Court of Appeal should be further affirmed on this ground.

2.2 In a determination of this Court dated 25 February 2019 ( McKelvey v. Iarnród Éireann / Irish Rail [2019] IESCDET 50), leave was granted on the grounds set out in the application for leave, on the basis that an issue of general public importance had been raised. The Court held, at para. 6 thereof, that:-

“… the court is satisfied that the question of the circumstances in which it can be said that an employee or office holder, other than a prison officer, is entitled to legal representation in disciplinary proceedings raises an issue of general importance which merits consideration by this court.”

2.3 For reasons which I hope will become apparent, it is clear (and was not an issue of any dispute between the parties) that the entitlement to be legally represented at internal disciplinary proceedings can be dependent on facts associated with the nature of the allegations which form the subject of the process and on the likely course of the process itself. For that reason, it is important to provide some background as to the disciplinary process which Mr. McKelvey sought to restrain.

3. The Disciplinary Process

3.1 Mr. McKelvey had been an employee of Iarnród Éireann since 1999 and was promoted to the position of Per Way Inspector in 2013. He was assigned to Division 3, where his responsibilities included managing employees charged with maintaining the Cork to Dublin railway line. In the course of his work, he had been provided with fuel cards to facilitate the refuelling of company vehicles and machinery. Other Iarnród Éireann employees also have the use of such cards.

3.2 In July 2016, concerns arose within Iarnród Éireann regarding the level of expenditure on fuel cards issued to the employees within Division 3. In broad terms, the apparent irregularities in fuel purchasing involved the purchase of fuel in amounts significantly higher than that of other divisions, indicating excessive use of the fuel cards, the purchase of both diesel and unleaded petrol using Small Plant Cards, in circumstances where such cards were normally used to purchase small quantities of unleaded petrol to fuel small plant equipment and the purchase of fuel in locations and at times which did not appear to be consistent with proper usage nor in accordance with the activities of the division.

3.3 As a result, a preliminary investigation into the matter was carried out, in the course of which a number of employees were interviewed. Mr. McKelvey was interviewed on a number of dates between August 2016 and February 2017, the notes of which meetings have been exhibited to the Court by way of affidavit. It is apparent that the concerns of Iarnród Éireann regarding the purchasing irregularities were put to Mr. McKelvey and that his individual usage of fuel cards was queried. It was suggested by Mr. McKelvey, in response, that such purchases could have been made by other staff members using his cards.

3.4 By letter dated 13 March 2017, Mr. McKelvey was informed that he was being suspended on basic pay until further notice as a result of the investigation...