Morgan v Trinity College

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 09 July 2003
• Neutral Citation: [2003] IEHC 167
• Docket Number: [2002 No. 15820P]
• Court: High Court
• Date: 09 July 2003

MORGAN v. TRINITY COLLEGE DUBLIN (TCD) & SMYTH & BUCHANAN

BETWEEN

GERALD MORGAN

PLAINTIFF

AND

THE PROVOST, FELLOWS AND SCHOLARS OF THE COLLEGE OF THEMOST HOLY AND UNDIVIDED TRINITY OF QUEEN ELIZABETH NEAR DUBLIN, CYRILSMYTH AND JOHN GERARD BUCHANAN

DEFENDANTS

[2003] IEHC 167

1582OP/2002

THE HIGH COURT

Synopsis:

EMPLOYMENT

Fair procedures

Fair procedures - Disciplinary procedures - Suspension - Nature of suspension - Whether suspension punitive or not - Whether rules of natural justice apply - Whether suspension invalid - Whether delay in holding disciplinary hearing prejudices plaintiff - Injunction - Balance of convenience(2002/15820P -Kearns J - 9/7/2003)

Morgan v Trinity College Dublin (TCD) - [2003] 3 IR 157

the plaintiff had been suspended by the first defendant on full pay pending an investigation into complaints relating to his behaviour by colleagues. This occurred in the aftermath of the completion of a report by the second defendant in October, 2002 which found that the plaintiff had a case to meet relating to a complaint concerning another incident with a colleague in February, 2002 and referring that complaint to a disciplinary panel to be chaired by the third defendant and originally scheduled to take place on the 11th December, 2002. The plaintiff had been served with a book of evidence three days before the scheduled hearing. The plaintiff secured an interim injunction restraining the third defendant from proceeding with that enquiry. He then sought an interlocutory injunction restraining the third defendant from holding the disciplinary hearing or from taking any steps until the trial of the action and an order setting aside his suspension. The grounds relied on by the plaintiff included allegations that there was a failure to comply with natural justice in that the plaintiff did not have an opportunity to challenge his accusers during the second defendant's investigation, that the second defendant failed to comply with the time limits for reference of the matter to the disciplinary panel, that the reference of additional complaints to the disciplinary panel was not in accordance with the procedure and that his suspension was invalid. It was further contended by the plaintiff that damages would be inadequate and the balance of convenience lay in favour of granting an injunction.

Held by Kearns J in refusing to grant the injunction sought that there was a distinction between two types of suspension, namely: punitive, which constituted a disciplinary sanction where the person affected should be afforded natural justice and fair procedures, and; a holding suspension, where a person is suspended so that an enquiry can be undertaken and where the rules of natural justice may not apply. Whether a suspension amounted to a sanction such as would involve concepts of natural justice was a question of fact and degree involving a reference to the particular occupation of the person affected, the manner and nature of the suspension and whether the person had been fully informed of the complaint against him. A holding power of suspension had to be construed as permitting a suspension to continue only for the period of time which it would not be reasonably practicable to hold a full hearing into the matter. It had been made clear to the plaintiff that his suspension was not an end in itself but rather a stage in a process which was justified as constituting exceptional circumstances within the meaning of paragraph 12 of the statutes of the first defendant. The balance of convenience was against granting an interlocutory injunction when the rights of the defendant in maintaining order and protecting staff were placed against the plaintiff's interests.

Citations:

MURTAGH V BOARD OF MANAGEMENT OF ST EMER'S NATIONAL SCHOOL 1991 1 IR 482

MCNAMARA V SOUTH WESTERN AREA HEALTH BOARD 2001 ELR 317

QUIRKE V BORD LUTHCHLEAS NA HEREANN 1980 IR 83

DEEGAN V MIN FINANCE 2000 ELR 190

JOHN V REES 1969 2 AER 274

LEWIS V HEFFER 1978 3 AER 354

FURNELL V WHANGARIE HIGH SCHOOLS BOARD 1973 1 AER 400

FLYNN V AN POST 1978 IR 68

WISEMAN V BOURNEMAN 1971 AC 297

HAUGHEY, RE 1971 IR 217

1 JUDGMENT of Mr. Justice Kearnsdelivered the 9th day of July,2003.

2 The plaintiff in these proceedings is a Senior Lecturer in Old and Medieval English in Trinity College Dublin. He joined the Department of English in 1968 as a Junior Lecturer, was subsequently appointed as Senior Lecturer and was elected a Fellow of the College in 1993. He carries on his research and teaching on the campus of the College and is entitled to reside in rooms within the College itself and enjoy various other rights ancillary thereto.

3 On the 7 ^th October, 2002 the plaintiff was suspended with pay with immediate effect on foot of a complaint by Dr. Stephanie Newell, a member of staff and colleague in the Department of English, alleging physical intimidation and harassment. On Sunday, 6 ^th October, 2002, the plaintiff had entered the Arts Building and had there entered the office of Dr. Newell in the English Department. He spent some 10 minutes in that office in the presence of Dr. Newell during which time he engaged in invective against English people and the English middle classes. Dr. Newell is English and felt very intimidated and frightened by his behaviour whichbecame increasingly angry. She moved to the departmental office to do some photocopying, but was followed by the plaintiff who became more and more angry. According to Dr. Newell, the harangue continued for some further time, at the conclusion of which the plaintiff grasped her hand, kissed her on the cheek and then left. Dr. Newell found this experience frightening and threatening and made a formal complaint in writing to the second named defendant who is Senior Dean of Trinity College. On the following day the second named defendant wrote to the plaintiff advising that a formal complaint had been made against him which required to be investigated in accordance with procedures set out in schedule (iii) chapter (xii) of the College statutes. Also enclosed with the Dean's letter was the letter of complaint from Dr. Newell and the formal record of an interview about the incident held on the 7 ^th October 2002 between the Senior Dean, the staff secretary and Dr. Newell. The plaintiff was advised by the said letter to attend an interview regarding the matter on Friday 11 ^th October 2002 at which he could be accompanied by a colleague or other representative of his choice. This offer of interview was declined by the plaintiff.

4 In his letter dated 7 ^th October 2002, the Senior Dean wrote as follows to the plaintiff:-

"I have today received a complaint from Dr. Stephanie Newell concerning your behaviour towards her in the Department of English on Sunday morning 6 ^th October 2002 between approx 10.50 and11.20am."

5 The college's policy document on preventing sexual harassment and bullying in the workplace states:-

"Any act or conduct by a perpetrator is considered to be harassment if it is unwelcome to the recipient and could reasonably be seen as offensive, humiliating or intimidating to the recipient." The college's disciplinaryprocedures cite as examples of misconduct by a member of the academic staff (paragraph 12 schedule (iii), chapter (xii) of thestatutes):-

"violence or threats of violence towards other members of the college community or persons having legitimate business with the college" and "harassment on the college premises or in the course of employment"

6 On the basis of the verbal and written evidence presented to me by Dr. Newell, I deem the matter to be of such seriousness that I am invoking powers given to the Senior Dean under paragraph 12 of the aforementioned statutes that you be suspended with pay to take effect immediately. I shall be formally recommending this course of action in accordance with the statutes to the Board of the College. This means that you should not be physically present in any part of the Arts Building of the College until further notice.

7 I shall be taking steps to conduct a full and formal investigation of the complaint made by Dr. Stephanie Newell in accordance with the College's disciplinary procedures applicable to academicstaff.

8 Yours sincerely."

9 This event occurred in the aftermath of an investigation by the second named defendant into other complaints made against the plaintiff by Professor John Scattergood, also from the Department of English, and by Professor Nicholas Grene, Head of the Department of English, in respect of which a report dated 30 ^th September, 2002 had been made available to the plaintiff on 4 ^th October, 2002. That report had recommended to the Board of the College that the plaintiff be suspended from his post as Senior Lecturer in the Department of English for a period of three months without pay and further recommended that the plaintiff receive a formal warning that if theconduct the subject matter of the reports was to be repeated, that the plaintiff might be subject to further disciplinary action including dismissal as a possible outcome.

10 This investigation and report arose out of complaints made against the plaintiff by Professor John Scattergood dated 21 ^st February 2002 and Professor Nicholas Grene, Head of the English Department, also dated 21 ^st February 2002.

11 These complaints arose out of letters written by the plaintiff on the17 ^th February 2002 and the 19 ^th February 2002 to Professor Nicholas Grene and other named parties and a further letter of the 22 ^nd of February 2002 written by the plaintiff to all members of the Department of English in the College.

12 Essentially the plaintiff had complained in these letters that he had not been consulted in February 2002 in connection with the appointment of a permanent lecturer in Medieval English in the English Department, nor included in the nominating committee for selection....