Mulcahy v Avoca Capital Holdings Ltd

• Jurisdiction: Ireland
• Judge: MR. JUSTICE FRANK CLARKE
• Judgment Date: 26 January 2005
• Neutral Citation: [2005] IEHC 70
• Judgment citation (vLex): [2005] 1 JIC 2605
• Court: High Court
• Date: 26 January 2005

[2005] IEHC 70

THE HIGH COURT

DUBLIN

Case No. 19810P/2004

MULCAHY v AVOCA CAPITAL HOLDINGS LTD

KIERAN MULCAHY

PLAINTIFF

and

AVOCA CAPITAL HOLDINGS LTD

DEFENDANT

MARTIN v NATIONWIDE BUILDING SOCIETY 2001 1 IR 228 1999 ELR 241

DEEGAN v MIN FINANCE 2000 ELR 190

EMPLOYMENT LAW

contract

Implied terms - Suspension - Injunction - Whether non-disciplinary suspension should be removed on grounds of delay in carrying out inquiry - Whether delay inordinate and unjust - Whether employee entitled to reasons for suspension and information as to the state of the investigation - Whether state of investigation such that suspension should be lifted - Application refused (2004/19810P - Clarke - 26/1/2005) [2005] IEHC 70

MULCAHY v AVOCA CAPITAL HOLDINGS LTD

ACTION HEARD BEFORE

MR. JUSTICE FRANK CLARKE ON WEDNESDAY, 26TH JANUARY 2005

1 I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named matter.

APPEARANCES

For the Plaintiff:

MR. R. HORAN S.C.

Instructed by:

Flynn & McMorrow Sols

24/26 Upper Ormond Quay

Dublin 7

For the Respondent:

MR. M. CONNAUGHTON S.C.

Instructed by:

O'Mara Geraghty McCourt

51 Northumberland Rd

Dublin 4

2 COPYRIGHT: Transcripts are the work of Gwen Malone Stenography Services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography Services

THE JUDGMENT COMMENCED AS FOLLOWS ON WEDNESDAY 26TH JANUARY 2005

3 MR. JUSTICE CLARKE: This matter comes before the court on foot of a second motion seeking interlocutory relief. The matter had previously been before the court on 21st December 2004 when, after a full hearing, I determined that I was not persuaded to make any of the orders sought by the plaintiff which would have the effect of removing the suspension currently applicable to him in respect of his employment with the defendant. I did, however, indicate that it would be appropriate, without making an order in that regard, that the defendants should afford, at the earliest practicable opportunity, a facility to the plaintiff and his expert advisers to inspect the computer equipment which the plaintiff had utilised in the course of his employment, the use of which had given rise to the issues which had led in turn to his suspension and the possibility of more serious disciplinary action being taken against him. I also gave some other minor indications, again without making any orders, as to how matters between the parties might progress. In the light of having given such indications, the matter was adjourned, no order having been made, until a date early in this term for mention.

4 When the matter came back before the court on that occasion counsel for the plaintiff indicated that the plaintiff was concerned that matters had not progressed in an appropriate manner and, indeed, in certain respects had worsened. In those circumstances it was my view, and I so directed, that if the plaintiff wished to invite the court to make either any of the orders that had previously been declined on 21st December, or indeed any other orders, it would be more appropriate that same should be moved on a formal motion specifying the relief sought, grounded upon whatever evidence the plaintiff might wish to put before the court. On the basis of that direction, the plaintiff has brought the motion now before the court in which he seeks a variety of reliefs, principally directed towards the removal of his suspension but also dealing with certain aspects of the investigation and inquiry into allegations or possible allegations of misconduct.

5 Firstly, I should state that it would not of course be appropriate at this stage to allow a simple re-arguing of issues which, even though determined at an interlocutory stage, have been determined by my decision of 21st December. In those circumstances it is obviously necessary for the plaintiff to establish that there has been a significant and sufficient change in circumstances to lead legitimately to a different view being taken in respect of any of the issues which were the subject of that decision. In saying that, it nonetheless is appropriate that in respect of certain aspects of the case I can take into account factors that were before the court in December in that an argument can legitimately be made in respect of the accumulation of factors. Applying that general rule, it is necessary therefore to consider the principal contentions which the plaintiff makes in relation to change of circumstances. In what way does he allege that things have changed since 21st December so that the court's order should now be different?

6 Three real points are raised, and I will set them out initially and then deal with them in turn. Firstly, the plaintiff complains that the inquiry, during which he stands suspended, has taken significantly longer than it should have. Secondly, he complains that there is no longer any real basis for his suspension in the light of the state of the inquiry to date. Thirdly, he makes certain complaints about an upcoming hearing or meeting, scheduled for the 4th February next.

7 Returning to the question of the allegation of delay, it seems clear from the judgment of Macken J in Martin v The Nationwide Building Society [1999] ELR 241 that the court does have a jurisdiction to grant interlocutory relief which has the effect of removing a suspension in circumstances where the court is satisfied that the delay in dealing with the complaint against the employee concerned is inordinate and unjust. The reasoning of Macken J is based on an implied term in the contract of employment, to the effect that the imposition of a suspension should not occur in circumstances which were unfair or improper, and that those circumstances include the period of time within which the necessary inquiries and, if appropriate, full disciplinary procedures should be completed. I fully agree with the general principle adopted by Macken J in that case, and I am therefore satisfied that as a matter of law it is open to a court to make an appropriate order, all else being equal, bringing to an end a suspension in circumstances where the court is satisfied that there is no reasonable justification for the delay in processing or otherwise dealing with the complaint which has given rise to the suspension in the first place. I should also say that here I am speaking of suspensions which are of the type which have been described as non-disciplinary, i.e. suspensions which are for a period pending the completion of investigations and disciplinary hearings. Obviously different criteria and different considerations apply in cases where a suspension has been imposed as a form of disciplinary action in itself.

8 Against that legal background it is necessary to consider whether on the facts of this case the plaintiff has established that the process has taken so much longer than that which might reasonably be expected so as to render it, in the words of Macken J, inordinate and unjust. In that context it is necessary to have regard to the nature of the inquiries involved.

9 Before embarking upon that it is important to note that there are, in one sense, two almost separate disciplinary processes involved between the parties at this stage. The one which has given rise to the plaintiff's suspension concerns allegations of improper dealing with the e-mail inboxes of senior members of staff and other related contentions concerning improper dealing with the company's IT systems. There is in parallel a series of contentions which are separately made by the defendant which came in the course of the hearing to be referred to as the "performance issues", in relation to which the defendant contends that the plaintiff's performance under a variety of headings, which it is not necessary to set out here, has fallen short of what could reasonably be required. Suffice it to say that it has at all times been made clear on behalf of the defendant in these proceedings that the so-called performance issues do not form part of the basis justifying the suspension of the plaintiff. In those circumstances, it seems to me that there is no reason why any issues arising out of the performance issues cannot fall to be determined in their own time and in their own way. They do not influence the current status of the plaintiff, and unless and until something were to occur in relation to the manner in which the defendant dealt with those issues, which would justify the unusual step of the court intervening in the course of a disciplinary process, then it does not seem to me that it is appropriate for the court to have any regard to the fact that those matters are running in parallel.

10 In saying that, I am mindful of the fact that the plaintiff contends, in essence, that the raising of the performance issues is really the subterfuge for what he contends is a plot on the part of the joint managing directors of the defendant company to remove him....