Nasheuer v National University of Ireland Galway

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 21 March 2018
• Neutral Citation: [2018] IECA 79
• Docket Number: Neutral Citation Number: [2018] IECA 79
• Court: Court of Appeal (Ireland)
• Date: 21 March 2018

[2018] IECA 79

THE COURT OF APPEAL

Irvine J.

Irvine J.

Hogan J.

Whelan J.

Neutral Citation Number: [2018] IECA 79

Record Number 478/2017

BETWEEN/

HEINZ-PETER NASHEUER

RESPONDENT / PLAINTIFF

- AND -

NATIONAL UNIVERSITY OF IRELAND GALWAY

APPELLANT / DEFENDANT

Injunction – Investigation – Objective bias – Respondent seeking an injunction prohibiting the appellant from continuing with an investigation into complaints made against him – Whether respondent had established a serious issue to be tried concerning objective bias

Facts: The respondent, Professor Nasheuer, commenced proceedings against the appellant, National University of Ireland Galway (NUIG), on the 28th July, 2017. Principally, he was concerned to obtain an injunction prohibiting NUIG from continuing with an investigation into complaints of bullying and harassment made against him. Following an oral hearing which took place on the 13th September 2017, the High Court (Baker J) delivered judgment on the 22nd September 2017 granting the relief sought. NUIG appealed to the Court of Appeal against that judgment and subsequent order of the 6th October 2017. NUIG submitted that in the High Court it was the prior professional engagement between the investigator, Ms Hughes, and the complainant that formed the basis for Professor Nasheuer's complaint of objective bias. NUIG argued that there was no evidence from which the trial judge could reasonably have concluded that the length of the list of issues in the terms of reference gave rise to an inference that had been extensive consultation between the complainant and Ms Hughes thus giving rise to a reasonable apprehension of bias. NUIG submitted that all of the evidence was to the contrary.

Held by Irvine J that the trial judge erred in law and in fact in concluding that Professor Nasheuer had established a serious issue to be tried concerning objective bias. Irvine J held that the order made by the High Court judge staying the investigative process must be discharged.

Irvine J held that she would allow the appeal.

Appeal allowed.

JUDGMENT of Ms. Justice Irvine delivered on the 21st day of March 2018

1 This is an appeal brought by the defendant, National University of Ireland, Galway, ('NUIG'), against the judgment and order of the High Court, Baker J., of the 22nd September 2017 and the 6th October 2017 respectively. By her order she directed that an investigative process which was then in being concerning a complaint made against the plaintiff, Heinz-Peter Nasheuer ('Professor Nasheuer') be stayed under the trial of the proceedings.

Background

2 Professor Nasheuer is a Professor of Biochemistry at National University of Ireland Galway ('NUIG').

3 In April, 2014 a member of the staff of NUIG ('the complainant') made complaints of bullying and harassment against nine members of staff, including Prof. Nasheuer. As a result of a disagreement between the complainant and NUIG as to whether NUIG's Internal Grievances Procedures or its Staff Anti-Bullying Policy should apply that dispute was referred to an Adjudication Officer whose recommendation was then appealed to the Labour Court under the Industrial Relations Act 1969 ('the 1969 Act').

4 In a recommendation made on the 18th October, 2016 under s. 13(9) of the1969 Act, the Labour Court recommended that an independent external investigator should be appointed to carry out an investigation into the claimant's complaints. It was agreed between the parties, i.e., the complainant and NUIG, that the Labour Court would nominate such a person. The Labour Court concluded its recommendation in the following manner:-

'It is the decision of the Court that the investigator, having reviewed the extensive documents submitted to the Court and having consulted with the parties, should determine the terms of reference and the scope of the investigation. In doing so, the investigator must have regard to the University's policies, including its Grievance Procedure and its Staff Anti-Bully Policy. The investigator's decision in these matters will be final. In carrying out the investigation, the investigator must have regard to fair procedures and natural justice rights of both the Claimant and the alleged wrongdoers.'

5 The Labour Court proceeded with the consent of the parties, to appoint a Ms. Janet Hughes ('Ms Hughes') to investigate the complaint. A second investigator was appointed at a later date but this fact is not material to the issues under consideration on the appeal. Ms. Hughes had been the regional secretary of SIPTU between 1990 and 1997 with responsibility for the Sligo, Clare and Galway areas. At the time of events in issue on this appeal she was working as an Industrial and Employee Relations practitioner

6 By letter of the 10th April, 2017 Ms. Hughes wrote to Professor Nasheuer to advise him that the investigation would commence in May 2017. She stated that her letter followed separate communications and engagement with and between the complainant and NUIG. She enclosed:-

1. The terms of reference and scope of the investigation, which she stated were final. 2. The proposed methodology to be followed by the investigation team. She invited Professor Nasheuer to submit any comments or proposals he might have concerning the methodology to be adopted within fourteen days. 3. The Labour Court recommendation.4. Extracts from the Grievance document submitted by the complainant.5. The list of the nine respondents against whom the complainant had complained. 6. The documents that had been submitted by the complainant in support of her complaint against Professor Nasheuer.

7 Finally, in her aforementioned letter, Ms. Hughes advised Professor Nasheuer that it was her intention to interview each respondent in order to provide them with the opportunity to respond to the grievances in their case as the first step in the investigating process.

8 The terms of reference made clear that the investigator had identified thirty five individual complaints made against nine members of staff and advised that the investigation would examine each complaint of inappropriate behaviour and would make a finding as to whether the event occurred and, if so, whether the conduct represented inappropriate treatment or behaviour towards the complainant as defined under the bullying procedures of NUIG.

9 By letter dated the 11th May, 2017 addressed to Ms. Hughes, Messrs O'Mara Geraghty McCourt, Solicitors acting on behalf of Professor Nasheuer, complained that whilst the complaint had been made in April 2014 their client had not been informed about it until the 1st December 2016. The letter expressed concern that the complaints extended back to 2004 and Ms. Hughes's attention was drawn to the University's Dignity At Work policy from which it was to be inferred that complaints should be processed with expedition. Regardless of the recommendation of the Adjudication Officer and the appeal to the Labour Court, about which the writer of the letter, Mr O'Mara, was unaware, it was, he stated, unacceptable that it had taken the University three years to present Professor Nasheuer with a redacted version of the complaint against him. Mr O'Mara maintained that the contemplated process had been invalidated by delay.

10 Correspondence concerning this delay was also the subject matter of several letters to the Chief Operations Officer of NUIG wherein it was stated on Professor Nasheuer's behalf that insofar as NUIG relied upon that period of time during which the dispute between the complainant and NUIG was under consideration by an investigating officer and later the Labour Court, it had been inappropriate of NUIG to engage in that process rather than decide itself how to deal with the complaint. The correspondence further complained that the terms of reference did not provide Professor Nasheuer with 'the protections he required to address the issues of the University's handling of this matter to date' whilst noting the assurance that Professor Nasheuer would be afforded the full panoply of constitutional rights, fair procedures and natural justice by the investigation team.

11 By letter dated the 16th June, 2017 Professor Nasheuer's solicitor, Mr. O'Mara, once again wrote to Ms. Hughes stating, 'for the sake of clarity', that his client had not agreed with the terms of reference proposed. The letter did not specify why it was that the terms of reference were considered offensive. Mr. O'Mara nonetheless acknowledged the assurance received from NUIG that the investigation process would afford Professor Nasheuer his 'full panoply of constitutional rights to fair procedures and natural justice'. An assurance was sought that Professor Nasheuer would be entitled to legal representation and would be afforded the right to examine and cross examine witnesses. In addition, Ms. Hughes was asked to confirm that she would amend the terms of reference so that she would have jurisdiction to address how the process had been managed to date and to include a direction that the matters should not proceed by virtue of the 'delay in the process to date'.

12 In her letter of reply dated the 19th June, 2017, Ms. Hughes stated that the terms of reference had been decided and that Professor Nasheuer had been on notice to this effect since April 2017. She referred to the decision of the Labour Court pursuant to which she was to decide the terms of reference. She advised that she was not required to agree the terms of reference with the complainant, NUIG or any of the respondents. She also drew Mr O'Meara's attention to the fact that there was no such requirement under either the grievance or anti-bullying policy of NUIG or under statute. She confirmed that the terms of reference were not agreed with the complainant and stated clearly that it would be misleading for her to agree to a meeting premised upon any alteration in the terms of reference...