Paraic Bergin v Galway Clinic Doughiska Ltd

JurisdictionIreland
JudgeMr. Justice Clarke
Judgment Date02 November 2007
Neutral Citation[2007] IEHC 386
CourtHigh Court
Docket Number[2007 No. 5154 P]
Date02 November 2007
Bergin v Galway Clinic Doughiska Ltd
BETWEEN/
PARAIC BERGIN
PLAINTIFF

AND

GALWAY CLINIC DOUGHISKA LTD
DEFENDANT

[2007] IEHC 386

[5154P/2007]

THE HIGH COURT

EMPLOYMENT LAW

Interlocutory relief

Disciplinary process - Test to be applied - Balance of convenience - Whether plaintiff entitled to reinstatement on interlocutory basis - Whether plaintiff entitled to restrain defendant from appointing replacement - Fennelly v Assicurazioni Generali [1985] 3 ILT 73, Lingham v HSE [2005] IESC 89, (2006) 17 ELR 137, Naujoks v National Institute of Bioprocessing, Research and Training Ltd [2006] IEHC 358, (2007) 18 ELR 25, Mooney v An Post [1998] 4 IR 288, Charlton v HH The Aga Khan's Studs Société Civile [1999] ELR136, Doyle v Grangeford Precast Concrete [1988] ELR 260, Gee v Irish Times [2001] ELR 249, Evans v IRFBServices (Ireland) Ltd [2005] IEHC 107, [2005] 2 ILRM 358 and Robb v London Borough of Hammersmith and Fulham [1991] IRLR 72 considered - Order restraining replacement of plaintiff subject to terms granted (2007/5154P - Clarke J - 2/11/2007 [2007] IEHC 386

Bergin v Galway Clinic Doughishka Ltd

FENNELLY v ASSICURAZIONI GENERALI SPA 1985 3 ILT 73

MAHA LINGAM 2006 17 ELR 137

SHORTT v DATA PACKAGING LTD 1994 ELR 251

PHELAN v BIC (IRL) LTD 1997 ELR 208

CARROLL v BUS ATHA CLIATH (DUBLIN BUS) 2005 4 IR 184 2005 ELR 192 2004/6/1392

NAUJOKS v NATIONAL INSTITUTE OF BIOPROCESSING, RESEARCH & TRAINING 2007 18 ELR 25

UNFAIR DISMISSALS ACT 1977

BECKER v BOARD OF MANAGEMENT OF ST DOMINIC'S SECONDARY SCHOOL UNREP CLARKE 13.4.2006 2006/6/991 2006 IEHC 130

MOONEY v AN POST 1998 4 IR 288

CHARLTON v HH THE AGA KHANS STUDS SOCIETE CIVILE 1999 ELR 136

O'SULLIVAN v MERCY HOSPITAL CORK LTD UNREP CLARKE 3.6.2005 2005/49/10339 2005 IEHC 170

GEE v IRISH TIMES 2001 ELR 249

DOYLE v GRANGEFORD PRECAST CONCRETE 1998 ELR 260

ROBB v HAMMERSMITH & FULHAM LONDON BOROUGH COUNCIL 1991 IRLR 72 1991 1 ICR 514

EVANS v IRFB SERVICES (IRELAND) LTD UNREP CLARKE 11.4.1005 2005/24/4860 2005 IEHC 107

1

Mr. Justice Clarke delivered the 2nd day of November, 2007

1. Introduction
2

2 1.1 The plaintiff ("Mr Bergin") is currently the Chief Executive of the defendant ("Galway Clinic"). He has held that post since the middle of August of 2006. Previous to that, Mr Bergin had held a significant office with ESB International working in Pakistan. In order to take up employment with Galway Clinic, he resigned that post and relocated to Ireland. Issues have arisen between Mr Bergin and Galway Clinic which have led, at a minimum, to a significant disciplinary process being invoked by the Clinic. From Mr Bergin's point of view it is suggested that, in substance, a decision to dismiss him has already been taken.

3

3 1.2 It will be necessary to address the circumstances which have led to that state of affairs in due course. However it is important to note at this stage that Mr Bergin commenced proceedings on the 10 th day of July, 2007 claiming principally declaratory and injunctive relief and, on the same day, obtained an interim injunction restraining Galway Clinic from dismissing him from his position or publishing or making any statements inconsistent with Mr Bergin continuing to be Chief Executive of Galway Clinic.

4

4 1.3 That interim injunction was continued from time to time while the parties exchanged very substantial affidavit evidence. The interlocutory hearing ultimately took place on a number of days in early October. This judgment is directed towards the issues which arose on that interlocutory hearing.

2. Background Facts
5

2 2.1 Galway Clinic employs in the region of 360 people, having commenced operations in June 2004. Galway Clinic has a medical advisory committee ("MAC") which is involved in the decision making process in relation to medical matters within the clinic. The precise status of some of the decisions or recommendations of that committee are, potentially, a matter of at least some disagreement between the parties. In any event the issues which give rise to these proceedings can be traced back to the granting of operating and admitting privileges ("privileges") to a consultant surgeon ("EM"). As EM is not a party to these proceedings, I do not consider it necessary to name him. The MAC had recommended against the granting of privileges to EM. Mr Bergin states that he was not satisfied that there was any basis for the refusal of the grant of privileges in that, in his view, EM met the criteria which had been determined for such a grant of privileges. Mr Bergin also states that, in his view, it is clear that the final decision in relation to such matters was to be his (that is to say that of the Chief Executive Officer). This is disputed by Galway Clinic. In those circumstances Mr. Bergin did not follow the advice of the MAC and proceeded to grant the relevant privileges to EM.

6

3 2.2 There is no doubt but that this matter led to some significant friction between Mr Bergin and at least some members of the Board of Galway Clinic. It would seem that, on the advice of Galway Clinic's solicitor, a letter was written by Mr Bergin to EM, in which Mr Bergin suggests that his conferring of privileges on EM was in excess of his powers as CEO. However Mr Bergin maintains that this letter was written, not because he truly believed that he had acted in excess of his powers but because Galway Clinic's solicitor had advised that a letter in that form was the best way of attempting to bring about a situation where an agreement could be reached with EM which would lead to a termination of the privileges concerned. The precise circumstances which led to the writing of that letter, and the inferences which it may be proper to draw from same, are not matters which can be resolved on the basis of the affidavit evidence tendered and will have to await a full trial.

7

4 2.3 Thereafter, it is common case that certain discussions took place between Mr Bergin and the Chairman of the Board, prior to Mr Bergin going on three weeks holiday in France towards the end of June, On Mr Bergin's case, while the matter of the conferring of privileges remained under discussion, it was not, prior to his return from those holidays, apparent to him that any disciplinary issues had arisen.

8

5 2.4 On Mr Bergin's return from holidays he attended a meeting of the Board, which was also attended by Galway Clinic's solicitor. There is some dispute between the parties as to precisely what occurred at that Board meeting. It is common case that issues concerning the grant of privileges to EM were stated to be a significant issue from the Board's point of view. It is also common case that Mr Bergin was not, in express terms, informed that he was dismissed. However on his case it is submitted that the substance of the meeting reasonably conveyed to him that the Board had determined that he was guilty of serious misconduct and was concerned only with the question of whether there might be any mitigation which might lead the Board not to invoke the summary dismissal entitlements set out in his contract. Again a resolution of the factual disputes as to what happened at the Board meeting and a determination of the appropriate inferences to be drawn as to the actions and positions of the parties, will have to await a full hearing.

9

6 2.5 It is also important to note the terms of Mr Bergin's contract. The relevant written contract of employment runs to some four pages. Most of the terms are of no relevance to the dispute which has now arisen. Clause 15 deals with "termination of employment" and is in the following terms:

10

Termination of Employment:

11

Either party may terminate this agreement on three months written notice to the other.

12

In the event of service of a notice of termination by either party, the Employer shall be entitled to require that you not attend your place of work during such period of notice (or any part thereof) or otherwise terminate your employment with immediate effect and pay your salary in lieu of notice.

13

The Galway Clinic will be entitled to immediately terminate your employment without notice if you:

14

a) are in gross default or wilful neglect in the discharge of your duties under this contract or commit any serious breach or non observance (or after warning, repeated breaches or non observance) of any terms of this agreement or any of the policies or regulations made by Galway clinic from time to time, or

15

b) Commit any grave misconduct or grave default or any conduct tending to bring yourself or Galway Clinic into disrepute or affecting the business of Galway Clinic, or

16

c) Be incapacitated through accident, ill health or otherwise and are prevented from attending to your duties under the terms of this agreement for any consecutive period of 120 days or more or for periods aggregating 35 weeks or more in any period of 52 weeks consecutive weeks, or

17

d) Are adjudged bankrupt or make any arrangement or composition with your creditors, or

18

e) Are convicted of any criminal offence other than an offence which in the reasonable opinion of the Board of Galway Clinic does not affect your position as Chief Executive of Galway Clinic.

19

7 2.6 It is also important to note that Clause 12, under the heading of Disciplinary Policy simply states: -

"See Section 12 of the employee manual"

20

8 2.7 Section 12 of the employee manual sets out a detailed disciplinary policy which, in the context of this case, includes under the heading "Serious Misconduct" the following:

"There are certain types of conduct which constitute grounds for immediate dismissal without recourse to the disciplinary procedure. They include"

21

· Gross Insubordination

22

· False declaration of employment/qualification history

23

· Theft, unauthorised use of property belonging to the...

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