Rm v Shc

• Jurisdiction: Ireland
• Judge: Mr. Justice Rory Mulcahy
• Judgment Date: 19 July 2023
• Neutral Citation: [2023] IEHC 424
• Court: High Court
• Docket Number: Record No.: 2023/2003 P

Between:

RM

Plaintiff

and

SHC

Defendant

[2023] IEHC 424

Record No.: 2023/2003 P

THE HIGH COURT

JUDGMENT of Mr. Justice Rory Mulcahy delivered on the 19 ^th day of July 2023

Introduction

1 This is the Plaintiff's application for an injunction to restrain the Defendant from terminating her employment on the grounds of gross misconduct. The Plaintiff claims that the process by which the Defendant has purported to dismiss her is not in accordance with fair procedures.

2 The Defendant denies any breach of fair procedures and contends that, in any event, damages would be an adequate remedy for any loss which the Plaintiff may have sustained. The Defendant says there has been a mutual loss of trust and confidence, irretrievably tainting the employment relationship, such that the grant of an interlocutory injunction would be inappropriate.

3 For the reasons set out herein, I have concluded that the Plaintiff has established a strong case likely to succeed that there has been a breach of fair procedures. In addition, although it may well be that, if successful at trial, damages will be the Plaintiff's remedy, it would, in my view, be premature to conclude that damages will be the only remedy available. In the circumstances, the least risk of injustice warrants the grant of limited injunctive relief pending the trial of this action. Accordingly, I propose to grant an interlocutory injunction on the terms set out below.

4 I note that on 15 May 2023 the High Court (Roberts J) delivered an ex tempore judgment in which she made an Order pursuant to section 27 of the Civil Law (Miscellaneous Provisions) Act 2008 anonymising the identity of the Defendant in any publication or broadcast relating to the proceedings ( [2023] IEHC 252). As stated by Roberts J, a necessary consequence of that order, “ is that the Plaintiff's identity should also be anonymised as well as the respective addresses, occupations and professions of the parties.” In the circumstances, in the background section of this judgment in which I set out a brief summary of the main facts relevant to this application, I have sought to avoid identifying factual matters which might tend to undermine the anonymisation ordered. I have, in particular, sought to omit any details which might tend to identify the occupations of the parties and their place of work.

Background

5 The Plaintiff works in a Firm (“ the Firm”) of which the Defendant is the Principal. Apart from an eighteen-month period approximately ten years ago she has worked for the Defendant for over twenty years, in positions of increasing responsibility. She does not, however, hold a management position within the Firm. Until the events giving rise to the disciplinary proceedings the subject of these proceedings, the Plaintiff and Defendant seem to have had a positive working relationship.

6 On 17 May 2022, the Plaintiff returned from a period of sick leave and annual leave. She took a call that day from the Defendant, who was working from home, concerning an issue regarding whether an important action had been taken. It would have serious negative consequences for the Firm had this not happened and the Defendant was understandably concerned. This issue had arisen while the Plaintiff was out of the office. There is some dispute about what precisely was said on that call, but the Plaintiff describes the experience as being the most difficult of her professional life, extremely embarrassing – since others could hear the call — and degrading. The Defendant accepts that she lost her temper on the call and says that she apologised for doing so but believes that the Plaintiff lost her temper too and should also have apologised.

7 Following that call, the Plaintiff left the office and later that day was certified unfit to return to work.

8 Over the next number of weeks, the Plaintiff contacted the office on a number of occasions seeking to meet with the Defendant. The financial controller of the Firm offered to meet with her, an offer she turned down, but the financial controller also made clear that it was considered “entirely inappropriate” for the Defendant to meet the Plaintiff while the Plaintiff was certified as unfit to work. It is not clear why it was considered appropriate for the financial controller to meet with the Plaintiff, but not the Defendant. The Plaintiff was requested to engage with a medical/occupational health assessor with whom the Firm had arranged an appointment.

9 During this period of absence from work, the Plaintiff began composing a letter, addressed to the Plaintiff, in which she set out, in very direct terms, a large number of issues which had, in the Plaintiff's view, caused difficulties within the office over the years. The Plaintiff hand delivered the 28-page letter to the Defendant at her home on the evening of 15 June 2022. It is the manner of the delivery of that letter and the contents thereof which gave rise to the allegation of gross misconduct against the Plaintiff.

10 The Firm wrote to the Plaintiff on 17 June 2022 raising serious concerns about the delivery of the letter at the Defendant's home, its contents and, in particular, potential breaches of confidentiality contained therein. In a further letter dated 21 June 2023, it was stated that it had been decided that most appropriate course of action was that the Plaintiff would remain off work pending the occupational health/medical assessment taking place. The letter stated that upon receipt of the medical report, they would have an opportunity to reflect in light of any recommendations made on how best to proceed including in respect of the Plaintiff's fitness to work. In these letters and a subsequent letter of 27 June 2023, the Firm repeatedly noted the Plaintiff's obligation in relation to breach of confidentiality. In a letter of 30 June 2023, the Firm expressly sought undertakings that there would be no disclosure to third parties of the contents of the letter, which undertakings were forthcoming. The Defendant claims that the undertaking should have been given in response to the earlier letters and claims that the delay only served to heighten the Defendant's concerns about potential breaches of confidentiality.

11 The Plaintiff was medically assessed by the Defendant's nominee in July 2022. She was diagnosed as having an adjustment reaction linked to the circumstances in which she found herself. The medical report stated her symptoms appeared proportionate to her interpersonal difficulties at work. The report suggested a mediated approach to a resolution.

12 Stephen Drew of Drew Consulting, which provides outsourced human resources services, was appointed by the Defendant. The Plaintiff thereafter was given an opportunity to raise her workplace-related concerns with Mr Drew. She met with him in September 2023.

13 The Plaintiff's sick pay was stopped on 22 August 2022. She was certified fit to return to work in early November 2022 by both her own doctor and the Defendant's doctor. Shortly thereafter the Plaintiff was advised, by letter dated 30 November 2022, that she was being suspended with pay pending a disciplinary investigation relating to her conduct on the evening of 15 June 2022. This seems to have been the first occasion on which the events of 15 June 2023 were raised as a disciplinary issue. The letter stated that the focus of the investigation would be the Plaintiff's unannounced attendance at the Defendant's home and her “inappropriate, intimidating behaviour” that night, and the contents of the ‘Personal Statement’ she handed to the Defendant:

“[I]ncluding, in particular:

• • the threat by you to breach the sacrosanct principle of …. confidentiality pertaining to clients, past and present of the practice which was only withdrawn after several written warnings (letters dated the 17th, 21st, and 30th June 2022 also the subject of your recent SAR)

• • the very serious, inappropriate allegations made against the Principal of the practice both professionally but predominantly in her personal capacity and concerning members of her family, current and former colleagues […..].

• • the threat to the [Principal] implicit at page five of the said personal statement to “sue you, go to the media, create hassle, badmouth you”.

• • the threat at page 27 of the said personal statement to relay the various serious, inappropriate and damaging allegations contained therein to a third party, namely the occupational health specialist whom you're requested to attend in the context of your certified sick leave wherein you stated “in my view this letter contains some of your deepest, darkest issues (maybe even demons), and I can't imagine you want them aired…”

14 The letter put the Plaintiff on notice that her actions may constitute gross misconduct “within the disciplinary rules and procedures” of the Firm. The Plaintiff was told that the disciplinary process was outlined in the Employee Handbook which the Plaintiff would be provided with the following day. The letter also enclosed a contract of employment. It is accepted that the Plaintiff had never previously been provided with the Employee Handbook. There were no written disciplinary or grievance procedures in place within the Firm. In circumstances where the Plaintiff had never previously been provided with this Handbook and it did not form part of her contract of employment – with which she had also never been furnished – the parties agreed an alternative procedure.

15 The agreed procedure, which was reduced to writing as Terms of Reference dated 8 February 2023, provided for the appointment of an independent investigator with a fact-finding function only who would prepare a report, the final version of which would be issued to the Plaintiff and to the financial controller. The financial controller would “ decide based on the findings of the report whether any further action...