Shortt v Royal Liver Assurance Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Laffoy
• Judgment Date: 21 October 2008
• Neutral Citation: [2008] IEHC 332
• Docket Number: [No.3571P/1998]
• Court: High Court
• Date: 21 October 2008

[2008] IEHC 332

THE HIGH COURT

[No.3571P/1998]

Shortt v Royal Liver Assurance Ltd

BETWEEN

FRANK SHORTT

PLAINTIFF

AND

ROYAL LIVER ASSURANCE LIMITED

DEFENDANT

AHERN v MIN FOR INDUSTRY & ORS (NO 2) 1991 1 IR 462 1991 ILT 127

O'DOHERTY v AG & O'DONNELL 1941 IR 569

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

INDUSTRIAL RELATIONS ACT 1990 CODE OF PRACTICE ON DISCIPLINARY PROCEDURES (DECLARATION) ORDER 1996 SI 117/1996 SCHED ART 11

MOONEY v AN POST 1998 4 IR 288 1997/10/3360

GALLAGHER v REVENUE CMRS (NO 2) 1995 1 IR 55 1995 1 ILRM 241 1994/3/742

MOONEY v AN POST 1994 ELR 103

MAHER v JABIL GLOBAL SERVICES LTD 2005 16 ELR 233

Abstract:

Employment law -Disciplinary process - Natural and constitutional justice - Whether disciplinary process conducted in breach of plaintiff’s right to natural and constitutional justice - Application for declaration that imposition of sanction by employer unlawful - Discretion to grant relief - Whether relief necessary for protection of plaintiff’s rights - Change of employee’s duties - Whether amounting to sanction - Personal injuries - Stress

Facts: the plaintiff was employed by the defendant as a district sales manager. His personal assistant initiated a complaint of harassment and bullying against him, which culminated in a written warning being placed on his file for a year following a disciplinary process by the defendant. The plaintiff was subsequently transferred by the defendant to a different area. The plaintiff brought plenary proceedings seeking a declaration that the defendant’s investigation into that complaint was unfair and tainted by procedural irregularities which breached his contractual and constitutional rights, in that the defendant had failed to allow him cross-examine the complainant or provide some alternative means of testing her evidence. He further contended that his transfer by the defendant amounted to an additional, unlawful sanction. He also sought damages for personal injuries caused by stress arising out of the disciplinary process.

Held by Laffoy J in dismissing the plaintiff’s claim that the type of disciplinary process implemented by the defendant did not lend itself to the application of the principles of natural justice in the manner in which they would be applied if the plaintiff had been entitled to a hearing by an impartial tribunal and the defendant had not acted in such a way as to imperil a fair hearing or a fair result. Even if the implementation of the disciplinary process had been irregular and contravened the plaintiff’s contractual or constitutional rights, the order sought was not necessary for the protection of those rights as the court retained a discretion to refuse relief if the declaration sought would not confer any benefit on the plaintiff. The sanction imposed on him did not militate against the plaintiff financially or in career terms.

That the plaintiff had not established that his transfer by the defendant was in breach of his implied contractual right to fair procedures and there was no evidential basis on which the loss and damage claimed by him flowed from the transfer were quantifiable.

That, on the basis of the evidence adduced by the plaintiff, the management of the defendant did not know and there was no reason why they ought to have known that the plaintiff was vulnerable or likely to suffer psychiatric injury because of the implementation of the disciplinary process.

Reporter: P.C.

Judgment of

Ms. Justice Laffoy

1 delivered on the 21st day of October, 2008.

2 When these proceedings were initiated by a plenary summons which issued on 23^rd March, 1998, the plaintiff had been an employee of the defendant for over twenty years, since 1977. From April, 1991 onwards he had occupied the position of District Sales Manager, Dublin South West. The chain of events which led to the initiation of these proceedings commenced in July, 1997 and encompassed two pivotal events which are at the core of these proceedings. The first was the implementation and outcome of a disciplinary process under which the plaintiff was subjected to a sanction. The second was the decision of the defendant to transfer the plaintiff from the position of Sales Manager for the Dublin South West district to Sales Manager for the Dublin West district in the course of the restructuring of the defendant's operations in Ireland.

3 The disciplinary process arose out of a complaint made by another employee of the defendant, who had acted as the plaintiff's personal assistant for about six years (whom I will refer to as "the personal assistant"), against the plaintiff, which was transmitted to the defendant through the personal assistant's trade union, SIPTU. The complaint related to the manner in which the plaintiff had treated the personal assistant on 10^th July, 1997. The issue between them arose because, while the plaintiff was on sick leave on the previous day, the personal assistant had taken a day's leave to look after her young son who was sick. On his return to the office, the plaintiff, having erroneously concluded that the personal assistant had taken a day's leave in his absence without cause or notice, remonstrated with the personal assistant. A comparison of the almost contemporary statements made by the personal assistant and the plaintiff in relation to what transpired discloses a large element of consistency as to the substance of the interaction between them. Where the accounts differ is that the personal assistant complained that the plaintiff created a tense and hostile atmosphere by slamming the door, speaking to her in an abrupt manner and raising his voice and butting in in an enraged tone. In a subsequent statement the personal assistant complained that during the following week the plaintiff had continued his hostile attitude towards her and that she found the atmosphere in the office tense and the working conditions intolerable. She stated that she felt very intimidated by the plaintiff's aggressive behaviour. The personal assistant's account of the plaintiff's demeanour towards her on 10 July, 1997 was corroborated in the statement of a female colleague who witnessed part of their interaction.

4 At that time the defendant had a disciplinary procedure in place in relation to Area/District Managers, which, in general, provided that at every stage of the procedure the employee would be informed in writing of the disciplinary charge being brought, would have an opportunity of stating his or her case in person before any penalty was imposed, would be given at least five days working notice in advance of a disciplinary interview, and would have the right to consult and be accompanied by a trade union representative throughout the process. The procedure involved an investigation of the facts by management, which involved taking statements from relevant witnesses. It also provided for suspension with pay pending the investigations. A progression of sanctions was envisaged: a formal verbal warning; a written warning; a final written warning; and dismissal. There was also provision for an internal appeal. The sanction of a final written warning could be applied in the case of a first offence which was considered to be serious but fell short of gross misconduct. A final written warning would be disregarded after twelve months satisfactory conduct.

5 The statements of the personal assistant in relation to her complaint against the plaintiff were sent by SIPTU to Mr. Derek Brennan, the Divisional Manager of the defendant in Ireland, on 1^st August, 1997 on the basis that the content would form the basis of a formal written complaint and would be processed accordingly. Mr. Brennan was the plaintiff's line manager. He set an investigation in train. The plaintiff was suspended with pay pending the investigation. As a result of his investigation Mr. Brennan decided to hold a disciplinary hearing on 3^rd September, 1997, at which the plaintiff would be given the opportunity to respond to "the allegations of hostile, intimidatory and aggressive behaviour towards a subordinate" as contained in the personal assistant's statements. The plaintiff was informed that he could be accompanied by a trade union representative or a colleague and that copies of all the complaints and statements had already been furnished to him, which was the case. The plaintiff had already involved his own trade union, then known as MSF. The letter advising him of the disciplinary hearing stated that the request of his trade union representative to have staff members available for questioning could not be agreed to due to the nature of the complaint. The request was not subsequently pursued by the plaintiff or his representative during the disciplinary process.

6 The disciplinary hearing took place on 3^rd September, 1997. Mr. Brennan was the decision maker. The defendant's personnel advisor for Ireland was also present. The plaintiff attended with his trade union representative, Brian Gallagher. At the outset, in response to Mr. Brennan's query as to whether there were any procedural questions, Mr. Gallagher lodged a formal objection that disciplinary action was inappropriate as there had been no attempt to resolve the issue informally. Mr. Brennan then set out his interpretation of the background to the hearing. The plaintiff and Mr. Gallagher were given an opportunity to respond, during which Mr. Gallagher reiterated his complaint as to the lack of an attempt to resolve the matter informally. Mr. Brennan stated that he had spoken with the personal assistant and that she had requested that the matter be made formal and dealt with by her trade union, thus effectively rejecting the objection.

7 Having at the end of the hearing reserved his decision, Mr. Brennan conveyed it by letter date 8^th...