Wallace v Irish Aviation Authority

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 18 May 2012
• Neutral Citation: [2012] IEHC 178
• Court: High Court
• Docket Number: [2012 No. 4025P]
• Date: 18 May 2012

[2012] IEHC 178

THE HIGH COURT

Hogan J.

[2012 No. 4025P]

BETWEEN

REGINA WALLACE

PLAINTIFF

AND

IRISH AVIATION AUTHORITY

RESPONDENT

1 JUDGMENT of Mr. Justice Hogan delivered on 18th May, 2012

2 1. The plaintiff, Ms. Regina Wallace, has been employed as an Aviation Officer with the Irish Aviation Authority ("the Authority") since April 2003. The Authority is a commercial state sponsored company which provides aviation services within Irish airspace. It also regulates safety standards within the Irish civil aviation industry. Ms. Wallace is employed at the Authority's training centre at Ballycasey, Shannon, Co. Clare. She is required to perform certain clerical and administrative functions to support the training functions in the training centre. There are apparently five other employees who work with Ms. Wallace in four offices which are side by side on the same floor of the building. Some twenty four students are located in classrooms immediately adjacent to these offices.

3 2. The plaintiff's employment with the Authority has not been altogether without incident. She has found it necessary to make two complaints of bullying and harassment against two superior officers. One of those complaints was upheld and the other is presently under investigation. For its part, however, the Authority has been troubled by what Mr. Brendan Mulligan, Director of Human Resources, described in an affidavit as an "unprecedented level of absenteeism", so that in her nine years of employment the plaintiff was absent on sick leave for some 759 days. The plaintiff had previously received written warnings regarding her attendance record. It was, however, her (allegedly unexplained) absence from work on 16th February, 2012, which set in train the events giving rise to this application for an interlocutory injunction.

4 3. A disciplinary hearing was convened to investigate this complaint. It seems to be common case that one of the persons against whom a bullying allegation had been made was present at the hearing which took place on 2nd April, 2012, along with the Authority's Employee Relations Manager, Ms. Annemarie Ward. Perhaps not surprisingly the plaintiff's solicitor objected to the presence of this other person given the nature of the outstanding complaint, but this objection was overruled. The hearing proceeded and it culminated with Ms. Ward informing the plaintiff that she was being dismissed, but that she could appeal within a three week period from that date, which the plaintiff duly did.

5 4. The plaintiff has appealed on a variety of grounds, including imputations of bias and pre-judgment, along with the contention that only the Board of the Authority could effect such a dismissal. Since this appeal is outstanding, it is important that I refrain from expressing any views whatever in relation to the grounds of appeal. It is sufficient for present purposes to observe that the appeal is outstanding and that the parties are confident that the appeal can be disposed of within the next few weeks.

6 5. This brings us directly to the matter at issue. The Authority proposes to place the plaintiff on administrative leave with full pay pending the outcome of the appeal. Ms. Wallace objects to this, saying that what is being proposed is a breach of contract and she seeks an interlocutory injunction which would restrain the Authority from taking this step. For completeness, I should say that the plaintiff originally apprehended that the Authority would take steps to effect that dismissal and to this end obtained an interim injunction in these terms from Laffoy J., on 23rd April, 2012. Matters have, however, now progressed to the point whereby the only issue before the Court is whether the Authority can place the plaintiff on administrative leave in the manner described pending the outcome of the appeal.

7 Alleged lack of candour

8 6. Before examining this issue, however, it is necessary to deal with the question of the alleged lack of candour on the part of Ms. Wallace in her grounding affidavit. It is trite law to say that a party seeking ex parte relief must be candid and forthcoming in her grounding affidavit. In some cases, any relief granted will be discharged where the failure to disclose is fundamental. Thus, for example, in AO v. Minister for Justice, Equality and Law Reform [2012] IEHC 1 I set aside the grant of leave to apply for judicial review where the applicant had failed to disclose the fact that he had previously applied ex parte for similar relief before another judge of this Court and had been refused.

9 7. In the course of my judgment I applied the test of objective materiality as set out by Clarke J. in Bambrick v. Copley [2005] IEHC 43. While I agreed (as had Clarke J.) that the failure to make disclosure did not automatically compel the Court to set aside the relief already granted, I concluded that the non-disclosure in that case was fundamental:-

10 "…the non-disclosure here goes to the very heart of the order which the court made ex parte. The exercise of the set aside jurisdiction in a case such as the present one is not intended to be punitive although, of course, different considerations might well apply where a litigant acted mala fide. Nor is the jurisdiction to be exercised in a formalistic or mechanical fashion: it is rather essentially restitutionary in nature. In other words, by setting aside the original order the court is acting in the interests of two fundamental constitutional values, namely, the integrity of the administration of justice itself (as reflected in Article 34.1) and the importance of fair procedures (as reflected in Article 34.1 and Article 40.3.1).

11 By thus setting aside the original order, the court thereby seeks to restore the status quo ante insofar as it is feasible to do so. This does not mean that the court cannot grant the applicant further relief (cf. the comments of Glidewell L.J. in Bowmaker Ltd. v. Britannia Arrow Holdings Ltd. [1988] 3 All E.R. 178). It does mean, however, that in the event that the court were to grant an applicant further injunctive relief, it would do so now afresh in circumstances where it has been armed with all the relevant facts and where it is not now operating under a misunderstanding or misapprehension as to those facts."

12 8. If one applies these principles to the present case, the first question is whether there has been some material breach of the non-disclosure rule. For my part, I cannot discern that there was any non-disclosure of any materiality on the part of Ms. Wallace. It is true that - as one would expect - the Authority filed an affidavit with even more detail than that originally supplied by Ms. Wallace in her grounding affidavit. But I cannot see that there was any non-disclosure worth speaking of. Specifically, Ms. Wallace exhibited the letter of 27th April, 2011, where the Authority's Head of Training had highlighted "three primary areas where your performance and behaviour continues to be unsatisfactory", including excessive absence from work due to illness, punctuality and gross insubordination. No one reading that correspondence could be any illusions as to the case which the Authority might wish to make had it been represented before the Court at that juncture.

13 9. In these circumstances, I cannot see that the argument based on lack of candour has any real merit. Even if there was such non-disclosure in the past - which I fail to discern - it would relate only to the relief granted by Laffoy J. on the ex parte basis. For the reasons I gave in O., the set aside jurisdiction is not intended to be punitive, save, perhaps, where the non-disclosure was mala fide. Such non-disclosure as there might have been would have no real bearing on the issue presently before the court, namely, whether the Authority is now entitled to place the plaintiff on administrative leave and, specifically, whether she is entitled to seek and obtain interlocutory relief restraining this proposed course of action. It is to this issue to which we can now turn.

14 The nature of the contractual relationship between the parties

15 10. The starting point for any inquiry of this nature is, of course, the contractual relationship between the parties. It is agreed that a collective agreement described as the "Continuity of Service Agreement" ("the Agreement") governs the employment relationship. The Agreement sets out the applicable disciplinary code governing that relationship. The Agreement states that an employee "has the right to appeal against any decision relating to himself or herself". It is not in dispute but that Ms. Wallace has so appealed the dismissal decision.

16 11. The Agreement then continues by providing as follows:-

17 "Appeals will be heard by an Authority Manager senior to the Manager who decided the outcome of the hearing of the appeal. Disciplinary action will not be taken pending the outcome of the appeal. At the appeal the employee may be accompanied by a staff representative. The outcome of the appeal will be notified to the employee in writing and if it is decided to take disciplinary action it will be implemented at this stage." (emphasis supplied)

18 12. The meaning of the italicised words is at the heart of the present application for an interlocutory injunction. The key question, therefore, is whether the placing of Ms. Wallace on administrative leave pending the outcome of the appeal amounts to disciplinary action. There is, of course, a well recognised distinction between a suspension which is imposed (or, at least, de facto operates) as a form of disciplinary sanction on the one hand (see, e.g., McNamara v. South Western Area Health Board [2001] E.L.R. 317) and that which operates as a form of holding measure on the other, pending a fuller investigation of the complaints in questions (see,...