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Disciplinary Process & Workplace Investigation – High Court refuses to interfere as part of application for injunctive relief

In the decision of Laffoy J in Cribbin v PLC Ingredients Limited & Anor delivered on 3rd October 2012,  the High Court refused to interfere in an investigation process as part of an application for injunctive relief. We have referred extensively to extracts from the judgement of Justice Laffoy below and a link is provided to the judgement available on the courts website.Background The case concerned an application by the plaintiff for an interlocutory injunction in relation to his “purported” suspension and a threatened disciplinary hearing. By letter dated July, 2011 from the Defendant , the plaintiff was “officially” notified that he was “suspended from all activities as an employee of [the Company] with immediate effect until further notice to allow for a full and impartial investigation into . . . serious matters” which had been outlined in earlier correspondence between the parties. The issues concerned “the apparent taking of confidential information belonging to the Company…..concerning the product makeup under which customs classification and tariff rulings are obtained in respect of the Company’s products”.The plaintiff was subsequently suspended with pay and sought interlocutory relief including orders:

  1. restraining the defendants from treating him as being under suspension,
  2. directing the defendants to permit the plaintiff to continue to discharge his functions as a director and employee of the Company and
  3. restraining the second defendant from conducting or participating in any disciplinary investigation or disciplinary hearing in respect of any complaint against the plaintiff other than as a complainant or witness.

In respect of the investigation process, it was proposed initially by the defendants that a senior counsel be appointed to conduct “the full and impartial investigation” imposing the suspension and the Court noted that it was “obviously prudent to propose the appointment of an independent person to investigate the complaints against the plaintiff………”. Various arguments then ensued between the parties concerning an alleged departure from the procedures set out in the defendant’s handbook. In the end a junior counsel was appointed to carry out the investigation and the plaintiff and his solicitors subsequently participated in the investigation.Separately it appeared that the defendants’ solicitors were putting pressure on the Investigator to complete the investigation process and he was ultimately informed the his appointment as independent investigator was terminated.The plaintiff’s solicitors were informed of this and it was proposed that a new investigator be appointed and that, in addition to investigating the three allegations that further matters required to be investigated. The plaintiff’s solicitors subsequently contended that the termination of the investigation would give rise to an “inequitable delay and duplication of effort” and the defendants were called upon to reinstate the Investigator so that the investigation could be concluded.Legal SubmissionsIn essence the Court considered whether it should intervene in relation to a disciplinary process which was being conducted in the context of an employer/employee contractual relationship outside the Court.In the submissions made to the court, Justice Laffoy referred to a number of decisions including the decision of the High Court (Budd J.) in Cassidy v. Shannon Castle Banquets [2000] ELR 248 whereby a declaration was granted that a purported dismissal, following an investigation was in breach of natural and constitutional justice and that it was without efficacy and invalid. The Court noted that the declaration granted did not “coerce a reinstatement” and that the defendant employer was entitled to proceed to conduct a further inquiry if it wished and to afford the plaintiff employee an opportunity to vindicate his name.The court also referred to a  further decision of the High Court in Minnock v. Irish Casing Company Ltd. [2007] 18 ELR 229 whereby Justice Clarke granted an interlocutory injunction restraining the continuance of an investigation being conducted due to arguments that the process in place not being a “pure investigation” and was in essence being conducted in a flawed manner. Clarke J noted inter alia:“I do not agree with the submission made on behalf of the plaintiff and repeated in much of the pre-litigation correspondence to the effect that there is an obligation on the defendants to agree with a person in the position such as the plaintiff as to what the procedure is and to the extent that the replying correspondence resisted that suggestion, I think the defendants are correct. The plaintiff is not entitled to be able to prevent an inquiry going ahead without his agreement on the procedures. That is not to say that the defendants do not have an obligation to set out the process that they intend to embark on and, in particular, when asked to do so to set out that in advance. It was only after the proceedings had commenced that the defendants set out in clear terms what the process was and stated that what was intended was that [the second defendant] would complete his inquiry and if it warranted formal disciplinary process, a separate de novo disciplinary process would take place.”Justice Laffoy also referred to her previous decision in McLoughlin v. Setanta Insurance Services Ltd. [2012] ELR 57, in which the decision in Minnock v. Irish Casing Company Ltd. was followed and an interlocutory injunction was granted restraining the continuance of an investigation being carried out in relation to the plaintiff employee on behalf of the defendant employer.ConclusionJustice Laffoy in this case noted that she had encountered considerable difficulty in determining how to apply the principles set out in Campus Oil v. Minister for Industry (No. 2) [1983] I.R. 88 in reference to how the Court determines whether to grant or refuse an application for interlocutory injunctive relief and referred to the judgment of O’Higgins C.J. (at p. 105) where it was stated:“Interlocutory relief is granted to an applicant where what he complains of is continuing and is causing him harm or injury which may be irreparable in the sense that it may not be possible to compensate him fairly or properly by an award of damages. Such relief is given because a period must necessarily elapse before the action can come for trial and for the purpose of keeping matters in status quo until the hearing.”The court noted that the plenary action would be primarily concerned with whether or not the suspension of the plaintiff was proper and the appointment of the Investigator was a diversion on the route to the determination of that primary issue by the Court.In respect of the process undertaken, Justice Laffoy noted that the absence of evidence of the content of a clause in the defendant’s handbook was not fatal, nor was the absence of documentary confirmation by the defendants and the plaintiff as to their respective acceptance of the role and function of the Investigator fatal. She further noted that while the plaintiff’s solicitors did not accept the process proposed by the defendant’s solicitors, nonetheless they participated in the process and the court noted that it must proceed “on the assumption that they implicitly agreed to that course”.The court also made a number of general observations:

  • The Court did not accept the proposition that, the plaintiff having participated in the process, it was open to the Company to unilaterally “pull the plug” on the process without good reason.
  • Although the court noted that the defendant had a genuine complaint that the investigation had not been concluded within the time it reasonably expected it to be concluded, as the plaintiff was seeking mandatory injunctive relief, he had to show at least that he has a strong case that was likely to succeed at the hearing of the action i.e. that the Company acted wrongfully in terminating the appointment of the Investigator. The Court concluded that it was not possible to conclude that the plaintiff has crossed that threshold.
  • The court noted that even accepting that the plaintiff’s position was correct, it questioned as to how making an order in the terms sought by the plaintiff would maintain the status quo pending the trial of the action. It noted:

“In seeking an order directing the reinstatement of the Investigator to complete the investigation, the plaintiff is seeking an outcome the objective of which is to bring finality to the issues as to whether the allegations of misconduct against him by the second defendant are established. I cannot see how the Court could properly make an order which would have that effect in the circumstances of this case on an interlocutory application. I consider that the Court would be fundamentally departing from its equitable jurisdiction to grant interlocutory injunctive relief if it were to make such an order”The court further noted that even if the Investigator were to find that there was no misconduct on the part of the plaintiff, the defendant still wished to pursue further allegations of misconduct against the plaintiff. If ultimately a finding of misconduct was made against the plaintiff and a sanction recommended, the defendant would not be bound by his recommendation.The court concluded that the type of relief which the plaintiff was seeking on his application, in the overall context of the proceedings, was not of the type which would be appropriate to grant on an interlocutory application and the application was dismissed.

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