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Injunctions, Investigations, Cross Examination of Witnesses

and Breach of Trust

Injunctions, Investigations, Cross Examination of Witnesses and Breach of Trust


In the recent High Court decision of Hartnett -v- Advance Tyre Company Limited t/a Advance Pitstop [2013] IEHC 615 published on 19th December 2013 on the courts website, Justice Ryan in the High Court had to consider an application for an injunction to set aside the purported dismissal of the plaintiff from his position with the defendants and to reinstate him at least for the purpose of receiving his salary in accordance with the principle in Fennelly v. Assicurazioni Generali [1985] 3 ILTR 73.

Principles

Justice Ryan set out the broad principles which were to be applied in this case as follows:

1. The constitutional principle of fair procedures applies to an employment contract such as this; the old distinction between an officer and another category of employee is no longer relevant and is not relied on by Mr. Howard.

2. The contract in this case did not exclude the constitutional principles and indeed could not have done and must be taken to have imported them by necessary implication. Indeed, the contract commits the company to carry out a full investigation which in my view has implications of thoroughness and fairness.

3. It is possible although unusual for an injunction to be granted in an employment case so as to restrain a dismissal or the effects of dismissal: see Fennelly above; Maha Lingam v. HSE [2006] ELR 137.

4. A plaintiff seeking an injunction must show not that he or she has an arguable case but rather a strong case which means a case that is likely to succeed at a full hearing.

5. Even if the plaintiff succeeds in doing so, he or she must still satisfy the court that the balance of convenience lies in granting the injunction. In this regard the defendant relies on a number of cases in the High Court holding that balance of convenience lay in refusing an injunction in circumstances where the relationship of trust had broken down between the parties and it was unthinkable to try to revive the relationship of employer and employee between them.

The Plaintiff’s Grounds for Injunction

The plaintiff in this case claimed he was entitled to an injunction due to an investigation that was carried out by the defendant in breach of his constitutional right to fair procedures. In particular the plaintiff claimed that the principal witness (whose statement formed the basis of the complaint) was not available for cross-examination. The plaintiff also stated that the witness was only available by telephone to his solicitor.

Justice Ryan observed that this was a……”case about a process and whether the process was fair and reasonable and above all in conformity with the constitutional obligation to have fair procedures. There may be cases where it can be said that there was a breach of fair procedures but that the overall evidence is so clear that it would be absurd to set aside a dismissal on the ground alone of a breach of fair procedures.…..”.

Background and Decision

The High Court observed that the plaintiff was dismissed from his position as Head of Fleet Truck Sales with the defendant with effect from 4th October 2013. His dismissal followed an investigation and an appeal.

A previous meeting has taken place with the plaintiff on 15th August 2013 when the plaintiff met with the Human Resources Director. At this meeting the plaintiff was suspended. The plaintiff was furnished with the reasons for the suspension the following day. In essence the plaintiff was accused of misconduct by seeking secret commission payments from a company supplier for tyres going to a competitor and giving confidential information about tyre prices.

On 14th August 2013 the defendant had received an email from its parent company which outlined a meeting between the plaintiff and a company called Dikabo. The email concerned serious allegations concerning the plaintiff in respect of the matters outlined above.

Justice Ryan observed “…..My view is that the company was justified in taking the view that these were serious complaints and that they deserved investigation and it was a matter of judgment for them whether they should suspend the plaintiff while the investigation was carried on. No issue arises at this stage on this application about the taking of any of those steps and it does not seem to me that there is anything wrong with what they did.…”.

Justice Ryan further observed that the defendant was entitled to ask the plaintiff to respond to the statement it had received. The hearing took place on 1st October 2013 and the plaintiff was accompanied by his solicitor. The plaintiff made a number of complaints about the suspension and disciplinary process including that the complainant/author of the email was not present. The plaintiff agreed that he had met the complainant but denied seeking commission or any other wrong doing.

The plaintiff’s solicitor asked for the opportunity to cross-examine the complainant and other witnesses but the court observed that “…..As to the other witnesses, I do not think there is any case to be made……..”. The defendant provided that the complainant was available by telephone and had very good english. Justice Ryan observed……..”It could also be said that Mr. McGee should have taken up the opportunity and spoken to Mr. Wehrmeyer and he might have elicited some useful information that could have been presented to the investigating body, but that did not happen...”.

The plaintiff subsequently appealed the decision to dismiss him. It was noted in his appeal letter, the plaintiff’s solicitor provided that the plaintiff had been provided with a gratuity for attending the meeting with the complainant but when asked about this at the appeal hearing, the plaintiff and his solicitor would not give details about this other than it was a monetary gratuity. The defendant spoke to the complainant about this who denies doing anything for the plaintiff other than buying him a coffee. The plaintiff in his affidavit averred to the fact that the complainant had handed him an envelope at the original meeting with €1500 in it and by denying it, the complainant had undermined his credibility.

Justice Ryan observed

“…….It seems to me that the company fell into errors of procedure. They were entitled to suspend Mr. Hartnett and engage in an investigation. They may have become sidetracked and may have diverted their attention from the main issue by the procedural squabbling that took place, in which Mr. Hartnett’s solicitor may have some responsibility. The problem was that when the inquiry sat eventually on the 1st October, 2013, they were receiving for the first time Mr. Hartnett’s response to what was in the email with Mr. Wehrmeyer’s statement. It would have been conducive to clarity if this had happened at an earlier stage and it would have been apparent what was then in issue…...”

He further observed that the company “……would and should have arranged for the plaintiff to have an opportunity in some satisfactory mode of cross examining Mr. Wehrmeyer. His evidence was crucial – it was the only evidence as to the alleged misconduct……There was no way that Mr. Wehrmeyer could avoid some form of cross examination by Mr. Hartnett’s representative“.

The High Court observed that the company investigation was wrong and in breach of fair procedure as laid down by the Constitution and that it was “….manifestly unfair and unreasonable way for an inquiry to arrive at a conclusion.…”.

Justice Ryan concluded “…..it is clear that there was a breach of the plaintiff’s constitutional rights which must be implied into his contract if they were not already there. If follows from that, in my view, that he has a strong case to say that his constitutional rights were infringed. It also follows irresistibly as I think that he has a strong case that his dismissal was unlawful because it was arrived at following a flawed process in one crucial respect…..“.

The plaintiff therefore satisfied the first leg of the test for the injunction.

Balance of Convenience

The High Court referred to previous decisions where the relationship of trust had broken down dye to loss of trust and “It is a question of trust, authority, loss of confidence and I think plain common sense” as McMenamin J said in Joyce v HSE [2005] IEHC 174.

In respect of the balance of convenience the High Court looked at the importance of

(a) the revelation or allegation by the plaintiff in his appeal submission for the first time that he had received a gratuity from Mr Sven Wehrrneyer at their meeting on 5th August 2013 at Hayfield Manor hotel,
(b) his refusal to furnish details at the appeal,
(c) his claim in his affidavit that he later discovered that the envelope contained €1,500 and his failure to disclose that to his employer, as the code of conduct as well as general employee duty and common sense honesty required. In those circumstances, if the plaintiff wins on the first leg can he satisfy the second test?

The defendant argued that the plaintiff revealed evidence of serious misconduct which he admitted at the meeting with the complainant and failed to disclose the meeting and the fact that he received money at the meeting.If the plaintiffs account was true, the court observed that it “.. was a breach of his duty to the company and contrary to its code of conduct to accept the money and not to report it. Such a payment should also have alerted the plaintiff as a senior and trusted person that the meeting had an illicit purpose or at least the possibility thereof. If on the other hand the story was untrue it undermined both the credibility of the plaintiff and the complainant.

Justice Ryan commented that…….”In the circumstances, any residue of trust that might have existed between the parties cannot be considered to be intact….”.

The plaintiff therefore failed the test of balance of convenience and was refused an injunction.