Judgment Title: Wallace -v- Irish Aviation Authority
Neutral Citation:  IEHC 178
High Court Record Number: 2012 4025 P
Date of Delivery: 18/05/2012
Court: High Court
Composition of Court:
Judgment by: Hogan J.
Status of Judgment: Approved
Neutral Citation Number  IEHC 178
THE HIGH COURT
[2012 No. 4025P]
IRISH AVIATION AUTHORITY
JUDGMENT of Mr. Justice Hogan delivered on 18th May, 2012
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.
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.
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.
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.
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.
Alleged lack of candour
7. In the course of my judgment I applied the test of objective materiality as set out by Clarke J. in Bambrick v. Copley  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:-
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.  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.”
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.
The nature of the contractual relationship between the parties
11. The Agreement then continues by providing as follows:-
13. In my view, however, this distinction - which was so comprehensively and fully analysed by Kearns J. in Morgan - has much lesser relevance in the context of this present case in view of the actual terms of the governing contract of employment. After all, the Agreement vouchsafes the employee that no “disciplinary action” will be taken pending the outcome of the appeal. This is broader than a guarantee that no disciplinary sanction will be so imposed. The entire tenor of these words - re-inforced by the context in which they appear - is that an employee has a contractual entitlement to remain in position pending the outcome of any appeal against a disciplinary decision.
14. I agree that in the present type of case a suspension on full pay pending an appeal might not be regarded as a disciplinary sanction. One might likewise plausibly contend that the proposed suspension by means of administrative leave on full pay would come within the Morgan category of a holding suspension not attracting the prior application of the rules of fair procedures, especially if the appeal was heard quickly. It is, however, unnecessary to express any view on this issue, because the real question before the Court is a more subtle one: would the placing of Ms. Wallace on administrative leave on full pay pending an (anticipated) early appeal amount to the taking of “disciplinary action” against her within the meaning of the relevant clause contained in the Agreement?
Application of Campus Oil principles
Whether the Campus Oil principles should be refined?
17. Counsel for the Authority, Mr. Connaughton SC, has stressed that if I were to grant the relief sought it would amount to the grant of a mandatory interlocutory injunction which would, furthermore, amount to the specific enforcement of a contract of employment. All of this would be manifestly inconvenient for the Authority, since the plaintiff would be returning to work in a small office in circumstances of some tension within the workplace. Naturally, the court will but rarely grant exceptional relief of this nature: see, e.g., the comments of Clarke J. in Becker v. St. Dominic’s Secondary  1 IR 561, 570.
18. It is, however, also necessary to look at the matter from the standpoint of plaintiff. If an injunction were to be refused by reason of the special factors which have just been mentioned, it would mean that she was denied the benefit of a key contractual protection just at the time when such protection was vitally necessary to protect her interests. Can it be the case that under such circumstances the court must shut its eyes to the underlying merits of the claim and helplessly wash its hands of the claim for interlocutory relief simply because to do so would involve the grant of mandatory relief at an interlocutory stage or because this would involve the specific enforcement of a contract of employment?
19. Here three separate - but in some respects, inter-locking - observations are called for. First, it cannot be the case that the Campus Oil principles are to be applied in some purely formalistic fashion, divorced from the underlying context. These principles were designed to ensure that the courts could best grapple with an application for interlocutory relief against a background of disputed facts and complex legal questions, the resolution of which would be determined in a more leisurely fashion at a later oral hearing. Quite independently of binding authority, these are principles which have been refined over the decades to ensure that the courts are best placed to achieve the fairest result at the interlocutory stage. Specifically, as Clarke J. pointed out in Allied Irish Banks plc v. Diamond  IEHC 505, there are sound practical reasons for the fair question rule, for if the courts were generally required to go beyond this at interlocutory stage and strive for a detailed examination of the facts, they would be quickly overloaded with detailed arguments on the merits at this stage. This would in many cases convert the interlocutory hearing into the virtual equivalent of a form of a full hearing, thus defeating the very object of the exercise. But this does not mean that the Campus Oil principles must be unbendingly applied, without refinement, to a case such as the present one where the point at issue is a net one of construction, not calling for the elaborate argument, still less for oral evidence or the lengthy cross-examination of witnesses of the kind envisaged by Lord Diplock in American Cyanamid or by Griffin J. in Campus Oil.
20. Second, it must be recalled that the modern principles governing the grant of interlocutory injunctions were forged in the crucible of the modernisation of the Court of Chancery in 1850s and 1860s in the lead-up to the enactment of the Supreme Courts of Judicature Acts of 1873 for England and 1877 for Ireland. As Clarke J. noted in Diamond, the underlying object of these principles was to ensure that the court could, to the greatest degree possible, avoid doing an injustice in the absence of a full hearing. These principles were, however, designed to be flexible and to be capable of adaptation to the specific circumstances of the case at hand.
21. Third, the Supreme Court’s decision in Attorney General v. Lee  4 I.R. 298 demonstrates that the Campus Oil principles are not be applied rigidly or in some formalistic way in all possible types of cases, irrespective of the circumstances. Here the High Court granted the plaintiff an interlocutory injunction compelling the defendant to attend at an inquest in circumstances where she had contumeliously disregarded previous witnesses summonses. The Supreme Court allowed the appeal, ruling that the fact that the grant of an interlocutory injunction would finally dispose of the case was a hugely material consideration. In those circumstances, the Court considered that the plaintiff should establish his likelihood of ultimate success to a high standard and that it would have to be shown that the defendant’s presence was essential to the satisfactory conclusion of the inquest. As Keane C.J. noted ( 4 I.R. 298, 305):-
24. I had taken a similar view in Albion Properties Ltd. v. Moonblast Ltd.  IEHC 107. This was a case where a landlord sought an interlocutory injunction requiring a defaulting tenant immediately to yield up possession. Although the tenant argued that it would be inappropriate to grant such relief at interlocutory stage, I rejected that argument, saying:-
This Court enjoys a general jurisdiction to grant an injunction whenever it is just and convenient to do so: see s. 27(7) of the Supreme Court of Judicature (Ireland) Act 1877, as applied to this Court by s. 48 of the Courts (Supplemental Provisions) Act 1961. In this regard, I entirely agree with the submission of counsel for Albion Properties, Mr. Gibbons, that it would be pointless to require his client to issue separate plenary proceedings before an interlocutory injunction of this kind could either be sought or granted. A requirement of this kind would simply represent legal formalism at its worst. Any supposed jurisdictional bar which prevented the court from granting injunctive relief in an appropriate case to require a defaulting tenant to yield up possession of a commercial tenancy would be at odds with duty imposed on the courts by Article 40.3.2 of the Constitution to ensure that the property rights of the plaintiff landlord are appropriately vindicated in the case of injustice done. The courts are under a clear constitutional duty to ensure that the remedies available to protect and vindicate these rights are real and effective: see, e.g., the comments of Kingsmill Moore J. in The State (Vozza) v. O’Floinn  I.R. 227 at 250; those of Murray C.J. in Meadows v. Minister for Justice, Equality and Law Reform  IESC 3 and the authorities set out in my own judgment in S v. Minister for Justice, Equality and Law Reform  IEHC 31.”
26. It is true that the courts will not readily grant relief where the effect of this will be specifically to enforce a contract of employment. This is the case a fortiori where the relief sought is merely interlocutory in nature. But, as Fennelly J. tacitly recognised in Maha Lingham, the grant of such relief cannot be excluded in principle on some ex ante basis.
27. In any event, the standard objection to the grant of such relief in employment cases - namely, that it would involve the court in on-going supervision of the employment relationship – does not apply here. The only question in the present case is whether the plaintiff should be allowed to work pending the appeal, so the question of recurring supervision of employment performance and practice is not in question
28. If one then proceeds to apply these principles to the present case, it seems to me that the plaintiff has very strong grounds for contending that the requirement that she be placed on administrative leave is a form of “disciplinary action” within the meaning of the applicable contractual term, even if the fact that she would remain on full pay and that the suspension was likely to be of short duration might mean that it was a form of suspension which otherwise came within the Morgan principles. As I have endeavoured to point out, the entire tenor of the contractual clause is that the employee who appeals is entitled to remain in position pending the outcome of that appeal. Certainly, in the light of the language actually used (“Disciplinary action will not be taken pending the outcome of the appeal”), if the Authority nonetheless enjoyed a power to place an employee on administrative leave pending an appeal one would have expected that this would have been expressly stated.
29. Naturally, I accept that, from the Authority’s point of view, the enforcement of that contractual obligation is likely to prove awkward and inconvenient. Ms. Wallace’s duties may fairly be described, however, as being routine in nature. Very different considerations might well obtain if, for example, she occupied a senior management position where trust had irrevocably broken down between the parties.
30. But it would be unfair to Ms. Wallace if the Authority were to be allowed to resile from what would appear to be its contractual obligation simply because the unyielding application of specialist sub-rules relating to the grant of interlocutory injunctions in employment cases (such as a traditional unwillingness to refuse to countenance the grant of mandatory interlocutory injunctions specifically enforcing aspects of a contract of employment) rendered it effectively unforceable just at the time when that guarantee might be of the most value to her. In those circumstances, the courts would have failed in their constitutional duty to vindicate these contractual obligations by providing real and effective relief to remedy the injustice done which would then have been done to her.
31. It was, after all, the Authority which decided to agree to give its employees the express contractual commitment that they would remain in situ pending an appeal against an adverse disciplinary decision. The Authority can hardly feign surprise or look askance if this Court merely holds it to its own word.
32. All of this is another way of saying that in a case such as the present one where the grant or refusal of the interlocutory relief would effectively determine the main proceedings, the court is permitted, by way of modest derogation from the Campus Oil principles, to look to the underlying strength of the respective positions of the parties in the manner indicated by the Supreme Court in Lee. If, as here, the plaintiff’s case appears particularly strong, it is only just and equitable that she be granted the interlocutory relief which she seeks, not least where (as here) the point is a net one of construction, not dependent on oral evidence or elaborate argument, and where damages would not be an inadequate remedy.