1. In
September 1985, the Plaintiff was appointed Branch Manager of the Defendant's
branch at Killarney, County Kerry. On 30th August, 1996, the Plaintiff was
suspended from that position, without loss of pay or benefits, pending the
outcome of an investigation by the Defendant into allegations made against the
Plaintiff by an official and a local representative of the MSF trade union
("MSF") representing a number of staff members in the Killarney branch.
Following an investigation, on 2nd October, 1996, the Plaintiff was notified of
the Defendant's decision to dismiss him, but that the decision would not be
finalised until 5.30 p.m. on 9th October, 1996, thus allowing the Plaintiff
time to make any representation as to why the decision should not be implemented.
2. These
proceedings were instituted by plenary summons which issued on 2nd October,
1996. The relief which the Plaintiff claims, which was amended by consent
during the course of the hearing, is as follows:-
3. The
Plaintiff grounds his claim for the foregoing reliefs on his contention that
the conduct of the investigation of the allegations against by him by the
Defendant was in breach of the Defendant's disciplinary procedures and also his
constitutional entitlement to fair procedures.
4. It
is common case that the Defendant's disciplinary procedure code formed part of
the Plaintiff's terms of employment with the Defendant. The code is divided
into three sections.
5. The
first section deals with unsatisfactory or unacceptable conduct or performance
on the part of an employee and provides for -
6. The
code provides that, if the employee's conduct or performance continues to be
unsatisfactory after a final written warning, he or she will be dismissed. If
it is decided by the Defendant that the employee should not be dismissed but
that some form of disciplinary action should be taken, such action, for
example, demotion, deferment of increment, or withdrawal of other benefits, may
be implemented. At all stages of the procedure when an employee is interviewed
by his or her line manager, he or she may be represented by a colleague. The
code specifically provides that the foregoing procedure applies to first
breaches and that subsequent breaches will be dealt with by only one written
warning.
7. The
second section of the code governs the disciplinary action to be taken in the
case of gross misconduct and provides that an employee who has committed, or is
suspected or having committed, a breach of discipline which amounts to gross
misconduct, may be suspended immediately pending investigation and, at the
discretion of the Defendant, the suspension may be with full pay. The
investigation will be carried out at quickly as possible. The employee is
entitled to be informed of the nature of his or her misconduct and given an
opportunity to state his or her case. If the Defendant decides that gross
misconduct has taken place, the employee will be dismissed. Alternatively, if
it is decided that some degree of blame attaches to the employee, the company
may implement disciplinary action such as demotion, deferment of increment or
withdrawal of other benefits.
8. The
third section of the code gives an employee the right to appeal against any
disciplinary action taken against him or her by recourse to the grievance
procedure. It is provided, however, that where the decision of the Defendant
is dismissal, the employee will be suspended on notice of dismissal for one
week before the dismissal is implemented to allow for representation. The
statutory rights of the employee under the Unfair Dismissals Act, 1977 are
expressly acknowledged.
9. The
Defendant also has procedures in place for ensuring equal opportunities for all
its employees and for dealing with discrimination, including discrimination on
the basis of sex. These procedures provide that no employee should be
subjected to sexual harassment of any kind from any other employee and that
instances of sexual harassment should be reported to management and will be
dealt with in strictest confidence through the grievance and disciplinary
procedures.
10. Before
outlining the conduct of the investigation on foot of the allegations made on
30th August, 1996, it is necessary to refer to previous incidents of the
invocation of the disciplinary procedure by the Defendant against the Plaintiff.
11. In
October 1991, a final written warning had issued to the Plaintiff in respect of
breaches of procedure in relation to external accounts and certain sanctions
had been imposed on the Plaintiff, including demotion to Assistant Branch
Manager level for six months.
12. On
16th February, 1996, the Plaintiff was given a verbal warning by his superior,
Philip Mongan ("Mr. Mongan"), arising out of two allegations of sexual
harassment which had been brought to Mr. Mongan's attention but of which there
had not been official complaints. I am satisfied, on the evidence, that the
Plaintiff tacitly, if not expressly, accepted the verbal warning.
13. At
the end of February and at the beginning of March 1996, the four other staff
members in the Killarney branch met with Donal Garvey ("Mr. Garvey"), the
Plaintiff's immediate superior, twice at their request and made allegations
against the Plaintiff. Subsequently, on 25th March, 1996, the staff members
wrote to Mr. Garvey outlining various further incidents which they alleged had
occurred since the meetings. The Plaintiff was requested to attend a meeting
at the Defendant's head office in Dublin on 27th March, 1996. He attended
without representation and without having been furnished with an agenda for the
meeting or with written details of the allegations against him. As a result of
the meeting, a final written warning issued to the Plaintiff on 28th March,
1996. In it, the issues which had been discussed at the meeting were outlined,
namely:-
14. The
Plaintiff was warned that, if further complaints of a similar nature were
received from customers or colleagues and found to be accurate, the Defendant
would have no option but to terminate the Plaintiff's employment. It is clear
from the evidence that the Plaintiff implicitly accepted the final written
warning and attempted to make amends with the staff in the branch.
15. On
30th August, 1996, a local staff representative and a full-time official of
MSF, representing the four staff members in the Killarney branch, complained to
the Defendant about alleged incidents of sexual harassment, bullying,
intimidation and operational breaches on the part of the Plaintiff and
intimated that the staff members were no longer prepared to work with the
Plaintiff and threatened to put a picket on the Killarney branch. In
consequence of these complaints, David Iredale ("Mr. Iredale"), the Defendant's
Head of Human Resources, decided to suspend the Plaintiff with pay pending the
investigation of the complaints. The Plaintiff was notified of his suspension
by telephone at around 4.30 p.m. on Friday 30th August, 1996. Mr. Iredale also
contacted Mr. Joseph Pitcher ("Mr. Pitcher"), who is the manager of the
Defendant's branch at Blanchardstown, County Dublin, and is the special
representative elected by the membership of the Management Association which
represents the interests of managers employed by the Defendant, and advised him
of the suspension. Mr. Pitcher contacted the Plaintiff that evening. At that
stage, the Plaintiff was not aware of the precise reasons for his suspension.
He requested that Mr. Pitcher represent him.
16. The
investigation of the complaints took the following course. Mr. Iredale met
with three of the staff members in the Killarney branch on 3rd September, 1996.
The MSF local representative was also in attendance. Mr. Iredale was given
four typed pages of complaints by the staff against the Plaintiff in relation
to alleged incidents of mistreatment and operational breaches which had
occurred since the final written warning issued to the Plaintiff at the end of
March 1996. There was no allegation of sexual harassment amongst the
complaints. Mr. Iredale did not interview the staff members individually nor
did he take individual statements from them. The arrangement was that the
staff members would furnish individual written statements. On the 4th or 5th
September, 1996, Mr. Iredale received written signed statements from three
staff members, Mary Walsh, Yvonne Flynn and Dermot Cronin. In their respective
statements, Mary Walsh and Yvonne Flynn both made allegations of sexual
harassment against the Plaintiff. On 6th September, verification was sought
from each of the three staff members on points arising from their statements
and, on the same day, each staff member furnished written signed clarification
on the points raised.
17. Contemporaneously
with the meeting with the staff in Killarney, Mr. Iredale requested the
Defendant's internal auditor to investigate six incidents of alleged
operational breaches by the Plaintiff. The internal auditor reported on the
allegations on 5th September, 1996.
18. By
letter dated 10th September, 1996, the Plaintiff was requested to attend a
meeting at the Defendant's head office in Dublin on 17th September, 1996.
Lists of the matters to be discussed at the meeting were enclosed. There were
six lists in all. The first list was, in effect, the agenda for the meeting.
The first item for discussion was whether the Plaintiff was guilty of any
wrongdoing or breach of duty or of contract under the following headings:-
19. The
second item for discussion was whether, in the event of the Plaintiff being
found guilty of any such wrongdoing, he was incapable of performing his duties
as an employee of the Defendant. The remaining five lists contained
particulars of the allegations in relation to each category of alleged
wrongdoing. There were eleven allegations of unacceptable behaviour with
female colleagues, six allegations of unacceptable behaviour in dealing with
female customers, fifteen allegations of damaging staff morale, eight
allegations of damaging the reputation of the Defendant in the South Kerry
area, and two allegations of breaches of policies and procedures. On 16th
September, 1996, Mr. Iredale furnished to Mr. Pitcher further details of some
of the allegations which appeared on each of the five lists and, in addition,
Mr. Pitcher was given details of allegations which had been made by staff
members but which were not being pursued by the Defendant.
20. Mr.
Pitcher was effectively representing the Plaintiff's interest from 2nd
September, 1997 and was in frequent contact with Mr. Iredale. Before Mr.
Iredale went to Killarney on 3rd September, 1996 to interview the staff
members, Mr. Pitcher specifically requested that the staff members be
interviewed separately and that a full statement be taken from each on the day,
as Mr. Pitcher believed that this course was necessary to ensure that the
Plaintiff's rights were not infringed. Although he sought copies of the staff
members' statements, these were not furnished to Mr. Pitcher. The only
documentation he had been furnished with prior to the meeting on 17th
September, 1996 consisted of the Plaintiff's personnel file, the agenda and
list of allegations furnished on 10th September, 1996 and the further details
furnished on 16th September, 1996.
21. Prior
to the meeting on 17th September, 1996, the Plaintiff had met with Mr. Pitcher
and David O'Neill ("Mr. O'Neill"), another representative of the Management
Association, on a number of occasions. The Management Association
representatives had consulted their own solicitors, Messrs. Bowler Geraghty
& Company, in relation to the Plaintiff's position on a number of occasions
and the Plaintiff had been present at a consultation with Messrs. Bowler
Geraghty on 2nd September, 1996. At the meeting on 17th September, 1996, the
Defendant was represented by Mr. Iredale, Mr. Mongan and Frank Singleton. Mr.
Pitcher and Mr. O'Neill accompanied the Plaintiff. The meeting lasted three
and a half hours. Following representations made by Mr. O'Neill on behalf of
the Plaintiff and a statement made by the Plaintiff, each of the allegations on
the five lists of allegations was put to the Plaintiff and the Plaintiff
responded to each of them. A minute of the meeting has been put in evidence
and the Plaintiff acknowledged in evidence that the minute is a reasonably
accurate record of his responses to the allegations at the meeting. The minute
does not give any impression that the Plaintiff was hindered in responding to
any allegation because of any lack of clarity or detail as to what was being
alleged. At the end of the meeting, it was agreed that the Defendant's
representatives would have to consider the Plaintiff's responses and deliberate
on what course of action would ensue.
22. By
20th September, 1996, Mr. Iredale had determined on the course he proposed
adopting. He wrote to the Plaintiff on that day requiring him to attend a
meeting on the following Friday, 27th September, 1996 at a hotel in Limerick.
The Plaintiff was told that he was entitled to be accompanied by Mr. Pitcher
and Mr. O'Neill at the meeting. The staff who had made allegations would be
present at the meeting and would be accompanied by their representative. It
was intended that four separate meetings would take place involving the
respective staff member and his or her representative and that the Plaintiff
would be afforded the opportunity to question each staff member regarding his
or her allegations.
23. The
Plaintiff had first consulted Mr. Ó Catháin, a solicitor
practising in Cork city, on 13th September, 1996. Before or on 24th September,
1996, it was intimated to Mr. Iredale through Mr. Pitcher that the Plaintiff
required to have legal representation at the meeting on Friday 27th September,
1996. By letter dated 24th September, 1996 to the Plaintiff, Mr. Iredale
stated that the Defendant required the Plaintiff to formally make the request
to be accompanied by a solicitor in writing and, additionally, to state the
name of the solicitor and his or her practice and the reasons why both
management representation and legal representation was required. A deadline of
5.00 p.m. on the following day, 25th September, 1996, was imposed for a
response. That letter precipitated correspondence between the Plaintiff's
solicitors, Ó Catháin & Co., on the one hand, and the
Defendant and the Defendant's Chief Legal Officer, on the other hand, and
ultimately these proceedings. It is necessary to consider that correspondence
in some detail.
24. The
opening sally was a letter which was faxed on 26th September, 1996 from the
Plaintiff's solicitors to Mr. Iredale. This letter expressed outrage at what
was perceived as an attempt by the Defendant by the letter of 24th September,
1996 to refuse legal representation to the Plaintiff and to require him to
obtain the Defendant's consent to his choice of solicitor. The letter
contained the following demands:-
25. The
Defendant's solicitor responded by a letter of the same date, 26th September,
1996, which was transmitted by fax on that day. Apropos of the Plaintiff's
solicitors' perception of the letter of 24th September, 1996, it was pointed
out that it was not a refusal of a right to legal representation or the
Defendant's veto on a choice of solicitor. It was pointed out that the
Plaintiff was an employee of the Defendant and that he was expected to attend
the meeting in Limerick on the following day. If he wished to bring a legal
adviser, he must reply to the letter of 24th September, 1996 and the time limit
for so replying was extended to 5.30 p.m. on that day, 26th September, 1996.
The demands made by the Plaintiff's solicitors were answered as follows:-
26. Finally,
it was intimated that, if the Plaintiff did not attend the meeting on the
following day, Mr. Iredale would proceed in his absence. On receipt of that
letter, the Plaintiff's solicitors responded by a letter of the same day, 26th
September, 1996, and this response was also transmitted by fax on that day.
The thrust of this letter was to reiterate the demands contained in the earlier
letter and to contend that the Plaintiff and his freely chosen representatives
were entitled to the information and documentation and were entitled to
adequate time within which to consider it before responding to it. It was
pointed out that, if the Defendant proceeded with the hearing on the following
day in his absence, it would do so at its own risk. The final letter in the
series was the response from the Defendant's solicitor which was dated 27th
September, 1996 and which was transmitted by fax on that morning. In relation
to the Plaintiff's demands, the Defendant's position, as set out in its
solicitor's letter of the previous day, was restated. It was stated that,
while the Defendant had not received any reasons why legal representation
should be allowed, if the Plaintiff attended the meeting that morning he would
be allowed to have a legal adviser present.
27. The
meeting in Limerick on 27th September, 1996 went ahead, although neither the
Plaintiff nor any representative on his behalf was present. Mr. Pitcher and
Mr. O'Neill had ceased to represent the Plaintiff when his solicitors, Ó
Catháin & Company, had entered into correspondence with the
Defendant. The meeting was attended by Mr. Iredale, Mr. Mongan and Mr. Garvey
on the employer's side. Three of the staff members, Mary Walsh, Yvonne Flynn
and Dermot Cronin, were in attendance and they were accompanied by a local MSF
representative, by a full-time MSF official, by a solicitor and by Counsel. It
had been intimated to Mr. Iredale by MSF that the staff members required legal
representation at the meeting and, on 24th September, 1996, Mr. Iredale wrote
to MSF in terms similar to his letter of that date to the Plaintiff. On 25th
September, 1996, the Defendants received a letter from Spring Murray &
Company, Solicitors, stating that the staff members had requested them to
attend to advise as the need should arise and that a solicitor from their firm,
accompanied by Counsel, would attend the hearing. Minutes of the meeting have
been put in evidence. These disclose that Mr. Iredale questioned each staff
member in relation to his or her allegations. Counsel for the staff members
was permitted to question the staff members and to raise matters with Mr.
Iredale.
28. By
letter dated 27th September, 1996 from Mr. Iredale to the Plaintiff, the
Plaintiff was apprised that the Defendant had completed its investigation into
the allegations and was instructed to attend a meeting with Mr. Kane at head
office in Dublin at 3.00 p.m. on 2nd October, 1996 to discuss the investigation
and his refusal to obey the instruction to attend at the meeting in Limerick on
that day. Following intervening correspondence between the Plaintiff's
solicitors and the Defendant's solicitor, it was confirmed by a letter of 2nd
October, 1996 from the Defendant's solicitor that Mr. Ó Catháin,
the Plaintiff's solicitor, would be allowed attend the meeting with Mr. Kane
and that the Defendant's solicitor would also be in attendance.
29. Prior
to the meeting of 2nd October, 1996, Mr. Iredale had presented a report on his
investigations into the allegations against the Plaintiff to Mr. Kane in which
he set out his findings that the relationship between the Plaintiff and his
staff had deteriorated to a level that was totally unacceptable, that the
Plaintiff's behaviour in his dealings with female staff members amounted to
gross misconduct, that it was reasonable to assume that the allegations
relating to female customers were substantially correct and amounted to gross
misconduct, and that the Plaintiff's management of business procedures and of
policy within the branch was also unacceptable. Based on these findings, Mr.
Iredale recommended that the Plaintiff's employment with the Defendant be
terminated. He submitted to Mr. Kane with the report certain documentation
including the minutes of the meeting of 27th September, 1996. At the meeting
of 2nd October, 1996, copies of the report and the minutes were tendered to the
Plaintiff and they were accepted by Mr. Ó Catháin for information
purposes only. The Plaintiff, through his solicitor, declined an invitation to
make representations and intimated that representations would be made at the
appropriate time in the appropriate manner. Mr. Kane told the Plaintiff that a
decision to dismiss the Plaintiff was warranted but that the decision would not
be finalised for one week and that he would have an opportunity to make
representations. Following the meeting, Mr. Kane wrote to the Plaintiff by
letter dated 2nd October, 1996 confirming that the Defendant's decision was to
dismiss the Plaintiff but that, in accordance with the disciplinary procedure,
the decision would not be finalised until 5.30 p.m. on Wednesday 9th October,
1996.
30. As
I said at the outset, the plenary summons initiating these proceeding was
issued on 2nd October, 1996. By Order of this Court made by McCracken J. on
25th October, 1996, it was ordered that the Defendant be restrained pending the
trial of this action from taking any further steps to terminate the Plaintiff's
employment with the Defendant or otherwise to seek to attempt to implement his
purported dismissal on the basis that the Plaintiff would remain suspended from
his position without pay and would not attend at the Killarney branch of the
Defendant.
31. It
is agreed between the parties that the Court is not concerned with whether the
allegations against the Plaintiff, which gave rise to the investigation, were
well founded. The Court is only concerned with whether the Defendant, in
conducting the investigation and in dealing with the Plaintiff, complied with
its own disciplinary code and had regard to fair procedures.
32. Counsel
for the Plaintiff challenged the validity of the suspension and of the decision
to dismiss on the ground of breach of the Defendant's disciplinary code and its
contractual obligations to the Plaintiff and also on the ground of failure to
comply with fair procedures. He contended that at every stage the procedure
was tainted with unfairness and pointed to:-
33. On
behalf of the Defendant, it was submitted that the Plaintiff had complied with
the disciplinary code and with its contractual obligations to the Plaintiff and
had conducted the investigation in accordance with fair procedures. The
Plaintiff had acquiesced the investigation and the procedures adopted up to
26th September, 1996. He had gone to the meeting on 17th September, 1996 with
the benefit of prior legal advice and of management representation and he had
been able to respond to all the charges made against him at that meeting. The
Defendant was not conducting a tribunal; it was conducting an internal
investigation in relation to its employee. The Plaintiff's conduct after 17th
September, 1996 amounted to obfuscation and obstruction. The Plaintiff was not
prepared to face his accusers. The letter of 24th September, 1996 was neither
a refusal of legal representation nor an interference with the Plaintiff's
choice of legal adviser. The Plaintiff deliberately chose spurious grounds for
non-attendance. He had been instructed to attend and, as he was an employee of
the company who was suspended on full pay, who was being given an opportunity
to explain his position, he should have attended. The Defendant had a duty to
protect its younger and more junior staff. The procedure arranged for 27th
September, 1996 was the best conceivable example of fair procedures and the
Defendant was not under any obligation to postpone the hearing merely because
the Plaintiff did not comply with the instruction to attend. The Plaintiff
chose not to make any representations to Mr. Kane on 2nd October, 1996 or
within the following week although he had an opportunity to do so. The
Plaintiff has not established his case, it was contended.
34. Since
the decision of the Supreme Court in
Glover
-v- BLN Limited
[1973] I.R. 388, it has been recognised that public policy and the dictates of
constitutional justice require that statutes, regulations or agreements setting
up machinery for taking decisions which may affect rights or impose liabilities
should be construed as providing for fair procedures (see the judgment of Walsh
J. at page 425).
35. If
there could have been any doubt as to whether this principle applies to an
agreement regulating the relationship of an employer and an employee, such
doubt must have been dispelled by the decision of the Supreme Court in
Gunn
-v- Bord an Cholaiste Naisisiunta Ealaine is Deartha
[1990] 2 I.R. 168. Commenting on passages from the judgments of Walsh J. and
McCarthy J. in that case, Barrington J. in delivering judgment in the Supreme
Court in
Mooney
-v- An Post
on 20th March, 1997 stated:-
36. It
was pointed out by Barrington J. in
Mooney
-v- An Post
,
that what the justice of a particular case will require will vary with the
circumstances of the case, for example, in a case involving a contract of
employment, whether it stipulates the procedure to be followed in dismissing an
employee for misconduct or not. If no procedure is stipulated, the employee is
entitled to the benefit of fair procedures but what these demand will depend
upon the terms of his employment and the circumstances surrounding his proposed
dismissal. The minimum an employee is entitled to is to be informed of the
charges against him and to be afforded an adequate opportunity to rebut or
attempt to rebut them.
37. The
extent to which an employer, in adjudicating on charges of misconduct against
an employee, is constrained by the requirement to adhere to basic fairness of
procedures was considered by the Supreme Court in
Gallagher
-v- The Revenue Commissioners (No. 2)
[1995] 1 I.R. 55. Hamilton C.J. adopted the following passage from the
judgment of Henchy J. in
Kiely
-v- The Minister for Social Welfare
[1977] IR 267 at page 281:-
38. On
30th August, 1996, the Defendant was confronted with allegations about the
behaviour and conduct of the Plaintiff made by the staff members in the
Killarney branch through their trade union representatives, which were
represented as being so serious that the staff members could no longer work
with the Plaintiff and were prepared to embark on industrial action to have the
situation redressed. Having regard to what had transpired in February and
March 1996, in my view, the Defendant was justified in suspecting the Plaintiff
of a breach of duty which constituted gross misconduct and was justified in
suspending the Plaintiff on full pay summarily pending the investigation of the
allegations. Under the disciplinary code, the Plaintiff was entitled to have
the allegations investigated promptly and he was also entitled to be informed
of the allegations and to be given an adequate opportunity to rebut them.
39. In
my view, the Defendant embarked on and conducted the investigation into the
allegations with due promptness. Moreover, in my view, the Defendant strove to
conduct the investigation fairly and with due regard to proper procedures up to
and including the meeting on 17th September, 1996. While it would have been
preferable had a senior management figure interviewed each complainant
separately and obtained a signed written statement of his or her allegations,
weeding out as far as possible allegations based on hearsay, while
simultaneously clarifying any points which needed to be clarified, one has to
have regard to the practicalities of the situation and, in particular, the
necessity to conduct business at the Killarney branch as normal, or as near to
normal, as was possible, and the necessity of carrying out parallel
investigations in Dublin and of keeping Mr. Pitcher apprised of the course of
the investigation.
40. Having
regard to the decision taken following the meeting on 17th September, 1996, the
only reasonable inference which can be drawn is that Mr. Iredale and his
colleagues were not satisfied that a determination could be made as to whether
the allegations against the Plaintiff were well founded without convening an
oral hearing of the type planned for 27th September, 1996. It was the
Defendant which chose the forum in which there would be a face to face
confrontation between the Plaintiff and his accusers in aid of determining
whether the allegations were well founded and the Defendant was under a duty to
ensure that fair procedures appropriate to such a forum were implemented.
Having regard to the multiplicity of the allegations against the Plaintiff and
the diverse nature of those allegations and, in particular, having regard to
the significance of credibility in determining whether the allegations of
sexual harassment were well founded, in my view, the Plaintiff was entitled to
be furnished with copies of the statements made by the staff members in advance
of the hearing and he was entitled to be legally represented at the hearing.
41. It
was not made clear to the Plaintiff until the morning of the hearing that he
would be allowed legal representation, if he attended at the hearing. This was
far too late given that the Plaintiff resided in Killarney, his solicitor
practised in Cork and the meeting was to be held in Limerick. It was also far
too late given that the Defendant had been notified two days earlier that the
staff members would be represented at the hearing by a solicitor and Counsel.
The stance adopted by the Defendant in relation to the meeting of 27th
September, 1996 in advance of that meeting imperilled a fair hearing and a fair
result. In the absence of the Plaintiff and his legal representative, the
hearing was not a fair hearing because only one side of the story emerged and
there was no one to rebut, or to attempt to rebut, that version. That one
sided hearing could not and did not present a fair result. In my view, the
blame for this cannot be ascribed to the Plaintiff.
42. The
decision made on 2nd October, 1996 to dismiss the Plaintiff was based on the
recommendation of Mr. Iredale which, in turn, was informed by what transpired
at the meeting in Limerick on 27th September, 1996. The decision to dismiss,
being based on a hearing which contravened the most elementary requirement of
fair procedures, in that it was conducted in the absence of the person against
whom the allegations were made, cannot stand. Accordingly, the Plaintiff's
employment with the Defendant did not terminate on the 9th October, 1996 and
subsists.
43. There
remain, however, serious allegations of misconduct against the Plaintiff which
have not been resolved and until they are resolved, in my view, it would be
inappropriate to order the reinstatement of the Plaintiff as manager of the
Killarney branch, having regard to the nature of those allegations.
44. I
will make an order restraining the Defendant from taking any further steps to
terminate the Plaintiff's employment with the Defendant save in accordance with
the Defendant's disciplinary procedure and the principles of natural justice.
45. As
no argument was advanced that the suspension of the Plaintiff, which, in
effect, was suspension without pay from 25th October, 1996, became invalid at
some stage after 30th August, 1996, as opposed to being invalid ab initio, I
express no view on this point. Moreover, nothing in this judgment is intended
to be or should be construed as the expression of any view as to whether the
allegations made against the Plaintiff are well founded or not.