High Court of Ireland Decisions

1. The Defendant company is a public liability company registered in the State. It was established in the month of November 1985 and is a manufacturer and distributor of Dental Alloys and Associated Products. At all material times its Managing Director was Ola Johansson, the son of its major shareholder. It also is quoted on a stock exchange in New York. The Plaintiff is a chartered accountant and prior to commencing employment with the Defendant in November 1992, was a partner in Ernst & Young, chartered accountants in Limerick. Until the matters complained of in these proceedings, he had been Operations Director and Vice President.

2. The business of the company is based in Shannon. In its early years, it concentrated its business in Scandinavian markets. Later it expanded into France, Germany, Switzerland and the United Kingdom. At the date of the Plaintiff's appointment, the company had been expanding rapidly and, since his appointment, continued to expand substantially.

3. At the end of the year 1995, the company acquired Ney Dental International Inc. ("Ney") a U.S. company, for a sum of $17.9 million. The money required to acquire this company was raised through Forum Capital Markets L.P. ("Forum"). The acquisition of Ney appears to have caused financial problems for the company with the result that in April 1996 Noble Investment Company of Palm Beach ("Noble") was retained by the company to provide investment banking and consultancy services to the company.

4. Whatever may have been the cause and such causes are central to the issues in this case the company which up to its financial year ending 31st May, 1995 had declared substantial profits, found itself to be in a loss making situation in the 4th quarter of the financial year ending the 31st May, 1996. In May 1996, the Plaintiff, notwithstanding the anticipation of such losses, was of the opinion that the profits of the company for the year ending 31st May, 1996 would be of the order of $800,000. Early in June 1996 he confirmed the profits would be considerably less than expected and at the beginning of October it appeared that there would be losses for the year ending the 31st May, 1996 of the order of $1.4 to $1.7 million.

5. This deterioration in the financial position of the company was a matter of considerable concern to Noble as well as to Forum and other lenders to the company. Much time and endeavour was spent in seeking to establish its causes and to determine the appropriate remedy.

6. Mr. Michael P. Cerisano, the President of Delta Consulting Inc. ("Delta"), was appointed an independent consultant to the company on the 5th September, 1996. By the 4th October, 1996 Forum was criticising the manner in which the company was being run. As a result of action by Forum, three members of the board of the company resigned on the 18th October, 1996 and five new directors were elected; three being partners in Forum and two being officers of Noble.

7. Following upon these appointments, Mr. Cerisano and Mr. William Lewis, another partner in Forum, were instructed by the board to make a report on the financial affairs of the company. They attended at the premises of the company at Shannon, Co. Limerick, during the week ending the 25th October, 1996 and prepared a report for the board. This report indicated that losses would be of the order of $3.3 million.

8. This report was presented to the board of the company at a meeting in the United States of America on the 6th November, 1996. The financial matters of the company were discussed at this meeting and it was accepted by the Plaintiff that the figures for potential losses of the company for the year ending 31st May, 1996, would be of the order indicated by the report. At the meeting both the Managing Director of the company and the Plaintiff were suspended from positions with the company. Such suspensions were in accordance with their contracts and were on full pay. At this time also an Executive Committee appears to have been formed to administer the affairs of the company.

9. The Plaintiff's service contract with the company is dated the 12th June, 1994. Under Clause 1 he agreed to serve the company as Operations Director and Executive Vice President with effect from the date of the agreement. Under the terms of Clause 3, the period of his employment was to continue until the 30th September, 1998 and unless the company should serve notice on him in accordance with the procedure set out in Clause 7.07 should continue thereafter on an open-ended basis. No such notice was in fact served.

10. Clause 7 of the agreement deals with termination of the contract. Clause 7.02 deals with immediate dismissal, it is as follows:-

11. Clause 7.04 provides as follows:-

12. Clause 7.07 provided:-

13. The suspension of the Plaintiff at the board meeting on the 5th November, 1996 was in accordance with the terms of Clause 7.04 of his contract. On the 29th November, 1996 without notice to the Plaintiff that such course was about to be adopted, the Defendant stopped the Plaintiff's salary.

14. On the 9th December, 1996 the Plaintiff issued the present proceedings. The general endorsement of claim claimed inter alia as follows:-

15. The summons further claimed Orders in relation to compensatory matters.

16. The matter came before the Court on the 19th December, 1996. Various interlocutory reliefs were sought. The application was adjourned to the 20th January, 1997 but an Order was made directing the payment to the Plaintiff by the Defendant of the sum of £10,000.

17. Following the meeting of the 6th November, 1996, the Defendant company commissioned a forensic review of the affairs of the company by Chapman Flood, chartered accountants. The letter of engagement is dated the 19th November, 1996. This letter sets out the accountants understanding of the work which the board wished it to undertake. These understandings are set out in numbered paragraphs. And so far as is material are as follows:-

18. A second draft report was presented on the 18th December, 1996 by the accountants. It deals with the matters referred to it under three headings: "Events", "Effect", and "Evidence", each set of events being dealt with in a separate chapter.

19. Following the issue of proceedings, the Defendant's Solicitors wrote to the Plaintiff's Solicitors by letter dated the 11th December, 1996 as follows:-

20. The Plaintiff's Solicitors replied, inter alia, as follows by letter dated the 13th December, 1996:-

21. By reply dated the 16th December, 1996 the company's Solicitors, inter alia, accepted the terms of this letter as a refusal by the Plaintiff to attend the interview scheduled for the 17th December. Again, on the 18th December, 1996 the Plaintiff's Solicitors reiterated that their client would not attend a meeting until he had been furnished with the information referred to in their letter of the 13th December.

22. Following the proceedings in Court on the 19th December, the company's Solicitors wrote to the Plaintiff and a copy to his Solicitors by letter dated the 23rd December, 1996 which was as follows:-

23. This letter, although dictated on the 23rd December, 1996 was not posted until the first week of January 1997.

24. The Plaintiff's Solicitors replied by letter dated 10th January, 1997 as follows:-

25. The letter then continued to refer to principles of law appropriate to the dispute.

26. The rest of the dispute is as to whether or not any list of complaints was furnished by the company to the Plaintiff. It is submitted on behalf of the company that the second draft Chapman Flood report was handed over in Court on the 19th December and that subsequently two lever arch files of documentation referred to therein were also delivered to the Plaintiff's Solicitors. While it was suggested that there was no other documentation which could have been delivered, it was accepted ultimately in the course of the hearing of the interlocutory application that the statement of Michael Field upon which the report was largely based had not been so delivered.

27. This last letter was replied to by letter dated the 13th January, 1997. It is a lengthy letter which goes into a number of matters, however, in regard to the Plaintiff's requirements that the accusations should be specified and that the appropriate individuals making these accusations should be available for cross-examination, the letter said as follows:-

28. In the event, the Plaintiff did not attend on the 15th January. It appears that a conference call took place on that date with the Executive Committee and that the Plaintiff was dismissed. The grounds of the dismissal which was deemed to be made under the provisions of Clause 7.02 of the Plaintiff's contract were:-

29. The Notice of Motion which came on for hearing on the 19th December, 1996 sought, inter alia, the following reliefs:-

30. Again, as with the summons there are financial reliefs sought.

31. Although the Notice of Motion was adjourned from the 19th December, 1996 to the 20th January, 1997 it did not come on for hearing on that date. It was subsequently listed before a number of Judges but ultimately came on for hearing on the day of February, 1997. There has been a very considerable amount of affidavit evidence. The Plaintiff has sworn seven affidavits; his Solicitor two short affidavits and Keith Westrich, a former Director of the Defendant, an affidavit on behalf of the Plaintiff. On behalf of the Defendant the main affidavits have been sworn by Michael Field, the Group Financial Controller of the Defendant. He has sworn four affidavits. The President of Ney Dental has sworn two affidavits. The Chairman of the Defendant has sworn an affidavit. The Managing Director of Forum has sworn an affidavit. Both Michael Cerisano and William Lewis have sworn affidavits, as have Simon Coyle from Chapman Flood and Liam Lacey from Ernest and Young. Affidavits have also been sworn by two officers of subsidiary companies of the Defendant.

32. The Plaintiff was suspended on full pay and in accordance with the terms of his contract at the meeting on the 6th November, 1996. Whether or not he should have received prior notice of an intention to so suspend him is no longer material since matters have developed far beyond a matter of mere suspension. Again, the Plaintiff complains that his salary was withdrawn without prior notice. Again, matters have passed on from that situation although the fact that monies were owing by the Plaintiff might have warranted such action provided that an application had been made to the Plaintiff for the monies and had been refused.

33. So far as the procedures leading to the Plaintiff's dismissal are concerned, the Plaintiff submits that they were totally unfair. He refers in support of this submission not only to Case Law, but also to Regulation 10 of Industrial Relations Act, 1990, Code of Practice on Disciplinary Procedures (Declaration) Order, 1996. Having regard to the correspondence to which I have referred, it is difficult to understand how the Defendant Company could for example have dismissed the Plaintiff upon the ground that his actions were not bona fide. They were fully aware that his Solicitor was advising him not to attend unless a list of charges was presented to him. They should equally have been aware that no such list had ever been provided. Although the Defendant's Solicitors' letter dated the 13th January, 1997 does leave open the possibility that the Defendant thought that the Plaintiff might attend the meeting on the 15th it was reasonably clear that the persons who were making the complaints would not have been available at that meeting for cross-examination.

34. The Plaintiff also submits that there was no justification for his dismissal and that in any event the Executive Committee had no power to dismiss him. There are accordingly three issues to be determined. Whether there were grounds for dismissal of the Plaintiff; whether the Executive Committee was entitled to dismiss the Plaintiff, assuming grounds existed; and whether the procedures leading up to that dismissal were fair. In my view, there is a fair issue to be tried in relation to each of these issues.

35. It is now a question of the balance of convenience as to whether the relief sought should be granted. It has been said that if the relief sought is granted and the Plaintiff is reinstated in the company that the lenders will withdraw their support and that the company will fail. It does happen from time to time that one side to litigation makes threats of this nature. I am not impressed by such a threat. If the law requires him to be reinstated or to receive appropriate relief, then he will either be reinstated or receive such relief.

36. There has been too much overstatement in the manner in which the Defendant's case has been presented. Too many assertions of fact have proved to be inaccurate and for which Counsel on behalf of the Defendant has been forced to apologise to the Court. The most obvious one and the one of least importance was the continued assertion on behalf of the Defendant that the letter dated the 23rd December, 1996 was sent on that date. The enquiry which was ultimately made could have been made at any time and would have avoided the need to apologise for the unnecessary assertion.

37. Another unnecessary assertion related to the report prepared by Messrs. Cerisano and Lewis for the meeting of the 6th November, 1996. In his affidavit, Mr. Cerisano refers to the making of the report and that it was presented at the meeting. When the report was called for since it had not been exhibited, it was denied that any such report existed, it was said to consist of notes only and on further pressing on behalf of the Plaintiff that it consisted of figures only. It subsequently had to be admitted that there was a proper report and this report was exhibited in an affidavit of the Defendant's Solicitors sworn on the 21st February, 1997. Another assertion which turned out to be incorrect was that the figures in writing on accounts in the Booklet of Exhibits, page 160 at tab H was in the handwriting of the Plaintiff. Ultimately, it had to be accepted that only part of that writing was in his hand and that it was in relation only to some of the figures. Again, there was a press release which suggested that the contract of the Plaintiff with the Defendant company had never been confirmed. This release was the 12th December, 1996. It had subsequently to be accepted that the contract had been confirmed.

38. Finally, in relation to these matters the assertion was being made as early as the letter of the 15th December that a list of complaints had been prepared. It was subsequently alleged that the list of complaints was contained in the second draft report from Chapman Flood which was not published until the 18th December. Again, it was positively asserted that all the necessary information grounding that report had been furnished to the Plaintiff's Solicitors. However, it became apparent subsequently that the statement of Michael Field had not been so delivered. There is also the unexplained differences in the draft minutes of the meeting of 6th November, 1996 both of which purport to be Exhibit "C" to the first Affidavit of Michael Field.

39. The Plaintiff has to come into Court with clean hands. This does not mean that a Defendant does not equally have to have clean hands. I realise that the allegations against the Plaintiff are very serious and if substantiated would totally justify his dismissal summarily. Nevertheless, it seems to me that the balance of hardships lies in favour of the Plaintiff and in favour of granting relief to the Plaintiff. In so doing I am influenced by the matters to which I have drawn attention. Not only have there been assertions which turned out to be unwarranted and unfounded but the manner in which the matters in dispute had been investigated leave much to be desired. I cannot understand how a respectable firm of accountants put forward as acting impartially would investigate allegations of fraud and other irregularity against a senior company officer on the basis that that officer was not to be consulted in relation to the matters concerned. Nor can I see how a respectable firm of Solicitors can put themselves in a position where they are acting not only as Solicitors for a party in proceedings but apparently as prosecutors as well. I refer to all the matters to which I have already referred and refer also to the letter written to Mr. Lacey of Ernest & Young seeking confirmation of certain matters.

40. In my view this is an appropriate case in which to make an Order in the terms of that made in Fennelly -v- Generali . I do not accept that damages would be an adequate remedy. This action will clearly take some time to be ready for hearing. The Plaintiff has his profession and to that extent should be in a position to earn, but in practical terms his dismissal will leave him in the same situation as the plaintiff in Fennelly's case. There will be an Order in similar terms. The Plaintiff is to receive his salary and other benefits to which he is entitled under his contract of employment. He will give an undertaking as to damages and an undertaking to carry out such of his duties under that contract as may be required of him.