High Court of Ireland Decisions

 
THE HIGH COURT

15820P/2002

BETWEEN

GERALD MORGAN

PLAINTIFF

AND THE PROVOST, FELLOWS AND SCHOLARS OF THE COLLEGE OF THE MOST HOLY AND UNDIVIDED TRINITY OF QUEEN ELIZABETH NEAR DUBLIN, CYRIL SMYTH AND JOHN GERARD BUCHANAN

DEFENDANTS

JUDGMENT of Mr. Justice Kearns delivered the 9^th day of July, 2003.

The plaintiff in these proceedings is a Senior Lecturer in Old and Medieval English in Trinity College Dublin. He joined the Department of English in 1968 as a Junior Lecturer, was subsequently appointed as Senior Lecturer and was elected a Fellow of the College in 1993. He carries on his research and teaching on the campus of the College and is entitled to reside in rooms within the College itself and enjoy various other rights ancillary thereto.

On the 7^th October, 2002 the plaintiff was suspended with pay with immediate effect on foot of a complaint by Dr. Stephanie Newell, a member of staff and colleague in the Department of English, alleging physical intimidation and harassment. On Sunday, 6^th October, 2002, the plaintiff had entered the Arts Building and had there entered the office of Dr. Newell in the English Department. He spent some 10 minutes in that office in the presence of Dr. Newell during which time he engaged in invective against English people and the English middle classes. Dr. Newell is English and felt very intimidated and frightened by his behaviour which became increasingly angry. She moved to the departmental office to do some photocopying, but was followed by the plaintiff who became more and more angry. According to Dr. Newell, the harangue continued for some further time, at the conclusion of which the plaintiff grasped her hand, kissed her on the cheek and then left. Dr. Newell found this experience frightening and threatening and made a formal complaint in writing to the second named defendant who is Senior Dean of Trinity College. On the following day the second named defendant wrote to the plaintiff advising that a formal complaint had been made against him which required to be investigated in accordance with procedures set out in schedule (iii) chapter (xii) of the College statutes. Also enclosed with the Dean's letter was the letter of complaint from Dr. Newell and the formal record of an interview about the incident held on the 7^th October 2002 between the Senior Dean, the staff secretary and Dr. Newell. The plaintiff was advised by the said letter to attend an interview regarding the matter on Friday 11^th October 2002 at which he could be accompanied by a colleague or other representative of his choice. This offer of interview was declined by the plaintiff.

In his letter dated 7^th October 2002, the Senior Dean wrote as follows to the plaintiff:-

"I have today received a complaint from Dr. Stephanie Newell concerning your behaviour towards her in the Department of English on Sunday morning 6^th October 2002 between approx 10.50 and 11.20am.

The college's policy document on preventing sexual harassment and bullying in the workplace states:-

"Any act or conduct by a perpetrator is considered to be harassment if it is unwelcome to the recipient and could reasonably be seen as offensive, humiliating or intimidating to the recipient." The college's disciplinary procedures cite as examples of misconduct by a member of the academic staff (paragraph 12 schedule (iii), chapter (xii) of the statutes):-

"violence or threats of violence towards other members of the college community or persons having legitimate business with the college" and "harassment on the college premises or in the course of employment"

On the basis of the verbal and written evidence presented to me by Dr. Newell, I deem the matter to be of such seriousness that I am invoking powers given to the Senior Dean under paragraph 12 of the aforementioned statutes that you be suspended with pay to take effect immediately. I shall be formally recommending this course of action in accordance with the statutes to the Board of the College. This means that you should not be physically present in any part of the Arts Building of the College until further notice.

I shall be taking steps to conduct a full and formal investigation of the complaint made by Dr. Stephanie Newell in accordance with the College's disciplinary procedures applicable to academic staff.

Yours sincerely."

This event occurred in the aftermath of an investigation by the second named defendant into other complaints made against the plaintiff by Professor John Scattergood, also from the Department of English, and by Professor Nicholas Grene, Head of the Department of English, in respect of which a report dated 30^th September, 2002 had been made available to the plaintiff on 4^th October, 2002. That report had recommended to the Board of the College that the plaintiff be suspended from his post as Senior Lecturer in the Department of English for a period of three months without pay and further recommended that the plaintiff receive a formal warning that if the conduct the subject matter of the reports was to be repeated, that the plaintiff might be subject to further disciplinary action including dismissal as a possible outcome.

This investigation and report arose out of complaints made against the plaintiff by Professor John Scattergood dated 21^st February 2002 and Professor Nicholas Grene, Head of the English Department, also dated 21^st February 2002.

These complaints arose out of letters written by the plaintiff on the 17^th February 2002 and the 19^th February 2002 to Professor Nicholas Grene and other named parties and a further letter of the 22^nd of February 2002 written by the plaintiff to all members of the Department of English in the College.

Essentially the plaintiff had complained in these letters that he had not been consulted in February 2002 in connection with the appointment of a permanent lecturer in Medieval English in the English Department, nor included in the nominating committee for selection. Dr. Morgan felt that, given his seniority and years of experience in Old and Medieval English in the College, he was being wrongfully excluded from the process.

In his letter dated 17^th February 2002, Dr. Morgan made various specific allegations against Professor Scattergood and called into question his suitability to be on the nominating committee for the lectureship post. In particular, Dr. Morgan suggested that Professor Scattergood had no reputation as an Old English scholar and no credibility as a defender of Old English interests in the Department. He further suggested that Professor Scattergood's judgment in the making of appointments in the Department of English had been consistently unsound.

In his letter dated 19^th February, 2002, Dr. Morgan further contended that Professor Scattergood had 'blocked' the careers of Trinity trained medievalists and claimed that in the course of an interview in 1999 for a position in the English Department, a candidate, Dr. Michelle Sweeney, had been "undermined by Professor Scattergood's open rudeness" in the course of her interview. These letters were circulated to all members of the English Department and to the other persons named at the foot or end of each letter. These letters further suggested that Professor Scattergood had undermined the autonomy of Medieval and Renaissance English in the Department.

By his letter dated 22^nd February, 2002, which was also circulated to all members of the Department of English, Dr. Morgan again protested at his exclusion from the process of appointment of the permanent lecturer in Medieval English. In his letter he complained of Professor Grene's attitude towards him, which he had found "high handed and patronising, but also (which is much worse) lacking in candour and straight forwardness. It has been so for many years…." The letter went on to complain that Dr. Morgan was obliged to express publicly his present lack of confidence both in Professor Grene and also in Professor Scattergood whom, he alleged, had not acted "in good faith either towards me or in the interests of Old English."

For the purpose of preparing his report, which runs to some 37 pages, Senior Dean Professor Smyth held meetings with the plaintiff on 14^th March 2002 and the 4^th of April 2002. He also held meetings with other members of the English Department, including Professor Grene, Professor Scattergood, Professor Ni Chuilleanain, Dr. Piesse and Professor Ross. Having regard to the breadth and scope of allegations raised by the plaintiff, Professor Smyth obtained and reviewed a large amount of documentation pertaining to the history of the Department of English over many years, consisting of correspondence, minutes of school meetings, committee reports and faculty plans. Further correspondence from Dr. Morgan to the Senior Lecturer, the Senior Dean and members of staff in the Department of English written between February 2002 and April 2002 which repeated or contained material relevant to the allegations raised by Dr. Morgan were also reviewed for the purposes of the report.

At the conclusion of his investigation and report, Dr. Smyth found as follows:-

"I find that the contents of the correspondence referred to in this report constitute malicious and false accusations on the academic integrity, character, reputation and impartiality of Professor John Scattergood. The College has an obligation to protect the complainant against such behaviour. The College also has a duty of care and protection towards all staff within the Department and in College who are parties to receipt of copies of correspondence containing such accusations for the distress this may cause. Colleagues must not be expected to tolerate such abuse when the person's actions go beyond the bounds of acceptable academic behaviour. Such disruptive behaviour constitutes a form of bullying to undermine colleagues and cannot be allowed or excused."

Under the procedures pertaining to such matters, to which I shall presently refer, Professor Smyth then recommended the sanctions already outlined to the Board of the College.

As far as the plaintiff is concerned, an academic dispute between members of the English Department had thereby been elevated into a disciplinary matter. He believes he is entitled to, but has been denied, fair procedures in and about the manner in which the disciplinary process has taken place. In his grounding affidavit sworn on the 11^th day of December 2002 he deposes to his belief that the referral by the second named defendant of complaints to the third named defendant has been embarked upon for the sole purpose of securing the termination of his tenure in the College.

The plaintiff further complains that in respect of the proposed hearing by the Disciplinary Panel, he was served with a Book of Evidence containing some 150 pages of documents as late as the 5^th of December 2002, some three working days before the scheduled hearing. He further complains that the Book of Evidence contains a number of new allegations and complaints additional to those investigated by the second named defendant in February 2002. He complains that these new complaints have been referred simpliciter to the Disciplinary Panel although the statutes envisage a preliminary enquiry by the senior Dean or the relevant Head of Department before any invocation of the College's disciplinary procedures.

The plaintiff secured an order on the 11^th of December 2002 (Smyth J.) restraining the third named defendant until further order from convening or proceeding with the disciplinary enquiry.

The application now before the court seeks an interlocutory injunction restraining the third defendant from holding the disciplinary hearing, which was intended to be heard by a Disciplinary Panel to be chaired by the third named defendant and which was originally scheduled to take place on 11^th December, 2002. The Notice of Motion also seeks to set aside the plaintiff's suspension and to restrain the defendants from taking any disciplinary steps against the plaintiff until the trial of the action.

THE DEFENDANTS DISCIPLINARY PROCEDURES

The first named defendant's disciplinary procedures for academic staff are set out in schedule III of chapter XII of the Consolidated Statutes of Trinity College Dublin and of the University of Dublin.

Par. 2 of schedule III sets out examples of misconduct governed by the procedures and makes it clear that misconduct is not limited to the matters actually listed in par. 2. Amongst the examples of misconduct cited are "violence or threats of violence towards other members of the college community or persons having legitimate business with the college" and "abuse of the disciplinary code, including the making under it of a false and malicious accusation against a member of staff".

The regulations provide that where misconduct has been reported, the Head of Department shall make preliminary enquiries and attempt to deal with the matter on an informal basis. Where the allegations are serious, however, the matter may be referred to the Senior Dean. Par. 11 provides that the Senior Dean shall, where a case has been referred to him by a Head of Department or otherwise, carry out such enquiries as he deems appropriate. Unless he decides that no further action is justified, the Senior Dean must formally interview the member of staff giving him an outline of the allegations made against him and furnishing a copy of the College's disciplinary code and procedures.

Par. 12 provides that the Senior Dean may recommend to the Board of the College that, pending investigation, the member of staff concerned should be suspended on pay from all or any part of his duties, together with any conditions that should apply to such suspension. It further provides that the Senior Dean may, in exceptional circumstances, order that the suspension should take effect immediately, pending the decision of the Board.

In the instant case, the latter portion of par. 12 was relied upon by the Senior Dean to suspend Dr. Morgan on the 7^th of October, 2002, and the suspension was confirmed by the Board on the 24^th October, 2002.

Par. 13 provides:-

"After completing his/her investigation, the Senior Dean may –

(a) decide not to proceed where he determines that there is insufficient evidence or that the case is otherwise unfounded, or

(b) with the prior written consent of the member of staff concerned, recommend to the Board of College an appropriate penalty/disposition, or

(c) in every case in which dismissal is a possible outcome or where otherwise in the opinion of the Senior Dean the nature of the case justifies such action, refer the case for a hearing to the Disciplinary Panel.

The Senior Dean shall make such determination as soon as possible and subject to the provisions of par. 16."

Par. 14 provides that where there has been a refusal or a failure by the member of staff to give consent under par. 13(b) the Senior Dean may refer the case to the Disciplinary Panel in accordance with par. 13(c).

This is the situation in the present case insofar as the Dean's report in to the February matters is concerned. In these circumstances, the Disciplinary Panel "shall not be informed of the Senior Dean's recommendation and the case will be heard de novo."

Par. 15 minutes the penalties which may be recommended by the Senior Dean. The Senior Dean cannot recommend dismissal.

Par. 16 is in the following terms:-

"A reference to a Disciplinary Panel by the Senior Dean under par. 13(c) shall be made by written notice to the Registrar, containing a brief specification of each charge against the member of the academic staff. Such notice must normally be received by the Registrar within 30 working days from the date on which the Senior Dean received original notification of the offence. In exceptional circumstances the Senior Dean may serve such notice after the expiry of this time limit. The decision of the Senior Dean to serve such notice after expiry of the normal time limit shall be reviewable by the Disciplinary Panel."

Par. 19 imposes a requirement on the Senior Dean to serve, at least three working days in advance of the hearing, on the member of the academic staff and on the Chairperson of the Disciplinary Panel a statement of the charges, a list of witnesses whom the Senior Dean proposes to call, a summary in writing of the evidence that is purposed to be given and a list of exhibits if any.

Par. 23 provides that the Disciplinary Panel shall consist of the Chairperson (who must be legally qualified) and four members of the academic staff drawn from a standing list of 30 persons on a random basis. The standing list is drawn up by the Board with the agreement of the Academic Staff Association.

While the Disciplinary Panel is obliged to meet within 21 working days of the referral to it of a case by the Senior Dean in accordance with par. 13(c), the Chairperson has a discretion to grant to a member of the academic staff a further period to prepare the case, if so requested.

There are detailed provisions for the conduct of such hearings. Par. 33 provides:-

"The Chairperson shall conduct the hearing in accordance with the principles of natural justice and fair procedures. Having opened the proceedings, the Chairperson shall invite the Senior Dean and/or the representative of the Senior Dean to make the case to the Panel, which case has to be established beyond all reasonable doubt. The member of academic staff and/or the representative of the member of academic staff shall then be heard. Where witnesses are called, they may be examined, cross examined or re-examined by the parties and by members of the Panel. When the presentation of evidence is complete, the chairperson shall invite the parties or their representatives to address concluding remarks to the Panel. The Chairperson shall then, in the presence of the parties, address the other members of the Panel, summarising the evidence presented, giving directions as to the proper approach to evidence adduced and instructing them as to their functions.

34. Following the Chairperson's address, the ordinary members of the Panel shall retire to consider their decision in private and in the absence of the chairperson and the parties. A decision that the charges have been proved shall not be made unless at least three of the ordinary members are in agreement with such verdict. The ordinary members shall nominate from amongst themselves a spokesperson. When a decision has been reached the spokesperson shall, in the presence of the full Panel and the parties announce the decision. Where the Panel decides that the charges have been proven, the Chairperson shall, following submissions from the parties, address the Panel on factors relevant to the determination of an appropriate penalty. The ordinary members shall then again retire to consider an appropriate penalty. Their spokesperson shall, in the presence of the full Panel and the parties, announce their decision. The Chairperson may, if of the opinion that the proposed penalty is ultra vires or unreasonable ask the ordinary members to reconsider the matter. Where the four panellists are unable to decide (which decision may be made by simple majority) upon an appropriate penalty, the penalty shall be determined by the Chairperson.

35. The Chairperson shall, following announcement of the penalty, inform the member of academic staff of the right to appeal to the Visitors in the event of the Panel's decision being confirmed by the Board."

It will be seen from the foregoing that the disciplinary process in the college is multi-tiered. Firstly, certain complaints may go no further than the Head of Department. Secondly, where a matter is, because of its seriousness, referred to the Senior Dean, he may decide, following enquiries and after completing his investigation, not to proceed further on the basis of insufficient evidence. Alternatively, he may, with the prior written consent of the member of staff concerned, recommend to the Board of College an appropriate penalty. Where there is a refusal to give consent to the imposition of penalty by the member of staff, as in the instant case, the matter is then referred to the Disciplinary Panel for a complete de novo hearing. That hearing requires proof to the criminal standard of proof before an adverse finding can be made. Witnesses may be examined and cross examined and the member of staff has the right to legal representation. He also has the further safeguards that the Panel's decision must be confirmed by the Board. Even then, there still remains a right of appeal to the College Visitors.

It is difficult to imagine a more comprehensive set of procedures for the protection of academic staff. The essential question, however, is whether those procedures were fairly employed by the first and second named defendants. No allegation of any sort is made against the third named defendant, whose qualifications for the position of Chairman are impeccable. By virtue of the injunction application brought by the plaintiff, the complement of lay personnel for the Disciplinary Panel has not yet been assigned.

CONTENTIONS OF THE PARITES

The arguments advanced on behalf of the plaintiff in support of his application for interlocutory relief may be summarised as follows:-

(a) there was a failure to comply with natural justice in that the plaintiff did not have an opportunity to challenge his 'accusers' during the investigation by the Senior Dean

(b) there was a failure on the part of the Senior Dean to comply with the time limits for reference of the matter to the disciplinary panel

(c) the suspension of the plaintiff was invalid, constituted a second suspension and should in any event be lifted at this stage by reason of its duration

(d) the reference of additional complaints to the disciplinary panel was otherwise than in accordance with the procedure.

It is further submitted that the plaintiff will suffer irreparable damages if the suspension is not lifted. Mr. McMenamin S.C. for Dr. Morgan, contends that damages could never be an adequate remedy in the particular context. Within the confines of an academic institution, a suspension to which was added the restriction that the plaintiff could not enter the Arts Building, was incredibly damaging to the plaintiff's reputation and standing within the College community, Mr. McMenamin argued. The plaintiff's whole way of life and professional standing was at stake in the context of the present application. The balance of convenience lay in favour of granting an interlocutory injunction.

The defendants submitted that all of the complaints made by the plaintiff in these proceedings are premature. Any complaints of procedural defect could be made by the plaintiff to the Disciplinary Panel. The Disciplinary Panel is strictly governed and subject to the principles of natural justice and fair procedure. The defendants submit that all of the complaints now advanced by the plaintiff at this hearing could and indeed should have been advanced by him at first instance to the Disciplinary Panel. In the event of the Disciplinary Panel failing in its duties in respect of any complaint, it would at that stage have been open to the plaintiff either to appeal the decision of the panel to the Visitors or alternatively apply to this court. It is submitted that there is not one iota of evidence that the Panel has acted improperly or is likely to act improperly.

The early stage of the investigation was, it is argued, just that, investigatory. There was no right during that process to challenge "accusers" because there were none. While the Senior Dean does have a duty to investigate and a power to impose a penalty, that power is at all times subject to being exercised only with the prior written consent of the staff member, which in the instant case had never been forthcoming. The mere forwarding of a complaint by the Senior Dean to the Panel does not render the complainant an 'accuser' until such time as the first named defendant puts the staff member at risk of the imposition of a sanction in a hearing before the Disciplinary Panel.

On the allegation of delay, it is accepted that the Senior Dean did not refer the matter to the Disciplinary Panel within 30 working days. However, it was submitted that the period of time taken by the Senior Dean to investigate this entire matter and ultimately refer to the Disciplinary Panel was reasonable. That issue is also reviewable by the Disciplinary Panel and can be resolved at that hearing. It had been necessary for the Senior Dean to examine a considerable volume of documentation relating to the Department of English over many years. Furthermore, the plaintiff had in correspondence with the Senior Dean indicated his understanding of the delay and was making no complaint about it prior to the delivery of the report in October.

The defendants argue that there is no second suspension, nor was the single suspension imposed as a sanction. It was a purely holding operation, pending the hearing by the Disciplinary Panel. Furthermore, the suspension was one with pay and was clearly not open ended in that it would clearly only last until the Disciplinary Panel convened and dealt with the entire matter of the February and October complaints. The period from the 7^th of October until the 11^th of December, 2002, could not be regarded as excessive, not least because additional charges and complaints had arisen in respect of certain behaviour by the plaintiff following delivery to him, of the Dean's report on the 4^th October, 2002.

Further, in circumstances where the disciplinary issue had already being referred to the Disciplinary Panel, there could be no complaint about the addition of further charges. The reference to the Disciplinary Panel was clearly in contemplation or in train at the time these additional acts of further alleged misbehaviour had occurred and were thus properly within the purview and remit of the Disciplinary Panel to be determined by the Panel in accordance with its own rules. It would be a nonsense for the Senior Dean to conduct further investigations in such circumstances.

Insofar as the balance of convenience went, it was submitted that the College as an employer has duties not only to a staff member accused of misconduct but to other staff who may be affected by that behaviour. It had such a duty of care, not least because the plaintiff's complaints were being disseminated by the plaintiff to a wide audience within the College, as his correspondence demonstrated.

SUSPENSION: LEGAL CONSIDERATIONS

The power of suspension is expressly provided for in the College disciplinary procedure and the entitlement to suspend per se is thus not in issue. Whether, however, a suspension amounts to a sanction such as would invoke concepts of natural justice or give rise to an inference that the person concerned had been found guilty of significant misconduct is, in every case, a question of fact and degree.

A suspension may have different consequences and implications by reference to the particular occupation of the person affected. For example, a professional footballer might not regard a suspension, even a lengthy one, as being particularly detrimental or damaging to career or reputation. On the other hand, an allegation of misconduct against a senior medical consultant, or, as in the instant case, a senior academic and lecturer, may well be a more serious matter. It is a simple fact of life that suspension for a person in one of the latter categories may be seen as altogether more damaging. At the opposite end of the spectrum, the Supreme Court found in Murtagh v. Board of Management of St. Emer's National School [1991] 1 I.R. 482 that the three day suspension of a pupil either by the Principal or by the Board of Management of a school did not amount to an adjudication on or determination of any rights, or the imposition of any liability.

Equally, the court will have to consider the manner and nature of the suspension. If the suspension is without pay and open-ended, it has obviously far more detrimental effects from the point of view of the person suspended and may more readily be seen as a punishment. Disciplinary procedures may also be found wanting if the person who is about to be suspended has not been fully informed as to the complaint against him and given an opportunity to respond to any proposed suspension. In the case of a second suspension, which is the situation contended for on behalf of the plaintiff in the instant case, the detrimental effects can only be seen as more marked, because such a suspension is more often than not likely to lead inexorably to the possibility of termination of employment, a factor I deemed to be of some importance in McNamara v. South Western Area Health Board [2001] ELR 317.

In Quirke v. Bord Luthchleas na hEireann [1980] I.R. 83 Barr J. emphasised the distinction between two types of suspension, punitive and holding, when stating as follows (at p. 87):-

"The suspension of a member by a body such as BLE or a trade union or professional association may take two different forms. On the one hand, it may be imposed as a holding operation, pending the investigation of the complaint. Such a suspension does not imply that there has been a finding of any misbehaviour or breach of rules by the suspended person, but merely that an allegation of some such impropriety or misconduct has been made against the member in question. On the other hand, a suspension may be imposed not as a holding operation pending the outcome of an inquiry, but as a penalty by way of punishment of a member who has been found guilty of misconduct or breach of rules. The importance of the distinction is that where a suspension is imposed by way of punishment, it follows that the body in question has found its member guilty of significant misconduct or breach of rules."

It follows obviously that where suspension constitutes a disciplinary sanction, the person affected should be afforded natural justice and fair procedures before the decision to suspend him or her is taken. However, where a person is suspended so that an enquiry can be undertaken as to whether disciplinary action should be taken against the person concerned, the rules of natural justice may not apply.

These were the findings of the Supreme Court in Deegan v. The Minister for Finance [2000] ELR 190, in which Keane C.J. stated as follows (at p. 198):-

"It is clear that the suspension of a person from their employment for a specified period because of irregularities or misconduct on his or her part can constitute a form of disciplinary action which would entitle the person affected to be afforded natural justice or fair procedures before the decision to suspend him or her is taken. The consequences of such suspension can be extremely serious for the person concerned, involving not merely their right to earn a livelihood but also their right to have their good name protected. In John v. Rees [1969] 2 All ER 274 at 305, Magarry J., in a passage cited by the learned High Court judge said:-

"… in essence a suspension is merely expulsion pro tanto. Each is penal, and each deprives the member concerned of the enjoyment of his rights of membership or office. Accordingly, in my judgment the rules of natural justice prima facie apply to any process of suspension in the same way that they apply to expulsion."

However, that was not a case in which the suspension was being imposed so that an inquiry could be undertaken as to whether disciplinary action should be taken against the person concerned and, if so, the nature of such a sanction.

That distinction was emphasised by Lord Denning MR in Lewis v. Heffer [1978] 3 All ER 354 a decision to which the attention of the learned High Court judge does not appear to have been drawn. Having cited the passage from the judgment of Magarry J., Lord Denning went on at p. 364:-

"These words apply, no doubt, to suspensions which are inflicted by way of punishment, as for instance when a member of the Bar is suspended from practice for six months, or when a solicitor is suspended from practice. But they do not apply to suspensions which are made, as a holding operation, pending enquiries. Very often irregularities are disclosed in a government department or in a business house; and a man may be suspended on full pay pending enquiries. Suspicion may rest on him; and so he is suspended until he is cleared of it. No one, so far as I know, has ever questioned such a suspension on the ground that it could not be done unless he is given notice of the charge and an opportunity of defending himself and so forth. The suspension in such a case is merely done by way of good administration. A situation has arisen in which something must be done at once. The work of the department or the office is being affected by rumours and suspicions. The others will not trust the man. In order to get back to proper work, the man is suspended. At that stage the rules of natural justice do not apply: see Furnell v. Whangarie High Schools Board [1973] 1 All ER 400.""

Obviously a person who is being suspended must be informed of the reason for his suspension (Flynn v. An Post [1987] I.R. 68). Flynn is also an authority for the proposition that a power of suspension must be construed as permitting a suspension to continue only for the period of time during which it would not be reasonably practicable to hold a full hearing into the matter. An open-ended suspension, particularly one without pay, can only be seen as a form of punishment, and a severe one at that. In contrast, a short period of suspension with pay against a clearly defined backdrop of consecutive steps to resolve the disciplinary issue is less likely to warrant the court's intervention on the basis that the procedures, or their application, is unfair to the person concerned.

The plaintiff in the instant case complains that his suspension is both unfair and prejudicial. In this context, "prejudicial" may be taken to include both the plaintiff's reputation and standing in the College community and also, and perhaps more importantly from the point of view of this application, his right to a fair hearing. It is an inescapable fact that the plaintiff coming before the Disciplinary Panel will carry with him the taint or degree of prejudice which inevitably arises from the fact that he has been charged and that the Senior Dean believes that the procedure is justified. However, it seems to me that the inevitable consequence of any suggestion that an employee who has been suspended is thereby, and without more, irredeemably prejudiced, and ipso facto cannot then get of a fair hearing, would mean that there could never be a holding suspension as one of the steps in a disciplinary process. That in turn would mean that an employer, possibly faced with a situation where work colleagues are the complainants in a given case, would have to suffer the prejudice instead. There could then be no action the employer could take, short of ignoring complaints of a serious nature or proceeding at once to the termination stage with all the risks and liabilities that might attach thereto.

In Furnell v. Whangarie High School Board [1973] AC 660, Lord Morris of Borth-y-Gest stated (at p. 679):-

"It has often being pointed out that the conceptions which are indicated when natural justice is invoked or referred to are not comprised within and are not to be confined within certain hard and fast and rigid rules: see the speeches in Wiseman v. Borneman [1971] AC 297. Natural justice is but fairness writ large and juridically. It has been described as 'fair play in action'. Nor is it a leaven to be associated only with judicial or quasi-judicial occasions."

Bearing in mind therefore that fairness in action is the court's guiding principle, the essential questions seem to me to be as follows:-

Were the defendants disciplinary procedures applied fairly having regard to:-

(i) the suspension and the manner of its imposition?

(ii) the delay, either in the preparation of the Senior Dean's report, or between its delivery in October, 2002 and the scheduled hearing by the Disciplinary Panel in December, 2002?

(iii) the possibility of prejudice to the plaintiff in any hearing before the Disciplinary Panel arising from the investigation or findings of the Senior Dean in his report?

DECISION

(1) The suspension

While Mr. McMenamin has urged the court to find as a fact that there were two suspensions of the plaintiff, I am quite satisfied that the only suspension which was imposed was that of 7^th October, 2002 in respect of the incident involving Dr. Newell.

It is of course true to say that the Senior Dean had recommended suspension of the plaintiff in respect of the February complaints for a period of three months without pay, together with a warning as to future behaviour, to the Board; however this was a sanction which could never have been imposed without the plaintiff's consent. The effective suspension, in the 'exceptional circumstances' found to exist by the Dean, was imposed on the 7^th October and was confirmed and adopted by the Board on the 24^th October 2002. What the Board did on that occasion was to effectively endorse the steps taken by the Senior Dean under par. 12 schedule III, chapter XII of the College Statutes on the 7^th October 2002.

It seems to me that the Senior Dean could reasonably form the view that the gravity of the behaviour complained of by Dr. Newell constituted "exceptional circumstances" within the meaning of par. 12, such as would justify immediate suspension. The plaintiff was well aware of the reason for the suspension, although it is true to say he was not provided with an opportunity of responding thereto because of the immediate nature of the suspension. However, within a very short period of time, the plaintiff declined to be interviewed about the incident and published for all to see within the College precincts a handwritten statement dated 8^th October 2002 which further inflamed matters but wherein he did not dispute the essential facts giving rise to the complaint by Dr. Newell. If there was therefore any want of due process, it was a shortcoming of no real importance on the facts of this particular case.

Professor Smyth's letter of the 7^th October 2002 to Dr. Morgan made it clear that Dr. Smyth thereafter intended taking steps to conduct a full and formal investigation of the complaint made by Dr. Newell in accordance with the college's disciplinary procedures applicable to academic staff. It was made clear therefore that the suspension was not an end in itself but rather a stage in a process. A parallel or converging process was also inevitable arising from the investigation and report into the February complaints and the plaintiff's refusal to accept or consent to the Dean's recommendation as to sanction. From my review of the papers I find no evidence of malice or ill-will in any of the Senior Dean's behaviour towards the plaintiff. On the contrary he had clear duties and obligations under the College statutes. In referring the complaints to the Disciplinary Panel he at all times, in my view, behaved with total propriety.

(2) Delay

Dr. Morgan's complaints in respect of delay are twofold. Firstly, he complains of the length of time the Senior Dean took to complete his report, which was only delivered to him on the 4^th October 2002.

A huge range of issues had been raised by Dr. Morgan in his complaints which essentially related to the administration of the English Department over a period of 25 years. I accept entirely the assertion by Professor Smyth that a huge amount of work was involved both in the investigation itself and thereafter in the preparation of a report. At the same time as performing these functions, Professor Smyth had his other duties within the Department of Microbiology to attend to, including the setting and marking of examinations in May, 2002. It was thus the end of July before he could complete his investigation and prepare a report. He was approached by Dr. Morgan in late July and asked when he could expect the report. Professor Smyth deposes at par. 19 of his original affidavit that he explained to Dr. Morgan that he hoped to have it finished shortly but that the draft would have to be read by the Staff Secretary before it could be finalised. The Staff Secretary was on holidays at the time and accordingly the draft was only completed in late August, following which Professor Smyth went on scheduled annual holiday. He returned in early September and went through the draft report with the Staff Secretary, making some necessary corrections and cross referencing to appendices. On the 23^rd of September 2002 Dr. Morgan wrote asking when the report would be ready. There followed an exchange of emails between Professor Smyth and Dr. Morgan. Dr. Morgan's email stated:-

"I well understand the claims on your time and also the work you have put into this report. I apologise if I have inadvertently caused more difficulty for you, but I had simply understood from our conversation in July that the report had already been submitted."

I accept the account furnished by Professor Smyth in his second affidavit that Dr. Morgan was in no way complaining about the length of time which the report took to complete, because he apparently believed he would be vindicated in the report. It was only when he discovered that the report concluded that a case had indeed been made out against him that he began to dispute the procedures and timetables involved.

In any event, as has been pointed out by counsel on behalf of the defendants, there is a provision in the college statutes whereby the decision of the Senior Dean to serve notice of a reference to a Disciplinary Panel may be extended after the expiration of the 30 working days from the date on which the Senior Dean received original notification of the offence. The decision of the Senior Dean to serve such notice after the expiry of the normal time limit is also reviewable by the Disciplinary Panel. It seems to me that the plaintiff's position could not be better protected in respect of any complaints of delay under this heading.

Nor could the plaintiff have been under any illusion or belief that he was being subjected to an open-ended suspension. On the contrary, he had been made aware that the disciplinary process was being set in motion and that a hearing by a Disciplinary Panel would follow. Also, he was being suspended on full pay.

The hearing was scheduled to take place on 11^th December 2002. While the Book of Evidence, which contained material relevant to the additional charges, was only served on the plaintiff some three days before the date of the proposed hearing, it is quite clear that the plaintiff would have secured an adjournment of the hearing had he so requested it. Instead of doing so, however, the plaintiff elected to bring injunction proceedings in the High Court.

Having regard to the additional offences with which the plaintiff is charged, arising out of his behaviour following his suspension, and having regard to the requirement to investigate these matters so as to provide a detailed book of evidence, it does not seem to me that the period of suspension between October and December, effectively two months, was excessive in the particular circumstances of this case, particularly when the plaintiff was and is on full pay throughout.

(3) The Senior Dean's Report

It is beyond dispute that the Senior Dean undertook a wide ranging investigation, both into complaints raised against Dr. Morgan and into complaints which Dr. Morgan himself raised about events going back over many years.

During the course of that investigation, Dr. Morgan was interviewed on two separate occasions, once while attended by a representative. He was fully aware of the matters under investigation and had every opportunity of presenting his account to the Senior Dean. Crucially, he retained the right of veto over any possible sanction which the Dean might regard as appropriate. Nothing in his conclusion or recommendations therefore amounts to a sanction and I am satisfied that the panoply of rights identified in Re Haughey [1971] I.R. p. 217 do not arise in those particular circumstances.

Secondly, in respect of Dr. Morgan's complaint that the possibility of a fair hearing by the Disciplinary Panel has been prejudiced or prejudged is one which I completely reject.

When this matter goes before the Disciplinary Panel it will be a completely de novo hearing. Not merely will it be a de novo hearing, but the burden or onus of proving guilt beyond reasonable doubt will fall on the Senior Dean. One of the functions of the third defendant will be to instruct the Panel that they must act only on the evidence before them. If any member of the Panel who survives the plaintiff's seven peremptory challenges and unlimited challenges for cause has heard anything of the plaintiff around the College, he will be instructed to put it out of his mind. A separate Book of Evidence constitutes the material which will form the basis of the case presented to the Disciplinary Panel. The Disciplinary Panel does not have regard to the report and findings of the Senior Dean. In the course of the hearing before the Disciplinary Panel, the plaintiff can, through counsel if he so desires, cross-examine witnesses, make submissions, give evidence himself and enjoy each and every right which the concept of natural justice requires in the context of any adjudication leading to possible sanction, particularly where proof beyond reasonable doubt is necessary.

I am therefore satisfied that all of the plaintiff's complaints of unfairness are unwarranted and without substance.

That being so, I am not satisfied that the plaintiff has made out an arguable case on the hearing of this application. I should also perhaps say something about where in my view the balance of convenience lies.

I believe that on this test the balance is firmly against granting an interlocutory injunction. The rights of the College in maintaining good order and the need of the College to protect the interests of the other staff members of the English Department must be placed in the balance along with the plaintiff's interests when considering this issue. The court has to take into account the fact that the plaintiff himself has widely disseminated his allegations against the Head of the English Department and his colleague Dr. Scattergood, in such a way and to such a degree to arouse considerable indignation from working colleagues in the English Department, as is apparent from the material put before the court. It seems to me that a quite unsatisfactory working atmosphere could be created in the English Department, possibly leading to other difficulties, if this suspension were to be lifted prior to the completion of the investigation and disciplinary process. I would accordingly also refuse relief on consideration of the balance of convenience test.

I accept the defendants case that the plaintiff's complaints in this instance are premature. It seems to me that all matters can be dealt with fully and adequately by the Disciplinary Panel who will come to this matter unfettered by the prior history with which this judgment is largely concerned. The College statutes and procedures are particularly well framed to ensure fairness at every stage.

Finally, and for the sake of completeness I should state that I do not believe that the defendants have caused the plaintiff 'irreparable damage' as alleged. He has been suspended on full pay pending the completion of the disciplinary process. The plaintiff appears to contemplate as damage that which might be suffered by him in the event of the Disciplinary Panel giving him an unfair hearing. However, there is absolutely nothing in his affidavit to suggest there is any basis whatsoever for believing that such an unfair hearing would arise, and the plaintiff himself expressly eschews any criticism of the third defendant.

For all these reasons I refuse to grant the interlocutory injunction sought in this case.