High Court of Ireland Decisions

 
THE HIGH COURT

[2005] IEHC 1

RECORD No. 2004/18786/P

BETWEEN

JOHN CARROLL

PLAINTIFF

AND BUS ATHA CLIATH/DUBLIN BUS

DEFENDANT

JUDGMENT of Mr. Justice Clarke delivered 27^th January, 2005.

In this matter the plaintiff seeks interlocutory orders requiring in substance:-

1. the payment of salary;

2. an order which would require that he be permitted to return to work; and

3. orders connected with a dismissal process.

The plaintiff is employed as a member of the regular staff of the defendant as a bus driver. The terms of his employment are set out in a letter dated 17^th October, 1995. There has been a history of conflict between the plaintiff and his employer for a number of years. It is not possible to resolve any issues concerning responsibility for that conflict at this interlocutory stage. Suffice it to say that the evidence and submissions tendered on behalf of both parties can lead only to the conclusion that there is a very significant lack of trust on both sides. In the course of the hearing before me allegations of a lack of good faith in relation to the way in which both sides have approached the various disciplinary and other matters which give rise to these proceedings were made.

The specific facts that are relevant to the issues which I have to decide commence in March 2001 when the plaintiff was involved in a road traffic accident and suffered injuries to his lower spine. He returned to work during the following year in circumstances where, he deposes, he was given a bus route which allowed him to get out of his seat regularly as opposed to sitting in the driver's seat for significant continuous periods as would be normal. In the course of his work in November of 2002 he claims that he suffered an injury as a result of a seat in the bus which he was driving. That injury is the subject of separate proceedings and it would therefore, be wholly inappropriate for me to comment on it in anyway.

As a result of that injury the plaintiff has been on sick leave since the 10^th December, 2002 to date. In August 2003 the plaintiff was examined by his General Practitioner Dr. Neasa McDonagh who is also a C.I.E. panel doctor. Dr. McDonagh's view at that stage was to recommend that the plaintiff could return to work but that he would be facilitated by a route that would allow him frequent breaks to stretch out his back and suggested the "Air Link" route. There has followed since that time a protracted series of representations and responses at the end of which the position of the employer is that no suitable route is available for the plaintiff which would allow him to return to work on the terms suggested initially by Dr. McDonagh and confirmed by the Chief Medical Officer of the defendant Dr. Whelan.

A great deal of affidavit evidence was placed before the court describing the positions adopted from time to time by both parties and setting out the views of both parties as to the sort of routes which, it is contended, may have been made available from time to time as a means of facilitating the return to work of bus drivers who may have been injured or otherwise unfit in one way or another. It does not seem to me to be possible to resolve those issues at an interlocutory stage. It is possible that some of the apparent conflicts of evidence may be explained by the fact that different types of route may be appropriate to drivers whose rehabilitation is necessitated by different types of initial unfitness.

In the course of the hearing I was referred by counsel for the defendant to a decision of Groarke J. in the Circuit Court in Rogers v. Dublin Corporation which is noted in the employment law report at p. 59. In that case Groarke J. determined that an employer is not under any legal obligation to seek alternative work for an employee who is no longer medically fit to perform the duties for which he was originally employed. Subject to two caveats I would agreed fully with that proposition. The first caveat concerns the materiality of the difference between the work which an employee may now be able to do compared with the work for which he was employed. In the absence of a specific contractual term it seems to me that the term which would normally be implied into a contract of employment is to the effect that the employee must be reasonably fit to carry out the duties for which he was employed. An overly narrow or technical objection to his ability to carry out such duties might well, therefore, not entitle an employer to treat the employee as being unfit for the duties for which he was employed.

The second caveat concerns express terms in the contract of employment. As I understand the judgment of Groarke J. the contract of employment in that case did not contain any relevant express terms. What was determined, therefore, by the Court was that no term would ordinarily be implied into a contract of employment to the effect that an employer would be under an obligation to make light work available. Such a position could, of course, be displaced by the existence of an express term, or perhaps a well established custom and practice amounting to a term of the contract.

There is no evidence of an express term in the contract of employment concerning light work. There is conflicting evidence concerning custom and practice. However the difficulty with making an order which would require that the defendant permit the plaintiff to return to work is the clear and unresolved dispute as to whether there are, in fact, duties suitable for the plaintiff's particular physical requirements which are available within the rosters of the defendant. In this context regard also has to be had to the fact that there is in existence between the defendant and the trade unions representatives of bus drivers concerning the manner in which any available routes which would facilitate a return to work will be allocated. There have been cases in which the Courts have ordered a return to active work where an employee is not receiving pay, and also has satisfied the court that he has made out a fair issue to be tried as to the circumstances in which he is no longer employed. Shortt v. Data Packaging Limited [1994] E.L.R. 251. However it seems to me a serious difficulty arises in any case where there is a real dispute between the parties which is not capable of being resolved at the interlocutory stage as to whether there are duties for the plaintiff to carry out or what those duties might be. It would be virtually impossible for a court to direct that someone has to return to duties in those circumstances.

I am not, therefore, persuaded that it is appropriate for the court in this case to make any order that would require that the plaintiff to return to active duties. If, at the trial of the action, the plaintiff can persuade the court that:-

(a) there is a sufficiently established custom and practice within the defendant so as to give rise to a term in his contract of employment that he would be facilitated with appropriate work to enable him to be reintegrated into the workforce; and

(b) that in all the circumstances of the case the refusal by the defendant to facilitate him in such a way is a breach of contract,

then he may well be entitled to succeed. However to make such an order at this stage would require the court to impose upon an employer an obligation to permit an employee to recommence duties in circumstances where it is at least arguable that no appropriate duties exist and where, on the facts of this case, there may be further knock on difficulties in relation to the arrangements entered into between the employer and trade unions representative of many of the workforce. In those circumstances it does not appear to me that the balance of convenience could favour permitting the plaintiff to return to work at this stage.

It seems to me that it necessarily follows that the plaintiff is not entitled to an order requiring the defendant, on an interlocutory basis, to return him to the payroll. It is common case that he ceased being paid in circumstances where he had gone on sick leave and the period during which he was entitled, as a matter of contract, to sick pay had expired. His lack of pay is not, therefore, as a result of any disciplinary process. The only basis upon which he can argue that he is entitled be paid is the same basis upon which he argues that he is entitled to return to work. In those circumstances it does not appear to me to be appropriate to grant interlocutory relief in relation to pay. However given that the plaintiff has been without pay for a significant period of time it does seem to me that the full trial of the issues concerning his entitlement to return to work on the basis for which he contends should be expedited and I will hear the parties in due course as to appropriate measures which should be put in place to ensure that occurs.

THE DISCIPLINARY PROCESS

The final matter in respect of which the plaintiff seeks interlocutory relief concerns a disciplinary process that has been put in place by the defendant. It seems to me that a court should be reluctant to intervene, and in particular to intervene at an interlocutory stage, in an as yet incomplete disciplinary process. To do so would be to invite a situation where recourse might well be had to the courts at many stages in the course of what would otherwise be a relatively straightforward and expeditious set of disciplinary procedures.

There may, however, be exceptions to that general rule. Where an employer has, in clear and unequivocal terms, indicated that procedures will be followed which would be manifestly unfair there may be circumstances where it is appropriate for the court to intervene at that stage. This will be so, in particular, in cases where the degree of prejudice which the employee concerned would suffer in the event of an adverse finding at the particular stage in the process in respect of which complaint is made would be great and unlikely to be substantially reversed by a finding of a court made after the process had come to an end.

There are a number of aspects of the plaintiff's contentions under this heading which I consider to be at the very least arguable.

The complaints which give rise to the disciplinary process are set out in a letter of 29^th July, 2004 from the Operations Manager of the defendant to the plaintiff. Two complaints are referred to. They may be summarised as follows:-

1. The plaintiff is alleged to have been involved in various representative capacities on behalf of fellow employees at a time when he has been certified as medically unfit to work. In that context it should be noted that the plaintiff is an activist in the Independent Workers Union. Indeed his contention is that it is his involvement in that union and activities carried out by him on their behalf which has led to what he suggests is a campaign against him by the defendant. For the reasons set out above that is not an issue upon which it is possible to reach any conclusions at this stage.

2. It is alleged that the plaintiff was involved in a protest which could have had the effect of damaging the good name and reputation of the company. Further under this heading it is contended that the plaintiff may have been responsible for distributing information concerning the company including the use of the company's name without its permission, which amounts to a breach either of the company's rule book in respect of divulging information concerning the company's domestic affairs and/or in breach of s. 22 of the Transport (Regulations of Coras Iompair Eireann) Act, 1986 which prohibits the disclosure of confidential information.

I consider the plaintiff's contentions in respect of both of these items in turn.

1. The plaintiff contends that the complaint under this heading is, in substance, irrational having regard to the position which he has adopted in relation to his fitness for return to work and which is fully set out above. To prevent an employer from even embarking on a disciplinary hearing would require the court to be satisfied that the employer had made out no arguable case that a disciplinary hearing was justified. It may very well be, as the plaintiff suggests, that an employer would find it difficult to justify an absolute rule that a person who was unfit for work could not engage in representative activities or otherwise be involved in any of the processes of the employer while remaining certified unfit for work. To adopt such a rule in an inflexible way would have the potential to create irrational results. This case is, potentially, a very good example. There is no suggestion but that the plaintiff is fit to return to significant duties as a bus driver. The only contention between the parties concerns the fact that he would need, in the initial stages of return at least, somewhat lighter duties than full compliance with his terms of employment would require. In those circumstances it is, frankly, difficult to see how a rule which would preclude him from engaging in activities which are not incompatible with the circumstances which have led him to be certified sick makes sense. However it should not be assumed, at this stage, that the employer will necessarily come to an impermissible conclusion having regard to all the circumstances that might be properly put before a disciplinary hearing. Although it therefore seems unlikely that an employer in those circumstances could reasonably come to the conclusion that a breach occurred, there does remain a possibility, depending on the evidence and materials which would be put before a disciplinary hearing, that a different conclusion might be reached and I do not, therefore, propose making an order on this ground.

2. Under this heading the principal complaint of the plaintiff concerns a failure to specify with any precision what information it is contended was wrongfully disclosed. In that context it should be noted that the plaintiff's solicitors wrote to the defendant on 4^th August, 2004 which letter, amongst other things, sought details of the allegations and also sought the furnishing of certain documents. In the course of the hearing attention was drawn to the provisions in the defendants disciplinary procedures which seem to indicate that any documentation relevant to a disciplinary hearing would be supplied on the convening of the hearing and that, if necessary, an adjournment would be granted if it were appropriate in all the circumstances of the case. While this latter point may amount to a somewhat unusual procedure (in that an employee will find himself attending a disciplinary hearing without having relevant materials) having regard to the possibility of an adjournment (which the court should not assume would wrongfully be withheld) and the provisions of the disciplinary rules I am not prepared to hold that there is an arguable case that this aspect of the plaintiff's claim is made out. However different considerations seem to me to apply to the request for particulars. It is, as the plaintiff's solicitors pointed out in the above letter, a basic tenet of the rules of fair procedure that a person should not be required to embark upon a process affecting their rights (which a disciplinary hearing which may give rise to removal from employment clearly is) without having at least a reasonable account of the complaint which they are asked to answer. It is important in this context to note that the hearing concerned is a formal disciplinary hearing which has the power, subject to appeal, to dismiss. It is not a preliminary investigation to determine whether formal disciplinary procedures will be applied in relation to which other considerations would apply. In those circumstances I am satisfied that it is more than arguable that a company in the position of the defendant here is obliged to supply any reasonable details of a complaint prior to commencing the disciplinary process. If further details are requested they cannot be unreasonably withheld. I am satisfied that the plaintiff has made out a fair case to be tried in relation to the inadequacy of the detail with which the complaint under this heading is set out in the letter of 29^th July. The substance of the complaint concerns the disclosure of information which is advised to be either confidential or concerns the company's domestic affairs. Before embarking on the process it is, at the least arguable, that the plaintiff was entitled to be provided with details as to the information which the defendant contended came within those categories and was, therefore, wrongfully disclosed. In the events that happened the plaintiff attended for an initial hearing which appears to have been adjourned because he was accompanied by a Mr. French. Objection was taken to the presence of Mr. French because he too was certified sick. The comments which I have made above in respect of that matter apply with even greater force to the situation which applies where an employee wishes to have available to him a witness who may be material to the issues to be considered at a disciplinary hearing. There are very many circumstances in which a person may be fit to give evidence but not fit to attend work. To deprive an employee of a relevant witness simply because the witness was certified sick would amount to a prima facie breach of the rules of fair procedure unless, at a minimum, there was evidence from which it might be inferred that the nature of the illness or disability giving rise to the certification of sickness was inconsistent with the ability of the individual concerned to attend as a witness.

While contentions were made in the course of the hearing that it was the defendant's view that Mr. French was to attend as a representative of the plaintiff it is clear from the evidence that the defendant company's own internal documentation disclosed a belief on the part of the relevant officials that Mr. French was intended to be a witness. Because of Mr. French's presence the matter was adjourned and on the adjourned date the plaintiff did not attend. The disciplinary hearing resulted in a finding that he be dismissed from which he has appealed.

In all those circumstances it seems to me that the plaintiff has made out an arguable case and that the balance of convenience favours ensuring, at this stage, that the disciplinary appeal hearing is conducted in accordance with the principles of natural justice. In the circumstances I am prepared to grant the plaintiff an interlocutory injunction restraining the defendants from holding such an appeal hearing unless and until they have:-

(a) provided the detailed particulars of the allegations contained in paragraph 2 of the letter of the 29^th July, 2004 which were requested by the plaintiff's solicitors. For the avoidance of doubt the documents requested need not be supplied; and

(b) any witness whom the plaintiff wishes to attend and whom it may be possible has relevant evidence to give should be permitted to attend unless such witness is certified sick on grounds which would be inconsistent with his ability to attend as a witness.

THE COMPOSITION OF THE DISCIPLINARY BOARD

The final significant area of complaint on the part of the plaintiff concerns the composition of the Appeals Board to which he has appealed.

Under the defendant's disciplinary rules that board is specified as consisting of an independent chairman together with a company nominee and what is described as a trade union nominee. I was informed at the hearing that the position of independent chairman is conferred from time to time on a named individual. The difficulty appears to have arisen in respect of a trade union nominee in the following circumstances. The evidence discloses that the defendant recognises only two trade unions in respect of each grade of employee. The union of which the plaintiff is a member is not one of the recognised unions in respect of his grade. In those circumstances the defendant wrote to the plaintiff asking him which of the two recognised trade unions in respect of his grade could make the appropriate nomination. In the absence of a reply the defendant determined that the hearing should go ahead before a senior official of the company. While the plaintiff makes complaint about the impartiality of that individual it would be wrong of me to express any view at this stage on that question. However it does seem that the plaintiff is, prima facie, entitled to an appeal board constituted in accordance with the defendant's disciplinary rules. At the hearing it was indicated on behalf of the plaintiff that had he been aware that the consequence of not complying with the request to nominate one of the two relevant trade unions would be that an appeal board consisting solely of a senior official of the company would have heard his case, he might well have acted differently. Furthermore there was some indication on the part of the defendant company that a nominee of other trade unions who while not representative of the grade in which the plaintiff is employed are nonetheless recognised by the company might be acceptable.

In the light of those recent developments it does not appear to me to be appropriate to make any order under this heading at this stage. However I would indicate that the plaintiff does appear, under contract, to be entitled to a three person board including a trade union representative. Unless I was satisfied that all reasonable possibilities for empanelling such a board had been exhausted it is likely that I would be prepared to make an order precluding the conduct of the disciplinary hearing until it was properly constituted. As the plaintiff is at least to some extent himself responsible for that situation by virtue of having failed to respond to the request I do not believe it appropriate to make an order under that heading at this stage. I will however, give, liberty to apply in the event that an attempt to find an appropriate trade union who would then be able to nominate a member to the appeal board fails.

Approved: Clarke J