High Court of Ireland Decisions

Neutral Citation No: [2005] IEHC 278

THE HIGH COURT

[2004 No. 18786 P]

BETWEEN

JOHN CARROLL

PLAINTIFF

AND

BUS ATHA CLIATH-DUBLIN BUS

DEFENDANT

JUDGMENT of Mr. Justice Clarke delivered 4^th August, 2005.

1. Introduction
1. .1 The plaintiff ("Mr. Carroll") has been employed by the defendant ("Dublin Bus") as a bus driver since 1984. There are two substantive issues in this case. Mr. Carroll is currently out sick in disputed circumstances which give rise to the first of the issues. As a result of the length of time during which he has been out sick he is no longer receiving any form of pay. Furthermore Mr. Carroll is the subject of a purported decision to dismiss him which dismissal was notified by letter of 10^th October, 2004. That purported dismissal is the other issue in these proceedings.
1. .2 Therefore the relief claimed by Mr. Carroll falls under two headings:-

(a) In circumstances which it will be necessary to analyse in significantly more detail, Mr. Carroll claims that as and from the 22^nd August, 2003 (being the date of a certificate from his general practitioner Dr. Neasa McDonagh to the effect that he was fit for work subject to certain limitations) he ought to have been allowed resume work on what are called "rehabilitative routes" subject to those limitations and should have been, from that date, therefore, in receipt of wages. A variety of reliefs arising out of that assertion are claimed. ("the rehabilitation issue")

(b) Declaratory relief is sought to the effect that the purported dismissal referred to above was a nullity together with related reliefs and certain reliefs concerning the conduct of an appeal against the decision to dismiss. ("the disciplinary issue")

1. .3 Furthermore, it should be noted that an underlying aspect of both of the above matters is an allegation by Mr. Carroll that Dublin Bus was motivated by malice. This is a matter to which I will return towards the end of this judgment.
1. .4 Finally Mr. Carroll claims damages for personal injuries arising out of depression and stress which he claims flow from the above circumstances.
2. The Interlocutory Application

This matter has already been before me as an application for interlocutory relief. As appears from the judgment then delivered (Carroll v. Bus Atha Cliath-Dublin Bus (Unreported, High Court, Clarke J., 27^th January, 2005)) Mr. Carroll then sought the payment of salary, an order which would require that he be permitted to return to work and orders connected with the dismissal process.

3. The Rehabilitation Issue
3. .1 In relation to the rehabilitation issue at the interlocutory stage and having referred to the decision of Groarke J. in Rodgers v. Dublin Corporation I indicated 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 conditions:-

. that the difference between the work which the employee concerned is now able to do compared with the work for which he was employed must be material so that 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; and

. while 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.

3. .2 As I pointed out in the judgment at the interlocutory stage there was no evidence of a relevant express term in Mr. Carroll's contract. That continues to be the position after the full plenary hearing. As I further pointed out at the interlocutory stage there was conflicting evidence as to the existence of custom and practice amounting to a contractual term. I have now had the opportunity of hearing detailed oral evidence concerning the position. Under this heading the issues appear, therefore, to be the following:-

. Is there a term in Mr. Carroll's contract of employment (on the basis of a sufficiently well established custom and practice) to the effect that he is entitled, in certain circumstances, to be given rehabilitative work;

. In the event that there is, what are the precise obligations of Dublin Bus to Mr. Carroll under such term;

. Are Dublin Bus in breach of any such obligations; and

. If they are, what relief is Mr. Carroll entitled to.

I deal with each in turn.

4. The Contract
4. .1 There can be little doubt on the evidence that Dublin Bus has, for some time, taken the entirely appropriate step of making what might loosely be called rehabilitative duties available to employees. The precise parameters of any such duties and the entitlement of employees to avail of them are, however, a matter of controversy. In that regard I had the benefit of the evidence of a Mr. John O'Hanlon who was a member of a joint working party on the subject of what were called "rehabilitated duties" in Dublin Bus depots. That working party consisted of representatives of the two recognised trade unions (SIPTU and NBRU) and of Dublin Bus. The working party reported on the 1^st June, 1994. It is clear from the evidence of Mr. O'Hanlon and, also by inference from the report of the joint working party, that the principal focus of concern of that working party was the question of abuse of the then existing system. Some aspects of the report are worth noting.
4. .2 Firstly the report draws attention to the fact that the relevant national agreement (that is the relevant agreement between employers and the unions representative of workers within CIE) provides as follows:-

"Vacancies on the Aer Lingus service (Dublin City services) are not advertised and the filling of such vacancies is not covered by clause 20. Vacancies on the Aer Lingus service are filled following consultation between the Staff Relations Manager and the Chief Medical Officer, and the position is kept under review to ensure that only the most deserving cases are placed on this route as a first step towards resettlement". The route referred to is now commonly called the "Airlink" route. It seems clear on the evidence that Airlink is the only route in respect of which a formally recorded agreement exists. In substance the clause of the national agreement referred to above provides that the ordinary allocation procedures applicable within Dublin Bus do not apply to the Airlink route.

However it is clear from its report that the joint working party was concerned not only with the Airlink route but also with other routes. This is clear from two portions of the report. Firstly in its very last lines the report refers to an appeals board which could decide what duty a driver would be accommodated with "(including Aer Lingus)". It is therefore clear that the report was concerned with routes beyond the Airlink route.

Secondly it was clear from the totality of the evidence that a driver being assigned to the Airlink route was required to move depot to Summerhill from where Airlink operated. It is clear from the report of the joint working party that it was concerned not only with such arrangements but also arrangements entered into at local level which would necessarily have involved drivers being accommodated within their own depot and, thus, not necessarily with an Airlink route.

4. .3 On that basis, and on the basis of the totality of the evidence, I am satisfied that there was an established custom and practice within Dublin Bus amounting to a term of each employee's contract that there would, at least in certain circumstances, be the possibility of an employee who was not fit for all of the duties of his grade being accommodated with a rehabilitative route. That begs the question as to the precise circumstances in which any such entitlement might arise to which I now turn.
5. Entitlement to Rehabilitative Duties
5. .1 In this context it is necessary to refer to a number of routes which appear to exist in each bus depot and which are referred to as "universals" and "bogeys". These routes form part of the ordinary rostering which it is necessary to put in place to cover the routes which Dublin Bus needs to provide for its customers. The relevance of such routes to the issues with which I am concerned is that they involve, typically, a lengthy break in the middle of the roster or other circumstances which might be regarded as placing drivers with particular difficulties in less stressful circumstances. Insofar as universals are concerned such routes are less predictable in that the purpose of having such routes available is, frequently, to provide cover for unforeseen difficulties such as breakdowns and the like. At a more general level the overall purpose of all such routes is to provide additional services at peak times. The reason why such routes are potentially relevant for rehabilitative purposes with particular reference to Mr. Carroll is that they do provide a relatively lengthy break in the middle of the day.

It was also clear from Mr. O'Hanlon's evidence that a full list of all such universal and bogey routes as were operating at the time of the 1994 joint working party was available to that working party. Indeed part of the concern which that working party was established to address was that certain employees, having been assigned, for genuine rehabilitative purposes, universal or bogey duties had remained on those duties far beyond the time when such duties were required for rehabilitation. Furthermore it was the case that it would appear that certain drivers having been assigned duties for rehabilitative purposes were, contrary to the rehabilitative nature of the duties concerned, working overtime. It is, however, clear that all such duties were considered to be potential rehabilitative routes.

5. .2 In that context it is finally necessary to refer to a statement issued by Dublin Bus on the 7^th August, 2003 which drew attention to the fact that the only formally agreed rehabilitative route was the Airlink route. In substance, however, I am satisfied that that statement merely confirmed the factual position, as noted in the report of the joint working party, that the only route that was the subject of a written agreement concerning its rehabilitative status was the Airlink route. Given that I am satisfied, for the reasons indicated above, that universal and bogey routes were established by custom and practice to be rehabilitative routes it does not seem to me that that statement amounts to a revocation of that position. It should also be noted that the original replying affidavit filed on behalf of Dublin Bus in this case is, at a minimum, bald on this topic.
5. .3 It was accepted by Mr. Carroll in evidence that a driver did not have an entitlement, as a right, to be put on a rehabilitative route. In this he was undoubtedly correct.
5. .4 It is clear that the Chief Medical Officer of the CIE Group played a central role in such matters. Apart altogether from the evidence concerning his involvement with Mr. Carroll's case it is clear from the report of the joint working party that, so far as the medical side of any relevant issue was concerned, the Chief Medical Officer's view was final. It seems clear, therefore, that any entitlement of a driver to be considered for a rehabilitative route was dependent upon a recommendation to that effect being given by the Chief Medical Officer.
5. .5 Secondly it is clear that Dublin Bus was under no obligation to make additional rehabilitative routes available so that the entitlement of a driver was to be considered for any such route if a suitable route was available.
5. .6 In substance I am therefore satisfied that a driver was entitled, as a matter of contract, to be assigned a rehabilitative route subject to the following conditions:-

. That the Chief Medical Officer had recommended that the driver concerned was suitable for such route;

. That there was such a route available; and

. That there was no other good reason why the driver should not be assigned such route.

5. .7 Finally I am satisfied that the driver concerned had an entitlement to be assigned such route but only for a reasonable period to enable rehabilitation. Such period was, in substance, to be a matter for the Chief Medical Officer. The period might be specified in advance. Alternatively the case might be subject to review by the Chief Medical Officer after a defined period.
6. Application to Mr. Carroll's Case
6. .1 Mr. Carroll has suffered from difficulties in relation to his back for some time. He has also, at certain periods, suffered from a groin difficulty.

While an amount of evidence was led by Dublin Bus concerning the fact that Mr. Carroll suffered, from time to time, from other difficulties (and in particular difficulties with his digestion) it does not appear to me that there is any evidence that suggests that those additional matters had or have any impact on his ability to carry out his duties. Furthermore, insofar as there was evidence that Mr. Carroll suffered, at times, from depression or allied conditions, same appears to derive from the difficulties with his employment which are the subject of these proceedings and those conditions do not, on the medical evidence, amount to any independent basis for regarding Mr. Carroll as unfit for work.

6. .2 Therefore in substance the only issues which have impacted upon Mr. Carroll's fitness or otherwise for work were his problems relating to his back and his groin.

It is necessary at this stage to refer to the fact that Mr. Carroll, in conjunction with a significant number of other drivers, has commenced proceedings against Dublin Bus arising out of a contention that Dublin Bus drivers have been negligently exposed to injurious levels of "whole body vibration". Those proceedings are ongoing. I was given the pleadings in a case of McDonnell v. Dublin Bus-Bus Atha Cliath (Record No. 2003/15255P) which, I am informed, is the test case and which is preceding first. While the parties, quite properly, did not embark on any detailed consideration of those proceedings in the case before me and while I have, therefore, no basis for forming any view as to the likelihood or otherwise of the plaintiffs generally, or Mr. Carroll in particular, succeeding in those proceedings, I should equally state that I have no evidence to suggest that the proceedings are not bona fide brought on the basis of there being available expert evidence to support the plaintiffs' claims. It may well, of course, be that the expert evidence which is available will fail to persuade a court at trial. Doubtless there may well be contrary expert evidence from Dublin Bus. For the purposes of this case it is only necessary to note that I must assume that Mr. Carroll is involved in bringing bona fide proceedings which may or may not ultimately turn out to be successful.

In any event, Mr. Carroll had previously had certain difficulties with his back which led to him being out of work. On the occasion in question it is common case that he was facilitated by a rehabilitative duty to enable him to return to work and did so.

6. .3 The circumstances which lead to these proceedings commence in November 2002 when, it would appear, Mr. Carroll suffered or became aware of an injury to his back as a result of which he was off sick, intermittently, for periods and saw the Chief Medical Officer from time to time. He was permanently off sick from April 2003.On the 6^th June, 2003 Mr. Carroll was seen by the Chief Medical Officer who, at that time, took the view that it would be "a further two to three weeks before he will be in a position to resume". The Chief Medical Officer indicated that it would be in order for Mr. Carroll to resume on the basis of a certificate from his own general practitioner. As I have indicated, at that time, Mr. Carroll had been continuously out of work since April of that year but, by virtue of his previous absences, had used up his entitlement to sick pay and had reached a stage where he was not entitled to any payment from Dublin Bus. On 22^nd August, 2003 Mr. Carroll saw his general practitioner, Dr. Neasa McDonagh, who is also a CIE panel doctor. In evidence Dr. McDonagh indicated that, at that time, there was no medical reason why Mr. Carroll could not go back to work in the sense that his back pain was not a progressive neurological condition. She therefore indicated that at no point was Mr. Carroll unfit to work in the sense that by working he would cause further damage to himself. She indicated that his problem related to driving causing symptom flare up. What was, in her view, necessary was a period of rehabilitative work which would allow Mr. Carroll to regain confidence by keeping his symptoms under control. While she did indicate that it might prove, ultimately, impossible for Mr. Carroll to return to full duties she was of the view that he was entitled to a chance to try and that even if the attempt failed it would not cause him any physical harm. The report of the 22^nd August from Dr. McDonagh states the following:-

"On balance I recommending that John return to work at this point in time but feel that he be facilitated by a route that would allow him frequent breaks to stretch out his back and that would involve reasonably short trips. I am reliably informed that the "Airlink route" is a designated for Dublin Bus drivers who need rehabilitation and I feel that John could be a good candidate for such route although obviously I leave this to your discretion". That report was sent to the Chief Medical Officer.

6. .4 The Chief Medical Officer considered the application for a recommendation in favour of the Airlink route. I am satisfied on the basis of the evidence of the Chief Medical Officer that, at least in his time, a policy has been adopted that recommendations in respect of the Airlink route are only given in cases where there is objective medical evidence. I am satisfied that, therefore, the Chief Medical Officer, for an appropriate reason, did not feel able to recommend Mr. Carroll for the Airlink route. While Mr. Carroll gave evidence to the effect that the Chief Medical Officer had informed him, at certain times, that he was to be recommended for the Airlink route I am satisfied that he was not so informed. However I have come to the view that Mr. Carroll genuinely believed that he had been so informed and was not therefore, in anyway, attempting to mislead the court. I am satisfied that Mr. Carroll was significantly affected by a frustration in his dealings, over this period, with Dublin Bus concerning his return to work and that this frustration has, understandably, somewhat coloured his precise recollection of certain events. The extent to which that frustration may be due to actions on the part of Dublin Bus is a matter to which I will necessarily return later in the course of this judgment.
6. .5 In any event Mr. Carroll continued to attempt to pursue a return to work and attended a variety of medical appointments both with Dr. McDonagh and the Chief Medical Officer. In May 2004 Dr. McDonagh issued a medical certificate to the following effect:-

"Anxious to return to work no medical reason not to return to work but realistically it would be ideal to return to the "rehab route" to assess any flare up of symptoms." Arising, I am satisfied, from the frustrations to which I have referred, Mr. Carroll encountered a difficulty at his next appointment with the Chief Medical Officer leading to the appointment, in substance, being postponed until 27^th July, 2004. In his report on that meeting the Chief Medical Officer says the following:-

"In order therefore to facilitate a compromise between both of these opposing views the Chief Medical Officer has in the recent past recommended that Mr. Carroll would be in a position to resume bus driving duties if he could be provided with bogey or universal duties which would provide for a prolonged break in the middle of his working day to facilitate exercise and stretching. Again it is the Chief Medical Officer's understanding that such duty is not available to Mr. Carroll".

6. .6 It is clear, therefore, that from approximately June of 2004, both the Chief Medical Officer and Dr. McDonagh were of the view that Mr. Carroll was fit for universal or bogey duties. The reason why he was not facilitated with such duties is, therefore, the next issue to which I must turn.
7. The Reasons given for not facilitating Mr. Carroll
7. .1 It is clear that significant correspondence passed between the Chief Medical Officer and Mr. Martin Duggan, the Divisional Manager of Dublin Bus at Conyngham Road. It is clear from Mr. Duggan's letter to Mr. Carroll of 21^st July, 2004 that "the Chief Medical Officer is the final arbiter of an employee's fitness or otherwise to work". In the correspondence passing between Mr. Duggan and the Chief Medical Officer it was, at all material times, made clear by the Chief Medical Officer that he did not consider Mr. Carroll to be fit for the full duties of his grade. However it was equally made by the Chief Medical Officer, at all times, that he considered Mr. Carroll to be fit for universal or bogey duties. Mr. Duggan's position, as he made clear in the course of his evidence (transcript day 4, questions 375 and subsequent questions), was that, in his view, the Chief Medical Officer had certified Mr. Carroll for rehabilitative duties that were not available.
7. .2 The reason why Mr. Duggan believed that such duties were not available was that, in his view, it would not be possible for Mr. Carroll to carry out the stretching that had been recommended by the Chief Medical Officer without leaving the cab. However it is manifestly clear from the evidence of the Chief Medical Office (transcript day 4 questions 567 and the following questions) that the stretching concerned could be carried out during a natural break which occurs at the end of each journey. It was common case, and accepted by Mr. Duggan, that at the end of each journey a driver has to carry out certain duties such as changing the scroll and checking that there is not lost property. On re-examination (question 630 and the following questions) the Chief Medical Officer made it clear that, in his view, Mr. Duggan was wrong in the view which Mr. Duggan took as to the inability of Mr. Carroll to conduct the stretching exercises which he (the Chief Medical Officer) considered necessary.
7. .3 It is therefore absolutely clear that the reason given by Mr. Duggan for forming the view that there were no routes available which would have met the Chief Medical Officer's requirements, was simply incorrect and betrayed a misunderstanding of what was being recommended by the Chief Medical Officer. It is equally clear that had anyone taken the simple opportunity to ask the Chief Medical Officer the appropriate questions (as were put to him in a very brief period of time in the witness box) that matter would have become clear.
7. .4 I cannot leave this aspect of the case without commenting on the evidence given on the following day by Mr. Michael Matthews. He is the Operations Manager for Dublin Bus. In the course of his evidence he suggested that the real decision maker in relation to the determination that Mr. Carroll was not suitable for universal or bogey routes was himself rather than Mr. Duggan. He indicated that while the relevant correspondence which passed between Dublin Bus and others (such as the Chief Medical Officer, Mr. Carroll, and Mr. Carroll's Solicitors) was written by Mr. Duggan, he (Mr. Matthews) was directing such correspondence. I have to say that I found that evidence surprising in the light of the fact that there had been no mention whatsoever of such being the case in the course of Mr. Duggan's evidence. Furthermore Mr. Matthews' evidence was given on the morning following the emergence, towards the end of the previous afternoon, of evidence which confirmed that, in the view of the Chief Medical Officer, Mr. Duggan had misinterpreted his (the Chief Medical Officer's) views.
7. .5 I am not satisfied that the relevant decisions were taken by any person other than Mr. Duggan. I am therefore satisfied that the reason why Mr. Carroll was not afforded universal or bogey duties was because of a misinterpretation by Mr. Duggan of what was being specified by the Chief Medical Officer. No other reason (good or bad) was suggested by Mr. Duggan for declining to afford Mr. Carroll universal or bogey duties. In the circumstances I must conclude that Mr. Duggan wrongfully failed to afford Mr. Carroll universal or bogey duties.
7. .6 Having come to the view that there was a proper basis for declining Mr. Carroll a rostering on the Airlink route it seems to me that the wrongful failure to put him on rehabilitative duties necessarily stems from June 2004. I come to that view on the basis of the content of the report of the Chief Medical Officer of 27^th July, 2004 which indicated that he had "in the recent past" recommended Mr. Carroll for universal or bogey duties.
7. .7 In conclusion, in relation to the facts on this aspect of the case, I am satisfied that the reason given by the relevant deciding official within Dublin Bus (i.e. Mr. Duggan) for not acceding to the Chief Medical Officer's recommendation was unsustainable and, therefore, invalid and in breach of contract. On that basis I am satisfied that Mr. Carroll was wrongfully refused an assignment to universal or bogey routes as of that time.

What flows from that determination will, at least in significant part, depend on certain legal issues which it will be necessary to address later in the course of this judgment.

I now turn to the disciplinary matters.

8. The Dismissal
8. .1 Under this aspect of the case Mr. Carroll has already sought to intervene at the interlocutory stage. As pointed out in my judgment on that occasion the complaints which give rise to the disciplinary process are set out in a letter of the 29^th July, 2004 from the operations manager of Dublin Bus to Mr. Carroll. In that judgment I summarised the complaints 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 is 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 lead 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.

. 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."

8. .2 At the time of the interlocutory hearing the initial purported dismissal had already taken place but was subject to an appeal in accordance with the relevant appeal procedure. For the reasons set out in that judgment I did not consider it appropriate it to make any order other than one precluding Dublin Bus from holding such an appeal unless and until they had:-

"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 who the witness wishes to attend and whom as may be possible had relevant evidence to give should be permitted to attend unless such witness is certified sick on grounds which would be inconsistent with their ability to attend as witness."

8. .3 I understand that the details referred to at (a) have been supplied. Otherwise no significant developments have occurred since the interlocutory hearing save that continuing difficulties have been experienced in relation to the establishment of an appeal board in accordance with Dublin Bus's disciplinary procedure. It is now, however, clear that a representative of one or other of the two recognised unions are, in principal, prepared to act on such board.
8. .4 However since the interlocutory hearing I have now had the benefit of full evidence in relation to the manner in which the original purported dismissal occurred. On the basis of that evidence I am satisfied as to the following facts. The original disciplinary hearing was arranged for the 5^th August. On that occasion Mr. Duggan, who would in the ordinary way have conducted the hearing, was on holidays. The matter came before a Mr. Donoghue who did not give evidence before me. On the basis of Mr. Carroll's evidence, which I accept, Mr. Carroll was accompanied by a Mr. Thomas French who is a driver from Summerhill and whom Mr. Carroll indicated to Mr. Donoghue, was present both as a witness to the proceedings and as a witness in the proceedings. Mr. Donoghue, having indicated that he would have to go out to check the position, returned some two minutes later and indicated that he could not proceed with Mr. French present. The basis upon which he gave that indication was because Mr. French was out sick.
8. .5 For the reasons which I set out in the judgment delivered by me at the interlocutory stage, it does not seem to me that the fact that a person may be out sick necessarily, of itself, provides a reason why that person could not be heard as a witness. In this case Mr. Carroll was subject to disciplinary proceedings which, quite obviously, could result in dismissal. In those circumstances he was manifestly entitled to have heard at any disciplinary hearing any relevant witness who might be in a position to give evidence in his favour. While there may well be circumstances where the reasons why a relevant witness is certified sick would be inconsistent with a such a person being fit to attend to give evidence, that situation will, by no means, always be the case. In those circumstances, and in the absence of any additional factors, it does not seem to me that it was open to Mr. Donoghue to indicate that the hearing could not go on with Mr. French present. If there was any reason why the nature of the sickness for which Mr. French was certified would render it inappropriate for him to be a witness, then no evidence of same was given before the court.
8. .6 On foot of the impasse that was then reached the hearing was adjourned and Mr. Carroll was written to indicating that same had been rearranged for the 9^th August. That letter warned that "should you fail to attend or participate you leave the company with no option but to proceed without the benefit of your participation".
8. .7 Mr. Carroll gave evidence that as a result of the events that occurred on the 5^th August he became introverted and ignored that correspondence. He therefore did not attend on the 9^th August. On the 9^th August the matter was due to be considered by Mr. Duggan who had returned from holidays. In evidence Mr. Duggan indicated that he did not consider enquiring why Mr. Carroll was not there. He indicated that he did not do anything except "going through the files and what transpired in the week or two previously as regards correspondence and the like". He indicted that he took the view that Mr. Carroll was not interested in following the disciplinary proceedings and on the basis of the accusations put came to the view that Mr. Carroll should be dismissed.
8. .8 Finally, it would appear that the basis upon which Mr. Duggan considered that Mr. Carroll was in breach of the company's regulations in respect of the first charge was that he was in breach of the company's welfare scheme. However he accepted in cross examination that he was aware, at that time, that Mr. Carroll was not, at any relevant time, in receipt of any welfare payments due to being out sick beyond the maximum period for which such payments were made. He was also unable to point to any specific provision in the company's code or any relevant disciplinary documentation which rendered it a breach of discipline per se to act in a representative capacity while out sick. Furthermore Mr. Duggan would, from his involvement in the issues concerning Mr. Carroll's seeking of a rehabilitative route, have been fully aware of Mr. Carroll's physical condition and the fact that the only issue concerning his suitability for a return to work was as to whether he was fully fit for all duties or as to whether the necessary rehabilitative duties might be available to him. There could not , therefore, have been any reasonable basis upon which Mr. Duggan could have concluded that Mr. Carroll was certified sick on a basis which was inconsistent with him carrying out representative duties.
8. .9 In the absence of a specific clause in his contract of employment which would have prevented an employee, irrespective of the basis upon which he or she was certified sick, from carrying out representative duties I can, therefore, find no reasonable basis upon which Mr. Duggan could have concluded that Mr. Carroll was in breach of his contract of employment in carrying out those duties. Furthermore it is extremely difficult to understand the basis upon which Mr. Duggan persisted in indicating in evidence that there might have been a breach of the company's welfare scheme, given his knowledge of the fact that Mr. Carroll had not, at any relevant time, been in receipt of sums under that scheme.
8. .10 While more difficult questions arise in relation to the second charge, having regard to all of the evidence and the specific view which I have expressed in respect of the manner in which the first charge was determined, I have come to the view that the only reasonable assessment as to what occurred on the 9^th August was that Mr. Duggan, in substance, took the view that he was entitled to deal with the matter "in default" and gave no real consideration to the merits or otherwise of the charges that had been laid against Mr. Carroll.
8. .11 In the light of that fact it seems to me that only two legal issues arise on this aspect of the case. The first is as to whether, having regard to what happened on the 5^th August and the failure of Mr. Carroll to attend on the 9^th, it was consistent with the principals of natural justice that Mr. Duggan should have proceeded to consider the matter as a default matter without referring back to Mr. Carroll. Secondly it is necessary to consider whether, even if the initial dismissal was procedurally flawed, same should none the less not be declared void having regard to the fact that an appeal procedure is available.

I therefore turn to the legal issues in the case.

9. The Law
9. .1 In the light of my findings in respect of the facts concerning Mr. Carroll's application to be allocated a universal or bogey route difficult questions of law arise.

For the reasons set out above I am satisfied that there was a term in Mr. Carroll's contract of employment that would, in substance, have entitled him to have access to such routes for rehabilitative purposes provided there was no good reason why he should not be so facilitated. For the reasons also set out above I am satisfied that there was, in this case, no such good reason. In those circumstances it seems to me that as and from the 1^st June 2004 Dublin Bus were in breach of Mr. Carroll's contract of employment by not providing him with such a route. The damages which flow from the breach to date are simply the loss of income which Mr. Carroll would have suffered up to today date.

9. .2 More difficult legal questions arise as to the position into the future and also in relation to the disciplinary issue. Mr. Carroll seeks an order which would, in substance, require him to be permitted to take up duties. In Parsons v. Iarnoid Eireann [1997] 2 I.R. 523 the Supreme Court had to consider the interaction of what might be called traditional common law remedies in respect of dismissal from a contract of employment and the provisions of the Unfair Dismissals Act 1977. In that case Barrington J. held that:-

"What the Unfair Dismissals Act 1977 does is to give to the worker who feels that he has been unfairly dismissed an additional remedy which may carry with it the very far reaching relief of reinstatement in his previous employment. It does not limit the workers rights, it extends them. At the same time s. 15 of the Unfair Dismissals Act, provides that the worker must choose between suing for damages at common law and claiming relief under the new Act. Subsection (2) accordingly, provides that if he claims relief under the Act, he is not entitled to recover damages at common law; while subsection (3) provides that where proceedings for damages at common law for wrongful dismissal are initiated by or on behalf of an employee, the employee should not be entitled to redress under the Unfair Dismissals Act in respect of the same dismissal.

The traditional relief at common law for unfair dismissal was a claim for damages. A plaintiff may also have been entitled to declarations in certain circumstances, for instance, that there was an implied term in his contract entitling him to fair procedures before he was dismissed. But such declarations were in aid of his common law remedy and had no independent existence apart from it. If the plaintiff loses his right to sue for damages at common law the heart is gone out of his claim and there is no freestanding relief which he can claim at law or in equity".

9. .3 It is, of course, the case that Parsons was concerned with dismissal rather than with breaches of terms of an employee's contract of employment. However it does appear to be a recent reiteration of the general principle of law to the effect that a court will not grant orders which have, in substance, the effect of ordering specific performance of a contract of employment. In Cassidy v. Shannon Castle Banquets (2000) ELR 248 Budd J. granted a declaration that a purported dismissal was in breach of natural and constitutional justice and that, as a consequence, the dismissal was without efficacy and invalid. However it is made clear that the above declarations did not coerce a reinstatement. In that respect Parsons was distinguished. It is also clear from a consideration of the judgment of Budd J. in Cassidy that a factor taken into account in that case was the entitlement of the plaintiff to clear his name. In that respect it is of some importance to note that there have been significant developments in the typical terms of employment of many employees in recent years. Such changes have a material effect upon the circumstances in which, as a matter of contract, many employees can be dismissed.
9. .4 The traditional position at common law was that a contract of employment could be terminated on reasonable notice without giving any reason. In those circumstances it was obvious that the only remedy for a breach of contract by way of dismissal was for the payment of the amount that would have been earned had appropriate notice been given. However it is now frequently the case that employees cannot be dismissed, as a matter of contract, save for good reason such as incapacity, stated misbehaviour, redundancy or the like. It would appear that the development of the law in relation to affording employees a certain compliance with the rules of natural justice in respect of possible dismissal derives, at least in material part, from this development. If the stated reason for seeking to dismiss an employee is an allegation of misconduct then the courts have, consistently, held that there is an obligation to afford that employee fair procedures in respect of any determination leading to such a dismissal. That does not alter the fact that an employer may still, if he is contractually free so to do, dismiss an employee for no reason. It simply means that where an employer is obliged to rely upon stated misconduct for a dismissal or, where not so obliged chooses to rely upon stated misconduct, the employer concerned is obliged to conduct the process leading to a determination as to whether there was such misconduct in accordance with many of the principles of natural justice.
9. .5 In those circumstances it seems to me that it is open to the court to grant declarations concerning most alleged breaches by an employer of his contractual obligations. Parsons imposes a limit in cases where the declaration could not avail the plaintiff in any practical way.
9. .6 Where, as here, the consequence of a declaration as to a breach in respect of Mr. Carroll's entitlement to date simply gives rise to a claim in damages then no difficulty, therefore, arises.
9. .7 A more complex question arises in relation to the effects of such a declaration on the position into the future. It naturally follows from the earlier parts of this judgment that, had Dublin Bus not been in breach of contract, Mr. Carroll would have been facilitated with the opportunity to attempt to rehabilitate on a universal or bogey route. It is, of course, not certain, for the reasons indicated by Dr. McDonagh, that such attempt would have been successful. However I have found that, on the basis of the medical evidence and in particular the recommendation of the Chief Medical Officer, Mr. Carroll was entitled, as a matter of contract to the opportunity. He remains, as a matter of contract, entitled to that opportunity.
9. .8 In those circumstances it seems to me that I should declare that Mr. Carroll remains, as a matter of contract between himself and Dublin Bus, entitled to the opportunity to rehabilitate using a universal or a bogey route. This will have a practical effect to which I will return.
9. .9 However a more difficult question arises as to whether I should, beyond making such a declaration, make orders which would require Dublin Bus to physically provide Mr. Carroll with work. I have been referred to some limited number of authorities which suggest that, in certain limited circumstances, the courts have, notwithstanding the general policy to the contrary, granted injunctive relief which has the effect of requiring that an employee be actually permitted to work. Many of those judgments appear to have arisen at an interlocutory stage. O'Donnell v. Chief State Solicitor (2003) ELR 268, Martin v. The Nationwide Building Society (1999) ELR 241 and Bryan v. Finglas Child and Adolescent Centre and Others ...Unreported, High Court, Kelly J. 10^th May, 2004). The extent to which there may be, notwithstanding the general policy of the courts to the contrary, a jurisdiction to make a mandatory order which would have the effect of entitling an employee to return actively to work after appropriate findings at a plenary hearing is, therefore, open to significant doubt.
9. .10 Even if such a jurisdiction exists, it seems to me that it could, in principal, only arise in circumstances where it was clear that no other difficulties could reasonably be expected to arise by virtue of the making of an order. I am afraid that I am not satisfied that this is such a case. Having regard to the serious breakdown in relations between the parties, evidenced, not least, by the serious accusations made in the course of these proceedings, I am not satisfied that even if there were a limited jurisdiction, in special cases, to make an order which would have as its effect the placing of a requirement upon Dublin Bus to take Mr. Carroll back into active employment, it would be appropriate, in the exercise of my discretion, to make such an order in this case.
9. .13 In the circumstances it seems to me that I should confine myself (in the same manner that Budd J. confined himself in Cassidy), to making a declaratory order to the effect that Dublin Bus are in continuing breach of contract with Mr. Carroll by continuing to fail to provide him with suitable rehabilitative duties. It follows that it is necessary that Mr. Carroll be restored, with immediate effect, to the active payroll. Whether he continues to be entitled to remain on the active payroll is dependent on a number of factors. The first is the outcome of the disciplinary proceedings with which I will deal in due course. The second depends on the view which Dublin Bus take as to how they propose to deal with the breach of contract which I have found to exist. It seems to me that as long as Dublin Bus remain in breach of contract they remain liable to keep Mr. Carroll on the active payroll. Clearly if Mr. Carroll is validly dismissed then Dublin Bus could no longer be in breach of contract by not providing him with a rehabilitative route.
9. .14 Similarly if, at their election, Dublin Bus choose to provide Mr. Carroll with a rehabilitative route and he proves unable to avail of it for medical reasons then any breach of contract would cease and Mr. Carroll's entitlement to pay would be dependent upon his position at that stage having regard to other terms of his contract of employment. For that purpose, and to minimise the risk of the necessity for further application to the court, I should indicate that in such eventuality Mr. Carroll would, necessarily, have to be regarded as having being at work since June 2004 up and until the time when it became clear that he was unable to avail of the rehabilitative duties.
9. .15 Finally, and again to minimise the risk of further application to the court, I should indicate that Mr. Carroll's entitlement to be facilitated with a universal or bogey route is dependent upon his reasonable cooperation with any offers in that regard which are made. For the reasons which I have indicated above I do not consider that it is appropriate for me to make an order which would impose an active obligation upon Dublin Bus to make an offer of such route to Mr. Carroll. However should they choose to do so then there is an equal obligation on Mr. Carroll to cooperate with any reasonable requirements in that regard. In particular I would consider that it would be necessary for Mr. Carroll to drive whatever buses are normally provided for the universal or bogey routes concerned. Provided that Mr. Carroll is bona fide requested to drive the type of bus which is ordinarily used for such routes any refusal on his part to drive such bus would entitle Dublin Bus to take the view that he was not fit for ordinary rehabilitative duties and to treat him as not being available for work with whatever consequences would flow.
9. .16 As there was no argument before me as to the extent to which it would be possible for Dublin Bus to terminate Mr. Carroll's employment, without giving any reason therefore, I express no view in relation to that matter. Clearly if, as a matter of contract, Dublin Bus are entitled so to do then nothing in this judgment should be construed as preventing Dublin Bus from exercising, as a matter of common law or contract any such right of termination.
10. Application to the Disciplinary Issues
10. .1 It is now necessary to turn to the legal consequences on the issues which have arisen in respect of the disciplinary process. The starting point is that Mr. Carroll has not yet been finally dismissed given that his appeal is pending. For the reasons indicated above I am satisfied that the stated basis as to why Mr. Donoghue refused to hear the case on 5^th August was not a valid reason. Mr. Carroll's failure to turn up on the 9^th, though unfortunate and inappropriate, has to be seen in that light. In all the circumstances of the case I am not satisfied that Mr. Duggan was entitled to treat, without further enquiry, Mr. Carroll's failure to attend on the 9^th as amounting to an indication that Mr. Carroll did not wish to defend the disciplinary proceedings. I have come to that view on the peculiar facts of this case. Nothing in this judgment should be taken as implying that an employer may not, in an appropriate case, deal with a disciplinary process on the basis that an employee is not engaging with the process. However whether it can be said that an employee has by his conduct placed himself in a position where it is reasonable for the employer to infer that he is no longer interested in dealing with a disciplinary process depends on all the circumstances of the case. For the reasons indicated I am not satisfied that Mr. Duggan was entitled to take that view on the facts of this case.
10. .2 The next issue which arises is as to the consequences of that finding. I have already found that Mr. Duggan did not give any independent consideration to the merits of the case. He reached his conclusions, such as they were, effectively on an "in default basis". Having found that he was not entitled to reach conclusions on that basis it necessarily follows that his conclusions as to the appropriateness of dismissing Mr. Carroll were reached in breach of Mr. Carroll's entitlement to natural and constitutional justice.
10. .3 The question which remains for decision is as to whether that situation can be cured by the availability of an appeal. It is clear from Mr. Carroll's contract of employment that an employee is entitled to an initial hearing before what is described as "the appropriate official dealing with discipline". There is also an entitlement to an appeal to "the Appeals Board" which is specified as being constituted by a chairperson, a Board's assessor and a unions assessor.
10. .4 The question which I must answer is as to whether, in all the circumstances of the case, it can be said that Mr. Carroll would not have received consideration in accordance with the principles of natural and constitutional justice in circumstances where he did have a fair appeal before the Appeal Board following on from a flawed initial hearing. In the particular circumstances of this case I am not satisfied that it can be said that Mr. Carroll would have been afforded such overall fair procedures in that eventuality. In substance I have, for the reasons indicated above, come to the view that Mr. Carroll had, in effect, no real hearing before the relevant official such that the determination of that official should be treated as, in substance, a nullity. In those circumstances it seems to me that it would, on the facts of this case, be unfair to Mr. Carroll to require him to have the first substantive hearing at the appeal stage. Different considerations might well apply in circumstances where there was a substantive initial hearing, which was flawed in some material but relatively technical respect, but in relation to which an employee might be said to have had an opportunity to consider in detail the case against him and to have same tested. In those circumstances it could not really be said, in most cases, that the employee concerned was placed at a significant disadvantage in respect of an appeal process and it might well be, in those circumstances, that the court would take the view that, taking the process as a whole, the employee concerned was afforded fair procedures.
10. .5 However where, as here, the employee concerned has had no real "first instance" hearing it is impossible to conclude that he may not be impaired at the conduct of any appeal by virtue of that fact. In those circumstances, even if the appeal hearing were conducted fairly, it is impossible to conclude that Mr. Carroll might not be at a disadvantage by virtue of not having had a proper "first instance" hearing and, in all the circumstances of the case, it appears to me that it is appropriate to make a declaration to the effect that the purported decision to dismiss by Mr. Duggan is void and of no effect.
10. .6 That does not, of course, mean that the disciplinary process cannot be reactivated with a further and proper hearing before a relevant official. As the matter may well arise again I should indicate that on the basis of the evidence before me and in the absence of any additional materials being available to the relevant official (or the appeals board on appeal) I do not consider that either such person or body could rationally conclude that Mr. Carroll was in breach of his obligations as employee by virtue of acting as a representative in all of the circumstances of the case. I express no view as to the merits or otherwise of the second charge.
11. Malice
11. .1 At the outset I indicated that I would return to the question of malice and I now do so. As is clear from certain of the matters referred to in the course of this judgment an underlying theme of Mr. Carroll's complaint is to the effect that certain persons within Dublin Bus are motivated by malice towards him having regard to his activities as a representative of the Independent Works Union and, perhaps, because of his bringing the personal injury proceedings to which I have referred. It should be noted in the context of this aspect of the case that the Independent Workers Union is not one of those unions recognised by Dublin Bus in relation to bus drivers. The relevant unions are SIPTU and the NBRU. Mr. Carroll was a member of SIPTU but was removed from membership in circumstances which were touched on at the hearing but not gone into in great detail. While understanding the view which Mr. Carroll takes I am not, on the balance of probabilities, satisfied that the actions of Dublin Bus and in particular those of Mr. Duggan were motivated by malice. Mr. Duggan's persistent refusal to allow Mr. Carroll back to work on universals and bogeys was, for the reasons which I have indicated above, based on a

misinterpretation of the views of the Chief Medical Officer. It may well be that that misinterpretation would not have occurred had there been even a simple attempt to clarify matters in an appropriate way. However I am not satisfied that the failure to clarify was based on malice. Similarly I am not satisfied that the proffering of the relevant charges against Mr. Carroll in the disciplinary process was based on malice although again, for the reasons which I have set out in some detail, it seems clear to me that there was no reasonable basis for charge 1. I have come to the view that that charge was proffered in mistaken rather than malicious circumstances.

11. .2 All in all I am not, therefore, satisfied that it can be said that Dublin Bus or any relevant officials were motivated in a malicious, as opposed to a mistaken, way in their dealings with Mr. Carroll. In those circumstances Mr. Carroll's claim for damages needs to be assessed.
12. General Damages
12. .1 There is no doubt that the difficulty which Mr. Carroll encountered in relation to his back problems and his inability to work as a result therefrom lead to him being clinically depressed. However it does not seem to me, on the evidence, to be the case that any such depression can be attributed to the breach of contract which I have found as against Dublin Bus. That breach of contract occurred in the middle of 2004. On Dr. McDonagh's evidence any depression had disappeared by that stage. Thereafter there can be little doubt that Mr. Carroll suffered from stress which fell short of a clinical condition.
12. .2 The question which, therefore, arises is as to whether Mr. Carroll is entitled, as part of his claim for damages for breach of contract in relation to the failure to provide him with a universal of bogey route in June 2004, to damages for such stress. I am not satisfied that he entitled to any such damages. In Bliss v. Southeast Thames Regional Health Authority [1987] IECR 700 the United Kingdom Court of Appeal determined that "where damages fell to be assessed for breach of contract, rather than in tort it was not permissible to award general damages for frustration, mental distress, injured feelings or annoyance occasioned by the breach". In that context the Court applied Addis v. Gramophone Company Limited [1909] AC 488 and overruled Cox v. Philips Industries Limited [1976] ICR 138. The Court also distinguished Jarvis v. Swans Tours Limited [1973] QB 233. Holiday cases such as Jarvis were taken to be exceptions to the general rule because the contract which has been broken was itself a contract to provide "peace of mind or freedom from distress".
12. .3 While it is now clear that the courts can award damages, in tort, for a failure on the part of an employer to exercise an appropriate duty of care in relation to the mental well being of an employee, the cases in which such a liability has been considered stem from circumstances where the employer concerned caused or permitted the employee to be subject to harassment, bullying or excessive workloads which foreseeably lead to the difficulties encountered by the employee in question. While a claim of that type could, of course, be mounted in contract (based on an implied term) such claims more neatly fit into the law of tort. In the absence of malice and on the basis of what I have found to be simply a breach of contract which derived from an erroneous view as to the precise contractual entitlements of Mr. Carroll, and a misinterpretation of the views of the Chief Medical Officer, I am not satisfied that, in all the circumstances of this case, an entitlement to damages arises most particularly having regard to the fact that it has not been established that any clinical medical condition has occurred by reason of the breach of contract concerned.

In the circumstances I would not propose awarding general damages.

13. Conclusion
13. .1 In summary I would propose making declarations in favour of Mr. Carroll to the following effect:-

(a) That he was entitled at all material times since June 2004 to have been employed on a universal or bogey route and that he is, therefore, entitled to be paid all sums which he would have earned in the ordinary way, in that capacity;

(b) That he is entitled to continue to be treated as if he is currently entitled to work on a universal or bogey route unless and until some further eventuality occurs which would, in all the circumstances of the case, disentitle him to be so treated. For the avoidance of doubt it should be declared that amongst the eventualities that might alter that situation would be a valid dismissal of Mr. Carroll, any other valid termination of Mr. Carroll's contract of employment, or an established inability on the part of Mr. Carroll to avail of the facility of being rehabilitated on a universal or bogey route in the way in which such routes currently operate; and

(c) A declaration that Mr. Carroll's purported dismissal is void and of no effect but without prejudice to the entitlement of Dublin Bus to reactivate any such disciplinary procedures.

Approved: Clarke J.