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Cite as: [2018] IEHC 832

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THE HIGH COURT

[2018] IEHC 832

[2018 No. 1303 P]

BETWEEN

GERARD FINNIN

PLAINTIFF

AND

TIZZARD HOLDINGS UNLIMITED COMPANY T/A ADARE MANOR HOTEL AND GOLF

RESORT

DEFENDANT

JUDGMENT of Mr. Justice Tony O’Connor delivered on the 16th day of May, 2018

Introduction

1. Last Thursday, 10th May, 2018, this application by the plaintiff for interlocutory

restraining and mandatory orders in a wrongful dismissal-type action was opened. The

commitments of this Court and the demands on the Chancery List did not permit for the

hearing to continue on into Friday. The plaintiff having finished opening on Thursday

evening, the hearing resumed yesterday, Tuesday, 15th May, with the reply and closing

submissions, ending yesterday evening.

Principles

2. The principles applicable for determining an interlocutory mandatory injunction-type

application are well established and I quote from the ex tempore judgment of Fennelly J.

in Maha Lingham v. HSE [2006] 17 ELR 137:-

“… first that according to the ordinary law of employment a contract of employment

may be terminated by an employer on the giving of reasonable notice of

termination and that according to the traditional law at any rate, though perhaps

modified to some extent in light of modern developments, according to the

traditional

interpretation, the employer was entitled to give that notice so long as he complied

with the contractual obligation of reasonable notice whether he had good reason or

bad for doing it. That is the common law position and it is an entirely different

matter as to whether a person has been unfairly dismissed and a different scheme

of statutory remedy is available to any person dismissed whether with or without

notice under the Unfair Dismissals Act, but this is not such an application. This is an

action brought at common law for wrongful dismissal in the context of which an

injunction was sought. This is the first general principle.

The second is that the implication of an application of the present sort is that in

substance what the plaintiff/appellant is seeking is a mandatory interlocutory

injunction and it is well established that the ordinary test of a fair case to be tried is

not sufficient to meet the first leg of the test for the grant of an interlocutory

injunction where the injunction sought is in effect mandatory. In such a case it is

necessary for the applicant to show at least that he has a strong case that he is

likely to succeed at the hearing of the action. So it is not sufficient for him simply to

show a prima facie case, and in particular the courts have been slow to grant

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interlocutory injunctions to enforce contracts of employment. None of this is to

deny that there have been developments in the law in recent years and it is

necessary to refer very briefly to the nature of these developments. The first is

that, in this jurisdiction the development can be traced to the judgment of Costello

J. in a case of Fennelly v Assiuanazioni [sic] Generali (1985) 3 I.L.T.R 73 in which

an injunction was granted directing an employer to continue payment to the

plaintiff, in that case pending the hearing of the action, and that type of jurisdiction

was exercised in a number of subsequent cases. It is fair to say however, that there

is a very strong trend in those cases to the effect that where a person has a clear

right to either a particular period of notice or a reasonable notice or has a fixed

period of employment, a summary dismissal or a dismissal without notice or

without any adequate notice is a first step in establishing the ground for an

injunction in those sort of cases.” (pp. 140-141).

3. And then he goes on in the next paragraph:-

“A second element in cases of that sort is that, where a dismissal is by reason of an

allegation of misconduct by the employee, the courts have in a number of cases at

any rate imported an obligation to comply with the rules of natural justice and give

fair notice and a fair opportunity to reply.” (p. 141).

4. Now, there is no difference between the parties as to those principles. Mr. Cush SC, for

the defendant, acknowledged that his client needs to establish that the rules of natural

justice were applied, notice given and a fair opportunity to reply afforded. Mr. Kerr SC,

on behalf of the plaintiff, accepts that he must establish a strong case before mandatory

relief can be granted.

Plaintiff’s position

5. The plaintiff, until his summary dismissal in January 2018, was Engineering Facilities

Manager at Adare Manor Hotel and Golf Resort (“the Resort”). It is undisputed that he

was committed and worked hard. He himself expressed the belief that he was going to

work for many years and that he would protect the long term best interests of the Resort.

6. The responsibilities of the plaintiff are described at para. 38 of his 34 page affidavit sworn

on the 20th March, 2018, and included:-

(i) Estate management of 84 buildings and 840 acres with roads and services;

(ii) Security, including outsourcing security for events;

(iii) Health and safety management for the Resort, its contractors and suppliers;

(iv) Environmental compliance; and

(v) IT infrastructure.

7. The Resort was owned by NAMA until 2014, when the defendant took it over with the

support of Mr. JP McManus, according to information conveyed by counsel to the Court. It

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opened for about a year before a building programme was commenced. The plaintiff’s

employment was confirmed and the parties executed what is called “Updated contract of

employment” which stated that it took effect on 16th December, 2015. It provided for

inter alia:-

(i) At clause 4a: “Any lieu time outstanding at 15th December, 2015 will be

removed from the system.”

(ii) Annual leave.

(iii) Public holidays and a minimum notice period of eight weeks and for payment

in lieu of notice.

(iv) A disciplinary procedure and “the principles of due diligence and fair process

compliant with the Code of Practice SI No146 of 2000”, which is actually

entitled Industrial Relations Act 1990 (Code of Practice on Grievance and

Disciplinary Procedures (Declaration) Order 2000.

Disciplinary Procedure

8. The disciplinary policy of the defendant at exhibit GF4 of the plaintiff’s grounding affidavit

commences with questions and answers and stated that the aim “is to ensure that you

are treated fairly and consistently in all disciplinary matters related to issues of conduct,

behaviour and performance. This policy is intended to be positive rather than punitive …

Formal sanctions may have to be applied in certain circumstances.”

9. The next question is answered by referring to five principles of natural justice which may

be summarised as follows:-

(i) Right of employees to know allegations and complaints made against them;

(ii) Right to representation;

(iii) Right to defend;

(iv) Right to a fair and objective investigation and hearing;

(v) Right to appeal.

10. The policy refers to verbal and written warnings and then goes on to describe gross

misconduct and the prospect of dismissal for serious misconduct such as “wilful damage …

breaches of trust … without recourse to the procedure” of verbal or written warnings. It

provides for suspension with pay where the defendant company is investigating serious

breaches. It defines “gross misconduct” as not limited to wilful failure to comply with

company procedures and breach of trust.

Relationship between the Plaintiff and the General Manager

11. The plaintiff reported to Mr. Paul Heery, who had been appointed General Manager in May

2017. Suffice to say at this stage that the plaintiff, at p. 21 of his 34 page supplemental

affidavit sworn on 20th March, 2018, in reply to Mr. Heery’s affidavit of 8th March, 2018,

set out ten issues of potential regulatory non-compliance on the part of the defendant

which Mr. Heery advised the plaintiff should be ignored prior to the relevant incident on

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Christmas Eve 2017. These issues were not ostensibly taken into account in the

disciplinary process. The defendant characterised the mention of these issues in the

supplemental affidavit of the plaintiff as a belatedly suggested influence. Mr. Heery did

not comment on these concerns of the plaintiff in any of his affidavits.

Chronology of critical facts which are not in dispute

12. Security officer Mr. Thomas Culliney reported that the CCTV of 22:45:15 on 24th

December, 2017, showed a staff member removing two boxes which are now agreed to

be boxes of beer.

13. Mr. Hussein, Night Manager, emailed a Mr. Nicholas Hill, who had been appointed Head of

Security in November 2017 (but no longer works with the defendant) about the report at

approximately 08:38 on Christmas Day.

14. Mr. Heery emailed Mr. Hill the following day at 15:17 on the 26th December, 2017: “Has

this been closed out – thanks for confirmation.” with the same heading which had been

used in the email: ‘Suspicious activity 24.12.17’.

15. Only yesterday, on 15th May, 2018, Mr. Heery’s affidavit sworn last Monday was filed.

This affidavit sought to explain his omission from his account of facts of an email from Mr.

Hill to Mr. Heery of 26th December, 2017, at 15:39 which read as follows: “Hi Paul, was

going to speak to you tomorrow and not bother you at this time. Yes, everything has

been clarified and all ok. I can give you a quick breakdown of the events tomorrow and

talk about concerns I had regarding central stores.”

16. Mr. Nick Hill, then Head of Security, signed a witness statement dated the 28th

December, 2017, which referred to a phone call from the plaintiff at 16:09 on the 26th

December, 2017. The plaintiff outlined what had happened upon his noticing two boxes

of beer having been left at the exit door of a store which had looked out of place. The

plaintiff continued on to say to Mr. Hill that he was going to leave them at a building

occupied by another employee, Mr. Lowe, but they would have been mistaken as

Christmas gifts for sharing. Mr. Hill in his statement replied that this was “really not the

right way to do this”, to which the plaintiff replied: “Don’t worry, they are safe and secure

in my car and will of course be returned.”

17. Following the return of Group Human Resources Manager, Ms. Yvonne O’Malley, from

leave, she signed and sent a letter dated the 28th December, 2017, which required the

plaintiff to attend a formal disciplinary meeting on Friday, 29th December, 2017, at

15:30, the purpose for which: “... is to investigate that you allegedly removed two cases

of alcohol from the central stores, placed them in your car & removed them from the

resort without authorisation on 24th December 2017 at approximately 22:45pm. This

serious breach of conduct is considered gross misconduct, which if proven may result in

disciplinary action up to and including dismissal. Paul Heery will chair the disciplinary

meeting … In line with our Company Disciplinary policy you will be given every

opportunity to explain and account for your actions or highlight any mitigating factors …”.

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18. On the 2nd January, 2018, the said meeting actually convened, with Ms. O’Malley taking

notes. The plaintiff asked who was accusing him of gross misconduct and Ms. O’Malley

merely said, according to her own note, “… Paul Heery is representing the company and

will investigate the allegation.” Mr. Heery, following questions and answers, suggested

that the meeting reconvene on Friday, 5th January, 2018.

19. The plaintiff completed a statement on the 3rd January, 2018, which criticised the tone

and focus of the investigation of the accusations as follows: “... of gross misconduct on

the basis of a non-existent policy when I feel from the facts it is abundantly clear that I

was acting in the best interests of the company to prevent further loss.”

20. The plaintiff then emailed Ms. O’Malley at 17:05 on 3rd January, 2018, to identify the

specific procedure or policy that required him “to have permission to transport items off

site”. Ms. O’Malley replied at 18:49 on 4th January, 2018: “We do not have a policy that

would specifically prohibit taking stock items & removing them from the resort without

authorisation.”

21. On the 9th January, 2018, the ‘disciplinary meeting’ reconvened and Mr. Heery said that

they would break, with a reconvening later at 11:30. When it reconvened, Mr. Heery,

according to Ms. O’Malley’s note, said he “reviewed everything including the statements.

Regretfully [the plaintiff] removed property off site and without informing anyone” before

dismissing him on the grounds of misconduct: “The trust and confidence is gone. [The

plaintiff] has the right to appeal.”

22. Mr. Heery spoke with the Chief Executive Officer, Colm Hannon, following the dismissal

and in advance of the appeal hearing requested by the plaintiff, upon the grounds set out

at para. 2 of Mr. Hannon’s one and only two-page affidavit in these proceedings. Mr.

Hannon told the plaintiff that Mr. Heery had told Mr. Hannon that there were differences

in the plaintiff’s version of events. Mr. Hannon said that the plaintiff denied the

inconsistency and that Mr. Hannon listened carefully to the plaintiff but “...was not

satisfied that there was no evidence of wrongdoing on the part of the Plaintiff and … was

not satisfied, upon review of the notes, that his version of events were consistent.”

23. He upheld the decision to terminate. Significantly, neither the CEO (Mr. Hannon) nor the

plaintiff aver that they could not work together for the defendant. Mr. Hill has left the

company and Mr. Heery has not commented on the regulatory safety and security issues

raised by the plaintiff, albeit in his supplemental affidavit, and which were not advanced

at his disciplinary hearing as a reason not to hear Mr. Heery’s charge against the plaintiff.

Submissions

24. Counsel for the defendant correctly submitted that this Court is not tasked to determine

whether it would have summarily dismissed the plaintiff at first instance or on appeal

within the defendant company’s disciplinary process. He was also right in accepting that

the allegation made against the plaintiff is so serious as to require the full gamut of fair

procedures. Not only has the plaintiff lost his sole source of income for his family but his

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reputation and prospects have been dealt a devastating blow as a result of the defendant

company’s determination.

25. Counsel urged the Court to discount the plaintiff’s belated attempt to challenge the

allegedly impartial investigatory and adjudicating process and the exercise of the

company’s disciplinary power by Mr. Heery. He relied upon the Supreme Court judgment

in Corrigan v. Irish Land Commission [1977] I.R 317 (“Corrigan”) where the appellant

there had been represented by experienced senior and junior counsel in an appeal

tribunal which consisted of two lay commissioners who had signed the certificate which

had been appealed. As counsel for the plaintiff observed, the analogy of Griffin J. to play

the advantage rule in football no longer applies in football now. Advantage may be

played in various sports but the penalty or free or whatever, is given if no advantage

ensues.

26. That analogy should have no further part in considering this aspect of law in this Court’s

view. I fully accept and endorse the passage of Laffoy J. cited by counsel for the plaintiff

in Doherty and Carroll v. HSE [2009] 20 E.L.R 131 at 141; [2008] IEHC 331 at [30],

which differentiated Corrigan:-

“Those considerations do not apply to a situation in which a litigant, without legal

representation, has participated in a process and after the process is completed, on

the basis of legal advice, contends that the decision of the decision-maker was not

properly made because he had no authority to make it or he exceeded his

authority, or he acted in breach of the litigant’s rights or for some other reason.”

27. The plaintiff has satisfied me that he has a strong case arising from the following at

least:-

(i) Mr. Heery’s role as investigator, accuser, adjudicator and contributor to the appeal

decision maker.

(ii) A lack of transparency and particularly that of the request by the plaintiff for the

detailed timeline of the process, of what had occurred and of the consideration

given to sanctions and proportionality.

(iii) The standard of proof applied by Mr. Heery, and in this regard the Court relies upon

the Supreme Court’s phrase in Georgopoulos v. Beaumont Hospital Board [1998] 3

I.R. 132 at 150: “… the degree of probability required should always be

proportionate to the nature and gravity of the case to be investigated.” The

consequences of the allegations require a high standard of proof. It is not readily

evident from the rather brief account of the consideration given by Mr. Heery and

then by Mr. Hannon that this proportionality high standard was applied.

(iv) The rather opaque process adopted by Mr. Heery in finding that “Trust and

confidence is gone” despite the submissions of counsel for the defendant that the

plaintiff was given a number of opportunities to explain inconsistencies which

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occurred to Mr. Heery and mentioned without any detail by Mr. Hannon. It is

further apparent at this stage without making any final determination that the

plaintiff was not advised about the inconsistencies in a manner which could be

adopted reasonably before depriving a person of their livelihood or their right to

earn a living.

28. There was mention in the submissions by counsel for the defendant that cross-

examination may not be required of the facts as the facts are agreed. That may transpire

to be the case but I do not determine that issue now. The nub of the grievances engages

the full panoply of fair procedures because of the obligations on an accuser in a serious

case with devastating effects like this. The methods adopted by the defendant to advise

the plaintiff of the charges, to investigate those charges prior to the adjudication and the

independence of the appeal process are all in issue at this stage. It is not for this Court

to adjudicate now on the reasonableness of the defendant in conducting business or

maintaining a workplace environment. However, this Court has power to uphold the right

of employees to fair procedures and to grant interlocutory relief based on the legal

principles already outlined.

Adequacy of damages

29. Having determined the strength of the plaintiff’s claim without deciding those issues, it

now falls to consider whether there is a strong case that damages are an adequate

remedy ultimately for the plaintiff or the defendant in respect of the revised reliefs sought

in the interlocutory application. Damages may not be an adequate remedy for the

plaintiff because it is reasonable to suggest that he has been dismissed for removing the

boxes of beer for his own potential benefit. That is a most serious allegation which may

affect his job prospects. The defendant if it succeeds will recover damages on foot of the

plaintiff’s undertaking and will be vindicated in its processes.

Plaintiff’s situation

30. The plaintiff had health warnings due to stress which the plaintiff attributed to the

onerous hours, commitment without holidays and frustration, for want of a better word,

with the ignoring of his concerns expressed to Mr. Heery about safety, health, the

environment and other regulatory issues for the Resort, its employees and contractors.

Causation for the stress cannot be determined or taken into account in this application.

He suffered a cardiac incident on the 29th January, 2018, but has been certified fit to

return to work from last March.

31. The plaintiff at para. 58 of his grounding affidavit set out the financial ruination details

inflicted by his dismissal. He has monthly bills associated with maintaining a family. His

wife is not employed outside the home and he was in receipt of approximately €4,000 net

income up to the date of his dismissal. He also has medical bills as a result of his cardiac

incident.

32. The plaintiff has averred, without contradiction, to a continuing good relationship with

Mrs. and Mr. Foley (daughter and son-in-law of Mr. JP McManus respectively, according to

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counsel) who are responsible for the day to day operation of the company and there is no

distrust between the Foleys and himself, according to the plaintiff. He is ready and willing

to work. The defendant is ploughing ahead with its significant developments. The

principal issues of contention between the plaintiff and the defendant other than his

devastating dismissal related to concerns expressed to Mr. Heery and outlined in the

plaintiff’s supplemental affidavit.

33. In all of the circumstances, if the defendant succeeds in defending these proceedings at

plenary trial it can recover from the plaintiff on foot of his undertaking as to damages and

its development continues. The plaintiff needs his income to meet the described

expenses. The defendant can always terminate the plaintiff’s contract of employment by

serving notice in accordance with the agreement, but that does not detract from the

undoubted severe reputational damage inflicted by the summary dismissal and news of it

however it was published. It appears to be in the interests of the parties to close the

pleadings and finalise all discovery, issues about particulars, notices to admit facts,

interrogatories or whatever is deemed necessary as soon as possible.

Statement of claim

34. The Court listened carefully to the complaint of counsel for the defendant about delay

which he attributed to the plaintiff in the prosecution of these proceedings. Suffice to say

that the plaintiff’s heart incident, the time taken by both sides to complete their affidavits

and submissions, the fixing of a hearing date to suit the schedules of the Court and

counsel together with the ignoring of advice given by solicitors to the parties concerning

mediation, about which I was assured last Thursday, I find that the said delays are

understandable, excusable and reasonable. The statement of claim could have been

delivered but that point was only taken without any advance warning or specific request

during the hearing of this application. Indeed the memorandum of appearance requested

a statement of claim but a copy of that was not made available to the Court until the

point was made yesterday.

35. Much was made about the need of the defendant to replace the plaintiff. The Court was

not impressed by the short affidavit of Mr. Heery, due to its scarce detail about terms and

which was filed only yesterday. It referred to the advertising for and then the

engagement of a successful candidate, who commenced on 23rd April, 2018, pursuant to

a contract of employment. The affidavit did not identify or exhibit any particular term of

the contract which precludes the defendant from re-engaging the plaintiff. The defendant

is a company with significant assets and resources under its control and has had the

benefit of legal advice. It ought not exacerbate a loss to the plaintiff by entering into

contracts if it is aware of the risks of not successfully defending these proceedings at

plenary hearing. Having said that, the Court is ever conscious of the rights of parties

such as the new employee of the defendant who has taken up the position of Director of

Engineering Facilities. In those circumstances it will moderate its order so as to maintain

the status quo as far as possible until the determination of the proceedings.

36. Therefore, the Court will make the following orders, noting the undertaking given by the

plaintiff as to damages:-

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(i) An order restraining the defendant, with effect from today, from entering into

any new contractual arrangement which will hinder the return of the plaintiff

to the defendant as an employee if ultimately ordered following the plenary

hearing of these proceedings.

(ii) An order directing the defendant to pay the plaintiff’s salary and benefits

under his updated contract of employment, which took effect from 16th

December, 2015, from the 9th January, 2018, until the determination of

these proceedings.

(iii) An order directing the plaintiff to deliver his statement of claim within seven

days of a letter of request or reminder for same from the defendant’s

solicitors, which letter can be sent as soon as it suits the defendant’s

solicitors to do so.

(iv) Liberty to the parties to apply to this Court upon three days’ notice in relation

to directions, whether the proceedings have to be adjourned for an

alternative dispute resolution process or to vary the mandatory salary and

benefits order mentioned at (ii) above on account of delays caused by the

plaintiff, on other equitable grounds or on agreed terms.

37. I will be the duty judge here on Monday, 28th May, if parties cannot wait until the new

term to come before me in relation to any other application.

Postscript

38. On 1st June, 2018, this Court, upon hearing counsel for the parties, stayed the order

made on 16th May, 2018, directing the defendant to pay the plaintiff’s salary and benefits

under the plaintiff’s contract of employment until the determination of the appeal from

the interlocutory order by the defendant on condition that the defendant pay to the

plaintiff as soon as possible €12,000 and on condition that the defendant pay to the

plaintiff the sum of €750 per week (said payments were not to deprive the Revenue

Commissioners of pursuing any obligation that may arise on behalf of the defendant as

employer or the plaintiff as employee).

39. On 8th March, 2019, following three days of hearing on 5th, 6th and 7th March, 2019, the

Court (Allen J.) made an order by consent:-

(i) vacating the orders made on 16th May, 2018, and 1st June, 2018, together with all

orders in respect of costs; and

(ii) striking out the proceedings with no order as to costs.

Result: Interlocutory injunction granted restraining any new contractual arrangement hindering return of the plaintiff employee while he is paid until determination of proceedings.