High Court grants injunction requiring An Post to provide details of reasons for dismissing employee

The High Court has granted an employment injunction, finding that An Post had not sufficiently notified a man of the reasons for his dismissal.

The plaintiff, Mr Finbarr O’Leary, sought to restrain An Post from dismissing him, and unusually, sought to restrain An Post from taking any further step to consider his appeal against dismissal and from conducting an oral appeal hearing which he had himself requested.

He had commenced temporary employment with An Post in 1993 and had signed a contract in 1997.

The contract allowed for termination of employment in cases of serious misconduct and for disciplinary action in cases of misconduct. Examples of misconduct included “dishonesty” and “neglect of duty”. The An Post also has a Discipline Policy and procedure, adopted in 2012.

The investigation into the plaintiff had began in 2013, after a review of the defendant’s Cork branch office revealed “suspected irregularities” in customer payment transactions carried out by the plaintiff.

It appeared that when a customer was owed multiple payments, the payment was being recorded as going through in two separate transactions, rather than as a single transaction.

The concern was that a fraud was occurring, whereby the customer received one payment, and the other payment was taken by someone else.

Two customers were identified and interviewed, and both stated that they had not signed two receipts, or carried out two transactions in one day.

The plaintiff was interviewed, and while he could not explain the transactions, he denied any wrongdoing. He was then suspended to allow for further enquiries.

In April 2014 the defendant wrote to the plaintiff indicating that his explanations had been found to be unacceptable, and that the Company was pursuing disciplinary procedures. He was notified of his right to make representations, and to attend an oral hearing or provide written explanations.

Following an oral hearing in July 2014, the plaintiff made a number of submissions. The delay between his suspension and the disciplinary process was criticized, the fact that no customer had actually complained was flagged, the reliability of the witnesses was questioned, the difficulty in explaining a small number of transactions after a significant period of time was highlighted, and the plaintiff’s interview was criticized as oppressive.

The defendant rejected claims that the interview was oppressive, and flagged that there was no other person who had committed the same number of irregular transactions, other than a clerk who resigned and refunded money to customers.

In January 2015 the defendant dismissed the plaintiff, and shortly after a firm of solicitors wrote to the defendant on the plaintiff’s behalf, requesting an oral hearing and that the defendant provide them with a definition of the term “loss of trust and confidence” as that term had been used in the letter of dismissal, and details of the benchmarking or comparison exercise that had been conducted.

The defendant responded that there was no An Post specific definition of trust and confidence, as such terms were widely understood.

Following a repeated request for the details of the benchmarking exercise, the defendant stated that as the benchmarking exercise had not been used to initiate disciplinary proceedings, the plaintiff was not entitled to it under the Disciplinary Policy and Procedure.

The plaintiff’s solicitors wrote again, requiring an undertaking that the proposed oral hearing would not proceed, pending agreement between the parties on a ‘protocol’ to govern the investigation, or more accurately, the disciplinary process.

The defendant wrote back stating that there was no question of the agreement of any protocol, “in circumstances where the Company has agreed Disciplinary Policy and Procedures, which indeed have been agreed with your client’s union.”

The present motion was issued on 23 April 2015, with the core reliefs sought being an injunction compelling the defendant to rescind its decision to dismiss the plaintiff and damages for breach of contract and mental distress.

The plaintiff relied upon the proposition that there is a duty upon an employer at common law to comply with the rules of natural justice in considering an allegation of misconduct against an employee, which stems from an implied term to that effect in the contract of every employee, such that a breach of that duty by an employer amounts to a breach of that contract.

The Court therefore considered what the requirements of natural justice were, and how was it asserted that that they had been breached.

In addressing the first part, the Court considered Mooney v. An Post 4 I.R. 288, which found that if the contract or the statute governing a person’s employment contains a procedure whereby the employment may be terminated, it usually will be sufficient for the employer to show that he has complied with this procedure.

If however the contract provides that the employee may be dismissed for misconduct without specifying any procedure to be followed, the position may be more difficult, but an employee would be entitled to be informed of the charge against him and to be given an opportunity to answer it and to make submissions.

It appeared that the plaintiff had three complaints: that he had not been able to cross-examine the witnesses, that the defendant had not defined trust and confidence, and that the plaintiff had not been provided with details of the benchmarking exercise between the plaintiff and other clerks.

The Court noted that for an injunction to be given in an employment case, the employee would have to establish a strong case, following Bergin v. Galway Clinic Doughiska Ltd 2 I.R. 205.

Further, for a court to involve itself in an ongoing disciplinary proceedings, there would need to have been a step taken in the process which could not be cured and there was a clear case for intervention, following Becker v. Board of Management of St. Dominic’s Secondary School IEHC 130.

In the present case, the Court found that the plaintiff had never sought to cross-examine the witnesses during the process, and if he had, he would have been reminded that the defendant’s Disciplinary Procedures detail that this is not a right afforded to employees.

Although he had the right to request that the defendant submit certain questions to them, he had not done so.

In relation to the argument that the disciplinary proceedings had not been in response to a customer complaint, the Court noted that the wrongful diversion of a financial benefit was likely only to be undetected by those who were inattentive or confused, whether through intellectual disability or impairment of memory. Thus, the plaintiff’s argument was hard to understand.

Further, the plaintiff’s assertion that the witnesses had in fact signed two receipts, could be addressed in the appeal.

In relation to the disclosure of the benchmark test, the Court found that the plaintiff appeared to be invoking entitlements analogous to an accused in a criminal trial, rather than seeking to engage with issues of concern raised by his employer.

In relation to the assertion that “trust and confidence” had not been defined, it was noted that the plaintiff had subsequently amended his argument to being that he had not been informed of the specific findings of misconduct.

Following Mooney v. An Post 4 I.R. 288; Gunn v. Bord an Choláiste Náisiúnta Ealaíne is Deartha 2 I.R. 168 and Glover v. B.L.N. Ltd I.R. 388, the Court found that at a minimum, a person seeking to appeal must know the charges against him, and in this case it was insufficient for the employer to state that they had lost trust and confidence.

Thus, the plaintiff had made a strong and clear case in this regard, and the injunction was granted, preventing the appeal from proceeding unless and until the defendant provided the plaintiff with a statement of the serious misconduct by reference to which the decision to dismiss him had been made.

  • by Rachel Killean for Irish Legal News
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