In a recent judgement of Ms Justice Laffoy delivered on 22nd March 2013 in Mark Ryan v ESB International Limited [2013 IEHC 126] the plaintiff sought an interlocutory injunction restraining his dismissal on the grounds of “breach of trust and confidence” entitled to be held by the defendant in him. By way of background, the plaintiff had made several complaints over a number of years concerning bullying behaviour by the respondent.
Full copy of the judgment is found in the link above on the courts website and we have referred extensively to extracts below.
Background / The plaintiff’s contractual relationship with the defendant
The plaintiff’s employment with the defendant commenced on 25th May, 1992. He was employed on a series of fixed term contracts initially. His contract of employment dated 2001 provided for termination of employment and grievance/disciplinary issues which were set out in the staff handbook. After May 2009 the plaintiff’s employment relationship with the defendant was also governed by a document entitled “Respect and Dignity for the Individual in ESB”.
Specific Complaints made by Plaintiff
The plaintiff stated that from the commencement of his employment with the defendant he had “encountered difficulties with” the defendant as his employer and that he first complained of bullying behaviour by his then line manager in March 1994.
The 2009 Complaints
In November 2009 the plaintiff submitted fourteen formal complaints of bullying against his line manager and four formal complaints (“the 2009 complaints”) of bullying against the then Human Resource Manager of the defendant. An investigating committee found in May 2010 that there was no evidence of bullying in any of the complaints.The plaintiff appealed those findings and the appeal upheld the findings and conclusions of the report of the investigating committee. In January 2011, the plaintiff appealed the decision to the ESBI Tribunal, an internal adjudicating body and ultimately to the Labour Court as he felt no progress was being made. The Labour Court recommended that the dispute “be referred back to the JIC [ESB Joint Industrial Council] for consideration and decision”.
The Naughton Complaint
On 2nd November, 2011 the plaintiff made a formal complaint of bullying against Mr. Naughton (the Naughton Complaint), which encompassed three allegations including breach of the Harassment Procedure document, coercion of him to avail of the ESTI Tribunal and breach of company policy in failing to supply him with documentation.
The Little Complaints
On 9th December, 2011, the plaintiff made twenty-two complaints against Ms. Little (the Little Complaints) alleging breach of the Harassment Procedure Document.
Investigation into Complaints and Subsequent Remarks by Plaintiff
On 14th December, 2011 the plaintiff was informed that Mr Michael Fox had been appointed as the “investigating manager” into his complaints. The plaintiff was extremely upset and distressed as Mr. Fox had already previously found against him and he was of the view that Mr. Fox would not give due regard to his complaints. During a telephone conversation with the Employment Assistance Program Officer with the defendant, the plaintiff stated that he was devastated by the appointment of Mr. Fox and also stated as a “throwaway colloquialism”, that he was glad he “hadn’t come to work armed”. That remark was overheard by other employees of the defendant and gave rise to considerable concern.
By letter dated 16th December, 2011 the plaintiff was informed that as regards his comment on 14th December, 2012 “within earshot of a number of people”, the defendant had no option but to take the “perceived threat extremely seriously”. An Garda Síochána had been informed of the matter. Further, the plaintiff was formally requested to make an appointment to attend his General Practitioner for assessment.
By further letter of 23rd December, 2011 the plaintiff was informed that following a discussion with the plaintiff’s GP, it had been advised that the plaintiff’s fitness for work could not be confirmed without an appropriate specialist assessment by a consultant psychiatrist. The consultant psychiatrist concluded that the plaintiff was at low risk of physical harm to others but recommended that the comments should be dealt with by way of disciplinary process.
By letter dated 2nd February, 2012 the plaintiff was informed that the comment on 14th December, 2011 and “related comments” would be dealt with under the Disciplinary Procedure Document and that he would remain on full pay throughout the process.
The Manager nominated to investigate the complaint concluded that the disciplinary sanction be confined to a formal written warning. The plaintiff did not appeal the finding, nor did he seek to return to work.
Investigation into Complaints and Trust and Confidence
Around this time the plaintiff’s complaints were also looked into and by letter dated 26th June, 2012, the defendant wrote to the plaintiff stating:
“Upon a review of the complaints you have made and the documentation relating thereto, I believe [the defendant] has substantial grounds to justify questioning whether it can continue to repose trust and confidence in you as an employee and whether it is possible that normal working relations can be restored between you and the colleagues against whom you have made such accusations. In those circumstances, I propose to immediately convene the disciplinary procedure to establish whether the relationship of trust and confidence has been damaged beyond repair and given the potential serious nature of the allegations, the procedure will be undertaken pursuant to Part (g) of the procedure entitled ‘Summary Disciplinary Action’.”
Ultimately the hearing manager, by letter dated 2nd November, 2012, informed the plaintiff of his finding in the following terms:
“I find that the way in which you conducted yourself during the various processes outlined was completely unacceptable and amounted to serious misconduct. I further find that taking all the facts into account, there is a breakdown of trust and confidence entitled to be held by the [defendant] in you as an employee. I do not believe that it is likely that the relationship could be re-established. Accordingly I am recommending your dismissal from [the defendant].”
The plaintiff was informed that he was entitled to appeal Mr. Brogan’s decision, but he must appeal within five working days of receipt of the letter.The plaintiff did not appeal that decision and was dismissed in writing with confirmation of his last day of employment being 14th January 2013.
The High Court noted that in accordance with the decision of the Supreme Court in Maha Lingam v. Health Service Executive  ELR 137, in order to be entitled to such relief [mandatory] he must establish that he has a strong case that he is likely to succeed at the hearing of the substantive action. In the event the plaintiff could establish that he is likely to succeed at the hearing of the substantive action, other issues then arise such as
(a) the adequacy of damages as a remedy for the plaintiff, if he is successful in the action, and (b) whether, if he is not successful, the undertaking as to damages which he has given to the Court would adequately protect the defendant,
The High Court was satisfied that the plaintiff was in need of the continuance of income commensurate with his salary while the proceedings were pending, and that it was probable damages awarded at the substantive hearing would not be an adequate remedy for him.
Justice Laffoy noted that the final issue to be addressed was whether the balance of convenience lay in favour of the grant or refusal of an injunction in the terms sought. She noted that this was a claim at common law for wrongful dismissal and the core issue was whether the defendant, in terminating the plaintiff’s employment was in breach of the plaintiff’s contract of employment. She noted even though the plaintiff’s dismissal, as communicated by the letter of 22nd November, 2012, was solely on the basis of the defendant’s implementation of the recommendation of the hearing manager, it must be considered in the light of all of the facts and the reality of the situation “is that everything that subsequently occurred flowed from the 2009 Complaints”.
Justice Laffoy concluded that in her view:
- The disciplinary process which was initiated on 26th June, 2012 had to be considered against the backdrop of the outcome of the disciplinary process which preceded it and also the status of the investigation of the plaintiff’s complaints under the Harassment Procedure Document.
- Regard has to be had to the reality that the plaintiff’s pursuit of the 2009 Complaints was the genesis of what subsequently transpired.
- The only investigation carried out in relation to the plaintiff’s complaints, or, indeed, the defendant’s allegations of misconduct against the plaintiff, from 2009 onwards was carried out by Baker Tilly Ryan Glennon.
- The disciplinary process initiated by the letter of 26th June, 2012 was, in reality, an investigation as to whether the plaintiff was guilty of misconduct in the making, and his mode of conduct, of the 2009 Complaints, the Naughton Complaint, and the Little Complaints, although the investigation of those complaints, which had been investigated to conclusion, had not resulted in any finding that the complaints were malicious or vexatious.
- Pursuant to the letter of 26th June, 2012, the defendant embarked on a fresh investigation which was merely an investigation of the documentation generated by the plaintiff in pursuing the complaints, but which was wholly divorced from any consideration of the veracity of the allegations made by the plaintiff in the documentation or the basis of his complaint.
Justice Laffoy concluded that the process which commenced with the letter of 26th June, 2012 was fundamentally flawed, both in substance and procedurally and that “the plaintiff has met the “strong case” test”
In determining where the balance of convenience lies, Justice Laffoy considered the decision of Clarke J. in Bergin v. Galway Clinic Doughiska Limited  2 I.R. 205. In that case, the plaintiff’s contract of employment as Chief Executive of the defendant was summarily terminated and Clarke J. recognised (at p. 220) that the state of relations between an employer and, in particular, key senior personnel, is a weighty factor in assessing the balance of convenience. She determined that having regard to the history of this matter, the balance of convenience “does not favour an order requiring the defendant to allow the plaintiff to return to work pending the trial of the action” . However she further noted that in accordance with Fennelly v. Generali SPA (the High Court, 12th March, 1985)  ILTR 73 “because of his financial circumstances, the plaintiff should be paid the remuneration to which he would be entitled in accordance with his contract of employment pending the trial of the action”.
Justice Laffoy further noted that the delay between receipt of the letter of 22nd November, 2012 and the initiation of the proceedings on 16th January, 2013, a period of approximately eight weeks, did not constitute unreasonable delay having regard to the intervention of the Christmas vacation.
Justice Laffoy made the following orders:
(a) an interlocutory injunction restraining the defendant from taking any steps to give effect to the termination of the plaintiff’s contract of employment pursuant to the letter dated 22nd November, 2012 pending the trial of the action;
(b) an injunction directing the defendant to continue to pay to the plaintiff his remuneration in accordance with his contract of employment pending the trial of the action; and
(c) an injunction restraining the defendant from appointing or assigning any person to carry out the plaintiff’s contractual responsibilities save in circumstances where the appointment or assignment of such person contains terms sufficient to permit the plaintiff to return to his duties as Consultant Level 1 should the Court, after a full hearing, be persuaded to make an order to that effect.