Martin v. Nationwide Building Society [1999] IEHC 163 (18th May, 1999)

[ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [ DONATE ] High Court of Ireland Decisions You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Martin v. Nationwide Building Society [1999] IEHC 163 (18th May, 1999) URL: https://www.bailii.org/ie/cases/IEHC/1999/163.html Cite as: [1999] IEHC 163 [ New search ] [ Printable RTF version ] [ Help ] Martin v. Nationwide Building Society [1999] IEHC 163 (18th May, 1999) THE HIGH COURT No. 1503P BETWEEN JOHN A. MARTIN (OTHERWISE SEAN MARTIN) PLAINTIFF AND THE NATIONWIDE BUILDING SOCIETY DEFENDANT OUTLINE JUDGMENT of Mrs. Justice Macken delivered on the 18th day of May 1999 1. This is an application for interlocutory relief. An Interim Order was made on the 12th day of February 1999 by Miss Justice Laffoy, pursuant to which she ordered that the Defendant be restrained from prosecuting a disciplinary enquiry as to matters concerning the Plaintiff. The claim in these proceedings is for an Order for the reinstatement of the Plaintiff back into his position as Branch Manager at the Defendant's branch office in Cavan Town. The Defendant is a building society of national renown. 2. The background to the matter can be easily summarised . Prior to 1986, the Plaintiff was involved in an auctioneering business together with his brother. The details of this are not important to the decision I have to make, but at some time around the year 1986 the Plaintiff was the successful applicant for the position of Manager of the then new branch of the Defendant in Cavan Town. It is said by the Plaintiff that this previous involvement in auctioneering was well known to the Defendant and the Defendant's senior management. This is disputed by the Defendant who say that, while it was known that the Plaintiff had been involved in his brother's business, it was intended by the Defendant (and indeed it says, represented to it by the Plaintiff) that he was ceasing his involvement in that business, save for what was termed "tidying up" and that he would thereafter be devoting himself exclusively to the business of the Defendant. On the facts before me, it would not be possible to resolve this particular issue, because it will depend, at the end of the day, on the evidence which is given in relation to the same. 3. Some years passed since 1986 and eventually on the 3rd November 1998, the Plaintiff was suspended from his position as Manager with the Defendant. It is clear from the correspondence that this initial suspension was to be for a period of five days only, but, in fact, the Plaintiff remains suspended right up to the present day, and, from the tenor of the Defendant's submissions, there is no indication as to how long that suspension may continue. The suspension had been imposed, the Defendant says, so as to enable it proceed through the disciplinary process which it says covers a situation such as has arisen here. 4. The Plaintiff, while suspended, is nevertheless in receipt of full pay. The Plaintiff contends however, that having regard to the length of time which has passed since the commencement of his suspension and since the investigation process took place, it is wrong that this should be permitted to continue. Counsel further argues on behalf of the Plaintiff that the suspension was invalid because no reasons were given to the Plaintiff. 5. In the alternative, he says that the reasons now being put forward by the Defendant are not reasons which were ever given to him previously and they could not therefore form part of the reasons for his suspension. 6. The general law relating to dismissals from employment is well established at this time. This is so even in relation to interlocutory injunctions in employment cases where previously there was a marked reluctance to order reinstatement. The principles have been established in cases such as Fennelly -v- Assiourazioni Spa (1985) 3 I. L. T. R. 73, Phelan -v- Bic Biro (1996) I. L. R. M., Shortt -v- Datapackaging (1994) E. L. R. 251and many others as relied on by the Plaintiff. 7. However, I am not satisfied that these cases are on the point insofar as the facts in this case are concerned. In the present case, the Plaintiff, although suspended, is on full pay. Moreover, even in the cases where reinstatement has been sought at interlocutory stage, the above cases and others make it clear that if the employee does not enjoy the wholehearted support or confidence of his employer, the Court will be very slow indeed to reinstate the employee pending the full action. 8. What is sought here is something different. Essentially what is said is that (a) the suspension has being going on too long. That has nothing to do with purported dismissal. And (b) the reasons which were originally given are not the reasons which are now sought to be relied on, and the Plaintiff had no opportunity to answer the reasons now sought to be the basis for the suspension. The Defendant says that this is not a case in which any dismissal is taking place, and therefore the several dismissal cases which have been relied on by the Plaintiff are not applicable. It says that what is happening here is no more that what is provided for by the disciplinary code or procedures which govern the Plaintiff's employment. The Defendant says that these disciplinary procedures have not yet been concluded. The Defendant says, through the affidavit of Fiona Couse, that no decision has been taken and that everything will be considered before any such decision is in fact made. Absent any such decision, I am of the view that this is a correct approach, namely, that the disciplinary procedure should ordinarily proceed. I cannot at this time take the view that any decision will be made on the basis of material not put before the Plaintiff, or in respect of which the Plaintiff will not be given an opportunity of being heard. If the Defendant takes a step to dismiss the Plaintiff without providing for the rules of natural and constitutional justice, then the Plaintiff will have a remedy for such action. But that remedy cannot be invoked at this time when it is clear that the investigation is not yet complete. 9. That of course does not end the matter. On the question as to whether the suspension has gone on for too long a period, this is a question of fact and judgment in my view. It was originally intended that the matter would be resolved in a matter of days, and that the suspension would be for a period of five days or thereabouts. That appears to me to be quite a reasonable period of time and one which the Plaintiff did not, quite properly, dispute. It is a period of time during which, having regard to the nature of the claims being made by the Defendant, all necessary enquiries could ordinarily have been made and the matter concluded one way or another. 10. But the best intentions of parties can be thwarted for good and valid reasons, not anticipated at the commencement of an investigation, and so I now must look to see whether any good or valid reasons exist for the fact that the investigation did not conclude during the intended time or during a reasonable period. 11. The time schedule appears to have been as follows:- (a) The Plaintiff was suspended on the 3rd November, 1998; (b) On the 3rd November, 1998 the Plaintiff was informed that the suspension was to be for a period of five days. A letter of the same date confirmed this time scale. The letter however indicated that the Defendant reserved the right to extend the suspension in the event that certain other matters came to light. I do not find among the papers any indication that the Defendant in fact extended the suspension in any formal way, although it is the case that the Plaintiff is still under suspension and the matter has not concluded. (c) The Defendant indicated that a disciplinary hearing would take place on the 11th November 1998, which tends to confirm its intention that the suspension would not last more than five days. (d) The Plaintiff's solicitor and the Defendant's solicitors exchanged certain correspondence. In particular, by letter of the 6th November 1998, the Plaintiff's solicitor indicated that the disciplinary hearing was premature in light of the fact that no grounds had, at that time, been furnished to the Plaintiff. (e) There appears to have been very considerable delay on the part of the Defendant in dealing with matters raised on behalf of the Plaintiff. (f) In the course of the letter from the Defendant to the Plaintiff's solicitor dated the 10th November, the Defendant, inter alia , included the following: "At this juncture, the Society has received enough information to clearly see that your client is involved in an alternative business . In the interests of natural justice and to avoid delay which could be stressful for your client, the Society now wishes to put the matter before your clients as expeditiously as possible." (Emphasis added). (h) It was clear from that letter (a) that the Defendant had enough information to proceed to a formal hearing, and (b) that it appreciated that any delay, or at least undue delay, could be stressful for the Plaintiff; (i) With that letter came information in the form of a copy letter concerning the Plaintiff's alleged alternative business, and other correspondence; (j) However, the Plaintiff's solicitor drew attention to the fact the Defendant had also said, in the same letter, that the "investigation was ongoing" , and objected to any oral hearing until the entire of the allegations which were to be made were notified; (k) The Defendant replied on the 11th November, confirming that the allegation against the Plaintiff was the same as previously notified, and that the information which it was compiling "all refers to one allegation" . It was stated by the Defendant that no fresh allegations had come into existence. But the letter did say that the report could not be furnished to the Plaintiff until "we have completed our investigation in full" . (l) In reply the Plaintiff's solicitors wrote and indicated that until a full report was available to the Plaintiff, the Plaintiff could not properly deal with the matter. That letter was written on the 12th November (in response to a letter of the 11th November). Until then, a very short period of time had elapsed from the 3rd November, although it was longer than the original five days envisaged. (m) No reply was received to that letter, and on the 20th November the Plaintiff's solicitor again wrote with a reminder, and asked for a reply "as a matter of urgency" . (n) That letter was not answered until the 1st December 1998, enclosing a "preliminary" report, and indicating "our investigations are continuing" , and inviting the Plaintiff to reply to the matters raised in the report. The attached report was undated; (o) A further letter was received, dated the 3rd December. These two letters were sent by fax but the originals had not been received by the 4th December, when the Plaintiff's solicitors wrote objecting, inter alia, to the lengthy delay and other matters. The letter pointed out that over one month had passed since the request for a full report. The letter further indicated that the Plaintiff was ready and willing to attend a meeting when a full report and all allegations were finalised. The Plaintiff's solicitor also pointed out that the preliminary report contained references to "third party" without identification, to the fact that no vouching documents had been furnished, and said it was impossible to respond. The Plaintiff's solicitor drew attention to the Defendant's stated earlier view that "both parties agree that there should be no undue delay in dealing with this matter" , as early as the 11th November. (p) The Plaintiff's solicitor in the same letter of the 4th December pointed out how stressful and traumatic his continued suspension was and sought reinstatement of the Plaintiff. (q) The Defendant replied by letter of the 8th December, enclosing further documentation and requesting the Plaintiff to reply to the allegations made against him, and to furnish written replies to the matters raised in the preliminary report. In the event of there being no agreement on a time, the Defendant directed the Plaintiff to attend on the 14th December 1998, and in his absence the matter would proceed; (r) Objection was taken to this by letter of the 10th December, which repeated requests for the identity of the "third parties" referred to in the preliminary report and continued to object to the failure of the Defendant to produce a full report. The Plaintiff indicated he would attend the meeting but would raise precisely the same objections as had been raised in the course of correspondence; (s) The letter was not responded to and by a further letter of the 15th January 1999, the Plaintiff's solicitor wrote again, objecting to the fact that a period of ten weeks had elapsed and no reasonable or tenable grounds for suspension had been provided, and indicating that in the absence of reinstatement, an application would be made to Court; (t) The letter was replied to on the 21st January by the Defendant in which the Defendant again stated that the investigation was still ongoing. It continued: "The Society has no wish to cause any distress or trauma to your client or his family and accordingly, has moved to expedite its investigation" , and pointed out that the intervention of the Christmas period somewhat delayed matters. (u) Again an objection was raised by the Plaintiff's solicitor, pointing out that no memo of the meeting of the 15th December had been furnished nor any final report containing the allegations against the Plaintiff. By his letter of the 25th January, he requested a note of the meeting of the 15th December "by return" . No reply was received. 12. For completeness, I should say something about the meeting held on the 15th December. It is stated by the Plaintiff that at that meeting he told the Defendant that he had been certified as an auctioneer since 1982, that it was a matter of public record, and that the matter was known to the Defendant and its servants or agents. The Plaintiff indicated that no decision was communicated by the Defendant to him at the meeting. This is not denied by the Defendant. There appears to be no reason put forward by the Defendant as to why, after that meeting, the matter was not finalised, save that the Defendant undertook not to take a decision over Christmas. 13. Having regard to the foregoing time scale, is it the position that the suspension has continued for a period which is unfair or improper? It seems to me that, if the suspension was for the purposes of investigating a single allegation, which the Defendant said it was, and which the Defendant repeated on more than one occasion, the original suggested suspension period of five days was probably appropriate. Even allowing for the fact that in the best regulated of worlds, matters can become delayed for good reason, double or treble that period would only bring that to a period of ten or fifteen days. By the time the Plaintiff's solicitor wrote to the Defendant in early January a period of ten weeks had elapsed during which time (a) no decision had been taken, (b) no final report containing all the allegations which the Plaintiff should have to meet had been furnished; and (c) no developments had been notified to the Plaintiff since the meeting of the 15th December, which appears to have been attended by the Plaintiff under some pressure. 14. The reasons given by the Defendant are not such as to justify the delay in finalising the matters necessary to put the case to the Plaintiff. It was the Defendant's decision to indicate that a "final report" would be made available. It was the Defendant's decision not to furnish a copy of any such report to the Plaintiff, for whatever reason. It was entirely within the control of the Defendant to complete its investigation within a particular period of time chosen by it. The only real excuse put forward for any delay is that attributable to the Christmas period. By the end of January, there was still no report and the Plaintiff was being called, yet again, to another meeting, but without further allegations being made or details thereof being furnished to him. In the course of the submissions made on behalf of the Defendant before me, it was stated that the investigation was still continuing, even then. This despite the fact that the Defendant, in apparent appreciation of the effect that the suspension was having on the Plaintiff, indicated previously by letter, that it was pursuing the matter expeditiously. I appreciate of course that an Order was in place as of the 12th February, 1999. 15. In all these circumstances, I am satisfied that the delay in dealing with the complaint or allegation against the Plaintiff has been inordinate and unjust. The Plaintiff is entitled to have such matters dealt within a reasonably speedy time scale. This is well established by law and in particular in the case of Charlton -v- H. H. The Aga Khan's Stud Societe Civile , unreported Laffoy J. 22 December 1998. 16. In the foregoing circumstances, it seems to me that I must look to see whether, in the context of an interlocutory application it would be appropriate to give the relief sought, namely, the setting aside of the suspension because of the time delay. The Plaintiff has established a fair issue to be tried on the question of undue delay. I must now consider whether, if I do not do not grant the relief, the Plaintiff will suffer irreparable loss and damage between now and the hearing of the action. I am satisfied, from the evidence, including the medical evidence, and from the nature of the suspension and from the fact that it has occurred in a relatively small locality where such matters became general public knowledge, and alleged to be so by the Plaintiff, that he will suffer irreparable loss and damage. On the other hand, I have now to consider whether, in the event the suspension is lifted, the Defendant will suffer irreparable loss and damage. The Defendant has put forward no evidence of any loss, or any irreparable loss, which it claims it would sustain, if the suspension were lifted. That being so, I have to assume that it does not claim it will so suffer any irreparable loss. But even if I were to take it from the affidavits filed that some suggestion of irreparable loss would occur, what loss it that? It is true that the suspension will have the effect of permitting the Plaintiff to resume his position with the Defendant. It is equally true that the Defendant does not appear to have the wholehearted trust in the Plaintiff. But the Defendant is at all times permitted pursuant to its own regulations to carry out an investigation of the Plaintiff, so long as this is carried out in a timely and proper manner. In the circumstances, I do not think that the loss which the Defendant might suffer would be of an irreparable type even if there were clear evidence of this on the affidavits and there is none. 17. As to the balance of convenience, having regard to the findings which I have made, I do not have to consider this. But had I had to do so, I would also have held in favour of the Plaintiff, because the inconvenience to the Defendant of commencing a proper and speedy investigation of the Plaintiff, and bringing that suspension to an end by the proper means, is far outweighed by the inconvenience to the Plaintiff, who does not and cannot know, and had not known for an inordinate period of time and would not know, also for an inordinate period of time, what his future is or might be with the Defendant. It seems to me that the Plaintiff should not be put in that position, pending the hearing of the action, notwithstanding that he is on full pay. 18. I therefore propose to make Orders in the terms of paragraphs 2, 4, 7 and 8 of the Notice of Motion. © 1999 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/ie/cases/IEHC/1999/163.html