Howard v. University College Cork [2000] IEHC 138 (25th July, 2000)

JUDGMENT OF Mr Justice O’Donovan delivered on the 25th day of July 2000. 1. This is an Application by the Plaintiff, who is currently the Professor and head of the Department of German at the University College Cork, for interlocutory injunctions restraining the Defendants, their servants or agents from; (a) taking any steps whatsoever to remove the Plaintiff from her post as head of the Department of German at University College Cork, (b) taking any steps towards appointing a person, other than the Plaintiff, to the post of head of the Department of German at the University College Cork and (c) howsoever from interfering with or prohibiting the Plaintiff from performing her role and functions as head of the Department of German at University College Cork. 2. In addition, the Plaintiff seeks such further or other reliefs as to the Court shall seem meet. 3. The Plaintiffs Application is made in the context of proceedings which were initiated by Plenary Summons on the 16th day of March 2000 and in respect of which the Statement of Claim was delivered on the 19th of May 2000. In the proceedings, the Plaintiff claims a variety of reliefs arising (inter alia) from allegations of harassment and bullying which the Defendants allege have been made against the Plaintiff and, as a result, have caused a hostile environment to be created within the Department of German at University College Cork and the manner in which the Defendants purported to investigate those allegations. In particular, the Plaintiff complains that the Defendants have failed to vindicate her position as Professor of German and head of the Department of German at University College Cork and, accordingly, that she is apprehensive that the Defendants will remove her from the post of head of the Department of German at the said University. In those circumstances, the reliefs sought by the Plaintiff in these proceedings include injunctive relief similar to that which is the subject matter of this Application. 4. In the course of the hearing of the Application, I had evidence which satisfied me that the Plaintiff had been appointed to the post of Professor of German at the Defendant University by the Senate of the National University of Ireland on the 8th of July 1993. The said appointment was made pursuant to statute 162 of University College Cork made by the governing body of the College on the 19th day of January 1993 pursuant to powers in that behalf conferred by the Irish Universities Act 1908 and in chapter 1(3) of the said statute it is provided that, on initial appointment, a Professor of German shall be head of the Department of German for a period of at least 5 years. Accordingly, it would appear to follow that, when initially appointed Professor of German, the holder of that office is also required to perform the duties of head of the Department of German for a period of at least 5 years but without any additional emolument and, so far as the Plaintiff is concerned, that was the position which obtained on her appointment to the post of Professor of German at University College Cork on the 8th of July 1993. 5. At an early stage in the course of the hearing of this Application it appeared to me that, in the light of the contents of a letter dated the 23rd March 2000 addressed to the Plaintiff by Mr. Aidan Moran, Registrar and Vice-president for Academic Affairs at University College Cork in which (inter alia) Mr. Moran stated “ I am advised that your initial 5 year appointment as department head expired on the 1st of January 1999” 6. The Defendants were maintaining that, as of the 1st of January 1999 the Plaintiff had ceased to be head of the Department of German at the University College Cork. If that were so, it seemed to me that the Defendants were in error because, as I interpret Chapter 1(3) of Statute 162 of University College Cork, the office of head of the Department of German when vested in the Professor of German on initial appointment was not for a fixed term and, accordingly, could not be determined by effluxion of time. However, I was informed by Mr. Stewart, Senior Counsel on behalf of the Defendants, that the Defendants accept that the office of head of the Department of German which was vested in the Plaintiff on the 8th of July 1993 could not determine by effluxion of time and, accordingly, it was accepted by the Defendants that the Plaintiff is the current holder of that office. However, it was submitted on behalf of the Defendants that, if the Defendants followed procedures for the selection/appointment of Department Heads which were approved at a meeting of the governing body of University College Cork held on the 29th day of February 2000, and, in so doing, appointed someone other than the Plaintiff to be head of the said Department, the Plaintiffs position as head of the Department would automatically determine. In that regard, Counsel on behalf of the Defendants submitted that a determination by the governing body at University College Cork in accordance with the procedures for selection/appointment of Department Heads laid down on the 29th of February 2000 could be made without notice to the Plaintiff, without explanation for the reason therefore and that it did not require observance of the Principles of Natural Justice. In that regard, Counsel for the Defendants submitted that the post of head of the Department of German at University College Cork did not involve employment as such, because it was inevitably associated with a position on the staff of the Department, such as Professorship, and, accordingly, the person exercising the functions of the head of the Department was not, in performing that role, an employee and, therefore, termination of that post did not involve dismissal from employment, as it is ordinarily understood. In those circumstances, it was submitted on behalf of the Defendants that Principles of Natural and Constitutional Justice are not relevant when considering the termination of the post of head of the Department of German at University College Cork and need not be observed. On behalf of the Plaintiff, it was submitted that if, as suggested on behalf of the Defendants, the head of the Department of German at University College Cork was not an employee, then the post was meaningless whereas the fact of the matter is, as appears from the Affidavits filed on behalf of the Defendants that they consider the post to be a very important one and, accordingly, it was submitted that, when the question of changing the head of the Department of German at University College Cork is being considered, the governing body cannot act capriciously, or unilaterally, but must observe fair procedures and, in particular, must give the holder of the office reasonable notice of the intention to consider the change and the reasons therefore. Clearly, this is an issue involving questions of law which, ultimately, will have to be resolved at the trial of this action. However, in my view, in the light of the Judgment of the Supreme Court in the well known case of Campus Oil and Others -v- the Minister for Industry and Energy and Others (1983 I. R. Page 88) it is not an issue which I must resolve when considering whether or not to grant the injunctive relief currently sought by the Plaintiff. In that regard, it appears to me that, insofar as that issue is concerned, when determining whether or not to grant the relief sought, I merely have to consider whether or not there is a fair question to be tried. 7. It is unnecessary for the purpose of this Application that I should review in detail or, indeed, at all the events which gave rise to these proceedings because those events are not relevant to any issue which I have to decide on the hearing of this Application. In that regard, it is sufficient to note that allegations of impropriety with regard to her conduct in the performance of her role as head of the Department of German at University College Cork have been made against the Plaintiff and, for her part, she complains about the manner in which the Defendants purported to investigate those allegations and, in particular she complains that the Defendants failed to vindicate her position as Professor of German and head of the Department of German at University College Cork and, as a result, she fears that the Defendants will remove her from the post of head of the Department. These allegations, complaints and fears all give rise to issues which will have to be determined at the trial of this action but, again, they are not issues which I have to determine for the purpose of this Application for the simple reason that the evidence before me is incomplete, in that, it is evidence on Affidavit which has not been tested by cross examination. Insofar as those issues are concerned; no less than with regard to the issue as to whether or not the Defendants must observe fair procedures when considering whether or not to terminate the Plaintiffs office as head of the Department of German, all I have to decide is whether or not there is a fair question to be determined at the trial of the action and, in that regard, as laid down by the Court in Campus Oil Limited -v- The Minister for Industry and Energy, hereinbefore referred to, I only have to be satisfied that there is a fair question to be determined; not that there is a probability that the Plaintiff will succeed on any particular issue. 8. In the light of the foregoing, I have no doubt at all but that, at the trial of this action, there are fair questions to be determined with regard; firstly, as to whether or not the Defendants are obliged to observe fair procedures when considering the determination of the Plaintiffs role as head of the Department of German at University College Cork and, secondly, whether or not the Plaintiff has legitimate complaints with regard to the investigation by the Defendants of the allegations of impropriety which have made against her and the alleged failure by the Defendants to vindicate her position as Professor of German and head of the Department of German. However, it does not necessarily follow that the Plaintiff is entitled to the injunctive relief currently being sought by her . In that regard, I take the point made by Counsel for the Defendant that, whatever (if any) relief is afforded to the Plaintiff at the trial of this action, it will not include the permanent injunction sought at sub paragraph (h) and the declaration sought at sub paragraph (j) in the prayer in the Plaintiffs Statement of Claim. However, I do not think that that fact , in itself, is a sufficient ground to refuse the injunctive relief currently being sought by the Plaintiff. While, as I have indicated, I do not think it possible that, at the trial of the action, the Plaintiff could be awarded the permanent injunction and the Declaration to which I have referred, I have little doubt but that the trial Judge would accede to an Application to amend the Statement of Claim by qualifying the claim for the permanent injunction by the addition of the words “except in accordance with law” and by qualifying the declaration sought by the addition of the words “unless and until lawfully terminated” and, in that event I think that it could well happen that the trial Judge could afford the Plaintiff relief in those terms. A much more compelling argument in favour of the proposition that I should refuse the injunctive relief currently sought by the Plaintiff is that, even in the event that she succeeds in her claim herein at the trial of this action, an award of damages would adequately compensate her for any wrong done to her and, in any event, the balance of convenience as between the parties would mitigate against the Defendants being prevented from appointing a new head to the Department of German at University College Cork in place of the Plaintiff; it being submitted that the current state of unrest in the Department of German arising from the criticism of the Plaintiffs conduct in the performance of her role as head of the Department necessitates consideration as to whether or not someone, other than the Plaintiff, should be appointed to the post. While it is a fact that, even were the Plaintiff removed from her position as head of the Department of German, she would continue to be a Professor of German and would not suffer any diminution in her income, there is no doubt in my mind but that, were that to happen, the publics perception would be that her role as head of the Department had been terminated because of misconduct of the kind that has been alleged against her and in that regard, Counsel on behalf of the Defendant conceded that the “dogs in the street” are aware of the allegations of impropriety and the criticisms which have been levied against the Plaintiff with regard to her conduct as head of the Department of German at University College Cork. Indeed, given that it appears that the only persons, apart from the Plaintiff, herself, who would be eligible for appointment to the position of head of the Department of German at University College Cork are among the persons who have been critical of the Plaintiff, there is no doubt in my mind but that, if one of those were to be appointed head of the Department in place of the Plaintiff, everyone would assume; not only that the Plaintiff had been removed from the position as head of the Department because of that criticism, but also that the criticism was justified. That being so, it seems to me that, if the Plaintiffs role as head of the Department of German at University College Cork is terminated in advance of the trial of this action and, at the hearing, it was determined by the trial Judge that that termination was unlawful, it would be extremely difficult; if not impossible, for the trial Judge to access a sum for damages which would adequately compensate the Plaintiff for the injury to her reputation because, while it may well be that, even if she is removed from the position as head of the Department, she would continue to be Professor of German at the College, for all that is now known it may well happen that, at some time in the future, she would be considered for a more prestigious post in another part of the world and fail to be appointed to that post because of her treatment at the hands of the Defendants. Essentially, therefore, it seems to me that, were the Plaintiff to be deprived of her post as head of the Department of German at University College Cork and it transpired that that depravation was unlawful, it is unlikely that any award of damages would adequately compensate her for the injury to her reputation. 9. Finally I must consider where the balance of convenience lies between granting or refusing the injunctive relief sought by the Plaintiff. In this regard, as I have already indicated, it is submitted on behalf of the Defendants that, as a result of the complaints and criticisms which have been levied against the Plaintiff, there is considerable unrest within the Department of German at University College Cork. Indeed, Counsel for the Defendants suggested that the Department was in crisis and that the only way to resolve the problem was to consider the appointment of a new head to the Department. In this regard, it seems to me that, whether or not there are significant problems within the Department of German at University College Cork and, if there are, who is to blame for them, is not a relevant consideration at the hearing of this Application. That is a problem for the trial Judge. However, given that the Defendants concede that the Plaintiff is entitled to remain as Professor of German at University College Cork and given that she has been the head of the Department of German at the University for the last 6 years, it seems to me that the appointment of a new head of the Department in advance of the hearing, while the question as to whether or not the Plaintiff is entitled to retain the post is still, as it were “up in the air” is likely to create greater difficulties within the Department. Moreover, I think that if a new head of the Department were appointed in advance of the hearing, it would place an intolerable burden on the trial Judge because, instead of having to decide the fairly straightforward question as to whether or not the Plaintiff was entitled to retain her role as head of the Department, he or she would then have to choose between two identified persons and, possibly, remove someone a post to which that had been appointed only a very short time previously. In those circumstances, it seems to me that the balance of convenience between granting or refusing the injunctive relief currently sought by the Plaintiff demands that the status quo be maintained and in that regard, I specifically, reject the submission by the Defendants that an injunction against the Defendants at this stage of the proceedings will cause them irreparable harm and/or amount to discrimination in favour of the Plaintiff. I cannot accept that maintaining a situation which has obtained for the last 6 years could have that effect. 10. In the foregoing circumstances I will grant the injunctions sought at sub paragraphs a, b, and c of the Plaintiffs Notice of Motion dated the 26th of May last and I will reserve the costs of this Application to the trial Judge. © 2000 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII