Supreme Court dismisses appeal; employee has no right to legal representation at disciplinary hearing for alleged theft.

AN CHÚIRT UACHTARACH THE SUPREME COURT Clarke CJ MacMenamin J Dunne J Charleton J O’Malley J

Supreme Court appeal number: S:AP:IE:2018:000178 [2019] IESC 000 Court of Appeal record number 2017/394 [2018] IECA 346 High Court record number 2017/5121P

BETWEEN BARRY MCKELVEY PLAINTIFF/APPELLANT

- AND - IARNRÓD ÉIREANN DEFENDANT/RESPONDENT

Judgment of Mr Justice Peter Charleton delivered on Monday November 11th 2019

1. While the analysis in this judgment reaches the same conclusion as that of Clarke CJ, that this employee has no entitlement to be legally represented at a disciplinary hearing about alleged misappropriation of property, a different analysis of the legal route is possible.

Contract governs the relationship between the parties even though a dismissal may be the result of the disciplinary process against an employee. Whereas, because of the position of Iarnród Éireann, as a publicly supported national transport company running the nation’s railway network, public law applies, nothing in the employment contract made between Barry McKelvey and the company requires that criminal trial rights of representation by lawyers and a right to cross-examine should intrude into the issue of his conduct as an employee. Essentially, the company wish to enquire into what is claimed to be the theft of company property. If that theft is supported as probable and the employee as an actor in the misappropriation, the ultimate penalty of dismissal will be contemplated. Preliminary enquiries have already been made and certain facts, apparently, uncovered. In response, the employee has given an explanation. It is now proposed to have an employment hearing in the context of disciplinary procedures that were agreed upon collectively. At that disciplinary hearing the employee may, as a matter of his contract, be represented by a fellow employee or by a trade union official. There is no requirement in the contract, or by the application of public law, for acceding to the employee’s request that a solicitor and barrister represent him at his own expense.

Background

2. It is best to mention the facts only briefly. These are subject to findings that may or may not be made at the disciplinary hearing. Hence, what follows is merely an outline and, in any event, the papers make presumptions as to knowledge which is perhaps well known in the company but with which, as the argument on appeal demonstrated, even the best of outside legal representatives may struggle with.

3. Two interviews are recorded with the employee in the appeal papers. The second will be referenced here as it seems based on a process of investigation that gained detail over time. The employee was with the company for about twenty years and had become a works inspector at Kildare. Prior to that, he was in Carlow. On the railways, various machines are driven by fuel-powered generators. This is not surprising given the need to work at a distance from stations on railway track, rolling stock and supporting signalling equipment. These include power spanners, impact wrenches, boring machines and light towers to illuminate work in the deep countryside.

For this, credit cards chargeable to the company are issued to employees at inspector level. It appears that staff at this employee’s level, in travelling, can fill up their cars on the cards. All are pin protected, the same way as any ordinary card but not as securely, it is claimed, since the cards may be shared among people of the same grade and the pin also passed on. What is concerned here, in part, is petrol usage from 2014 through to 2016. An allegation is made of a shift from petrol to diesel over 2014 through to 2015. Some use may have been made of the card at a distance of 100km from the home station.

Some use may have been made simultaneously of a card or cards at two locations distant from each other at or around the same time. A large amount of fuel is involved. Another central focus of the enquiry is that the usage of diesel fuel is inconsistent with purchases for travel for work and this is claimed to be worth considering because of the 53 litre capacity of the employee’s car and the purchase on one fill of considerably more fuel than that. As to explanations given, this is not a criminal trial process and hence the contractual duty of care and fidelity requires the employee to state what the answer to an issue is; see the judgment of Barrington J in Mooney v An Post [1998] 4 IR 288 at 298 and that of Clarke J in Rowland v An Post [2017] IESC 20 where at paragraph 5.3 he states that a “Bart Simpson” attitude does not accord with the nature of an employment contract.

The explanations given by the employee include that someone else was using the card, that the card was left behind in the depot and taken by another, that fuel was stored in jerry cans for legitimate purposes and that on occasion the employee forgot his wallet in which the card was left. As with many such reports, the person doing the enquiry and the employee share a common knowledge that tends to puzzle outsiders. Here, the proper usage for company or employee vehicles on company business is unexplained, the equipment and how it is fuelled is based on a shared understanding and the significance of distance from a depot must be known to people within the company, as must the system generally.

4. Another issue raised by the employee is that the company has statements from some fellow-employees and, apparently, they claim that on occasion the employee approached them and asked them to say that they had borrowed his card. That issue is asserted to raise a difficult point of law. In reality it does not. Evidence, whether in a criminal trial setting or in the more informal situation of a disciplinary hearing, should be probative. That means that in terms of logic it supports a conclusion being drawn from it, either on its own or through the consideration of that evidence with other evidence. It can be an admission for a person to ask another person to cover for him or her so as to make it appear that he or she had no connection with an incident. That is because, as a matter of logic, to ask someone to assert something wrongly so as to take responsibility on another’s behalf can justifiably lead to the conclusion that the person making the request required an answer at variance with reality. Obviously, whether this happened or not is not something within this Court’s competence on appeal, but it should be a fact that is capable of being found or not. No legal issue is engaged. If a proposed piece of evidence is merely prejudicial, such as that an employee has a particular sexual orientation, that has no place in logic in terms of proving that there has been a breach of employment duties. In criminal cases, prior convictions by an accused are not ordinarily admitted in evidence. But a prior conviction can logically help lead to a conclusion relevant to the case. Thus, in The People (AG) v Kirwan [1943] IR 279 it was logical to prove that the accused had learned butchery while serving a sentence for a prior offence, since the victim of the murder with which he was charged had been dismembered with professional skill. It is not merely prejudice and neither is it a big issue as to whether a person asked another to take responsibility for something he is suspected to have done.

Contract

5. There are few enough employees, apart from those on fixed-term contracts, gardaí and members of the Defence Forces being examples, who do not come within the scope of entitlement to redress under s 2 of the, heavily amended, Unfair Dismissals Act 1977.

Section 14(1) provides that an “employer shall, not later than 28 days after” entering “into a contract of employment with an employee, give to the employee a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee.” Representation is at the core of this since ss (3)

provides that the procedure referenced is one “that has been agreed upon by or on behalf of the employer concerned and by the employee concerned or a trade union or an excepted body within the meaning of the Trade Union Act, 1941, representing” the employee or which have “been established by the custom and practice of the employment concerned”. Under ss (2), employees should be notified of any alterations in procedure.

6. It is thus to be expected that through collective agreement, or by custom, that both employees and employers will be able to look to a written document in the event that an issue arises, to use the language of s 6 of the 1977 Act, in relation to “the capability, competence or qualifications of the employee for performing work of the kind which,” the employee “was employed by the employer to do” or “the conduct of the employee” or “the redundancy of the employee” or restrictions by law requiring dismissal, such as the employment of non-pharmacists in filling prescriptions. To again use the language of the legislation, at s 6, the employer must show that a dismissal was fair and that will not be so unless “having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

7. Dismissal is therefore about substance; whether an employee is competent or qualified to do the job, or whether misbehaviour is involved. Section 5(b) of the Unfair Dismissals Act 1993 introduced an entitlement to the Workplace Relations Commission to look at procedure and as to “the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal” and the “the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure” agreed for dismissal. In Connolly v McConnell [1983] IR 172, a basic approach to disciplinary proceedings was set as requiring that employers must not remove anemployee “without first according to him natural justice.” Thus an employee “must be given the reasons for [any] proposed dismissal, and an adequate opportunity of making his [or her] defence to the allegations made against him [or her].” Hence, there should be as full an investigation of the relevant events as is reasonable in the circumstances before disciplinary action is taken, the employee should be notified of this so as to enable an answer to be given by him or her and to have the matter impartially decided.

8. There may be employment situations where more than those centrally important principles are required by agreement or statutory instrument to be observed, for instance in the Garda Disciplinary Code, there involving what is, in terms of procedures, essentially a civil trial on a stated ‘charge’. Just because, however, some employees or some sectors have a different or enhanced approach, does not mean that employment disciplinary or grievance hearings should move towards a tribunal of enquiry model of legal representation, cross-examination and evidential objections: that will not help anyone.

What should be involved, instead, is a search for the truth with the employee enabled to make a contribution to that process by stating whatever explanation is available to him or her. After all, while this is not a two-stage process where rights are afforded at a second stage, as in McNamee v Revenue Commissioners [2016] IESC 33 and the cases therein cited, once a complaint is validly made to the Workplace Relations Commission, the burden of justifying dismissal is on the employer through the calling of evidence, and the parties may there be legally represented.

Procedures

9. Many contracts incorporate the Industrial Relations Act 1990 code of practice on grievance and disciplinary procedures, as set out in SI 146 of 2000. That was the case here. These do not include any entitlement to legal representation. Instead, as helpfully recounted in Frances Meenan, Employment Law (Dublin, 2014) at pages 885-6:

the general procedures for dealing with issues reflect the varying circumstances of enterprises and organisations, which must comply with the general principles of natural justice and fair procedures, which include that employee grievances are fairly examined and processed; details of any allegations complaint are put to the employee concerned; the employee concerned is given an opportunity to fully respond to any such allegations or complaints; the employee concerned is given an opportunity to avail of the right to be represented during the procedure; and the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by our on behalf of the employee and any other relevant or appropriate evidence, factors or circumstances. Section 3 of the code records the necessity to ensure that disciplinary matters are dealt with in accordance with natural justice. Paragraph 6 of Pt 4 of the Schedule then set out, depending on the organisation, the matters which ought to be satisfied so as to ensure compliance with the principles of natural justice and fair procedures. These include “[t]hat the employee concerned is given the opportunity to respond fully to any such allegations or complaints” and “[t]hat the employee concerned is given the opportunity to avail of the right to be represented during the procedure”.

10. Thus, the place to start, and often to end, is the contract of employment. That much is clear from the judgment of Barrington J in Mooney v An Post [1998] 4 IR 288 where at

298 he said:

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 the contract or the statutes contain a provision whereby an employee is entitled to a hearing before an independent board or arbitrator before it can be dismissed then clearly that independent board arbitrator must conduct the relevant proceedings with due respect to the principles of natural and constitutional justice. If, however, the contract (or the statute) provides that the employee may be dismissed for misconduct without specifying any procedure to be followed, the position may be more difficult. Certainly the employee is entitled to the benefit of fair procedures but what these demand will depend upon the terms of his employment and the circumstances surrounding his proposed dismissal. Certainly the minimum he is entitled to is to be informed of the charge against him and to be given an opportunity to answer it and to make submissions.

11. Because, in other cases, or indeed in this one, concessions have been made whereby a duty to call live evidence has been accepted as part of procedures, or where this has been incorporated in a collective agreement, or where cross-examination is allowed on a case by case basis, these entitlements are specific to individual hearings. An instance of that is Rowland v An Post [2017] IESC 20, but the procedures that are mentioned in that case, in the context of an argument for ever more elaborate procedures, are not of general application.

12. A difficulty may arise where an employment contract is silent as to grievance procedures, thus involving a breach of s 14(1) of the Unfair Dismissals Act 1977. No comment is here made as to whether the appropriate course is to apply the standard grievance procedure promulgated under the Industrial Relations Act 1990. That would appear to many to be a sensible course, bearing in mind the procedures were invented to assist in coming to the truth and, in a proper case, are not an end in themselves. Here, the grievance procedure clearly states that an employee is entitled to be represented at a disciplinary hearing and that for “the purposes of this Code of Practice” that “includes a colleague of the employee’s choice and a registered trade union official”. In case that might be ambiguous, the definition proceeds to state that an employee is not entitled to be represented by “any other person or body unconnected with the enterprise.” As a matter of contract, that disposes of the argument by the employee that the procedures involved require the presence of lawyers.

13. Issues may arise where standard procedures are not those sensibly derived from the 1990 Act but are, instead, incorporated into a contract of employment given to an employee at the commencement of his or her employment or are negotiated collectively with the trade union involved. Mistakes can be made. One of these might be that a person making the accusation of, for instance, bullying, is entitled to sit on the final hearing deciding on whether there was misconduct and what the results should be. It might be argued that a sensible interpretation of the contract, perhaps based upon the officious bystander rule, would lead to a sensible solution. Another situation, which has occurred in practice, was that the decision of a father would be appealed under the contract to an appellate body entirely composed of that man’s son. With good sense, these issues can be resolved so that a fair determination can take place with the object of arriving at the truth.

14. But such examples propose that there are minimum standards which, despite anything written in the contract, cannot be infringed. As much is said by Barrington J in the Mooney case but these are set at a level which recognises that the introduction of criminal trial structures into a procedure that is supposed to be implemented by people without legal training, but through the application of fairness, common sense and shrewdness, is not required as a matter of law. Such cases as support the proposition that a lawyer is sometimes, but very rarely, necessary in employment matters are derived from public law and should be confined within a public law context that is specifically limited.

15. Thus, in R v Secretary of State for the Home Department and Others, ex parte Tarrant [1984] 1 All ER 799, while those facing a disciplinary process were prisoners, and therefore subject to such penalties as close confinement for two months and the loss of liberty by the release date being put back through removing remission for up to 6 months, the reality of the case was that a lawyer was seen as necessary because the prison authorities decided to propose a charge of mutiny; a concept akin in complexity to that of treason. Thereafter, the research in this case has struggled to find any case which followed that precedent because more sensible courses have been followed, most especially that of simply asking whether certain facts did or did not occur. Hence, in Hone v Maze Prison Board [1988] 1 All ER 321 the two applicants were prisoners and were charged respectively with throwing a cup of tea into a prison officer’s face and assaulting another prison officer, causing severe injuries to his face. In essence, these were allegations of fact, if true, and if charged as such, they would constitute criminal offences of assault causing harm. Lord Goff, at 326-7 rejected the proposition that anyone charged with a crime, or the equivalent thereof in terms of facts to be proven in a civil context, and liable to punishment would be entitled as a matter of natural justice to legal representation. In the public law sphere, the context determined what the requirements of natural justice would be. Similarly, in Burns v Governor of Castlerea Prison [2009] 3 IR 682, while approving a list of factors derived from the Tarrant case, Geoghegan J, in this court, was not prepared to impose legal representation for a discipline hearing related to the proper charging of expenses and claiming of overtime.

16. Finally, is worth noting that in a public law context, where an enquiry on behalf of the community takes place, that it is not necessarily the case that a procedure derived from Re Haughey [1971] IR 217 is necessary. Yet, it is precisely there that some discussions of what are or are not fair procedures begin and, furthermore, with the consideration of the case in a completely separate sphere, namely State (Healy) v Donoghue [1976] IR 325, judgement of Gannon J at 334 about legal aid on serious criminal charges. Clark J in Atlantean v Minister for Communications and Natural Resources [2007] IEHC 233 describes basic procedures applicable where someone is to lose rights. A person so affected “is entitled to” some reasonable notice of what might be described as “the charge against him”, with cross-examination or a public hearing not coming into the equation necessarily, that person must “be given an opportunity to answer [the charge] and the chance to make submissions”. That idea, fair notice and a chance to comment, with no doubt an objective investigation as part of the matrix, is also key to the Mooney decision.

Then there is the practice, derived from the decision of the English Court of Appeal in Re Pergamon Press Ltd [1971] Ch 388. That concerned an investigation in the public interest by statutory company inspectors about the conduct of a company collapse and how directors, including Robert Maxwell, abided by directors’ ethics. There, in that very serious process, the procedure followed was to make enquiry in the absence of representation by those who may be blamed for public misdemeanours and with no right by them to crossexamine. Instead, on this procedure, a report is drawn up and a draft of preliminary findings together with the material on which this is based is sent to any person who may be criticised. In seeking and in considering whatever comments followed, the duty to consider representations is fulfilled. The various judgments in Shatter v Guerin [2019] IESC 9 emphasise that what might be called full criminal trial rights are not necessary in all circumstances and return instead to the duty to take on board the point of view and of fact of a person who may loose rights and to record that viewpoint and fairly consider it before reaching a conclusion; a procedure echoing Pergamon Press even though what was involved in Shatter v Guerin was not supposed to be an enquiry at all.

17. These are issues which may require consideration in an appropriate case and are merely outlined as to the central point involved, which is that criminal trial rights are not universally applicable to all enquiries.

Injunction

18. The principles as to allowing a measure of appreciation to tribunals to act in good faith in the choice of procedures, where not obvious from an employment contract, not to assume unfairness and deprecating premature interventions by application to court, as derived from the judgments of Clarke J in Becker v Board of Management of Saint Dominic’s Secondary School, Cabra [2006] IEHC 130 and Rowland v An Post [2017] IESC 20, have not been challenged on this appeal. These stand as a proper interpretation of the circumstances where the courts should or should not intervene to divert a disciplinary procedure derived from contract from its ordinary course. Essentially, it is only where something has gone so wrong that contract rights to fair procedures are lost and cannot be corrected that an intervention by the courts is justified.

Result

19. The applicant is entitled by contract to have a fellow employee assist him at the disciplinary hearing, or to be represented by a trade union official. By contract, no other or outside individual may represent him.