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  • Every Employment Disciplinary process involves an Investigation and a Disciplinary Hearing. The Investigation should merely be an investigation of the facts and can either be a very informal process which is not covered specifically in the Employers Disciplinary Policy or alternatively it must be undertaken strictly in accordance with the procedures in the Disciplinary Policy where there are defined Investigation procedures in the Disciplinary Policy. Either way, what is important is that the person charged with undertaking the Investigation is not seen to have come to a decision on the culpability or otherwise of the employee under investigation. The Investigator can only go so far as to state that the Investigation merits the commencement of the Disciplinary process. Where the Investigator concludes, in advance of that Disciplinary process, that the employee is already culpable of the suspected conduct then grounds may exist for having that Investigation terminated by way of a High Court Injunction.

    Such an Injunction application was made in the case of McLoughlin –v- Setanta Insurance Services Limited [2011] IEHC 410 where Miss Justice Laffoy delivered her Decision on 8th day of November, 2011. In that case the Plaintiff Ms McLoughlin, an employee of the defendant company, disputed her suspension and the commencement of an investigative process which was to lead to the implementation of a disciplinary process in relation to her employment. Such applications before the Court are commenced by way of sworn Affidavits filed before the Court by both Plaintiff and Defendant. In an affidavit, Ms. Jordan the defendant`s Human Resources Manager, having averred that her investigation revolved around actions that were taken in late September 2010 which “gave rise to a significant overstatement of underwriting results” by the Plaintiff for the year ended 30th September, 2010 and “substantial reductions in the prevailing claims reserves held in the books of the defendant at that time”, outlined various reviews which had been carried out in relation to the defendant’s claim management position from November 2010 onwards by an employee of the defendant and a consultant with expertise in insurance and, in particular, the personal injuries insurance area. She also referred to the fact that a Mr. Derek Douglas became actively involved in the day to day management of the Setanta Group companies in June 2011 and that he became the chief executive officer of the Group following the resignation of Mr. Mike Matthews, the plaintiff’s husband, from that position on 21st July, 2011. She averred that Mr. Douglas became aware of potential irregularities regarding the process adopted and the outcome for the 2010 year end claims reserve review shortly after assuming his role in June 2011 and she specifically pointed to an instruction which had been given by the plaintiff by e-mail in September 2010 and its consequences. Those matters, amongst others, she averred, gave rise to the decision to suspend the plaintiff and to initiate a disciplinary investigation.

    In particular, the Judge noted the following averment made by Ms Jordan in her Affidavit :
    “The Plaintiff is quite correct when she says that the Defendant is dissatisfied with her management of its business and in particular the manner in which she has conducted herself in her dealings with staff, service providers, third party representatives and customers of the Defendant. Her conduct in that regard would, on its own, warrant the termination of her employment for cause.”

    It was on this basis that the Plaintiff objected to what she described as “a sham investigation with a preordained outcome”. The Plaintiff characterised the proposed disciplinary hearing as, in effect, “a sentencing hearing on foot of findings of misconduct to be made by Ms. Jordan”.

    Ms Justice Laffoy stated that, in relation to when a court should intervene in a disciplinary process at investigation stage, the following observations made by Clarke J. in Minnock v. Irish Casing Co. Ltd. and Stewart [2007] ELR 229 were instructive:
    “It seems to me, firstly, as a matter of law that the authorities are now beginning to settle upon a test as to the appropriate attitude to be taken or the test to be applied in cases such as this. It clearly is the case that in the ordinary way, the court will not intervene necessarily in the course of a disciplinary process unless a clear case has been made out that there is a serious risk that the process is sufficiently flawed and incapable of being cured, that it might cause irreparable harm to the plaintiff if the process is permitted to continue.”

    The Judge noted, from the affidavit evidence of the investigator, Ms. Jordan, that, aside from the outstanding claims reserves and underwriting results for 2009/2010, Ms. Jordan had made the judgment that the conduct of the plaintiff warranted her dismissal, presumably, because she considered it constituted serious misconduct. In relation to what happened in the days leading up to the end of the defendant’s financial year 2009/2010 Ms. Jordan had made comments which certainly pointed to a pre-judgment on her part in relation to the conduct of the plaintiff and had sought to support that view by reference to the charts she had exhibited in her Affidavit. The Judge stated that if the averments contained in Ms. Jordan’s affidavits represented her understanding and that of the officers of the defendant as to what “establishing the facts” means, one must conclude that it went beyond a “pure investigation”. For that reason, the Judge was satisfied that this was a case in which it was appropriate for the Court to intervene at this juncture and restrain the defendant from carrying out the investigation in the manner proposed. Accordingly an Order was made restraining the defendant from continuing the investigation to be conducted by Ms. Jordan as notified to the plaintiff until the hearing of the action.