Today’s article looks at Rogers v An Post, a case in which the Plaintiff unsuccessfully sought an injunction to postpone a disciplinary process pending the outcome of criminal proceedings against him.

Case Name and Reference: Rogers –v- An Post (Judgement of Keane J on 25th July 2014) Record No. 2014/3750P

Court Or Tribunal: High Court

Jurisdiction/Subject Matter: Disciplinary proceedings with pending criminal prosecution against an employee.


Background

Kevin Rogers (“the Plaintiff”) was the acting branch manager in Roscommon post office until the 28th March 2012. He was suspended on full pay by his employer on that date. He remained suspended on full pay at the date of this judgement.

05.03.12 - The Plaintiff allegedly engaged in the mistreatment of an item of registered post containing a urine sample from another postal worker which was on route from a member of An Garda Síochána to the Medical Bureau of Road Safety for analysis.

28.03.12 - An Garda Síochána detained the Plaintiff for questioning. The interview took place in the presence of an An Post (“the Defendant”) Fraud and Investigation Manager. The Plaintiff was ultimately charged. On the same day, the Plaintiff was suspended on full pay.

06.09.12 - The Defendant wrote to the Plaintiff providing details on the allegation against the Plaintiff and outlining the steps taken by the Defendant to that point. The letter made the following points:

1. Disciplinary action is considered
2. The Plaintiff had 14 days to provide an explanation, failing which a decision would be made in the absence of same.
3. In the alternative, the Defendant would provide an oral hearing.
4. The Plaintiff could be accompanied by a union representative.

05.12.13 - Roscommon Circuit Criminal Court heard the above case. There was a hung jury. The case is now rescheduled for hearing on 10th December 2014.

There has been an extensive exchange of correspondence between the parties’ legal representatives with the following summarising the exchange:

A. The Defendant granted the Plaintiff’s request to adjourn the disciplinary process pending the outcome of the criminal case.
B. Once the criminal trial resulted in a hung jury, the Defendant advised of its intention to reinitiate the process again. The Plaintiff objected to the resumption of the process.
C. The Plaintiff was provided with an extract from the Defendant’s investigation report, together with the copy statements and attachments. He was invited to review relevant CCTV footage.
D. Importantly, the Defendant agreed to provide an undertaking that it would not require the Plaintiff to incriminate himself.
E. The Defendant explained its proposed process for the oral hearing, to include that no witnesses would be called and the Plaintiff would not be cross-examined. The oral hearing was intended to be a non-adversarial one.

28.03.14 - The Plaintiff’s Solicitors took issue with the proposed form of the oral hearing.
01.04.14 - The Defendant indicated its intention to commence the disciplinary process and essentially refused the Plaintiff’s request to defer and/or adjourn the disciplinary hearing until the conclusion of the criminal proceedings.
11.04.14 - These proceedings issued.


Relief Sought

These proceedings sought an injunction restraining the Defendant from taking any step in the disciplinary process pending the outcome of the criminal proceedings.

The Plaintiff put forward the argument that the interlocutory relief should be granted as the circumstances satisfied the requirements for an injunction (fair issue to be tried, balance of convenience, balance of convenience favours making the order and damages are not an adequate remedy).

The Plaintiff felt that he would suffer irremediable prejudice should he participate in the disciplinary hearing by potentially losing his right/privilege against self-incrimination in the criminal process.


Court's Decision

Keane J spent quite an amount of time outlining that it is not the Court’s job to interfere in, or to direct, how disciplinary processes should be implemented, unless it is manifestly unfair.

The Judge looked at the law relating to interlocutory injunctions and the purpose served by an injunction (in that it preserves the status quo until the trial of a case).

Keane J concluded:

1. Interlocutory relief is discretionary and is only supposed to maintain the status quo until everything can be properly determined at trial.
2. The relief sought in this case was an Order to adjourn the disciplinary proceedings pending the outcome of the criminal proceedings.
3. This case would not reach a full trial in the event of granting the interlocutory injunction as the conclusion of the criminal trial would (in all likelihood) bring an end to the disciplinary process.
4. Granting the injunction essentially would prevent the Defendant from defending its position.

The Court refused to grant the injunction preventing the Defendant from concluding its disciplinary process.


What To Learn From The Case

A. There is no requirement for an employer to adjourn the disciplinary process where there is a criminal issue to be investigated or prosecuted by An Garda Síochána.
B. While an employee has a right to the protection afforded under self-incrimination, or a right to silence, it is not an absolute right and in the circumstances the employer can continue with its process and compel the employee to partake in a disciplinary process, irrespective of whether a criminal prosecution is pending or otherwise.

Full case decision:
http://www.bailii.org/ie/cases/IEHC/2014/H412.html