The High Court will give its decision today on an application by Aer Lingus chief executive Mr Michael Foley for orders restraining the airline from taking any further steps against him after a board subcommittee upheld two complaints of sexual harassment made against Mr Foley.
The airline chief executive, who with his wife has attended all of the court hearings, has asked Ms Justice Carroll to continue interim injunctions granted last week stopping the airline from taking any further steps in the disciplinary process against him.
Two weeks ago, Mr Foley was advised in a letter from the company not to come into his office after an airline subcommittee upheld the two sexual harassment claims against him. One was by SIPTU worker director of Aer Lingus, Ms Joan Loughnane, and the second by a head-office employee, Ms Anne Lawlor.
Yesterday, Ms Mary Irvine SC, for Mr Foley, said two board members had participated in the first investigation into the allegations. Three other board members were involved in a second subcommittee which proposed to deal further with the matter, she added.
Two other directors were not suitable because of the views they had expressed, leaving only the chairman, Mr Bernie Cahill, and the worker director who made the original complaint, Ms Irvine said.
When the board delegated to the second subcommittee the right to determine whether Mr Foley was guilty of gross misconduct or whether he should be dismissed, it was not good enough that the second subcommittee should be bound by the findings of the first, counsel argued. She said Mr Foley should be able to go to the second subcommittee and say why the first subcommittee should not have reached the conclusions it did.
If the court granted the interlocutory orders sought, the only downside for Aer Lingus was that it would be without a chief executive until the action was disposed of, Ms Irvine said. If the orders were refused, Mr Foley's career would be destroyed, even if he were to win the subsequent court action.
In submissions for Aer Lingus, Mr Paul Gallagher SC said Mr Foley was claiming serious allegations had been made against him, but he himself had made a number of very serious allegations against a number of people which were not supported by the evidence.
The complaints made against Mr Foley had been the subject of a full and thorough investigation and had been upheld, counsel said. The investigation committee had spent considerable time taking oral evidence and issued a 62-page report setting out the reasons it had come to its conclusions.
It was accepted Mr Foley did not agree with the conclusions, but that was not the issue. Mr Foley had been accorded a full investigation. It was for the subcommittee to assess the evidence and reach a conclusion as to whether the complaints were upheld.
Mr Foley had been accorded a right, which he would not automatically have, of legal representation and a right to cross-examine those making complaints. An opportunity had been given to ask questions but that was declined. Now, Mr Foley was claiming the allegations had been made up and wanted an opportunity to do what he had declined to do at the original subcommittee.
While Mr Foley claimed the publicity had been unwelcome for him, it was also unwelcome for other people and certainly had not been in the airline's interest, counsel said. The position had been difficult for the complainants as well.
Mr Foley as chief executive was subject to a written contract of employment which contained detailed terms of employment and which he had entered into after receiving legal advice. This was a contract for two years and commenced in September 2000.
The terms of that contract included not just an obligation to carry out the decisions of the board but also specified the conditions under which termination of contract might occur, as well as the board's right to suspend that person. This was the contract on which Mr Foley stood or fell.
Counsel said there was no doubt this case was an unfortunate one for all concerned - for the complainants, for the company, Aer Lingus and Mr Foley. It was important the company's procedures for dealing with all its employees should not be interfered with at this stage by Mr Foley.
Ms Irvine said her client was initially told his inquiries about an appeal against the first committee's decision were "premature". Now Aer Lingus was arguing it was not part of his contract. It was "nonsense" to suggest the proposed second subcommittee hearing would amount to some form of limited appeal.
If her client was not allowed to appeal the findings of the first committee before the second committee sat, there was a real risk it would destroy his career, counsel added.
Asking the court to preserve the status quo pending the trial of the action, Ms Irvine said if this was done her client would be in his job, not subject to vilification as he had been, and in employment under the terms of his contract, albeit under suspension.
