Mary Howard (plaintiff) v University College Cork (defendants).

Administrative Law - Employment law - Interlocutory injunction - Whether fair procedures applied in the removal of plaintiff from post of departmental head - Whether damages adequate remedy - Whether public perception of possible misconduct grounds for granting relief - Irish Universities Act 1908.

The High Court (Mr Justice O'Donovan); judgment delivered 25 July 2000.

In assessing whether interlocutory relief should be granted there were a number of issues to be considered. In this instance to permit the proposed removal of the plaintiff from the position as head of a university department pending the full trial of the action would result in a public perception that the plaintiff had been guilty of misconduct. If it subsequently transpired that the removal was unlawful it would prove extremely difficult for the trial judge to assess a sum to adequately compensate the plaintiff for the harm suffered. The balance of convenience favoured maintaining the status quo.

The High Court so held in granting the plaintiff the relief sought restraining the defendants from taking any steps to remove the plaintiff from her position.

Bill Shipsey SC and Tom Mallon BL for the plaintiff; Ercus Stewart SC and Brian Cregan BL for the defendants.

Mr Justice O'Donovan outlined the facts of the case. The plaintiff was a professor and head of the Department of German ("the department") at University College Cork ("UCC"). The plaintiff had initiated plenary proceedings on 16 March 2000 and had delivered a statement of claim on 19 May 2000. The plaintiff sought interlocutory relief preventing her removal from the post as head of the department. In addition the plaintiff sought relief preventing the appointment of any other person to the said position and also relief against the defendants interfering with the plaintiff carrying out her duties as head of the department. In the plenary proceedings the plaintiff sought reliefs similar to those being sought in the present interlocutory application.

Mr Justice O'Donovan stated that the plaintiff was appointed to her position by the Senate of the National University of Ireland on 8 July 1993. The appointment was made pursuant to statute 162 of UCC on foot of powers conferred by the Irish Universities Act 1908. It would appear from the statute that having been appointed professor of German, the holder of that office was required to perform the duties as head of the department for a period of five years.

The defendants maintained that from 1 January 1999 the plaintiff's initial five years as head of the department had expired and a letter to that effect was issued to the plaintiff, dated 23 March 2000, from the college authorities. Mr Justice O'Donovan stated that in his view the defendants were in error in this view as he was of the opinion, in interpreting the relevant legislation, that the office of head of the department when vested in the professor of German was not for a fixed term and could not be determined by effluxion of time. In this regard counsel for the defendants had conceded that the plaintiff was the current holder of the office. However the defendants contended that provided proper appointment procedures were followed and a new department head was appointed the plaintiff's position as head of the department would automatically determine.

Furthermore the defendants argued that the position as head of the department did not involve performance as an employee and therefore termination from that post did not involve dismissal from employment. As such, it was submitted, the principles of natural and constitutional justice did not need to be observed. On behalf of the plaintiff it was contended that when changing the head of the department the governing body could not act capriciously and must observe fair procedures. In this regard the college authorities must give the office holder reasonable notice of an intention to consider a change and reasons therefor.

Mr Justice O'Donovan stated that in the light of the case Campus Oil v Minister for Industry and Energy [1983] IR 88 the issue to be decided at this juncture was whether there was a fair question to be tried. Mr Justice O'Donovan alluded to the fact that allegations of impropriety had been made against the plaintiff with regard to her conduct as head of the department. For her part the plaintiff had complained of the manner in which these allegations had been investigated. Mr Justice O'Donovan stated that these matters would be determined at the trial of the action and that the evidence before him in this regard was incomplete and untested by cross-examination.

Mr Justice O'Donovan was of the view that there were fair questions to be determined firstly, as regards whether fair procedures applied in the determination of the plaintiff's position and secondly, with regard to the issues surrounding the investigation of the complaints made against the plaintiff. Mr Justice O'Donovan took the point made by counsel on behalf of the defendants that whatever relief was ultimately granted to the plaintiff this would not include the permanent injunction as set out in the pleadings. However this would not act as a bar to the plaintiff's present application and in addition it was quite possible that the trial judge could grant the plaintiff the injunction sought modified with the phrase "except in accordance with law". There was a much more compelling argument for the refusal of the injunctive relief, namely, that damages would adequately compensate the plaintiff in any event. In addition it could be said that the balance of convenience would favour the appointment of a new head of the department given the current state of unrest in the department.

Mr Justice O'Donovan said that notwithstanding the fact that the plaintiff would remain as a professor of German even if her position as head of the department were terminated there was a risk that there would be a public perception of misconduct. In particular some of those eligible for the appointment as head of the department had been critical of the plaintiff. If one of these individuals acceded to the post there would be an assumption that the criticism was justified. In addition if the plaintiff's position as head of the department was terminated and it was determined at the trial that the plaintiff had been unlawfully removed it would be extremely difficult for the trial judge to assess a sum of damages to compensate for the harm done to the plaintiff's reputation. Such an outcome could also pose significant difficulties for the plaintiff were she to apply for a more prestigious post elsewhere.

Mr Justice O'Donovan held that with regard to the balance of convenience it was quite clear there was significant unrest within the department. 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. However whether or not there were significant problems besetting the department and if there were, who was to blame for them, was not a relevant consideration at the hearing of this application and would fall to be determined by the judge at the full trial of the action. Given that the plaintiff had been the head of the department for the past six years the appointment of a new head would further complicate matters. In addition if a new appointment were made in advance of the full hearing the trial judge would be placed in an intolerable position. The trial judge would then quite possibly have to remove a newly appointed person from the post. The circumstances dictated that the status quo be preserved. Mr Justice O'Donovan rejected the submission that an injunction granted at this stage would cause the defendants irreparable harm. The plaintiff would accordingly be granted the reliefs sought as outlined in the notice of motion.

Solicitors: G. J. Moloney (Cork) for the applicant; Ronan Daly Jermyn (Cork) for the defendants.