The High Court has refused Deirdre Foley and D2 Private Limited’s application to stop a Workplace Relations Commission investigation into the 2015 Clerys redundancies. The court said challenges to the legality of the inspectors’ search and the admissibility of material obtained should generally be dealt with at a criminal trial, if one follows the investigation.
The case concerned two WRC inspectors’ entry, accompanied by two Gardaí, to D2’s offices at 20 Harcourt Terrace, Dublin, on 19 May 2016. They took a laptop belonging to D2 employee Mark Redmond and sought records as part of an inquiry into whether offences had been committed in connection with the redundancies. No prosecution had been instituted against the applicants when the matter was heard.
The redundancies followed the closure of Clerys on 12 June 2015. OCS Operations employed the Clerys workers. The court recounted that 61 former employees had brought complaints alleging failures to consult employee representatives and provide relevant information under the Protection of Employment Act 1977. A WRC adjudication officer found those complaints well founded and awarded compensation against OCS Operations, which was insolvent and being wound up.
The inspectors were investigating whether others might also be liable under section 21(3) of the 1977 Act, which can extend criminal liability to people who consented to, connived in, or were responsible through neglect for a corporate offence. Foley and D2 argued that they were not the workers’ employer and that the inspectors’ entry and seizure were unlawful, including because the inquiry was allegedly directed at the Clerys takeover rather than the redundancies.
The court found that it was not “completely irrational” for the inspectors to investigate possible involvement by Foley, D2 or others, or to believe the premises and records could be relevant. It also rejected the claim that the breadth of the inquiry established an improper purpose. The judgment did not decide whether the inspectors’ interpretation of their statutory powers was correct or whether the search was ultimately lawful.
The applicants had also argued that the laptop contained legally privileged material. The court said no determination had been sought or made about whether any material was privileged, and it did not find the inspectors’ access to the laptop unlawful. It left open the possibility of raising privilege and admissibility issues at a future trial.
The court refused the requested orders, including certiorari, declarations, injunctions against use of the material, return of the material and damages. It described the challenge as premature and said the applicants’ arguments could be considered at a criminal trial if a prosecution resulted.