The Court of Appeal has allowed Iarnród Éireann / Irish Rail’s appeal against an injunction that prevented it from starting a disciplinary hearing against employee Barry McKelvey unless it agreed to his request for legal representation.
In a judgment delivered on 31 October 2018, Ms Justice Irvine said the evidence before the High Court did not establish exceptional circumstances showing that Mr McKelvey could not receive a fair hearing with the assistance of an experienced trade union representative. The Court of Appeal therefore held that the High Court should not have restrained the disciplinary process on that basis.
The proposed hearing concerned an allegation that fuel had been stolen through misuse of company fuel cards, causing significant financial loss. The allegation followed a preliminary investigation into fuel purchases in Division 3. Mr McKelvey, an Irish Rail employee since 1999 and an inspector from 2013, had been suspended on basic pay in March 2017. In May, he was notified that the company would begin its formal disciplinary process and requested a solicitor and counsel for an oral hearing.
The High Court had granted an injunction in July 2017, finding that legal representation was needed in light of the seriousness of the allegation, its potential effect on Mr McKelvey’s job and reputation, and the apparent complexity of the evidence and procedure. Irish Rail appealed.
The Court of Appeal said that seriousness and the possibility of dismissal were relevant, but did not by themselves make a case exceptional. It considered the allegation—whether Mr McKelvey had used fuel cards for improper purchases—to be straightforward on the evidence then available. The spreadsheets listing dates, locations and prices of purchases did not appear to require a lawyer to interpret, and the court found no evidence that Mr McKelvey would be unable to participate fairly with the help of his union representative.
The court also noted that the disciplinary procedure was set out in the company’s policies, and that Mr McKelvey had been told he would receive the documents to be relied on before the hearing. The judgment records that he retained rights to know the allegation and procedure, make representations, challenge and cross-examine witnesses, and call witnesses. It said he could renew his request for legal representation if significant factual or legal complexity emerged during the process. He also had a right of appeal against any disciplinary findings.
The ruling decided only whether the injunction requiring legal representation should stand at that stage. It did not determine whether the allegation was true or what the disciplinary process would ultimately find.