Court of Appeal: Injunction placed on NUIG bullying investigation discharged

About this case:

• Judgment:
  External link

One of the respondents to the complaint alleged objective bias on the part of the independent investigator appointed by the Labour Court, however the Court of Appeal ruled that the trial judge had erred in law and in fact in holding that there was a serious issue to be tried.

Background

In April 2014 a member of the staff of NUIG – hereafter “the complainant” – made complaints of bullying and harassment against nine members of staff, including Professor Heinz-Peter Nasheuer.

As a result of a disagreement between the complainant and NUIG as to whether NUIG’s Internal Grievances Procedures or its Staff Anti-Bullying Policy should apply, that dispute was referred to an Adjudication Officer whose recommendation was then appealed to the Labour Court under the Industrial Relations Act 1969

Under s. 13(9) of the Labour Court under the Industrial Relations Act 1969, the Labour Court recommended that an independent external investigator should be appointed to carry out an investigation into the complaints.

It was agreed between the parties, i.e., the complainant and NUIG, that the Labour Court would nominate such a person.

Accusation of bias

Industrial and Employee Relations practitioner, Ms Janet Hughes was appointed by the Labour Court with the consent of the parties.

In 2017, Prof Nasheuer made a series of complaints about the handing of the matter, stating that the process had been invalidated by delay and included antiquated complaints from as far back as 2004.

Furthermore, Prof Nasheuer put it to Ms Hughes that in 1996, when she was regional secretary of SIPTU, Ms Hughes “had acted in her capacity as a trade union representative on behalf of the complainant in proceedings before the Labour Court”.

Ms Hughes confirmed this and said that “she met the complainant twice regarding that matter and had no further dealings with her after the case was over”. Ms Hughes had brought this to the attention of NUIG beforehand, and also highlighted that she knew some of the respondents to the complaint due to her previous roles – however NUIG had no objection to her appointment.

Prof Nasheuer said Ms Hughes’ past dealings with the complainant was evidence of objective bias, and sought for Ms Hughes to recuse herself. With the support of NUIG and the Labour Court, Ms Hughes proceeded with the investigation

High Court

The principal ground of relief sought by Prof Nasheuer in the High Court was an injunction prohibiting NUIG from continuing with the investigation into the complaints made against him.

The trial judge concluded that the investigation was not purely investigative in nature in that the investigators were entitled:

As such, the trial judge granted the injunction stating that if the process was found to be flawed after its completion, it might be impossible to provide an adequate remedy having regard to reputational damage.

Court of Appeal

NUIG complained that in the High Court, it was the prior professional engagement between Ms Hughes and the complainant that formed the basis of Prof Nasheuer’s complaint of objective bias; and that the trial judge rejected this as providing sufficient grounds to raise a reasonable apprehension of bias.

The finding of a reasonable apprehension of bias based upon the refusal of Ms Hughes to permit Prof Nasheuer the opportunity to make “a focussed argument relating to the antiquity of the incidents giving rise to the complaint”, NUIG submitted that the trial judge’s decision in that regard was a ruling made by her in the course of the investigation itself and could not, for that reason, be relied upon to support a claim of objective bias – which cannot be inferred from legal or other errors made within the decision making process.

Ms Justice Irvine considered the test for objective bias as developed in Bula Limited v. Tara Mines Limited (No. 6) 4 I.R. 412, O’Callaghan and Ors v. McMahon and Ors (No. 2) IESC 17 and 2 I.R. 514, Goode Concrete v. CRH plc & Ors. IESC 70 and The Commissioner of An Garda Síochána and Ors v. Penfield Enterprises and Ors IECA 141. Considering these authorities, Justice Irvine said it was unsurprising that Prof Nasheuer had accepted the trial judge’s finding that the past relationship between the complainant and the investigator could not give rise to a reasonable apprehension of bias.

Justice Irvine then considered the complaint of failing to consult with Prof Nasheuer concerning the terms of reference. In this regard, Ms Hughes had linked her actions to the procedure prescribed by the Labour Court, and clarified that the issue of antiquated complaints would be considered in the investigation. Justice Irvine said that she could not “see how the reasonable and fair-minded observer could reasonably apprehend bias on the part of Ms Hughes because she refused to afford Professor Nasheuer the opportunity to make submissions concerning the terms of reference and, in particular, a submission confined to the antiquity of the complaints”.

Justice Irvine said that the trial judge erred in law and in fact in holding that the failure to consult with Prof Nasheuer provided a valid basis for her conclusion that a serious issue to be tried concerning objective bias had been made out.

Justice Irvine also held that an accumulation of factors in this case would not lead to a conclusion of bias.

Allowing the appeal, Justice Irvine ruled that the order staying the investigative process must be discharged.