512 / 736
buildings, another disliked and distrusted the plaintiff,
particularly for his high earnings. The vehemence with
which Mr. Brittain
supported his uncomplimentarv
report went so far as to make other Directors think that
their
decision
about
the
plaintiff
could
not
be
challenged in any court. This contention was absolutely
nusustainable on account of the wording of the clause
in the contract, which required that plaintiff's alleged
misconduct should be ascertained objectively before it
could take effect.
In Carvill v. Irish Industrial Bank—(1968) I.R.338
the Supreme Court had held
that the only grounds
which
could
be
relied
upon
to
justify
this
im
mediate dismissal for misconduct of
an
employee who
was on a yearly basis (like this one), and whose contract
did not contain provisions for summary dismissal, were
those known
to
the Board, and
that an
immediate
dismissal for misconduct may not be justified on grounds
discovered subsequently. Most of the assembly works in
the Docks area were dilapidated. When there was talk
of entering the European Community this made
the
future of the motor assembly industry so uncertain that
the directors wished to avoid capital expenditure. The
plaintiff's commission however was calculated on profit,
and not on maintenance of factories and equipment.
The charge of serious neglect against the plaintiff,
mainly in respect of
the unsatisfactory condition the
print plant in and the jig and installation in the body
department were rejected. However the complaint that
the main fuse boajd in East wall Road was grossly over
loaded and was in a highly dangerous condition, was
held to be justified, on the ground that the plaintiff
failed
to
re-wire
the dangerous board. The other
complaints that the canteen in East Wall Road had
been
allowed
to get
into
a
filthy
and unsanitary
condition as a result of plaintiff's negligence and that
expensive machinery had been
treated
as
scrap
in
various premises were also rejected. Consequently, all
charges of serious neglect of duty save as regards the
re-wining were rejected.
The main charge of serious mis-conduct related to the
sale of capital equipment and goods to the defendant's
company by Motors and Machines, when the plaintiff
was shareholder in that company which was managed
by his
son until 1964;
these
transactions did entail
serious misconduct because the plaintiff had not disclosed
his interest in the company to his co-directors. Kenny
J. rejects the Court of Appeal decision in Boston Deep
Sea Fishing Co. v. Ansell
(1888). This argument
concerning Motors
and Machines
since
1964
fails,
because the directors could not reasonably conclude that
the Contracts
injuriously
affected
the
business or
management of any of the companies, and so could not
terminate plaintiff's agreement. Another charge of mis
conduct related to
the work done on four cars. No
charge would be made in the Rectification Department,
in respect of repairs done after the warranty for new
car had expired, unless bv the plaintiff. The plaintiff
had brought a car which had been damaged as a result
of a flood; this car was repaired without charge in the
Rectification Department for the plaintiff, although the
amount of work done was worth £125. It was held that
failure to pay the cost price was serious misconduct, as
it was a deplorable example to staff. There were other
charges of misconduct of
the same description. The
plaintiff was also guiltv
~f
^prious misconduct
in so far
as employees of the Company did work for the plaintiff
during office hours at plaintiff's house, and at his son's
58
house, without payment for several weeks.
In follows
that the plaintiff was guilty of serious
neglect of duty and of serious mis-conduct, which the
directors could
reasonably have considered
to have
injuriously affected
the business, ^nd management of
the operating company. However it has been argued
that the plaintiff was unjustly dismissed, because the
Rules of Natural Justice were not observed. The principle
is
that the person against whom the charge
is made
should have notice of the matters alleged against him,
and be given a fair opportunity to make his case. The
principle of Natural Justice does not however apply to
the removal of the holder of an office which is held at
the will or pleasure of another; or who holds under a
contract of service, when it is terminable under a charge
which authorises dismissal for misconduct, or if he
is
summarily dismissed for misconduct under an implied
term of contract. Natural Justice does apply
to
the
removal of a person who holds an office for a term of
years, when he
is
discharged before
the
term has
expired. It also follows that someone who has a contract
of
service may
successfully
invoke
the Principle of
Natural Justice,
if his position under
the Contract
resembles that of a holder of an office—in other words
the question is whether he is the holder of an office, or
a mere employee. If an employee then the facts must
prove a breach of contract under clause
17 of
the
plaintiff's contract and consequently he could not be
validly dismissed for errors, neglect of duty or for serious
misconduct seriously affected
the reputation, business
property or management of one of the companies. Held
plaintiff's position resembled
that of a holder of an
office
accordingly
the principles of Natural Justice
applied here. Despite
the
twenty-two days hearing
there was
no
evidence
as
to what
conclusions
and whether their decision could have been unanimous.
As plaintiff did not get notice of the charges, and as
the Directors of the holding company did not give him
an opportunity to make his defence, the termination of
his contract was invalid, and he was entitled to damages.
Further hearing adjourned for assessment of damages.
The claim
for damages consisted of
the folloiwng
sums.
1
£3.750, being his salary for 20 months.
2.
£417 for expenses.
3.
£600 Two years directors fees from subsidiary
companies.
4.
£833 for loss of car made available to him.
5.
£850 Commission Certified by Auditors.
6.
£4,700
the
surrender value of
the policv of
insurance for pension purposes.
The £417 expenses in
(2) cannot be recovered, as
his contract was terminated. Item 4 as
to motor car
expenses will be allowed. In view of the circumstances
of the termination of the contract, plaintiff had a vested
right in (6), and was entitled to the surrender value
of the policy.
As regards damaces for loss of salary
(
' N
directors
fees (3) and commission (5). deduction should be made
for income tax and surtax, in accordance with British
Transport Commission v. Gourley (1956) A.C., which
had not heretofore been considered in Ireland. Never
theless the contention that the nrevious practice however
hallowed gave rise to a rule of law is rejected. In an