The Gazette 1967/71

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. 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 The claim for damages consisted of the folloiwng sums. 1 £3.750, being his salary for 20 months. 2. £417 for expenses.

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