A decision by inspectors investigating the redundancies of 460 Clerys' workers to enter the offices of D2 Private Ltd was made legitimately and in the public interest following the "traumatic" event, the High Court has been told.
Shane Murphy SC, for the inspectors, urged the court not to halt the continuing criminal investigation by the inspectors, which involved them taking from D2’s offices documents and a computer linked to the store’s takeover in June 2015.
The workers lost their jobs on June 12th, 2015, hours after Clerys was sold to Natrium by its previous owners, the US Gordon Brothers group. Natrium is a joint venture made up of Cheyne Capital Management in the UK and a company of Deirdre Foley, owner of D2.
Challenge
Appointed by the Workplace Relations Commission, the inspectors are opposing a challenge by D2 and Ms Foley concerning the powers of the inspectors and their reliance on provisions of the 1977 Protection of Employment Act and the 2015 Workplace Relations Act to enter the D2 Private premises and take documents.
Ms Foley and D2 say they were never the employers of the Clerys workers, OCS Operations Ltd was at all times the employer and the decision to make the workers redundant was made independently of D2 and Ms Foley. Ms Foley has also said in an affidavit that she has been subject of intense “unmerited and distressing” publicity since the Clerys transaction.
The challenge arose after the inspectors, accompanied by gardai, entered D2’s offices at Harcourt Terrace, Dublin, last May and seized various materials. D2 and Ms Foley claim the inspectors can only take documents and materials relevant to their investigation and there was no constitutional basis for the inspectors’ actions.
On the fourth day of the hearing on Wednesday, Mr Murphy said the inspectors’ decision to enter D2’s offices was a legitimate one made in the public interest following the “traumatic” Clerys redundancies.
Privacy
The inspectors “acted with all reasonableness” during “the exercise of a statutory power”, had not breached the privacy rights of D2 and Ms Foley, and there was also no evidence of “destructive” behaviour to merit an award of damages.
The inspectors and the Workplace Relations Commission want to be allowed to get on with the investigation, counsel said. While “steps have been taken”, no decision to prosecute any party has been taken by the Minister for Jobs over the collective redundancies, he added.
The existence of a directors’ pack containing detailed information about Clerys workers “totally undermines” the claims D2’s offices did not contain documents about the employees, he also said.
Ms Foley had said in a sworn statement D2’s offices were not used in connection with the employment of Clerys workers and were not premises at which employment records or documents relating to those employees are kept.
The inspectors claim the pack was supplied by Mark Redmond, an employee of D2, to two directors of OCS Operations – Brendan Cooney and Jim Brydie – appointed by Natrium and given the pack in advance of the takeover. The pack contained "chapter and verse" details about the workers' employment and a watermark linking it to D2, Mr Murphy said.
Allegations
Allegations in a sworn statement by one of the inspectors of a plan to acquire Clerys called “Project Clock,” which allegedly involved a number of secret meetings with parties involved in the takeover and the liquidation, should not been ruled as inadmissible, counsel also argued.
While it was accepted the issues mentioned in the statement were hearsay and did not need to be determined in this case, the claims – which are denied by Ms Foley and other parties allegedly involved in the secret meetings – did provide “a backdrop” and were relevant in respect of claims made by the applicants against the inspectors, counsel said.
The hearing, before Mr Justice Michael Twomey, is expected to conclude on Thursday.
