Court hears challenge over seizure of documents relating to Clerys closure

D2 Private owner Deirdre Foley "collaborated" in, was "directly involved" in and "participated" in the events, "including the transactions" which "immediately preceded" the collective redundancies of 467 workers at Clerys department store, inspectors investigating those redundancies have told the High Court.

The legal and factual position of workers employed at Clerys is “inextricably linked” to events and transactions involving D2 Private Ltd and Ms Foley, its director and owner, the inspectors said in court documents.

The inspectors, appointed by the Workplace Relations Commission, are opposing a challenge brought by D2 and Ms Foley against the WRC concerning the powers of the inspectors, who seized documents and a computer from D2's offices in May.

As part of their investigation, they are examining the involvement of Ms Foley and other persons and companies leading to the making of the collective redundancies, the inspectors said.

Materials seized

The case, before Mr Justice Michael Twomey, was brought after the inspectors, along with gardai, entered D2's offices at Harcourt Terrace, Dublin, last May and seized various materials.

D2 and Ms Foley are challenging the inspectors’ reliance on provisions of the 1977 Protection of Employment Act and the 2015 Workplace Relations Act, including powers to enter premises and take documents.

The inspectors were appointed following Clery's closure in June 2015, shortly after its sale by its previous owners, the Gordon Brothers Group, to Natrium Ltd. Natrium is a joint venture made up of D2 Private Ltd, and Cheyne Capital Management in the UK.

Correspondence

The documents seized include correspondence which the company had with various parties, including the liquidators and directors of OCS Operations, the company that had operated Clerys, before Natrium acquired the Store.

Opening the case on Thursday, Eoin McCullough SC, for D2 and Ms Foley, argued the inspectors can only take documents and materials relevant to their investigation and there was no constitutional basis for the inspectors actions in relation to his clients.

It has always been accepted Ms Foley and D2 were never the employers of the Clerys workers, he said. OCS Operations was at all times their employer, he added.

Ms Foley and D2 also have a minority stake in Natrium and some 80 per cent of that entity is owned by Cheyne, counsel said.

The inspectors, for “public interest reasons”, are seeking to “look into the commercial transaction” concerning the sale of Clerys to Natrium, he said. That in effect amounted to a “parallel investigation” which they were not entitled to do.

Scope of investigation

The inspectors, he said, have decided, to bring a criminal charges arising out of the Clerys workers’ redundancies. The inspectors had not informed his clients about the identity of those whom charges are to be brought against.

The decision to issue a summons was done before the raid took place, he said.

Shane Murphy SC and Breffni Gordon BL, for the WRC and inspectors, opposed the application. In their statement of opposition, the respondents said D2 and Ms Foley have no right to complain about the scope of the investigation.

Given the information gathered by the inspectors, the D2 premises had become a place of specific interest to the investigators, it was stated. The materials seized were taken in lawful exercise of the inspectors’ duties and the inspectors were entitled to enter the office without a warrant, it was stated.

While D2 and Ms Foley have always maintained OCS Operations was the employer for the purpose of the investigation, D2 and Ms Foley have failed to consider that such a claim forms part of the investigation itself, the inspectors said.

The inspectors are also trying to establish who in fact made the decision to make the collective redundancies, the court heard.

The hearing continues.