The raiding of D2: seeking the truth on Clerys closure

Just after lunch on May 19th, Mark Redmond was in the offices of D2 Private on Harcourt Terrace, Dublin, when he saw four people looking in through the glass panels in the front door.

When he opened the door he learned that they were two inspectors from the Workplace Relations Commission, James Kelly and Pat Phelan, and two gardaí, Enda Dowling and Shane Behan.

Redmond, in an affidavit to the High Court, where D2 and its owner Deirdre Foley are taking issue with the May 19th raid on their offices, said he was aware at the time that the inspectors had, eight days earlier, been to the offices of A&L Goodbody, the solicitors firm that gave advice to D2 in 2015 when it was buying the Clerys group.

That transaction saw the department store close and 460 people lose their jobs.

Natrium Ltd – the company established by Foley and the main investor in the Clerys deal, Cheyne Capital Management, to conduct the transaction – used the A&L Goodbody address.

The four visitors were taken to a boardroom. Redmond rejected a suggestion he had been the lead negotiator in the Clerys deal.

“Kelly was quite aggressive and he stated that it was a criminal offence to be obstructive. I was quite shocked by this statement and I pointed out that I wasn’t being obstructive.”

Redmond left and phoned Foley. Kelly, after five minutes, left the boardroom to find Redmond.

He let him finish his phone call then asked him to direct him to his computer. Kelly wanted access to Redmond's emails, including correspondence with Jim Brydie, Brendan Cooney, Eamonn Richardson and Kieran Wallace.

The first two men were appointed as directors of OCS Operations Ltd, the company in the Clerys group that ran the department store, at the same time that Natrium bought the group (the building and the business), on June 12th last year.

The second two men are partners with KPMG and were appointed as liquidators of OCS Operations within hours of the Clerys purchase.

The gardaí left after Redmond assured them he would co-operate. Redmond and the inspectors went to Redmond’s office, where he disconnected his laptop and “put it under my arm”.

The men went back down to the boardroom where Redmond called Brian Clarke of Maples and Calder solicitors.

Clarke said he took calls from Foley and Redmond “in the minutes immediately after” 14.40. He arrived at D2 at about 14.55.

‘Nothing improper’

The inspectors were beginning an inquiry into the collective redundancies at Clerys. Clarke told them that D2 had not been the employer.

The two sides disputed the rights of the inspectors to seek the material they wanted. In the end Redmond, under protest, handed over the laptop and his password.

Kelly, responding to a claim from Redmond, denied he had been aggressive. He had been “cordial but assertive”.

When the inspectors were leaving, Kelly said, Redmond remarked: “I think I need a few whiskeys after that.”

Soon after the raid, Foley and D2 went to the High Court, claiming that the inspectors are acting illegally, that they seized privileged documents, that they are acting so recklessly that it constitutes malice, and are seeking damages.

The claims are being contested. The inspectors say the courts traditionally shy away from interfering in the operational aspects of criminal investigations.

If charges are brought, and convictions achieved, the maximum penalty is a small fine.

Foley says the inspectors are improperly trying to investigate the Clerys transaction, rather than the employment issue.

In response to Kelly’s affidvavit, she has confirmed that she and D2 took advice beforehand from KPMG and from Richardson, but has said there is nothing improper in that. She has pointed out that she did not put the Clerys group structure in place.

Obligation

Kelly and Phelan say they are investigating whether there was a breach of the obligation of an employer to notify the unions, and minister, whenever a decision has been taken to impose collective redundancies, 30 days before the first dismissal.

They say they need to investigate the matters leading up to the actual transaction.

During the hearing the attempt by Shane Murphy SC, for the inspectors, to argue that the directors of OCS Operations might include unregistered “de facto” directors, was strongly opposed by Remy Farrell SC, for Foley and D2.

Shortly before the court rose on Tuesday afternoon, John Crowe stood and addressed Mr Justice Michael Twomey.

Standing directly behind Foley in the public seating, he said that after 43 years working in Clerys, he had been left with “nothing” after the June 12th closure. Clearly emotional, he said he had €6 in his pocket, and would get the dole on Friday.

Foley, in her affidavit, said the coverage the Clerys purchase and closure has received has been “intense” and she has found it both “unmerited and distressing.” Judgment has been reserved.