Injunctions

Pre-trial Injunctions

An Injunction may be granted at an early stage in proceedings to preserve the status quo until the full hearing / trial.   A one-sided or so-called ex-parte application may be made without notice to the other side.  They are granted only where exceptional circumstances necessitate a pre-emptive one-sided application. More commonly a pre-trial application for an injunction is made with notice to the party affected.  The notice is relatively short, usually more than a number of days.

The pretrial Injunction should be distinguished from the perpetual Injunction that may issue after the hearing of a case.  An Injunction may issue after the full hearing of the case, irrespective of whether or not a pretrial or so-called interlocutory injunction has been granted or applied for. Conversely, a pretrial Injunction may be granted, but an Injunction may not be granted in the final proceedings.

The rationale of the pretrial injunction is that it preserves the status quo until the full trial of the legal action.  The legal action may take several years to come to a full trial.  The pretrial injunction freezes the position by restraining the defendant from acting in some way pending the full hearing of the dispute.

An Injunction cannot be applied for by itself.  It is always an ancillary protective measure in the context of full legal proceedings which may ultimately proceed to trial.  Therefore, when an injunction application is made, proceedings must exist.  The proceedings may issue simultaneously with the application for the injunction. This is what occurs in most cases.

In most cases, it is unlikely that the matter will go to an ultimate hearing.  Accordingly, the result of the injunction application may determine the matter.


Criteria

The granting of an injunction pretrial does not involve an adjudication on the merits of the dispute.  Generally, the application is heard on the basis of affidavits, which are written sworn documents. The parties may seek to have persons examined orally on their affidavits, although it is not common.

On an application for an injunction, the court considers only, whether there is a fair question to be tried.  It does not consider the merits of the dispute beyond this. This is for the trial. The requirement that there be a fair question to be tried does not require a detailed examination of the merits.  It requires that the case have some reasonable basis.  The threshold is not very high.

An injunction will be granted, only if damages would not ultimately be adequate to compensate the plaintiff / claimant.  The applicant / plaintiff must give an adequate undertaking in damages to compensate the defendant should he ultimately lose in the full trial of the matter.

Because an injunction is an equitable remedy based on perceptions of justice and fairness, there are certain circumstances which may disqualify a plaintiff from being granted an injunction, which might otherwise issue.  Where, for example, the plaintiff or claimant lacks clean hands, delays and so on he may be denied an injunction.


Inadequacy of Damages

The adequacy of damages is considered from both the perspective of the claimant and the defendant, in the context of the claimant’s undertaking for damages.  Where one party would suffer irretrievable damage in the absence of an injunction but the other could be compensated in damages if the injunction should not have issued (as ultimately determined in the trial of the action), then an injunction is more likely to be granted.

In cases where the damage may be irretrievably done unless restrained, an injunction may be appropriate.  The irretrievability of the loss may mean that damages are not adequate. If it will be very difficult to assess damages because, for example, loss of reputation or fatal loss to business damages would be may be inadequate.

The Court may require security for the payment of damages in order to back up the injunction. The requirement for an undertaking may be dispensed with if the justice of the case requires. This may apply, for example, where there is obvious wrongdoing on the part of the defendant.


Balance of Convenience

Where both plaintiff and defendant have established arguable cases for respectively the claim and the defence and where neither could be adequately compensated in damages, the court considers the balance of convenience. The balance of convenience will depend on the circumstances and the nature of the rights concerned.  All things being equal, the court will attempt to preserve the status quo.

The balance of convenience test weights the interests of the parties against each other.  The word convenience is misleading in this context.  It refers to a balancing of factors of potential loss by the granting or not granting of the Injunction by one relative to the potential or retrievable loss suffered by the other. The question of whether damage is irretrievable or irreparable is critical.

In employment cases, the court often concludes that the balance of convenience lies with the injunction / order for performance being granted which restrains dismissal or requires reinstatement pending the trial. This is because the prospective damage to the employee may be irretrievable and may not be adequately protected by an award of damages in the eventual trial.

In substance, the court assesses how serious the consequences for the respective parties would be in the event that an injunction is granted which ultimately, with the benefit of hindsight after a trial, should not have been granted or is refused. Commonly, both parties are at risk of suffering consequences for which damages would not be an adequate remedy. There may, therefore be irremediable consequences of either the granting or refusing the interlocutory order sought. The court must form a view on the balance of interests.


Traditional Reluctance to Grant Employment Injunction

The courts have traditionally leaned against the issue of an injunction and order for specific performance of employment contracts on pragmatic grounds. The injunction was traditionally seen as too difficult to enforce in light of the necessary relationship of trust and confidence. Moreover, in nearly all cases the employee can be dismissed with relatively short notice, with or without a good reason.

Traditionally, the courts did not grant an order to enforce an employment contract.  The only remedy for breach of contract/wrongful dismissal was, and remains largely, damages by way of compensation.

This traditional view followed from the principle that courts would not grant orders for the specific performance of contracts for personal services.  Equity does not act in vain. It was presumed was that it would be too difficult or futile to try to compel the parties to work together against their will. Moreover, in most cases, the employee could be dismissed at common law on very short notice.


Advantage of Injunctions

On general principles, injunctions may be granted, only if damages are not an adequate remedy.  An interlocutory injunction may be granted prior to a full trial of the dispute, on foot of a motion to the court made on short notice. The primary purpose of an interlocutory injunction is to preserve the position pending trial.

The speedy relief and the direct effect of an injunction can make it an attractive remedy. An interlocutory (pre-trial) injunction can be granted on relatively short notice. As in many cases of pre-trial injunction, the interlocutory injunction may in effect determine the matter, because the issues become moot, long before proceedings advance to a full trial.

The Workplace Relations Commission has no power to make an order pending a hearing.  It has the power to order reinstatement or reengagement on the ultimate determination of the complaint. However, this may take several months, at least.


Injunction Possible where Preservation of Trust

 

In the last 40 years, the courts have been willing in some cases, albeit exceptionally, to grant injunctions and orders of specific performance in order to enforce employment contracts. An injunction may be granted only where it was possible to do so while retaining the mutual trust and confidence of employer and employee.  This is an important factor when the court considers the balance of convenience.

The preservation of mutual trust and confidence may be possible in a larger organisation, where personal factors and considerations are less significant. An injunction or order for performance is more commonly granted in cases where the employer is a public body or larger scale employer. There is usually lesser disruption of mutual trust and confidence in larger, more impersonal organisations.

Conversely, an injunction is less likely to be granted in a smaller working environment. There is more likely to be tension and disharmony.

There may be fewer considerations of personal trust and confidence where there are multiple dismissals, and the dismissal is unfair due to the failure to follow specific identifiable procedural requirements in the selection of employees for dismissal.


Strength of Case

In cases involving a mandatory injunction generally, the court will require a higher level of likelihood that the plaintiff has a good case before granting an interlocutory injunction. This principle applies in most cases which involve the restraint of dismissal. In order to minimise the overall risk of injustice, the court requires a higher level of likelihood about the strength of the plaintiff’s case before being prepared to make such an order.

A claimant who seeks injunctive relief which has the effect of continuing his employment must establish a strong case. This is so, even though damages might be an appropriate remedy at trial. Where a plaintiff seeks to prevent an employer from exercising a prima facie entitlement to terminate a contract of employment, then that employee is, in substance, seeking a mandatory order requiring that his employment continues and that his employment entitlements are met.


Public Sector

The courts have been more willing to grant interlocutory injunctions to restrain dismissal pending trial, in the case of officers and those in public sector employment, whose position is established by or under the legislation. Technically, most such persons are not employees. Formerly most public servants were outside the protection of the Unfair Dismissals Act. Most public servants enjoy the protection of the Act, since a 2005 amendment.

Where the “employees” are officers in public employment, the courts may invoke constitutional and natural justice in relation to disciplinary processes which affect their livelihood.  The requirement for constitutional justice and fair procedure are implied or required by the legislation which establishes the office.

Public law considerations come into play in at least in the case of some offices or employments which are governed directly by statute. Different considerations may apply in such cases, as public law remedies may be invoked.

In some cases, the courts may make a declaration of rights, rather than an order compelling performance of a contract or restraining an employer from terminating it.  A declaration declares the position definitively, without making any order for compensation or restraining the respondent from acting a particular way.  It is most commonly sought against a public body, which in inherently obliged to follow the law as declared to be applicable.


Enforcing Fair Procedures I

Apart from public employment, the contract, handbook or workplace policies may provide for fair procedures. To the extent that they are not expressly provided, they will be readily implied by the courts.  The requirements for fair procedures / natural and constitutional justice apply most readily to instances of alleged misconduct.

In some cases, employees have sought injunctions to enforce their rights to fair procedures in the context of internal disciplinary instigations.  The requirement for fair procedures applies where there is an accusation or imputation which adversely affects the claimant’s character, good name or ability to earn a livelihood.

Where a disciplinary procedure is ignored, and an employee is dismissed in breach of that procedure, the courts may grant an injunction requiring that the procedure be followed. The dismissal is effectively suspended pending the completion of the disciplinary procedure.  The courts grant the injunction in order to ensure that claimant is given a full opportunity to meet charges made against him in the disciplinary procedure


Enforcing Fair Procedures II

The courts have been reluctant to apply fair procedures requirements to the investigative phase of disciplinary proceedings. The courts have refused to grant injunctions in a number of cases, where it was sought to restrain the initial investigative phase, on the basis that the applications were premature.

This approach has been taken, even where the claimant has been placed on suspension as a holding measure, during the investigation.  Where, however, the suspension itself is a sanction, the requirements of fair procedures may apply prior to the sanction, so that an injunction might be granted.

The court will not intervene necessarily in the course of a disciplinary process unless a clear case has been made out that there is a serious risk that the process is sufficiently flawed and incapable of being cured, that it might cause irreparable harm to the plaintiff if the process is permitted to continue.

A pure investigation (pure evidence-gathering type) which does not involve any findings is not a matter to which the rules of natural justice apply and is not a matter with which the courts should interfere with. The fact that an employee may be obliged as a matter of his contract of employment to assist in any such investigation does not confer on it the status of an inquiry which carries with it an obligation to act in accordance with the rules of natural justice.


Longer Term Contract

An employer is entitled to give the contractual period or, if none, reasonable notice whether or not he has a good or bad reason. That is the common-law position. He may have a claim that he has been unfairly dismissed, but this cannot be asserted in court in a wrongful dismissal case.

Injunctions had been granted where the employee concerned had either a fixed period of employment or a fixed period of notice which had not, at least to the extent that a strong case had been established.There must be a fair issue to be tried as to the legality of the purported termination.

A mandatory order for the payment of salary may be made where a person holds his office or employment post for an unexpired fixed term of significant duration. Where the contract is for a long fixed term, the court may consider on the   balance of convenience that the plaintiff would be left without a salary and nothing to live on. It may order payment of salary pending trial.

The plaintiff need not necessarily establish that he would face penury if such an order was not made. However, he must suffer serious injustice loss or damage. The rationale is that it is unjust to leave a person who alleges his dismissal has been wrongful, without his salary pending the trial of the action and mainly with his prospect of an award of damages at the trial of the action.

In other cases, that court has found that it would constitute a serious injustice for the defendant if it was obliged to pay the plaintiff’s salary until the trial of the action.


No UFD Duplication

In some cases, the courts have refused to grant an injunction based on an implied term as to substantive or procedural fairness, on the basis that it would replicate the Unfair Dismissals Act scheme.  The extent to which the implied terms might co-exist with unfair dismissals has not yet been fully worked out by the courts. However, there is a definite reluctance on the part of the courts to imply substantive and procedural fairness requirements, where they are not expressed

The creation of the statutory right makes such development of the common law unnecessary. In the great majority of cases, a new common law right would merely replicate the statutory right. It is unnecessary to imply a term into a contract to give one of the contracting parties a remedy which he already has without it.

In other cases, where the common law would be giving a remedy in excess of the statutory limits or to excluded categories of employees, it would be inconsistent with the declared policy of the Oireachtas. It would allow claims to be entertained by the ordinary courts when it was the legislative policy that they should be heard by specialist tribunals. The co-existence of two systems, overlapping but varying in matters of detail and heard by different tribunals would be incoherent and chaotic.


Interim UFD Relief

Provision is made for interim relief pending determination of a claim for unfair dismissal arising by reason of trade union membership or providing evidence, information or assistance for the purpose of an examination or investigation by the Labour Court.  Interim relief which may be obtained on foot of an application to the Circuit Court.

The Unfair Dismissals Act is amended to provide protection from victimisation by dismissal for both employees who are members of trade union involved in the dispute and for employees who are not members of the trade union involved in the dispute with the employer concerned.

The special relief may be granted where the person concerned has been victimised by dismissal by being a member of the trade union involved or having provided evidence, information or assistance for the purpose of an examination or investigation by the Labour Court.

In the event of a claim for unfair dismissal on any of the below grounds, the individual may apply to the Circuit Court for interim relief pending the hearing of his/her unfair dismissal claim.

  • being a member of a trade union which requests an investigation of a trade dispute by the Labour Court;
  • being in the employment of the employer concerned in the grade, group or category to which the trade dispute relates; and
  • having provided evidence or other information or assistance in relation to the request made to the Labour Court.

References and Sources

Primary References

Employment Law  Meenan  2014 Ch. 26

Employment Law Supplement Meenan 2016

Employment Law Regan & Murphy  2009  Ch.14 ( 2nd Ed 2017)

Employment Law in Ireland Cox & Ryan 2009 Ch.14

Dismissal Law in Ireland  Redmond 2007 Ch.10

Other Irish Books

Employment Law Forde & Byrne 2009

Principles of Irish Employment Law         Daly & Doherty   2010

Employment Law Contracts (Book & CD-ROM)        Beauchamps, Solicitors          2011

Periodicals and Reports

Employment Law Yearbook (annual) Arthur Cox

Employment Law Reports

Irish Employment Law Journal

Employment Law Review

Legislation

Dismissal & Redundancy Consolidated Legislation   Barrett, G   2007

Irish Employment legislation (Looseleaf) Kerr  1999-

Employment Rights Legislation (IEL offprint)   Kerr  2006

Dismissal & Redundancy Consolidated Legislation   Barrett, G   2007

Principles of Irish Employment Law         Daly & Doherty   2010

Termination & Redundancy, What is the law?  Hayes, Barry & O’Mara 2005

Termination of Employment Statutes (IEL)       Kerr  2016

Termination of Employment: Practical Guide for Employers        Purdy         2011

Shorter Guides

Employment Law Nutshell    Donovan, D         2016

Employees: Know Your Rights       Eardly        2008

Essentials of Irish Labour Law       Faulkner    2013

Websites

Workplace Relations Commission http://www.lrc.ie/en/

Irish Human Rights and Equality Commission https://www.ihrec.ie/

Health and Safety Authority http://www.hsa.ie/eng/

UK Texts

Textbook on Employment Law, Honeyball, et al. 13th Ed. 2014

Labour Law, Deakin and Morris 5th Ed. 2012

Employment Law, Smith and Wood 13th Ed 2017

Selwyn’s law of Employment Emir A 19 Ed. 2016

Employment law : the essentials. Lewis D Sargeant M and Schwab M 11 Ed.2011

Labour Law Collins H, Ewing K D and McColgan  2012

Industrial relations law reports. (IRLR): Law Section,

Employment law Benny R Jefferson M and Sargent  5th Ed.  2012

Pitt’s Employment Law 10th  Ed. Gwyneth Pitt 2016

CLP Legal Practice Guides: Employment Law 2016 Gillian Phillips, Karen Scott

Cases and Materials on Employment Law 10th  Ed. Richard Painter, Ann E. M. Holmes 2015

Blackstone’s Statutes on Employment Law 2015 – 2016 Richard Kidner

UK Practitioner Services

Tolley’s Employment Handbook 2017 Mrs Justice Slade 2017

Butterworths Employment Law Handbook 2017 Peter Wallington 2017

Blackstone’s Employment Law Practice 2017 Edited by Gavin Mansfield, John Bowers, John Macmillan 2017

UK Periodicals and Reports

The Employment Law Review 8th  Ed.   Erika C. Collins 2017

Industrial Relations Law Reports

Employment Law in Context: Text and Materials 2nd  Ed. David Cabrelli 2016