Injunctions

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Cases

AIB PLC & Ors -v- Diamond & Ors

[2011] IEHC 505

Clarke J.

5. The Grant of Interlocutory Injunctions

5.1 The criteria for the grant of interlocutory injunctions has been well settled in this jurisdiction since the decision of the Supreme Court in Campus Oil. In Shelbourne Hotel Ltd. v Torriam Hotel Operating Co. Ltd. [2010] 2 IR 52 Kelly J. noted a number of authorities from the United Kingdom which suggested an approach based on assessing where the least risk of injustice lay. Kelly J. did not find it necessary to reach any definitive conclusions on the point. As it happens, at much the same time, writing extra judicially in the foreword to Kirwan – Injunctions Law and Practice (1st Ed. 2008), I noted the same developments and suggested that a high value might be placed on an assessment of where the greatest risk of injustice might lie in future applications for interlocutory injunctions. As such, it is important to emphasise a number of points.

5.2 First, the Campus Oil jurisprudence is now so well established in the case law of the Supreme Court and, indeed, this Court, that it would, in my view, be impermissible for this Court to depart from it unless and until any judgment of the Supreme Court so authorised. However, on analysis, it seems to me that it is, perhaps, more appropriate to characterise the “greatest risk of injustice” criteria not so much as a different test to that which has become established in the Campus Oil jurisprudence but rather as the underlying principle which informs the more detailed rules which have been worked out in accordance with that jurisprudence.

5.3 It is inevitable that a court having to decide whether to grant or refuse an interlocutory injunction will be faced with some risk of injustice. The whole point of interim or interlocutory injunctions is that they are designed to be granted or refused after a very early and often quite brief hearing with a view to deciding what state of play should subsist until the court has an opportunity to conduct a full hearing. Against that background it is inevitable that there will be cases where an injunction will be granted but where it will turn out, after trial, and with the benefit of full evidence and argument, that the plaintiff who obtained the interlocutory injunction was in the wrong and should, with the benefit of hindsight, never have had the advantage of a restraining order. Likewise, it may transpire that a plaintiff who is refused an interlocutory injunction may succeed at trial and will have suffered whatever injustice flows from not having had the benefit of a court order in the intervening period.

5.4 Obviously, the extent to which there may be a risk of injustice can vary hugely from case to case and, within one case, from party to party. However, it seems to me that it is an acknowledgment by the court of that risk of injustice that informs the detailed rules that have evolved by reference to which the court decides whether to grant or refuse an interlocutory injunction. If a plaintiff cannot establish a fair issue to be tried, then there is obviously a huge risk of injustice in imposing an injunction on a defendant where there is, at least at the time of the interlocutory hearing, no real basis for supposing that the plaintiff will ultimately succeed.

5.5 Likewise, the adequacy of damages (whether it be damages that the defendant might be asked to pay or damages which the plaintiff might be required to meet on his undertaking as to damages) is a consideration which is very closely connected with the risk of injustice. If damages are truly an adequate remedy for a plaintiff then, if the plaintiff succeeds, the appropriate amount of damages will be awarded and the plaintiff will be adequately compensated. The only injustice will be that the plaintiff is deprived of his money in the intervening period but that can, ordinarily, be dealt with by an award of interest or the like.

5.6 Similarly, if a defendant can be adequately compensated for the effects of being subjected to an interlocutory injunction by damages awarded on foot of the plaintiff’s undertaking as to damages, the risk of injustice is similarly small.

5.7 Finally, the balance of convenience is, perhaps, the factor that is most closely and directly associated with the risk of injustice. 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 turns to the balance of convenience. In substance, the court has to assess how serious the consequences for the respective parties would be in the event that an injunction is granted which ultimately, again with the benefit of hindsight after a trial, should not have been granted or is refused where ultimately, with the benefit of hindsight after a trial, it is determined that it should have been granted. In both cases the parties will, on the hypothesis that leads to a consideration of the balance of convenience, be at risk of suffering consequences for which damages would not be an adequate remedy. There will, therefore, either way, be irremediable consequences of either the granting or refusal of the interlocutory order sought. The court has to form a view as to which of those consequences, on balance, would be the lesser.

5.8 On the basis of that analysis, it might be said that giving consideration to the least risk of injustice does not really add much to the overall picture for it might be seen simply to justify the existing set of rules. However, it seems to me that a “least risk of injustice” analysis has perhaps some additional benefits. First, it can be a useful measure for deciding whether a somewhat different approach to normal is needed in particular types of cases. It is now well settled that in cases involving a mandatory injunction the court will normally require a higher level of likelihood that the plaintiff has a good case before granting an interlocutory injunction (see for example Lingam v Health Service Executive (Unrep., Supreme Court, Fennelly J. 4th October, 2005). It may well be that the logic behind that departure from the normal rule can be found in the added risk of injustice that may arise where the court is asked not just to keep things as they were by means of a prohibitory injunction but to require someone to actively take a step which may, with the benefit of hindsight after a trial, turn out not to have been justified. The risk of injustice in the court taking such a step is obviously higher. 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. Likewise, in cases such as Evans v IRFB Services (Ireland) Ltd [2005] IEHC 107 and Bergin v Galway Clinic Doughiska Ltd [2008] 2 IR 205 the attempt to fashion an interlocutory order which minimised the overall risk of adverse consequences might be seen to be examples of the same underlying principle.

5.9 Given that, based on the above analysis, the detailed rules which have evolved for considering interlocutory injunction applications can be said to stem from an attempt by the court to work out the course of action which gives rise to the least risk of injustice, then it may well be that that underlying principle can be a useful tool or measure to be applied where the court is confronted with a difficult situation. Given that, for reasons which I have already touched on, the springboard injunction is unusual in a number of respects, it seems to me that it is appropriate to have regard to the underlying principle of attempting to fashion a result to an interlocutory application which gives rise to the least risk of injustice, in approaching the application of the general rules to the special and unusual circumstances of a springboard injunction. I will shortly turn to the jurisprudence in respect of springboard injunctions. It seems to me that that jurisprudence needs to be considered and analysed in the context of the underlying principle that the court must seek out a course of action which gives rise to the least risk of injustice.

5.10 However, before departing from this general topic I might add one further observation. All of the authorities make it clear that the court should not attempt, in reaching whatever assessment is necessary to decide on an application for an interlocutory injunction, to resolve contested issues of fact. It might, on a superficial view, be thought that that rule is a departure from the underlying principle of attempting to minimise the risk of injustice to which I have referred. Might not finding against, at an interlocutory hearing, a party who seems likely to win at trial, give rise to a highlighted risk of injustice? However, it seems to me that on detailed analysis a different picture emerges.

5.11 The whole point of the interlocutory injunction procedure is to enable the court, in appropriate cases, to make some sort of immediate order in a much shorter timeframe than that within which a full trial of all issues between the parties could realistically hope to take place. The interlocutory injunction jurisdiction is a recognition that, at least in some cases, irremediable adverse consequences can happen pending trial which, in appropriate cases, the court should act to prevent. However, by definition the process requires a very early hearing of the interlocutory application. That gives rise to practical difficulties. If the court were to attempt to form a judgment as to the strength or weakness of each side’s case as part of the process of assessing whether an interlocutory injunction should be granted or not, then there would be inevitable logistical consequences of such a course of action.

5.12 First, so far as the facts are concerned, it would be very difficult to resist an application on the part of either party to put in successive tranches of new evidence. Under the current test, and once both parties have put sufficient evidence before the court to allow the court to conclude that each has a case on the facts, nothing is gained by the filing of further evidence as to the merits of the proceedings. The only question is as to whether there is a fair issue to be tried. Once that stage is reached (having regard to the filing of evidence on both sides), then nothing, in truth, can be gained by further replying and cross replying affidavits although it does have to be said that parties are sometimes reluctant to leave matters stand. The courts, however, quite properly, are reluctant to allow the process to be lengthened by the filing of additional affidavit evidence when that evidence does no more than provide further argument in favour of a proposition which might already have sufficient evidence in its favour to meet the fair issue to be tried test. A court can, under the current test, legitimately inquire of a party as to whether it really needs any more evidence. On the other hand, if the court were to take into account the weight of the evidence on either side, it would be difficult to resist an application by either party to put in further evidence for the case could be made that, while there was already a fair issue to be tried on the evidence as it stood, the additional evidence sought to be furnished in reply might strengthen the relevant side’s case and, thus, be a factor in the overall determination of the court.

5.13 The consequences of such a course of action are obvious. Parties would be reluctant to leave any affidavit unanswered. The process of filing additional affidavit evidence would be significantly elongated. The likely time which the case would take at hearing at the interlocutory stage would be significantly lengthened. The longer the trial of the interlocutory issue is likely to take, the more delay may be incurred in finding a suitably lengthy slot in the court’s list to enable the hearing to take place and, all in all, the whole point of an early hearing on the question of what the situation should be pending trial would be defeated.

5.14 While there might, therefore, be a superficial attraction in suggesting that the court should have regard to the weight of the case on either side on the basis that making a decision at an interlocutory stage in favour of a party which had a very weak case (be they plaintiff or defendant) increased the risk of injustice, the counter argument seems to me to be much more weighty. That counter argument is that exposing the interlocutory hearing to the significant additional evidence that would need to be filed on all sides if the court had to assess the weight of the case on either side and exposing the argument to the much more detailed legal submissions on the merits of the case which would also be required (at least if there be complex legal issues involved) in those circumstances, would lead to such a delay in the hearing of the interlocutory injunction as would, at least in many cases, defeat the whole purpose of the interlocutory jurisdiction.

5.15 Indeed, it would, in many cases, give rise to a further layer of difficulty where the court would be called upon to decide what was to be in place pending the hearing of the interlocutory injunction. Already that can sometimes be a problem. A plaintiff who does not seek (or who is not given) an interim injunction is often faced with an application for an adjournment by the defendant when the interlocutory injunction is first listed. The defendant (particularly if there has been short service) will often point to the difficulty in having affidavits sworn and legal arguments prepared in time. If the adjournment sought is relatively brief, then it may be possible to deal with the question of what the situation is to be pending the adjourned date in a relatively straightforward way. However, if there is likely to be a long gap between the time when the interlocutory application first comes before the court and when it is ultimately determined, then it is obvious that much greater difficulty may be faced by the court in having to consider what is to happen not until there is a trial of the action but until there is a trial of the interlocutory application. Similar considerations apply to a defendant who is faced with an interim injunction already in being and who will often be invited to agree to a continuation of that interim injunction pending the hearing of an interlocutory application in circumstances where that defendant needs more time to put in its evidence and marshal its legal arguments. Again, if the gap is anticipated as being short, no great problem may emerge. However, if there is likely to be a long gap then the court will, doubtless, be faced with having to engage in some kind of a hearing to decide what the situation should be pending the determination of the interlocutory application. All of that is a recipe for procedural chaos, an additional waste of valuable court time, and, indeed, a significant potential injustice in individual cases. The superficial argument that the least risk of injustice might be ascertained by at least having some regard to the weight of the case is, in my view, not correct. That does not mean that there may not be particular categories of cases, such as the mandatory injunction jurisdiction to which I have already referred, where the court may not require a higher level of likelihood of a plaintiff succeeding before being prepared to take the risk of injustice inherent in particular types of orders. However, even in such cases there is a significant potential downside in requiring a detailed assessment of disputed facts as part of any attempt to determine the weight of the respective cases.

5.16 I have already noted the issue which arises as to whether, given that what is sought in these proceedings is a springboard injunction, there may be a case to be made that the court requires a higher level of assurance that the plaintiff will succeed by reason of the fact that the granting of an interlocutory injunction in favour of AIB might well amount to a resolution of all of the issues (with the exception of damages) in this case in AIB’s favour. As noted earlier, there is an argument to be made to the effect that the court should require a higher level of likelihood that the proceedings will succeed in those circumstances. I have come to the viewthat there is an obligation on a plaintiff, seeking to obtain an interlocutory springboard injunction, to satisfy the court of a strong arguable case for those reasons.

5.17 However, in the light of the analysis which I have just conducted, it does not seem to me that it is appropriate for the court to enter into a detailed analysis of controversial facts in reaching any assessment as to the likelihood of the plaintiff’s claim ultimately succeeding in the context of applying the appropriate tests at an interlocutory stage. The court can, of course, conclude that, even on the facts asserted by the plaintiff, the case would be weak and might fail to reach the strong case test where that test applies. The court can also, for reasons such as clear internal inconsistency in the evidence presented, come to the view that the facts asserted as forming the basis of the issue to be tried lack any credibility. So far as the factual element of the plaintiff’s case is concerned the court should assess whether, on the basis of the asserted facts for which credible evidence is presented, the plaintiff has a strong arguable case.

5.18 The court should, in my view, however, refrain from attempting to engage in the sort of detailed analysis that would be necessary to form a view as to the likely chances of success or failure on controversial facts for, amongst other reasons, to so do would run the risk of the procedural chaos to which I have referred.

5.19 With those observations in mind, I now turn to the question of whether AIB has produced such evidence. “

Bergin -v- Galway Clinic Doughiska Ltd

[2007] IEHC 386(

Clarke J.

“4. The Legal Issues

4.1 There have been a significant number of decisions over the last number of years both of this Court, and to a lesser extent, of the Supreme Court, in relation to what might loosely be called employment injunctions. I think it is fair to state that this area of the jurisprudence of the courts is in a state of evolution and the precise current state of that jurisprudence is far from clear. This situation is not, in my view, helped by the fact that a great many of the cases do not proceed to trial so that by far the greater number of the authorities consist of decisions of the court at an interlocutory stage rather than after a full hearing. While such authorities may be of very considerable assistance in defining the jurisprudence in relation to the grant or refusal of interlocutory injunctions, same may do little to advance the cause of clarity in respect of employment law generally, for the court is required to approach issues of general employment law, at the interlocutory stage, on the basis of arguability or, perhaps, where the injunction sought is mandatory in substance, likelihood of success. In either case a definitive decision on the legal issues arising (with the exception of those which are relevant solely to the grant or refusal of interlocutory relief) has to await a full trial. In practice the full trial rarely arises. It is the frequent experience of the court dealing with such matters that a great many of the cases which are the subject of an interlocutory ruling are resolved by agreement between the parties before the matter comes to trial. It would be somewhat naïve not to surmise that a significant feature of the interlocutory hearing is concerned with both parties attempting to establish the most advantageous position from which to approach the frequently expected negotiations designed to lead to an agreed termination of the contract of employment concerned. The employee who has the benefit of an interlocutory injunction can approach such negotiations from a position of strength as can the employer who has successfully resisted an interlocutory application.

4.2 The first legal issue which arises between the parties on this application is as to the appropriate standard to be applied in assessing the case which the plaintiff has to make out at this interlocutory stage. It is clear from cases such as Fennelly v. Assicurazioni Generali [1985] 3 I.L.T. 73 and Maha Lingham v. Health Service Executive [2006] 17 E.L.R. 137, that a plaintiff may be entitled to injunctive relief which would have, to some extent, the effect of continuing his or her employment but only, it would seem, where the plaintiff concerned can establish a strong case. That such can be the case even though damages might well be the appropriate remedy at trial, is clear from, for example, Shortt v. Data Packaging Ltd (1994) ELR 251 and Phelan v. BIC (Ireland) Ltd (1997) ELR 208. As noted by Fennelly J. in Maha Lingham the traditional view at common law was to the effect that, as he put it, :-

“The employer was entitled to give that notice so long as he complied with the contractual obligation of reasonable notice whether he had good reason or bad for doing it. That is the common law position and it is an entirely different matter as to whether a person has been unfairly dismissed and a different scheme of statutory remedy is available to any person dismissed whether with or without notice under the Unfair Dismissals Act but this is not such an application. This is an action brought at common law for wrongful dismissal in the context of which an injunction was sought.”

4.3 It is also important to note that Fennelly J. went on to deal with what he described as “a very strong trend” in those cases in which injunctions had been granted, to the effect that such cases were derived from circumstances 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, been honoured. I expressed similar views in Carroll v. C.I.E. (2005) 4 IR 184, concerning those cases where the courts seem to have departed from the viewthat damages were the appropriate remedy in circumstances where an employee was dismissed in breach of contract.

4.4 Fennelly J. went on to note a second element in the development of employment law which seems to imply an obligation to comply with the rules of natural justice in cases of a dismissal by reason of misconduct. However, as that issue did not arise in the context of the case under consideration, no further comment on that aspect of the jurisprudence was made.

4.5 Applying Maha Lingham in Naujoks v. National Institute of Bioprocessing, Research and Training [2007] 18 E.L.R. 25, Laffoy J. undoubtedly applied the strong case test in determining that the plaintiff had not discharged the onus in relation to what was described as the first strand of the plaintiff’s case.

4.6 Laffoy J. went on to consider a second strand of the plaintiff’s claim which related to fair procedures. It is suggested by counsel on behalf of Mr Bergin that Laffoy J., in relation to that strand, applied the ordinary, or lower, standard of fair case to be tried. I am not satisfied that Laffoy J. did, in fact, apply a lower standard. Indeed it would be difficult to see the logic of so doing. The basis for the higher standard is that the substance of the relief sought is a mandatory order requiring the employer to keep the employee in employment. The order remains a mandatory order, even though the plaintiff claims that a purported termination of his employment is unlawful by reason of a finding of wrongdoing having been arrived at in breach of the principles of natural justice. However couched, the substance of the relief is the same. I am not, therefore, satisfied that different standards apply depending on the nature of the claim advanced on behalf of he plaintiff concerned. 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 continue and that his employment entitlements are met.

4.7 It follows, in my view, that, in order to determine whether the first step towards granting such an order has been met, it is necessary that the plaintiff concerned establish a strong case.

4.8 It does not seem to me, on balance, to be logical to impose a different standard where the purported dismissal of the employee concerned stems from reasons other than misconduct on the one hand, or resulted from a finding of misconduct on the other hand. While proceedings taken before the Employment Appeals Tribunal under the Unfair Dismissals Act, 1977 raise different issues, the existence of an obligation on the part of an employer to comply with the rules of natural justice in considering an allegation of misconduct against an employee, at common law, stem from an implied term in the contract of employment of such employee to that effect (or, indeed, as is the case here, from an express term to like effect). In the case of most contracts of employment, the issues which arise involve no questions of public law. The legal relations between the employer and employee are purely governed by the contract of employment together with any applicable statutory provisions. So far as the common law is concerned there is not, therefore, in my view, in principle, any difference between an allegation that an employer is in breach of contract by having failed to apply an appropriate process in leading to a conclusion of misconduct which in turn might lead to a dismissal on the one hand or had failed to (say) honour a fixed term contract for its full period, on the other hand. Both are allegations of breach of contract.

4.9 I have also considered whether the fact that a finding of misconduct might have an effect on the reputation of the employee concerned, in addition to the consequences for his contract of employment, could be a possible factor for taking the view that different considerations might apply in the grant of interlocutory injunction in such cases. There is no doubt but that a finding of misconduct (particularly if serious) could have a significant effect upon an employee beyond the loss of his contractual entitlements under his contract of employment. Such an eventuality might well, legitimately, permit a court to grant interlocutory relief, without being satisfied on the higher standard, where such interlocutory relief is designed to prevent any publication of a finding of misconduct or other publication from which persons might reasonably infer that a finding of misconduct had to have been made. A statement to the effect that a person had been summarily dismissed in circumstances where the only inference to drawn from such a statement was that the person had been guilty of significant misconduct would be a case in point.

4.10 However, this issue has to be seen against the background of the fact that an employer can, in principle, at common law, terminate a contract of employment on reasonable notice without giving any reason. There may, of course, in practise, be many reason why an employer may not wish to take that course. Firstly he may be exposed to a liability under the Unfair Dismissals Act, 1977. Secondly there may well, in many cases, be the potentiality for industrial relations difficulties. However, it is important to remember that in proceedings taken before the courts, the employee concerned is asserting his common law rights. Those rights are based on his contract on employment and do not involve any public law element as such even though the principles of natural justice may, for the reasons which I have set out, be imported into that contract. Any breach of the principles of natural justice is, therefore, in the context of an employment injunction, a breach of contract rather than a matter or public law. There does not, therefore, seem to me to be any basis for treating such an allegation of breach of contract in a different fashion from any other.

4.11 I should finally add that it does not seem to me to be appropriate to make a distinction as to the stage at which a disciplinary process has reached, in determining the entitlements of an employee to an injunction. It can hardly be the case that the entitlement or otherwise of an employee to an injunction could depend on whether he happened to get to court before a particular stage had been reached. An employee who has already been summarily dismissed is undoubtedly seeking a mandatory injunction if he seeks to restrain the employer concerned from acting as if he had been dismissed. If, whether by luck, diligence, prescience or a combination of any of those, the employee concerned happens to seek an injunction before the employer has made a final decision (even by, say, a matter of hours) such an application could be couched as one restraining the dismissal but, for reasons similar to those relied upon by Fennelly J. in Maha Lingham, I am satisfied that the substance of such an order, if made, remains mandatory. It was, amongst other things, for reasons such as that, that I expressed the view in Becker v.St.Dominics Secondary School (Unreported, High Court, Clarke J. 13th April 2006), and further cases which followed it, that the courts should only intervene in the middle of a disciplinary process in a clear case. I note that Feeney J. has expressed a similar view in a subsequent ex tempore judgment.

4.12 I have, therefore, come to the view that in any case in which an employee seeks to prevent a dismissal or a process leading to a dismissal, as a matter of common law, and in whatever terms the claim is couched, the employee concerned is seeking what is, in substance, a mandatory injunction which has the effect of necessarily continuing his contract of employment even though the employer might otherwise be entitled to terminate it. In those circumstances it is necessary for the employee concerned to establish a strong case in order to obtain interlocutory relief. I should emphasise that, at a full trial, the employee concerned is, of course, entitled to whatever relief the court might consider appropriate although, again, on by far the preponderance of the authorities, it is likely that, in most cases, the employee will be confined to a claim in damages. Most of the exceptions stem from special circumstances. For example in Carroll I declared void a decision to dismiss but, as is clear from the judgment in that case, it was in circumstances where the real issue was as to whether the plaintiff concerned was required to go straight to an appeal or was entitled to have a “first instance” hearing conducted again. I should also emphasise that there may be cases where, for one reason or another, different considerations apply. It is, for example, at least arguable that public law considerations come into play in at least some offices or employments which are governed directly by statute. It may well be that different considerations apply in such cases. The comments which I have made about the standard to be applied in this case are those which, in my view, are applicable to a purely private contract between two private individuals or entities.”

O v. Z Ltd.

[2004] IEHC 47

Carroll J. delivered the 25th day of March, 2004.

The plaintiff is an engineer by profession. He originally joined KAO Information Systems (KAO) in 1995. There was a transfer of undertaking by KAO to the defendant in 1999 and the plaintiff’s employment continued pursuant to the EU Acquired Rights Directive. With KAO he was Programme Manager assigned to the new Microsoft account. In 2000 he was appointed Client Services Manager-Microsoft Business, by the defendant pursuant to contract dated 16th May, 2000.

The contract provided his employment commenced 1st June 2000.

Clause 12 deals with termination of employment and provides:-

“Notice periods

After the successful competition of the probationary period this contract may be terminated by either party giving written notice of not less than the following:

– Less than four years service 1 month

– Four years but less than nine years service 2 months

– Nine years service and over 3 months

The company may terminate the contract without notice if you are in serious breach of contract, are guilty of gross misconduct or any conduct likely to bring yourself or the company into disrepute, including any conduct which renders you unsuitable to perform the duties required of your position.”

The contract also provides

“This contract supersedes any other contract or arrangement which may have been entered into by the parties.”

The plaintiff’s grounding affidavit contains an enormous amount of unnecessary detail. He refers to negat

The plaintiff claims that the issue to be tried is that he was unfairly dismissed because there was no valid redundancy and he was really dismissed because of criticisms made about him. It is claimed that there must be an implied term in the contract that the employer must act reasonably and fairly.

The defendants submit that this is not a fair issue to be tried as unfair dismissal is governed by the Unfair Dismissals Acts, which provide a statutory remedy which is mutually exclusive to the common law remedy for damages. In the case of Parsons v. Iarnród Éireann [1997] E.L.R. 203 where a plaintiff pursued a claim for wrongful dismissal under the Unfair Dismissals Act, 1977, and it had been unsuccessful, he then initiated proceedings in the High Court but did not seek damages. The defendant made a preliminary objection that the claim contravened s. 15 (2) of the Unfair Dismissals Act, 1977, which was successful. The plaintiff appealed but the Supreme Court dismissed the appeal.

Barrington J. said at p. 207 ” What the Unfair Dismissals Act, 1977 does is to give to the worker who feels that he has been unfairly dismissed an additional remedy which may carry with it the very far reaching relief of re-instatement in his previous employment. It does not limit the worker’s rights, it extends them. At the same time s. 15 of the Unfair Dismissals Act, provides that the worker must choose between suing for damages at common law and claiming relief under the new Act. Subsection 2 accordingly, provides that if he claims relief under the Act, he is not entitled to recover damages at common law; while subs. 3 provides that where proceedings for damages at common law for wrongful dismissal are initiated by or on behalf of an employee, the employee should not be entitled to redress under the Unfair Dismissals Act in respect of the same dismissal.”

…..with the statutory regime of unfair dismissal introduced in its original form by the Industrial Relations Act, 1971 and subsequently in force under the Employment Rights Act, 1996, held that an employee had no right of action at common law to recover financial loss arising from the unfair manner of his dismissal. A conclusion to the contrary would be inconsistent with the statutory system for dealing with unfair dismissals established by Parliament in 1971 to remedy deficiencies in the laws that then stood. The remedy adopted by Parliament was not to build on the common law by creating a statutory implied term that the power of dismissal should be exercised fairly or in good faith leaving the courts to give a remedy on general principles of contractual damage. Instead it set up an entirely new system outside the ordinary courts at which tribunals applied new statutory concepts and offered statutory remedies. For the judiciary to construct a general common law remedy for unfair circumstances attending dismissal would be contrary to the evident intention of Parliament that there should be such a remedy but that it should be limited in application and extent.

Lord Nichols put it succinctly when he said at p. 803 “I am persuaded that a common law right embracing the manner in which an employee is dismissed can satisfactorily co-exist with the statutory right not to be unfairly dismissed. A newly developed common law right of this nature covering the same ground as the statutory right would fly in the face of the limits Parliament has prescribed on matters such as the classes of employees who have the benefit of a statutory right, the amount of compensation payable and the short lived time limits for making claims. It would also defeat the intention of Parliament that claims of this nature should be decided by specialist tribunals and not the ordinary courts of law”.

Lord Millet said at p. 825 “If this right (i.e. the statutory right not to be unfairly dismissed) had not existed, however, it is possible that the courts would have fashioned a similar remedy at common law though they would have proceeded by implying appropriate terms into the contact of employment. It would have been a major step to subject the employer’s right to terminate the relationship on proper notice to an obligation not to exercise the right in bad faith and a still greater step to subject it to an obligation not to exercise it without reasonable cause (a difficult distinction, but one drawn by McLachlin J. in Wallace’s case (at 44)). Even so, these are steps which in the absence of the statutory right the courts might have been prepared to take though there would have been a powerful argument for leaving the reform to Parliament”.

Later at p. 826 he says “But the creation of the statutory right has made any such development of the common law both unnecessary and undesirable. In the great majority of cases a new common law right would merely replicate the statutory right; and it is obviously 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 Parliament. In all cases it would allow claims to be entertained by the ordinary courts when it was the policy of Parliament that they should be heard by specialist tribunals with members drawn from both sides of industry. And even more importantly the co-existence of two systems, overlapping but varying in matters of detail and heard by different tribunals would be a recipe for chaos. All coherence in our employment laws would be lost”.

It has therefore been held by the Supreme Court that the common law claim for damages for wrongful dismissal and the statutory claim for unfair dismissal are mutually exclusive. The House of Lords decision in Johnson v. Unisys Limited underlines this. What the plaintiff is seeking to do is to introduce a new obligation under the common law on the employer to act reasonably and fairly in the case of dismissal. As the law stands, at common law an employer can terminate employment for any reason or no reason provided adequate notice is given. In cases involving dismissal for misconduct the principles of natural justice also apply, but that does not arise here.

In this case the defendant gave notice in accordance with the plaintiff’s contract plus an additional month. There is no allegation that notice was inadequate in this case.

Therefore, in my opinion in light of the Supreme Court decision in Parsons v. Iarnrod Eireann and underlined by the House of Lords in Johnson v. Unisys Limited, it is not open to the plaintiff to argue that the principles applicable under the statutory scheme should be imported into the common law.

In the event that I am wrong to hold that this issue is not a fair issue, despite the decision of the Supreme Court, I will go on to consider whether damages are an adequate remedy. In my opinion they are. The plaintiff cannot seriously hope that he will be re-instated in employment where the defendants are unwilling to take him back and have no place for him. Therefore his remedy, if he is successful, is in damages.

Again on the assumption that I may be wrong in this, I will consider whether a mandatory injunction requiring the defendant to pay him his salary over and above the period of notice should be made. It is argued on behalf of the plaintiff that the application for interlocutory relief for payment of salary and benefits was common place and a number of authorities were provided to that effect. However, as far as I could ascertain the vast majority of these settled.

Having recently heard the case of Sheehy v. Ryan (unreported 3rd February, 2004) where an interlocutory order for the payment of salary was made on 29th August, 2002, the plaintiff who had been made redundant and dismissed with effect from 19th September, 2002, did not succeed in a claim to be entitled to be employed for life or until 65. The plaintiff, Mary Sheehy had sued at common law where the employee’s right to damages depends on whether reasonable notice was given. Since reasonable notice was given in that case, there was no entitlement to damages.

In this case the plaintiff was given one month’s extra notice (and pay) over and above the two months provided in his contract. I do no see how any issue can arise that notice was not reasonable. If the plaintiff does not succeed there will be a real injustice to the defendant if it is obliged to pay him salary until the date of the trial.

The first case in which a mandatory order for the payment of salary pending trial was made by Costello J. in Fennelly v. Assicurazioni Generali SPA (12th March, 1985). Here the evidence established that the plaintiff left a permanent and pensionable post and obtained a letter that the contract was for the fixed term of 12 years. Costello J. said he was entitled to conclude that there was a fair question to be tried that the contract was determined invalidly. He approached the case on general principles that the courts would not give specific performance of an employment contract (subject to the exception as in Hill v. Parsons). Costello J. said the court might conclude at trial that damages were an adequate remedy but at that stage he still had to consider the balance of convenience until the trial. He said in the meantime the plaintiff would be left without a salary and nothing to live on. The situation in which he found himself would be little short of disastrous. He said that he should not be left in the situation in which he would be virtually destitute with the prospect of damages at the action. That seemed an unjust situation. He said “In view of the very special circumstances in this case I will require the plaintiff to be paid his salary and I order that until the trial of the action the defendant should continue to pay the plaintiff’s salary and bonus under his present contract. I accept that the court should not require an employer to take on an employee where serious difficulties have arisen between them or where there is no work for the employee but in this case the parties have obviously the highest regard for one another. I will take an undertaking that the plaintiff will be prepared to carry out such duties that the defendants will ask of him until the trial. If they would make use of him until the trial of the action the plaintiff should attend and carry out such duties he has been given. They might prefer not to give him any duties and put him on leave of absence. That is for the defendant but they must continue to pay his salary until the trial.”

I am told that on appeal to the Supreme Court payment of salary was limited to six months.

In the English case of Hill v. CA Parsons & Co Limited [1972] 1 Chancery 305 (which predated the Fennelly case) the plaintiff was given one month’s notice to join a trade union and did not do so. He was then given one months notice of termination. He claimed an injunction restraining the defendants from implementing their notice of termination. It was held by the Court of Appeal that he was entitled to at least six months notice and in the exceptional circumstances of the parties’ relationship and the plaintiff’s likely protection by the coming into operation of Part II of the Industrial Relations Act, 1971 before a fresh notice could take effect, his contract of employment was still subsisting and, damages not being at all an adequate remedy, he was entitled to the interim injunction sought.

In both these cases it was emphasised that there were either “special” or “exceptional” circumstances and also there was no loss of trust in the employee.

In Harte v. Kelly [1997] E.L.R. Laffoy J. went further and held that the entitlement to the type of order granted in the Fennelly case was not limited to situations where the plaintiff could establish that he would face penury if such an order was made. She said “The rationale of the decision 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 GEE v. Irish Times (Unreported 27th June, 2000) McCracken J. referred to the “well established practice” to continued payment of salary pending trial.

So the position apparently has moved from being appropriate in either special or exceptional circumstances to being a “well established practice”.

In my view the cases where there is no suggestion of any breakdown of trust or confidence have no relevance to this case; likewise where there is alleged breach of a fixed term contract. Here the defendants claim they would suffer irreparable harm if forced to re-employ the plaintiff. The plaintiff in his grounding affidavit seeks re-instatement only. It is only in his second replying affidavit that he mentions money and then only in oblique terms. He refers to the claim by Mr. Shanahan that the loss of his career and the resultant suffering and financial hardship which he and his family would suffer, would adequately be compensated by damages. He does not allege irreparable loss and damage if deprived of his salary. In my view the plaintiff has not made out a case on the balance of convenience that he should be paid his salary after the period of notice has expired. It would constitute a serious injustice for the defendant if it was obliged to pay the plaintiff’s salary until trial of the action. The same applies to the application to maintain his pension and life assurance benefits or preserving his perquisites and entitlements. It follows that there is no justification for permitting the performance of functions and duties by the plaintiff or restraining the performance of those functions and duties by any person other than the plaintiff.

In my view the most appropriate course is to have an early trial. Provided the pleadings are complete and the case is ready for trial it can be given priority in the list to fix dates at the end of next term. This should give a trial to the plaintiff during the coming summer term.”

Nolan -v- EMO Oil Services Ltd

[2009] IEHC 15

Laffoy J.

Counsel for the plaintiff accepted that, as, in effect, the plaintiff is seeking a mandatory interlocutory injunction, the first hurdle he has to overcome is that he must “show at least that he has a strong case that he is likely to succeed at the hearing of the action” (per Fennelly J. in Maha Lingham v. Health Service Executive [2006] 17 E.L.R. 137). The plaintiff contended that he could meet that test. The defendant’s primary answer was that he could not, because, it was submitted, both contentions advanced by the plaintiff, that is to say, that the redundancy was not a valid redundancy or, alternatively, that he should not have been selected for redundancy, cannot be litigated in these proceedings and can only be pursued on a claim under the Unfair Dismissal Acts 1977 to 2008.

The defendant’s argument raises a very basic point. For the reasons set out below, I think it is correct both in principle and in accordance with precedent.

Under Irish law, an employee has two potential avenues to secure redress for dismissal from employment which he contends is contrary to law. One is to bring an action at common law for wrongful dismissal where he contends that the dismissal was in breach of contract or in violation of his constitutional rights. The other is to pursue a claim for unfair dismissal under the Unfair Dismissal Acts 1977 to 2008. That the two avenues are mutually exclusive has been consistently recognised.

In the Maha Lingham case, Fennelly J. recognised the distinction, in outlining the first of a number of “quite obvious legal matters” raised by that case in the following passage:-

The distinction was reiterated by the Supreme Court in Sheehy v. Ryan [2008] IESC 14 in which judgment was delivered by Geoghegan J. on 9th April, 2008. Referring to the decision of Carroll J. at first instance, Geoghegan J. stated:-

“The judge in fact went on to point out that the appellant had chosen a common law remedy. She could have initiated proceedings under the Unfair Dismissals Act, 1967 or under the Redundancy Payments Act. The trial judge then said that the position at common law is that an employer is entitled to dismiss an employee for any reason or no reason on giving reasonable notice. I would slightly qualify that by saying that it does depend on the contract but in the absence of clear terms to the contrary which are unambiguous and unequivocal, that clearly is the position.”

In both the Maha Lingham case and the Sheehy case no period of notice for termination was stipulated in the relevant contract of employment. In this case, as I have said, it is common case that a period of notice is stipulated and that what was required in September 2008 was four weeks’ notice. The defendant effectively gave the plaintiff three months’ notice. Accordingly, according to what Fennelly J. described as “the traditional law”, the plaintiff’s contract of employment was lawfully terminated. No action for breach of contract arises, nor can any question of violation of the plaintiff’s constitutional rights arise.

It is necessary to consider whether the “modern developments” to which Fennelly J. referred have a bearing on the plaintiff’s entitlement to the relief he claims on this application.

A line of authority has developed in this jurisdiction from the decision of the High Court (Costello J.) in Fennelly v. Assicurazioni Generali Spa. [1985] 3 I.L.T.R. 73, on the basis of which an employee, who has been dismissed, may, in certain circumstances, be granted a mandatory injunction directing payment of his or her salary pending the determination of the substantive proceedings. Counsel for the plaintiff suggested that the decision of the High Court (Keane J.) in Shortt v.Data Packaging Limited [1994] E.L.R. 251, in that line, is authority for the proposition that the plaintiff should be granted a mandatory injunction in this case on the basis of his contention that his redundancy was not valid. A consideration of the judgment of Keane J. does not bear that out. The facts in that case were that in 1988 the plaintiff had been employed as a managing director of the defendant on a three-year fixed term contract which provided that any continuation after the fixed term was to be deemed to be employment of indefinite duration terminable by six months’ notice. The plaintiff continued in employment in accordance with the terms of the contract following the expiration of the three-year term until 11th January, 1994, when he was informed that, owing to a re-structuring of the company, he was to be made redundant, and that the termination of his employment was to be of “immediate effect”. The plaintiff sought an injunction restraining the defendant from appointing any person other than the plaintiff to the position of managing director of the defendant pending the trial and an order that the defendant continue to pay him all salary accruing from 11th January, 1994 and other benefits to the trial of the action. Keane J. in an ex tempore judgment indicated that he would make an order largely in the form of the order made by Costello J. in the Fennelly case on the basis that he was satisfied that the plaintiff had made out a fair issue to be tried as to the legality of the purported termination. He outlined the arguments which had been advanced on behalf of the plaintiff: that the power of immediate termination could only be exercised by the directors of the defendant and that there had been no decision of the directors, because the plaintiff, who was a director, would have been aware of it; that the plaintiff’s removal was ineffective, in that it was in breach of the principles of natural justice; that the alleged redundancy was spurious and unsubstantiated and that the real reason for the purported removal lay in differences between the plaintiff and his employers; and that the statutory redundancy requirements had not been observed.

There are two significant features which distinguish the Shortt case from the plaintiff’s case. First, the plaintiff in the Shortt case was an office holder, as a director, as well as a contract employee. Secondly, the defendant purported to terminate his employment forthwith without giving him the notice to which he was entitled as a matter of contract. In my view, the Shortt case is not authority for the proposition that, in a case in which the plaintiff’s employment has been terminated in accordance with his contract of employment, but on the grounds of redundancy, the High Court in a plenary action, has jurisdiction to consider whether the redundancy was a genuine redundancy and, if it finds that it was not, or that there is a strong case that it was not, to afford relief to the plaintiff either in the substantive action or by way of interlocutory injunction.

In the Maha Lingham case, Fennelly J. considered an argument made on behalf of the plaintiff that there has developed in parallel with the statutory scheme the tendency of the Courts to imply a term of good faith and mutual trust in contracts of employment. Fennelly J. made the following observations on that argument:-

“There has been a discussion of course of the English case of Eastwood v. SIZE=2 FACE=”Verdana”> Magnox Electric Plc., [2004] 3 All ER 991 decided this year and referred to in the judgment of Carroll J. and in particular the majority speech in the House of Lords in that case where Lord Nicholls, as cited by Carroll J., took the view that because of the statutory code relating to unfair dismissal, in effect that it was not for the courts to extend further into the common law, the implied term regarding mutual trust in such a way as to upset the balance set by the legislature. In other words that the principle that there is an implied term of mutual trust and good faith in contracts of employment does not extend so as to prevent the employer terminating a contract of employment by giving proper notice and, having already said that it is not contested that proper period of notice was given in this case, the question is whether the plaintiff has made out the sort of case that would be necessary to show that the contract of employment had been undermined to such an extent by the employer in this case that the employer was deprived of the right to give a proper period of notice of termination.”

Having made those remarks, Fennelly J. looked to the facts of the case before him. He reiterated that it was necessary for the plaintiff to establish a strong and clear case. He found that, so far as the defendant was concerned, the plaintiff’s employment as a temporary orthopaedic surgeon was terminated for the simple straight forward reason that the employment was not authorised and was not funded and that there was no question of the dismissal being motivated by any suggestion of racial discrimination or racial slur.

Although not articulated in this way by counsel for the plaintiff, the plaintiff’s case, as I understand it, is that it is an implied term of his contract of employment that, notwithstanding the express right to terminate his contract on notice, the plaintiff is entitled to litigate the fairness or otherwise of the termination of his contract on the grounds of redundancy by reference to the statutory code in plenary proceedings in this Court. I base that understanding on the submission of counsel for the plaintiff that the defendant, as his employer, owed a duty of good faith to the plaintiff, in consequence of which it was an implied term of the plaintiff’s contract of employment that, if he was to be let go on the grounds of redundancy, there would have to be a valid redundancy.

In the Eastwood case referred to by the Supreme Court in the Maha Lingham case, the House of Lords considered its earlier decision in Johnson v. Unisys Limited [2003] 1 A.C. 58. Lord Nicholls in his speech representing the majority view observed (at para. 14):-

Later (at para. 27), Lord Nicholls identified the boundary line of what had come to be known as the “Johnson exclusion area”, that is to say, the area within which relief cannot be pursued in the Courts, stating:-

“Identifying the boundary of the ‘Johnson exclusion area’, as it has been called, is comparatively straightforward. The statutory code provides remedies for infringement of the statutory right not to be dismissed unfairly. An employee’s remedy for unfair dismissal, whether actual or constructive, is the remedy provided by statute. If before his dismissal, whether actual or constructive, an employee has acquired a cause of action at law, for breach of contract or otherwise, that cause of action remains unimpaired by his subsequent unfair dismissal and the statutory rights flowing therefrom. By definition in law such a cause of action exists independently of the dismissal.”

In this case, the plaintiff’s employment with the defendant came to an end on 30th November, 2008 and his last day at work was the 28th November, 2008. In essence, what he is trying to achieve by these proceedings is to get his job back. He got the required notice under his contract of employment and his contract of employment was lawfully terminated. If, as he contends, his dismissal was unfair, then the remedy available to him is the remedy provided by statute. As a matter of fact, that is the only remedy he could pursue because, in my view, he had not acquired a cause of action for breach of contract or otherwise prior to his dismissal. In the circumstances, there is no remedy which he can pursue in this Court.

That conclusion is supported by the decisions of the Supreme Court in the Maha Lingham case and in the Sheehy case.

In my view, it is also correct in principle. There may be situations in which, on the reasoning of Lord Nicholls in the Eastwood case, a dismissed employee is entitled to maintain an action at common law, for example, where he has suffered financial loss from psychiatric or other illness as a result of pre-dismissal unfair treatment which would give rise to an action for damages. That scenario was signposted by Lord Steyn in the Johnson case and recognised in the Eastwood case. The plaintiff’s situation here is entirely different. In effect, he is inviting the Court to develop its common law jurisdiction by reference to the statutory concepts of redundancy and unfair dismissal. Specifically, the Court was invited by counsel for the plaintiff to have regard to the statutory definition of “redundancy” in s. 7 of the Redundancy Payments Act 1967, as amended. The Oireachtas in enacting the Unfair Dismissal Acts 1977 to 2008 and in introducing the concept of unfair dismissal provided for specific remedies for unfair dismissal and specific procedures for obtaining such remedies in specific forums, before a Rights Commissioner or the Employment Appeals Tribunal. For the Courts to expand its common law jurisdiction in parallel to the statutory code in relation to unfair dismissal and redundancy would, to adopt Lord Nicholls’s terminology, end up supplanting part of the code.

The defendant, without prejudice to its contention that the plaintiff could not pursue a remedy in this Court, argued that, in any event, the redundancy was a genuine redundancy. Further, it was contended that there was no question of selection of the plaintiff for redundancy from a pool of employees. He was the only one who held the position of Credit Manager and it was that position which was made redundant. Various authorities were relied on by counsel for the defendant in support of those contentions. I do not propose to express any view on those arguments, which, in my view, are for a different forum.

There will be an order dismissing the plaintiff’s application.”

Wallace -v- Irish Aviation Authority

[2012] IEHC 178

Hogan J.

“22. The Supreme Court has taken the same view with regard to the grant of mandatory interlocutory injunctions which would have the effect of specifically enforcing contracts of employment. As Fennelly J. observed in Maha Lingham v. Health Service Executive [2006] E.L.R. 137, 140:-

“…it is well established that the ordinary test of a fair case to be tried is not sufficient to meet the first leg of the test for the grant of an interlocutory injunctions where the injunction sought is in effect mandatory. In such a case it is necessary for the applicant to show at least that he has a strong case that he is likely to succeed at the hearing of the action. So it is not sufficient for him to simply show a prima facie case, and, in particular, the courts have been slow to grant interlocutory injunctions to enforce contracts of employment.”

23. This Court has also recognised that there may be other limited categories of special types of cases where the Campus Oil principles must suffer some modest qualification. As Clarke J. recognised in Diamond, so-called “springboard” injunctions (i.e., cases where an employer contends that an employee seeks to appropriate confidential information acquired during the course of employment for personal gain) are one such special category, since if injunctive relief is to be of any value to a wronged plaintiff, it is of the essence in such cases that the potentially misappropriated information is delivered up immediately and not simply at the end of a full hearing some months (or even years) later.

24. I had taken a similar view in Albion Properties Ltd. v. Moonblast Ltd. [2011] IEHC 107. This was a case where a landlord sought an interlocutory injunction requiring a defaulting tenant immediately to yield up possession. Although the tenant argued that it would be inappropriate to grant such relief at interlocutory stage, I rejected that argument, saying:-

“It is true that the courts are very reluctant to grant a mandatory interlocutory injunction, save in the clearest of cases: see, e.g., the judgment of Keane C.J. in Attorney General v. Lee [2000] IESC 80, [2000] 4 IR 68. Because the effect of such relief is generally to disturb the status quo ante, the granting of such an order is properly regarded as exceptional. It would normally not be granted unless it was more or less inevitable that the plaintiff would succeed at the trial of the action or, at least, where a strong prima facie case had been made out: see, e.g., ICC Bank plc v. Verling [1995] 1 I.L.R.M. 123 at 130, per Lynch J.. In addition, the balance of convenience would have to favour the grant of such exceptional relief. In this respect, the test for relief is higher and more exacting than that which obtains under the conventional Campus Oil criteria (Campus Oil Ltd. v. Minister for Industry and Commerce (No.2) [1983] I.R. 88). In my view, however, this is such an exceptional case for reasons I will shortly set out….

This Court enjoys a general jurisdiction to grant an injunction whenever it is just and convenient to do so: see s. 27(7) of the Supreme Court of Judicature (Ireland) Act 1877, as applied to this Court by s. 48 of the Courts (Supplemental Provisions) Act 1961. In this regard, I entirely agree with the submission of counsel for Albion Properties, Mr. Gibbons, that it would be pointless to require his client to issue separate plenary proceedings before an interlocutory injunction of this kind could either be sought or granted. A requirement of this kind would simply represent legal formalism at its worst. Any supposed jurisdictional bar which prevented the court from granting injunctive relief in an appropriate case to require a defaulting tenant to yield up possession of a commercial tenancy would be at odds with duty imposed on the courts by Article 40.3.2 of the Constitution to ensure that the property rights of the plaintiff landlord are appropriately vindicated in the case of injustice done. The courts are under a clear constitutional duty to ensure that the remedies available to protect and vindicate these rights are real and effective: see, e.g., the comments of Kingsmill Moore J. in The State (Vozza) v. O’Floinn [1957] I.R. 227 at 250; those of Murray C.J. in Meadows v. Minister for Justice, Equality and Law Reform [2012] IESC 3 and the authorities set out in my own judgment in S v. Minister for Justice, Equality and Law Reform [2011] IEHC 31.”

25. If one applies these principles to the present case, it seems to me that, given that the interlocutory application will finally determine the substantive issue, it is permissible – not least in the light of the comments of Keane C.J. in Lee – to take account of that fact in determining the approach to be taken to the question of interlocutory relief. Moreover, if the courts were de facto debarred from giving interlocutory relief in employment cases merely because it involved the specific enforcement by means of mandatory interlocutory injunction of clauses contained in a contract of employment designed for the protection of employees, this would amount to a denial of effective access to this Court (as guaranteed by Article 34.3.1 and Article 40.3.1) and a breach of the Court’s duty (as imposed by Article 40.3.2) to fashion a real (and not simply theoretical) remedy which would vindicate the infringement of a property right (namely, the breach of a contract of employment) which would otherwise have taken place for all the reason set out by me in Albion Properties.

26. It is true that the courts will not readily grant relief where the effect of this will be specifically to enforce a contract of employment. This is the case a fortiori where the relief sought is merely interlocutory in nature. But, as Fennelly J. tacitly recognised in Maha Lingham, the grant of such relief cannot be excluded in principle on some ex ante basis.

27. In any event, the standard objection to the grant of such relief in employment cases – namely, that it would involve the court in on-going supervision of the employment relationship – does not apply here. The only question in the present case is whether the plaintiff should be allowed to work pending the appeal, so the question of recurring supervision of employment performance and practice is not in question

K -v- The Mental Health Commission

[2012] IEHC 217

Mary Laffoy J.

“3. The core issue

3.1 Since the decision of the Supreme Court in Maha Lingham v. Health Service Executive [2006] 17 ELR 137, it has been accepted that, where a plaintiff employee is seeking a mandatory interlocutory injunction against his employer, it is necessary for the plaintiff “to show at least that he has a strong case that he is likely to succeed at the hearing of the action” (per Fennelly J.). Moreover, where the plaintiff employee “seeks to prevent a dismissal or a process leading to dismissal, as a matter of common law and in whatever terms the claim is couched, the employee concerned is seeking what is, in substance, a mandatory injunction” (per Clarke J. in Bergin v. Galway Clinic Doughiska Ltd. [2008] 2 IR 205 at p. 214), so that it is necessary for the plaintiff employee to establish a strong case in order to obtain interlocutory relief. As I understand the position adopted by counsel for the plaintiffs, it was accepted that the plaintiffs must demonstrate that they have a strong case that they are likely to succeed at the hearing of the action and their contention was that they have done so.

3.2 Broadly speaking, there are two elements in the plaintiffs’ claim. The first is that, irrespective of the terminology used in the various contracts and documentation which I have outlined earlier, applying the test laid down in the Henry Denny case, from the outset they were employees of the defendant and not independent contractors acting under contracts for services. The second is that they are still employees of the defendant, because either their contracts have not been properly terminated at common law or, alternatively, they are entitled to the protection of the Act of 2003 and are now employed under contracts of indefinite duration.

3.3 As regards the second element of their case, namely, that the plaintiffs as employees are entitled to protection of the Act of 2003, a similar case was made by the plaintiff/appellant in the Maha Lingham case, who had been employed by way of successive temporary appointments as a temporary consultant surgeon in Cork University Hospital from 1994 until 2005, when he was given three months notice that his employment would terminate on 31st May, 2005. It was rejected by the Supreme Court. Fennelly J., in delivering judgment ex tempore in the Supreme Court, stated:

“In addition, the plaintiff/appellant relies on the implementation of the Act of 2003 . . .. However, having looked at that Act the court cannot see that it significantly alters the matter. It is unnecessary to go into it except that the general policy of the Directive and the Act seems to be to protect employees who are employed on short term fixed-term contracts and who have been employed on such basis for a certain minimum number of years, either three or four years, and accepting for the sake of the purpose of the present case, that the plaintiff is employed under such a contract of employment, the question would be whether he could make out a case to justify the grant of an interlocutory injunction. There are two major obstacles in the place of the plaintiff/appellant in this context; first that is that the implementing Act, the 2003 Act, contains, like the Unfair Dismissals Act, its own statutory scheme of enforcement and it does not appear to be envisaged by the Act that it was intended to confer independent rights at common law or to modify in general the terms of contracts of employment to be enforced by the common law courts; and the second is that in any event the general provisions and policy of the Act and of the Directive seems to be to put persons who were in such short term contracts in the same position as if they were persons who were on fixed long-term contracts but in neither event does it appear to interfere with the ordinary right and obligation of the employer to terminate the contract on the giving of reasonable notice and for that reason the matter comes back within the general ambit, therefore, of the sort of remedy that would be available to the plaintiff/appellant for the termination of the contract.”

As regards the last observation, Fennelly J. had earlier set out the common law position in relation to a contract of employment – that a contract of employment may be terminated by an employer on giving reasonable notice of termination. The Supreme Court in the Maha Lingham case held that the plaintiff/appellant had not made out a case for the grant of an interlocutory injunction because he had not met the first leg of the test showing that he had a strong case that he was likely to succeed at the hearing of the action. This Court is bound by that decision.

3.4 A similar approach was adopted more recently in the High Court by Hogan J. in McGrath v. Athlone Institute of Technology [2011] IEHC 254. There the plaintiff, who had been employed by the defendant pursuant to a series of fixed-term contracts, was contending that, by operation of s. 9 of the Act of2003, he was entitled to the benefit of a contract of indefinite duration. The defendant in that case had raised an objection that the Court had no jurisdiction whatever in relation to the Act of 2003. In his judgment (at para. 14), Hogan J. stated that the High Court does not enjoy first instance jurisdiction to grant declaratory relief regarding an applicant’s entitlements under the Act of 2003. In other words, this Court does not have jurisdiction to deal at first instance with substantive claims founded on the application of the Act of 2003, which is the view I reached when dealing with the substantive action in O’Domhnaill v. Health Service Executive [2011] IEHC 421.

3.5 However, in the McGrath case, Hogan J. took a different view in relation to the jurisdiction of the Court where the applicant applies to the Court for an order in aid of what he hopes will be a favourable Labour Court decision, because the Labour Court enjoys no jurisdiction to grant interim or interlocutory relief. Dealing with the jurisdiction of this Court in such a situation, Hogan J. stated (at para. 18):

“If, nevertheless, the plaintiff were to be left with the decision of an administrative agency whose efficacy was otherwise wholly undermined if no interim relief could be given by this Court, then in such exceptional cases, this Court must be deemed to enjoy such a jurisdiction, not least by reason of the obligation placed on the judicial organ of the State by the terms of Article 40.3.1 of the Constitution to ensure that legal rights can be appropriately vindicated ….

3.6 In considering whether the McGrath case was an appropriate case in which to grant interlocutory relief, Hogan J. identified the critical question as whether the defendant could terminate Mr. McGrath’s employment, even if the Labour Court were to hold that Mr. McGrath had a contract of indefinite duration. He answered that question as follows (at para. 20):

“The starting point, of course, is that it is clear that at common law, subject to appropriate contractual terms to the contrary, an employer can dismiss for any reason or no reason on giving reasonable notice, even in the case of a permanent employee. Any lingering doubts on this point were dispelled by the Supreme Court’s decisions in both Maha Lingham … and Sheehy v. Ryan … [2008] 4 IR 258. Some may think that this situation is unsatisfactory, but if so, change in this area is a matter for the Oireachtas. Indeed, it may be observed that the Oireachtas did legislate in this general area via the Unfair Dismissals Acts 1977-2005, but in so doing it was careful to leave unchanged the common law in relation to the termination of employment contracts. It was, moreover, for this very reason that in Nolan v. Emo Oil Services Ltd. [2009] IEHC 15 Laffoy J. expressed her unwillingness to extend the common law ‘in parallel to the statutory code in relation to unfair dismissal and redundancy [as this would] end up supplanting part of the code’.”

Because of the decision of the Supreme Court in Sheehy v Ryan, which was given in the context of an appeal in relation to the hearing of the substantive action, not an interlocutory application, Hogan J. concluded that the possibility of an injunction insofar as it concerned the contractual claim of Mr. McGrath was ruled out. Moreover, even if the decision of the Labour Court were favourable to Mr. McGrath, Hogan J. concluded that that would not significantly ameliorate his position so far as seeking an injunction was concerned, because even a declaration of permanent employee status would not entitle him to an injunction. Accordingly, the application for an interlocutory injunction was refused.

3.7 In this case, assuming for present purposes that the plaintiffs succeed in establishing that they were from the outset employees of the defendant and not independent contractors, and, if the Rights Commissioner holds that they were entitled to and held under contracts of indefinite duration from, say, 1st November, 2010, on the authority of the decision of the Supreme Court in the Maha Lingham case, the plaintiffs have not made out a strong case that their contracts did not terminate on 30th April, 2012. I have reached that conclusion notwithstanding that the plaintiffs’ position is, superficially at least, distinguishable on the facts from both the Maha Lingham case and the McGrath case. In each of those cases notices of termination had been given by the employer and no issue arose as to the adequacy of the notice, whereas in this case, on the assumption that the contracts, which the defendant contends were contracts for services, were due to terminate by expiry of the term, the defendant gave the plaintiffs approximately ten weeks notice in the letter of 17th February, 2012 that it was enforcing that termination. If the plaintiffs do succeed before the Rights Commissioner on both elements of their claims, so that it is established that they have been employees holding under contracts of indefinite duration, the remedies to which they will be entitled will be one or more of the remedies provided for ins. 14 of the Act of 2003, which include the requirement that the employer reinstate or re-engage the employee (including on a contract of indefinite duration). This Court will have no role in relation to the awarding, or enforcement, of such remedies.

3.8 It is neither necessary nor appropriate for the Court to express a view on the strength of the plaintiffs’ case on the first element of their claim, namely, that they are employees, not independent contractors, because to do so would be expressing a view on the likely outcome of the claim before the Rights Commissioner, who has exclusive seisin of the matter by virtue of the Act of 2003.”

Moore v. XNet Information Systems Ltd.

[2002] IEHC 6

O’Sullivan J.

“1. The plaintiff seeks interlocutory injunctions restraining the defendants . Furthermore, Irish jurisprudence now establishes, he submits, that in the event of an employee being left without a significant portion of his income then a court will direct continued payment until the trial of the action by the employer if the plaintiff (as in the present case) relies solely on this income.

23. In addition there is a serious question, he submits as to whether the real reason why the plaintiff was dismissed was redundancy or whether it was in fact gross incompetence. If it was for the latter then the cases show that he was entitled to fair procedures which were denied and therefore, again, he has made out a fair question for trial at the hearing of the action. Apart from this there was in fact complete disregard for the provisions of the Redundancy Payments Acts and Regulations which of themselves would entitle him to a declaration that his dismissal was ineffective. Furthermore the plaintiff, as office holder with the first defendant, was entitled to fair procedures which were denied.

24. Counsel for the defendant submits as follows:

This case is not about any threat to the plaintiff’s position as director (or, I assume, as company secretary). His position as such is dealt with under company law. He is prepared if necessary to give an undertaking that this position will not be altered pending the trial;

Nor is it about the plaintiff’s position as shareholder: in fact the perilous financial position of the company would be improved if it is spared the 10% outlayed on the plaintiff and the disruption caused by any order authorising the plaintiff to work: it is in everyone’s interest to assist the financial recovery of the first defendant;

This is a simple case of an employee’s contract being determined. There maybe an issue about length of notice which is remediable by damages. The contract was terminable and has been for reasons of redundancy. If the plaintiff is entitled to anything in this context it is to money, not reinstatement.

No allegation of wrongdoing has been made or is being made by the defendants. Accordingly the principles of natural justice, a fair hearing, and so on, do not apply.

Nor is the plaintiff’s position with the first defendant an office or analogous to an office such as would entitle him to fair procedures on dismissal.

He further submitted that cases such Fennelly v. Assicurazioni Generali Spa and Another (1985) 3 ILT 73, per Costello J. where the employer was ordered to continue paying the Plaintiff’s salary and bonus under his contract until the trial of the action were based on an exception to the general rule that the courts in common law will not direct specific performance of a contract of employment. The exception in that case was that the plaintiff had a twelve year contract and cases following Fennelly and indeed Hill v. C.A. Parsons Limited [1972]: Ch 305 which preceded it, can all be analysed to establish this principle. In Hill the exception was that the law in the U.K. was about to change before the trial in a way that supported the plaintiff’s claim for the relief granted.

25. Irish cases where salary or reinstatement were granted to a plaintiff at the interlocutory stage either involved plaintiffs who were office holders denied fair procedures (the present plaintiff is not an office holder) or plaintiffs against whom allegations of wrongdoing were made (this is not so in the present case) but not cases of pure employee contracts because in such circumstances the plaintiff’s remedy is damages alone. Accordingly damages is an adequate remedy and the balance of convenience runs against granting an injunction.

26. He submitted that the argument apparently accepted by Laffoy J. In Harte v. Kelly and Another [1997] E.L.R.125 to the effect that the common thread in Fennelly, Shortt and Boland was that the plaintiff was totally dependant on his income, was not so: the common thread was that these were exceptions to the general rule identified. In Harte, Laffoy J. had said at p. 130:

“In my view, the entitlement to the type of order granted in the Fennelly case is not limited to a situation in which the plaintiff can establish that he will face penury if such an order is not made. The rationale of the decision is that it is unjust to leave a person who alleges that his dismissal has been wrongful without his salary pending the trial of the action and merely with his prospect of an award of damages at the trial of the action”

In Harte the plaintiff was a director employee and minority shareholder of the employer company. There was, however, an allegation of wrongdoing that the plaintiff was involved in covert discussions with a customer of the company. It was conceded that there were fair issues to be tried. In Boland v. Phoenix Shannon Plc (1997 ELR 113; per Barron J.) again there were allegations of wrongdoing. Accordingly this was a case were the plaintiff was entitled to fair procedures and there was an issue in relation to this. The same applied inter alia, in Phelan v. Bic (Ireland Limited) (1997 ELR 208 per Costello P).

27. The issue as to whether the court will direct payment of an employee’s salary pending the trial simply on the basis of the plaintiff’s sole reliance on salary as distinct from the existence of an exceptional circumstance which takes the case out of the “normal” cases of their employee contract cases was touched on by Macken J. in Lonergan v. Salter – Townshend and Others unreported, High Court, Macken J. , 9th February, 1999 but, counsel for the defendant submits, not really dealt with. Rather, he submits, the true position was as acknowledged by Barrington J. delivering the Supreme Court Judgment in Parsons v. Iarnrod Eireann in the unreported decision of 24th April, 1997 when he said at p. 9:

“The traditional relief at common law for (unfair) dismissal was a claim for damages. The plaintiff may also have been entitled to declarations in certain circumstances such for instance that there was an implied term in his contract entitling him to fair procedures before he was dismissed. But such declarations were in aid of his common law remedy and had no independent existence apart from it. If the plaintiff loses his right to sue for damages at common law the heart has gone out of his claim and there is no other free standing relief which he can claim at law or in equity”.

28. To similar effect, submits counsel for the defendant, the decision of Murphy J. in the High Court in Philpott v. O’Gilvy and Another [2000] 3 IR 206, where it was held that in the absence of a claim for damages for wrongful dismissal the ruling of the Supreme Court in Parsons applied to the effect that the common law remedy for unfair dismissal was a claim in damages. There was no serious issue, accordingly, that the termination was in breach of the rules of natural justice and therefore invalid. This was unlike Hickey v. Eastern Health Board [1991] 1 IR 208 where it was held that the rules of natural justice apply if a managing director is dismissed for misconduct .

The Glover case

29. I was referred to Glover v. B.L.N. Limited [1993] IR 388 following without this case being opened. The reference was in the context of counsel for the plaintiff’s submission that the plaintiff in all the circumstances was an office holder. Counsel for the defendant submitted that he was not, and that office holders were individuals who held positions designated by statute or other instrument governing the basis of their tenure.

30. He indicated from recollection that the characteristics of office holders were set out in Glover.

31. In fact at page 414 Kenny J. said:

“But does the principle [the principle that before dismissal a person must have notice of the matters alleged against him and been given an opportunity of making his case] apply when a person holds the office of director and has a contract under which he is entitled to retain it for a fixed period? The defendants say that Mr. Glover was an employee of the companies and nothing more and that he cannot rely on the principle. The characteristic features of an office are that it is created by an Act of the National Parliament, charter, statutory regulation, articles of association of a company or of a body corporate formed under the authority of a statute, deed of trust, grant or by prescription; and that the holder of it may be removed if the instrument creating the office authorises this … the holder of an office does not hold under a contract: he holds it under the terms of the instrument which created it and so, if he has not a contract, he cannot recover damages if he is removed. So justice requires that he should not be removed until the body with the power to do this knows his answer to the case against him so that it can reach a correct decision. But as a holder of an office may have a contract, the presence or absence of it cannot be the feature which distinguishes an office from employment so far as the principle of natural justice is concerned. It follows, I think, 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 the holder of an office and the question in every case of this type is :- ‘should the person who has been dismissed be put into the category of the holder of an office or should he be regarded as an employee only?’”

32. Kenny J. went on to express the view that Mr. Glover’s position as director and employee of the operating company and of two other companies resembled that of a holder of an office because his directorship of and his contract with these companies could be terminated by the directors of another company. His pension rights were enforceable against the employer company and had been created before his contract, whereas the directors of the holding company had power to deprive Mr. Glover of his rights against the operating company. Furthermore the decision (that his alleged misconduct had damaged the holding company or the employer company) had to be unanimous. In regard to these provisions Kenny J. said at p. 146:

“All these considerations lead me to the conclusion that Mr. Glover’s position should be regarded as that of the holder of an office and not that of an employee only, and that the principle of natural justice applies to a termination under [the contract].”

33. On appeal Walsh J., upholding this conclusion of Kenny J., rested his decision on this point on his interpretation of the relevant clause in the contract of employment which he said implied a term that the inquiry and determination (leading to dismissal) should be fairly conducted .

34. Furthermore Walsh J. expressly reserved his opinion on the correctness of a statement of Lord Reid in Ridge v. Baldwin [1964] AC 40 (see 427)

“… If it is intended to convey that a court cannot make a declaration which would have the effect of reinstating a person wrongfully dismissed.”

Conclusions

Fair Question?

35. In my opinion the plaintiff has raised the following three fair questions for determination at the trial, namely

Was the plaintiff’s position in the first named defendant such that he was entitled to be treated as an office holder and afforded fair procedures which were denied him?

Was the reason for his dismissal, namely redundancy, the true reason? and

If it was, was his dismissal effective given the non-compliance with the relevant statutory provisions?”

Sheehy -v- Ryan

[2008] IESC 14

Supreme Court Geoghegan J.

The trial judge then gave a useful review of the Irish and English case law. In Walsh v. Dublin Health Board 98 I.L.T.R. 82 Budd J. interpreted a so-called permanent job as meaning a job indefinite in duration but subject to dismissal on reasonable notice. The same view was taken by McCracken J. in Dooley v.Great Southern Hotel [2001] E.L.R. 340 which is also referred to in the judgment.

The only case that could arguably support the appellant’s contention is the judgment of Costello J. in Grehan v. North Eastern Health Board [1989] I.R. 422. But that was a very exceptional case which specifically provided that the employment of a medical practitioner would terminate on reaching the age of seventy years and on the basis of the particular contract of employment pertaining in that case it was held that premature termination was not permissible. Carroll J. quite rightly rejected that case as governing this case.

I now turn to the Northern Ireland case which went to the House of Lords and which is finally referred to in the judgment of Carroll J. This is McClelland v.Northern Ireland General Health Services Board cited above. As I have already mentioned this was the case particularly relied on by Mr. Hogan and I intend to treat of it in some more detail. In the House of Lords report there is a short head note which is worth quoting.

“In 1948 the Northern Ireland General Health Services Board advertised, inviting applications for posts as senior clerks, the appointments being expressed to be ‘permanent and pensionable’. The appellant, having applied, was appointed and was shown the terms and conditions of service. These contained a clause providing for the dismissal of officers for ‘gross misconduct’ or if they proved ‘inefficient and unfit to merit continued employment’.

There was also a provision for dismissal on failure to take or to honour the oath of allegiance and another related to termination of employment by reason of permanent ill-health or infirmity. There was no provision for dismissal in other circumstances. It was, however, provided that “permanent officers”, who wished to terminate their employment with the Board, must give one month’s notice. In 1953, the Board purported to terminate the appellant’s employment on six month’s notice on the ground of redundancy of staff and without any suggestion of misconduct or inefficiency on her part.”

What happened in the three courts is interesting. In the High Court of Northern Ireland, Curran J. dismissed the action on the grounds that the appellant was a Civil Servant, and as such, held office during the pleasure of the Crown. The case then went to the Court of Appeal of Northern Ireland and before that court it was conceded by both parties that the finding of Curran J. was clearly incorrect as the plaintiff was not in fact a civil servant. The Court of Appeal, however, divided. Lord MacDermott LCJ and Black LJ held that in the context of the contract “permanent” employment was to be contrasted with employment which was transient or linked to some particular occasion or performance of some special task, and did not connote that the employment would endure for life and that six month’s notice was proper notice and that accordingly, the employment was validly terminated. Porter L.J. dissented and took the opposite view. On further appeal to the House of Lords, however, the House reversed the Court of Appeal, Lord Oaksey, Lord Goddard and Lord Evershed holding that on the true construction of the terms and conditions of service, the express powers of the Board to dismiss an officer were comprehensive and exhaustive and no further power could be employed, accordingly, the service had not been validly terminated. The two dissenting Law Lords however, Lord Tucker and Lord Keith of Avonholm agreed with the majority view of the Court of Appeal of Northern Ireland.

Having carefully read and considered the opinions of the three Law Lords in the majority and without considering whether I prefer the dissenting opinions and/or the judgment of Lord MacDermott, I have come to the conclusion that that decision does not give any comfort to the appellant in this case. Lord Oaksey made it clear that the question at issue depended entirely upon the construction of the contract. He said that the word “permanent” must be construed in the light of its context. In favouring the allowing of the appeal he based his judgment on the particular terms of the contract which allowed for termination. He did not, therefore, consider that the rule which would relate to a general hiring for an indefinite time and which entitled an employer to terminate on giving reasonable notice applied in that case. Lord Goddard made it clear that in his view the question at issue depended on the true construction of the particular clause 12 of the conditions of employment. That set out certain circumstances in which dismissal, reduction in rank or termination of employment was permitted and he concluded it was comprehensive. However, he also said that an advertisement offering permanent employment did not, in his opinion, mean that employment for life was being offered. In fact he said the following:

“It is an offer, I think, of general as distinct from merely temporary employment, that is, that the person employed would be on the general staff with an expectation that apart from misconduct or inability to perform the duties of his office the employment would continue for an indefinite period. But apart from a special condition, in my opinion, a general employment is always liable to be determined by reasonable notice. Nor do I think that because a person is offered pensionable employment the employer thereby necessarily engages to retain the employee in his service long enough to enable him to earn a pension.”

However, he went on to hold that on the particular terms which applied in that case, premature termination was not permissible.

Lord Evershed was also of the view that the word “permanent” would not of itself be sufficient to import the notion of a life appointment. Nevertheless, he took the view that on the particular conditions which applied in that case viewed as a whole and intended to be truly comprehensive there was not a right to terminate other than the expressed rights specifically provided for in the clauses.

In this particular case, there is no written contract of that kind which has to be construed. What constitutes the contract is the mixture of express oral terms and implied terms. I am satisfied that the general rule applied that the agreement could be terminated on reasonable notice.

The only other matter which I think fit to comment on is the provisions relating to dismissal in the Vocational Education Act, 1930 as these were partly relied on by Mr. Hogan. The relevant provisions of section 23 are cited in the judgment of the learned High Court judge read as follows:

“(1) Subject to the provisions of this section, every vocational education committee shall appoint a chief executive officer and such other officers and servants as it shall from time to time think necessary for the due performance of its powers and duties under this Act.

(4) A vocational education committee may dismiss any servant of such committee and, with the approval of the Minister, remove any officer of such committee.”

It is not necessary to go into these provisions in any detail. Nor is it necessary to consider whether the appellant was an officer or a servant when employed by the Vocational Education Committee. The mere fact that she had the grade of clerical officer does not mean she was an officer. I would be inclined to the view that she was probably a servant but in either event her employment is capable of being terminated and as put to her in cross-examination, I do not know of any provision which would prevent termination by the VEC on grounds of redundancy. However, reasons do not have to be given if general employments are terminated on reasonable notice.

Mr. Hogan placed some reliance also on the terms of section 27 of the 1930 Act. That, however, relates to removal of an officer or servant of the VEC by the Minister and not by the employer. I do not think that it has any relevance to this case.

I am satisfied that the learned High Court judge was correct in her view that this was an employment agreement terminable on reasonable notice.

I would, accordingly, dismiss the appeal.”

B -v- Independent Colleges Ltd (t/a Independent Colleges)

[2010] IEHC 412

Laffoy J.

5.2 The nub of the plaintiff’s claim is that his contract of employment with the defendant has not been properly terminated and that the actions and conduct of the defendant in giving effect to the purported termination communicated to him in the letter of 11th October, 2010 are unlawful and should be restrained pending the trial of the action. It was submitted on behalf of the plaintiff that the purported termination was ineffective on three bases. First, and as I understand it, this was the plaintiff’s principal contention, it was submitted that the decision to terminate the plaintiff’s employment had not been made by his employer, the defendant, in the manner stipulated in its articles of association. The plaintiff’s position is that any decision to terminate the contract of the Chief Operating Officer must be made by the board of directors. There was no such decision in this case and the communication of the purported termination by Mr. C was instigated by a shareholder of the defendant, namely, Holdings. Secondly, the decision communicated in that letter, as regards length of notice, did not comply with the requirements of Clause 16 of the plaintiff’s contract of employment and, on that ground alone, was not effective to terminate the plaintiff’s employment. Thirdly, the plaintiff should have been, but was not, afforded an opportunity to challenge the decision to make him redundant and, on that ground alone, the purported termination infringed the plaintiff’s entitlement to fair procedures and was ineffective.

5.3 The defendant’s answer to the principal argument made on behalf of the plaintiff was that a board decision was not required to terminate the plaintiff’s employment. The decision to terminate was made by Mr. Doyle, the Chief Executive Officer of the defendant, and he had authority to make that decision. The only evidence in support of that contention is to be found in paragraph 17 of Mr. Doyle’s affidavit in which he averred:

“I say that I am the Chief Executive Officer of the [defendant] and I have been given responsibility to carry out all management functions by the INM Board from the outset. This includes decisions with regard to hiring and firing. The plaintiff himself is a member of the [defendant’s] Board and it is ridiculous to suggest that the Board would meet to decide if one of its members would be made redundant from his employment.”

It is difficult to determine from the documentation before the Court what corporate entity Mr. Doyle was referring to when he referred to “the INM Board”. Earlier, in paragraph 5 of his affidavit, he had referred to “Independent News & Media” which was thereafter to be referred to as “INM”, but, on its face, that is not a legal entity.

5.4 The plaintiff had supported its argument that a decision of the board was essential by reliance on the commentary in Courtney on the Law of Private Companies (2nd Ed.) at para. 8.004 et seq. Counsel for the plaintiff relied in particular on a passage from the speech of Lord Wilberforce in delivering a decision of the Judicial Committee of the Privy Council in Howard Smith Ltd. v. Ampol Ltd. [1974] AC 821, in which he stated (at p. 837):

“The constitution of a limited company normally provides for directors, with powers of management, and shareholders with defined voting powers having power to appoint the directors, and to take, in general meeting, by majority vote, decisions on matters not reserved for management. Just as it is established that directors, within their management powers, may take decisions against the wishes of the majority of shareholders, and indeed that the majority of shareholders cannot control them in the exercise of these powers while they remain in office, so it must be unconstitutional for directors to use their fiduciary powers over the shares in the company purely for the purpose of destroying an existing majority, or creating a new majority which did not previously exist.”

…….

6. The substantive law on the core issue and its relevance to the facts.

6.1 As frequently happens when dealing with applications for interlocutory injunction, I consider it appropriate to enter a caveat at this stage as to the function of the Court on this type of application and to quote the following passage from the speech of Lord Diplock in American Cyanamid v. Ethicon Ltd. [1975] AC 396, which was quoted by the Supreme Court with approval in Campus Oil v. Minister for Industry (No. 2) [1983] I.R. 88:

“It is no part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial.”

6.2 I consider that it is important to emphasise that the Court is addressing the position of the plaintiff as an employee of the defendant, not as a shareholder or a director, on this application. There is no doubt that the defendant, if it went about it properly, could terminate the plaintiff’s employment by giving him sixteen weeks notice in writing and that would be the end of the matter, following the decision of the Supreme Court in Sheehy v. Ryan [2008] 4 IR 258. The question which arises, insofar as it can be addressed on the material before the Court, but without giving any definitive answer to it, is whether the plaintiff is correct in contending that his employment has not been effectively terminated by notice by the defendant in accordance with his contract.

6.3 On the issue as to who has authority within the defendant to decide to terminate the employment of the Chief Operating Officer, regard must be had to the articles of association of the defendant, as amended to reflect the shareholders’ agreement. Having regard to Regulation 21, when read in conjunction with Regulation 18, of the amended articles, it would appear that the function is reposed in the directors of the company subject, however, to the requirement that they must not exercise it without the prior written consent of the “Shareholder Majority”, which for present purposes I am assuming is Holdings. There is no evidence whatsoever that the board of directors of the defendant ever delegated that function to Mr. Doyle. Indeed, he has not averred that it was delegated to him by the directors of the defendant. Rather, the averment in his affidavit, which I have quoted earlier, suggests that he considered he was entitled to act on the basis of some arrangement put in place by another corporate entity at the outset, which I take to mean September 2007.

6.4 On the evidence presented on behalf of the defendant, I am not satisfied that Mr. Doyle made the decision to terminate the plaintiff’s employment and, even if he did, I am not satisfied that he had authority to do so. …….

6.6 If the sender of the letter of 11th October, 2010 did have authority to terminate the plaintiff’s employment with the defendant by redundancy, and properly invoked the relevant statutory provisions to make the plaintiff redundant, in my view, the contention of the defendant that the plaintiff could not challenge the redundancy in these proceedings is correct, having regard to the decision of this Court in Nolan v. Emo Oil Services [2009] 20 ELR 122. In reaching that conclusion, it is necessary to comment on the submission made on behalf of the plaintiff that the facts of the plaintiff’s case are more in line with the facts in Shortt v. Data Packaging [1994] ELR 251 than the facts in the Nolan case so that this case is distinguishable from the Nolan case, and to clarify the effect of the Nolan decision.

6.7 In my judgment in the Nolan case I did observe that there were two significant features which distinguished the Shortt case from the Nolan case, one being that Mr. Shortt’s employment had not been terminated in accordance with his contract of employment. The other was that Mr. Shortt was an officeholder, as a director of the defendant company, as well as a contract employee. That second factor has given rise to understandable academic comment that it is not clear why the fact that someone is an officeholder should be relevant in the particular context (cf., Cox, Corbett and Ryan on Employment Law in Ireland [Clarus Press, 2009] at footnote 18 on page 839). In the context of the effect of termination on notice or termination on redundancy of an employee’s contract of employment with a corporate employer, it is not of significance that the employee was also a director or a shareholder of the corporate employer. The only significance of the duality of role is that it that it may assist the employee in discharging the evidential onus on him, if he contends that the corporate employee did not act properly in accordance with its constitutional documents or otherwise.

…..

7. Issues on the application for an interlocutory injunction

7.1 Counsel for the plaintiff accepted that, however formulated, if the relief sought by the plaintiff is a mandatory order requiring the employer to keep him in employment, the first issue on this application is whether the plaintiff has established that he has a strong case that he is likely to succeed at the hearing, following the decision of the Supreme Court in Maha Lingam v. Health Service Executive [2006] ELR 137 and the decision of this Court (Clarke J.) in Bergin v. Galway Clinic Doughiska Ltd. [2008] 2 IR 205. I am satisfied that the plaintiff has established a strong case that he is likely to succeed on his argument that the purported decision communicated in the letter of 11th October, 2010 was ineffective to terminate his employment. However, I propose addressing the various forms of relief sought by the plaintiffs separately later.

7.2 The second and third issues are:

(a) the adequacy of damages, both as a remedy for the plaintiff if the injunction is refused and he is ultimately successful in his action, and as a remedy for the defendant if it is successful in the action and has to have recourse as to the plaintiff’s undertaking as to damages; and

(b) whether the balance of convenience lies in favour of granting or refusing the injunction.

7.3 The approach of counsel for the defendant was that, even if the plaintiff’s employment has not been terminated, that situation can be readily remedied by the defendant properly serving sixteen weeks notice of termination on the plaintiff in accordance with Clause 16.1 of his contract of employment and on that basis the plaintiff would be adequately recompensed in damages. In relation to what the Court’s attitude should be to the forms of relief claimed by the plaintiff and on the issue of the adequacy of damages and where the balance of convenience lies, counsel for the defendant relied on a passage from the judgment of Clarke J. in the Bergin case.

7.4 That case is instructive, in my view, as to the approach the Court should adopt in this case. There the plaintiff, who had been just over a year in his post as Chief Executive of the defendant, was seeking to restrain by injunction anticipated summary termination of his contract on the ground that he was guilty of serious misconduct, broadly speaking on the basis that the defendant was acting in breach of his right to fair procedures. He had sought orders compelling the defendant to re-engage him pending the trial of the action, restraining it from exercising its contractual right to terminate the contract on three months notice and restraining the defendant from appointing a replacement for him. Having found that the plaintiff had made out a strong case that he was likely to succeed, Clarke J. went on to consider the issues of the adequacy of damages and where the balance of convenience lay. He held that the balance of convenience favoured the refusal of the orders sought by the plaintiff requiring the defendant to re-engage him and restraining the defendant from appointing someone else to act as Chief Executive on an interim basis pending the trial of the matter. Potentially irreparable harm would be done to the defendant if such orders were made, which harm would significantly outweigh any harm done to the plaintiff by refusing such orders. The inconvenience to both sides could be minimised by restraining the defendant from appointing someone to the relevant post save on the terms which would enable a trial court, if it so decided, to direct that the plaintiff return to his post. Clarke J. then went on to consider whether there was a basis from restraining the defendant from purporting to exercise a contractual entitlement to terminate the plaintiff’s employment on notice being given in the terms of the contract and, in the passage relied on by the defendant, he stated at para. 39:

“In addition it does not seem to me to be appropriate to restrain the board, if it should be minded to so, from purporting to exercise an entitlement to terminate the plaintiff’s contract of employment by giving notice in accordance with the terms of that contract. Whether or not such notice would be effective, in the light of the issues which have arisen in these proceedings, … there does not seem to me to be any basis from restraining the process from being started at this stage. If such notice is served then its validity can be considered at the trial of the action.”

7.5 The adoption of a similar approach in this case, that is say, not precluding the defendant from properly invoking its right to terminate the plaintiff’s contract in accordance with Clause 16.1 thereof, in my view, would maintain the proper equitable balance between the parties in this case. However, I cannot conclude, as the defendant’s argument suggested, that the matter is so straightforward that the defendant may, if it wishes to do so, issue a notice of termination pursuant to Clause 16.1 tomorrow, with the result that the high point of the plaintiff’s redress against the defendant would be the equivalent of his salary and emoluments until the expiry of the notice at the end of the sixteen weeks, so that the plaintiff would be adequately compensated in damages. The matter is complicated by the fact that the necessary decision is a decision of the board of the defendant, albeit a decision in respect of which the board has to have regard to the wishes of the “Shareholder Majority”. On the basis of the very confused evidence before the Court, and having regard to the fact that the law imposes fiduciary duties on corporate directors, it is impossible to conclude that the defendant can easily correct the situation which has resulted in the plaintiff being able to establish a strong case that he is likely to succeed at the trial of the action on the substantive issue that his contract of employment has not been properly terminated. Given the impact that the loss of his employment will have on the personal, family and professional life of the plaintiff, as disposed to in his affidavit, I am of the view that the defendant has not established that the damages are an adequate remedy for the plaintiff. While the defendant contends that its finances are in a parlous state and points to the plaintiff’s own evidence of his financial state, I am not satisfied that the plaintiff’s undertaking as to damages would not provide adequate recompense to the defendant for any losses it might incur, if it ultimately transpires that the injunction which I propose granting should have been refused.”

Giblin -v- Irish Life & Permanent plc

[2010] IEHC 36

Laffoy J.

“The law

As was pointed out by Clarke J. in Bergin v. Galway Clinic Doughiska Ltd. [2008] 2 IR 205 (at p. 212), the jurisprudence on employment injunctions has been in a state of evolution. Nonetheless, the legal principles which come into play on this interlocutory application, in my view, are well settled. On this application, as the Court has had the benefit of comprehensive written submissions from both sides, I consider a summary of the relevant principles is all that is necessary.

First, in conducting a process to determine whether the plaintiff should have a serious sanction, including the most serious sanction available, namely, dismissal, imposed on him, the defendant must act in accordance within the terms of the plaintiff’s contract of employment, including the implied term that the plaintiff, as employee, is entitled to the benefit of fair procedures (Glover v. B.L.N. [1973] I.R. 388). However, it is well recognised that what fair procedures demand depends on the terms of the plaintiff’s employment and the circumstances surrounding his proposed dismissal (Mooney v. An Post [1998] 4 I.R. 288).

Secondly, where the plaintiff is seeking what is in effect a mandatory injunction, what Clarke J. described in the Bergin case (at p. 213) as “injunctive relief which would have, to some extent, the effect of continuing his or her employment”, the standard by reference to which the Court determines whether to grant the relief is whether the plaintiff has established that he has a strong case that he will be successful at the trial of the action (Maha Lingam v. Health Service Executive [2006] ELR 137). As Clarke J. pointed out in the Bergin case (at p. 214), “an order remains a mandatory order, even though the plaintiff claims that a purported termination of his employment is unlawful by reason of a finding of wrongdoing having been arrived at in breach of the principles of natural justice”, because, however couched, the substance of the relief is the same.

Thirdly, as with all other applications for interlocutory injunctions, in deciding to grant an injunction in an employment context, the Court must be satisfied that damages would not be an adequate remedy for the plaintiff and that the balance of convenience favours the grant of the injunction. As a general proposition, in the context of employment injunctions, the jurisprudence of the courts has developed over the last quarter century so that it is generally considered that the prospect of an award of damages following the trial of the action is not an adequate remedy for a successful plaintiff who has been deprived of his salary pending the trial of the action. In relation to where the balance of convenience lies, because of the nature of the employer/employee relationship, that issue must be determined having regard to the precise form of relief sought by the plaintiff and will bear on the type of relief the Court is prepared to grant.”

Cahill v Dublin City University

[2007] IEHC 20

Clarke J.

4.11 There is very limited authority which is of any assistance in relation to the proper construction of the term tenure. Counsel for DCU drew attention to R. v. Hull University Visitor (1991) 1 WLR 1277 and (1993) AC 682, in which the Court of Appeal and the House of Lords in the United Kingdom respectively had to consider the status of an academic employee of Hull University. The first citation refers to the judgment of the Court of Appeal with the latter referring to the judgment of House of Lords. The initial determination of the issues which arose had been by the Lord President of the Council acting on behalf of the visitor of the University. That decision rejected the petition of the lecturer concerned. In his petition he had argued that he could only be removed “for good cause”. The university had, purportedly, terminated the applicant’s contract of employment on the grounds redundancy, giving him three months written notice.

4.12 The petition having been rejected, the applicant sought judicial review. A Divisional Court of the United Kingdom High Court held that, on a proper construction of the university’s statutes, there was no entitlement to dismiss the applicant in the absence of good cause and further held that the court retained a supervisory power over the decisions of the university visitor in the exercise of its judicial review jurisdiction.

4.13 The Court of Appeal agreed with the Divisional Court in relation to that aspect of the court’s decision which determined that the courts retained a judicial review jurisdiction but disagreed with the interpretation of the true construction of the relevant provision of the university’s statutes. The Court of Appeal was of the view that those statutes permitted a determination of the applicant’s contract of employment either for good cause or in accordance with a letter evidencing the terms of his employment. That letter provided for three months notice. On that basis the Court of Appeal was of the view that the dismissal of the applicant was valid.

4.14 The House of Lords took the view that the decision of the visitor was not amenable to challenge by judicial review on the ground of error in fact or law and on that basis the question of the true construction of the university’s statues did not arise for the court.

4.15 It is, therefore, clear that each of the decisions of the courts were about questions concerning the extent to which judicial review lay in relation to decisions of a university visitor and questions concerning the proper construction of the statutes of the university concerned. While it would appear from the reports that questions concerning the meaning of the term “tenure” were raised in the course of proceedings, it does not seem to me that any of the decisions give any significant guidance which might be of assistance in construing the term “tenure” as used in the 1997 Act.

s. 25(8) of the 1997 Act, which preserve the existing status and entitlements of university employees. At p. 22 of the judgment Gilligan J. notes a somewhat different definition of “tenure” contained in (a presumably different edition of) the Oxford English Dictionary as:-

“Guaranteed tenure of office, as a right granted to the holder of a position (usually in a university or school) after a probationary period and protecting him against dismissal under most circumstances”.

4.17 However, the relevant reference is clearly one which refers to an argument raised on behalf of one of the parties, rather than to a determination by the learned trial judge. It is also clear from the conclusions reached that the case turned principally on the construction of the interaction of the 1997 Act with the relevant provisions of the statutes of the National University of Ireland together with the provisions of s. 25(8) of the 1997 Act concerning the preservation of existing entitlements. In those circumstances it does not appear to me that Gilligan J. made any determination as to the precise meaning of “tenure” as used in s. 25(6) still less the extent to which the use of that term in that subsection might constrain what would otherwise be the freedom of a university to enter into whatever contractual relations it might agree with its employees (including officers).

4.18 In those circumstances it seems to me that the question of the meaning of the word “tenure”, insofar as it arises in these proceedings, falls to be determined largely from first principles.

4.19 Finally, it is necessary to turn to the relevant statute of DCU. DCU Statute No. 3 of 2001 (“Statute No. 3”) is headed “suspension and dismissal of employees” and is expressed to be made by the governing authority of DCU pursuant to the powers conferred on it by s. 33 of the 1997 Act. Statute No. 3 provides for the delegation of the powers of the university relating to suspension and/or dismissal to the President in his capacity as chief officer of the university. It will be recalled that such a delegation is permitted under s. 25(6) of the 1997 Act. Statute No. 3 then sets out a number of general provisions which provide for a process for determining whether persons should be dismissed or suspended for misconduct or incapacity.

4.20 However of particular relevance to this case are the provisions of Article 5.1 of statute No. 3 which simply state that:-

“The tenure of officers of the university shall be such tenure as is conferred on each such officer in his or her individual contract with the university”.

4.21 It is clear from the evidence that most, if not all, of the officers of the university have a contract in broadly similar terms to that held by Professor Cahill and are, therefore, as a matter of contract, subject to dismissal on the giving of a relatively short period of notice. On that basis it is contended on behalf of DCU that the university has complied with its obligations under s. 25(6) to provide for the tenure of its officers and has done so by reference to the contractual entitlement of the officers concerned. It is, therefore, said that the tenure of officers with a contract such as that held by Professor Cahill is such as allows the holding of their office to be terminated on the giving of three months notice without there necessarily having to be any basis for the giving of such notice.

4.22 In addition a number of the witnesses gave evidence concerning their understanding of the use of the term “tenure” in a university context. It would appear that the term has a particular connotation most especially in American universities. It would seem that most staff are appointed initially on what is termed a “tenure track” which is a process which, it is hoped, will lead, after a period of time, to the person concerned achieving a full “tenured” position. It would certainly seem that in the United States at least, it is not normally considered possible to terminate the office of a tenured member of the academic staff save for reasons such as serious misconduct or incapacity. At least in the United States context the words “tenure” seems to have a meaning along the lines argued for in these proceedings on behalf of Professor Cahill.

4.23 It is not, however, quite so clear that the term only has that meaning in those European countries (such as the United Kingdom and Ireland) which have a broadly similar university structure to that of the United States. Despite the absence of any definitive ruling on the question there seems to have been a significant debate on that issue in the Hull University case. Furthermore it should be noted that the Oireachtas, (in the Civil Service Regulation Act, 1956) provided, in s. 5, that “every established civil servant shall hold office at the will and pleasure of the government”. The marginal note suggests that the relevant section provides for the “tenure of office of established civil servants”. It is clear, therefore, that at least in one context the Oireachtas has used the term “tenure” in a manner which allows for the holding of office at will.

4.16 Counsel for Professor Cahill places reliance on Fanning v. University College Cork (Unreported, High Court, Gilligan J. June 2005) in which this court was concerned with disciplinary proceedings against a senior member of the staff of that university. However that case appears to have turned on the provisions of the relevant statutes of the National University of Ireland and, in particular, the requirements of s. 25(8) of the 1997 Act, which preserve the existing status and entitlements of university employees. At p. 22 of the judgment Gilligan J. notes a somewhat different definition of “tenure” contained in (a presumably different edition of) the Oxford English Dictionary as:-

4.18 In those circumstances it seems to me that the question of the meaning of the word “tenure”, insofar as it arises in these proceedings, falls to be determined largely from first principles.”

O’B v Aon Insurance Managers (Dublin) Ltd

[2005] IEHC 3

Mr. Justice Clarke

“The principal ground relied upon by the company in respect of this aspect of the case is to contend that the investigation report and the process which led to it is part of a two phase process frequently engaged in in disciplinary matters whereby an initial investigation is, if it discloses sufficient evidence, followed by more formal disciplinary proceedings. In those circumstances, it is contended, a party under investigation does not have the benefit of an entitlement to the rules of natural justice at the investigative stage. Such entitlement, it is contended, arises only and if and when the employer concerned moves to a formal disciplinary process.

In that regard particular reliance is placed on Morgan v. Trinity College [2003] 3 IR 157. In that case the plaintiff Mr. Morgan complained that a suspension imposed upon him under the procedures of Trinity College had been imposed in circumstances where he had been denied fair procedures. As set out in some detail in the judgment of Kearns J. the appropriate procedures in Trinity College involved an enquiry by the Senior Dean which, in the absence of an agreement by the employee or officer concerned, could not give rise directly to disciplinary sanctions. Unless the employee or officer agreed with the recommendations of the Senior Dean such a sanction could only be imposed after a hearing before a disciplinary panel.

In those circumstances Kearns J. reached the following legal conclusions:-

“Crucially he retained the right of veto over any possible sanction which the second defendant might regard as appropriate. Nothing in his conclusion or recommendation therefore amounts to a sanction and I am satisfied that the panoply of rights identified in Re Haughey [1971] I.R. 217 do not arise in those circumstances.”

It should also be noted that the Morgan case came before the court as an application for an interlocutory injunction. Thus it is clear that Kearns J. was satisfied that no fair issue arose to be tried in respect of the question as to whether the rights to fair procedures as identified in Haughey applied at the stage of an investigation which was to be preliminary to a possible full disciplinary hearing.

In those circumstances I am not satisfied that the plaintiff has made out a fair case to be tried in relation to the contention that proceeding further with the contemplated disciplinary process would be contrary to his legal entitlements.

Even if there are infirmities in the methodology of the investigators (and I express no view on that issue) and even if those infirmities may have affected the contents of their report the fact remains that the recommendations of the report do not, in the words of Kearns J. in Morgan “amount to a sanction” and therefore Haughey rights do not arise.

Before leaving this aspect of the case I should add that I have given consideration to the submissions made on behalf of the plaintiff to the effect that there are aspects of the documentation emanating from the company from which it might be inferred that the company intended to give greater status to the investigation report than that of a mere investigation which would form the basis for a full disciplinary hearing. Without expressing any view on the extent to which it might be appropriate to draw such an inference it seems to me that I must view this case as it now stands. Counsel for the Company in the course of argument made it clear that the Company does not assert that the report of the investigators has any status beyond recounting the evidence and issues which are to be considered at the full disciplinary hearing. While noting that the analogy may not be complete Counsel likened the document to a book of evidence prepared in advance of a trial. On that basis the report of the investigators does not establish any facts which may be contested. In the event that there are facts contained within that report which the plaintiff does not accept then he is clearly entitled to have the full disciplinary hearing consider those facts entirely afresh and having applied fair procedures to the hearing whereby they will be considered.

In those circumstances I do not think it appropriate to make any order restraining the further conduct of the disciplinary process. Obviously if it does not, ultimately, prove to be the case that that hearing is conducted in accordance with fair procedures then the plaintiff will have his remedy at that stage.

I now turn to the separate question as to whether it is appropriate to make an order which would have the effect of permitting the plaintiff to return to active employment. As is also pointed out by Kearns J. in Morgan suspensions can fall into one of two broad categories. Firstly a suspension may be disciplinary in that it may be imposed as a sanction as a result of wrongdoing on the part of an employee. Secondly it may be temporary as an interim measure while enquiries are being carried out. It seems to me on the evidence presented that there are at least substantial grounds upon which the company could have concluded that it was inappropriate for the plaintiff to continue in active employment until such time as the issues which had been raised were comprehensively dealt with. As was pointed out by counsel for the company it is involved in a form of business which requires it to retain the confidence both of its clients and of its regulators. Where serious questions as to whether the appropriate standard of corporate governance has been applied by the managing director have arisen it does not seem to me to be unreasonable for an employer to require that that managing director not be engaged actively in the management of the business for a reasonable period to permit an appropriate enquiry to be carried out and, if necessary, disciplinary proceedings to be completed, and a decision one way or the other taken. In making this last point I should emphasise that in such circumstances and even where the suspension is on full pay there is a clear obligation on the part of the employer to conclude any such enquiries with all necessary expedition. I am not, at present, satisfied that there is any evidence from which it could be properly concluded that the company has been guilty of any inappropriate delay in the conduct of its enquiries. Clearly if that situation were to change then it would be open to the plaintiff to renew his application.”

Cribbin -v- PLC Ingredients Ltd & Anor

[2012] IEHC 390 URL:

Laffoy J.

23. I have encountered considerable difficulty on this application in determining how to apply the principles which the Supreme Court laid down in Campus Oil v. Minister for Industry (No. 2) [1983] I.R. 88 by reference to which this Court determines whether to grant or refuse an application for interlocutory injunctive relief. To go back to basics, the nature of interlocutory relief was explained as follows in the judgment of O’Higgins C.J. (at p. 105):

“Interlocutory relief is granted to an applicant where what he complains of is continuing and is causing him harm or injury which may be irreparable in the sense that it may not be possible to compensate him fairly or properly by an award of damages. Such relief is given because a period must necessarily elapse before the action can come for trial and for the purpose of keeping matters in statu quo until the hearing.”

24. The first difficulty I have encountered is in relating the relief sought on this application to what the hearing of the substantive action will be about if the action ever comes to hearing. As will be clear from the outline of the reliefs sought in the plenary summons which I have set out earlier, the plenary action will be primarily concerned with whether or not the suspension of the plaintiff was proper. The appointment of the Investigator was a diversion on the route to the determination of that primary issue by the Court. It would have been a prudent and sensible diversion if it had produced an outcome which obviated the substantive action having to go to a hearing. However, the difficulty is in determining on what legal basis the Court, at this juncture, can compel the defendants to continue with the diversion to its terminus.

25. The absence of evidence of the content of Clause 2.1 of the Company’s Handbook is not fatal, because, as I have recorded, I have interpreted the submissions made on behalf of the defendants as recognising that it is reflected in the letter of 2nd November, 2011 from the plaintiff’s solicitors to the defendants’ solicitors. Nor is the absence of documentary confirmation by the defendants and the plaintiff as to their respective acceptance of the role and function of the Investigator, as set out by him in his letter of 16th December, 2011, fatal. While the plaintiff’s solicitors in their letter of 2nd November, 2011 did not accept the process proposed in the defendants’ solicitors’ letter of 27th October, 2011, which they contended was at variance with the provisions of Clause 2.1, nonetheless they participated in the process which the Investigator outlined when setting out his terms of reference in his letter of 16th December, 2011 and setting out the allegations which he had been charged with investigating, albeit there was a quibble as to the third item of the allegations, which the plaintiff seems to have abandoned. Notwithstanding the absence of any written confirmation by the defendants’ solicitors, it must be assumed for present purposes that the process as described by the Investigator in his letter dated 16th December, 2011 is consistent with the role and function conferred on him by the Company. While the principals, that is to say, the Company and the plaintiff, did not expressly agree to the process being conducted by the Investigator as set out in the letter of 16th December, 2011, I think the Court must proceed on the assumption that they implicitly agreed to that course. Therefore, in broad terms, it must be concluded that there was a contractual basis for participation in the process as between the Company and the plaintiff.

26. At the risk of straying into territory which the Court should not stray into on an interlocutory application, I would make the following general observations. I would not accept the proposition that, the plaintiff having participated in the process, it was open to the Company to unilaterally “pull the plug” on the process without good reason. As counsel for the plaintiff put it, the authorities do not sanction the Company “willy-nilly” interfering with a good investigative process. On the other hand, the Company had a genuine complaint that the investigation had not been concluded within the time it reasonably expected it to be concluded. Accordingly, if the submission made by counsel for the defendants that, having regard to the decision of the Supreme Court in Maha Lingham v. Health Service Executive [2006] 17 ELR 137, as the plaintiff is seeking mandatory injunctive relief, he has to show at least that he has a strong case that he is likely to succeed at the hearing of the action, is correct, applying that principle as meaning that the plaintiff must show that he has a strong case that the Company acted wrongfully in terminating the appointment of the Investigator, it is not possible to conclude that the plaintiff has crossed that threshold.

27. Even accepting that the plaintiff’s position is correct and that all the plaintiff has to show is that there is a fair issue to be tried that the Company acted wrongfully in unilaterally terminating the appointment of the Investigator, one is left with the question as to how making an order in the terms sought by the plaintiff would maintain the status quo pending the trial of the action. In seeking an order directing the reinstatement of the Investigator to complete the investigation, the plaintiff is seeking an outcome the objective of which is to bring finality to the issues as to whether the allegations of misconduct against him by the second defendant are established. I cannot see how the Court could properly make an order which would have that effect in the circumstances of this case on an interlocutory application. I consider that the Court would be fundamentally departing from its equitable jurisdiction to grant interlocutory injunctive relief if it were to make such an order.”

28. Apart from that, the evidence before the Court strongly suggests that, whatever the Investigator’s determination might be, finality would not be brought to the matter. In setting out his terms of reference in his letter of 16th December, 2011, the Investigator has stated that a finding on his part that there has not been any misconduct would conclude his investigation. As I have stated, I am assuming that that represents the basis on which the Company appointed the Investigator. However, it is clear from the letter of 6th June, 2012 that, even if the Investigator were to find that there was no misconduct on the part of the plaintiff, the Company wishes to pursue further allegations of misconduct against the plaintiff, as outlined at para. 14 above. If the Investigator was reinstated and if, having completed the investigation, he were to make a finding of misconduct against the plaintiff and recommend a sanction, the Company would not be bound by his recommendation as has been emphasised in the letter of 16th December, 2011. Apart from that, the issue of the right of the plaintiff to have recourse to a disciplinary hearing or an appeal in accordance with Clause 2.1 of the Company’s Handbook, which was raised by the plaintiff’s solicitors in their letter dated 2nd November, 2011, may not have been resolved by the plaintiff participating in the investigation process in accordance with the terms of reference set out in the Investigator’s letter of 16th December, 2011. To put it another way, having regard to the foregoing factors, it is impossible to conclude that the balance of convenience would be served by making an order in the terms sought.

29. Taking an overview of the matter, having regard to the fact that in the application for interlocutory relief on foot of the notice of motion dated 13th July, 2011 the plaintiff raised the issue of propriety of the second defendant conducting or participating in a disciplinary investigation or disciplinary hearing in relation to any complaint against the plaintiff other than as a complainant or witness, the decision by the defendants to appoint a person to conduct an independent investigation was sensible. However, even allowing for the fact that the evidence before the Court may not tell the whole story, from the perspective of both the Company and the plaintiff it would have been desirable that the manner in which the investigation was to be conducted, its outcome and what would follow on from its outcome should have been defined with much more clarity and precision by reference to the entitlements of the parties under Clause 2.1 of the Handbook. However, the real problem is that the relief which the plaintiff is seeking on this application, in the overall context of the proceedings, is not of the type which would be appropriate to grant on an interlocutory application. Accordingly, I have come to the conclusion that the application is misconceived.

C v Bus Atha Cliath

[2005] IEHC 1

“THE DISCIPLINARY PROCESS

The final matter in respect of which the plaintiff seeks interlocutory relief concerns a disciplinary process that has been put in place by the defendant. It seems to me that a court should be reluctant to intervene, and in particular to intervene at an interlocutory stage, in an as yet incomplete disciplinary process. To do so would be to invite a situation where recourse might well be had to the courts at many stages in the course of what would otherwise be a relatively straightforward and expeditious set of disciplinary procedures.

There may, however, be exceptions to that general rule. Where an employer has, in clear and unequivocal terms, indicated that procedures will be followed which would be manifestly unfair there may be circumstances where it is appropriate for the court to intervene at that stage. This will be so, in particular, in cases where the degree of prejudice which the employee concerned would suffer in the event of an adverse finding at the particular stage in the process in respect of which complaint is made would be great and unlikely to be substantially reversed by a finding of a court made after the process had come to an end.

….I consider the plaintiff’s contentions in respect of both of these items in turn.

1. The plaintiff contends that the complaint under this heading is, in substance, irrational having regard to the position which he has adopted in relation to his fitness for return to work and which is fully set out above. To prevent an employer from even embarking on a disciplinary hearing would require the court to be satisfied that the employer had made out no arguable case that a disciplinary hearing was justified. It may very well be, as the plaintiff suggests, that an employer would find it difficult to justify an absolute rule that a person who was unfit for work could not engage in representative activities or otherwise be involved in any of the processes of the employer while remaining certified unfit for work. To adopt such a rule in an inflexible way would have the potential to create irrational results. This case is, potentially, a very good example. There is no suggestion but that the plaintiff is fit to return to significant duties as a bus driver. The only contention between the parties concerns the fact that he would need, in the initial stages of return at least, somewhat lighter duties than full compliance with his terms of employment would require. In those circumstances it is, frankly, difficult to see how a rule which would preclude him from engaging in activities which are not incompatible with the circumstances which have led him to be certified sick makes sense. However it should not be assumed, at this stage, that the employer will necessarily come to an impermissible conclusion having regard to all the circumstances that might be properly put before a disciplinary hearing. Although it therefore seems unlikely that an employer in those circumstances could reasonably come to the conclusion that a breach occurred, there does remain a possibility, depending on the evidence and materials which would be put before a disciplinary hearing, that a different conclusion might be reached and I do not, therefore, propose making an order on this ground.

…..In all those circumstances it seems to me that the plaintiff has made out an arguable case and that the balance of convenience favours ensuring, at this stage, that the disciplinary appeal hearing is conducted in accordance with the principles of natural justice. In the circumstances I am prepared to grant the plaintiff an interlocutory injunction restraining the defendants from holding such an appeal hearing unless and until they have:-

(a) provided the detailed particulars of the allegations contained in paragraph 2 of the letter of the 29th July, 2004 which were requested by the plaintiff’s solicitors. For the avoidance of doubt the documents requested need not be supplied; and

(b) any witness whom the plaintiff wishes to attend and whom it may be possible has relevant evidence to give should be permitted to attend unless such witness is certified sick on grounds which would be inconsistent with his ability to attend as a witness.”

Mc L -v- Setanta Insurance Services Ltd

[2011] IEHC 410

Laffoy J.

The reliefs claimed

22. I will now consider the reliefs sought by the plaintiff on the notice of motion and their current status.

……However, I do think it is appropriate to take a pragmatic view of the position in which the parties find themselves, in the light of the fact that the plaintiff’s position is that of general manager and prior to her suspension she was out on sick leave for almost four months. She is on suspension on full pay. Having regard to all of the circumstances, I do not consider that the plaintiff has made out a case for an interlocutory injunction rescinding the decision to suspend her. In any event, I am satisfied that the decision I have made is in line with two authorities put before the Court by counsel for the defendant: the decision of Kearns J., as he then was, in Morgan v. Trinity College [2003] 3 IR 157; and the decision of Clarke J. in O’Brien v. Aon Insurance Managers (Dublin) Ltd. [2005] IEHC 3. I am satisfied on the evidence that this is a holding suspension, not a punitive suspension.

24. It follows from the fact that the plaintiff is on suspension on full pay that the reliefs sought by the plaintiff in relation to the payment of her salary and perquisites and her other remunerative entitlements does not arise.

25. The plaintiff originally sought an injunction restraining the defendant from continuing “any further investigation, inquiry or disciplinary investigation into the alleged conduct” of the plaintiff. The plaintiff also sought an injunction preventing the defendant from dismissing the plaintiff or from taking any steps adverse to the plaintiff on foot of “its purported investigation or disciplinary procedure” into the plaintiff. Further, the plaintiff sought an injunction restraining the defendant from taking “any step however directed at the termination of the plaintiff’s employment”. As I have already recorded, the plaintiff eventually indicated on affidavit that she has no difficulty with a bona fide investigation or a disciplinary process into her conduct. Counsel for the plaintiff made it clear that the plaintiff’s case is not that there should be no investigation. Her case is that the continuation of the investigation which Ms. Jordan was appointed to embark on should be restrained pending the trial of the action, because it would infringe the plaintiff’s entitlement to an investigation followed by a disciplinary process in accordance with fair procedures. In my view, the crucial question to be determined by the Court on this application is whether the plaintiff has established that there is a fair issue to be tried that her rights will be infringed if such investigation by Ms. Jordan, followed by a disciplinary process, is allowed to continue.

….27. In relation to when a court should intervene in a disciplinary process at investigation stage, the following observations made by Clarke J. in Minnock v. Irish Casing Co. Ltd. and Stewart [2007] ELR 229 are instructive:

“It seems to me, firstly, as a matter of law that the authorities are now beginning to settle upon a test as to the appropriate attitude to be taken or the test to be applied in cases such as this. It clearly is the case that in the ordinary way, 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.”

Clarke J. went on to give as an example of an investigation which was not so flawed, the “pure investigation” which it had been found was being conducted in O’Brien v. Aon Insurance Managers (Dublin) Ltd., stating –

“. . . it seems clear on all the authorities that that type of pure investigation which does not involve any findings is not a matter to which the rules of natural justice apply and is not a matter therefore 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.”

As regards the investigation which was being carried on in the Minnock case, Clarke J. observed that it was clear that the second defendant, who was conducting the investigation on behalf of the first defendant employer, had purported to make what he described as findings, and had not, therefore, confined himself simply to collecting the evidence and determining that there was a case to answer to warrant formal disciplinary proceedings. He had gone further than that. On that basis, Clarke J. concluded that the inquiry could not be characterised as the “pure evidence-gathering type” to which the rules of natural justice do not apply.”

28. On the question whether a clear case has been made out by the plaintiff that there is a serious risk that the investigative process which Ms. Jordan has been authorised to embark on is sufficiently flawed and incapable of being cured that it might cause irreparable damage to the plaintiff if it is permitted to continue, the following considerations are relevant. If the letter of 7th September, 2011 stood on its own, one could parse and analyse it and, perhaps, seek clarification as to what the defendant intended by the purpose of the investigation being “to establish the relevant facts” and what matters were under investigation other than the alleged misrepresentation in relation to outstanding claims reserves and underwriting results for 2009/2010 and form a view as to whether what was proposed was a “pure investigation”. The formation of that view would, no doubt, be influenced by whether the matters under investigation, which have not been identified, would, if proven to be true, be sufficiently serious as to constitute serious misconduct, as was contended in the letter of 7th September, 2011. However, the defendant has not availed of the opportunity to specify what the “other matters” are. More importantly, the letter of 7th September, 2011 does not stand on its own. We know from the affidavit evidence of the investigator, Ms. Jordan, that, aside from the outstanding claims reserves and underwriting results for 2009/2010, Ms. Jordan has made the judgment that the conduct of the plaintiff warrants her dismissal, presumably, because she considers it constitutes serious misconduct. In relation to what happened in the days leading up to the end of the defendant’s financial year 2009/2010 Ms. Jordan has made comments, which I have not quoted, which certainly point to a pre-judgment on her part in relation to the conduct of the plaintiff and has sought to support that view by reference to the charts she has exhibited. If the averments contained in Ms. Jordan’s affidavits represent her understanding and that of the officers of the defendant as to what “establishing the facts” means, one must conclude that it goes beyond a “pure investigation”.

29. For that reason, I am satisfied that this is a case in which it is appropriate for the Court to intervene at this juncture and restrain the defendant from carrying out the investigation in the manner proposed, because I have absolutely no doubt that the test adumbrated by Clarke J. has been met.

Adequacy of damages/balance of convenience

30. Moreover, I am satisfied that damages would not be an adequate remedy for the plaintiff if she were summarily dismissed on foot of a flawed process, because of the reputational damage she would suffer. I am also satisfied that the balance of convenience lies in favour of granting an injunction limited to restraining the defendant from continuing an investigation conducted by Ms. Jordan in accordance with the mandate given to her in the letter of 7th September, 2011. However, it is open to the defendant to initiate an alternative investigation in accordance with the plaintiff’s contract incorporating the provisions of the Employee Handbook modified to suit the plaintiff’s position and to proceed to a disciplinary process. It is also open to the defendant to continue the suspension of the plaintiff until the process is completed, but both sides should co-operate to complete it as soon as reasonably practicable.”

Wallace -v- Irish Aviation Authority

[2012] IEHC 178

Hogan J.

22. The Supreme Court has taken the same view with regard to the grant of mandatory interlocutory injunctions which would have the effect of specifically enforcing contracts of employment. As Fennelly J. observed in Maha Lingham v. Health Service Executive [2006] E.L.R. 137, 140:-

Mc Grath -v- Athlone Institute of Technology

[2011] IEHC 254

Hogan J.

“11. In the special circumstances of this application, I consider that the fairest thing is to assume in the plaintiff’s favour that he would be able to show at the full hearing that he was a permanent employee, whether by virtue of the operation of the 2003 Act or by reason of contractual representations which were made to him by others who had the power to bind the Institute. Starting from this working hypothesis, we may next examine the circumstances in which this Court might be prepared to grant injunctive relief.

….

16. In my judgment, in that situation this Court would enjoy such a jurisdiction, not least by reason of the inherent full original jurisdiction which this Court enjoys to determine all questions of law and fact by virtue of Article 34.3.1 of the Constitution. It may be recalled that in Pierse v. Dublin Cemeteries Committee (No.1) [2009] IESC 47, [2010] 1 ILRM 349 the Supreme Court held that a plaintiff had standing to pursue a claim for damages for alleged breaches of constitutional rights in respect of the operation of a private Act of the Oireachtas by a statutory body in circumstances where that was the only real remedy open to him. It is (at least) necessarily implicit in the judgment of Macken J. that such a plaintiff must be afforded such a right, as otherwise he would have been left without an effective remedy.

Is this an appropriate case in which to grant relief?

19. It is at this juncture that we arrive at the critical question, namely, could the Institute terminate the plaintiff’s employment in the manner which is proposed, even if the Labour Court were to hold that the plaintiff had a contract of indefinite duration?

20. The starting point, of course, is that it is clear that at common law, subject to appropriate contractual terms to the contrary, an employer can dismiss for any reason or no reason on giving reasonable notice, even in the case of a permanent employee. Any lingering doubts on this point were dispelled by the Supreme Court’s decisions in both Maha Lingham v. Health Service Executive [2005] IESC 89, [2006] 17 E.L.R. 137 and Sheehy v. Ryan [2008] IESC 14, [2008] 4 IR 258. Some may think that this situation is unsatisfactory, but if so, change in this area is a matter for the Oireachtas. Indeed, it may be observed that the Oireachtas did legislate in this general area via the Unfair Dismissals Acts 1977-2005, but in so doing it was careful to leave unchanged the common law in relation to the termination of employment contracts. It was, moreover, for this very reason that in Nolan v. Emo Oil Services Ltd. [2009] IEHC 15 Laffoy J. expressed her unwillingness to extend the common law “in parallel to the statutory code in relation to unfair dismissal and redundancy [as this would] und up supplanting part of the code”.

21. Thus, therefore, even if the various agents of the Institute did make representations to the plaintiff of the kind alleged in respect of the building work and even if it were held that he was thereby entitled to a permanent position as a result of such representations, the Supreme Court’s decision in Sheehy v. Ryan confirms that such employment can be terminated by the employer absent an express clause to the contrary in the actual contract. In the present case, therefore, Sheehy v. Ryan, therefore, rules out any possibility of an injunction insofar as it concerns a contractual claim, not least given that no issue has been taken regarding the adequacy of the notice.

22. By a parity of reasoning, therefore, it follows that this Court has no jurisdiction to restrain the termination of employment in a case such as the present, unless the plaintiff can point to something in the 2003 Act which impliedly precludes termination for redundancy in the event that he is deemed to have a contract of indefinite duration and where the plaintiff would otherwise suffer irremediable loss. While the remedial provisions of the 2003 Act are, perhaps, somewhat obscure in places, the Rights Commissioner (and, on appeal, the Labour Court) could in principle order re-instatement in the same manner as if the employee had been unfairly dismissed for the purposes of the Unfair Dismissals Acts 1977-2005: see s. 14(2)(c) of the 2003 Act.

23. The object of this provision would appear to be to give the Labour Court the power to place the employee who had previously simply been given a fixed term contract in the same position as if he were now or, indeed, always had been on a permanent contract since the relevant date: see, e.g., the comments of Fennelly J. to this effect in Maha Lingham. But, as we have seen from Sheehy v. Ryan, so far as the common law is concerned, that in itself is no impediment to termination and there is nothing in the 2003 Act to suggest that the employment of such a re-instated employee could not be terminated in the future. If that were to happen, then such an employee must then elect as between pursuing the common law remedy of wrongful dismissal and relief under the Unfair Dismissals Acts.

24. If, therefore, the Labour Court were to decide in the plaintiff’s favour and hold that he did enjoy a contract of indefinite duration, this would simply place him in the same situation as if he were a permanent employee. But absent an express contractual stipulation to the contrary, Sheehy v. Ryan makes it plain that such an employee’s contract of employment can be terminated at will in a case such as the present one. If the fairness of that dismissal is to be adjudicated, this can only be done through the mechanism of the Unfair Dismissals Acts.

Conclusions

25. I am, accordingly, coerced to the conclusion that even if the Labour Court’s decision were favourable to the plaintiff, this would not in practice significantly ameliorate his position so far as right to seek an injunction is concerned. Even if the Labour Court had already declared that the plaintiff enjoyed permanent employee status, this would not entitle him to an injunction in present circumstances. Of course, if the termination goes ahead the plaintiff may well be entitled to relief under the Unfair Dismissals Acts, but should this occur, that will be a matter for the Employment Appeals Tribunal and not for this Court.

26. It follows, therefore, that for the reasons stated, I must decline to grant the interlocutory injunction sought.”

Earley -v- Health Service Executive (No.2)

[2017] IECA 207 (18 July 2017)

Court of Appeal

Composition of Court:

Finlay Geoghegan J., Peart J., Hogan J.

Judgment by:

Hogan J.1. In a judgment delivered on the 15th May 2017 (“the first judgment”) this Court held that the re-assignment of the plaintiff, Ms. Helen Earley, from the operational and clinical nursing duties specified in her contract of employment to non-operational duties amounted to a breach of that contract of employment: see Earley v. Health Service Executive [2017] IECA 158. In November 2012 Ms. Earley had been appointed to a position as Area Director of Nursing, Mental Health Services for the Galway/Roscommon region. It is clear from the terms of the job description and the terms of the contract of employment that this was a senior post within the Health Service Executive (“HSE”) which entailed both clinical and management responsibilities for some 60 facilities in these two counties.

2. While it is important to state that the re-assignment from the position she held to other non-clinical duties did not entail any loss of remuneration and (perhaps more arguably) any loss of reputation or status, this Court held that these considerations were fundamentally irrelevant to the question of whether there had been a breach of the terms of Ms. Earley’s contract of employment. It is also important to observe that there have been no disciplinary findings against Ms. Earley and the HSE have repeatedly stated that the re-assignment was not part of a disciplinary process. The re-assignment was furthermore stated to be temporary in nature.

3. At the conclusion of the first judgment this Court simply granted a declaration that there had been a breach of the contract of employment. Concluding my judgment I stated at para. 39 of that first judgment as follows:

“I would accordingly allow the plaintiff’s appeal and grant a declaration to the effect that the re-assignment of the plaintiff in July 2015 constituted a breach of her contract of employment. In the light of this finding and the granting of such relief, I would invite the parties to make such further submissions on the question of whether the grant of any further relief by this Court is necessary or appropriate.”

4. No steps having been taken by the defendant to restore the plaintiff to her original position as Area Director of Nursing, Mental Health Services for the Galway/Roscommon area following the delivery of the first judgment, the question of what (if any) additional remedy should be granted was then put in for further hearing before this Court. While acknowledging and respecting the Court’s decision, counsel for the HSE maintained at that subsequent hearing that the plaintiff’s only remedy in the light of the Court’s findings was an action for damages for breach of contract. Counsel for the plaintiff submitted that this would be a purely empty remedy, since Ms. Earley had suffered no financial loss by reason of the reason of the re-assignment. He submitted that in order for the plaintiff to obtain an appropriate and effective remedy it would be necessary for this Court to make an order restoring the plaintiff to her original post.

What further remedy (if any) should this Court grant the plaintiff?

5. The question now arises as to what further remedy, if any, the plaintiff should now obtain. There are several reasons why, on the specific and particular facts of this case, I am of opinion that this Court should indeed grant an order requiring the HSE to restore the plaintiff to her original position under the terms of her contract of employment. I reach this conclusion for the following reasons.

6. First, it must be stressed at the outset that the present proceedings do not involve an action for wrongful dismissal, where the traditional remedy remains that of an action for damages and where orders for the specific performance of contracts of employment remain exceptional. The plaintiff has neither been dismissed nor disciplined. Nor have there been any disciplinary findings against her and the HSE has assured the Court that the re-assignment is not for disciplinary reasons.

7. Second, a further consideration is that although the plaintiff cannot claim to be an office holder as such, she has nonetheless been appointed to a very specific post with very particular duties as specified in her contract of employment. This is reflected by the terms of the plaintiff’s own highly particular contract of employment and job specification , the details of which have already been set out in greater detail in the first judgment. Her entitlement to perform the specific duties associated with the position may rightly be regarded as a fundamental aspect of that contract of employment. The job specification refers to her as “the post holder”.

8. Third, the sequence of events leading up to Ms. Earley’s re-assignment is also material. While the details of these events are set out in far greater detail in the first judgment, it may nonetheless be convenient to summarise these events as follows. On 1st July 2015 – now over two years ago – the plaintiff received a letter from Mr. Bernard Gloster, Chief Officer of the HSE Mid-West and interim chief officer of the HSE West, to the effect that she was to be temporarily reassigned from her position as an Area Director of Nursing to the Programme Management Office of the National Mental Health Division of the HSE. This re-assignment took effect from the 6th July 2015. On that date a Mr. Brian O’Malley was appointed as Acting Area Director of Nursing.

9. It was this re-assignment which gave rise to the present proceedings. On the 30th July 2015 Kennedy J. granted the plaintiff an interlocutory injunction which prevented the HSE giving effect to this re-assignment pending the trial of the action: see Earleyv. Health Service Executive [2015] IEHC 520. The plaintiff accordingly remained in position pending the full hearing of the action in the High Court which was heard by O’Connor J. in November 2015. In a reserved judgment delivered on the 27th November 2015 O’Connor J. found that the re-assignment of the plaintiff was lawful and he refused to grant her any of the injunctive or declaratory relief which she had sought: see Earley v. Health Service Executive [2015] IEHC 841. The re-assignment of the plaintiff took effect shortly thereafter once the interlocutory injunction which had been granted a few months earlier in July 2015 thereby lapsed following the delivery of the High Court judgment.

10. For the reasons set out in the first judgment this Court has already concluded that O’Connor J. was in error insofar as he found that there had been no breach of the plaintiff’s contract of employment. It is inherent in this Court’s appellate role from decisions of the High Court that this Court would normally seek to ascertain what the factual position which obtained immediately prior to the High Court judgment actually was.

11. In this context one may observe that it is necessarily implicit in this Court’s first judgment that it was of the view that the interlocutory injunction restraining the unilateral re-assignment of the plaintiff which had been granted by Kennedy J. in July 2015 should have been made permanent in November 2015.

12. It is true that the plaintiff has now been assigned to other duties since November 2015 and slightly more than eighteen months have now passed since she was so re-assigned. Yet it would be strange if the plaintiff’s ability to secure an effective remedy should be now compromised by reason of the fact that the High Court fell into error by falling to grant this order in November 2015 and by the subsequent delays which have necessarily ensued in ensuring that her appeal was heard by this Court, unless, of course, there had been other developments in the meantime which now rendered this course of action impossible or otherwise inappropriate. Certainly in the absence of any disciplinary action, no tangible evidence has been placed before this Court to suggest that the re-instatement of the plaintiff to her original post would now be impossible or inappropriate.

13. Fourth, any other conclusion would effectively render the plaintiff’s victory a purely pyrrhic one. Even though this Court has held that the HSE had breached her contract of employment she would in these circumstances have secured a declaratory order to this effect only. While one would ordinarily have expected that in a democratic State governed by the rule of law a public body – such as the present employer – would unhesitatingly respect the logical implications of a court order, it seems that absent the grant of a further and more coercive order the declaratory order granted to the plaintiff in the present case is destined to remain little more than a thing writ in water.

14. In Wallace v. Irish Aviation Authority [2012] IEHC 178, [2012] 2 I.L.R.M. 345 I was required when a judge of the High Court to consider the situation of an employee who had been placed on administrative leave despite an express contract commitment that she would be allowed to work pending the outcome of an appellate process against an adverse disciplinary decision. I rejected the argument that I could not – or, at least, should not – grant a mandatory interlocutory injunction requiring the Authority to permit the plaintiff to work pending the outcome of the appeal, saying ([2012] 2 I.L.R.M. 345, 355):

“But it would be unfair to Ms. Wallace if the Authority were to be allowed to resile from what would appear to be its contractual obligation simply because the unyielding application of specialist sub-rules relating to the grant of interlocutory injunctions in employment cases (such as a traditional unwillingness to refuse to countenance the grant of mandatory interlocutory injunctions specifically enforcing aspects of a contract of employment) rendered it effectively unenforceable just at the time when that guarantee might be of the most value to her. In those circumstances, the courts would have failed in their constitutional duty [in Article 40.3.2 of the Constitution] to vindicate these contractual obligations by providing real and effective relief to remedy the injustice done which would then have been done to her.

It was, after all, the Authority which decided to agree to give its employees the express contractual commitment that they would remain in situ pending an appeal against an adverse disciplinary decision. The Authority can hardly feign surprise or look askance if this Court merely holds it to its own word.”

15. There are, of course, differences between the two cases. Ms. Wallace’s position involved the discharge of routine administrative duties and it was not a senior clinical and management position such as the present one. That case, moreover, concerned the grant of a short-term interlocutory injunction and which did not involve a final order such as that at issue in the present case.

16. The underlying principle is, however, nevertheless the same, namely, that the courts should ensure, where possible, that an effective – and not simply a theoretical – remedy should be available in employment cases where a clear breach of contract has been established. For all the reasons just stated, unless this Court intervenes and goes further, the plaintiff will simply be left with what amounts in the circumstances to be a purely theoretical remedy which the employer seems otherwise determined to ignore.

17. Just as in Wallace it was, moreover, the employer in the present case who decided to give Ms. Earley a specific contractual position which was shrouded with a range of specific commitments which excluded unilateral action of the kind which was subsequently taken by the self same employer in the present case. Again, just as I put the matter in Wallace, the HSE “can hardly feign surprise or look askance if this Court merely holds it to its own word.”

Conclusions

18. In summary, therefore, for all the reasons stated, I would grant an injunction directing the HSE to restore the plaintiff to her contractual position as Area Director of Nursing, Mental Health Services for the Galway/Roscommon region. Once the plaintiff is restored to that post her tenure there is, of course, subject to the terms of her contract of employment.

Ryan -v- Bank of Ireland

[2016] IEHC 376

Gilligan J.

1. In essence the plaintiff’s claim in these proceedings is for a declaration that the purported termination of her employment by letter of the Bank of Ireland as dated the 6th day of May, 2016, is a nullity and of no effect. Inter alia the plaintiff claims a number of other reliefs and effectively she seeks either a return to employment with the defendant and damages as suffered to the date of her return to employment or alternatively damages both to date and into the future. In this interlocutory application the only relief being pursued on the plaintiff’s behalf is the payment of her salary pending the determination of these proceedings.

2. The salient facts appear to be that the plaintiff was employed in a very senior position at a substantial salary with a leading firm of chartered accountants in the city of Dublin. She was approached by a recruiter in January, 2015, who indicated to her that the Bank of Ireland had indicated to her that they were looking for a performance and award benefits manager at a very substantial salary, and that they were looking for someone who could move into the top role in that department within eighteen months. I have been provided with a copy e-mail in this regard but no affidavit has been proffered by either of the parties herein from the recruiter.

3. It appears that the plaintiff, despite certain misgivings, proceeded to enter an interview process with the defendant’s human resources department and in line with the senior position with the defendant bank which was being discussed the plaintiff underwent a number of interviews, examinations, and tests, and on the 25th June, 2015, the plaintiff was offered a contract for the position of Deputy Head of Group Performance and Reward within the Bank of Ireland Group of companies. The offer was subject to receipt of two satisfactory references, medical assessments and verification of the plaintiff’s qualifications and the information she had provided on the application form.

4. The plaintiff was advised to carefully read the documents as contained in the letter of offer and she was given ten working days to either accept the offer and if she did not the offer would no longer be open for acceptance by her.

5. The plaintiff was not advised to seek legal advice as regards the terms of her employment contract as attached to the letter and neither did she.

6. Paragraph 4 of the contract provided for a probationary period and that the plaintiff would be employed on probation for a period of six months with effect from the 5th October, 2015. It was specifically set out that the plaintiff’s suitability as an employee would be assessed during the probationary period and that her employment could be terminated during the probationary period on four weeks’ notice if her conduct/performance was considered unsatisfactory or if it was considered that she was otherwise unsuitable to continue in employment with the company. It was provided in the contract that the probationary period could be extended at the discretion of the Bank of Ireland.

7. At para. 17(B) of the proposed contract it was specifically set out that the Bank would be entitled to terminate the plaintiff’s employment at any time by giving not less than twelve weeks’ written notice of termination and likewise the plaintiff would be entitled to terminate by giving the same period of notice.

8. At para. 24 of the contract under the title “Prior Agreement” it was stated that the terms and conditions as set out in the letter supersede any prior agreements, representations and commitments between the plaintiff and the Bank of Ireland Group relating to the plaintiff’s employment, “all of which are hereby terminated.”

9. The plaintiff proceeded to sign the letter of contract with Bank of Ireland and then resigned her position with the leading firm of accountants, with whom she was in employment and proceeded to commence work.

10. The plaintiff’s period of probation was extended but culminated in a letter of termination of her employment on the 6th May, 2016, effectively on the basis that the plaintiff had failed to satisfy the defendant that she was a suitable employee to perform the role as assigned to her.

11. From the plaintiff’s perspective the situation that has arisen has the gravest of consequences particularly having regard to her personal circumstances, her age, her family commitments, her ongoing financial position and her general well being, against a background where she was effectively head-hunted out of her previous, very substantial position of employment.

12. From the defendant’s perspective, they take a straightforward approach relying on the terms of the contract of employment, that the plaintiff was unsuitable for the position as Deputy Head of Group Performance and Reward within the Bank of Ireland Group of companies, that any previous discussions about any aspect of the terms and conditions of the plaintiff’s proposed employment are superseded by the agreement which the plaintiff entered into and in particular at para. 24 relating to prior agreement and that they are entitled within the terms of the agreement to terminate and pay the plaintiff the equivalent of four weeks’ salary.

13. Mr. Callanan on the plaintiff’s behalf relies effectively on the decision of Fennelly J. in the Supreme Court in Maha Lingam v. Health Service Executive [2005] IESC 89 and submits that, in effect, the plaintiff makes out a “strong case” for the reliefs as sought and in the particular circumstances all she is seeking is the payment of her salary pending the determination of the proceedings.

14. Mr. Connaughton on the defendant’s behalf relies on the terms and conditions of the contract as entered into between the parties and the fact that there is no known precedent either in the Irish or English authorities which would in effect in the circumstances of this case entitle the plaintiff to be paid her salary on an ongoing basis pending the determination of the proceedings. It is conceded, however, on the defendant’s behalf that if the Court is satisfied that the plaintiff at this interlocutory stage makes out a strong case that is likely to succeed the Court can exercise its discretion as regards the payment of the plaintiff’s salary pending the trial of the action.

15. Having read and considered the affidavits as delivered and the submissions as made particularly on behalf of the plaintiff it is quite clear that issues of trust and confidence loom large as the plaintiff alleges the Bank directed her to perform compliance duties as opposed to the intended and discussed “Group Performance and Reward” duties and the plaintiff makes the most serious of allegations as against the Bank and it’s senior employees which in turn are flatly contradicted. It is a central issue in the plaintiff’s case that she relied on the defendant’s representations as to what the proposed position would entail and she maintains the position and the manner in which she was treated turned out to be very different. Accordingly, the issues of trust and confidence relate to both parties. Notwithstanding the content of the e-mail from Mairead Griffin to the plaintiff as dated the 12th January, 2015, and which in effect started the whole process rolling the defendants deny that it was ever intended that the plaintiff was to take over the senior position in the relevant department within eighteen months. The parties on occasion agree that certain conversations did take place but come nowhere near agreeing the salient aspects of those conversations and in one instance in relation to the plaintiff’s averment that a lunch took place with a named employee of the defendant at a named restaurant at a particular time, the defendant’s representative avers that at a point in time but not in any way relevant there may have been a lunch but it was not in the named restaurant at the particular time as alleged by the plaintiff.

16. From the plaintiff’s perspective if her averments as contained on affidavit are generally correct she would make out a strong case.

17. From the defendant’s perspective if the averments as made on their behalf are generally correct then it would appear that a different situation may prevail.

18. This is a case that will be determined on the evidence adduced before the Court trying the issues between the parties and in accordance with the principles as set out in Hay v. O’Grady [1992] I.R. 210 the trial judge will have every opportunity to assess the veracity of the evidence adduced on behalf of both parties, will have the opportunity to assess witnesses and their demeanour and the surrounding supporting facts and documents and will come to a conclusion based on the totality of the evidence adduced before the trial court.

19. This Court is not in a position in these circumstances to come to a conclusion that the plaintiff on the current state of the contested affidavit evidence of both parties makes out a strong case that is likely to succeed and as the onus rests with the plaintiff the Court is not in a position to exercise its discretion and grant the plaintiff the relief she seeks, namely the payment of her salary on an ongoing basis pending the determination of the proceedings.

20. The Court takes the view that it has to have regard to the extremely unfortunate background circumstances that pertain in the particular circumstances of this case and accordingly directs that this is a case which has to be brought to trial at the earliest possible opportunity and I will hear the submissions of counsel as to how this process can be facilitated.

Bradshaw -v- Murphy & ors

[2014] IEHC 146 Finlay Geoghegan J.

1. The plaintiff is an employee of the fourth named defendant (“the Company”). The Company carries on a business known as ‘The Copper Bar and Grill’ in the South Beacon Quarter, Sandyford, Dublin. The plaintiff is a Chef and restaurateur.

2. The plaintiff contends that he is in partnership with the first named defendant, Mr. William Murphy, and that the business of the partnership relates to the Copper Bar and Grill. The second named defendant, Mr. Joseph Murphy, is a director of the Company and the third named defendant, Ms. Claire Muprhy, who is the wife of the first named defendant, is a shareholder of the Company.

3. It does not appear to be in dispute that the Company now carries on the business of the Copper Bar and Grill and that the plaintiff is employed by the Company.

4. Further, it is not in dispute that there was a meeting between the plaintiff and Mr. William Murphy and Mr. Joseph Murphy on 11th December, 2013. There is significant dispute as to what was said by the Messrs. Murphy at that meeting. The plaintiff deposes that he understood that he was being placed on leave for a month, during which he would be paid, and whilst he acknowledges that Mr. William Murphy said he did not want to work with him any longer, also states that he understood that everything would be looked in a month’s time. Mr. William Murphy deposes that he told the plaintiff that he was being dismissed; that the Company would pay him for four weeks on certain conditions which are in dispute.

5. The plaintiff appears, however, to have understood from the meeting of 11th December, 2013, and from a further conversation and information given him of communications to third parties on the following day that the defendants did intend to effect a dismissal, and, as he contends, a dissolution of the partnership.

6. These proceedings were commenced on 31st January, 2014, and on the same date, an application was made ex parte to the High Court and Ryan J. granted liberty to serve a motion seeking interlocutory relief returnable for Monday 3rd February, 2014.

7. On 3rd February, 2014, the defendants gave undertakings to the Court pending the hearing and determination of the interlocutory application in which, in summary, they undertook:

(i) Not to interfere with the plaintiff’s share in the partnership the subject matter of the proceedings, partnership assets and the business known as the Copper Bar and Grill; the plaintiff’s assets or those of the Company and the plaintiff’s shareholding the subject matter of the proceedings in the Company;

(ii) not to dismiss the plaintiff or to take any step to effect the dismissal of the plaintiff, and

(iii) to resume payment on a weekly basis of wages and to make other payments to the plaintiff in specified amounts.

8. The above undertakings, in their full detail, subsisted until the time of the hearing of the interlocutory application and continue to subsist pending the delivery of this judgment.

Interlocutory Application

9. Whilst the interlocutory reliefs sought in the notice of motion are multiple, in substance, they are divided into two issues: orders restraining the defendants from terminating or purporting to terminate the employment of the plaintiff with the Company and injunctions restraining the defendants from terminating or purporting to terminate the partnership between the plaintiff and Mr. William Murphy

10. The defendants had proffered an open undertaking to the Court at the outset of the hearing which was limited to the disposal of the assets or business of the Company and sought an early hearing. By the end of the interlocutory hearing, the defendants indicated that they were prepared to give the following undertakings to the Court pending the full hearing of the proceedings:

“1. The Defendants and each of them undertake not to dissipate or dispose of (other than in the ordinary course of business) the assets or business of the fourth Defendant or to wind up the fourth Defendant save on the giving of seven days notice of any intended dissipation, disposal or winding up to the Plaintiff in which case the Plaintiff will have liberty to re-enter this application and to make such further or other application as he sees fit.

2. The Defendants and each of them undertake not to dismiss the Plaintiff or to cause the fourth Defendant to dismiss the Plaintiff on the ground of misconduct including the Facebook issue. For the avoidance of doubt, the Defendants concede for the purpose of the giving of this undertaking only, that misconduct includes the matters raised by the first Defendant during the course of a meeting between him and the Plaintiff that took place on the evening of 11 December 2013.

3. The Defendants and each of them undertake not to communicate to any third party that the Plaintiff’s employment has been terminated on the ground of misconduct including the Facebook issue or for the matters raised by the first Defendant during the course of a meeting between him and the Plaintiff that took place on the evening of 11 December 2013.”

11. Notwithstanding the undertakings offered by the defendants, the plaintiff continues to seek an interlocutory injunction:

(i) Restraining the termination of the plaintiff’s contract of employment with the Company and

(ii) an injunction restraining the defendants from terminating or purporting to terminate the partnership of the plaintiff and Mr. William Murphy.

I propose dealing separately with the applications insofar as they relate to the employment law issue and the partnership issue. It is necessary to firstly set out the agreed principles in relation to applications for interlocutory injunctions, and in particular, injunctions restraining dismissal or purporting to give effect to a dismissal.

Applicable Principles

12. In accordance with the decision of the Supreme Court in Campus Oil Ltd. v. Minister for Energy (No. 2) [1983] I.R. 88, in order to obtain an interlocutory restraining injunction, the plaintiff has to demonstrate a serious issue for trial, inadequacy of damages and that the balance of convenience lies in favour of granting the order. Where the application is such that in substance, the plaintiff is seeking a mandatory interlocutory injunction i.e. an order directing his continued employment and payment of wages, then, in accordance with the decision of the Supreme Court in Maha Lingam v. Health Service Executive [2005] IESC 89, the ordinary test of a fair case to be tried is not sufficient. In such a case, it is necessary for the applicant to show at least that he has a strong case that he is likely to succeed at the hearing of the action. For reasons explained below, it is not necessary for me to consider further the latter principle.

13. The claim made on behalf of the plaintiff in relation to the purported or potential dismissal from employment by the Company is that at the meetings on 11th December, 2013, and subsequent communications to third parties, it was indicated that the plaintiff was to be dismissed from his employment with the Company by reason of alleged misconduct. Having made such an allegation of misconduct, counsel for the plaintiff submits that any subsequent termination of the plaintiff’s employment invokes a requirement for fair procedures. She submits that the plaintiff has not been accorded fair procedures by the defendants herein. She relies upon the dicta of Clarke J. in Carroll v. Bus Átha Cliath [2005] 1 84, where, at p. 209 he stated:

“If the stated reason for seeking to dismiss an employee is an allegation of misconduct, then the courts have, consistently, held that there is an obligation to afford that employee fair procedures in respect of any determination leading to such a dismissal.”

14. Counsel for the defendants does not dispute the potential applicability of the above principles, but submits that as the defendants have now given an undertaking to the Court pending the final determination of the plaintiff’s claim not to dismiss the plaintiff or cause the Company to dismiss the plaintiff on the ground of misconduct, that the above principles no longer apply in relation to the interlocutory application. Between now and the trial of the action, counsel for the defendants submits that the defendants, and in particular, the Company, may only terminate the employment of the plaintiff in accordance with the contractual terms, including any implied term of reasonable notice. Counsel for the defendants further submits that there is no claim made by the plaintiff that the fourth named defendant is precluded from terminating his employment in accordance with the express or implied contractual terms. He submits that there is, therefore, no serious issue to be tried in relation to the Company’s entitlement at common law to terminate the employment of the plaintiff in accordance with its contractual terms.

15. That submission appears to me correct. Whilst the plaintiff may have raised a serious issue to be tried as to whether the Company is entitled to give effect to a dismissal indicated in the meetings of 11th/12th December, 2013, it has not, on the evidence in the affidavits sworn in the interlocutory proceedings, raised a serious issue to be tried as to the Company’s entitlement at common law to terminate the employment of the plaintiff, without cause, in accordance with the relevant contractual provisions. The fact that the defendants previously threatened to dismiss, for the reasons stated on 11th December, 2013, does not preclude the defendants from terminating in accordance with the contractual provisions. The defendants have undertaken to the Court not to dismiss by reason of matters raised on 11th December, 2013.

16. Accordingly, I refuse the plaintiff’s application for an injunction restraining the termination of his employment by the Company in circumstances where the defendants have given the undertaking not to dismiss the plaintiff on the ground of misconduct (including matters raised by Mr. William Murphy at the meeting of 11th December, 2013) and the Facebook issue.

Partnership

17. Prior to 2012, the plaintiff and Mr. William Murphy had a business relationship in relation to a restaurant known as ‘The Station House’ in Tralee, County Kerry. Mr. William Murphy was the landlord of the premises and the plaintiff the tenant. From 2010, the plaintiff says he expressed a wish to move back to Dublin and looked for opportunities to start a restaurant and bar business in Dublin. In the meantime, he remained operating the restaurant at the Station House until January 2013. He says that he did scouting and formulated plans which crystallised and became the Copper Bar and Grill. The plaintiff contends that in the summer of 2012, in Spain, he and Mr. William Murphy reached agreement on partnership terms in accordance with a proposal set out in an email dated 12th May, 2012, from Mr. Murphy for the proposed restaurant and bar in Dublin.

18. Mr. Murphy disputes that there was any agreement with the plaintiff to form a partnership. The plaintiff deposes that the alleged partnership agreement included that a company would be formed with himself and Mr. Joseph Murphy (presumably as shareholders and directors).

19. It is agreed that pursuant to what the plaintiff contends to have been a partnership agreement and what Mr. William Murphy refers to as “discussions” between himself and the plaintiff, the Company was incorporated on 29th June, 2012. The initial directors were the plaintiff and Ms. Claire Murphy who also were 50% shareholders. The plaintiff does not dispute that it is the Company which carried on the business of the Copper Bar and Grill and that this was the intention pursuant to the alleged partnership agreement.

20. In August 2012, the plaintiff resigned as a director of the Company, and in January 2013, signed a transfer of the shares he held in the Company. There are significant disputes on the affidavits as to the reasons for which he took either of these steps, but it is not in dispute that he did take the steps.

21. The plaintiff, at para. 16 of his first affidavit, sets out in summary the terms which, he contends, form part of the partnership agreement. It is not contended by the plaintiff that the partnership, as such, was to carry on any restaurant or bar business separate and distinct from that to be carried on by the company to be formed. There are additional terms relating to the cessation of the plaintiff’s involvement in the Station House Restaurant and certain financial terms alleged in relation to the plaintiff’s entitlements in respect of the business which became the Copper Bar and Grill.

22. The interlocutory orders sought by the plaintiff insofar as they relate to the alleged partnership are injunctions restraining the defendants from terminating or purporting to terminate the partnership between the plaintiff and Mr. William Murphy and from removing the plaintiff from carrying on the common business or otherwise acting in breach of the partnership agreement. As appears, they are in very broad terms.

23. Counsel for the defendants submits that the plaintiff has not made out on the facts deposed an arguable case that there existed a partnership agreement between the plaintiff and Mr. William Murphy in relation to the business known as the Copper Bar and Grill. He relies, in particular, upon s. 1 of the Partnership Act 1890, which provides in s. 1 insofar as relevant:

“1.-(1) Partnership is the relation which subsists between persons carrying on a business in common with a view of profit.

(2) But the relation between members of any company or association which is-

(a) Registered as a company under the Companies Act, 1862, or any other Act of Parliament for the time being in force and relating to the registration of joint stock companies; or

(b) . . .

(c) . . .

is not a partnership within the meaning of the Act.”

24. On the facts deposed to, it appears to be commoncase that the agreement between the plaintiff and Mr. William Murphy included an agreement that a company be formed and that it was the company which was intended to carry on the proposed restaurant and bar business. I am not satisfied that the plaintiff on the facts deposed to has made out an arguable case that he and Mr. Murphy agreed that they would personally carry on a business with a view to profit. He had made out an arguable case that he was to receive certain financial payments for his contribution to the organisation and establishment of the business to be carried on by the Company. It appears to me unnecessary to determine whether or not that agreement is arguably a partnership agreement having regard to the provisions of s. 1(1) and (2)(a) of the Partnership Act 1890, for the following reasons.

25. Even if it is arguable that the alleged agreement between the plaintiff and Mr. William Murphy constitutes a partnership agreement, I am not satisfied that the plaintiff has established that damages would not be an adequate remedy for the alleged breaches or purported termination which he is seeking to restrain. The terms alleged are terms relating to the financial reward due to the plaintiff. If, at the full hearing of the action, the plaintiff succeeds in establishing that he had an agreement with Mr. William Murphy whereby he was to be paid certain sums over and above his salary as an employee, damages will be an adequate remedy. It is important to note that the plaintiff resigned as a director of the Company in August 2012, and transferred his shares in the Company in January 2013, and those two steps occurred long before the current disputes.

26. In reaching the conclusion I have reached, that the plaintiff has failed to establish that damages would not be an adequate remedy, I have also taken into account the undertaking given by the defendants in relation to the non-dissipation or disposal of the assets and business of the fourth named defendant as set out in para. 10 above.

27. As the plaintiff has not established that damages would not be an adequate remedy for breach of the alleged partnership agreement, in accordance with the Campus Oil principles, the Court must refuse the interlocutory injunctions sought.

Relief

28. The Court will note the undertakings given by the defendants pending the full hearing of the proceedings set out at para. 10 of this judgment in the order to be made on this interlocutory application. The plaintiff’s application for interlocutory relief will be refused. There will be liberty to apply in relation to the undertakings given by the defendants. The Court will give directions for the exchange of pleadings for the purpose of effecting a speedy determination of the matters in dispute between the parties and the matter will be remitted to the Chancery List with leave to apply for an early hearing date.

Hughes -v- Mongodb Ltd

[2014] IEHC 335 Keane J.

Introduction

1. This is an application for a number of injunctions arising from the termination of the plaintiff’s employment by the defendant on the 8th May 2014. The applicant issued proceedings on the 14th May 2014 in which he seeks a declaration that he remains employed by the defendant; various injunctions requiring the respondent to acknowledge and maintain the position as such; and damages for breach of contract, breach of duty, breach of the plaintiff’s constitutional right to fair procedures, and the intentional infliction of emotional suffering. The relevant injunctions are now sought as interlocutory relief in an application brought by notice of motion also issued on the 14th May 2014. The Court heard the application on the 28th May 2014.

Background

2. The applicant commenced employment with the respondent in September 2013, pursuant to the terms of a letter of offer dated the 3rd July 2013, to which the applicant signed his acceptance on the 6th July 2013. His position was that of technical director for the respondent’s operations in Europe, the Middle East and Africa (“EMEA”) in the company’s Ireland office. The respondent is a start-up technology company based in California with 30 employees in its Ireland office and a total of 55 employees based in offices throughout the EMEA.

3. The letter of offer stated that a full contract of employment would be presented to the applicant on acceptance of the offer, but that did not occur. The letter itself was quite detailed. It set out various terms of the employment contract between the parties, including a term that the applicant’s employment would be subject to a six-month probationary period, and another term that the notice period related to that employment would be one month for either party, with the respondent reserving the right to furnish pay in lieu of notice. The letter does not refer to, or describe, any disciplinary process applicable to the plaintiff in the course of his employment.

4. On the 8th May 2014, as he was returning from a business trip, the plaintiff was informed on the telephone by his immediate superior that a decision had been made to terminate his employment. On the same day, the defendant sent a letter to the plaintiff by e-mail confirming that his employment was terminated and that the last day of his employment with the defendant was to be that day, the 8th May 2014. The letter acknowledged the plaintiff’s entitlement to one month’s prior notice of termination under his employment contract, for which one month’s salary was to be paid in lieu. The letter stated that the defendant would provide the plaintiff with a standard reference.

5. On the 9th May 2014, the plaintiff’s solicitors wrote to the defendant asserting that the termination of the plaintiff’s contract of employment was a serious breach of his employment law rights and, in particular, his right to fair procedures. It was further alleged to have been seriously damaging to the plaintiff’s good name.

6. The defendant’s solicitors replied by letter dated the 12th May 2014. They asserted that the plaintiff’s employment was terminated with notice paid in lieu on the 8th May 2014 in compliance with his terms and conditions of employment. The letter goes on to state that the plaintiff’s employment had been terminated because the defendant felt that the plaintiff was not a good fit for the company. It further states that the plaintiff had not been dismissed by reason of being found guilty of any misconduct or poor performance.

7. The plaintiff’s solicitors wrote in response on the 13th May 2014, disputing the defendant’s position that the termination of the plaintiff’ s contract of employment was a no-fault dismissal. They referred to a number of matters that had been discussed in the telephone call between the plaintiff and his immediate manager on the 8th May 2014, which they stated were clearly “performance related issues.” They appeared to contrast this with the defendant’s assertion that the plaintiff was dismissed because he was not a “good fit” for the company. The letter noted that the plaintiff had not been placed on a performance improvement plan; nor provided with any support or mentoring to address the alleged performance issues; nor made subject to any disciplinary procedure in relation to those issues. The claim was repeated that the manner of the plaintiff’s dismissal was hugely damaging to his good name and reputation.

8. The defendant’s solicitors wrote once more on the 14th May 2014. They stated that they were at a loss to understand why the plaintiff’s solicitors would wish to characterise the plaintiff’s dismissal as being by reason of poor performance. They continued that, if the plaintiff’s concern was that any member of the senior management of the defendant was explaining that the plaintiff had been dismissed for poor performance, they could assure him that that was not the case. They further stated that, in addition to a standard written reference, the defendant was willing to provide the plaintiff with an undertaking to the effect that it would remind senior management that the plaintiff was dismissed on a no-fault basis and not by reason of poor performance or misconduct and that no one should state otherwise to any third party.

9. As already noted above, the plaintiff issued proceedings on the same date.

The test

10. The plaintiff accepts – correctly, in my view – that the test for an employment injunction of the kind at issue is that set out by the Supreme Court (per Fennelly J.) in Maha Lingam v Health Service Executive [2006] 17 E.L.R. 137, whereby it is necessary for the applicant to show at least that he has a strong case and that he is likely to succeed at the hearing of the action.

11. Quite apart from setting the bar for the present application, the decision of the Supreme Court in Maha Lingam also identifies certain other discrete obstacles that a person in the position of the present plaintiff must surmount in order to succeed. Fennelly J. described one of them in the following terms (at pp. 140-1):

“[I]n particular, the courts have been slow to grant interlocutory injunctions to enforce contracts of employment. None of this is to deny that there had been developments in the law in recent years and it is necessary to refer very briefly to the nature of these developments. The first is that, in this jurisdiction the development can be traced to the judgment of Costello J. in a case of Fennelly v Assiuanazioni Generali (1985) 3 I.L.T.R. 73 in which an injunction was granted directing an employer to continue payment to the plaintiff, in that case pending the hearing of the action, and that type of jurisdiction was exercised in a number of subsequent cases. It is fair to say however, that there is a very strong trend in those cases to the effect that where a person has a clear right to either a particular period of notice or a reasonable notice or has a fixed period of employment, a summary dismissal or a dismissal without notice or without any adequate notice is a first step in establishing the ground for an injunction in those sort of cases.”

12. Fennelly J. had already noted earlier in his judgment in Maha Lingam (at p. 140 of the report) that, according to the ordinary law of employment, a contract of employment can be terminated by an employer on the giving of reasonable notice of termination and that, according to the traditional law at any rate, though perhaps modified to some extent in light of modern developments, according to the traditional interpretation, the employer was entitled to give notice so long as he complied with the contractual obligation of reasonable notice whether he had good reason or bad for doing it.

13. Fennelly J. went on (at page 141 of the report):

“A second element in cases of that sort is that, where a dismissal is by reason of an allegation of misconduct by the employee, the courts have in a number of cases at any rate imported an obligation to comply with the rules of natural justice and give fair notice and a fair opportunity to reply. This does not apply in the present case either. The defendant is not making any allegation of improper conduct so it is not the case and it is not contended that the results of natural justice apply.”

14. In this case, the plaintiff received the payment in lieu of notice to which he was entitled under his contract of employment. That provision is evidenced by the defendant’s letter of offer, dated the 3rd July 2013, which the plaintiff signed on the 6th July 2013. It is perhaps important to emphasise, as Laffoy J. did in Burke v Independent Colleges Ltd [2010] IEHC 412, that I am endeavouring to extrapolate the essential elements only of the plaintiff’s claim and of the defendant’s answer to it from the affidavits that have been exchanged in the context of the present application and from the written and oral submissions made on behalf of the parties. It is perhaps also prudent to follow the practice of Laffoy J. by entering a caveat at this stage by quoting the following passage from the speech of Lord Diplock in American Cyanamid v Ethicon Ltd [1975] AC 396, which was quoted by the Supreme Court with approval in Campus Oil v Minister for Industry (No. 2) [1983] I.R. 88:

15. The plaintiff appears to be making the case that modern developments have modified the law to the extent that the defendant here was not entitled to give notice in accordance with the relevant term of the contract between the parties if his reason for doing so was bad. The next plank of the plaintiff’s case is that the “no fault” reason given for terminating the contract of employment – i.e. bad fit between the plaintiff and defendant – must be rejected in favour of the plaintiff’s assertion that it was a “poor performance”, and not a “no fault”, termination. Next, the plaintiff contends that “poor performance” was a bad reason for termination because a term must be implied into the contract of employment at issue – in the absence of any such express term – to the effect that any termination of the plaintiff’s contract of employment based on poor performance (quite apart from improper conduct) can only occur subject to the operation of a disciplinary process that applies all of the relevant rules of fair procedures and of natural justice.

16. As a preliminary argument on behalf of the plaintiff, it appears to be suggested that the Court should consider a “diluted approach” to the test in Maha Lingam based on the decision of Hogan J. in Wallace v Irish Aviation Authority [2012] IEHC 178. In that case, the applicant sought an interlocutory injunction to restrain her suspension on full pay by her employer pending the determination of her appeal against a decision to dismiss her. In dealing with the proposition that the court will but rarely grant exceptional relief amounting to the specific performance of an employment contract, Hogan J stated:

“It is, however, also necessary to look at the matter from the standpoint of [the] plaintiff. If an injunction were to be refused by reason of the special factors that have just been mentioned, it would mean that she was denied the benefit of a key contractual protection just at the time when such protection was vitally necessary to protect her interests. Can it be the case that under such circumstances the court must shut its eyes to the underlying merits of the claim and helplessly wash its hands of the claim for interlocutory relief simply because to do so would involve the grant of mandatory relief at the interlocutory stage or because this would involve the specific enforcement of a contract of employment?”

17. A number of observations must be made concerning the passage just quoted. First, in Wallace, Hogan J. was presented with what he described as a net issue of construction concerning the express use of the term “[d]isciplinary action will not be taken pending the outcome of the appeal” in a collective agreement that it was agreed by the parties governed the employment relationship between them. It was that particular net issue of construction to which Hogan J. felt it would be wrong for the court to shut its eyes, in circumstances where the court was satisfied that the plaintiff had very strong grounds for the case that she was making on that point. Second, in that context it is not at all clear to me that the effect of the decision in Wallace is to dilute the test in Maha Lingam in any way, nor of course could it do so as a matter of stare decisis. I do not understand Maha Lingam as authority for the proposition that the court should inflexibly refuse (or “wash its hands of”) any claim for a mandatory injunction to specifically enforce a contract of employment. Rather, I view is as authority for the principle that such mandatory injunctions are exceptional and that applicants must satisfy a strong or clear case test, instead of the prima facie case test normally applicable as part of the Campus Oil principles.

18. It is submitted on behalf of the plaintiff that he has “a key contractual entitlement to a fair and bona fide consideration of any performance issues the defendant may have had with him prior to any termination of his employment on grounds of performance.” It seems to me that the Court would have to be satisfied that the plaintiff has a strong basis in fact or law for that proposition before the interlocutory relief that he is now seeking could be granted.

19. A further fundamental plank of the plaintiff’s application is that the termination of his contract of employment was for reasons of “poor performance”, rather than “bad fit”. The plaintiff has adduced evidence of matters raised with him in the context of a performance review in February 2014 by his immediate superior and which were raised with him again in response to his request for reasons for his dismissal during the telephone call on the 8th May 2014. The plaintiff argues that these matters establish that his dismissal was based on some imputed fault or finding of poor performance rather than on “bad fit” or mutual incompatibility.

20. The proposition that his dismissal was fault based is important to the plaintiff’s case for several reasons. First, it gives him standing to make the legal argument that the traditional common law position has been reversed such that an employer is no longer entitled to terminate a contract of employment in accordance with the relevant notice provision if his reason for termination can be established and can be shown to be bad. Second, it allows him to make the argument that the reason for the termination of his employment contract was bad, when considered in conjunction with the assertion that there is an implied term in his contract of employment that any fault based dismissal can only be effected in accordance with a disciplinary procedure conducted in accordance with the requirements of natural and constitutional justice. Third, it allows him to claim reputational damage arising from his dismissal (particularly in the context of the balance of convenience, should it arise).

21. The difficulty with the first of the arguments just described is that there does not appear to be any authority for it. Indeed, the decision of Finlay Geoghegan J. in Bradshaw v Murphy [2014] IEHC 146 provides strong authority to the contrary. In that case, the plaintiff claimed that he had been dismissed on grounds of misconduct in the face of a requirement for fair procedures. The defendants opposed the plaintiff’s application for an injunction restraining his dismissal on the discrete ground that they could not be inhibited, pending the trial of the action, from exercising their common law entitlement to terminate the plaintiff’s employment in accordance with the applicable contractual provisions concerning reasonable notice, whatever might be the outcome of his claim that his original dismissal was wrongful. Finlay Geoghegan J. accepted that argument and, having noted the defendants’ undertaking not to dismiss the plaintiff on grounds of misconduct, refused the plaintiff’s application for an interlocutory injunction restraining his dismissal pending trial.

22. A problem with the second argument, leaving aside for one moment the potentially vexed question of whether a fixed boundary can ever be drawn between “mutual incompatibility” and “individual fault” in any area of unsuccessful human interaction, is that the plaintiff faces the more fundamental difficulty that the defendant does not attempt to stand over the dismissal at issue as fault based in the smallest degree. Apart from the plaintiff’s partially disputed evidence concerning the substance of his telephone conversation with his immediate superior on the 8th May 2014, there is no evidence that the defendant, or any of its servants or agents, has represented to the plaintiff or to any other person whosoever that the plaintiff’s dismissal was fault based. Indeed, the defendant has adduced evidence that it is willing to provide the plaintiff with a written reference that confirms the defendant’s confidence in the plaintiff’s abilities, and has confirmed that it will reiterate (in so far as the plaintiff feels it is necessary) to whom it may concern that his termination did not arise from any fault, misconduct or poor performance on his part.

23. In this respect, the defendant relies on the following passage from the judgment of Clarke J. Carroll v Bus Atha Cliath/Dublin Bus [2005] 4 IR 184 (at 209):

“If the stated reason for seeking to dismiss an employee is an allegation of misconduct then the courts have, consistently, held that there is an obligation to afford that employee fair procedures in respect of any determination leading to such a dismissal. That does not alter the fact that an employer may still, if he is contractually free to do so, dismiss an employee for no reason. It simply means that where an employer is obliged to rely upon stated misconduct for a dismissal or, where not so obliged chooses to rely upon stated misconduct, the employer concerned is obliged to conduct the process leading to a determination as to whether there was such misconduct in accordance with many of the principles of natural justice.”

24. In this case the defendant insists that it has relied on its contractual entitlement to dismiss the plaintiff subject to the appropriate payment in lieu of notice and that it has not sought, and certainly is not now seeking, to rely on poor performance, much less misconduct, as the reason for the termination of the plaintiff’s employment contract.

25. Even if it were assumed, for the purpose of argument, that the defendant is (as the plaintiff appears to suggest) being disingenuous in the reason it gives for the termination of the plaintiff’s employment, I do not believe that there is any authority, and certainly none has been produced to me, for the proposition that a bad reason that informs, but which is not relied upon to justify, the termination of an employment contract in accordance with its terms, renders that dismissal wrong in law.

26. In evident reliance upon the proposition that a strong case can be established that the reason relied upon for the plaintiff’s dismissal was his alleged poor performance, the plaintiff cites the following passage from the judgment of Geoghegan J. (nem. diss.) in the Supreme Court decision of Sheehy v Ryan [2008] 4 IR 258 (at 265):

“The trial judge then said that the position at common law is that an employer is entitled to dismiss an employee for any reason or no reason on giving reasonable notice. I would slightly qualify that by saying that it does depend on the contract but in the absence of clear terms to the contrary which are unambiguous and unequivocal, that clearly is the position.”

27. The plaintiff submits that, once it is accepted that the reason for the plaintiff’s dismissal was his perceived poor performance, a strong and clear case is also made out that the plaintiff’s contract contains a clear, unambiguous and unequivocal term that he can only be dismissed for that reason subject to a disciplinary process conducted in accordance with the requirements of natural and constitutional justice. But there is no express term to that effect in the letter of offer that evidences the plaintiff’s contract of employment with the defendant. That means that the Court would have to be satisfied that a provision in general terms to that effect is to be implied, or read into, that contract.

28. In support of that argument, the plaintiff relies upon the decision of the High Court in Naujoks v Institute of Bioresearch [2007] ELR 25, which, in effect, the plaintiff invokes as authority for the proposition that dismissals based on allegations of poor performance attract the same requirement for disciplinary procedures conducted in accordance with natural and constitutional justice as dismissals based on misconduct. However, it seems to me that Naujoks is a decision based very much upon its own facts. The case arose from the termination of the plaintiff’s contract as Chief Executive Officer (“CEO”) of the defendant company. The terms of the relevant contract provided for two forms of termination of employment: termination on notice and summary termination. The former could not occur without six months prior notice in writing. The latter could occur with immediate effect by written notice but only in one of a limited number of specified circumstances. Those circumstances included breach of the plaintiff’s obligations under the agreement; failure to discharge his duties properly; incapacity; dishonesty, and so forth.

29. In other words, it was the specific terms of the contract of employment at issue in Naujoks that made “failure to properly discharge duties” (or, arguably, “poor performance”) directly equivalent to dishonesty (i.e. “misconduct”) in that case, because, in either event, the plaintiff was deprived of the six months notice in writing of termination of his employment to which he would otherwise be entitled. Evidence was adduced on behalf of the defendant that the plaintiff’s management style and communications with staff had led to “serious human resource issues” arising. Laffoy J. concluded (at pp. 33-4):

“It seems to me that it is not far removed from making a judgment that there was a failure on the part of the plaintiff to properly discharge his duties as CEO, which would entitle the defendants to summarily dismiss the plaintiff, but subject to affording him fair procedures. On this point, I could put the matter no further than that, having regard to the facts disclosed in the affidavits before the court, it is not an answer to the plaintiff’s contention that he should have been, but was not, afforded fair procedures that it is the defendant’s stated position that his contract was not terminated on the grounds of misconduct.”

30. It seems to me that the decision of the High Court in Naujoks was based very firmly on the draughtsmanship of the contract at issue whereby “failure to properly discharge duties” was treated with the same gravity – and made subject to the same procedural consequences – as “dishonesty”, thereby leading to the conclusion that the invocation of the particular form of dismissal under the relevant term of the employment contract applicable to both circumstances should attract the requirements of fair procedures in either case. It does not seem to me that the case is authority for the much broader proposition that a dismissal on grounds of performance is to be treated as equivalent to a dismissal on grounds of misconduct in every case thereby attracting an entitlement to fair procedures in either case that is to be implied into every contract of employment.

Conclusion

31. For the reasons set out above, I have come to the conclusion that the plaintiff has not made out a case for the grant of an interlocutory injunction because he has not met the first leg of the test by showing that he has a strong case and is likely to succeed at the hearing of the action and, for that reason, it is not necessary for the court to go on to consider either the adequacy of damages or the balance of convenience.

32. The application is refused.

Christopher Giblin v Irish Life and Permanent plc

[2010] 21 E.L.R. 173
(Laffoy J.)

Factual background
When the events the subject of these proceedings commenced, the plaintiff had been an employee of the defendant for almost 30 years. Latterly he was the manager of the defendant’s branch at College Green, Dublin, 2.

By letter dated August 31, 2009 from the defendant (as Permanent TSB) the plaintiff was informed that the defendant was investigating various accounts held in his own name or with which he was associated. He was informed that he was being placed on special leave with full pay until a full investigation had been completed. It was emphasised that the action being taken was “not a form of disciplinary action and should not be regarded as a pre-judging of the issues” . In a subsequent letter from the defendant’s solicitor to the plaintiff’s solicitors *177 dated September 4, 2009, in which it was acknowledged that the defendant accepted that the plaintiff had “a long and unblemished record” , the provisions of the defendant’s document entitled “Disciplinary Procedures” (the Disciplinary Procedures), a copy of which was enclosed, on which the defendant was relying in conducting the investigation and in placing the plaintiff on special leave were outlined.

In the Disciplinary Procedures the definition of “disciplinary action” encompasses three types of sanction: warnings, oral or written; action short of dismissal, which covers 10 different types of sanction from withdrawal of privileges to transfer; and dismissal with or without notice. The defendant’s entitlement to place an employee on special leave derives from the following provision:

“Where serious misconduct is suspected the staff member may at the [defendant’s] discretion be placed on special leave with full pay as a precautionary measure pending investigation of the matter. This is not a form of disciplinary action.”

That is the provision which the defendant invoked when issuing the letter of August 31, 2009.

The plaintiff was given particulars of the nature of the investigation into “suspected serious misconduct” being carried out by the defendant in a letter dated September 14, 2009 from the defendant’s solicitors. The nature of the inquiries being carried out by the internal audit department of the defendant and the accounts, account holders and transactions being enquired into were summarised. The plaintiff was informed that, if on receipt of the internal audit report the defendant was of the view that allegations would have to be put to the plaintiff, “the investigation would be conducted by” Mr Frank Singleton and Mr Ger Mitchell (the investigation team), each of whom described himself as “a human resources executive” in his replying affidavit filed in response to this application.

Particulars of additional issues being reviewed by internal audit in the continuing enquiries were furnished to the plaintiff’s solicitors on September 21, 2009. By letter dated September 22, 2009 from the defendant’s solicitor, the plaintiff was informed that the defendant had requested the investigation team “to investigate suspected serious misconduct” by the plaintiff. The plaintiff was informed that specific allegations would be sent by the investigation team to him on or before September 25, 2009.

On September 25, 2009 the investigation team sent, in a letter to the plaintiff, over 50 pages of queries, which the plaintiff has averred contained a total of 907 queries covering the period from January 2007 to August 31, 2009. The letter outlined various procedures, codes and policy documents of the defendant, compliance with which in relation to various transactions the subject of the *178 queries was being investigated. The plaintiff was asked to attend before the investigation team in Dublin on October 9, 2009 to deal with the issues raised in the letter. The plaintiff was informed that he was entitled to have a representative to accompany him. He was also informed that, after hearing his answers to the questions outlined, the investigation team would decide whether or not his conduct “amounts to serious misconduct and if so, what sanctions if any should be applied, which sanctions could include your dismissal” .

The arrangements for the plaintiff to respond to the queries of the investigation team were subsequently changed. The circumstances are not material in the context of the application with which the court is concerned, although they may be material at the trial of the action. In any event, in a comprehensive letter of October 27, 2007, comprising 29 pages, the plaintiff’s solicitors, on his behalf, answered each of the queries raised by the investigation team. That response was met by a letter dated November 6, 2009 from the defendant’s solicitor raising further queries and seeking clarifications on behalf of the investigation team. The queries and clarifications sought ran to 11 pages. The plaintiff’s solicitors were informed that the investigation team required written responses before the close of business on November 13, 2009. Once again the arrangements were varied at the behest of the plaintiff, in that, ultimately, the plaintiff’s solicitors were informed that the investigation team would meet on November 19, 2009 and that the plaintiff could give verbal responses to the queries contained in the letter of November 6, 2009. The plaintiff was warned in a letter of November 17, 2009 that, if he elected not to attend the meeting, the investigation team would proceed on the basis of the responses set out in the letter dated October 27, 2009 from his solicitors.

The plaintiff did attend the meeting on November 19, 2009 with his solicitor and counsel, but it was made clear that, while he was willing to co-operate with the investigation, he was attending under protest. The position of the defendant in relation to the meeting was that the plaintiff had refused to furnish the clarifications and explanations sought. By letter dated November 23, 2009, the defendant’s solicitor, on behalf of the investigation team, requested that the information sought in the letter of November 6, 2009 be furnished by the following day, November 24, 2009, as the plaintiff’s solicitors had stated would be done at the meeting. A comprehensive letter of November 24, 2009 from the plaintiff’s solicitors, comprising about 30 pages, dealt with the matters raised in the letter of November 6, 2009.

The next letter from the defendant’s solicitor to the plaintiff’s solicitors has been represented by the plaintiff as a watershed in the process from August 2009 onwards which led to these proceedings. It was a letter dated November 25, 2009 from the defendant’s solicitor to the plaintiff’s solicitors sending the specific allegations which the investigation team were putting to the plaintiff. The letter was accompanied by 26 pages of allegations, which the plaintiff has *179 averred listed 340 allegations, including alleged breaches of certain procedures, policy documents and the defendant’s Code of Ethics, which the plaintiff has averred he does not recollect ever seeing or reading. The plaintiff was informed that a meeting had been fixed for December 14, 2009 to enable the plaintiff to give his responses to each and every allegation. The plaintiff was informed that the investigation team, after considering the plaintiff’s responses and any submissions made on his behalf, would “consider if any of his actions and/or omissions amount to serious misconduct and if yes what sanctions, if any, should be imposed up to and including dismissal” .

The response of the plaintiff’s solicitors, by letter dated November 27, 2009, was that, given that the plaintiff had been furnished with allegations of misconduct, it was clear that the investigation had turned into disciplinary proceedings and, in the circumstances, the investigation team could not continue its investigation. To do so would contravene the Disciplinary Procedures, it was asserted. The plaintiff’s solicitors sought confirmation that the investigation was at an end and that the defendant would proceed in accordance with the Disciplinary Procedures. The defendant did not accept that proposition and, by letter dated December 1, 2009 from the defendant’s solicitor, the plaintiff was informed that the investigation was not fully complete, as there were a number of clarifications which the investigation team wished the plaintiff to furnish. A six page list of “clarifications required” was enclosed.

By letter dated December 10, 2009, the plaintiff’s solicitors reiterated their contention that the investigation team could not continue “its purported investigation” once allegations of misconduct had been made against the plaintiff. The defendant was requested to cancel the proposed meeting on December 14, 2009. The defendant’s solicitor’s response, by letter dated December 14, 2009, was that the issues raised on behalf of the plaintiff could be raised with the investigation team at the meeting.

The meeting of December 14, 2009 went ahead. The plaintiff attended with his solicitor and counsel. The plaintiff and his legal advisers maintained the position that had been set out in the letter of December 10, 2009, contending that an investigation cannot be run in parallel with a disciplinary hearing. The plaintiff did not answer any questions. The plaintiff’s position is that his counsel asked the investigation team to consider its position and revert with its proposal as to how to proceed.

Following that meeting, the defendant’s solicitor wrote to the plaintiff by letter dated December 22, 2009, which the plaintiff has averred was received during the Christmas break, in which the defendant’s version of the history of the process was outlined, ending with an assertion that the plaintiff had failed to co-operate with the investigation team in a manner which was consistent with his obligations as an employee of the defendant. It was stated that the plaintiff would be given “one final chance” to answer the allegations set out in the letter of November 25, *180 2009 at a meeting with the investigation team to be held on January 14, 2010. It was stated that, if at that meeting the plaintiff should not answer each and every allegation, the investigation team would reach a view on his acts and omissions based on the substantial documentation already furnished to him on September 25, 2009 and the responses given on his behalf by his solicitor in the letters of October 27, 2009 and November 24, 2009. It was made clear that there would be no further adjournment of the matter. Significantly, the letter did not address the issues raised on behalf of the plaintiff in the letter of December 10, 2009 or at the meeting of December 14, 2009.

In their response of January 13, 2010 the plaintiff’s solicitors asserted that the proposed meeting was ultra vires and that they had advised the plaintiff not to attend. In fact, at that stage, the plaintiff had initiated these proceeding by a plenary summons which issued on January 8, 2010.

The meeting went ahead at 11a.m. on January 14, 2010 without the attendance of the plaintiff or anyone on his behalf. Following the meeting, by letter dated January 14, 2010 from the defendant (as Permanent TSB) and signed by the members of the investigation team, Mr Singleton being designated “employee relations manager” and Mr Mitchell being designated “area manager” , which was sent directly to the plaintiff and e-mailed to the solicitors at 12.28p.m., the plaintiff was informed that the investigation team were of the view that his behaviour amounted to serious misconduct and that this serious misconduct was a gross breach of the duty of trust that the plaintiff, as an experienced branch manager, owed to the defendant, as his employer, and that he should be dismissed as an employee of the defendant. His employment with the defendant would be terminated with effect from close of business on January 25, 2010. However, the termination of his employment would not take effect on that date if he were to appeal the decision of the investigation team. He was advised that the appeal should be addressed to the chief executive of Permanent TSB to be received by him prior to close of business on January 25, 2010. Otherwise the decision of the investigation team would be implemented without further notice. The plaintiff was also informed that any appeal “is as per the company’s Disciplinary Process against the sanction imposed by us and it is not an appeal against our findings of fact” .

While the process was continuing through the last quarter of 2009, obviously other matters were being addressed by the defendant which, would, in any event, have affected the plaintiff’s employment with the defendant. The plaintiff was informed by letter dated December 3, 2009 from the defendant’s solicitor “as a matter of courtesy” that the College Green branch was one of the branches which the defendant would be closing in the following months as part of the rationalisation of its branch network, that the staff of the College Green branch were being so informed on that day, and that the defendant would be seeking applications for a “voluntary severance package” , but reserving the right of the *181 defendant to decide which applications it would accept.

Disciplinary procedures
The Disciplinary Procedures document is not a complex document. Having defined “disciplinary action” it outlines two processes. The first is for cases regarding performance and competence or misconduct where disciplinary action in the form of a warning may be warranted. The second is for cases where disciplinary action warranting either action short of dismissal or dismissal with or without notice is warranted. The process applicable to the second category of cases is outlined as follows:

“(i) The staff member will be advised of the alleged offence in writing. The staff member may make such oral or written representations as he/she sees fit, and may if he/she wishes obtain the assistance of a union and/or other representative from work and be accompanied by such representative at any interview held for the purpose of making oral representation. The [defendant] shall review all representations made and give notice in writing to the staff member of its decision. The [defendant] shall give its decision where possible within ten working days from the making of such representations.
(ii) If the staff member wishes to appeal against such decision, he/she shall give notice of appeal in writing to the HR department or an executive nominated by the chief executive, setting out the reasons for the appeal, within 10 working days after receipt of notice of the said decision.
(iii) An appeal shall not constitute a fresh hearing. It will be heard by a senior executive nominated by the chief executive and shall take place as soon as possible. Disciplinary action including dismissal will not be taken pending the outcome of the appeal. At the appeal the staff member may be accompanied by his/her representative. The [defendant] shall give notice in writing to the staff member of the decision on the appeal. The decision on the appeal shall, where possible, be given within 10 working days from the hearing.
(iv) Dismissal is the final stage of the disciplinary procedure. The decision to dismiss is taken following a thorough investigation of all the relevant circumstances. Depending on the circumstances dismissal may be with or without notice. In the event of dismissal preceded by notice, the company has the right to require the staff member to take garden leave, that is, not to attend at his/her place of work pending expiry of the notice period or to pay in lieu of notice.”
It may be fairly observed, in my view, that the Disciplinary Procedures are elemental, particularly when applied in the context of a process to determine whether a sanction as severe as what amounts to summary dismissal in effect should be imposed on a senior manager who has been in the employment of the defendant for 30 years.

The application
On this application the plaintiff seeks interlocutory injunctions pending the trial of the action restraining the defendant from:

(1) terminating or dismissing the plaintiff or from taking any steps to implement the purported dismissal of, or any decision adverse to, the plaintiff, on foot of its purported investigation and/or disciplinary procedure into the plaintiff;
(2) imposing any sanctions upon the plaintiff, including dismissal, without full compliance by the defendant with natural and constitutional justice and fair procedures and the defendant’s own procedures;
(3) giving effect to the purported dismissal of the plaintiff and from stopping the payment of his salary or from announcing the termination of employment of the plaintiff;
(4) relying on or using suspension, disciplinary procedure or findings therein and/or dismissal of the plaintiff in any decision concerning his employment or termination thereof;
(5) conducting any disciplinary or appeal proceedings concerning the plaintiff unless conducted in accordance with natural justice and fair procedures by impartial independent persons.
The plaintiff also seeks mandatory orders directing that the defendant:

(1) if necessary to pay salary and “pension contributions, etc.” and all monies due to the plaintiff;
(2) to reinstate the plaintiff to his position with the defendant.
At the hearing of the application it was emphasised by counsel for the plaintiff that, at the trial of the action, the plaintiff will be seeking declaratory relief, including a declaration that the decision reached by the defendant on August 31, 2009 suspending the plaintiff from his employment is null and void and of no effect and a declaration that any decision affirming or continuing the said suspension or imposing any sanction upon or dismissing the plaintiff is null and void and of no effect. At the hearing the court gave leave to amend the endorsement of claim on the plenary summons to include the words “or dismissing” in para. 4.

By order of the Court (MacMenamin J.) made on January 21, 2010, on an ex parte application, the defendant was restrained from giving effect to the purported dismissal of the plaintiff and from stopping the payment of his salary or from announcing the termination of his employment. That order remains in place.

Issues raised by plaintiff
In broad terms, the plaintiff’s case is that the process leading to his dismissal and the making of the decision to dismiss were not conducted in accordance with fair procedures and natural and constitutional justice. There are two distinct *183 limbs to the plaintiff’s complaints. It was submitted on his behalf that the process was fatally flawed both in the lead up to the decision to dismiss him and in the making of that decision, so that the decision was null and void. Secondly, it was submitted that the plaintiff has not been afforded the type of appeal process to which he is entitled against that decision under the Disciplinary Procedures or a fair appeal process.

On the first limb, it was submitted on behalf of the plaintiff that the dismissal of the plaintiff was null and void because it was unfair and flawed on a number of grounds, in particular:

(a) the dismissal decision was made by the same persons, the investigation team, who conducted the investigation;
(b) it was the investigation team who found that there was a case to answer, who formulated the allegations or accusations;
(c) the decision to dismiss the plaintiff was made in such a short space of time that the investigation team cannot have come to a proper and fair decision or conclusion regarding approximately 340 allegations allegedly proven;
(d) while the defendant had sought further clarification and information, the plaintiff was denied the opportunity to provide the defendant with written answers and was dismissed without the necessary information, because the plaintiff was attempting to obtain information from third parties in relation to queries which the plaintiff had not answered;
(e) the plaintiff was deprived of fair procedures;
(f) without prejudice to the plaintiff’s complaints in relation to the process up to the making of the decision to dismiss, crucially the plaintiff should have been given an opportunity to provide written or oral representations or submissions to the defendant on possible sanctions;
(g) the “so called” investigation team did not have power to dismiss the plaintiff;
(h) the plaintiff had a right to expect that he could only be dismissed by a senior officer of the defendant bank who had been uninvolved in, and was untainted by, the earlier process.
Counsel for the plaintiff summarised the outcome of the process as that the investigation team formulated the queries, made the accusations, decided on guilt, dismissed the plaintiff summarily and in doing so acted first as investigator and then successively as prosecutor, judge and executioner.

On the second limb, it was submitted that both in relation to the time which the investigation team prescribed within which he was required to serve notice of appeal and the limited nature of the appeal indicated, the provisions of the Disciplinary Procedures were not complied with and the process failed to provide for fair procedures.

Further, it was submitted on behalf of the plaintiff that the process provided for in the Disciplinary Procedures does not make provision for a fair and proper *184 appeal and that, in the circumstances, this is a situation in which the court should intervene notwithstanding that the plaintiff has initiated an appeal without prejudice to these proceedings.

The defendant disputed all of the foregoing assertions on the part of the plaintiff and stood over the decision of January 14, 2010.

The law
As was pointed out by Clarke J. in Bergin v Galway Clinic Doughiska Ltd [2008] 2 I.R. 205 at 212, the jurisprudence on employment injunctions has been in a state of evolution. Nonetheless, the legal principles which come into play on this interlocutory application, in my view, are well settled. On this application, as the court has had the benefit of comprehensive written submissions from both sides, I consider a summary of the relevant principles is all that is necessary.

First, in conducting a process to determine whether the plaintiff should have a serious sanction, including the most serious sanction available, namely, dismissal, imposed on him, the defendant must act in accordance within the terms of the plaintiff’s contract of employment, including the implied term that the plaintiff, as employee, is entitled to the benefit of fair procedures (Glover v B.L.N. Ltd [1973] I.R. 388). However, it is well recognised that what fair procedures demand depends on the terms of the plaintiff’s employment and the circumstances surrounding his proposed dismissal (Mooney v An Post [1998] 4 I.R. 288; [1998] E.L.R. 238).

Secondly, where the plaintiff is seeking what is in effect a mandatory injunction, what Clarke J. described in the Bergin case (at p. 213) as “injunctive relief which would have, to some extent, the effect of continuing his or her employment” , the standard by reference to which the court determines whether to grant the relief is whether the plaintiff has established that he has a strong case that he will be successful at the trial of the action (Lingham v Health Service Executive [2006] E.L.R. 137). As Clarke J. pointed out in the Bergin case (at p. 214), “an order remains a mandatory order, even though the plaintiff claims that a purported termination of his employment is unlawful by reason of a finding of wrongdoing having been arrived at in breach of the principles of natural justice” , because, however couched, the substance of the relief is the same.

Thirdly, as with all other applications for interlocutory injunctions, in deciding to grant an injunction in an employment context, the court must be satisfied that damages would not be an adequate remedy for the plaintiff and that the balance of convenience favours the grant of the injunction. As a general proposition, in the context of employment injunctions, the jurisprudence of the courts has developed over the last quarter century so that it is generally considered that the prospect of an award of damages following the trial of the action is not an adequate remedy for a successful plaintiff who has been deprived of his salary pending the trial of the action. In relation to where the balance of convenience *185 lies, because of the nature of the employer/employee relationship, that issue must be determined having regard to the precise form of relief sought by the plaintiff and will bear on the type of relief the court is prepared to grant.

Application of the law to the facts
Whether formulated as prohibitory or mandatory, in essence, the relief claimed by the plaintiff on this application is mandatory relief. What he is seeking is that he continues in the employment of the defendant until the trial of the action and is paid his salary. Accordingly, the crucial questions are whether:

(1) the plaintiff has established that he has a strong case that the decision to dismiss him was made in breach of his contractual entitlement to fair procedures and, accordingly, cannot stand, and
(2) the court should intervene now notwithstanding the existence of his right of appeal under the Disciplinary Proceedings.
For the reason set out below, I am of the view that he has established that he has a strong case on both questions.

What the court is concerned with is not whether the decision made on January 14, 2010 was right or wrong. Unusually for this type of case, because of the sheer volume of the allegations against the plaintiff, it is not possible to form any view whether the behaviour of the plaintiff amounted to serious misconduct, as the investigation team found, and, even if it were, it would be inappropriate to do so. All the court is concerned with is the process by which the investigation team reached their conclusion. In considering the process, it seems to me that the court must have regard to the fact that the defendant has regulatory and statutory responsibilities, as well as responsibilities to its customers, and that it is entitled to ensure that, where an investigation into the conduct of an employee is being conducted, the investigation is not stonewalled by the employee. The evidence before the court does not suggest that the plaintiff and his legal advisers were dilatory in responding to the voluminous queries from the investigation team. The evidence suggests that the plaintiff and his legal advisers co-operated with the investigation in as timely a fashion as was reasonably possible until they raised the issue as to the propriety of the investigation team conducting the process after the allegations were furnished to the plaintiff.

It is not to be inferred from this decision that I consider that it is not appropriate for executives of the defendant who are involved in the human resources aspects of the defendant’s management to conduct the type of investigation which was conducted in relation to the plaintiff. Nor is it to be inferred that I am of the view that the person or persons who conduct the “thorough investigation” to be conducted under para. (iv) of the Disciplinary Procedures in all cases should not be the decision maker as to whether the conduct of the employee *186 being investigated warrants a serious sanction such as dismissal. A one-stage inquisitorial process may be appropriate in many cases. However, in this case there is a strong argument that, because of the manner in which the entire process was conducted up to January 14, 2010, the members of the investigation team should not have made the decision on whether the allegations against the plaintiff gave rise to serious misconduct so as to warrant dismissal and, in any event, they should not have made the decision in the absence of the plaintiff and his representatives in the circumstances which then prevailed.

On the evidence of the correspondence from the defendant to the plaintiff and his solicitors and on the evidence of the dealings of the defendant and the investigation team with the plaintiff, it seems to me that the management of the defendant and the members of the investigation team were manifestly confused as to the role and function of the investigation team at the various stages in the process. In the letter of September 14, 2009 the plaintiff was told that, on the basis of the internal audit report, the defendant would determine whether allegations would be put to the plaintiff and it nominated the investigation team to conduct the investigation, which suggests that the investigation team role related to the post-allegation phase. Yet when the investigation team commenced their involvement, their contention was that they were conducting an investigation. To add to the confusion, in requesting the plaintiff to attend the meeting on October 9, 2009, apparently, the investigation team envisaged that the decision as to whether the plaintiff’s conduct amounted to serious misconduct would be made even though the plaintiff had not yet been informed of specific allegations and that remained the position until November 25, 2009. Even after November 25, 2009, when the specific allegations had been furnished to the plaintiff, the members of the investigation team clearly considered that their investigation was still ongoing.

When one considers the process alongside the provisions of the Disciplinary Procedures, which I have quoted earlier, there is a strong argument that what was happening before November 25, 2009 was the “thorough investigation” provided for in para. (iv) and that the disciplinary process based on alleged misconduct only commenced on November 25, 2009 when the specific allegations were furnished to the plaintiff, because it is clearly envisaged in para. (i) that the employee be given specific allegations in writing and that he or she has an opportunity to respond to those specific allegations. What the decision-maker has to consider in determining whether disciplinary action is warranted is the response of the employee to the specific allegations and any representations made by the employee or on his or her behalf. In the light of what had happened previously, a strong argument can be made that the plaintiff’s legal advisers were justified in the stance they took at the meeting of December 14, 2009. In any event, once they adopted that stance, the investigation team should have addressed the serious issue raised on behalf of the plaintiff as to whether its members should make *187 the decision on disciplinary action against the plaintiff. Having failed to do so, a strong argument can be made that they should not have proceeded to make the decision in the absence of the plaintiff or his legal representatives.

Moreover, the default position adopted by the defendant in allowing the plaintiff the “one final chance” compounds the manifestly confused nature of the approach of the investigation team, in that they indicated that their decision would be made on the basis of the plaintiff’s responses of October 27, 2009 and November 24, 2009 to the investigation queries raised by them on September 25, 2009, not on the basis of the specific allegations furnished to the plaintiff on November 25, 2009.

Finally, the alacrity with which the members of the investigation team made their decision on January 14, 2010 is strongly suggestive of prejudgment on their part, given the volume and range of allegations made against the plaintiff.

In summary, the investigation team made their decision at a time when the plaintiff’s legal advisers were challenging their entitlement to do so and had not responded to the specific allegations of misconduct because of that challenge. They made the decision without having had a response to the additional information they sought after furnishing the specific allegations, which they asserted was required as part of the ongoing investigation, which presumably they considered was necessary. They did not address the plaintiff’s challenge to their continuation in the process after the meeting of December 14, 2009 but made their decision notwithstanding that challenge in the absence of the plaintiff or his representatives in what could be strongly argued was an unreasonably short period after December 22, 2009, given the intervention of the Christmas holiday period. Having regard to those factors, I consider that the plaintiff has a strong case that he was deprived of fair procedures and that a fair hearing was imperilled by the conduct of the investigation team.

In relation to the appeal process, in attempting to truncate the time within which the plaintiff was entitled to appeal their decision from 10 working days to six working days, the investigation team acted in breach of the Disciplinary Procedures. Further, in purporting to limit the appeal to an appeal against sanction only, in my view, the investigation team attempted to deprive the plaintiff of his entitlement under the Disciplinary Procedures. Just because para. (iii) provides that an appeal shall not constitute a fresh hearing does not mean that, in the event of an appeal, a decision that the employee has been guilty of misconduct as found by the decision maker at first instance is not subject to review. I am satisfied that the plaintiff has established that there is a strong case that he is not being afforded the type of appeal to which he is contractually entitled and that it is proper that the court should intervene at this juncture.

Turning to the question of the adequacy of damages, I am satisfied on the evidence that an award of damages, if he is successful at the trial, would not constitute adequate recompense to the plaintiff for the loss of his salary and other *188 benefits from January 14, 2010. The plaintiff has averred that he is a married man, aged 48 years, with four children age 20, 18, 15 and 13. He depends on his salary and is concerned about his “pension position” , which I understand to mean his pension contributions. Apart from that, if the plaintiff succeeds at the trial of the action in establishing that the decision to dismiss him was null and void, in my view, the actual and potential damage to his reputation and to his future career prospects which he is likely to suffer in consequence of being perceived to have been summarily dismissed from the senior position of branch manager of a financial institution for misconduct, is not something that would necessarily be adequately compensated by an award of damages.

In relation to the question of the balance of convenience, I am satisfied that it favours the grant of an interlocutory injunction. However, given that the Disciplinary Procedures provide for the placing of an employee on special leave with full pay pending investigation of allegations of serious misconduct against the employee, and that the defendant availed of that provision against the plaintiff on the basis of a suspicion of serious misconduct on his part, albeit supra protest from the plaintiff, I consider that the court should ensure that such relief as is granted to the plaintiff on this interlocutory application is formulated in such a manner as not to deprive the defendant of its entitlement to continue the plaintiff on special leave until these proceedings are determined or until further order.

Order
In broad terms, the form of order which I propose granting is an order restraining the defendant from dismissing the plaintiff until further order subject to proviso that the defendant may continue the placement of the plaintiff on special leave with full pay in accordance with the Disciplinary Procedures until further order. I will hear submissions from the parties as to the precise form of order and in relation to case management of the action with a view to expediting the trial.

Con Davis v Sean Walshe v and Plynth Limited t/a Dew Wholesale

[2003] 14 E.L.R. 1
(Murphy J)

Issue
In this employment case the applicant seeks an interlocutory injunction. The applicant obtained an interim injunction on April 4, 2002 restraining the defendants from terminating the applicant’s contract of employment or taking any steps whatsoever on foot of a purported dismissal or suspension of the applicant; interfering with the employment of the applicant or interfering with the discharge by the applicant of the role and functions of sales director; interfering with the remuneration of the applicant or other emoluments of the applicant in his capacity as sales director; publishing in any manner whatsoever any statement or other communication to the effect that the applicant had been dismissed from his employment had been or would be terminated and appointing any person to the position of sales director or to carry out the functions of the same save with the consent of the applicant or by order of the court. An undertaking as to damages was given.

Interlocutory relief was sought in the same terms.

The general endorsement of claim dated April 4, 2002 originally claimed those injunctive reliefs together with damages for breach of constitutional rights, damages for reckless infliction of emotional suffering, trauma, distress and upset, damages for conspiracy, damages for defamation and injurious falsehoods, together with a claim for accounts of sums found to be due and owing to the plaintiff. By amended plenary summons bearing the same date the plaintiff claimed as follows:

1. A declaration that the plaintiff is and continues to be in the employment of the first named defendant as its sales director.
2. A declaration that the purported dismissal of the plaintiff communicated to him on March 25, 2002 is null and void and of no efficacy being in breach of the principles of natural and constitutional justice and being in breach of the plaintiff’s contract of employment with the defendant.
3. A statement of claim delivered April 29, 2002 prayed for such declara *3 tions and injunctive reliefs. This statement described the first defendant as the principal shareholder and managing director of the second defendant.
Facts
Both the statement of claim and the grounding affidavit for this motion refer to the first named defendant on his own behalf and on behalf of the second named defendant inducing the plaintiff to enter into a contract for services for 12 months. On satisfactory completion of such contract the plaintiff would then commence working with the second named defendant as an employee and would receive 25% of the shareholding in the second named defendant from the first named defendant in consideration of the plaintiff entering into the aforesaid contract. This was confirmed to the plaintiff at the end of the first year of his relationship with the defendants.

On Monday, March 25, 2002 the plaintiff alleges that the first named defendant wrongfully and in breach of the plaintiff’s constitutional rights to natural and constitutional justice attempted to terminate the plaintiff’s said contract of employment. The plaintiff was informed that he was suspended without pay with immediate effect. This was confirmed in writing. The plaintiff did not and does not accept the aforesaid repudiation but contends that his contract of employment is extant. It is not capable of being terminated save on the giving of reasonable notice of 12 months and save only for valid reasons. There are no objective grounds for any loss of trust or confidence between the parties. The plaintiff contends that by reason of the wrongful and unlawful acts he has suffered loss, damage, inconvenience and expense, including damage to his reputation and an inference that he was guilty of some misconduct justifying his immediate removal.

Two days later, on March 27, 2002 the plaintiff was offered redundancy or another position as sales representative as the company needed to cut back. The defendant’s denied that the plaintiff was entitled to any shareholding.

Application for interlocutory injunctive relief
Mr Mark Connaughton BL, for the applicant, says there is a serious question regarding the validity of the purported dismissal or redundancy. There was no examination of the financial position of the company made known to him. He contends that he has been involved in all decisions of the company and, as sales director, is entitled to be involved in such a decision.

The fact of dismissal is in dispute. The applicant says that he is not contending that there is either a wrongful dismissal or an unfair dismissal. There has, in the circumstances, been a breach of his constitutional rights.

The plaintiff says that he received the sum of £3,000 on August 8, 2001 by way of dividend out of a bonus payment from suppliers.

While there was no written service agreement, the plaintiff is entitled to *4 fair procedures. What occurred was a blatant abuse of rights. Being excluded will cause irreputable damage to the business.

The balance of convenience lies with the injunctive relief continuing. The plaintiff confirms an undertaking that he will not visit the premises. An undertaking in respect of damages was also confirmed.

Respondent’s position
The applicant has not sought damages for dismissal. There is no action for damages. Accordingly no injunction can be given.

The applicant is not a shareholder. He is not registered as a member of the second named defendant. Even if he were a shareholder he would have no right to injunctive relief. His right would be for relief under section 205 of the Companies Act 1963. The payment made was not a dividend but one of two loans made in August 2001 (£2,000 out of the bonus) and in December 2001 (£4,000).

There is, significantly, no claim for specific performance of the alleged agreement regarding shareholding nor any injunctive relief sought to restrain the transfer of shares.

There is no claim for reinstatement — it is not an unfair dismissals case which, in any event, should be heard by the Employment Appeals Tribunal.

The applicant is not a Director and has no right to be involved in decisions regarding redundancy. He is not registered as such in the Companies Office. In any event he wasn’t made redundant but offered an interim position as a sales representative.

There is, accordingly, no arguable case for any of the reliefs sought. The balance of convenience, in a company employing eight to nine persons with a turnover of £1.5 million is against the continuation of the injunction which entails the payment of a substantial salary in the absence of any contribution being made by the applicant.

Applicant’s reply
The relief sought is not governed by common law. The Judicature (Ireland) Act 1877 provides for a fusion of law and equity. The principles of natural law are not limited to office holders but apply to the applicant in this case.

Damages are not an adequate relief. The applicant seeks a declaration as contained in the amended endorsement of claim which was the subject of the affidavit of the applicant’s solicitor sworn on April 18, 2002 in which she prayed the court for liberty to amend the plenary summons. No order to that effect was been referred to. However counsel for the defendant did not object.

No notice was given. Accordingly the purported summary dismissal is invalid.

Both parties referred to Philpott v Ogilvy and Mather Ltd [2000] 3 IR 206. *5 In that case the plaintiff claimed that he was summarily dismissed within a year of commencing employment. He says he was not given any warning or notice. He claimed that no disciplinary procedures were followed and that he was denied natural justice in the manner in which the decision was taken. He sought an injunction restraining the defendant from giving effect to the purported dismissal of the plaintiff. The defendant, on the other hand argued that it had not invoked disciplinary procedures and, accordingly, the issue was not one of natural justice but of damages.

In that case the plaintiff alleged that he was summarily dismissed without been given any warning or notice on February 4, 2000. By letter of February 7, 2000 he was given ‘the required one month’s notice of our wish to terminate your contract of employment from today February 7, 2000. I understand that this is a difficult time for you but given the circumstances we would prefer if you did not work out your notice period. We will of course pay you in full for the notice period’.

The court refused the various declaratory and injunctive reliefs claimed. Equitable relief had no independent existence in the absence of a claim for damages for wrongful dismissal.

I have no doubt that in Philpott as in the present case a purported termination in a summary manner is a traumatic event in any employee’s working life. The Unfair Dismissals Act offers redress to an employee who has been unfairly dismissed. It is clear that this remedy is available as an alternative to an action for wrongful dismissal in the courts.

This is not such an application: it is an application for interlocutory relief pending the trial of the claim for declarations and a permanent injunction. The issue before the court is whether the traditional relief at common law for wrongful dismissal arose primarily from an absence of adequate notice. In the present case the plaintiff says that he was entitled to 12 months’ notice. In the absence of adequate notice — whatever the trial court should determine — it is clear that the remedy lies in damages. Where there is a claim for damages for wrongful dismissal the plaintiff may also be entitled to declarations and injunctions in aid of that common law remedy. As held in Philpott v Ogilvy and Mather at p. 213, equitable relief has no independent existence apart from a claim for wrongful dismissal. If the applicant denies he has been dismissed — insofar as no proper notice was given — he is, paradoxically, undermining his right to equitable relief.

There is no right to reinstatement at common law: this is given as an alternative remedy under the Unfair Dismissals Act 1977. The Court will not force an employee on a reluctant employer.

Decision
No allegation of misconduct has been made such as to require the employer to *6 inform the employee of the allegations before any dismissal takes place.

While the mode of purporting to dismiss the employee was abrupt, the subsequent letter of March 27, 2002 attempted to ameliorate the mode of dismissal by offering an option to the applicant. It does not seem to me that the court needs to determine the matter otherwise than as one of employment. The issue of partnership or quasi partnership does not seem to arise in the context of employment by a company. The employment was not, despite the allegations of inducement by the company’s managing director, with the first named defendant. The issue of shareholding does not, in itself or in conjunction with other relationships with the company, give a right to injunctive relief in the terms sought.

I am, accordingly, satisfied that whether or not there is a serious issue to be tried damages will be an adequate remedy.

In the circumstances the plaintiff is not entitled to the relief claimed.

Hartnett -v- Advance Tyre Company Ltd t/a Advance Pitstop

[2013] IEHC 615 (19 December 2013)

JUDGMENT of Mr. Justice Ryan delivered 19th December 2013
This is an application for an injunction to set aside the purported dismissal of the plaintiff from his position with the defendants and to reinstate him at least for the purpose of receiving his salary in accordance with the principle enunciated by Costello J. in Fennelly v. Assicurazioni Generali [1985] 3 ILTR 73.

The legal principles to be applied in the case are broadly as follows:-

1. The constitutional principle of fair procedures applies to an employment contract such as this; the old distinction between an officer and another category of employee is no longer relevant and is not relied on by Mr. Howard.
2. The contract in this case did not exclude the constitutional principles and indeed could not have done and must be taken to have imported them by necessary implication. Indeed, the contract commits the company to carry out a full investigation which in my view has implications of thoroughness and fairness.

3. It is possible although unusual for an injunction to be granted in an employment case so as to restrain a dismissal or the effects of dismissal: see Fennelly above; Maha Lingam v. HSE [2006] ELR 137.

4. A plaintiff seeking an injunction must show not that he or she has an arguable case but rather a strong case which means a case that is likely to succeed at a full hearing.

5. Even if the plaintiff succeeds in doing so, he or she must still satisfy the court that the balance of convenience lies in granting the injunction. In this regard the defendant relies on a number of cases in the High Court holding that balance of convenience lay in refusing an injunction in circumstances where the relationship of trust had broken down between the parties and it was unthinkable to try to revive the relationship of employer and employee between them.

The Plaintiff’s Grounds
The plaintiff claims to be entitled to an injunction because the procedure of investigation that led to his being found guilty of serious misconduct was effected in a manner that was in breach of his constitutional right to fair procedures. Specifically, the principal witness whose evidence in the form of a statement was the basis of the complaint was not made available for cross examination and the plaintiff was simply given the opportunity that his solicitor could talk to the witness on the phone and that was entirely unsatisfactory as the plaintiff submits. Mr. Callanan SC for the plaintiff says that he would have other points to make at the hearing but he confines his present application to this essentially simple proposition.
Mr. Howard SC for the defendant responds that it is not sufficient to have a good, legally arguable point. In saying this, he implicitly concedes that Mr. Callanan has raised a good legal arguable point. Mr. Howard’s point is that you have to look at the case overall to see whether or not the plaintiff does indeed have a strong case, such that he is likely to win and it is necessary therefore to look at the facts of the case in order to arrive at a conclusion on this fundamental point.

I do not understand my function to be to look at the case as a whole and say whether the plaintiff ought to have been dismissed. This is a case about a process and whether the process was fair and reasonable and above all in conformity with the constitutional obligation to have fair procedures. There may be cases where it can be said that there was a breach of fair procedures but that the overall evidence is so clear that it would be absurd to set aside a dismissal on the ground alone of a breach of fair procedures I do not address that proposition and merely indicate that the facts of this case do not come into that category.
The Decision
The plaintiff was dismissed from his position as Head of Fleet Truck Sales with the defendant with effect from the 4th October, 2013 following an investigation and an appeal. The process that led to this decision began with a meeting in Limerick on the 15th August when the Human Resources Director, Mr McCormack, told Mr Hartnett he was suspended. The following day, Mr McCormack spelled out the allegations in a letter. The plaintiff was accused of misconduct in his job by seeking secret commission payments from a company supplier for tyres going to a competitor and to Advance and giving confidential information about tyre prices.

On the 14th August, 2013, the defendant company received an email from Germany from its parent company, Continental, referring to persons with whom they did business. The email recorded information from Sven Wehrmeyer, an employee of a company named Dikabo, who described a meeting that he had had in Cork on the 5th August, 2013 at Hayfield Manor Hotel with Mr. Hartnett the plaintiff. The email contained serious allegations against Mr. Hartnett as summarised above. The first two allegations are admittedly very serious but the third is in a lesser category and on its own would not amount, I think, to a ground for dismissal but that does not arise particularly.

This was an important message with serious allegations against Mr. Hartnett. The company decided that they would have to investigate this matter and they would suspend the plaintiff while they were doing so. Mr. Callanan S.C. makes some complaints about this process, but I do not think they arise at this stage. My view is that the company was justified in taking the view that these were serious complaints and that they deserved investigation and it was a matter of judgment for them whether they should suspend the plaintiff while the investigation was carried on. No issue arises at this stage on this application about the taking of any of those steps and it does not seem to me that there is anything wrong with what they did.

The company then presented the allegations to Mr. Hartnett and asked for his response. He consulted a solicitor and the latter took up the matter in correspondence with the company. The defendant wanted to get the plaintiffs account in response to the statement of Mr. Wehrmeyer but before that could be done there was a good deal of skirmishing of a procedural nature. In effect, the solicitor took the position that he wanted to get further and better particulars in relation to a series of matters concerning how the Wehrmeyer statement came about and other questions. My view for what is it worth is that the company was entitled to ask Mr. Hartnett to respond to the statement it had received. The matter dragged on through September with correspondence and dates being fixed and changed and an abortive disciplinary meeting, but ultimately the hearing proper took place on the 1st October, 2013, at the Radisson, Little Island, Cork.

At this hearing the plaintiff was accompanied by his solicitor, Mr McGee. The plaintiff denied that he had done anything wrong. He complained about the suspension and the disciplinary process and that the source of the complaints against him, namely, Mr Wehrmeyer, was not present. He agreed that he had met Mr Wehrmeyer on the occasion described in the statement but denied seeking commissions or any other wrongdoing and offered an innocent explanation of the encounter.

Mr McGee asked to cross-examine Mr. Wehrmeyer and other witnesses. As to the other witnesses, I do not think there is any case to be made. It is not all clear that there was any relevant issue to be debated, but that again does not have to be considered because we have the issue of Mr. Wehrmeyer. The company said that he was available on the telephone and apparently he speaks excellent English. Mr. McGee was in the position that he could phone Mr. Wehrmeyer and have a conversation with him. Maybe something would have come of that if he had availed himself of the opportunity, but he refused. He said that his client was entitled to have Mr. Wehrmeyer attend and be cross-examined.

I do not have to decide what facility regarding Mr. Wehrmeyer might have satisfied at the requirement of fair procedures. In other words, if a video link had been arranged, would that have been satisfactory – I would have thought yes, but that does not arise for consideration. Would it have been sufficient to have a conference call? The answer is more doubtful and I would think that the answer is probably no unless there was some other feature that is relevant. It could also be said that Mr. McGee should have taken up the opportunity and spoken to Mr. Wehrmeyer and he might have elicited some useful information that could have been presented to the investigating body, but that did not happen.

Mr. Hartnett disagreed with what Mr. Wehrmeyer said. At this meeting of the 1st October, which was the investigation of the complaint, he gave an explanation and an account of his meeting which he accepted had happened at Hayfield Manor on the 5th August, 2013. As to the contents of the meeting or what was discussed, there was complete disagreement between Mr. Hartnett and the statement supplied by Mr. Wehrmeyer. The inquiry concluded and considered the decision and they decided that they preferred the evidence of Mr. Wehrmeyer as contained in his statement to what Mr. Hartnett had told them. They therefore found that he was indeed guilty of the charges and they went on to consider penalty and decided that dismissal was the appropriate sanction.

Mr Hartnett appealed the decision to dismiss him and the matter was heard by Mr Paddy Murphy, a director of the company. Mr McGee had submitted in advance a letter setting out the basis of the plaintiff’s appeal. In the course of this lengthy, 17 paragraph letter Mr McGee says at para 11 referring to the crucial meeting of the 5th August: “Mr Wehrmeyer provided a gratuity to Mr Hartnett for attending.” When Mr Murphy asked about this at the appeal hearing on the 14th October, the plaintiff and his solicitor would not give details other than that it was a monetary gratuity, saying it was a matter for the company to take up with Mr Wehrmeyer. Mr Murphy did just that in a phone call on the 18th October when Mr Wehrmeyer denied doing anything for Mr Hartnett beyond buying him a coffee. Mr Murphy was not impressed by the plaintiffs reticence on this matter nor by its introduction at such a late stage. He made his decision affirming the dismissal and informing the plaintiff by letter of the 23rd October.

In his grounding affidavit, Mr Hartnett avers that at the meeting Mr Wehrmeyer passed an envelope to him which he opened after leaving the hotel. The envelope contained €1,500. The plaintiff says he did not ask for a gratuity or expect one. He argues that Mr Wehrmeyer’s denial of the payment undermines the credibility of everything in his statement.
Discussion
It seems to me that the company fell into errors of procedure. They were entitled to suspend Mr. Hartnett and engage in an investigation. They may have become sidetracked and may have diverted their attention from the main issue by the procedural squabbling that took place, in which Mr. Hartnett’s solicitor may have some responsibility. The problem was that when the inquiry sat eventually on the 1st October, 2013, they were receiving for the first time Mr. Hartnett’s response to what was in the email with Mr. Wehrmeyer’s statement. It would have been conducive to clarity if this had happened at an earlier stage and it would have been apparent what was then in issue.

If the inquiry had addressed itself properly to what was in contention, it could then have decided how it was going to go about deciding where the truth lay. It would and should have arranged for the plaintiff to have an opportunity in some satisfactory mode of cross examining Mr. Wehrmeyer. His evidence was crucial – it was the only evidence as to the alleged misconduct. The other witnesses had little or no relevance to the central issue, whatever their functions in establishing background facts. The fact is that Mr Wehrmeyer was saying that Mr. Hartnett had sought corrupt unauthorised payments at this meeting on the 5th August, at Hayfield Manor. That is what the case was about and that is the set of allegations that Mr. Hartnett was facing. It was down to Mr. Wehrmeyer versus Mr. Hartnett. There was no way that Mr. Wehrmeyer could avoid some form of cross examination by Mr. Hartnett’s representative.

However understandable it may be that the company investigation went wrong, the fact is they did go wrong and seriously wrong. They made a decision on a basis on which they could not have made it. It was unfair to Mr. Hartnett. It was in breach of fair procedures as laid down by the Constitution. It was also, I think, a manifestly unfair and unreasonable way for an inquiry to arrive at a conclusion. When one appreciates that this could have meant and did in fact mean the dismissal of the plaintiff, the gravity of the error becomes even more apparent.

On the agreed facts therefore, it is clear that there was a breach of the plaintiff’s constitutional rights which must be implied into his contract if they were not already there. If follows from that, in my view, that he has a strong case to say that his constitutional rights were infringed. It also follows irresistibly as I think that he has a strong case that his dismissal was unlawful because it was arrived at following a flawed process in one crucial respect.

I conclude therefore that the plaintiff does indeed have a strong case, not just in regard to some particular discrete legal topic, but as to the dismissal so that he satisfies the first leg of the requirements for an injunction.
Balance of Convenience
In a series of cases concerning employment injunctions, this court has held that it is inappropriate to enjoin dismissals where the relationship between the parties has broken down with loss of trust and other necessary features: “It is a question of trust, authority, loss of confidence and I think plain common sense” as McMenamin J said in Joyce v HSE [2005] IEHC 174.

The critical question on the balance of convenience is the importance to be attached to (a) the revelation or allegation by the plaintiff in his appeal submission for the first time that he had received a gratuity from Mr Sven Wehrrneyer at their meeting on 5th August 2013 at Hayfield Manor hotel, (b) his refusal to furnish details at the appeal, (c) his claim in his affidavit that he later discovered that the envelope contained €1,500 and his failure to disclose that to his employer, as the code of conduct as well as general employee duty and common sense honesty required. In those circumstances, if the plaintiff wins on the first leg can he satisfy the second test?

The company argues that the plaintiff has revealed evidence of serious misconduct in the matters that he admitted about his meeting with Mr Wehrrneyer, his failure to disclose the meeting to his superior or anybody else in the company and, above all, the money that he claims to have received at the meeting. There are two possibilities. If the plaintiffs account is true, it was a breach of his duty to the company and contrary to its code of conduct to accept the money and not to report it. Such a payment should also have alerted the plaintiff as a senior and trusted person that the meeting had an illicit purpose or at least the possibility thereof. On the other hand, if the story is untrue, it undermines the plaintiff’s credibility just as he thought it would do for Mr Wehrrneyer. This is a dilemma but it is entirely of Mr Hartnett’s making.

While the other revelations that came to light in the course of the inquiry as to what the plaintiff admitted having happened are undoubtedly serious, this allegation seems to me to remove any uncertainty I might have had about the balance of convenience.

In the circumstances, any residue of trust that might have existed between the parties cannot be considered to be intact. The plaintiff is accordingly not entitled to an injunction because he fails to satisfy the second test.

Nolan -v- EMO Oil Services Ltd

Judgment of Miss Justice Laffoy delivered on the 21st day of January, 2009
On this application for an interlocutory injunction the plaintiff claims various orders, some prohibitory and some mandatory. The essence of the relief he claims is encapsulated in two of the orders he claims:-

(a) an interlocutory injunction restraining the defendant from giving effect to his purported dismissal by reason of redundancy from the post of Credit Manager; and
(b) an interlocutory injunction requiring the defendant to continue to pay his salary and associated emoluments and benefits currently owing and as they fall due.

While not so expressed in the notice of motion, the intention is that the orders shall regulate the relationship of the plaintiff and the defendant pending the hearing of the substantive action.
The plaintiff’s employment with the defendant was regulated by a contract in writing under which the plaintiff was appointed as a permanent employee of the defendant as Credit Manager commencing on 1st November, 2001. The contract was a comprehensive document, which set out the conditions of employment including the entitlement of the defendant to terminate the employment on notice. Clause 7 provided that the period of notice which required to be given by the defendant to the plaintiff to terminate his employment should be determined according to the length of continuous service. In the case of service of between five and ten years the length of notice required was four weeks, which coincides with the requirement of the Minimum Notice and Terms of Employment Act 1973. It is common case that in September 2008 the plaintiff’s employment was terminable by four weeks’ notice in accordance with the contract.

At the beginning of 2008, the defendant, which is the supplier of oil products, had a work force of one hundred and sixty. Because of the economic downturn it introduced two redundancy schemes in 2008. Fifteen redundancies resulted from the first scheme, which was announced in February 2008, of which five were compulsory.

The second scheme, which resulted in a further nine redundancies, five of which were compulsory, was announced while the plaintiff was on annual leave in August 2008. On 15th August, 2008 the defendant announced a redundancy scheme under which, in the first instance, it invited applications for voluntary redundancy across all sections of the defendant. It was stated that in the absence of the required number of volunteers, the defendant would arrange to make redundancies on a compulsory basis. The ultimate deadline for acceptance of applications for voluntary redundancy was 2nd September, 2008. The plaintiff received notification of the redundancy scheme while on annual leave, but he did not wish to avail of it.

After the plaintiff returned from annual leave, he was called to a meeting with the Managing Director of the defendant, Mr. Gerry Wilson, on 3rd September, 2008. He was informed that his position of Credit Manager was being made redundant with effect from the end of September 2008 and that, in future, his work would be done by the Managing Director and the Financial Controller in addition to their existing duties. Subsequently at a meeting on 4th September, 2008, he was informed that his redundancy would be effective from 30th November, 2008. On the following day, 5th September, 2008, the plaintiff was furnished with form RP50, which was the notification of redundancy, which gave the date of the notice of termination of his employment as 5th September, 2008 and the proposed date of termination as 30th November, 2008. The form, which was the prescribed form under the Redundancy Payments Acts 1967 to 2003, incorporated a claim for statutory redundancy from the Social Insurance fund. In addition to the statutory redundancy, the defendant proffered to the plaintiff an ex gratia payment of €9,100.

It is not in dispute that the notice of termination given to the plaintiff was sufficient to terminate his employment in accordance with his contract of employment. The dispute which has given rise to these proceedings and this application is the plaintiff’s contention, which was first raised at the beginning of November, 2008, that genuine bona fide redundancy does not exist in relation to the position of Credit Manager which was held by the plaintiff. Alternatively, the plaintiff contends that if a redundancy situation does exist, he has been unfairly selected for redundancy. In broad terms, the factual basis on which the plaintiff alleges that making him redundant was a contrivance is that his working relationship with Mr. Wilson deteriorated after late 2006 when he had made Mr. Wilson aware that he had been offered the position of Credit Manager by a competitor of the defendant, which he had declined. He alleges that thereafter he was sidelined and Mr. Wilson commenced dealing directly with a subordinate of the plaintiff who occupied the position of Senior Credit Controller with the objective of replacing the plaintiff with her. Mr. Wilson has categorically denied this allegation and has averred that the plaintiff’s redundancy has arisen out of the current difficult economic conditions and not otherwise. The position of the defendant is that Mr. Wilson, as Managing Director, and the Financial Controller are going to take on the plaintiff’s functions, while the Senior Credit Controller will be assigned “some of the more junior duties formerly performed by the plaintiff”, although she will not receive any promotion or additional remuneration as a result of the decision to make the plaintiff’s position redundant. I have stated the factual position in broad terms. However, there is a considerable body of detail on the affidavits, which gives rise to conflict. The Court cannot, and should not attempt to, resolve those conflicts on this application.

The defendant’s argument raises a very basic point. For the reasons set out below, I think it is correct both in principle and in accordance with precedent.

In the Maha Lingham case, Fennelly J. recognised the distinction, in outlining the first of a number of “quite obvious legal matters” raised by that case in the following passage:-

“… that according to the ordinary law of employment a contract of employment may be terminated by an employer on giving of reasonable notice of termination and that according to the traditional law at any rate, though perhaps modified to some extent in light of modern developments, according to the traditional interpretation, the employer was entitled to give that notice so long as he complied with the contractual obligation of reasonable notice whether he has good reason or bad for doing it. That is the common law position and it is an entirely different matter as to whether a person has been unfairly dismissed and a different scheme of statutory remedy is available to any person dismissed whether with or without notice under the Unfair Dismissal Act, but this is not such an application. This is an action brought in common law for wrongful dismissal in the context of which an injunction was sought.”
The distinction was reiterated by the Supreme Court in Sheehy v. Ryan [2008] IESC 14 in which judgment was delivered by Geoghegan J. on 9th April, 2008. Referring to the decision of Carroll J. at first instance, Geoghegan J. stated:-
“The judge in fact went on to point out that the appellant had chosen a common law remedy. She could have initiated proceedings under the Unfair Dismissals Act, 1967 or under the Redundancy Payments Act. The trial judge then said that the position at common law is that an employer is entitled to dismiss an employee for any reason or no reason on giving reasonable notice. I would slightly qualify that by saying that it does depend on the contract but in the absence of clear terms to the contrary which are unambiguous and unequivocal, that clearly is the position.”
In both the Maha Lingham case and the Sheehy case no period of notice for termination was stipulated in the relevant contract of employment. In this case, as I have said, it is common case that a period of notice is stipulated and that what was required in September 2008 was four weeks’ notice. The defendant effectively gave the plaintiff three months’ notice. Accordingly, according to what Fennelly J. described as “the traditional law”, the plaintiff’s contract of employment was lawfully terminated. No action for breach of contract arises, nor can any question of violation of the plaintiff’s constitutional rights arise.
It is necessary to consider whether the “modern developments” to which Fennelly J. referred have a bearing on the plaintiff’s entitlement to the relief he claims on this application.

A line of authority has developed in this jurisdiction from the decision of the High Court (Costello J.) in Fennelly v. Assicurazioni Generali Spa. [1985] 3 I.L.T.R. 73, on the basis of which an employee, who has been dismissed, may, in certain circumstances, be granted a mandatory injunction directing payment of his or her salary pending the determination of the substantive proceedings. Counsel for the plaintiff suggested that the decision of the High Court (Keane J.) in Shortt v. Data Packaging Limited [1994] E.L.R. 251, in that line, is authority for the proposition that the plaintiff should be granted a mandatory injunction in this case on the basis of his contention that his redundancy was not valid. A consideration of the judgment of Keane J. does not bear that out. The facts in that case were that in 1988 the plaintiff had been employed as a managing director of the defendant on a three-year fixed term contract which provided that any continuation after the fixed term was to be deemed to be employment of indefinite duration terminable by six months’ notice. The plaintiff continued in employment in accordance with the terms of the contract following the expiration of the three-year term until 11th January, 1994, when he was informed that, owing to a re-structuring of the company, he was to be made redundant, and that the termination of his employment was to be of “immediate effect”. The plaintiff sought an injunction restraining the defendant from appointing any person other than the plaintiff to the position of managing director of the defendant pending the trial and an order that the defendant continue to pay him all salary accruing from 11th January, 1994 and other benefits to the trial of the action. Keane J. in an ex tempore judgment indicated that he would make an order largely in the form of the order made by Costello J. in the Fennelly case on the basis that he was satisfied that the plaintiff had made out a fair issue to be tried as to the legality of the purported termination. He outlined the arguments which had been advanced on behalf of the plaintiff: that the power of immediate termination could only be exercised by the directors of the defendant and that there had been no decision of the directors, because the plaintiff, who was a director, would have been aware of it; that the plaintiff’s removal was ineffective, in that it was in breach of the principles of natural justice; that the alleged redundancy was spurious and unsubstantiated and that the real reason for the purported removal lay in differences between the plaintiff and his employers; and that the statutory redundancy requirements had not been observed.

“There has been a discussion of course of the English case of Eastwood v. Magnox Electric Plc., [2004] 3 All ER 991 decided this year and referred to in the judgment of Carroll J. and in particular the majority speech in the House of Lords in that case where Lord Nicholls, as cited by Carroll J., took the view that because of the statutory code relating to unfair dismissal, in effect that it was not for the courts to extend further into the common law, the implied term regarding mutual trust in such a way as to upset the balance set by the legislature. In other words that the principle that there is an implied term of mutual trust and good faith in contracts of employment does not extend so as to prevent the employer terminating a contract of employment by giving proper notice and, having already said that it is not contested that proper period of notice was given in this case, the question is whether the plaintiff has made out the sort of case that would be necessary to show that the contract of employment had been undermined to such an extent by the employer in this case that the employer was deprived of the right to give a proper period of notice of termination.”
Having made those remarks, Fennelly J. looked to the facts of the case before him. He reiterated that it was necessary for the plaintiff to establish a strong and clear case. He found that, so far as the defendant was concerned, the plaintiff’s employment as a temporary orthopaedic surgeon was terminated for the simple straight forward reason that the employment was not authorised and was not funded and that there was no question of the dismissal being motivated by any suggestion of racial discrimination or racial slur.
Although not articulated in this way by counsel for the plaintiff, the plaintiff’s case, as I understand it, is that it is an implied term of his contract of employment that, notwithstanding the express right to terminate his contract on notice, the plaintiff is entitled to litigate the fairness or otherwise of the termination of his contract on the grounds of redundancy by reference to the statutory code in plenary proceedings in this Court. I base that understanding on the submission of counsel for the plaintiff that the defendant, as his employer, owed a duty of good faith to the plaintiff, in consequence of which it was an implied term of the plaintiff’s contract of employment that, if he was to be let go on the grounds of redundancy, there would have to be a valid redundancy.

“I recognise that, by establishing a statutory code for unfair dismissal, Parliament did not evince an intention to circumscribe an employee’s rights in respect of wrongful dismissal. But Parliament has occupied the field relating to unfair dismissal. It is not for the courts now to expand a common law principle into the same field and produce an inconsistent outcome. To do so would, incidentally, have the ironic consequence that an implied term fashioned by the courts to enable employees to obtain redress under the statutory code would end up supplanting part of that code.”
Later (at para. 27), Lord Nicholls identified the boundary line of what had come to be known as the “Johnson exclusion area”, that is to say, the area within which relief cannot be pursued in the Courts, stating:-
“Identifying the boundary of the ‘Johnson exclusion area’, as it has been called, is comparatively straightforward. The statutory code provides remedies for infringement of the statutory right not to be dismissed unfairly. An employee’s remedy for unfair dismissal, whether actual or constructive, is the remedy provided by statute. If before his dismissal, whether actual or constructive, an employee has acquired a cause of action at law, for breach of contract or otherwise, that cause of action remains unimpaired by his subsequent unfair dismissal and the statutory rights flowing therefrom. By definition in law such a cause of action exists independently of the dismissal.”
In this case, the plaintiff’s employment with the defendant came to an end on 30th November, 2008 and his last day at work was the 28th November, 2008. In essence, what he is trying to achieve by these proceedings is to get his job back. He got the required notice under his contract of employment and his contract of employment was lawfully terminated. If, as he contends, his dismissal was unfair, then the remedy available to him is the remedy provided by statute. As a matter of fact, that is the only remedy he could pursue because, in my view, he had not acquired a cause of action for breach of contract or otherwise prior to his dismissal. In the circumstances, there is no remedy which he can pursue in this Court.
That conclusion is supported by the decisions of the Supreme Court in the Maha Lingham case and in the Sheehy case.

There will be an order dismissing the plaintiff’s application.

Mary Howard v University College Cork

2000 No. 3372P

High Court

25 July 2000

[2001] 12 E.L.R. 8
(O’Donovan J)

O’DONOVAN J

delivered his judgment on 25 July 2000 saying: This is an application by the plaintiff, who is currently the Professor and head of the Department of German at the University College Cork, for interlocutory injunctions restraining the defendants, their servants or agents from;

(a) taking any steps whatsoever to remove the plaintiff from her post as head of the Department of German at University College Cork,
(b) taking any steps towards appointing a person, other than the plaintiff, to the post of head of the Department of German at the University College Cork and
(c) howsoever from interfering with or prohibiting the plaintiff from performing her role and functions as head of the Department of German at University College Cork.
In addition, the plaintiff seeks such further or other reliefs as to the court shall seem meet.

The plaintiff’s application is made in the context of proceedings which were initiated by plenary summons on 16 March 2000 and in respect of which *10 the statement of claim was delivered on 19 May 2000. In the proceedings, the plaintiff claims a variety of reliefs arising, inter alia, from allegations of harassment and bullying which the defendants allege have been made against the plaintiff and, as a result, have caused a hostile environment to be created within the Department of German at University College Cork and the manner in which the defendants purported to investigate those allegations. In particular, the plaintiff complains that the defendants have failed to vindicate her position as Professor of German and head of the Department of German at University College Cork and, accordingly, that she is apprehensive that the defendants will remove her from the post of head of the Department of German at the said University. In those circumstances, the reliefs sought by the plaintiff in these proceedings include injunctive relief similar to that which is the subject-matter of this application.

In the course of the hearing of the application, I had evidence which satisfied me that the plaintiff had been appointed to the post of Professor of German at the defendant university by the Senate of the National University of Ireland on 8 July 1993. The said appointment was made pursuant to Statute 162 of University College Cork made by the governing body of the College on 19 January 1993 pursuant to powers in that behalf conferred by the Irish Universities Act 1908 and in chapter 1(3) of the said statute it is provided that, on initial appointment, a Professor of German shall be head of the Department of German for a period of at least five years. Accordingly, it would appear to follow that, when initially appointed Professor of German, the holder of that office is also required to perform the duties of head of the Department of German for a period of at least five years but without any additional emolument and, so far as the plaintiff is concerned, that was the position which obtained on her appointment to the post of Professor of German at University College Cork on 8 July 1993.

At an early stage in the course of the hearing of this application it appeared to me that, in the light of the contents of a letter dated 23 March 2000 addressed to the plaintiff by Mr Aidan Moran, registrar and vice-president for Academic Affairs at University College Cork in which, inter alia, Mr Moran stated: ‘I am advised that your initial five year appointment as department head expired on 1 January 1999’ the defendants were maintaining that, as of 1 January 1999 the plaintiff had ceased to be head of the Department of German at the University College Cork. If that were so, it seemed to me that the defendants were in error because, as I interpret Chapter 1(3) of Statute 162 of University College Cork, the office of head of the Department of German when vested in the Professor of German on initial appointment was not for a fixed term and, accordingly, could not be determined by effluxion of time. However, I was informed by Mr Stewart, senior counsel on behalf of the defendants, that the defendants accept that the office of head of the Department of German which *11 was vested in the plaintiff on 8 July 1993 could not determine by effluxion of time and, accordingly, it was accepted by the defendants that the plaintiff is the current holder of that office. However, it was submitted on behalf of the defendants that, if the defendants followed procedures for the selection/appointment of Department Heads which were approved at a meeting of the governing body of University College Cork held on 29 February 2000, and, in so doing, appointed someone other than the plaintiff to be head of the said department, the plaintiff’s position as head of the department would automatically determine. In that regard, counsel on behalf of the defendants submitted that a determination by the governing body at University College Cork in accordance with the procedures for selection/appointment of Department Heads laid down on 29 February 2000 could be made without notice to the plaintiff, without explanation for the reason therefore and that it did not require observance of the principles of natural justice. In that regard, counsel for the defendants submitted that the post of head of the Department of German at University College Cork did not involve employment as such, because it was inevitably associated with a position on the staff of the department, such as Professorship, and, accordingly, the person exercising the functions of the head of the department was not, in performing that role, an employee and, therefore, termination of that post did not involve dismissal from employment, as it is ordinarily understood. In those circumstances, it was submitted on behalf of the defendants that principles of natural and constitutional justice are not relevant when considering the termination of the post of head of the Department of German at University College Cork and need not be observed. On behalf of the plaintiff, it was submitted that if, as suggested on behalf of the defendants, the head of the Department of German at University College Cork was not an employee, then the post was meaningless whereas the fact of the matter is, as appears from the affidavits filed on behalf of the defendants that they consider the post to be a very important one and, accordingly, it was submitted that, when the question of changing the head of the Department of German at University College Cork is being considered, the governing body cannot act capriciously, or unilaterally, but must observe fair procedures and, in particular, must give the holder of the office reasonable notice of the intention to consider the change and the reasons therefore. Clearly, this is an issue involving questions of law which, ultimately, will have to be resolved at the trial of this action. However, in my view, in the light of the judgment of the Supreme Court in the well known case of Campus Oil Ltd v. Minister for Industry and Energy (No. 2) [1983] IR 88 it is not an issue which I must resolve when considering whether or not to grant the injunctive relief currently sought by the plaintiff. In that regard, it appears to me that, insofar as that issue is concerned, when determining whether or not to grant the relief sought, I merely have to consider whether or not there is a fair question to be tried.

*12

It is unnecessary for the purpose of this application that I should review in detail or, indeed, at all the events which gave rise to these proceedings because those events are not relevant to any issue which I have to decide on the hearing of this application. In that regard, it is sufficient to note that allegations of impropriety with regard to her conduct in the performance of her role as head of the Department of German at University College Cork have been made against the plaintiff and, for her part, she complains about the manner in which the defendants purported to investigate those allegations and, in particular she complains that the defendants failed to vindicate her position as Professor of German and head of the Department of German at University College Cork and, as a result, she fears that the defendants will remove her from the post of head of the department. These allegations, complaints and fears all give rise to issues which will have to be determined at the trial of this action but, again, they are not issues which I have to determine for the purpose of this application for the simple reason that the evidence before me is incomplete, in that, it is evidence on affidavit which has not been tested by cross-examination. Insofar as those issues are concerned, no less than with regard to the issue as to whether or not the defendants must observe fair procedures when considering whether or not to terminate the plaintiff’s office as head of the Department of German, all I have to decide is whether or not there is a fair question to be determined at the trial of the action and, in that regard, as laid down by the court in Campus Oil Ltd v. Minister for Industry and Energy (No. 2), hereinbefore referred to, I only have to be satisfied that there is a fair question to be determined; not that there is a probability that the plaintiff will succeed on any particular issue.

In the light of the foregoing, I have no doubt at all but that, at the trial of this action, there are fair questions to be determined with regard; firstly, as to whether or not the defendants are obliged to observe fair procedures when considering the determination of the plaintiff’s role as head of the Department of German at University College Cork and, secondly, whether or not the plaintiff has legitimate complaints with regard to the investigation by the defendants of the allegations of impropriety which have made against her and the alleged failure by the defendants to vindicate her position as Professor of German and head of the Department of German. However, it does not necessarily follow that the plaintiff is entitled to the injunctive relief currently being sought by her. In that regard, I take the point made by counsel for the defendant that, whatever (if any) relief is afforded to the plaintiff at the trial of this action, it will not include the permanent injunction sought at subparagraph (h) and the declaration sought at subparagraph (g) in the prayer in the plaintiff’s statement of claim. However, I do not think that that fact, in itself, is a sufficient ground to refuse the injunctive relief currently being sought by the plaintiff. While, as I have indicated, I do not think it possible that, at the trial of the action, the plaintiff could be awarded the permanent injunction and the declaration to which *13 I have referred, I have little doubt but that the trial judge would accede to an application to amend the statement of claim by qualifying the claim for the permanent injunction by the addition of the words ‘except in accordance with law’ and by qualifying the declaration sought by the addition of the words ‘unless and until lawfully terminated’ and, in that event I think that it could well happen that the trial judge could afford the plaintiff relief in those terms. A much more compelling argument in favour of the proposition that I should refuse the injunctive relief currently sought by the plaintiff is that, even in the event that she succeeds in her claim herein at the trial of this action, an award of damages would adequately compensate her for any wrong done to her and, in any event, the balance of convenience as between the parties would mitigate against the defendants being prevented from appointing a new head to the Department of German at University College Cork in place of the plaintiff; it being submitted that the current state of unrest in the Department of German arising from the criticism of the plaintiff’s conduct in the performance of her role as head of the department necessitates consideration as to whether or not someone, other than the plaintiff, should be appointed to the post. While it is a fact that, even were the plaintiff removed from her position as head of the Department of German, she would continue to be a Professor of German and would not suffer any diminution in her income, there is no doubt in my mind but that, were that to happen, the public’s perception would be that her role as head of the department had been terminated because of misconduct of the kind that has been alleged against her and in that regard, counsel on behalf of the defendant conceded that the ‘dogs in the street’ are aware of the allegations of impropriety and the criticisms which have been levied against the plaintiff with regard to her conduct as head of the Department of German at University College Cork. Indeed, given that it appears that the only persons, apart from the plaintiff herself, who would be eligible for appointment to the position of head of the Department of German at University College Cork are among the persons who have been critical of the plaintiff, there is no doubt in my mind but that, if one of those were to be appointed head of the department in place of the plaintiff, everyone would assume not only that the plaintiff had been removed from the position as head of the Department because of that criticism, but also that the criticism was justified. That being so, it seems to me that, if the plaintiff’s role as head of the Department of German at University College Cork is terminated in advance of the trial of this action and, at the hearing, it was determined by the trial judge that that termination was unlawful, it would be extremely difficult, if not impossible, for the trial judge to assess a sum for damages which would adequately compensate the plaintiff for the injury to her reputation because, while it may well be that, even if she is removed from the position as head of the Department, she would continue to be Professor of German at the College, for all that is now known it may well happen that, at *14 some time in the future, she would be considered for a more prestigious post in another part of the world and fail to be appointed to that post because of her treatment at the hands of the defendants. Essentially, therefore, it seems to me that, were the plaintiff to be deprived of her post as head of the Department of German at University College Cork and it transpired that that deprivation was unlawful, it is unlikely that any award of damages would adequately compensate her for the injury to her reputation.

Finally I must consider where the balance of convenience lies between granting or refusing the injunctive relief sought by the plaintiff. In this regard, as I have already indicated, it is submitted on behalf of the defendants that, as a result of the complaints and criticisms which have been levied against the plaintiff, there is considerable unrest within the Department of German at University College Cork. Indeed, counsel for the defendants suggested that the department was in crisis and that the only way to resolve the problem was to consider the appointment of a new head to the Department. In this regard, it seems to me that, whether or not there are significant problems within the Department of German at University College Cork and, if there are, who is to blame for them, is not a relevant consideration at the hearing of this application. That is a problem for the trial judge. However, given that the defendants concede that the plaintiff is entitled to remain as Professor of German at University College Cork and given that she has been the head of the Department of German at the University for the last six years, it seems to me that the appointment of a new head of the department in advance of the hearing, while the question as to whether or not the plaintiff is entitled to retain the post is still, as it were ‘up in the air’ is likely to create greater difficulties within the department. Moreover, I think that if a new head of the department were appointed in advance of the hearing, it would place an intolerable burden on the trial judge because, instead of having to decide the fairly straightforward question as to whether or not the plaintiff was entitled to retain her role as head of the department, he or she would then have to choose between two identified persons and, possibly, remove someone from a post to which that had been appointed only. a very short time previously. In those circumstances, it seems to me that the balance of convenience between granting or refusing the injunctive relief currently sought by the plaintiff demands that the status quo be maintained and in that regard, I specifically reject the submission by the defendants that an injunction against the defendants at this stage of the proceedings will cause them irreparable harm and/or amount to discrimination in favour of the plaintiff. I cannot accept that maintaining a situation which has obtained for the last six years could have that effect.

In the foregoing circumstances I will grant the injunctions sought at subparagraphs a, b, and c of the plaintiff’s notice of motion dated 26 May last and I will reserve the costs of this application to the trial judge.

Cahill -v- DCU

[2009] IESC 80 (09 December 2009)

Supreme Court Record Number: 73/07

High Court Record Number: 2006 3378 p

Appeal dismissed – affirm High Court Order
Denham J., Macken J.

Outcome: Dismiss

THE SUPREME COURT
Record No. 073/2007
Denham J.
Geoghegan J.
Macken J.

Defendant/Appellant
JUDGMENT of Mr. Justice Geoghegan delivered the 9th day of December 2009
The plaintiff/respondent in this appeal held the post of Associate Professor in the School of Biotechnology, Dublin City University. That university is the defendant/appellant.

The appellant purported to dismiss the respondent from his post. The respondent instituted High Court litigation claiming that by virtue of “tenure” which he held and the general terms of employment which he alleged were in part governed by the Universities Act, 1997 the purported dismissal was invalid. On three alternative grounds, the learned High Court judge (Clarke J.) held with the respondent. The appellant has now appealed.

The circumstances giving rise to the alleged dismissal in this case were unusual. Without going into the detail which is well set out in the High Court judgment, what broadly happened was as follows: On the 10th March, 2006, the appellant had a meeting with Professor Von Prondzynski, the President of the DCU. Whilst there is some disagreement as to the contents of the discussions, it is clear that the respondent informed the President that there was an offer on foot from NUI Galway for the respondent to move to Galway and take up the chair of Molecular Medicine with NUIG. The offer also involved the respondent taking his research team with him, the two researchers be appointed to appropriate posts in NUIG if the offer was accepted. The respondent’s case was that he had informed the President of all of this as a matter of courtesy and with a view to ascertaining whether there might be an improved offer to him from DCU in the light of his proposed move. He consistently denied that he informed or indicated to the President that his departure from DCU was a certainty. This aspect of the discussions is disputed by the President who, in evidence, claimed that he had been left with the clear impression at the meeting that there was no doubt whatsoever about the respondent leaving DCU and moving to Galway. It was common case however at the High Court hearing that the respondent never tendered a formal resignation. In fact it was common case that if his employment had terminated it was by virtue of a dismissal. I will be explaining the context in which this arose.

In the months following that discussion, the respondent never indicated the date of his proposed departure despite constant requests to him to do so. Unsurprisingly, this exasperated the appellant. Obviously, the appellant would require reasonable notice of when the respondent was leaving so as to provide time for new arrangements be put in place. The full details of the communications between the university and the respondent are to be found in the judgment of the High Court. For the purposes of the appeal, it is sufficient to say that correspondence was entered into with the respondent by the university’s Director of Human Resources on behalf of the President. Some of that correspondence was not consistent with the later concession that the respondent had never made a formal resignation. Matters came to a head when after pressure being exerted over a long period, the respondent would not name a date for departure. The appellant decided that the only course open to it was to dismiss the respondent.

I think it only fair to say that a decision by the university to bring matters finally to a head in such a way that it knew exactly where it stood as to what (if any) new arrangements had to be put in place, was more than reasonable. Nevertheless whatever course the appellant took towards that end had to be lawful. I find myself in agreement with the learned High Court judge that the respondent as an officer of the university and under the terms of the Universities Act, 1997 and the appellant’s own statutes, the respondent was entitled to fair procedures before he could lawfully be dismissed. In the context of this particular case, that meant, quite simply, that the respondent had to be given a final warning, that in accordance with the terms of the contract which he had entered into with the university (and to which I will be referring), it was proposed to serve notice of termination of his employment and then had to be given an opportunity to make submissions to the appellant as to why that should not be done. No such opportunity was afforded to him and for reasons which I will elaborate on somewhat more fully, I am satisfied that in the absence of such fair procedures the termination was not valid. As to what relief should be granted to the respondent in those circumstances is quite another matter and I will deal with it towards the end of this judgment.

The respondent was successful in the High Court on three alternative grounds, as is perfectly clear from the “Conclusion” paragraph of the learned High Court judge’s reserved judgment. The relevant extract reads as follows:-

“Therefore, for the reasons which I have indicated earlier, I was satisfied that the purported termination of Professor Cahill’s employment was invalid principally because it did not occur following appropriate procedures specified in the university statute so as to comply with s. 25(6) or alternatively by virtue of the reasons identified concerning the meaning of the word ‘tenure’ or, as a further alternative on the procedural grounds which I have also addressed.”

That third ground is explained in an earlier part of the judgment in paragraph 7.6 which reads as follows:

“In those circumstances it does seem to me that, even if I am wrong concerning the contractual/statutory basis for Professor Cahill holding office, he would also be entitled to a determination from this court to the effect that his contract of employment was not validly determined on the basis of a failure to at least give him some opportunity to make representations as to why his contract of employment should not have been determined.”

In concluding that the appeal should be dismissed, I am basing my judgment only this last ground. This does not mean that I am necessarily agreeing or disagreeing with the two other grounds put forward by Clarke J. Travel down that road would involve, in my view, a detailed analysis of the exact meaning and ramifications of section 25(6) of the Universities Act, 1997. That subsection reads as follows:

“A university may suspend or dismiss any employee but only in accordance with procedures, and subject to any conditions, specified in a statute made following consultation through normal industrial relation structures operating in the university with recognised staff associations or trade unions, which procedures or conditions may provide for the delegation of powers relating to suspension or dismissal to the Chief Officer and shall provide for the tenure of officers.”

It is self-evident from the citation that that is not a simple task and given the unusual circumstances in which dismissal arose in this particular case, it is not advisable unless it was absolutely necessary that I should attempt to give a precise meaning to that subsection. Furthermore, any such analysis would lead to a judgment as to meaning of “tenure”. This was debated at the hearing of the appeal. I am satisfied that the word “tenure” has different meanings and different connotations partly depending on its context and partly depending on the particular understanding as usually given to it within the country in which it is used. “Tenure” has a very definite meaning in the USA. It more or less equates with permanency in a university post and it is widely sought after. The same word does not necessarily, however, have that meaning in this jurisdiction. It can have different meanings, one of them being merely the period of time for which the office can be held or the method of calculating that period. These kinds of problems would usually arise in a case of some alleged misbehaviour on the part of a professor or a lecturer in the way he or she carried out his or her duties. This is not such a case and unless it was absolutely necessary to do so, I do not think it desirable to go beyond the general right to fair procedures which is required, for reasons which I will explain, prior to a purported termination of the contract of employment.
The contract of employment arises in the following circumstances.

Section 25(3) of the Universities Act, 1997 provides as follows:-

“Except as otherwise provided by this section, the employees of a university shall be employed on such terms and conditions as the university from time to time determines”.

As I have already indicated, subsection (6) of that section qualifies the complete freedom of the university to impose its own terms and conditions.
The respondent was appointed to his post with the appellant by a letter of appointment of the 24th July, 2001. That letter contained (inter alia) the following sentence:

“The main terms and conditions of your employment are set out in the attached Statement of Terms and Conditions of Employment which is given to you for record purposes and in compliance with the Terms of Employment Information Act, 1994.”

Paragraph 14 of that Statement of Terms and Conditions of Employment contains the following provisions:-

“14.1 Your contract of employment will be terminable by yourself on giving the university not less than one academic term’s notice in writing, and by the university on giving you the higher of
14.1.1 Three month’s notice; or
14.1.2 One week’s written notice for each complete year of service up to a maximum of twelve week’s written notice.

14.2 The university reserves the right to terminate your contract without notice if it has reasonable grounds to believe you are guilty of gross conduct or gross negligence.”

The rest of the paragraph is not relevant. Section 33 of the Universities Act, 1997 empowers the university to make statutes and regulations “as it considers appropriate to regulate the affairs of the university”. In pursuance of this power, the governing authority of the appellant made Statute No. 3 of 2001 which is headed “Suspension and Dismissal of Employees”. Paragraph 1 of this statute provides that it shall apply “to all employees and officers of the university.” The same paragraph contains the following provision:-

“The procedures set out in this statute shall not apply to dismissals by reason of a redundancy which may be effected by decision of the President of the University following consultation through normal industrial relations structures operating in the university with recognised staff associations or trade unions, as appropriate.”

It is implicit in that provision that the procedures “set out in this statute” are to apply to all other kinds of dismissal. The procedures that are specified in the statute for the most part relate to allegations of misconduct and they cannot be expressly construed as applying to the facts of this case. But it seems clear both from the Act and the statute and at any rate from the fact that the appellant was clearly an officer of the university, that an obligation to afford him fair procedures before dismissal must be implied. The fair procedure that was required here was a warning that a notice of termination would follow if within a specified reasonable period the appellant did not clarify his position as to whether or when he was leaving the university. That was not done. That failure is sufficient to determine the case in favour of the respondent but it must be said that his position is less than fully meritorious.
Not only did time elapse between the purported termination and the hearing in the High Court but almost three further years have elapsed since the High Court hearing. In accordance with well established principles neither the High Court nor this court can permit an injunction to be made against the appellant which is wholly impracticable or cannot properly be supervised by the court. In my view, the appeal should be dismissed but no final decision should be made as to the form of order without a further hearing preceded by written submissions from both parties as to the form of order and any relief to be granted.

There is one other matter which I should mention. I have not thought it necessary to refer to case law. As in so many employment cases, previous court decisions are not of much assistance. I say this with particular regard to Fanning v. UCC [2008] IESC 59 (28th October, 2008) unreported judgment of the Supreme Court (the High Court judgment by Gilligan J. having been referred to in this case) and R v. Hull University Visitor [1991] 1 WLR 1277. Neither of these cases seem to me to be directly in point.

Bergin -v- Galway Clinic Doughiska Ltd

[2007] IEHC 386 (02 November 2007)

Mr. Justice Clarke
1. Introduction
1.1 The plaintiff (“Mr Bergin”) is currently the Chief Executive of the defendant (“Galway Clinic”). He has held that post since the middle of August of 2006. Previous to that, Mr Bergin had held a significant office with ESB International working in Pakistan. In order to take up employment with Galway Clinic, he resigned that post and relocated to Ireland. Issues have arisen between Mr Bergin and Galway Clinic which have led, at a minimum, to a significant disciplinary process being invoked by the Clinic. From Mr Bergin’s point of view it is suggested that, in substance, a decision to dismiss him has already been taken.
1.2 It will be necessary to address the circumstances which have led to that state of affairs in due course. However it is important to note at this stage that Mr Bergin commenced proceedings on the 10th day of July, 2007 claiming principally declaratory and injunctive relief and, on the same day, obtained an interim injunction restraining Galway Clinic from dismissing him from his position or publishing or making any statements inconsistent with Mr Bergin continuing to be Chief Executive of Galway Clinic.
1.3 That interim injunction was continued from time to time while the parties exchanged very substantial affidavit evidence. The interlocutory hearing ultimately
took place on a number of days in early October. This judgment is directed towards the issues which arose on that interlocutory hearing.
2. Background Facts
2.1 Galway Clinic employs in the region of 360 people, having commenced operations in June 2004. Galway Clinic has a medical advisory committee (“MAC”) which is involved in the decision making process in relation to medical matters within the clinic. The precise status of some of the decisions or recommendations of that committee are, potentially, a matter of at least some disagreement between the parties. In any event the issues which give rise to these proceedings can be traced back to the granting of operating and admitting privileges (“privileges”) to a consultant surgeon (“EM”). As EM is not a party to these proceedings, I do not consider it necessary to name him. The MAC had recommended against the granting of privileges to EM. Mr Bergin states that he was not satisfied that there was any basis for the refusal of the grant of privileges in that, in his view, EM met the criteria which had been determined for such a grant of privileges. Mr Bergin also states that, in his view, it is clear that the final decision in relation to such matters was to be his (that is to say that of the Chief Executive Officer). This is disputed by Galway Clinic. In those circumstances Mr. Bergin did not follow the advice of the MAC and proceeded to grant the relevant privileges to EM.
2.2 There is no doubt but that this matter led to some significant friction between Mr Bergin and at least some members of the Board of Galway Clinic. It would seem that, on the advice of Galway Clinic’s solicitor, a letter was written by Mr Bergin to EM, in which Mr Bergin suggests that his conferring of privileges on EM was in excess of his powers as CEO. However Mr Bergin maintains that this letter was written, not because he truly believed that he had acted in excess of his powers but because Galway Clinic’s solicitor had advised that a letter in that form was the best way of attempting to bring about a situation where an agreement could be reached with EM which would lead to a termination of the privileges concerned. The precise circumstances which led to the writing of that letter, and the inferences which it may be proper to draw from same, are not matters which can be resolved on the basis of the affidavit evidence tendered and will have to await a full trial.
2.3 Thereafter, it is common case that certain discussions took place between Mr Bergin and the Chairman of the Board, prior to Mr Bergin going on three weeks holiday in France towards the end of June. On Mr Bergin’s case, while the matter of the conferring of privileges remained under discussion, it was not, prior to his return from those holidays, apparent to him that any disciplinary issues had arisen.
2.4 On Mr Bergin’s return from holidays he attended a meeting of the Board, which was also attended by Galway Clinic’s solicitor. There is some dispute between the parties as to precisely what occurred at that Board meeting. It is common case that issues concerning the grant of privileges to EM were stated to be a significant issue from the Board’s point of view. It is also common case that Mr Bergin was not, in express terms, informed that he was dismissed. However on his case it is submitted that the substance of the meeting reasonably conveyed to him that the Board had determined that he was guilty of serious misconduct and was concerned only with the question of whether there might be any mitigation which might lead the Board not to invoke the summary dismissal entitlements set out in his contract. Again a resolution of the factual disputes as to what happened at the Board meeting and a determination of the appropriate inferences to be drawn as to the actions and positions of the parties, will have to await a full hearing.
2.5 It is also important to note the terms of Mr Bergin’s contract. The relevant written contract of employment runs to some four pages. Most of the terms are of no relevance to the dispute which has now arisen. Clause 15 deals with “termination of employment” and is in the following terms:
Termination of Employment:
Either party may terminate this agreement on three months written notice to the other.

In the event of service of a notice of termination by either party, the Employer shall be entitled to require that you not attend your place of work during such period of notice (or any part thereof) or otherwise terminate your employment with immediate effect and pay your salary in lieu of notice.

The Galway Clinic will be entitled to immediately terminate your employment without notice if you:
a) are in gross default or wilful neglect in the discharge of your duties under this contract or commit any serious breach or non observance (or after warning, repeated breaches or non observance) of any terms of this agreement or any of the policies or regulations made by Galway clinic from time to time, or
b) Commit any grave misconduct or grave default or any conduct tending to bring yourself or Galway Clinic into disrepute or affecting the business of Galway Clinic, or
c) Be incapacitated through accident, ill health or otherwise and are prevented from attending to your duties under the terms of this agreement for any consecutive period of 120 days or more or for periods aggregating 35 weeks or more in any period of 52 weeks consecutive weeks, or
d) Are adjudged bankrupt or make any arrangement or composition with your creditors, or
e) Are convicted of any criminal offence other than an offence which in the reasonable opinion of the Board of Galway Clinic does not affect your position as Chief Executive of Galway Clinic.

2.6 It is also important to note that Clause 12, under the heading of Disciplinary Policy simply states: –
“See Section 12 of the employee manual”
2.7 Section 12 of the employee manual sets out a detailed disciplinary policy which, in the context of this case, includes under the heading “Serious Misconduct” the following:
“There are certain types of conduct which constitute grounds for immediate dismissal without recourse to the disciplinary procedure. They include
· Gross Insubordination
· False declaration of employment/qualification history
· Theft, unauthorised use of property belonging to the Galway Clinic, or to another employee, patient, or visitor
·
· Being under the influence of alcohol or drugs
· Possession of a weapon
· Physical Violence
· Gross Indecency
· Disclosure of confidential information, pertaining to the activities of the Galway Clinic, patient details, or staff details to an unauthorised source

This list is not exhaustive.”
In addition the disciplinary procedure notes that all employees have the right to appeal against any action taken, following application of the disciplinary procedure.
2.8 It does have to be said that Mr Bergin’s contract, arguably, suffers from the difficulty that is frequently encountered when one document, of general application, is purported to be incorporated into another document designed for one individual case. Given that Mr Bergin is the Chief Executive Officer, it would seem unlikely that any entity other than the Board or an appropriately appointed sub-committee of the Board, could deal with serious disciplinary issues arising in relation to him. On the other hand it is not immediately apparent how, if that be the case, there could be an effective appeal unless, perhaps, the initial hearing were to be by a sub committee of the Board with an appeal to the full Board excluding those that had served on the sub committee. Again the precise interpretation of the relevant aspects of Mr Bergin’s contract of employment are a matter which will have to await, in the light of that ambiguity, a full hearing. Furthermore the application of whatever terms may be determined as being applicable to Mr Bergin in a disciplinary context to the facts is also a matter which cannot be determined at an interlocutory hearing.
2.9 As there was a dispute as to the principles applicable to the grant or refusal of interlocutory relief in relation to employment contracts, such as that of Mr Bergin, I should, therefore, turn first to that issue. However, before doing so, I should set out the principal issues which are put forward on behalf of Mr. Bergin as the basis for his contention that Galway Clinic are in breach of his contract of employment.
3. Issues to be tried
3.1 The principal contentions made by Mr. Bergin are to the following effect:-
(a) It is said that the Board was guilty of a prejudgment in that it determined that he was guilty of misconduct without giving him an opportunity to be heard;
(b) In addition, it is suggested that the appropriate inference to draw from what transpired at the meeting of the Board concerned was that Mr. Bergin was in fact dismissed without being given an opportunity to be heard;
(c) It is suggested that the involvement of at least some members of the Board in the process is such as would give rise to an appearance of bias, thus debarring the members concerned from any further involvement in the disciplinary process relating to Mr. Bergin; and
(d) Finally it is said that by reason of having invoked a disciplinary process based on an allegation of misconduct, the Board is now debarred from exercising its entitlement (which would otherwise arise) to terminate on three months’ notice in accordance with the terms of the contract.
3.2 Whatever may be the standard by reference to which Mr. Bergin has to establish a case to be tried under any or all of those issues (and that is a matter to which I will shortly turn), it is, of course, clear that he only has to establish the necessary standard in respect of any one such ground in order to have met the standard. It follows, therefore, that provided any one ground meets that standard it is unnecessary to consider the status of any of the other grounds put forward.
4. The Legal Issues
4.1 There have been a significant number of decisions over the last number of years both of this Court, and to a lesser extent, of the Supreme Court, in relation to what might loosely be called employment injunctions. I think it is fair to state that this area of the jurisprudence of the courts is in a state of evolution and the precise current state of that jurisprudence is far from clear. This situation is not, in my view, helped by the fact that a great many of the cases do not proceed to trial so that by far the greater number of the authorities consist of decisions of the court at an interlocutory stage rather than after a full hearing. While such authorities may be of very considerable assistance in defining the jurisprudence in relation to the grant or refusal of interlocutory injunctions, same may do little to advance the cause of clarity in respect of employment law generally, for the court is required to approach issues of general employment law, at the interlocutory stage, on the basis of arguability or, perhaps, where the injunction sought is mandatory in substance, likelihood of success. In either case a definitive decision on the legal issues arising (with the exception of those which are relevant solely to the grant or refusal of interlocutory relief) has to await a full trial. In practice the full trial rarely arises. It is the frequent experience of the court dealing with such matters that a great many of the cases which are the subject of an interlocutory ruling are resolved by agreement between the parties before the matter comes to trial. It would be somewhat naïve not to surmise that a significant feature of the interlocutory hearing is concerned with both parties attempting to establish the most advantageous position from which to approach the frequently expected negotiations designed to lead to an agreed termination of the contract of employment concerned. The employee who has the benefit of an interlocutory injunction can approach such negotiations from a position of strength as can the employer who has successfully resisted an interlocutory application.
4.2 The first legal issue which arises between the parties on this application is as to the appropriate standard to be applied in assessing the case which the plaintiff has to make out at this interlocutory stage. It is clear from cases such as Fennelly v. Assicurazioni Generali [1985] 3 I.L.T. 73 and Maha Lingham v. Health Service Executive [2006] 17 E.L.R. 137, that a plaintiff may be entitled to injunctive relief which would have, to some extent, the effect of continuing his or her employment but only, it would seem, where the plaintiff concerned can establish a strong case. That such can be the case even though damages might well be the appropriate remedy at trial, is clear from, for example, Shortt v. Data Packaging Ltd (1994) ELR 251 and Phelan v. BIC (Ireland) Ltd (1997) ELR 208. As noted by Fennelly J. in Maha Lingham the traditional view at common law was to the effect that, as he put it, :-
“The employer was entitled to give that notice so long as he complied with the contractual obligation of reasonable notice whether he had good reason or bad for doing it. That is the common law position and it is an entirely different matter as to whether a person has been unfairly dismissed and a different scheme of statutory remedy is available to any person dismissed whether with or without notice under the Unfair Dismissals Act but this is not such an application. This is an action brought at common law for wrongful dismissal in the context of which an injunction was sought.”
4.3 It is also important to note that Fennelly J. went on to deal with what he described as “a very strong trend” in those cases in which injunctions had been granted, to the effect that such cases were derived from circumstances 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, been honoured. I expressed similar views in Carroll v. C.I.E. (2005) 4 IR 184, concerning those cases where the courts seem to have departed from the view that damages were the appropriate remedy in circumstances where an employee was dismissed in breach of contract.
4.4 Fennelly J. went on to note a second element in the development of employment law which seems to imply an obligation to comply with the rules of natural justice in cases of a dismissal by reason of misconduct. However, as that issue did not arise in the context of the case under consideration, no further comment on that aspect of the jurisprudence was made.
4.5 Applying Maha Lingham in Naujoks v. National Institute of Bioprocessing, Research and Training [2007] 18 E.L.R. 25, Laffoy J. undoubtedly applied the strong case test in determining that the plaintiff had not discharged the onus in relation to what was described as the first strand of the plaintiff’s case.
4.6 Laffoy J. went on to consider a second strand of the plaintiff’s claim which related to fair procedures. It is suggested by counsel on behalf of Mr Bergin that Laffoy J., in relation to that strand, applied the ordinary, or lower, standard of fair case to be tried. I am not satisfied that Laffoy J. did, in fact, apply a lower standard. Indeed it would be difficult to see the logic of so doing. The basis for the higher standard is that the substance of the relief sought is a mandatory order requiring the employer to keep the employee in employment. The order remains a mandatory order, even though the plaintiff claims that a purported termination of his employment is unlawful by reason of a finding of wrongdoing having been arrived at in breach of the principles of natural justice. However couched, the substance of the relief is the same. I am not, therefore, satisfied that different standards apply depending on the nature of the claim advanced on behalf of he plaintiff concerned. 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 continue and that his employment entitlements are met.
4.7 It follows, in my view, that, in order to determine whether the first step towards granting such an order has been met, it is necessary that the plaintiff concerned establish a strong case.
4.8 It does not seem to me, on balance, to be logical to impose a different standard where the purported dismissal of the employee concerned stems from reasons other than misconduct on the one hand, or resulted from a finding of misconduct on the other hand. While proceedings taken before the Employment Appeals Tribunal under the Unfair Dismissals Act, 1977 raise different issues, the existence of an obligation on the part of an employer to comply with the rules of natural justice in considering an allegation of misconduct against an employee, at common law, stem from an implied term in the contract of employment of such employee to that effect (or, indeed, as is the case here, from an express term to like effect). In the case of most contracts of employment, the issues which arise involve no questions of public law. The legal relations between the employer and employee are purely governed by the contract of employment together with any applicable statutory provisions. So far as the common law is concerned there is not, therefore, in my view, in principle, any difference between an allegation that an employer is in breach of contract by having failed to apply an appropriate process in leading to a conclusion of misconduct which in turn might lead to a dismissal on the one hand or had failed to (say) honour a fixed term contract for its full period, on the other hand. Both are allegations of breach of contract.
4.9 I have also considered whether the fact that a finding of misconduct might have an effect on the reputation of the employee concerned, in addition to the consequences for his contract of employment, could be a possible factor for taking the view that different considerations might apply in the grant of interlocutory injunction in such cases. There is no doubt but that a finding of misconduct (particularly if serious) could have a significant effect upon an employee beyond the loss of his contractual entitlements under his contract of employment. Such an eventuality might well, legitimately, permit a court to grant interlocutory relief, without being satisfied on the higher standard, where such interlocutory relief is designed to prevent any publication of a finding of misconduct or other publication from which persons might reasonably infer that a finding of misconduct had to have been made. A statement to the effect that a person had been summarily dismissed in circumstances where the only inference to drawn from such a statement was that the person had been guilty of significant misconduct would be a case in point.
4.10 However, this issue has to be seen against the background of the fact that an employer can, in principle, at common law, terminate a contract of employment on reasonable notice without giving any reason. There may, of course, in practise, be many reason why an employer may not wish to take that course. Firstly he may be exposed to a liability under the Unfair Dismissals Act, 1977. Secondly there may well, in many cases, be the potentiality for industrial relations difficulties. However, it is important to remember that in proceedings taken before the courts, the employee concerned is asserting his common law rights. Those rights are based on his contract on employment and do not involve any public law element as such even though the principles of natural justice may, for the reasons which I have set out, be imported into that contract. Any breach of the principles of natural justice is, therefore, in the context of an employment injunction, a breach of contract rather than a matter or public law. There does not, therefore, seem to me to be any basis for treating such an allegation of breach of contract in a different fashion from any other.
4.11 I should finally add that it does not seem to me to be appropriate to make a distinction as to the stage at which a disciplinary process has reached, in determining the entitlements of an employee to an injunction. It can hardly be the case that the entitlement or otherwise of an employee to an injunction could depend on whether he happened to get to court before a particular stage had been reached. An employee who has already been summarily dismissed is undoubtedly seeking a mandatory injunction if he seeks to restrain the employer concerned from acting as if he had been dismissed. If, whether by luck, diligence, prescience or a combination of any of those, the employee concerned happens to seek an injunction before the employer has made a final decision (even by, say, a matter of hours) such an application could be couched as one restraining the dismissal but, for reasons similar to those relied upon by Fennelly J. in Maha Lingham, I am satisfied that the substance of such an order, if made, remains mandatory. It was, amongst other things, for reasons such as that, that I expressed the view in Becker v. St.Dominics Secondary School (Unreported, High Court, Clarke J. 13th April 2006), and further cases which followed it, that the courts should only intervene in the middle of a disciplinary process in a clear case. I note that Feeney J. has expressed a similar view in a subsequent ex tempore judgment.
4.12 I have, therefore, come to the view that in any case in which an employee seeks to prevent a dismissal or a process leading to a dismissal, as a matter of common law, and in whatever terms the claim is couched, the employee concerned is seeking what is, in substance, a mandatory injunction which has the effect of necessarily continuing his contract of employment even though the employer might otherwise be entitled to terminate it. In those circumstances it is necessary for the employee concerned to establish a strong case in order to obtain interlocutory relief. I should emphasise that, at a full trial, the employee concerned is, of course, entitled to whatever relief the court might consider appropriate although, again, on by far the preponderance of the authorities, it is likely that, in most cases, the employee will be confined to a claim in damages. Most of the exceptions stem from special circumstances. For example in Carroll I declared void a decision to dismiss but, as is clear from the judgment in that case, it was in circumstances where the real issue was as to whether the plaintiff concerned was required to go straight to an appeal or was entitled to have a “first instance” hearing conducted again. I should also emphasise that there may be cases where, for one reason or another, different considerations apply. It is, for example, at least arguable that public law considerations come into play in at least some offices or employments which are governed directly by statute. It may well be that different considerations apply in such cases. The comments which I have made about the standard to be applied in this case are those which, in my view, are applicable to a purely private contract between two private individuals or entities.
5. Application to the Facts of this Case
5.1 Against that background the first matter which I must address is as to whether Mr Bergin has made out a strong case. In my view he has. I am mindful of the emphasis placed by Laffoy J. in Naujoks on the importance of the court refraining from attempting to assess the likely result of contested factual issues. However even on the basis of the evidence put forward on behalf of Galway Clinic, it seems clear that a significant adverse finding in relation to Mr Bergin had been made in advance of his attendance at the Board meeting which is at the centre of these proceedings.
5.2 I accept the submissions made on behalf of Galway Clinic, that the precise operation of the rules of natural justice in the context of contracts of employment is a matter in respect of which the courts must apply a significant degree of flexibility. For example in Mooney v. An Post (1998) 4 I.R. 288 Barrington J., speaking for the Supreme Court, noted that the employer who makes a decision will, in a sense, be a judge in his own cause. That fact alone did not prevent the employer in that case from being entitled to make the decision concerned. However it is also clear from cases such as Charlton v. Aga Khan’s Studs (1999) E.L.R 136 that the proper interpretation of an employees contract of employment may require that certain persons not be involved in a disciplinary process because those individuals, in a personal and direct sense, are involved in the very issues which are under consideration. In the case of a very senior official whose employment is likely to be considered only at Board level it is, in my view, inevitable and acceptable that the Board should give some preliminary consideration to whatever issues may have led to a concern in the first place. How else, it can reasonably be asked, can a process involving a person such as the Chief Executive of a company, be commenced.
5.3 However, even on the basis of the case put forward on the part of Galway Clinic, there is, in my view, a strong argument in this case to the effect that there was a prejudgment of the question of whether there was, in fact, serious wrongdoing, without giving Mr Bergin a chance to be heard. While it might well be argued that Mr Bergin’s response at the Board meeting was somewhat precipited, it nonetheless seems, on the evidence currently available, to be the case that the Board had determined that serious wrongdoing had taken place. There is a world of a difference between a conclusion to the effect that there is evidence which requires an answer on the one hand and a decision that there was wrongdoing with an opportunity being given to point to mitigation on the other. On the uncontested parts of the evidence currently available there is a strong case to the effect that the latter is what happened here. The distinction is similar to the difference between “pure” investigations and those which reach conclusions which I noted in O’Sullivan v. Mercy Hospital (2005) IEHC 170. In that context there are a number of issues apparent on the papers which would at least have been capable of debate before any determination as to wrongdoing could properly be made.
5.4 There are references in some of the documents before me to a contention that Mr. Bergin’s actions in giving privileges to EM were motivated, at least in significant part, by what is contended to have been a friendship between Mr Bergin and EM. A determination in respect of that matter had a very real potential to significantly effect any view taken.
5.5 There also seems to be a significant issue as to whether, in fact, Mr Bergin did have authority to take a different view on the grant of privileges from that of the MAC. The importance of the combined effect of those two matters can be simply illustrated by considering, on the one hand, a situation where a Chief Executive Officer improperly overruled a decision of a body such as the MAC for the purposes of conferning a significant benefit on a friend with, on the other hand, a situation where a court was satisfied that, as a matter of the then existing structure within the hospital, that CEO was well within his rights to form his own independent view on the grant of privileges and where it was also clear that there was an entirely acceptable basis for the conclusion that EM met the relevant criteria. In the first case it would be difficult to escape the conclusion that very significant misconduct indeed had occurred. In the latter case it would be hard to conclude that any misconduct had occurred and, if the Board was dissatisfied with how things had worked in the case under consideration, a more appropriate response might be to alter the balance between the MAC and the Chief Executive or change the relevant criteria or both. That exercise is designed simply to illustrate that there were important issues, not just those of mitigation, which needed to be considered before any conclusion was reached. With that in mind, there is, in my view, a strong arguable case to the effect that, in order to comply with its contractual obligations, Galway Clinic was required to put the case sought to be relied on to Mr Bergin to afford him a reasonable opportunity to answer those matters before any conclusion was reached which was significantly adverse to his interest. On that basis I am satisfied that there is a strong case to the effect that the Board was not, in this case, involved in a pure investigation.
5.6 I am, therefore, satisfied that Mr Bergin has met the first leg of the test in that he has established a strong arguable case to be tried in relation to that issue. It is not, therefore, necessary to consider the other issues. I now propose to deal with the question of the adequacy of damages and the balance of convenience.
6. The Adequacy of Damages and the Balance of Convenience
6.1 The principal argument put forward on behalf of Galway Clinic under this
heading was that the injunction granted at the interim stage and, a fortiori, that sought at this interlocutory stage, was far too wide in its scope. Two points in particular are relied on. Firstly it is clear from the terms of Mr Bergin’s contract, as referred to at para. 2.5 above, that Galway Clinic is, in any event, entitled to terminate his contract on three months notice. The current injunction would prevent the Board from giving such notice. On that basis it is argued that irreparable harm would be caused to the Board in that, if it should succeed at trial, it would only be able to give notice after that successful conclusion, with a consequent further elongation of Mr Bergin’s contract in circumstances where the court would not have found any merit on Mr Bergin’s side.
6.2 Secondly it is noted that the form of injunction already in place prevents anyone else carrying out the duties of Chief Executive Officer and, indeed, if the court were persuaded to go further in accordance with the submissions made on behalf of Mr Bergin, the injunction to be granted now would require that he be allowed to return to work. In those circumstances it is said that Galway Clinic would be required to operate for a significant period through a Chief Executive Officer in respect of whom there were highly acrimonious court proceedings in being. It is said that such a situation could lead to irreparable harm being caused to Galway Clinic.
6.3 I am satisfied that there is significant merit to both of those submissions. It seems to me that potentially irreparable harm could be caused to Galway Clinic by requiring that it operate with Mr Bergin as Chief Executive Officer pending the trial of these proceedings. That harm would not be significantly diminished if Galway Clinic succeeded at trial. Any such harm would significantly outweigh any harm that would be done to Mr Bergin in the event that he should not obtain an order allowing him to continue with his duties but should succeed at trial. This latter point seems to me to be particularly strong in this case where, having regard to the breakdown in relations between the parties as evidenced by the affidavits, it seems to me highly improbable that, irrespective of the outcome of the proceedings, a court would be persuaded to make an order which would have the effect of requiring that Mr Bergin be allowed to continue with his duties. This view of the balance of convenience in employment injunction cases seems to me to be consistent with the view taken by McCracken J. in Gee v. Irish Times (2001) ELR 249 and O’Donovan J. in Doyle v. Grangeford Precast Concrete (1988) ELR 260.
I accept the view that an injunction could never be given in a case where it was suggested by the employer that trust had ceased is “far too sweeping” (see Robb v. London Borough of Hammersmith and Fulham) (1991) IRLR 72). This does not, however, mean that the state of relations between an employer and, in particular, key senior personnel must not be a very weighty factor in assessing the balance of convenience.
6.4 For those reasons it would seem to me that any order which, either directly or indirectly, required that Mr Bergin continue with his duties, would not meet the balance of convenience test. Clearly, on that basis, the order sought requiring that he be permitted to continue with his duties cannot be allowed. It also seems to me to follow that someone has to carry out the duties of Chief Executive Officer and that Galway Clinic cannot be prevented from appointing someone to carry out such duties. In those circumstances it seems to me that an order similar to that which I made in Evans v. I.R.F.B. Services [2005] IEHC 107 is appropriate. In that case the holder of a senior office with the International Rugby Board persuaded me that he had made out an appropriate case to the effect that he had a fixed term contract which could not be terminated save for limited reasons none of which appeared to exist on the facts of the case. In those circumstances I restrained the International Rugby Board from appointing anyone to the relevant post save on terms which would enable the court at trial, if persuaded that it was appropriate so to do, to direct that the plaintiff return to his duties.
6.5 It seems to me that an order of that type has the potential to minimise the “inconvenience” to both sides. The courts entitlement to make an effective order in favour of a plaintiff at trial is preserved. Any interference with the employers entitlements is also minimised in that he can get on, in a practical way, with making provision for the carrying out of the duties of senior management pending trial, subject only to a limitation that whoever carries out those duties needs to do so on terms which would allow a reversal of the situation in the event that the plaintiff should succeed to sufficient extent at trial to require that he be restored to duties.
6.6 In addition it does not seem to me to be appropriate to restrain the Board, if it should be minded so to do, from purporting to exercise an entitlement to terminate Mr Bergin’s contract of employment by giving notice in accordance with the terms of that contract. Whether or not such notice would be effective, in the light of the issues which have arisen in these proceedings, (and in that context I note the argument of counsel for Mr Bergin to the effect that, having instigated a potential dismissal process on the basis of misconduct, Galway Clinic is no longer entitled to invoke the clause providing for termination without reason) there does not seem to me to be any basis for restraining the process from being started at this stage. If such a notice is served then its validity can be considered at the trial of the action.
6.7 This latter point emphasises the need for an early trial in this matter and I propose putting in place measures to ensure that such occurs and to, hopefully, arrange that there be a final resolution of the issues between these parties in a time scale which would mean that the appropriateness or otherwise of the service of a notice of termination without reason (if that is what Galway Clinic chooses to do) can be determined before the expiry of that notice period.

7. Conclusions
7.1 It seems to me, therefore, that while Mr Bergin is entitled to an injunction. It should be confined to one which:-
(a) Restrains his actual dismissal; and
(b) Restrains Galway Clinic from appointing any person to carry out the duties of Chief Executive Officer save in circumstances where the appointment of such person contains terms sufficient to permit Mr Bergin to return to his duties as Chief Executive Officer should this court, after a full hearing, be persuaded to make an order to that effect.
7.2 I propose hearing counsel as to the measures necessary to ensure that the case be ready for hearing in early course.

Brennan -v- Irish Pride Bakeries (In Receivership)

[2017] IECA 107

THE COURT OF APPEAL

Finlay Geoghegan J.
Irvine J.
Hedigan J.

JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 29th day of March 2017
1. This is an appeal against an interlocutory order made by the High Court (Gilligan J.) on 22nd October 2015 restraining the appellant pending the determination of the proceedings from:

(1) Taking any steps for the purpose of effecting or implementing the purported termination of the respondent’s employment by letter dated 18th August 2015; and
(2) terminating the respondent’s employment save in conformity with his contractual entitlements; and

Ordering that the appellant continue to discharge the payment of the respondent’s salary, emoluments and other benefits under his contract of employment.

Background Facts
2. The background facts, as distinct from the motive for or effect of certain steps taken are not in dispute. The appellant, a company, was at the relevant time a manufacturer of branded and own label bread products which it sold nationwide. It had two plants, in Wexford and Ballinrobe. It also had a senior management team at an office in Dublin.
3. The respondent was employed by the appellant as Business Development Director upon the terms of an agreement in writing dated 1st February 2015. His normal place of business was at an office of the appellant at Rathcoole, Co. Dublin. His remuneration package comprised a salary of €110,000; employer pension contribution of 8% of salary; annual bonus; company car and health insurance for him and his family.

4. Clause 18 of the respondent’s contract provided:

“Except in circumstances justifying summary termination or termination consequent on the application of formal disciplinary procedure, the employee will be entitled to receive three months written notice of the termination of his employment. Such termination of employment shall be a ‘no fault’ termination. The company reserves the right to pay the employee’s remuneration in lieu of notice or continue payment during the notice period, while relieving the employee of any and all of his duties and responsibilities during the notice period.”
5. There was no contention of any circumstance justifying summary termination of the respondent’s employment or any disciplinary procedure leading to same. The appellant had granted security to Close Brothers Ltd. for financing. It appointed receivers on 11th June 2015, pursuant to a debenture dated 25th April 2014. On 15th June 2015, Bakers Holdings (Luxembourg) S.A.R.L. (“Bakers”) bought the loans due to Close Brothers Ltd. together with the rights and entitlements of Close Brothers under the debenture. By deed of appointment dated 15th June 2015, Bakers appointed Kieran Wallace and Shane McCarthy of KPMG Accountants as joint receivers (the “receivers”). The earlier appointment of receivers by Close Brothers was presumably brought to an end.
6. The receivers, pursuant to the deed of appointment of 15th June 2015 were appointed “to be the receivers and managers of and over all the undertaking, property and assets of Irish Pride Bakeries . . .”

7. The receivers initially maintained the business as a going concern. Mr. Wallace deposed that this was to ensure that all of the business could potentially be sold or acquired as a going concern.

8. The receivers sought bids and Pat the Baker (the “purchaser”) was deposed to have submitted the most attractive bid. A business and asset purchase agreement was entered into with the purchaser on 6th August 2015. Mr. Wallace stated on affidavit that:

“The Agreement provides for the sale and purchase of the defendant’s business excluding the Ballinrobe facility. It is envisaged that approximately 250 jobs will be secured by the proposed sale to the purchaser”.
It was also agreed with the purchaser that the EC (Protection of Employees on Transfer of Undertakings) Regulations 2003 (the “TUPE Regulations”) would apply to the transfer of the business. A purchaser was not found for the business and assets of the Ballinrobe facility and it was determined that a collective redundancy process would be carried out by the appellant in relation to the Ballinrobe facility prior to the completion of the sale of the business. The sale agreed was subject to approval by the Competition and Consumer Protection Commission.
9. Mr. Wallace also deposed that a separate redundancy process was commenced with the appellant’s senior executive team. He further stated that it was his understanding that “the purchaser does not require a stand alone executive management team for that part of the defendant’s business that it is acquiring”.

10. There was a meeting between Mr. Wallace and the respondent on 6th August 2015. Whilst there is some dispute about the detail of the meeting, which is not relevant, it is agreed that Mr. Wallace informed the respondent of a proposed termination of his employment by reason of redundancy on 21st August 2015.

11. The decision was formally communicated by Mr. Wallace as “joint receiver and manager” of the appellant by a letter of 18th August 2015. The respondent was informed in that letter that his “position as sales director will be made redundant with effect from 22 August next”. Further, he was informed that his last day of employment would be 21st August 2015; he would continue to receive salary and benefits up to that date and one week’s notice in lieu of a statutory notice entitlement.

12. The respondent applied for and was granted ex parte an interim order on 24th August 2015, restraining the appellant from terminating his employment or taking any further steps to effect same pursuant to the letter of 18th August 2015 pending further order.

13. Following an exchange of affidavits, the interlocutory application was heard and a written judgment delivered by Gilligan J. on 22nd October 2015, setting out the reasons for which he made the order under appeal.
Subsequent Events
14. By a letter dated 29th October 2015, the appellant purported to terminate the respondent’s employment with effect from that date and made a payment in lieu of his contractual entitlement to three months’ notice. The respondent contends that the respondent’s contract of employment did not terminate until 28th January 2016. The purchaser completed its acquisition of that part of the business of the appellant which it was acquiring on 12th December 2015. At the hearing of the appeal, the Court was informed that there are ongoing disputes in relation to alleged entitlements of the respondent against the purchaser pursuant to the TUPE Regulations. The events subsequent to the High Court decision are not relevant to the issues to be determined on appeal, save that they may be considered to render moot the appeal against the High Court interlocutory order.

15. The appellant has submitted that notwithstanding the undisputed termination of the contract of employment of the respondent (whether as of 29th October 2015 or 28th January 2016), the appeal raises important points of principle which have general application in receiverships. It is further contended that the respondent gave an undertaking as to damages (whilst this is not referred to in the order of 22nd October 2015, it is referred to in the order of 24th August 2015) and an order for costs was made in favour of the respondent against the appellant by a subsequent order of 29th October 2015.

16. The Court determined in all the circumstances of this particular appeal that it should hear and determine the appeal, notwithstanding the subsequent events. I would emphasise however that it is not the intention to express any view by this judgment in relation to matters in dispute by reason of steps taken after the High Court order of 22nd October 2015.
High Court Judgment
17. The trial judge considered carefully in his judgment the test set out by Fennelly J. in Maha Lingham v. Health Services Executive [2006] 17 ELR 137, of “a strong case” in relation to an application for what in substance was a mandatory interlocutory order. He concluded that the respondent, having regard to his contractual entitlement, had made out a strong case. He also considered the judgment of Kelly J. (as he then was) in the High Court in Shelbourne Hotel Holdings Ltd. v. Torriam Hotel Operating Company Ltd. [2010] 2 IR 52, where, at para. 86, he indicated that he was:

“much attracted by the approach of Hoffmann J. in Films Rover Ltd. v. Cannon Film Sales Ltd. [1987] 1 WLR 670, where he took the view that the fundamental principles on interlocutory injunctions for both prohibitory and mandatory injunctions is that the court should adopt whatever course would carry the lower risk of injustice if it turns out to have been the ‘wrong’ decision.”
The trial judge followed this approach and concluded that granting the injunction sought carried the lower risk of injustice if it turned out to be the wrong decision.
18. There were opposing submissions on the adequacy of damages which were considered by the trial judge. Having considered and referred inter alia to decisions of Laffoy J. in the High Court in Giblin v. Irish Life & Permanent Plc. [2010] 21 ELR 173, and Burke v. Independent Colleges [2010] IEHC 412, he concluded that damages would not be an adequate remedy and that the balance of convenience favoured the granting of the injunction.

19. The trial judge rejected the submission made on behalf of the appellant that the respondent was in some way attempting to rank ahead of other unsecured creditors. He accepted a submission on behalf of the respondent that to restrain a purported termination but not require that the respondent be paid his salary “would be a radical departure from existing jurisprudence and would not represent the correct balance to be struck between the interests of the parties”.
Appeal
20. The appellant advances essentially two submissions against the granting of the interlocutory order restraining termination of the employment and a further submission against the order directing payment of salary. The appellant firstly submits that the trial judge was in error in failing to accept that the respondent’s claim was in substance a claim for damages for breach of contract. Secondly, he submits that the trial judge was in error in not concluding that damages were an adequate remedy. In support of both these submissions, it was contended that the issue, both before the trial judge and this court, really related to the question of priorities in an insolvency situation and that the trial judge, in making the interlocutory orders, wrongly elevated the position of the respondent from a category of unsecured creditor to one of a preferential or super preferential.

21. A separate submission was made that even if the trial judge was correct in granting an interlocutory injunction restraining termination of employment, that he was wrong to direct the continuing payment of salary given the insolvency of the appellant.

22. Counsel for the respondent seeks to uphold the decisions of the trial judge on these issues by reference to the case law to which he referred and certain other decisions.
Discussion and Decision
23. Counsel for the appellant sought in submission to rely heavily on what he referred to as the insolvency of the appellant. Insolvency is a general term which can have many meanings. The issues must, it appears to me, be considered in the context of the factual circumstances of both the appellant and the respondent as disclosed on the affidavits before the High Court.

24. The appellant is a company in relation to which a debenture holder has appointed the receivers to act as receivers and managers of and over all of its undertaking, property and assets. The appointment of a receiver does not of itself alter or interfere with contracts entered into by the appellant with third parties, including its employees, see, inter alia, Griffiths v. Secretary of State for Social Services [1974] QB 468. In that sense, it must immediately be contrasted with the situation where either a resolution is passed or an order made for the winding up of a company and a liquidator is appointed. Where a receiver is appointed over assets of a company, existing contracts of employment between the company and the employees continue to subsist. No new contracts of employment come into being.

25. Mr. Wallace, in his affidavit, refers to his obligations as receiver to the debenture holder to realise the assets and minimise costs or losses associated therewith. Undoubtedly, such an obligation arises. However, insofar as the receiver is carrying on the business of the company or is taking decisions in relation to actions which are required to be done by the company, he is doing so as agent of the company. The debenture was not exhibited before the High Court, but there was no dispute to the submission made that the receiver was acting as the agent of the appellant in his dealings with the respondent. The claim made by the respondent is against the appellant alone and not against the receivers. The Court’s attention was drawn to sub-ss. 437(2) and (3)(m) of the Companies Act 2014, which expressly confer a power on a receiver “to engage or discharge employees on behalf of the company”. However, correctly, in my view, it was not submitted that this section confers a power on a receiver to do anything which the company itself could not do.

26. The trial judge was, in my view, correct in not considering that the claim of the respondent was, in substance, a claim for damages for breach of contract. The respondent had a contract of employment with the appellant. He was entitled to continue to be employed by the appellant subject to termination in accordance with the terms of the contract. The respondent established before the High Court a strong case that the purported termination for the reasons set out and on the terms set out in the letter of 18th August 2014, was not in accordance with the notice provisions in the contract.

27. It is important to recall that whilst the term ‘redundancy’ or ‘making a person redundant’ is used, that is a short term label and it is more correctly the dismissal of an employee by reason of redundancy or the termination of a contract of employment by reason of redundancy, see, for example, s. 7(1) of the Redundancy Payments Act 1967 (as amended). Thus, in relation to the respondent, the receivers on behalf of the appellant sought, in the letter of 18th August 2014, to terminate his contract of employment, by reason of redundancy, giving him only one week’s notice. However, the respondent established before the High Court that in reliance on clause 18 of his contract of employment, he had a strong case that redundancy was not a reason which permitted the appellant to depart from the 3-month notice provision. At the time of application for the interlocutory injunction, the appellant had not given three months’ notice. By only giving one week’s notice, there was a strong case that it had not validly terminated the contract of employment and therefore the respondent’s contract of employment subsisted. He was entitled, in accordance with his contract of employment, to remain in employment. Insofar as the giving of a one-week notice may be considered to have been a repudiation of the contract of employment, it is well established that unless the repudiation is accepted by the innocent party, it does not bring the contract to an end.

28. On the facts before the trial judge, there was a potential practical benefit to the respondent in restraining a purported termination of employment which was not permissible under his contract. If the respondent remained in employment with the appellant at the time of the proposed sale to Pat the Baker, it was contended that he might be able to benefit from the TUPE Regulations. The Court’s attention was drawn to Regulation 5 which provides that the transfer of an undertaking or business shall not of itself constitute grounds for dismissal, but paragraph (2) expressly provides that nothing in the Regulation is to be construed as “prohibiting dismissals for economic, technical or organisational reasons which entail changes in the workforce”. Nevertheless, it is submitted that the respondent, if he continued in employment, would be entitled to certain consultation and information under the TUPE Regulations and would also have the potential of opportunity of engaging with Pat the Baker.

29. Accordingly, I have concluded that the trial judge was correct in not considering the substance of the claim made by the respondent as being one for damages for breach of contract.

30. It is a separate question, although connected, as to whether the trial judge was or was not correct in concluding on the facts before him that damages would not be an adequate remedy.

31. The trial judge referred to and relied upon the approach taken by Laffoy J. in Giblin v. Irish Life & Permanent Plc. [2010] 21 ELR 173, where she stated:

“As with all other applications for interlocutory injunctions in deciding to grant an injunction in an employment context the court must be satisfied that damages would not be an adequate remedy for the plaintiff and that the balance of convenience favours the grant of an injunction. As a general proposition in the context of employment injunctions the jurisprudence of the court has developed over the last quarter century so that it is generally considered that the prospect of an award of damages following the trial of the action is not an adequate remedy for a successful plaintiff who has been deprived of his salary pending the trial of the action. In relation to where the balance of convenience lies because of the nature of the employers/employee relationship that issue must be determined having regard to the precise form of relief sought by the plaintiff and will bear in the type of relief the court is prepared to grant.”
32. I respectfully agree with the views expressed by Laffoy J. and relied upon by the trial judge herein. The trial judge had before him affidavit evidence of the respondent in relation to the employment position he gave up when he took up employment with the appellant and his total remuneration package. In addition, there was the sale to Pat the Baker agreed, albeit subject to regulatory approval and the potential benefit to the respondent of being employed at the date such sale completed. Accordingly, I would also uphold the determination of the trial judge that damages were not an adequate remedy for the respondent on the facts herein.
33. The final matter relates to the order made directing the payment of salary to the respondent. It appears to me that it is in respect of this order that what was deposed to as being the insolvency of the appellant is primarily relevant.

34. The origin of making such orders as part of an interlocutory order restraining termination of a contract of employment is stated to be the judgment of Costello J. in Fennelly v. Assiuanazioni Generali (1985) 3 I.L.T.R. 73 and approved of by the Supreme Court inter alia in Maha Lingham v. Health Service Executive [2006] 17 ELR 137, where Fennelly J. stated:

“There have been developments in the law in recent years and it is necessary to refer very briefly to the nature of these developments. The first is that, in this jurisdiction the development can be traced to the judgment of Costello J. in a case of Fennelly v. Assiuanazioni Generali (1985) 3 I.L.T.R. 73, in which an injunction was granted directing an employer to continue payment to the respondent, in that case, pending the hearing of the action, and that type of jurisdiction was exercised in an number of subsequent cases. It is fair to say however, that there is a very strong trend in those cases to the effect that where a person has a clear right to either a particular period of notice or a reasonable notice or has a fixed period of employment, a summary dismissal or a dismissal without notice or without any adequate notice is a first step in establishing the ground for an injunction in those sort of cases.”
35. The obligation to pay forms part of an employer’s obligations under a contract of employment. It is the obligation of the appellant on the facts herein. The receivers only act as the agent of the appellant in dealings with the respondent in relation to his contract of appointment. The appointment of the receivers did not affect the subsisting contract of employment nor did its terms permit termination without notice upon such appointment.
36. On the facts before the trial judge, whilst it was stated that the appellant was insolvent, nevertheless, the facts were that the appellant was continuing to carry on its business. Mr Wallace averred that the appellant’s business had “limited resources” to meet its liabilities. He further stated the receivers were obliged to make costs savings; that there was no need for the plaintiff either pre or post the proposed sale and that the “ongoing monthly costs pertaining to the plaintiff’s role were no longer economically viable within the business”. However, at the date of the purported termination of the respondent’s employment contract in breach of its terms, all of the business, other than possibly the business at the Ballinrobe plant, continued to be carried on. All other employees who remained in employment were being paid. The facts did not disclose an inability by the appellant to meet the payment on a current basis of employees who remained in employment. The plaintiff remained in employment.

37. The question as to whether or not the High Court should make an order directing payment of salary to an employee whose dismissal has been restrained by an interlocutory order depends, it appears to me, upon a determination of where the balance of convenience lies in the particular factual circumstances. In a situation where a receiver has been appointed over property and assets of the company, there could well be factual circumstances where the balance would mitigate against making such an order. If the facts of the case were such that an employer through its receivers could demonstrate an inability to pay current salaries and that inability to pay related not only to the individual employee but to a general body of employees, then of course the factual circumstances would be different and the balance of convenience might lie elsewhere.

38. However, this was not such a case. There was no evidence before the High Court that the appellant was unable to meet, out of current trading revenues, salaries payable to employees. It retained, at the time, in excess of 250 employees (the figure referred to in relation to the sale to Pat the Baker) and no suggestion that wages or salaries were not being paid in full.

39. Accordingly, I have concluded on the facts of this case that the trial judge was entitled to exercise his discretion on the balance of convenience in favour of making the order directing payment of salary. If no such order was made, then it would set at naught the very reasons for which, as identified in the judgments already referred to, the Court favours granting an injunction restraining dismissal, or in effect, a mandatory injunction requiring a continuation of employment in cases where an employee makes out a strong case that the dismissal is in breach of the contract of employment.

40. Finally, I do not accept that the order made interfered with any statutory priority applicable pursuant to s. 440 and Part 11 Companies Act 2014. The order made was against the appellant which then continued to trade. The payments to be made to the plaintiff were not in respect of any debt due at the date of appointment of the receivers nor was his employment terminated prior to or by the effect of the appointment of the receivers.
Relief
41. The appeal is dismissed.

John Garrahy (plaintiff) v Bord na gCon (defendant)

2001 No. 2001/16253P

High Court

14 February 2002

[2003] 14 E.L.R. 274
(O’Higgins J)
The plaintiff seeks an interlocutory injunction in the following circumstances. In or about May 1995 the plaintiff replied to an advertisement seeking the position of regulation manager with Bord na gCon, the defendant in this case. In September 1995 the plaintiff was offered the position. Following negotiations he accepted the position on a one-year fixed term contract. He agreed to work five mornings per week and to show the flexibility necessary to perform the required duties for an agreed salary of £25,000. He took up the position in March 1996. His one-year contract was subsequently extended for a further period of one year and after that he was made permanent in his position but still part-time.

After some time in the position, however, following the appointment of Mr Michael Field, as chief executive, the plaintiff maintains that he began to experience difficulties at work. The difficulties experienced by the plaintiff are set out in great detail in affidavits sworn on November 5, December 1 and December 12, 2001. It is not necessary here to set out the claims in detail, still less to adjudicate on them. They include, however:

(a) Allegations that Mr Field, the chief executive, and Mr Paschal Taggart, the chairman of the board, took as personal affronts matters which in effect were merely professional disagreements.
(b) Allegations that remarks were made that he took to mean that he should disassociate himself from the then chief executive, Mr Séan Collins, and the then financial controller, Mr Michael Russel.
(c) In the Spring 1998 that Mr Taggart without preamble requested that he resign and stated, inter alia, that it would be best if he vacated his position at a time of his own choosing but, in any event, in a matter of months.
(d) Some time later in 1999 that he was being excluded and sidelined from the senior management team which ran the board on a day to day basis. *278
(e) That he received phone calls from a member of the board ordering that a named candidate for a post who, in the view of the interview panel, did not merit inclusion in the final round of interviews was to be included in such round and was told by that board member that the chairman, Mr Taggart, had ordered this be done. This the plaintiff considered ‘just one more example of the continuous interference, undermining and intimidation’ of him by Mr Taggart, his agents and servants.
(f) Allegations that on two occasions he was pointedly and hurtfully excluded from public praise by the chairman and such public exclusion left, him embarrassed and humiliated.
(f) The chief executive ‘deliberately refused and neglected to address his remuneration in the hope that he would resign from his position with the board’.
(g) On July 7, 1999, Mr Field suddenly and without warning raised the plaintiff’s position as regulation manager and stated that ‘they felt that they needed someone full-time as regulation manager’ but refused to name any persons when the plaintiff asked him who they were. Moreover, the plaintiff alleges that although he asked twice if the ‘they’ to whom Mr Field referred could provide any examples of where the plaintiff’s non-full-time position had exposed or inconvenienced the defendant in any way, Mr Field refused to answer these questions.
(h) When an Australian fellow veterinary surgeon and plaintiff’s counterpart in the Australian Greyhound Racing Organisation came to Ireland in his official capacity and had several meetings with officers of the board, the plaintiff was excluded by Mr Field.
(i) At 10:10a.m. on September 27, 1999 he was handed a letter, dated September 22, giving him an ultimatum; either within four days to accept a full-time position at an annual salary of £35,000 and to confirm acceptance by October 1, 1999, or to resign his post no later than December 31, 1999. The plaintiff considered this ‘an orchestrated effort by Mr Taggart and Mr Field to force him out of the board’.
(j) The proposal to impose on the plaintiff an additional role for the plaintiff to be ‘the first line of action in administering fines and penalties’, an issue on which he had not been consulted.
(k) Abuse allegedly screamed at the plaintiff by the chairman of the board and his ejectment from a board meeting in consequence of which the plaintiff alleges he became the subject of ridicule and an object of derision.
(l) An allegation that Mr Field sought to ‘embarrass and belittle the *279 plaintiff’ by requesting him to respond to a question concerning what had transpired at the meeting from which he had been expelled.
(m) An attempt to exclude him from a further board meeting of January 21, 2001 which, when the plaintiff requested that his exclusion be put in writing, the exclusion was not followed through. Mr Field had stated that such exclusion had been at the behest of Mr Taggart. This is said by the plaintiff to be part of ‘an ongoing campaign to exclude, humiliate and embarrass’ the plaintiff in front of the staff of Bord na gCon.
(n) An alleged attempt to pressurise the plaintiff in an investigation he was asked to carry out under section 43(1) of the Greyhound Industry Act into the non-availability of the identity tag of a greyhound named ‘Zagato’ at Curaheen Park, Cork, on Saturday, September 23, 2000. The plaintiff regarded this as an improper attempt to interfere with the independent exercise of his functions.
(o) Notwithstanding the fact that the plaintiff had been asked by the chairman of the board to carry out an investigation into the franchise at the Cork track, he was criticised and upbraided by Mr Field for so doing and received a memo stating that unless he adhered to the duties assigned to him by the chief executive, his failure to do so would result in serious consequences for him.
Those are some of the allegations made by the plaintiff. It has to be stressed that the plaintiff’s assertions have been either contradicted seriatim and in detail by the defendants or otherwise explained by them in affidavits furnished on their behalf in a fashion that reflects no impropriety on them.

The defendants deny any wrongdoing in relation to the plaintiff and, in effect, state that far from bullying, harassing, obstructing or sidelining the plaintiff, they acted at all times properly towards him and the decisions which they made were proper decisions in a proper discharge of their duties.

It has to, again, be stressed at that it is no function of the court at this stage to adjudicate or express any view on the strength or the merits of the case in any way.

The first matter I have to decide is whether there is a fair issue to be tried between the parties. In this regard the defendant quite properly does not contend that there is not a fair issue to be tried. The plaintiff asserts that the documentation before the court discloses not one, but at least two fair issues to be tried, namely whether the employment of a person as a full-time regulation manager would constitute a breach of the plaintiff’s contract of employment or would merely constitute a change in work practice? The fact that there is a variation clause contained in the contract does not change the position that *280 there is a fair issue to be tried, although, of course, it may very well impinge on the merits of the case.

In this regard I was referred to part of the judgment of Kelly J in Rafferty v Bus Éireann [1997] 2 IR 424 where he held, inter alia, that the basic job description constitutes a condition of service. I was also referred to the judgment of O’Sullivan J in Harkins v Shannon Foynes Port Company [2001] ELR 75 where it was held that there was a fair issue to be tried as to whether the employment of another employee with duties overlapping those for which Mr Harkins had been employed constituted a change which would result in less beneficial services to the plaintiff in that case.

Secondly, I also accept that there is a fair issue to be tried as to whether the proposed appointment of a full-time manager is a manifestation of the victimisation, harassment, intimidation and sidelinng that the plaintiff alleged and whether it is a genuine appointment or purely an attempt to force him out of his employment. The inconsistencies alleged by the plaintiff together with the gravamen of the complaints raise a fair issue to be tried on that ground as well.

Having decided that there is a fair issue to be tried, the next matter which arises is in relation to the granting of an injunction which is a discretionary remedy and a number of factors arise in this regard, including the adequacy of damages. There is the argument that since no permanent injunction would be available in the terms of the notice of motion, that the order granted should not be sought. Also, that the court should be slow to grant an injunction in this case since, though couched as a negative injunction or a prohibitory injunction, in fact it is a mandatory injunction. Also, the court should be slower to grant an injunction to restrain a public body in the performance of its public function and there are a number of points in relation to labour law which the defendants say render damages to be the appropriate remedy, if the plaintiff be vindicated, rather than an injunction. The defendant also makes certain points in relation to the nature of the injunction being sought as being quia timet injunction. The defendant also makes the point that since this is a discretionary relief, the plaintiff should be precluded by reason (a) of his delay, and (b) in relation to questions about his bona fides, which I will deal with. Finally, the matter has to be considered under the heading of the balance of convenience.

In relation to the adequacy of damages, in order for the plaintiff to succeed in obtaining the interlocutory relief sought, the court must be satisfied, not that damages are not an adequate remedy, but that there is a doubt as to whether the damage would be an adequate remedy. In Ferris v Ward [1998] 2 IR 194 Blayney J stated at p.202:

It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or to both that the question of the balance of convenience lies.

*281 So, it has to be established prior to any discussion of the balance of convenience whether damages are an adequate remedy or not.

Mr Hayden in submitting that damages are an adequate remedy, relies on the judgment of Carroll J in the case of Foley v Aer Lingus Group [2001] ELR 193. In particular, where she stated:

The traditional relief at common law for an unfair dismissal is a claim for damages. Damage to reputation is also compensatable by an award of damages.

The plaintiff relies on the judgment of O’Sullivan J in the case already mentioned of Harkins v Shannon Foynes Port Company [2001] ELR 75. There are striking similarities between that case and the present one.

In that case the plaintiff sought to restrain the defendant from advertising the position of a harbour engineer, which job he said had been his own with the defendant for several years. In this case the plaintiff seeks to say prevent the appointment of a full-time regulation manager, a job which the plaintiff maintains he has had on a permanent but part-time basis for several years. In Harkins v Shannon Foynes Port Company [2001] ELR 75 there was no proposal to terminate the plaintiff’s employment, in this case there is no proposal to terminate the plaintiff’s employment.

In that case the plaintiff contended that there was a change of work condition and not merely a change in work practices. In this case too, the plaintiff claims, amongst other things, similar contentions. In other words, that the proposed appointment would constitute a change in his work conditions and not merely his work practices.

I accept the submission by Mr Hayden that there are considerable differences between the Harkins v Shannon Foynes Port Company [2001] ELR 75 and the present one, in that in the former case the extent to which the defendant was precluded from filling a new post was to ensure that an advertisement clearly identified the position. There is a considerable difference in that regard but, in my view, it is still of some assistance.

In that case O’Sullivan J stated as follows:

Despite the eloquent submission of the defendant’s counsel, I am left with the impression that there is a degree of overlap between the plaintiff’s present responsibilities and those of the new operations manager, or at least that the parameters of each have not been thought through with the boundary now insisted on by the plaintiff clearly in mind.

In my view, in the present case the functions of the plaintiff and the new proposed head of regulations appear to overlap to a very large extent. In that re *282 gard it is noteworthy that the advertisements for the respective positions are very similar indeed.

In Harkins v Shannon Foynes Port Company [2001] ELR 75 O’Sullivan J expressed a view that with regard to the balance of convenience, it is clear that if the defendant is permitted to continue making the present appointment, the plaintiff’s position at the trial will be devalued, possibly irretrievably, in a way that may not be compensated.

Furthermore, while in Foley v Aer Lingus Group [2001] ELR 193 it was stated that damages are the traditional relief at common law for unfair dismissal, it must be remembered that the present case is not concerned with dismissal, there being no purported dismissal of the plaintiff or no intention to his dismiss him according to the defendants.

With regard to the loss of reputation, it is undoubtedly the case that it is ‘compensatable by damages’, as said by Carroll J, but that does not necessarily mean that in all cases damages are an adequate remedy.

It is also of relevance to note that in this case the claim is not only to prevent an anticipated loss of reputation, nor is it confined to declarations concerning the bullying or harassment, but it is submitted that the appointment would ‘strike at the core of the plaintiff’s job’. Insofar as it is contended by the plaintiff that the purported new appointment is bogus and merely a rouse by which the plaintiff is to be sidelined and bullied and forced from the board, the damage would have been done by the making of the appointment. In my view, solely on the question of adequacy of damages, to which I will refer again later, damages would not appear to be an adequate remedy.

Mr Hayden further submits that having regard to the doctrine of the separation of powers and the recent decision of the Supreme Court in D.(T.) v Minister for Education [2001] 4 IR 259, that the plaintiff would not be entitled to a permanent injunction as the defendant is statutory body and has statutory obligations which would make it impermissible for the court to interfere with it. He makes the point that it is highly unlikely that an injunction would be granted, in the terms sought by the plaintiff on an interlocutory basis.

The question of the separation of powers is one more properly for the trial, but I am asked to take into account the fact that in the defendant’s submission it is unlikely that a permanent injunction would be made in terms sought. In that regard, it must be noted that the reliefs being pursued at the interlocutory stage are expressed to be sought until the trial of the action herein or until such other date as this honourable court may direct. A similar point to the point made by Mr Hayden was made in the case of Howard v University College Cork [2001] ELR 8. I adopt the same approach as that adopted by O’Donovan J in that case, where he said at p. 12 of the judgment:

… I take the point made by counsel for the defendant that, whatever (if *283 any) relief is afforded to the plaintiff at the trial of this action, it will not include the permanent injunction sought at subparagraph (h) and the declaration sought at subparagraph (g) in the prayer in the plaintiffs statement of claim. However, I do not think that that fact in itself is a sufficient ground to refuse the injunctive relief currently being sought by the plaintiff. While, as I have indicated, I do not think it possible that at the trial of the action the plaintiff could be awarded the permanent injunction and the declaration to which I have referred, I have little doubt but that the trial judge would accede to an application to amend the statement of claim by qualifying the claim for the permanent injunction by the addition of the words ‘except in accordance with law’ and by qualifying the declaration sought by the addition of the words ‘unless and until lawfully terminated’.

Mutatis mutandis the same principles apply in the present case.

Mr Hayden relies on the judgment of Kelly J in the case of Reynolds v Malocco [1999] 2 IR 203 at p.209 where the following passage occurs:

In an ordinary case the court considers whether the plaintiff has raised a fair or serious issue to be determined at the trial of the action. If it considers that such a question has been raised, it goes on to decide whether damages would adequately compensate the plaintiff in respect of any loss or damage which may be suffered as a result of the activity which is sought to be enjoined. If it decides that damages would not be an adequate remedy, it then proceeds to consider whether on the balance of convenience an injunction should be granted or not. (See Campus Oil v Minister for Industry (No. 2) [1983] IR 88 and American Cyanamid v Ethicon Ltd. [1975] AC 396).

These principles have a wide but not universal application. In a small number of cases special rules, which are not encompassed by these principles, apply. One such type of case arises in the field of contracts of employment. Normally courts will not grant an injunction to restrain breaches of covenant in a contract of employment if that would amount to indirect specific performance of such contract or would perpetuate a relationship based on mutual trust which no longer exists.

Another exception to the general principles which I have already described arises in cases of the type in suit. A plaintiff in an action such as this …

which was a defamation action:

… in order to obtain an interlocutory injunction, must show not merely *284 that he has raised a serious issue concerning the words complained of but that there is no doubt that they are defamatory. Furthermore, if the defendant intends to plead justification or any other recognised defence, normally an injunction of this type will be refused. The jurisdiction to grant interlocutory injunctions to restrain publication of defamatory statements has been described as one ‘of a delicate nature’ which ‘ought only to be exercised in the clearest cases’. (See the judgment of Esher MR in Coulson v Coulson (1887) 3 TLR 846). That approach was expressly approved in the Supreme Court in Sinclair v Gogarty [1937] IR 377. In the course of his judgment Sullivan CJ, with whom all four other members of the court agreed, said at p.384:

The principle upon which the court should act in considering such applications was stated by Lord Esher MR in Coulson v Coulson (1887) 3 TLR 846, and his statement of the principle was approved of and adopted by the Court of Appeal in Bonnard v Perryman [1891] 2 Ch. 269. The principle is this; that an interlocutory injunction should only be granted in the clearest cases where any jury would say that the matter complained of was libelous and where, if the jury did not so find, the court would set aside the verdict as unreasonable.

The defendant submits that in the present case he comes within both the exceptions mentioned by Kelly J. Firstly, that this was a contract of employment and, therefore, not proper to have an injunction granted. Secondly, that the plaintiff’s claim for loss of reputation is akin to the defamation and, in the words of counsel, is in essence a concealed plea of defamation by conduct.

The defendant’s references to the passages referred to Reynolds v Malocco [1999] 2 IR 203 deal with the question of interlocutory relief to restrain publication in defamation actions, particularly where there is going to be a plea of justification. The fact that the courts will only do so ‘in the clearest of cases’ is, in my view, of little, if any, assistance in the present case, because it is clear from the judgment of Kelly J at the same page, p.209, the reason for the reluctance of the courts to grant interlocutory injunctions in cases of this sort is grounded on the importance attached to the right of free speech. This has been the position from at least as far back as the decision in Bonnard v Perryman [1891] 2 Ch. 269 where Lord Coleridge CJ said at p.284:

… the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions.

These sentiments have been heeded by the courts and nowadays are fortified *285 by the provisions of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedom.

Lord Coleridge CJ went on to say:

The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done; and, unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed.

The concept of no injunction being granted in defamation cases, dependent as it is on the right of free speech, cannot, in my view, legitimately be transferred to the present case where no such considerations arise. Neither does the importation of the justification concept transfer to the present case. Although, the baldness of the assertions made could be a factor which the court could take into its consideration, I cannot accept Mr Hayden’s contention that the plaintiff’s assertions in relation to damages and in relation to the matters generally are, as he puts it, assertions in the extreme.

The defendant also submitted that this is in effect a mandatory injunction, though not couched in mandatory terms and refers me to p. 30 of Behan on Injunctions where the following quotation from Megarry J in Shepherd Homes Ltd v Sandham [1971] Ch. 340 at 351 is as follows, and this is concerning mandatory injunctions at an interlocutory stage:

the court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable prohibitory injunction. In a normal case the court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted; and this is a higher standard than is required for a prohibitory injunction.

There is a passage cited from the case of Redland Bricks Ltd v Morris [1970] AC 652 and that passage sets out the principles for the granting of a quia timet injunction but a mandatory quia timet injunction. A mandatory injunction can only be granted where the plaintiff shows a very strong probability on the facts that a grave damage will accrue to him in the future.

In my view, the injunctions sought in this case are not mandatory in nature. In my view, they are clearly prohibitory injunctions. The plaintiff does not seek to compel the defendants to do anything, rather they seek to prevent the defendant from taking certain action. Neither in form nor intent can the injunctions sought be realistically described as mandatory injunctions. So, the par *286 ticular considerations for mandatory injunction, in my view, are not applicable in this particular application.

The defendant submits that the authorities show that the extent to which the court would grant injunctions or injunctive relief in the context of an employment situation was; (a) to maintain salary or wage payments, and (b) to oblige an employee to make himself or herself available when called upon by the company, and submits that there is no case where the jurisprudence supports a claim such as plaintiff’s which is to ensure that the defendants are obliged to use the plaintiff and not to engage a permanent manager.

There is a well-established principle in labour law that the courts will not order a specific performance of a contract of employment. I have been referred to the case of Fennelly v Assicurazioni Generali SPA (1985) 3 ILTR 73, Boland v Phoenix Shannon plc [1997] ELR 113, Phelan v BIC (Ireland) Ltd [1997] ELR 208, Harte v Kelly [1997] ELR 125, Lonergan v Salter-Townshend [2000] ELR 15 and the recent case of Moore v Xnet Information System Limited [2002] ILRM 278, a judgment in the last few days of O’Sullivan J.

The case of Fennelly v Assicurazioni Generali (1985) 3 ILTR 73 was dealing with wrongful dismissal. The case of Boland v Phoenix Shannon [1997] ELR 113 was dealing with wrongful dismissal. The case of Phelan v BIC (Ireland) Ltd [1997] ELR 208 was dealing with wrongful dismissal. The case of Harte v Kelly [1997] ELR 125 was dealing with wrongful dismissal. The case of Lonergan v Salter-Townshend [2000] ELR 15 was dealing with wrongful dismissal. The case of Moore v Xnet Information Systems Limited [2002] ILRM 278 amongst other things, was dealing with wrongful dismissal. This case is not concerned with wrongful dismissal.

It is worth mentioning at this point that I was referred to the case of Johnson v Unisys Ltd [1999] All ER 854, part of the headnote of which reads as follows:

Where an employee was wrongfully dismissed from his employment, the damages could not include compensation for the manner of the dismissal … that any loss that he suffered [as a result of wrongful dismissal] would already have been met by the compensation awarded by the Industrial Tribunal.

I am told, but I have not been able to locate the passage, that Mr Forde in his recent book said that it is doubtful whether that will be followed here. However, I cannot see the relevance of the decision and, in any event, it deals with the scope of damages allowable for the manner of dismissal in an unfair dismissal case. In my view, it has nothing to say concerning the damages asserted by the plaintiff as likely to occur in default of an injunction in the present case, nor can I see that it has any application by analogy.

*287

The labour law cases, as I have already stated, do not appear to have much bearing on the present case which, though it is based against the background of differences at work, is not concerned with wrongful dismissal. While damages are a traditional remedy for wrongful dismissal and while the courts will not generally order specific performance of contracts for employment, the cases, as I pointed out, were wrongful dismissal cases. While the defendant’s submissions in relation to wrongful dismissals are correct, they do not deal with the matter in full, because of at least one of the cases to which I have referred, that is the case of Lonergan v Salter-Townshend [2000] ELR 15, there was an interlocutory order made by Macken J restraining the second and third-named defendants from appointing any other person to the position of chief executive other than the second-named defendant pending the hearing of the action, so that in one of the cases actually relied on by the defendants, there was in fact an interlocutory injunction restraining the appointment pending trial. The rationale for a non-granting of interlocutory injunctions, at least in part of the rationale, is the practical difficulty of overseeing the injunction and the difficulty of enforcing a specific performance. No such difficulty arises in the facts of the present case.

If and insofar as it is contended that the case of Smith & Others v Inner London Education Authority [1978] 1 All ER 411 established a different threshold for the obtaining of interlocutory relief in relation to public bodies than the test set out in American Cyanamid v Ethicon [1975] AC 396 it is doubtful indeed whether that case did set a different standard. While the passage at p. 418 of the judgment might give some support to that proposition, Browne LJ at p. 419 of the report said specifically:

Counsel for the authority submitted that the test should be different and the burden on the plaintiff higher when the defendant is a body performing public duties; he says that in such cases a plaintiff should be required to go further and establish a prima facie case or a strong prima facie case. I cannot agree that on this part of the case the nature of the defendant makes any difference, though it may be important when it comes to the balance of convenience.

Moreover, the headnote of the case states that the principles American Cvanamid v Ethicon Ltd [1975] AC 396 were applied. Clearly, however, the public interest might require different considerations when the balance of convenience is to be taken into account. That case concerned the closure of a school and it was held that in default of any real prospect of success, that it would cause a very great hardship in preventing the authority charged with particular duties from carrying out their functions.

Even if a higher standard were required to obtain interlocutory relief against *288 public bodies exercising their public functions, it is by no means certain that this would apply to all the functions ancillary to their main function as is the case here. Without fuller argument I am not prepared to hold that different criteria apply to public bodies and that different standards than in the American Cyanamid v Ethicon [1975] AC 396 case should apply.

It was also contended by the defendant that the injunction was in nature a quia timet injunction and the onus on the plaintiff was higher than it would otherwise be. I was referred to a passage in Byrne & Binchy (eds), Annual Review of Irish Law of 1998 , pp. 325–326:

Detailed consideration was given to the circumstances in which a quia timet injunction should be granted in the recent judgment of Geoghegan J in Szabo v Esat Digifone Ltd [1998] 2 ILRM 102. The plaintiffs who were schoolchildren attending a national school sought quia timet injunctions to restrain the erection and operation of a mobile phone base station in the grounds of a garda station located beside their school. Geoghegan J referred to the test employed in Attorney General v Manchester Corporation, namely the plaintiff must show ‘a strong case of probability that the apprehended mischief will in fact arise’ and stated that he was inclined to think that it went too far, although he did say that for a quia timet injunction to be granted there would have to be ‘a proven substantial risk of danger’, a view which he said was supported by the decision of the Irish Court of Appeal in Attorney General (Boswell) v Rathmines and Pembroke Joint Hospital Board [1904] 1 IR 161. In that case Walker LJ had also expressed the opinion that where there was conflicting expert evidence, the judge himself could not form a view as an expert and if the conflict left him in doubt, he could not in a quia timet action decide that the case for the plaintiff had been made out. Geoghegan J then went on to consider the correct principles to be applied in relation to applications for interlocutory quia timet injunctions and said that he would adopt the treatment of the subject in Spry on Equitable Remedies (4th ed.) at p.459 in which the author made it clear that there is no difference in the legal principles to be applied to interlocutory quia timet injunctions and any other kind of interlocutory injunction.

I am prepared to follow the judgment of Geoghegan J and to hold that there is no difference in the principles to be applied just because it is a quia timet injunction. I do, however, accept the proposition again quoted on the next page that:

However, as Spry pointed out in his consideration of quia timet injunctions in general, it should not be thought that it is never material that no *289 breach of the applicant’s rights has taken place at the time of the hearing of the application and if no breach has taken place, it may be more difficult to establish, as a matter of evidence, that there is a sufficient risk of a future injury to justify the immediate grant of an injunction.

In the present case there is a very high risk indeed because unless the injunction is granted, there is not only a chance that the defendants will make the appointment, they intend to, that is what their express intention, unless restrained by the court, is. In my view, therefore, the plaintiff has shown a proven substantial risk of danger and a strong case of probability that the apprehended mischief will in fact arise, as was the test in Attorney General v Manchester Corporation [1893] 2 Ch. 87.

The defendant submits that even if the plaintiff were otherwise to be entitled to the relief, he should be precluded from an injunction by reason of the delay. The following matters seem of relevance. In Spring 1998, according to the plaintiff, the chairman requested his resignation. It should, however, be noted that in his affidavit Mr Taggart puts an entirely different complexion on the meeting and indicates that the board had decided at that time not to renew the plaintiff’s fixed term contract. At the behest of Mr Field, in response to the request of the plaintiff himself, it was agreed to keep the plaintiff on in order to evaluate whether a part-time regulation manager was needed or not. However, in the Spring of 1998 the chairman requested his resignation.

Secondly, on July 7, 1999 the plaintiff says he was told that they felt they needed a full-time regulation manager.

Thirdly, on September 27, 1999 the plaintiff received a letter dated September 22, 1999, to which I have already referred, inviting him to become a full-time manager and giving him four days to make up his mind and giving him three months’ notice in the event of him refusing such an offer.

Fourthly, in his letter of September 2001 Mr Field indicated that the board had decided not to proceed at that time, that is 1999, with the proposed changes and continued on. The matter has now been raised again by the board and discussed by the board at its meeting of September 5, 2001 and decided to create a full-time regulation manager.

Fifthly, by letter dated October 22, 2001 Mr Field indicated that he was merely implementing a decision of the board which had been taken in 1999.

Sixthly, it also appears of relevance that in a strategic plan promulgated on February 13, 2001, that that plan referred to an assistant for the plaintiff as regulation manager. In December 2000 that plan was adopted by the board.

The affidavit from Mr Field takes issue with the plaintiff. He says that the decision made on October 15, 2001 to appoint a full-time regulation manager was carrying on from the previous decision. He believed that initially after the first decision had been made in 1999, that a part-time manager would not be *290 required as well as a full-time manager, but when the matter was revisited in October 2001, changes had occurred, the industry had developed and it now became apparent that there was room indeed for the retention of a part-time manager in addition to the proposed new full-time manager. He maintains that there is no inconsistency.

The reason why all of this is relevant is because it is addressed to the question of delay. In my view, even if one accepts entirely the explanation given by Mr Field and his version of what happened, there seems to me at least room for a difference of perception. In the circumstances of all that transpired in that correspondence, I do not think that it would be reasonable to preclude the plaintiff from relief on the basis of delay because at least from one point of view, there would have appeared, whether that is the reality or not, to have been a shift of ground as to whether the policy of having a full-time regulator had been cancelled or not. I do not think the defendant succeeds on the point of delay.

The next matter is in relation to bona fides. Counsel for the defendant submitted that the application for an interlocutory injunction must be bona fide and suggested a number of factors which would disqualify the plaintiff from the relief which he now seeks on the grounds that it is not bona fide as follows: (a) the tardiness of pressing his claim for remuneration between the raising of that issue in 1999 and actually pressing it in 2001; (b) the averment that he fears being dismissed and replaced is mala fides; (c) the lack of support by the people in his practice or his partners for his contention of projected financial loss in his veterinary practice in some way impinges on the bona fides of the application; perhaps most importantly (d) the omission in paragraph 34(b) of the second affidavit of the plaintiff to include a relevant part of a letter, namely the words ‘your position as part-time regulation manager will continue’. The defendant says this is misleading and contends that it amounts to a fundamental and serious misrepresentation, especially as the plaintiff deposes in the said paragraph ‘contrary to what Mr Field alleges in his affidavit herein, there was never any suggestion that I would be retained as a part-time manager’. I will deal with those matters seriatim. Even if it were accepted that the plaintiff was culpably tardy in pressing his claim for increased remuneration, in my view that does not impinge on his bona fides in relation to these proceedings. It is a matter of comment at the trial of the action.

The lack of support by way of affidavit or otherwise for his contention that financial loss is likely to accrue is at best again a matter of comment and something to be canvassed at the trial rather than an issue going to the bona fides of the plaintiff’s application.

The averment that he fears being dismissed and replaced, while there are assurances from the defendants in this regard, it seems to me to be an issue that can be canvassed at the trial, rather than something that I can decide now that *291 the plaintiff never believed that and that he was mala fides in making that assertion.

The matter at 34(b) is an important one and the relevant portion of the letter reads:

As you know, we have plenty of work at present and it may very well be when a full-time regulation manager is appointed, we may need to continue as a part-time regulation manager. The position will be kept under review.

The first sentence, in the paragraph which was omitted was:

Your position as part-time regulator will continue.

In my view, the sentence ‘your position as a part-time regulator will continue’ should undoubtedly have been included in the paragraph.

However, in the circumstances where the point is being made that the plaintiff had no guarantees relation to his retention as regulation manager, that sentence would not really have altered it because, although he says you are to continue as regulation manager, ‘the position is going to be reviewed’ and ‘it may well be’ are also words of qualification. So the plaintiff is correct when he says he had no guarantee that he was going to be retained and the inclusion of that sentence, which should have been included, does not provide necessarily such guarantee when taken in context. However, it is a serious omission and if I felt that it was designed to mislead the court, it would be a grounds for refusing the injunction.

In view of the fact, however, that the letter is exhibited in the same paragraph and the court therefore is referred to the full letter, I have to regard the omission as being something that happened through lack of care in view of the protracted nature of some of the affidavits, rather than something designed to mislead the court. I am not prepared to hold that the plaintiff was mala fides on that point.

It seems to me having decided that there is a fair issue to be tried, having decided that damages are not an adequate remedy and having dealt with the other matters raised by the defendant, such as the quia timet nature of the injunction, the alleged mandatory nature of the injunction, the alleged mala fides of the plaintiff, the alleged delay of the plaintiff and the other arguments which he raised in relation to the nature of these proceedings, that I have now to decide on the balance of convenience. It seems to me that there is little doubt in relation to the balance of convenience or, as it was put in the case of May LJ in Cayne v Global Natural Resources [1984] 1 All ER 225 at 237, ‘the balance of the risk of doing an injustice’ by granting the injunction. If one puts the bal *292 ance of convenience in those helpful terms, it seems to me that the balance of convenience clearly is in favour of granting the injunction. The loss to the defendant is the inconvenience caused by further delay in appointing a full-time regulator. The defendants are hindered if they win the case, they will have been hindered in getting on about their business and doing the business which they are charged by statute with doing.

In this regard I take into account the fact that according to the defendants themselves, they made this decision in 1999, left it in abeyance and resurrected it in 2001. In view of all that, the assertion of the inconvenience of delay has to be assessed against that background. I have no doubt it will be inconvenient. I am also told, and I accept the explanation of why it is not on affidavit because of the guillotine imposed, that the defendants have gone with the permission of the court and advertised a job and they have got who they consider to be the right person. I am conscious that that imposes a considerable constraint. However, it seems to me possible that that inconvenience can be dealt with by several ways which one could imagine and it is not for me to suggest what they are. One could readily imagine that if the person were to be paid pending the outcome, that would probably keep the person sweet. I do appreciate that there is anxiety, there is inconvenience and possibly financial loss, not to mention the matters that Mr Hayden argued in relation to possible unquantifiable questions about, for example, the lack of testing. We had the unhappy illustration at the Mullingar track where only five dogs were tested. I appreciate that is a point. I want to stress that I am not in any way commenting on the merits of the case because it is quite clear from the affidavits that this is a most bitter dispute and that practically everything which is said on one side is contradicted or explained by the other. It would be impossible to express a view on the affidavits alone and it would be quite improper of me to do so. If the plaintiff is correct in his contention that the decision to appoint a full-time regulator was and is a ruse to oust him, if the injunction were not granted in such terms and the plaintiff eventually won his case, the damage would already have been done irreparably. The plaintiff, even though he would have won his case, would be left with the situation where the defendant’s wrongdoing, if and when it was proved to be such, would actually have accrued to their benefit because they would have got the new person in place. In those circumstances, it seems to me that the balance of convenience must be in favour of the plaintiff.

I think that it should be taken into account, as I was urged by Mr Punch, that to some extent, although they were quite entitled to act as they did, the defendants by proceeding to advertise and select someone for the job, though not appoint them, put themselves in that position against the background and in the context of this particular litigation and, therefore, they cannot take advantage of that fact because it came about by their own actions.

In all the circumstances, I am prepared to grant the injunction. It only re *293 mains for me to hear counsel as to precisely the terms of the injunction in the notice of motion.

Reporter’s Note: The Court discussed with counsel the terms of the injunction. The defendant was restrained from recruiting or taking any further steps in the recruitment process of a full-time regulations manager. Counsel for the plaintiff argued that the status quo should not be maintained until the hearing of the action as the defendant could engineer a position to terminate the plaintiff’s employment. The court ordered the status quo as regards the plaintiff’s employment until the hearing of the action with no inference with the carrying out of his duties. If the defendant decided to terminate the plaintiff’s employment between the hearing of this application and the hearing of the substantive matter they must serve one week’s notice of their intention to terminate in order to give the plaintiff an opportunity to come to court prior to actual the termination. Nothing up to the hearing of the present application could be taken into account as regards any proposed termination. The plaintiff gave an undertaking as to damages. The parties were given liberty to apply.

Thomas Foy v University of Limerick

10 February 2021

unreported
[2021] IEHC 87
Mr. Justice Twomey

February 10, 2021

JUDGMENT
SUMMARY
1. This case considers the extent to which the public interest (in investigating the alleged misuse of the money in a publicly funded institution such as a university) is a factor in determining whether to grant an injunction to an employee who wishes to prohibit that investigation because of his fear of the potential harm the investigation may cause to his reputation.

2. The injunction is sought by the plaintiff (“Dr. Foy”), who is the subject of that investigation, against the defendant (the “University”). The background to the investigation is a matter of considerable public interest as evidenced by the fact that there was a Prime Time Investigates programme broadcast on RTÉ in May 2017 about the alleged misuse of funds in the University. This was followed by a hearing before the Dáil Public Accounts Committee on the 22nd June, 2017 and by a Special Report by the Comptroller and Auditor General on the Handling of Remuneration for certain senior staff in the University of Limerick in August 2018 which dealt with, in particular, the “ discretionary awarding of ‘professional added years’ for pension purposes ”.

3. Dr. Foy, who was the Director of Human Resources at the University at the relevant time, objects to the proposed investigation because he signed a settlement letter with the University dated 5th July, 2018 (the “Settlement Letter”) at the end of a mediation process. That mediation arose from concerns over his role in the giving of pension entitlements to employees, and in particular the award of professional added years to the pensions of certain employees of the University, including the pension of one particular employee, referred to herein as Mr. X.

4. Dr. Foy claims that the terms of this Settlement Letter are such as to prevent the University from investigating its current concerns (outlined in the letter dated 30th July, 2020 from the University to Dr. Foy – the “Investigation Letter”) over one particular aspect of Mr. X’s pension entitlements.

5. This relates to the transfer of years of pensionable service from Mr. X’s pension with his previous employer to Mr. X’s pension with the University. It is claimed that, as Mr. X received a refund of that pensionable service from his previous employer, he was not entitled to have those years transferred to his University pension. The University claims that the alleged unlawful transfer of additional years to Mr. X’s pension amounts to a loss to the University of almost €200,000.

6. Dr. Foy claims that the proposed investigation amounts to a breach of the Settlement Letter, which he says settled matters regarding the University’s concerns over his role in pension entitlements of employees of the University, including those of Mr. X. It is Dr. Foy’s contention that the Settlement Letter amounts to a full and final settlement of matters known to the University at the time of its signing, including its concerns over the transfer of years of pensionable service from Mr. X’s previous employer to Mr. X’s pension with the University.

7. The University claims that there is nothing in the Settlement Letter (which consists of three sentences) which prevents it from investigating matters of serious concern, such as its proposed investigation into the role of Dr. Foy in the transfer of Mr. X’s years of pensionable service.

8. To determine this issue, this Court considered not only the terms of the Settlement Letter but, as both parties have waived privilege, the terms of certain ‘ without prejudice’ correspondence exchanged prior to the execution of the Settlement Letter. It also considered the false sworn evidence provided by Dr. Foy in support of this application (which Dr. Foy now accepts is incorrect) and the public interest in the investigation of the alleged misuse of funds at a publicly funded institution.

9. For the reasons set out below, this Court concludes that the interlocutory injunction preventing the investigation, pending the trial of the action, should not be granted.

BACKGROUND
10. Dr. Foy commenced employment with the University on 20th October, 2005. On 28th May, 2008, he was appointed Director of Human of Resources and continued in that role until 5th July, 2018, the date on which the Settlement Letter was signed. He remains employed by the University although, in line with the terms of the Settlement Letter, he is currently on secondment to UniJobs, a subsidiary company of the University, where he is employed as Managing Director. Under the terms of the Settlement Letter, Dr. Foy’s employment with the University is due to end on 6th July, 2022.

11. The University claims that Dr. Foy, during his time as Director of Human Resources in the University procured the unlawful giving of pension credits to Mr. X, who was an employee of the University. In particular, the University claims that Dr. Foy procured the transfer of a number of years of pensionable service from Mr. X’s previous employer to Mr. X’s pension with the University, even though Mr. X had received a refund of contributions in respect of those years of service from his previous employer and therefore those years were not transferable.

12. The University claims that, in addition, Dr. Foy processed this transfer of additional years in an unusual manner by contacting the Pension Human Resources Officer in person to arrange the processing of the pension, that he instructed the Human Resources Officer what to process even though that was not within the rules of the scheme and that this resulted in no validation of data and no independent review of the process. Furthermore, the University avers that no instruction regarding the process was ever put in writing by Dr. Foy, which the University avers is most unusual. On this basis, the University wishes to investigate these matters.

13. It is helpful for an understanding of the issues raised, to set out in some detail the exact timeline regarding the various investigations conducted into the University, and the conclusions, where relevant, reached in the subsequent reports.

Prime Time Investigates and Public Accounts Committee

14. In May 2017, an RTÉ Prime Time Investigates programme reported on the financial affairs of certain third level institutions in Ireland, including the University of Limerick. The programme raised serious concerns in relation to the mismanagement of taxpayers’ money by the University, and, in particular, concerns were expressed regarding certain payments made by the University to former employees, including those payments made to Mr. X in relation to his pension.

15. On foot of the issues raised in the RTÉ Prime Time Investigates programme, in May/June 2017 the Public Accounts Committee (“PAC”) held meetings to discuss the financial accounts of the institutions mentioned in the programme, including those of the University. At one of these meetings, on 22nd June, 2017, the then newly appointed President of the University, Dr. Des Fitzgerald, was called and examined before the PAC and made a statement wherein he sought to address the allegations raised in relation to the finances of the University, including those concerns highlighted by the Prime Time Investigates programme. This Statement addressed several issues, including ‘severance and other payments ’ made by the University. These ‘ other payments’ were set out as comprising ‘ pension lump sum payments’ and ‘ pensionable added years’ given to two employees of the University, including Mr. X.

16. In the weeks and months following the broadcast of the Prime Time Investigates programme, several investigations and reports were commissioned by various institutions, including an internal review commissioned by the University itself.

The Thorn Report

17. In May/June 2017 the Higher Education Authority (“HEA”) was instructed by the Minister for Education to arrange for an independent review into the practices of the University regarding, inter alia, its financial governance, the review to be entitled ‘Independent Review of Certain Matters and Allegations relating to the University of Limerick’ . The HEA engaged Dr. Richard Thorn to carry out this review and to prepare a report on foot of his findings (the “Thorn Report”).

18. On 27th September, 2017, Dr. Foy was sent in advance a précis of the conclusions reached in the Thorn Report, specifically those conclusions reached pertaining to the actions of Dr. Foy himself as Director of HR. Those conclusions related, inter alia, to ‘ severance payments’ made by the University and noted that ‘ at least some of those severance payments breached public pay policy guidelines’.

19. The finalised Thorn Report was published in October 2017. That Report reached several conclusions, including in relation to payments made to senior managers employed by the University, including those payments made to Mr. X. The Report also made several recommendations, one recommendation being that the issue of payments made by the University to Mr. X, should be more fully investigated.

The Second Thorn Report

20. Arising from the recommendations made in the first Thorn Report, the HEA commissioned a second review, again to be conducted by Dr. Thorn. The terms of reference for this follow-up review set out that this ‘ specific review’ was to focus on matters relating to payments made to Mr. X. As part of this review, Dr. Thorn was asked to ‘examine and report on ’ the ‘processes and procedures’ followed in relation to the aforementioned payments and to examine the ‘ supporting documentation, senior management oversight and approval processes’ adopted during the relevant period.

21. It is helpful to recite in full the relevant terms of reference for this review:

“The HEA [Higher Education Authority] has accepted Dr Richard Thorn’s Independent Review of Certain Matters and Allegations Relating to the University of Limerick. […] The HEA has carefully considered the findings, particularly as they relate to the original allegations of financial mismanagement by Person B and C (at Section 6.10.12) and the recommendation dealing with severance payments and compromise agreements (at Section 6.2.9). The HEA considers the matters raised in the finding and recommendation noted to be of significant public interest and public accountability. The HEA now wishes that the portion of the recommendation in 6.2.9 that references the arrangements put in place for Persons [Mr. X] and K be the subject of separate, independent investigation, and not, as recommended, be undertaken by the University. […]

The Terms of Reference for this specific review to be as follows:
• Examine and report on the allegations made be Person B and C in relation to Persons [Mr. X] and K.
• Examine and report on the processes and procedures followed in the Accounts Payable Office in relation to the payments to Persons [Mr. X] and K.
• Examine and report on the nature of the work undertaken by Persons [Mr. X] and K including supporting documentation, senior management oversight and approval processes adopted during the period of rehire.” [Emphasis added]
22. By email dated 27th November, 2017, Dr. Foy was notified by the HEA and Dr. Thorn of this follow up review. That email asks Dr. Foy to provide a statement regarding his ‘ role’ in the rehire arrangements for Mr. X and asks him to explain the role he had in the ‘ approval and sign off’ in relation to the work undertaken during the period when Mr. X was rehired by the University.

The Deloitte Report

23. The University also commissioned its own internal review into its financial affairs and the issues raised by the PAC and in the RTÉ Prime Time Investigates programme. The University engaged the services of Deloitte to carry out this review into several specific issues, including termination payments, pensions, and other expenditure by the University.

24. The report prepared by Deloitte on foot of its findings was issued to the University in August 2017 (the “Deloitte Report”). The report raised issues regarding, inter alia, payments made to certain individuals and the way in which those payments were made.

The Report of the Comptroller and Auditor General

25. As a result of the issues raised before the PAC in May/June 2017, a further review was commissioned by the Comptroller and Auditor General. The remit of that Special Report was to examine the ‘ handling of remuneration for certain senior staff in the University of Limerick’. In particular, the Report was to examine the ‘ award of professional added years for pension purposes’ at the University, the way in which these pension payments were calculated and the outcomes for the University of the processes engaged by it.

26. A draft Report was issued on 18th June, 2018 and the final Report was published in late August 2018. This Report contains many detailed findings in relation to severance payments made to senior managers at the University, including those payments made to Mr. X. In particular, the Report contains detailed analysis of the pension payments made by the University and compares the cost to the University of the pension payments actually made to certain senior managers and the financial benefit that those staff members might have otherwise derived.

Mediation

27. As the various investigations and reviews were ongoing, it is clear that there was a significant breakdown in the relationship between Dr. Foy and the University. This is clear from the first affidavit of Dr. Foy wherein he avers that following a meeting with the President of the University on 9th May, 2017, he was ‘ extremely unhappy’ with how he was being treated at that time and avers that his relationship with the University ‘ continued to deteriorate’ thereafter. Dr. Foy further avers that he was notified on 14th October, 2017 that changes were being made to his role, including the reassignment of certain duties to a colleague which he avers caused him ‘ great concern’ . As a result of this breakdown in the employment relationship, and in an effort to resolve the ongoing issues between Dr. Foy and the University, both parties agreed to enter mediation.

28. On 24th October, 2017, Dr. Fitzgerald, the President of the University, suggested that the parties engage in mediation as a way of resolving ongoing matters. This suggestion was accepted by Dr. Foy and the mediation process began in January 2018. Following certain preliminary meetings, it seems, a letter of engagement was sent by the mediator to the parties on 16th January, 2018 which it now seems clear attached the proposed mediation terms, and not as incorrectly averred by Dr. Foy, a ‘draft settlement agreement’, which false averment is discussed in detail later in this judgment.

29. The mediator’s terms were signed by all parties on 25th January, 2018 which was also the date on which the first formal mediation session took place. This agreement set out in the usual way the terms to be agreed to by the parties in relation to the mediation.

30. Dr. Foy instructed his solicitor to negotiate with the University after this date with a view to resolving the dispute. However, no agreement was reached and Dr. Foy avers that by May 2018 the mediation process was ‘ close to breaking down’ .

31. Then, in June 2018, certain ‘ without prejudice’ correspondence was exchanged between the parties. The parties have now elected to waive their privilege over these letters and so this correspondence was opened during the course of the within hearing. It is important to note that the most recent of these letters was sent only 8 days prior to the final mediation session, at which a settlement agreement was reached between the parties.

32. The first of the letters is dated 12th June, 2018 and was sent by the solicitor, who was at that time representing Dr. Foy, to the solicitors for the University. That letter seeks to finalise matters before the final mediation session and sets out certain ‘ vital’ terms as sought by Dr. Foy, including that there be a prohibition on any future investigation of Dr. Foy. This letter and the response are set out more fully later in this judgment. In the reply from the solicitors for the University dated 26th June, 2018, it is clear that the University did not agree to the aforementioned ‘prohibition on future investigation’ term which was sought by Dr. Foy.

The Settlement Letter

33. On 5th July, 2018, the final mediation session took place and a settlement was reached between the parties. The terms of this settlement are reflected in the Settlement Letter signed on that date by both Dr. Foy and Dr. Fitzgerald, on behalf of the University. The effect of that settlement was that Dr. Foy, while continuing to be employed by the University, would be seconded to a subsidiary of the University, UniJobs, where he would be employed as Managing Director for a period of 4 years. After that period, his employment with the University would cease. It is relevant to note that this involves Dr. Foy ceasing to be employed by the University at 60, rather than 65, as had been his contractual entitlement. The settlement also included an express acknowledgement by Dr. Foy that standards expected in the implementation of the HR policy had fallen below those expected in the University. The Settlement Letter reads as follows:

“Dear Mr. Foy

I confirm that we have resolved matters in accordance with Section II paragraph I of Statute 4, as follows:

1. With immediate effect, you have stepped down as HR Director of the University and will no longer be involved or seek to be involved, directly or indirectly, in the functions of the University, including its HR functions, except as set out in paragraph 2 below.
2. With effect from tomorrow, 6 July 2018, you have agreed to take up the position of Managing Director of UniJobs for a 4 year period, at the end of which your employment with the University will end.
3. You acknowledge, on your behalf, that the standards expected in HR policy and procedure implementation and in communications with statutory bodies have fallen short of the standards expected in the University.”
34. It appears that matters rested at that stage, with Dr. Foy taking up his position as Managing Director of UniJobs as envisaged under the terms of the Settlement Letter. In this regard, a Secondment Agreement was signed by the relevant parties in order to facilitate Dr. Foy’s transition to his role at UniJobs.

The Investigation Letter

35. Subsequently, over one year after the signing of the Settlement Letter, on 18th November, 2019, Mr. Andrew Flaherty (“Mr. Flaherty”), the newly appointed Director of Human Resources at the University, and subsequently, as will be seen, the Chief Corporate Officer of the University, sent a letter to Dr. Foy raising a concern regarding the calculation of the pension payment made to Mr. X. This letter noted that the incorrect calculation had been performed at the request of Dr. Foy. The letter requested that Dr. Foy set out his response to the matter within 21 days thereof.

36. On 3rd December, 2019, the solicitor acting for Dr. Foy responded to the Investigation Letter. This response refers to the Settlement Letter and states that the terms of that Letter have the effect of ‘ prohibiting [Dr. Foy] from going behind same’ and therefore Dr. Foy would not be providing a response as requested by Mr. Flaherty.

37. No further correspondence was exchanged, until 10th March, 2020. On this date, Mr. Flaherty again wrote to Dr. Foy, requesting that Dr. Foy provide him with a response to certain issues raised in that letter, including issues relating Dr. Foy’s level of knowledge and involvement regarding the employment arrangements for Mr. X.

38. A response to this letter was sent by Dr. Foy’s solicitors on 19th March, 2020. This response again referenced the Settlement Letter and noted that Dr. Foy would be ‘simply unable to assist’ with the issues raised in Mr. Flaherty’s letter.

39. It is not necessary to set out the further correspondence exchanged between the parties, except to note that it became clear that Dr. Foy would not be responding to the specific issues raised by Mr. Flaherty in his letters of November 2019 and March 2020, by virtue of his belief that the Settlement Letter had resolved all outstanding matters.

40. Matters ultimately came to a head on 30th July, 2020. On this date, Mr. Flaherty wrote to Dr. Foy advising him that there had been an allegation of ‘ serious misconduct’ on his part and that an investigation would be commenced in line with Statute No. 4 of the Universities Act, 1997 (the “Investigation Letter”). The specific allegation is stated in that letter as being that Dr. Foy ‘ may have procured the giving of pension service credits to [Mr. X] to which he was not entitled’ . This letter records that Ms. Niamh McGowan BL has been appointed by the University to conduct the investigation. Although there appears to be a drafting error in the Letter of Investigation (in that it refers at one point to Section II (1) (g) of that Statute – the disciplinary part of the Statute – rather than Section II (4) (a) – the investigation part of the Statute), it seems clear that it was intended to refer to the investigation part of the Statute, since the letter is concerned only with an investigation and in any case, Ms. McGowan BL would not have been entitled to conduct any disciplinary proceedings, as she is not an employee or officer of the University (which is a pre-requisite for any person undertaking disciplinary proceedings). The Investigation Letter insofar as relevant states:

“Dear Dr Foy,

This letter is to inform you that there has been a suggestion of alleged serious misconduct on your behalf while in your role as the Director of Human Resources.

Specifically that you may have procured the giving of pension service credits to [Mr. X] to which he was not entitled, resulting in an improper inflation of the lump sum and of the pension payments made to [Mr. X] by the University of Limerick since [Mr. X] reached pension age. An investigation will now take place.

The investigation will be in line with Statute No. 4 of the Universities Act 1997 (the “Statute”) (attached for ease of reference).Section II (4) (a) states:

“In respect of any alleged misconduct which may warrant formal disciplinary action under this Statute, the University will investigate any matter which, in the opinion of the University, requires investigation and employees will, if requested by the University, cooperate fully with any such investigation, which will be conducted as promptly as reasonably practicable and in accordance with the principles of natural and constitutional justice. The University may decide, at its sole discretion, whether or not it will conduct an investigation in circumstances where an employee admits any misconduct.”

In accordance with Section II (1) (g) of the Statute Ms Niamh McGowan BL has been engaged to conduct this investigation in line with the Statute.”

41. The terms of reference for the investigation were sent to Dr. Foy by the University on 31st July, 2020 and state, inter alia, that:

“Ms Niamh McGowan BL (the “Investigator”) will conduct an independent investigation (“the Investigation”) under the Statute following a suggestion of possible serious misconduct on the part of Dr Tommy Foy (the “Respondent”), as the then Director of Human Resources. It is alleged that he may have procured the giving of pension service credits to [Mr. X] to which he was not entitled, resulting in an improper inflation of the lump sum and of the pension payments made to [ Mr. X] by the University since [Mr. X] reached pension age (the “Complaint”).

[…] Every effort will be made by all concerned to ensure that the Investigation is carried out and completed within a period of 12 weeks from the commencement of the Investigation on 22nd August 2020 […]

At the conclusion of the Investigation, the Investigator will issue a written report containing her findings. The Investigator will make findings of fact with reference to the Complaint and the Statute on the balance of probabilities.

The Investigator shall provide the Investigation Report to [Dr. Foy] and the University and the matter will proceed thereafter as determined by her in compliance with relevant University procedures. The Investigator’s role concludes once the Investigation Report has been so provided.” [Emphasis added]

42. In response to this letter, the solicitor for Dr. Foy wrote a letter on 7th August, 2020 in which he cited the terms of the Settlement Letter and called on the University to cease the investigation with immediate effect. That letter noted that the proposed investigation was in respect of matters relating to Dr. Foy’s role as Director of Human Resources and that ‘ all such matters were subject to a previous mediation and a binding agreement reached’ . The view is expressed in that letter that the Settlement Letter ‘ absolves’ Dr. Foy of ‘ any and/or all actions that could be taken by the University’.

43. On 18th August, 2020, Mr. Flaherty responded on behalf of the University and noted that the matters raised by Dr. Foy’s solicitor were matters more suitable for submission to Ms. McGowan BL during the course of the investigation. This letter stated that the investigation would not be discontinued, as had been requested by Dr. Foy’s solicitor.

44. In a response sent on 21st August, 2020, the solicitor for Dr. Foy noted that as there was significant disagreement between the parties regarding the interpretation of the Settlement Letter, it was his intention to issue proceedings, in line with his previous correspondence.

45. The investigation did not commence on 22nd August, 2020, as envisaged by the terms of reference, and it is important to emphasise therefore that the proposed investigation by the University has not actually commenced. In line with Dr. Foy’s earlier threat to take legal action, the within proceedings were issued by him on 1st September, 2020.

THE LAW RELATING TO INTERLOCUTORY INJUNCTIONS
46. The law in relation to the grant of interlocutory injunctions is well-settled and was most recently restated in Merck Sharp & Dohme Corporation v. Clonmel Healthcare Limited[2019] IESC 65. It does not need to be restated and it is clear that the primary questions to be addressed are:

• Fair question to be tried? The plaintiff must establish that there is a fair question to be tried regarding his entitlement to that injunction.
• But a strong case has to be made out if mandatory injunction? However, where the interlocutory injunction is mandatory in nature, before such an order will be granted, the plaintiff must show, not merely that there is a fair question to be tried, but that a strong case has been made out.
• Does balance of justice favour grant of injunction? Once a fair question/strong case has been made out, then the plaintiff must establish that the balance of justice (balance of convenience) favours the grant of the injunction. In considering where the balance of justice lies, an important, but not necessarily determinative issue (per O’Donnell J. in Merck Sharp & Dohme at para. 35) is the adequacy of damages.
Where the injunction seeks to prevent an employment disciplinary process?

47. This case involves an application to prevent an investigation by the University, which investigation could lead to a disciplinary process against Dr. Foy. This is because Dr. Foy is an employee of the University, albeit that he is on secondment to a subsidiary company of the University, UniJobs. As he remains an employee of the University, it is common case that he remains subject to the disciplinary processes of the University. The Investigation Letter makes clear that the Dr. Foy is suspected of serious misconduct and that an investigation is proposed pursuant to Section II (4)(a) of Statute No. 4 of the Universities Act, 1997, i.e.:

48. It is clear from Section II (4)(a)(viii) of that Statute, that depending on the findings of the investigation, disciplinary proceedings may ensue, which disciplinary action includes dismissal.

49. In summary therefore, the injunction being sought by Dr. Foy is to prevent an investigation which could lead to disciplinary procedures up to and including dismissal. It seems clear from the judgment of Clarke J., as he then was, in Bergin v. Galway Clinic[2008] 2 I.R. 205 at p. 216 that an injunction to prevent an investigation such as the one proposed against Dr. Foy is treated as a mandatory injunction. This is because the reality of such an injunction is that the employer, in being prevented from investigating an issue which might lead to dismissal, is effectively being forced to continue to employ the employee:

“I have, therefore, come to the view that in any case in which an employee seeks to prevent a dismissal or a process leading to a dismissal, as a matter of common law, and in whatever terms the claim is couched, the employee concerned is seeking what is, in substance, a mandatory injunction which has the effect of necessarily continuing his contract of employment even though the employer might otherwise be entitled to terminate it. In those circumstances it is necessary for the employee concerned to establish a strong case in order to obtain interlocutory relief.”

For this reason, this Court has little hesitation in concluding that Dr. Foy is seeking a mandatory injunction and so must establish a strong case that he will succeed at trial in arguing that the investigation amounts to a breach of the Settlement Letter, in order for this interlocutory injunction to be granted.

ANALYSIS
50. As previously noted, Dr. Foy wishes to prevent the proposed investigation by a barrister (Ms. Niamh McGowan BL) who is independent of both parties as she is not an employee or officer of the University. The proposed investigation concerns alleged serious misconduct by Dr. Foy while he was the Director of Human Resources at the University. It is Ms. McGowan’s role under the terms of reference for the proposed investigation to make findings of fact to be contained in a report at the conclusion of the investigation and her role is to end once that report has been provided to both the University and Dr. Foy.

Dr. Foy’s claim

51. In seeking the injunction, Dr. Foy relies in particular on the following averment which he swore in his second affidavit dated 23rd October, 2020 (at para. 8), regarding the Settlement Letter:

“I say that I signed that agreement and that when I signed it I understood, and had been led to understand by the [University], that “ the matters ” which the agreement confirmed that we had resolved referred to all and any disciplinary questions which could arise from any of the matters that had been the subject of investigation, audit, review or query prior to 5th July 2018.”

52. At the hearing of this matter, his counsel made clear that the essence of Dr. Foy’s claim is that the University cannot enquire into matters which were known by it at the time of the Settlement Letter (and thus allegedly included in the settlement). He claims that the University was aware of the issue of the alleged transfer of Mr. X’s years of service from a previous employer to the University and so this issue cannot be investigated.

The University’s response

53. The University’s response is first that the Settlement Letter does not prevent subsequent enquiry into known or unknown issues at the time of signing that Letter and secondly that in any case while the University knew about Dr. Foy’s alleged involvement in the grant of additional years of service to Mr. X it was not aware of his alleged involvement in the transfer of previous years of pensionable service with a previous employer to the University, where Mr. X has already received a refund of those years.

Did the parties agree a prohibition on a future investigation?

54. In seeking to analyse the first issue, of whether the Settlement Letter prohibits a future investigation of known issues (or indeed unknown issues), the without prejudice correspondence (already briefly referenced) is relevant since it clarifies very clearly the position of the parties regarding this issue in the days immediately preceding the execution of the Settlement Letter.

55. In its letter dated 12th June, 2018, just three weeks prior to the execution of the Settlement Letter and almost six months after the mediation process had commenced, Dr. Foy’s solicitors wrote to the University’s solicitors requesting the University to accede to certain terms which he expressed to be ‘ vital’ . It states, inter alia, that:

“It is imperative that matters are finalised as a matter of urgency before we can have the final mediation session that Turlough O’Donnell is proposing.

As you are aware, we have our client’s instructions to indicate that he will accept the position in UniJobs as offered before, subject to detail of the job being clarified. This was a substantial breakthrough.

But all of this is predicated on reaching a comprehensive agreement that covers all issues.

What concerns our client is to reach agreement on the following vital matters:

1. A clear and unequivocal commitment by UL that no disciplinary action or investigation regarding any complaints will take place against Mr Foy into all the historic issues ventilated in the Thorn report and the PAC, or any other investigation or complaint.

[…]

4. The agreement will contain confidentiality and non-disparagement clauses.

[…]

6. The usual terms in such an agreement, such as it being the entire agreement, full and final, applicable law etc will be inserted.[…]

I look forward to receipt of such a draft document so we may advance discussions as soon as possible.” (Emphasis added)

56. In many ways this letter of 12th June, 2018 is prescient on Dr. Foy’s part, since he is seeking in this letter to prevent the University investigating the historic ‘pension’ matters or any other matter, i.e. known or unknown issues, and so he was seeking a commitment from the University not to undertake the very type of investigation which the Investigation Letter proposes, namely an investigation into Mr. X’s pension.

57. However, it is equally clear from the University’s emphatic response dated 26th June, 2018, and therefore only 8 days prior to the execution of the Settlement Letter, that there was no way it was going to accept any restriction on its right to investigate those issues:

“We refer to your letter of 12 June 2018. A series of issues raised by you in that letter that, despite months of mediation, are unresolved. As you know, our client has confirmed that subject to all being agreed in mediation, agreement could be reached on the basis of your client accepting a position in UniJobs, with your client and our client agreeing the terms of the job description. […]

We note also that you set out what you refer to as vital matters that concern your client. Some of these matters are issues that we have discussed in the course of the protracted mediation and have made clear are not attainable. Our client believes that mediation has run its course and that it must be brought to a close.

In doing so, we respond to your numbered paragraphs as follows:

1. You requested that UL would provide an unequivocal commitment that no disciplinary action or investigation of your client by UL will take place against Mr Foy into the matters arising from the Thorn Report and the PAC. UL cannot give a commitment in respect of any other investigation or complaint that might arise from any future reports even if connected to those issued to date, nor can it give any commitment in respect of any investigation that may be directed by for example, the Higher Education Authority or the Department of Education, or any enquiries that may be carried out by other bodies. [….]

4. Any agreement could contain very limited clauses in respect of confidentiality and non-disparagement, in circumstances where our client must cooperate with processes directed by the Public Accounts Committee, by the Higher Education Authority, Department of Education, and cannot decline to answer questions or answer matters raised by those bodies. […]

Our client was hopeful that agreement could be reached between the parties in this matter on the above basis. As agreement cannot be reached, our client will commence appropriate processes in due course.” [Emphasis added]

58. It is difficult to imagine the University being clearer about its position that Dr. Foy’s request, for a prohibition on future investigations, was not attainable. It is also clear from this letter that it is unwilling to have even a restriction on ‘known’ matters, since it states, ‘even if connected to those [reports] issued to date’ .

59. It is also relevant to note that no further correspondence passed between the solicitors after this letter of 26th June, 2018, which it is sent only days before the execution of the Settlement Letter on 5th July, 2018.

The reality of what Dr. Foy is claiming

60. Despite all of this, the very thing which Dr. Foy sought, i.e. a prohibition on any investigation into his role in Mr. X’s pension and which was rejected outright by the University, is exactly now what Dr. Foy claims is covered by the terms of the Settlement Letter (presumably as an express or an implied term thereof). He does so even though:

• The Settlement Letter is completely silent on there being any prohibition on the University from investigating any matters concerning Dr. Foy.
• The Settlement Letter does not even contain, what Dr. Foy’s solicitor regarded as a ‘ usual term’ in every settlement, namely that it is in full and final settlement.
• The Settlement Letter does not by its express terms refer to the settlement of all matters , but simply ‘ matters’ .
• The University just days prior to the execution of the Settlement Letter expressly rejected any prohibition on its right to investigate Dr. Foy regarding any complaint ‘ connected with those [reports] issued to date’.
• The University made clear in its letter of 26th June, 2018 that it was not simply that it did not wish to agree to have a prohibition on future investigation as some kind of negotiating tactic, but rather that it felt it was not permitted, as a public body, to agree to certain terms sought by Dr. Foy. It gave by way of example the fact that a prohibition on investigation was not possible because it might be directed by the Higher Education Authority or Department of Education to investigate matters.
• The same point was made in the context of Dr. Foy’s request for confidentiality and non-disparagement clauses. This is because the University made clear that it was not a case that it did not wish to agree certain clauses with Dr. Foy but rather a case that it felt it was not permitted to agree certain clauses. On this basis, the University stated that it was not legally in a position to give any commitment beyond very ‘ limited clauses’ as it ‘ cannot decline’ to answer questions from the Department of Education or other such bodies.
• Even though Dr. Foy had regarded as ‘ vital’ that he get a clear and unequivocal commitment of a prohibition on future investigations, Dr. Foy nonetheless signed the Settlement Letter, with the benefit of legal advice, without that prohibition. He signed that Settlement Letter, in circumstances where, he had received a letter only days previously wherein the University set out in very clear terms that it could not decline to address matters that might be raised in the future and that it would not and could not commit not to pursue any future investigation.
61. In summary, Dr. Foy sought a prohibition on any future investigation of him by the University as part of the settlement terms. His solicitors made clear that it was ‘ vital’ that such a ‘ clear and unequivocal’ prohibition be contained in the Settlement Letter. This was rejected outright by the University, as was the suggestion that the Settlement Letter be a full and final settlement. In this regard Mr. Flaherty, Chief Corporate Officer of the University avers (at para. 12 of his affidavit dated 3rd November, 2020) that it was not an accident that the three-sentence Settlement Letter was drafted in this manner, since he avers that it was ‘ most deliberately not’ a full and final settlement of the type contended for by Dr. Foy. The evidence before this Court, in particular the letter of 26th June, 2018, supports this averment that a conscious decision was taken by the University not to include the terms sought by Dr. Foy.

However, Dr. Foy is now claiming that having failed to get an express prohibition on future investigations inserted in the Settlement Letter that somehow, against all the evidence, that this three paragraph Settlement Letter, a letter which he signed with the benefit of legal advice, does in fact contain such a prohibition (presumably as an implied term). Dr. Foy claims that the University changed its position from the letter dated 26th June, 2018 and that by the time of the mediation on 5th July, 2018 the University led him to believe that the University and Dr. Foy had, when signing the Settlement Letter, resolved ‘ all and any disciplinary questions which arise from any of the matters that had been subject of investigation, audit, review or query’ prior to that date.

62. It seems to this Court that Dr. Foy’s averment that the University changed its position from the 26th June and that he ‘ understood’ and had been ‘ led to understand’ by the University, that the Settlement Letter prohibited any investigation of him regarding Mr. X’s pension, amounts to a bare assertion, albeit one given under oath, as there is no evidence to support it and what evidence there is flatly contradicts it.

63. Yet, this is a crucial averment in support of the injunction application, since Dr. Foy’s case depends to a large degree on it.

64. However, not only does this bare assertion fly in the face of the express and trenchant terms of the ‘ without prejudice’ correspondence between Dr. Foy and the University in the days prior to the execution of the Settlement Letter, but it is also the case that Dr. Foy made a similarly crucial assertion (in support of the injunction), also under oath, which has turned out not only to be false (and now accepted as such by Dr. Foy), but also to be so completely inconsistent with the facts that it is surprising that it ever could have been believed by Dr. Foy. This will be considered next.

Dr. Foy’s false sworn evidence – the ‘fake’ draft settlement agreement

65. In support of his claim that the three paragraph Settlement Letter contains an implicit prohibition on any future investigation of Dr. Foy’s role in Mr. X’s pension, Dr. Foy gave sworn evidence (at para. 16 of his first affidavit sworn on 1st September, 2020) that he now accepts is false.

66. At para. 15 of his first affidavit in support of this injunction application, he swore that:

“Mr Turlough O’Donnell SC was appointed as mediator and the mediation commenced in January 2018. I beg to refer to a copy of the signed mediation agreement dated 25th January 2018 […]”

67. Dr. Foy exhibits in relation to this averment a mediation agreement containing the terms of appointment for the mediator, i.e. mediator’s fees, confidentiality, exclusion of mediator’s liability etc. Dr. Foy uses the term ‘ mediation agreement’ in his affidavit to describe this document. However, to avoid confusion, this Court will refer to this document as the ‘mediator’s terms’ because, as noted hereunder, Dr. Foy also uses the term ‘ mediation agreement’ to describe a document containing proposed settlement terms, which this Court will refer to as a ‘draft settlement agreement’.

68. Before getting to Dr. Foy’s averment at para. 16 of his affidavit, it is useful to set out what is clearly a mediator’s engagement letter dated 16th January, 2018 (the “Engagement Letter”). As such, it appears to be the first letter from the mediator, Mr. O’Donnell SC, to the solicitors for both parties:

“Dear Colleagues,

I enclose herewith a draft Mediation Agreement for your perusal.

I’m proposing a fee of €6,000 and vat to include all reading in, Preliminary and other Consultations, Conference calls, and the day of Mediation itself. In addition to this my practice (if for any reason the mediation continues) is not to charge any further fees.

I will pay the cost of the rooms.

I am arranging rooms in the Arbitration Centre in the Distillery Building for Thursday the 25th of January at 4:15 pm.

The fees are payable forthwith. I understand they are to be paid by the University.

Thank you for your courtesy and co-operation to date.

Please do not hesitate to contact me.

Yours sincerely

Turlough O’Donnell”

69. This letter is patently the very first step in a mediation where the mediator is seeking agreement on his costs and is setting up a meeting between the parties and it seems clear that the primary purpose of the Engagement Letter is to enclose the ‘mediator’s terms’ to be agreed and signed by the parties. The ‘mediator’s terms’ so received by the parties are subsequently signed by them on the 25th January, 2018 (per para. 15 of Dr. Foy’s first affidavit) on the day when ‘ the first formal mediation session’ took place (per para. 6 of his second affidavit dated 23rd October, 2020).

70. However, after referring to the appointment of Mr. O’Donnell SC as mediator at para. 15 of his first affidavit, this is where Dr. Foy makes, at para. 16, what he now accepts is, a false averment, which if it were true would provide crucial support for his injunction application.

71. Not only is this averment false but it is an averment that is so inconsistent with the facts in this case, that it is surprising how Dr. Foy could ever have believed it was true in the first place and for this reason must cast doubt over Dr. Foy’s recollection of events regarding this dispute.

72. This is because at para. 16 of his first affidavit, he avers that:

“The mediation commenced by way of a series of preliminary meetings and general heads of agreement were reached by late January 2018. By way of a letter dated 16th January 2018, Mr O’Donnell SC circulated a draft mediation agreement to the parties in advance of the formal mediation session on 25th January 2018. This draft agreement set out a number of terms but the general agreement was that I would step down from my role as Director, Human Resources and take up an alternative role with the [University], as Director of Equality & Diversity, as a way to resolve and address the issues that had arisen. The draft terms included an undertaking from each party that they would not further pursue action against the other regarding any matter that had arisen prior to the date of agreement as follows:

“UL undertakes not to take action of any description against Mr Foy regarding any matters arising prior to the date of this agreement. All matters relating to Mr Foy and his discharge of his duties as Director, HR arising before the date of this agreement will be considered as addressed fully in this process. The University acknowledges that Mr. Foy, at all times, discharged his duties diligently as part of the UL Executive Management Team and with the full knowledge and approval of the EMT, the President at that time […]

I beg to refer to a copy of the draft mediation agreement, upon which marked with the letters “TF 5” I have signed my name prior to the swearing hereof.” [Emphasis added]

73. Exhibit TF5 is not the ‘mediator’s terms’ but rather a ‘draft settlement agreement’, which Dr. Foy swears was attached as an enclosure to the mediator’s Engagement Letter of 16th January, 2018. This alleged ‘draft settlement agreement’ is a page and a half of tightly typed text, and as well as containing the aforesaid prohibition on future investigations contains ten other detailed settlement terms, such as payment by the University of compensation to Dr. Foy.

74. It is important to step back and consider what Dr. Foy was swearing, when he signed this affidavit in September 2020, to be the truth of what happened on the 16th January, 2018, before even the first formal mediation session had occurred.

75. This is because this averment (which Dr. Foy now accepts is false) is not simply an oversight regarding which document was attached to a letter. Instead, this is a detailed averment regarding the taking place of a series of meetings which resulted in ‘a general agreement’ regarding various detailed terms of settlement (including for example a term regarding the manner in which the Corporate Secretary of the University would advertise the job of Vice President for Organisation Development and People Strategy, which Dr. Foy was to have).

76. Dr. Foy’s false averment makes clear that these terms were negotiated with the University and that there were ‘ general agreement’ by the University to these terms, which were then sent by the mediator to the University on the 16th January, 2018 even before the first formal mediation session took place.

77. In particular, Dr. Foy swore that Mr. O’Donnell SC, an experienced mediator, prior to his ‘mediator’s terms’ being agreed and signed, and prior to the first formal mediation session with the parties, sent the parties under cover of his Engagement Letter of 16th January, 2018 a ‘draft settlement agreement’ that had been reached between the parties after a series of mediation meetings had apparently occurred (and so must have occurred even prior to the date of the Engagement Letter, on the 16th January, 2018). In essence, Dr. Foy averred that a draft settlement agreement, which turned out to be ‘fake’ since he now accepts there was no such agreement with the University, was sent by the mediator to the parties before the first formal mediation session took place.

78. This is what Dr. Foy swore to be the truth in September 2020.

79. In assessing how much weight this Court should attach now to Dr. Foy’s crucial averment in support of his injunction application (that he ‘ understood’ and he was ‘ led to understand’ by the University that it would not undertake future investigations), it is relevant to consider in detail this false averment by Dr. Foy, which was also crucial to this injunction application and in particular how he could have come to swear an averment, supportive of his application, that was not only false, but so inconsistent with the evidence.

80. First, it is to be noted that there are internal inconsistencies in this averment, even if it were true, which should have been obvious to Dr. Foy. This is because it seems clear from the very terms of the mediator’s Engagement Letter of 16th January, 2018 that the first formal mediation session was to occur on 25th January, 2018. Consistent with this, Dr. Foy avers (in September 2020) that mediation meetings took place in ‘ late January 2018’ and this led to the ‘draft settlement agreement’. However, this averment, even if it were true, is internally inconsistent, since the meetings to negotiate this alleged agreement could not have occurred in late January on his version of events, since that draft settlement agreement, which resulted from these meetings, was allegedly sent under cover of Mr. O’Donnell’s letter of 16th January, 2018 (which is clearly mid and not late January). However, by placing these meetings (which would have had to occur in early or mid-January) in late January, Dr. Foy ensures consistency with the fact that the first formal mediation session occurred on 25th January, 2018.

81. It is of course the case that Dr. Foy has sought to remedy this inconsistency in his sworn evidence (by his swearing of a second affidavit on 23rd October, 2020), in which he accepts that no such draft settlement agreement was sent by the mediator to the parties, but that these preliminary meetings actually took place before the first formal mediation session on the 25th January, 2018.

82. Secondly, the very terms of the Engagement Letter are plainly consistent with that letter enclosing the ‘mediator’s terms’ for the commencement of the mediation (which were duly signed a few days later on 25th January, 2018). They are not in any way consistent with a mediator enclosing a ‘draft settlement agreement’ arising from negotiation between all the parties over a ‘series of preliminary meetings’ . This also should have been obvious to Dr. Foy from even the most cursory perusal of the wording of that covering letter (which plainly sets out the mediator’s terms regarding fees etc and contains no reference to either enclosing or the terms of a draft settlement agreement) when he was swearing his averment that the ‘draft settlement agreement’, rather than the ‘mediator’s terms’, was attached to that letter.

83. Thirdly, these averments are not only false (as now accepted by Dr. Foy), but it should have occurred to Dr. Foy that it would be surprising that an experienced mediator would send a ‘draft settlement agreement’ with detailed concessions by the parties before the first formal mediation session and before the mediator’s terms of appointment have even been agreed by the parties.

84. Fourthly, these averments are completely inconsistent with the other evidence in this case. This should have given Dr. Foy pause for thought before he falsely swore that by 16th January, 2018 (and so before the first formal mediation session and before the mediator’s terms were even agreed), the University was in effect agreeable in principle to a prohibition on future investigations. This is because this suggested prohibition is completely at odds with the state of the negotiations as evidenced from the correspondence. The correspondence between the parties (outlined above) shows that on the 26th June, 2018, several months after this Engagement Letter dated 16th January, 2018, the University was not only not prepared to agree, but it also felt it was not entitled to agree, such a prohibition.

85. Fifthly, there is the explanation provided by Dr. Foy in his second affidavit dated 23rd October, 2020 wherein he accepted that he was wrong to have claimed that the mediator had sent a draft settlement agreement to the parties. This explanation only arose once the University swore that it had never even received such a document from the mediator, let alone agreed its terms. In considering his explanation, it is important to remember that the ‘fake’ draft settlement agreement contained very significant terms which were favourable to Dr. Foy, e.g. the payment of compensation, although none is contained in the Settlement Letter, the right to continue to work for the University for a total of ten years (when one includes the possibility of a renewal), although the Settlement Letter provides that he is to work for only four years (with no renewal), as well of course as the ‘vital’ prohibition on future investigations.

86. His explanation is that the document which he falsely claimed was a draft settlement agreement was in fact ‘ proposals ’ that were being ‘ discussed with the mediator’ in preliminary meetings which took place prior to the first formal mediation session. He also states that ‘I am not aware of whether or not’ the University had sight of that document. Nonetheless he goes on to state that it ‘is my understanding that the document was shared with’ the University, which is however denied on oath on behalf of the University.

87. This reference to written ‘ proposals’ that he appears to have discussed with the mediator in preliminary meetings with him does not in this Court’s view adequately explain how in swearing his first affidavit in September 2020, when considering the events of over two years previously, Dr. Foy could have wrongly ‘remembered’ something of such significance, i.e. a series of negotiations at preliminary meetings leading to ‘ general agreement’ with the University on a swathe of hugely significant terms for him (which are so supportive of his case and so at odds with the terms actually contained in the Settlement Letter). Equally, this explanation does not adequately explain how he could have wrongly remembered that those ‘agreed’ terms were contained in a ‘fake’ draft settlement agreement sent by the mediator to the parties. In particular this reference to ‘ proposals’ discussed with the mediator does not adequately explain how he could have wrongly ‘remembered’ a ‘general agreement’ on a term (the prohibition on future investigation) that is, and was, so vital to him.

Conclusion regarding the false sworn evidence by Dr. Foy

88. For the foregoing reasons, not only was it false sworn testimony for Dr. Foy to say that Mr. O’Donnell SC enclosed the fake draft settlement agreement with his letter of 16th January, 2018 (as is now accepted by Dr. Foy), but it is hard to understand how such a false averment could have been made, as it is irreconcilable with the evidence.

89. Yet, the fact remains that this clear and detailed false statement under oath was made by Dr. Foy. Furthermore, this false sworn evidence is not insignificant, but rather it is evidence, which if true, would be strongly supportive of Dr. Foy’s application for an injunction (since the fake settlement agreement contains the very undertaking which Dr. Foy now says is implied in the three paragraph Settlement Letter).

90. It is curious, to say the least, that a false averment (with a detailed recollection of negotiations during a series of meetings which led to a ‘ general agreement’ as outlined in a fake draft settlement agreement with detailed terms, including the ‘prohibition on investigation’) could have been ‘remembered’ by Dr. Foy. This is particularly so as the false averment is in the teeth of the written documentation which illustrates that the University was not willing and was not, in its view, able to give the prohibition on investigation sought.

91. While it is not being suggested that Dr. Foy deliberately misled this Court, the fact that such a false averment was made casts doubt over the reliability of Dr. Foy’s other recollection of how the terms of the Settlement Letter came to be negotiated.

92. It is possible that Dr. Foy’s anxiety, as evidenced in the letter dated 12th June, 2018, to get the University to agree a ‘prohibition on future investigation’ in the Settlement Letter (which he failed to achieve), may have clouded his recollection of what actually happened in the negotiation of the Settlement Letter.

93. In any case it is clear that his recollection of important events regarding the negotiation of the Settlement Letter is not reliable.

A number of versions of Dr. Foy’s ‘understanding’ of the agreement reached

94. It is also the case that Dr. Foy has had a number of iterations of his recollection of his understanding of what was agreed with the University, which further takes from the confidence a court can have in his recollection of the negotiations leading to the Settlement Letter.

95. First, on the 10th March, 2020, when the University wrote to Dr. Foy for his response to issues regarding Mr. X’s pension, his response, through his solicitor, was by letter dated 19th March, 2020 to the effect that the Settlement Letter:

“was in full and final settlement of all matters relating to [Dr. Foy’s] role as HR Director”. [Emphasis added]

96. If this was Dr. Foy’s understanding in March 2020 of what transpired in July 2018, this understanding changed because on the 23rd October, 2020 when he swore his second affidavit his ‘understanding’ was that:

“‘ the matters’ which the [Settlement Letter] confirmed that we had resolved referred to all and any disciplinary questions which could arise from any of the matters that had been the subject of investigation, audit, review or query prior to 5th July 2018.” [Emphasis added]

97. The third and final iteration of Dr. Foy’s recollection or understanding of the terms of the Settlement Letter is contained in his legal submissions which state:

“it was agreed as a term of the [Settlement Letter] reached between the parties on 5 July, 2018 that all potential disciplinary matters as against the Plaintiff known to the [University] at that time were being waived’” [Emphasis added]

98. Thus, in the space of a few months, Dr. Foy has claimed that it is a term of the Settlement Letter that there is a prohibition on investigating:

• First, all matters relating to his time as HR Director, then,
• those matters which had been the subject of investigation, and finally,
• those matters which were known to the University.
99. Thus, his recollection can be said to be a ‘moving target’ and for this and the foregoing reasons regarding the false sworn evidence, this Court concludes that it cannot rely on Dr. Foy’s other recollection (which is also supportive of his application for an injunction), namely his bare assertion that he understood, and had been led to understand by the University, that the Settlement Letter prohibited any investigation of him regarding Mr. X’s pension amounts. It is to be noted that it is on this bare assertion that much of his case for an interlocutory injunction depends.

Conclusion regarding ‘strong case’ and/or ‘fair issue’

100. In order to establish that he has a strong case, that the terms of the Settlement Letter prohibit the University from undertaking future investigations, Dr. Foy relies in particular on his averment that he understood and was led to understand that the University agreed to such a prohibition. For the foregoing reasons and in particular the doubts which this Court has about the reliability of Dr. Foy’s recollection of matters, this Court concludes that he has failed to do so.

101. If this Court is wrong to apply the ‘strong case’ threshold and this case were to be decided on the basis of Dr. Foy having to establish merely a fair issue to be tried, it is this Court’s view that he has failed to produce any credible evidence to conclude that there is even a fair issue to be tried that the investigation amounts to a breach of the Settlement Letter.

102. The foregoing conclusions are determinative of this matter and therefore lead to the application for the injunction being dismissed.

103. For good order and completeness however, this Court will deal briefly with other matters raised during the hearing.

Whether the investigation is of a ‘known issue’ or an ‘unknown issue’

104. As previously noted, the University claims that even if the Settlement Letter prohibits a future investigation of known matters, the investigation, of the transfer of pensionable years from the previous employer of Mr. X to his pension scheme in the University, is not a matter that was known to the University at the time of execution of the Settlement Letter and so even on Dr. Foy’s interpretation of the Settlement Letter, there is no prohibition on such an investigation.

105. In this regard, Mr. Flaherty avers that the Settlement Letter came about as a result of issues which came to light as a result of a review by the Office of the Comptroller and Auditor General of Professional Added Years in the University and in particular that Office’s report seeking to establish if the practices of the University were in line with other universities. This is clear from the Report which is dated August 2018. It is to be noted that a draft of this Report in identical terms was provided to the University prior to the Settlement Letter. At page 9 of the Report, there is a summary of what the report concerns:

“Certain public sector pension schemes provide, in exceptional circumstances, for discretionary awarding of ‘professional added years’ for pension purposes. These provisions are designed to compensate for the inability of certain professional or technical staff to qualify for a full pension based on 40 years service by mandatory retirement age.

Professional added years are a form of remuneration, which for universities is subject to the sanction of the Department of Education and Skills and the Department of Public Expenditure and Reform.

For historical reasons, profession added years in the five ‘older’ universities are approved on a case-by-case basis by the Minister for Education and Skills and the Minister for Public Expenditure and Reform. Up to late April 2018, the newer universities – Dublin City University and the University of Limerick – operated separate, independent frameworks for the award of professional added years.

Based on the analysis of awards in those two universities between 2012 and 2016, this examination has found that the University of Limerick awarded more employees more generously in that regard than was the case in Dublin City University.”

106. The body of the Report at p. 33 states, inter alia, that:

“Pension payments

4.21 The University calculated the pension lump sum and pension rate on the basis of the 2008 salary level for person AZ and on the basis of the 2010 salary level for person BY [Mr. X]. In both cases, professional added years were awarded.

4.22 Figure 4.3 outlines the comparative actuarial cost to the University of the overall pension and severance packages put in place for the senior managers, and the arrangement they might otherwise have benefited from had they remained in employment and retired at age 60.

[…]

Figure 4.3 Comparison of estimated severance and pension costs to the University

Payment type

Person AZ NPVa

Person BY NPVa

€m

Actual severance/pension arrangements

1.93

1.74

Pension arrangements if normally retired at age 60

1.71

1.65

Difference (i.e. net additional cost to the University of arrangement)

0.22

0.09

Source: Analysis by the Office of the Comptroller and Auditor General

Note: a The net present values (NPVs) were calculated by a consultant actuary. The methodology and assumptions used are set out in Appendix A.”

107. In addition, Mr. Flaherty avers that in 2019 he was requested by the Pension Unit of the Department of Education and Skills to discuss the cases under review. At that stage the University’s pension manager reported to him concerns relating to the transfer of pensionable service from a previous employer of Mr. X to Mr. X’s pension scheme with the University to which he was not entitled. Mr. Flaherty avers that this issue regarding ‘ transfer of pensionable service’ has nothing to do with ‘ professional added years’ . In particular, he avers that the matter, the subject of the Investigation Letter, was not a matter that was in existence at the time of the Settlement Letter.

108. He also avers that the manner in which the transfer of pensionable years was undertaken in respect of Mr. X was a matter that was not known to the University at the time of the Settlement Letter.

109. For his part, Dr. Foy responds by averring that the matters of concern to the University at the time of the Settlement Letter were in four parts (based on evidence given by Dr. Des Fitzgerald, then President of the University, to the Dáil Public Accounts Committee on 22nd June, 2017), namely ex gratia payments on termination of employment, consultancy agreements, pension lump sum payments and pensionable added years.

110. On this basis, Dr. Foy avers that the matters of concern at the time of the Settlement Letter (and so the known matters) were ‘ severance arrangements agreed with’ Mr. X and ‘that these payments and arrangements included four parts, one of which was [Mr. X’s] pension’.

111. However, this averment simply means that the University had concerns about Mr. X’s severance payments including his pension. In particular, Dr. Foy avers that the University knew that Mr. X ‘had been awarded pension benefits which were significantly greater than his entitlement s’. However, this is not in dispute, but it does not mean that Mr. Flaherty’s averment, that the University was not aware of the issue regarding the transfer of pensionable years, as distinct from professional added years, is incorrect. Mr. Flaherty accepts that there was a concern regarding Mr. X’s pension and in particular his professional added years. However, the issue of the transfer of pensionable service is a separate matter and this Court has not been provided with evidence to suggest that the University was aware of this issue at the time of the execution of the Settlement Letter.

112. On this basis, it seems to this Court that even if there was a fair issue to be tried that the Settlement Letter included a prohibition on the future investigation of known matters, there is no evidence to suggest that there is a fair issue to be tried that the University knew about the transfer of pensionable service from a previous employer at that time.

Balance of justice

113. If this Court is wrong in relation to its conclusions to date, then this Court would have to consider the balance of justice, which it will briefly do so now.

114. In this case, one is dealing with the internal affairs in a company/institution regarding the possible misuse of funds and it is clear that the Courts are reluctant to interfere in the internal affairs of a company/institution which are of legitimate concern to it. In this regard, Ryan J., as he then was, in Elmes & Ors. v. Vedanta Lisheen Mining Limited & Ors.[2014] IEHC 73 stated at p. 36 that:

“Courts are reluctant to interfere in the internal affairs of a company in an area of legitimate corporate concern. The disciplinary process is governed by rules of law and contractual terms, express and implied, but until steps are taken, there is no basis or warrant for interference. It is relevant to note that it is proper for a company to be extremely concerned to establish all the relevant facts about a fatal accident and to want to look at how similar tragedies might be avoided in future. In that context, the people in charge of the location of the accident cannot expect to be immunised from criticism or sanction in advance by way of a court order.” (Emphasis added)

115. Although that case concerned a fatal accident, which is different from the alleged misuse of funds in a public institution, this comment is nonetheless applicable in this Court’s view, since a University has an interest in establishing the relevant facts to ensure that the alleged misuse of funds does not re-occur (if it occurred in the first place).

Reluctance to prevent investigations into alleged misuse of public funds?

116. Indeed, this interest in preventing the misuse of funds is arguably even more important in this case, where one is dealing, not with a private company, but with a University which is funded by the taxpayer. This is because the courts need to be particularly alive to any waste of public funds, for the simple reason that when it is ‘everyone’s money’ it is also ‘no-one’s money’ and the same degree of diligence might not apply to the waste of public funds as applies when an individual, with a vested interest in protecting his own money, is directly out of pocket. Accordingly, there should arguably be an even greater reluctance on the courts to interfere in an investigation into the possible misuse of public funds, since if the Courts are not looking out for the public interest, there is a danger that there might not be others with sufficient incentive to do so.

117. The public interest, in this case, in preventing the alleged misuse of funds regarding the University’s pension scheme is illustrated by the fact that there has been an investigative programme by the national public broadcaster (RTÉ) on this issue, followed by the involvement of the Public Accounts Committee and followed by an investigation by the Office of the Comptroller and Auditor General.

118. Furthermore, when one is considering the public interest in such an investigation not being stopped, it is also a factor that Dr. Foy held a very senior position in the University, as the Director of Human Resources, which clearly increases the public interest and the interest of the University in establishing all relevant facts. It is understandable therefore why the University should be ‘ extremely concerned to establish all the relevant facts’ and to look at how, if a misuse of funds is established, it ‘might be avoided in future’.

119. Another factor which would weigh in the balance of justice against the prevention of the investigation is that it is an investigation which is part of an incomplete disciplinary process. In this regard, it is clear that there is a reluctance for the courts to be involved in an incomplete disciplinary process. For example, Clarke J., as he then was, in Carroll v. Dublin Bus[2005] 4 I.R. 184 at p. 189 stated:

“The final matter in respect of which the plaintiff seeks interlocutory relief concerns a disciplinary process that has been put in place by the defendant. It seems to me that a court should be reluctant to intervene and in particular to intervene at an interlocutory stage, in an as yet incomplete disciplinary process. To do so would be to invite a situation where recourse might well be had to the courts at many stages in the course of what would otherwise be a relatively straightforward and expeditious set of disciplinary procedures.

120. Similarly, Clarke J. (as he then was) in the Supreme Court case of Rowland v. An Post[2017] 1 I.R. 355 considered at p. 359 that:

“the standard by reference to which a court should intervene, whether by injunction, declaration or any other means, in a process having a disciplinary or similar character, which is still ongoing.”

and concluded at p. 361 that:

“Under the test which I propose the court should only intervene in an ongoing process where it is clear that the process has gone irretrievably wrong.”

121. Accordingly, if this matter were to be determined on the balance of justice, all of the foregoing matters are factors which, in this Court’s view, weigh on the balance of justice in favour of the University not being prohibited from investigating an issue of considerable public interest regarding the alleged misuse of the money of a University which is funded by the taxpayer, particularly where it would involve this Court intervening in an ongoing disciplinary process.

Potential for irreparable reputational harm if the investigation proceeds?

122. Dr. Foy does however claim that in the balance of justice in favour of the grant of an interlocutory injunction is the fact that, if at the trial, the judge decides that the Settlement Letter does in fact prohibit the investigation, if he does not get an injunction now, Dr. Foy will have been unnecessarily exposed to potential ‘irreparable reputational harm’ from the investigation.

123. As a general point, one assumes that what Dr. Foy is referring to here is reputational harm beyond the reputational harm, if any, Dr. Foy has suffered to date by agreeing to give up his job as Director of Human Resources, by leaving the employment of the University at 60, rather than 65 and by acknowledging that he had fallen short of the standards expected in the Human Resources Department of the University, all of which were contained in the Settlement Letter. In this regard, it is to be noted that these terms were not subject to a confidentiality clause (although one was sought by Dr. Foy) and so these terms had the potential to, and may have, damaged his reputation.

124. However, it is this Court’s view that when deciding how ‘ matters are to be held most fairly pending a trial’ (per O’Donnell J. in Merck Sharpe & Dohme at para. 64), the balance of justice favours allowing the University to investigate this matter of serious concern and this takes precedence over Dr. Foy’s concern that the investigation might cause him further reputational harm.

Promise to injunct any future disciplinary process – a factor in grant of injunction now?

125. Finally, Dr. Foy also claims that another factor which weighs in the balance of justice in favour of the grant of the injunction is the fact that if the investigation proceeds and it leads to a disciplinary hearing, Dr. Foy will ‘ almost certainly’ seek to injunct the progress of the disciplinary process. This legal submission was not in any way made as a threat, since it was expressed that granting the injunction now would save unnecessary ‘ expenditure of further time and financial resources’ involved in having Dr. Foy come back to Court to seek to injunct the disciplinary process which might arise from the investigation.

126. However, this Court does not believe that the promise, as distinct from threat, to injunct any disciplinary process in the future is a sufficient factor in the balance of justice to convince this Court to injunct the investigation now. This is because, as is clear from Clarke J.’s judgment in Carroll v. Dublin Bus, the courts are just as reluctant to grant an injunction during an incomplete disciplinary process, as they are to grant an injunction during an incomplete investigation process. Hence, any future injunction application, will have to surmount this reluctance of a court to intervene in an incomplete disciplinary process. Therefore, the promise by Dr. Foy that he will seek to injunct a disciplinary process in the future is not a sufficient reason to justify, on the balance of justice, the grant of an injunction now.

CONCLUSION
127. In conclusion, this Court refuses the injunction prohibiting the investigation of an alleged serious misuse of hundreds of thousands of euro belonging to a taxpayer-funded University, since Dr. Foy has failed to establish that he has a strong case that the investigation amounts to a breach of the Settlement Letter.

128. In addition, this Court concludes that, he has also failed to establish that there is a fair issue to be tried regarding this matter.

129. Finally, even if there was a fair issue to be tried, the balance of justice does not favour the granting of an injunction because, inter alia, the public interest in investigating the alleged misuse of taxpayers’ funds take precedence over Dr. Foy’s concerns about potential reputational damage which may arise from this investigation.

130. Insofar as final orders are concerned, this Court would ask the parties to engage with each other to see if agreement can be reached regarding all outstanding matters without the need for further court time. In case it is necessary for this Court to deal with final orders, this case will be put in for mention one week from the date of delivery of judgment, at 10.45 am.

Mary Joyce v Board of Management of Colaiste Iagnaid

2015 No. 8129P

High Court

15 December 2015

[2016] 27 E.L.R. 140
(Binchy J.)

Background
1. In this application, the plaintiff seeks to restrain the defendant, her employer, from continuing a disciplinary procedure against her pending the determination *142 of the proceedings herein.

2. The plaintiff is the principal of Coláiste Iognáid, a Jesuit secondary school in Galway. The defendant is the board of management of that school. The plaintiff was appointed to her position as principal in January 2011 and prior to her appointment had no previous involvement with the school. She is a non-teaching principal.

3. At a meeting of the board on 15 April 2015, the chairperson of the board, Mr Jack Cleary, presented to the meeting a report which he had been requested to prepare at an earlier board meeting held on 3 March 2015, into “major issues in the school”, i.e. issues of a concern of significant nature in the school (“the April report”).

4. According to the minutes of the meeting of 3 March, the report to be prepared by the chairperson for the April meeting was to focus on the following issues:

• Why the school is not “a happy school”;
• Staff discontent;
• Stress/Morale;
• Student morale;
• Student discipline;
• The ethos and culture of the “Jes” (as the school is known in Galway);
• Respect;
• What kind of school do we have?
5. Although not a member of the board of management herself, the plaintiff acts as secretary to the board and therefore attends board meetings. The plaintiff was in attendance at the meeting on 3 March.

6. The chairperson duly prepared the April report which he presented to the board on 15 April 2015. Although the matters of concern identified at the March meeting made no reference at all to the principal, the April report contained a number of negative references to the principal, in particular in relation to her dealings with the staff; a perceived loss of authority amongst students (resulting in increased student indiscipline); poor relations with parents; and disagreements with the chairperson of the board. In fact, under just about every heading in the report (which did not follow the exact headings set out in the minutes of the meeting of 3 March) there were comments of a critical nature made about the principal. For example:

(i) Under the heading “students” there is a sentence that states: “Teachers and parents allege that a perceived loss of authority by the principal has contributed to a serious growth in student indiscipline.” This section concludes with the question: “Can the serious challenges described above be resolved under the leadership of the principal, Mary Joyce?” *143
(ii) Under the heading “parents”, it is stated that: “A significant number of parents are very unhappy with developments in the school over the past year”. In the same section it is stated that “parents are horrified that some teachers have criticised the principal to their sons and daughters in class.”
(iii) Under the heading “the principal and the chairperson of the board of management” it is described how the principal sought the views of the chairperson on a number of issues and chose not to act on the advice given by the chairperson in each instance.
(iv) Under the heading “Disciplinary procedure against a staff member during 2014” it is stated: “It has been made very clear to me that the staff have withdrawn cooperation from the principal in the belief that their colleague was treated unjustly. Until this has been comprehensively addressed it seems unlikely that normal, cooperative relations between the staff and the principal and between the staff and the board can be restored.”
7. Since the April report raised a number of issues concerning the performance by the principal of her duties, the chairperson requested the principal not to attend the board meeting at which this report was to be discussed, which was scheduled to take place on 16 April 2015 (but which ultimately took place on 15 April 2015). The plaintiff agreed not to attend, but under protest.

8. The defendant board then proceeded to meet and to discuss the April report. The minutes of this meeting were exhibited by the chairperson to his affidavit sworn on 27 October 2015 in opposition to this application. Under the heading “staff morale and relations” it is minuted that “… the morale of the staff is extremely low. The principal was said to be putting a lot of pressure on staff and they were feeling harassed and stressed. Teachers were becoming tetchy with one another as a result.”

9. This section of the minutes goes on to deal with a number of issues and concludes that the school does not have an effective middle management system, but notes “this has been the case for years.” It then concludes with the statement that “during Mary’s absence the system appeared to work in a more harmonious manner.” The reference to Mary here is to the plaintiff and the reference to her absence is to a period during which she was on sick leave.

10. Under the heading “student indiscipline” the minutes record, “That there is a strong feeling that the discipline in the school has deteriorated significantly. That the disciplining of students by the principal is reported to sometimes be disproportionate and inconsistent.” This section concludes with a question “Do we have confidence that the board can look to the principal to effectively deal with the issues of concern?”

11. Under the heading “parents” the minutes record: “There is a sense that there may have been a general loss of respect for the principal; that much of this stems from the loss of confidence in her judgment and her ability to deal with issues in a proportionate and fair manner”.

*144

12. On another issue, in the context of an investigation by the principal into the conduct of a member of staff in 2014, it is minuted that an important letter from a parent may have been deliberately withheld from the board and its solicitors.

13. The minutes are very detailed and it is clear that the board had an in depth discussion of the issues raised by the April report many of which concerned the plaintiff. At the end of the meeting, the board resolved to ask the chairperson to draft a report outlining the issues of concern in relation to the principal. The chairperson then distributed to the board the disciplinary procedure for principals and requested board members to read this document with great care. The minutes record that the chairperson said that: “he would be inviting the board in time to consider if a report might be presented to the principal in the context of the procedure.” He wanted the board to be familiar with the procedures in advance of considering any such report and before making any judgment in the matter.

14. After the April meeting, the chairperson proceeded to prepare a report for the board as directed at that meeting. This report was given to the board for a special meeting of the board that took place on 14 May 2015. The report was not given to the plaintiff at this time. The report was subsequently appended to the minutes of the meeting of 14 May and deemed to form part of the minutes. The minutes record that: “The chairperson was at pains to remind the board that the report set out a series of matters of concern which related to the principal. It was important that the board be aware that the concerns were set out solely to enable the board to decide whether and how the concerns should be addressed. The board could not discuss the substance of the concerns, given that the principal must be afforded an opportunity to respond.”At the meeting the chairperson was asked to delete a section of the report because the minutes of the May meeting of the board are very short by comparison to other minutes of meetings exhibited and amounts to little more than one page.

15. It is minuted that the board concluded that the remaining matters outlined in the chairperson’s report set out a prima facie case that required the concerns therein to be put to the principal and her response sought. Two possible avenues to achieve this were considered; one was to put the matters to the principal informally, outside of any formal procedure; the second was to proceed under the revised procedures for suspension and dismissal of principals s.24(3) of the Education Act 1998.

16. The board did not reach a decision on how to proceed and agreed to meet again on 4 June 2015 to consider that matter further. The minutes recorded that “The chairperson reminded the board of the need for absolute confidentiality.”

17. The board then met again on 4 June 2015 to consider the matter further. The minutes of this meeting record that the chairperson reminded the board that “the issue here was not to adjudicate on the allegations being made but to establish if there was a prima facie case to be answered by the principal and then to decide (if that was judged to be the case) how best to manage this.”

*145

18. These minutes record that the chairperson stated that in his view the issues presented fell into two categories:

(i) “The perception amongst staff that there was a serious injustice done to a member of staff in relation to the principal’s handling of a disciplinary procedure”; and
(ii) “Other and more general matters of concern relating to the principal’s management of the school.”
19. In relation to the first issue, the minutes record the need to get the response of the principal to a number of issues arising in relation to that issue. The minutes further record that: “It was stressed that the principal had not yet had an opportunity to respond to the concerns identified and that the board must not prejudge any aspect of the matter.”

20. In relation to the second more general set of issues, it was decided to omit one further matter from the report of the chairperson to the board. The minutes conclude by saying that it was agreed that the principal’s response to the concerns should be sought under stage 4 of the procedure.

21. From all of the above, it is apparent that the board had considered, in some detail, allegations made against the principal at its meetings (from which the principal herself was excluded) on 15 April, 14 May and 4 June. While the meeting in April was to consider the April report into matters of concern in the school generally, there can be no doubt but that there was a lot of discussion at that meeting in relation to the conduct of the principal, indeed it was for that reason she was requested not to attend the meeting.

22. The April meeting then gave rise to the report dealing specifically with the conduct of the principal which, as a result of discussion at the May and June meetings, was amended by the deletion of two paragraphs relating to matters which the board did not consider necessary to pursue or investigate any further.

23. The chairperson did not interview the principal at any stage for the purposes of the preparation of his report. Although it is not entirely clear, it seems as though he did interview other personnel (for example there is annexed to his report a progress report prepared by another member of staff into the implementation of a memorandum of understanding prepared by the principal in conjunction with the teaching staff).

24. Ultimately, the chairperson finalised his report on 17 July 2015 and sent it, together with a letter dated 4 August 2015, to the plaintiff who received it on 13 August 2014. The plaintiff complains that the report furnished to her purports to make findings and draws conclusions in relation to the performance of her duties, and that many of the findings are deeply prejudicial and shocking to her; that they are very damaging to her personal and professional reputation; that they are unfair and unwarranted and that she will not be able to challenge the *146 findings of the report as the findings have already been made. In short, she fears that there is no prospect that she will have a fair hearing from the board in view of what she describes as its findings to date (which have been made without the benefit of any input of the plaintiff). The plaintiff fears that her employment will be terminated without her having been afforded the opportunity to be heard in her own defence “within an objective forum free from any actual or perceived bias”.

Report of 17 July 2015
25. The report of the chairperson dated 17 July 2015 (“the July report”) was prepared by reference to a number of headings which overlapped to a significant extent with the April report, into matters of concern generally in the school. It is not necessary for the purpose of this judgment to get into the detailed facts of these matters, instead I will set out the remarks to which the plaintiff takes exception using a short summary of the issue concerned, or where the chairperson does so in the July report, using headings. In the July report the chairperson addresses:

1. An allegation that the principal misled the board of management, deliberately, in the course of an investigation into the conduct of a teacher in the school. This section of the report concludes with the following sentence:
“The principal’s conduct, outlined above, raises very serious concern around the trustworthiness of the principal in her interaction with the teacher involved, and with the board itself.”

This comment is preceded by almost two pages of the chairperson’s summary of the facts in this matter (without of course, any comment by the plaintiff herself).
2. Concerns regarding the loss of parents’ and students’ personal data during 2014. This is contained in a short paragraph.
3. Concerns regarding the investigation into the conduct of the teacher referred to at paragraph 1 above dealing with a report given by the plaintiff to the teacher concerned in March 2014 and which the chairperson described as containing “statements, allegations and innuendo which were incompatible with her duty of care to the teacher and with her duty to the board of management”. This is also a short section of the report and concludes with the question:
“The board is asked to judge whether this statement is laden with baseless innuendo, as alleged by the teacher in his submission to the disciplinary hearing of 30 June 2014.”

4. Concerns relating to the relationship between the plaintiff and the board of management and implementation by the plaintiff of board of management decisions. There are a number of comments made in this section that the plaintiff complains are clearly of a conclusive or judgemental nature. These include:
• “It is unacceptable that the principal would not support a decision of the board. To link that decision to an allegation of serious misconduct *147 by students, misconduct which turned out not to include criminal damage, is wholly unacceptable.”
• “Other examples of actions by the principal which did not meet professional standards include…”
• “Such conduct undermined the board. It also undermines the trust and confidence of the board in the principal, including the essential trust and confidence that the principal would support and execute decisions of the board, and be seen to do so.”
• “The board was of the view that the principal had not adhered to the board’s direction in this matter.”
• “Her actions call into question Ms. Joyce’s professional judgment. Her ethical standards were also questionable ….”
• “This unnecessarily hasty decision exposed the school to the possibility of having an unsuitable person work with students in a very sensitive area.”
• “Another example of the principal’s judgment causing upset relates to …”
• “By her conduct, I believe that essential trust, support and cooperation of staff has been seriously undermined.”
26. Under the heading of “staff morale”, the chairperson concludes by asking the board “to decide if it believes that Ms Joyce can regain the trust, support and cooperation of the staff.”

27. Under the heading of “student discipline” it is stated:

“This, in the view of the board, shows poor judgment and an insufficient understanding of the stress experienced by students facing into Leaving and Junior Certificate exams. In the view of the board, the principal’s actions were unnecessary, excessive and can only have added to the anxiety and stress levels of some students. The board is asked whether Ms Joyce has the trust and confidence of students.”

28. Under the heading of “Jesuit ethos”, the report states that the board perceives that the Jesuit ethos which has characterised “the Jes over many years, is being eroded by the conduct of the principal.” In this section of the report the chairperson asks the board to judge whether the principal shares the traditional values for the school, as well as the vision for the school into the future and whether she can lead the school back to its traditional ethos.

Applicable disciplinary procedures
29. There is no dispute between the parties as to the procedures that apply where disciplinary issues arise in connection with the performance by school principals of their duties. These procedures are set out in a document prepared by the Department of Education pursuant to s.24(3) of the Education Act 1998 entitled “Towards 2016, Revised Procedures for Suspension and Dismissal of *148 Principals”. This procedure is set out in a Departmental Circular 60/2009. At the beginning of the circular it is stated that the procedures are intended to comply with the principles of natural justice and provide, inter alia:

• “that there will be a presumption of innocence. No decision regarding disciplinary action can be made until a formal disciplinary meeting has been convened and the employee has been afforded the opportunity to respond to the allegations raised;
• that the employee will be advised in writing in advance of a disciplinary meeting of the precise nature of the matters concerned and will be given copies of all relevant documentation. In the case of a complaint, this detail will include the source and text of the complaint as received. A complaint should be in writing;
• that details of the allegations, complaints or issues of professional competence be put to the principal concerned;
• That the principal concerned be given the opportunity to respond fully to any such allegations, complaints or issues of professional competence;
• That the principal concerned has the right to examine and challenge all evidence available and to call witnesses or persons providing such evidence for questioning;
• That the principal concerned has the right to a fair and impartial examination of the issues being investigated, taking into account the allegations or complaints themselves, the response of the principal concerned to them, any representations made by or on behalf of the principal concerned and any other relevant or appropriate evidence, factors or circumstances.
30. The procedure itself is broken down into four stages but allows for the possibility that the board of management of a school may proceed directly to stage 4 in given circumstances. The opening paragraph of stage 4 states:

“If it is perceived that the poor work or conduct has continued after the final written warning has issued or [emphasis added] the work or conduct issue is of a serious nature a comprehensive report on the facts of the case will be prepared by the chairperson and forwarded to the board of management. A copy will be given to the principal”

31. The process then continues as follows:

“The board of management will consider the matter and will seek the views of the principal in writing on the report prepared by the chairperson. The board of management shall afford the principal an opportunity to make a formal presentation of his/her case. The principal should be given at least ten school days’ written notice of the meeting. The notice should state the purpose of the meeting and the specific nature of the complaint and any supporting documentation will be furnished to *149 the principal. The principal concerned may be accompanied at any such meeting by his/her trade union representative/s or a colleague/s subject to a maximum of two. The principal will be given an opportunity to respond and state his/her case fully and to challenge any evidence that is being relied upon for a decision and be given an opportunity to respond. Having considered the response the board of management will decide on the appropriate action to be taken. Where it is decided that no action is warranted the principal will be so informed in writing within five school days. Where following the hearing it is decided that further disciplinary action is warranted the board of management may avail of the following options …”

The process then sets out the possible sanctions in the event of a finding of misconduct. These include the deferral of an increment, demotion, other disciplinary actions short of suspension or dismissal, suspension with pay, suspension without pay and ultimately, dismissal.

32. As might be expected, the procedures provide for an appeal and this is set out in appendix A to the circular. For present purposes, paragraphs 1-3 are the most relevant:

“Disciplinary Appeal Panel
1. The board of management shall appoint a Disciplinary Appeal Panel which shall comprise;
• An independent Chairperson from a panel nominated by the Minister for Education and Science
• A representative of the recognised management body
• A nominee of the relevant teacher union
2. No member shall be appointed to the panel to consider a case referred to the panel who has had any prior interest in or dealings with that particular case.
Appeal Process

3. A principal may seek a review of disciplinary proceedings by the panel on one or more of the following grounds:
i. the provisions of the agreed procedures were not adhered to
ii. all the relevant facts were not ascertained
iii. all the relevant facts were not considered or not considered in a reasonable manner
iv. the principal concerned was not afforded a reasonable opportunity to answer the allegation
v. the principal concerned could not be reasonably be [sic] expected to have understood that the behaviour alleged would attract disciplinary action
vi. the sanction recommended is disproportionate to the underperformance or misconduct alleged
*150

Grounding affidavit of plaintiff
33. In her grounding affidavit, the plaintiff complains specifically about the text in the July report referred to at paras 25-28 above, and about other matters, She complains that the board has already considered the July report and made findings prior to the disciplinary hearing, that is meant to follow the delivery of the chairperson’s report. She claims that at this stage, it will not be possible for her to challenge the findings made in the report as those findings have already been made, and that they have been made without her input or involvement. She claims that she was entitled to participate in the investigation process and that this is necessarily required as part of the fair and impartial examination of the issues envisaged by Circular 60/2009. Accordingly, she seeks orders requiring the July report to be set aside and the discontinuation of the current disciplinary process.

Replying affidavit of Mr Cleary
34. In his replying affidavit, Mr Cleary, the chairperson of the board denies that any findings have been made. He states in his affidavit, that by the time of the board meeting of 14 May 2015 “your deponent had formed certain views and had prepared a report which reflected those views. The views recounted therein were my own. Insofar as the report refers to the views of the board such references are to views arrived at before April 2015 and which were discussed in the presence of the plaintiff over time.” He exhibits to his affidavit the minutes of the meetings of 3 March 2015, 15 April 2015, 14 May 2015 and 4 June 2015. Mr Cleary places great emphasis on those parts of the minutes that stress that the board could not discuss the substance of the concerns in the report presented to the board and that the principal must be afforded an opportunity to respond. He avers that the only amendments to the report as originally presented to the board comprised the deletion of two sections of the report, in respect of which the board did not think it appropriate to proceed to stage 4 of the disciplinary process. Mr Cleary avers that when the board finished its deliberations at the meeting on 4 June 2015 it was agreed that there was a case to be answered and that this should be done through the formal disciplinary procedure. Mr Cleary denies that there has been any predetermination of matters. He further denies that the plaintiff has any entitlement to participate in the preparation of the report and that this is not a requirement of Circular 60/2009; nor in his view, is it a requirement of fair procedures that the plaintiff should be entitled to participate in the preparation of the report. He claims that if the plaintiff was correct in her contention that she has an entitlement to participate during the phase when the report is being prepared, that this would have impossible practical implications that would require the person compiling the report to mediate between versions of events and even find facts, when that is clearly the responsibility of the board.

35. As regard to the balance of convenience, Mr Cleary argues that there is a process underway whereby all relevant matters can be resolved and which *151 fully protects the rights of the plaintiff and that accordingly it is premature for the plaintiff to seek injunctive relief.

36. Mr Cleary also stated that he himself will have no further role in any future disciplinary hearings, save to present the report. While this is not a requirement of Circular 60/2009, Mr Cleary avers that this is consistent with the relevant procedures. Moreover, the defendant has agreed that at any disciplinary hearing, the plaintiff may have the assistance of legal representation, although that is not envisaged by the circular either. However, the defendant is prepared to accommodate the plaintiff in this regard because she is not a member of a union and will not therefore have the benefit of union representation.

Affidavit of Mr Brian Flannery
37. An affidavit opposing the plaintiff’s application was also sworn by Mr Brian Flannery. Mr Flannery is a member of the board in his capacity as delegate for Education and Youth in the Irish province of the Jesuits. Apart from having previous experience as a teacher, Mr Flannery also has extensive experience in the educational sector generally and has served as a trustee nominee on the boards of management on a number of schools under the trusteeship of the Society of Jesus. He is currently also a member of the board of management of Crescent College Comprehensive in Limerick, as well as advising the Jesuit provincial on matters of trusteeship and governance of the Jesuit schools and colleges in Ireland.

38. Mr Flannery states that he is familiar with the terms of Circular 60/2009 and is very conscious of the importance of adhering to the principles of fairness in the implementation of disciplinary procedures. He avers that at no point during the meetings of March, April, May and June 2015 did he, or any other member of the board, make or express any determinations or findings of fact adverse to the plaintiff. He said the board was very careful not to do this, being aware of the importance of adhering to the necessary procedures. He confirmed that the chairperson carefully outlined to the meetings not just the terms of the circular, but also the need to be fair to any affected party. He states that staff morale at the school is low and that concerns regarding the Jesuit ethos of the school have been the subject of long and concerned debate at various board meetings in which the plaintiff took a full part. He says that these issues having been before the board for some time, are issues of which the board has knowledge. However, he states that this does not mean in any sense that the board has “found facts as against the plaintiff at the board meetings between 15 April and 4 June 2015 as claimed by the plaintiff.” He avers that should the court decline to grant the plaintiff the relief she seeks, the procedures provided for by the circular will be implemented by the board in a fair and considered way.

Second affidavit of the plaintiff
39. The plaintiff swore a second affidavit on 6 November 2015. Her principal *152 complaint in this affidavit is that the exhibits to Mr Cleary’s affidavit of 27 October 2015 demonstrate the involvement of the board “at all stages of the “purported” investigation and completion of the Cleary report which is now used as a basis to commence proceedings against me”. Moreover, the plaintiff asserts that: “what is envisaged and expected by the circular is that a final report which is the conclusions (sic) of the investigator taking account of the explanations of the principal is presented to the defendant and on the basis of that report, a decision is taken by the board whether to proceed to a disciplinary procedure.” The plaintiff goes on to say that: “it is outside of the provisions of the circular, and indeed the role of the defendant under the circular, to consider various drafts of the report prior to it being finalised. Given that the defendant considered at least three versions of the report prior to it being finalised, it is clear that the defendant had a considerable opportunity to influence the report and the findings contained therein (including its own findings), had an effect over the direction of the report, all without having heard any explanations from your deponent”.

40. Insofar as the chairperson had in his affidavit explained those parts of his report where he had expressed views of the board, and had explained that as referring to matters previously discussed by the board (before the onset of disciplinary proceedings against the plaintiff) the plaintiff makes the point that the mere fact that a particular issue, for example that of staff morale being low, is known to the board is very different to linking that issue to the performance of the plaintiff in her duties. The plaintiff avers that she was unaware of such criticism of her previously and claims that she had an entitlement to respond to any such allegation.

41. The plaintiff further claims that as a result of what she describes as the highly damaging comments made by the chairperson about her at the meeting of 15 April, coupled with the findings of the board contained in the final report of Mr Cleary of 17 July, in her absence, that the board cannot determine allegations against her impartially at a disciplinary hearing. She says:

“They cannot but be tainted by Mr Cleary’s negative view of me as recounted in that meeting. The clear lack of demarcation between the investigation and disciplinary procedure, including the role of the defendant in both, means that the entire process is flawed and invalid.”

42. The plaintiff goes on to say that the facts contained in the report of the chairperson are clearly established both on his part, and on the part of the board, and are established or found against the plaintiff without any input on her part. She claims that this is evident from the absolute language in the report, such as “it is the view of the board that I have shown poor judgment.”

43. The plaintiff also made a complaint about a meeting that the chairperson had with members of staff, and what he said at that meeting, on 12 October 2015. *153 This was following upon the application by the plaintiff for ex parte relief. I do not think that anything turns on this issue and do not propose to address it any further.

Second affidavit of Mr Cleary
44. Mr Cleary delivered a replying affidavit dated 12th November, 2015 in which he stresses that there is no question of the board having formed any views of its own and that to the extent that such phraseology appears in his report, it is clear that it is in his report from the very outset, prior to the board being furnished with the report at all. He again states that the only effect the board had on the content of his report was to request that two matters should not be included in the final version, i.e. that two complaints should not proceed.

Submissions of counsel for the plaintiff
45. First, it should be observed that there is no dispute between the parties that Circular 60/2009 is applicable to the plaintiff’s employment with the defendant. The principal differences between the parties in this regard are: first, as to the exact requirements of Circular 60/2009 and secondly, whether or not there has been compliance with the procedures set out therein.

46. Ms Bolger SC on behalf of the plaintiff submits that the terms of the circular clearly provide the right on the part of the plaintiff to participate in any investigation and for her views to be taken account of in the fair and impartial examination of the complaints themselves during the investigation. She submits that this requirement was breached by the defendant in view of the fact that the July report was formulated and finalised in the absence of any input on the part of the plaintiff.

47. Counsel relied upon a range of authorities including the case of Minnock v Irish Casing Company Ltd [2007] E.L.R. 229 in which Clarke J. said:

“First, while it is asserted on the part of the defendant’s that Mr Stewart is conducting a investigation, it seems to me that that is only partly true. As has been pointed out in some of the authorities, the range of preliminary enquiries that can be conducted may flow from one end of the scale where there is a pure investigation where no findings of any sort are made on behalf of the enquirer other than to determine whether there is sufficient evidence or materials to warrant a formal disciplinary process, and it seems clear on all the authorities that that type of pure investigation which does not involve any findings is not a matter to which the rules of natural justice apply and is not a matter therefore which the courts should interfere with …. At the other extreme there are inquiries which can make formal findings which may, for example, be part of a statutory process or the like in respect of which it does appear on the balance of authorities to be settled that the rules of natural justice do apply, and it may well be that in those circumstances the court would need to consider whether it is appropriate to intervene by making *154 an interlocutory order where a case has been established that there has been a significant flaw in the process.”

48. It is submitted on behalf of the plaintiff that in this instance, the report of Mr. Cleary was manifestly more than a mere evidence gathering exercise; that there are more than mere allegations in the report, there are findings both of the chairperson and of the defendant. Accordingly, it is submitted that the plaintiff was entitled as a matter of fair procedures, to have an input into the preparation of the chairperson’s report.

49. It is further submitted on behalf of the plaintiff that both the chairperson and the defendant have made specific findings of fact in respect of the performance of the plaintiff in her position as principal and that these findings were collated entirely in the absence of fair procedures and natural justice, and that they are findings of fact that have been made prior to the disciplinary hearing taking place.

50. It is further submitted on behalf of the plaintiff that the defendant departed from the procedures set out in Circular 60/2009, which requires the chairperson to prepare a report on the facts of the case and to forward it to the board and the plaintiff. In this instance, the report was considered at the meetings of May and June 2015, and issues giving rise to the report had been considered at the meeting of April 2015. The plaintiff submits that in considering drafts of the report, including allegations against the plaintiff, and in making findings of fact against the plaintiff, both the chairperson and the defendant have acted in contravention of Circular 60/2009.

51. The plaintiff submits that it is clear from the authorities that the courts will intervene to restrain a breach of a disciplinary procedure and refers in particular to the decision of Laffoy J. in Giblin v Irish Life and Permanent Plc [2010] IEHC 36.

52. It is further submitted that the defendant cannot but have prejudged all of the findings against the plaintiff (including those where it has made specific findings of fact), given its consideration of the various drafts of the chairperson’s report and the meeting of 15 April 2015 where serious views of the plaintiff as principal were expressed by the chairperson which then formed part of his findings. Moreover, it is submitted, the use of the language of findings is also evidence of prejudgment.

53. The plaintiff also relies on the decision of Laffoy J. in McLoughlin v Setanta Insurance Services Ltd [2011] IEHC 410. In that case, Laffoy J. found that the person charged with conducting the investigation had gone further than merely conducting an investigation and that she had made findings of fact. Laffoy J. noted that comments in the affidavit of the investigator bore “more of the hallmark of a reasoned determination against the plaintiff than merely an outline of why the invocation of the disciplinary process against the plaintiff was necessary”. Laffoy J. considered that this suggested prejudgment on the part of *155 the person conducting the investigation and the court therefore restrained the investigation from proceeding further.

54. The plaintiff submits that the test for objective bias or prejudgment is set out in the decision of the Supreme Court in O’Neill v Beaumont Hospital [1990] I.L.R.M. 419 where Finlay C.J. stated:

“The test is an objective test as to whether a person in the position of the plaintiff who is a reasonable man might reasonably fear that prejudgment expressed … would prevent a completely fair and independent hearing of the issues which arise”.

55. Furthermore, the plaintiff submits that where there is any doubt the plaintiff is entitled to the more favourable interpretation.

56. The plaintiff accepts that she is, in effect seeking a mandatory injunction and that accordingly she must establish a strong case that she will succeed at the trial of the action per Maha Lingham v Health Services Executive [2006] E.L.R. 137 That said, the plaintiff places reliance on the decision of Hogan J. in Wallace v Irish Aviation Authority [2012] E.L.R. 177 in which Hogan J. suggested that the Campus Oil principles may require refinement in appropriate cases and that they are designed to be flexible and to be capable of adaptation to the specific circumstances of the case at hand. While noting that in that case the “plaintiff’s case appears particularly strong” he also noted that “it is only just and equitable that she be granted the interlocutory relief which she seeks, not least where (as here) the point is a net one of construction, not dependent on oral evidence or elaborate argument, and where damages would be an inadequate remedy”.

57. It is submitted on behalf of the plaintiff that she has a particularly strong case by reason of the following:

i The plaintiff has a contractual entitlement to the application of fair procedures including the right to participate in the investigation conducted by the chairperson;
ii The investigation of the chairperson was more than a mere evidence gathering exercise;
iii There were no fair procedures or natural justice or contractual entitlements applied to the plaintiff prior to the chairperson’s report issuing;
iv There have been findings of fact and prejudgment of the issues made by the defendant and the chairperson;
v The plaintiff will not obtain a fair and impartial determination of the allegations against her due to the involvement of the defendant and the chairperson in the investigation;
vi The plaintiff is at risk of dismissal; and
vii There have being findings of fact made by the defendant, the same entity charged with conducting the disciplinary hearing.
*156

58. Finally, the plaintiff submits that damages could not be an adequate remedy having regard to the damage to her reputation that she will sustain in the event of her dismissal. As to the balance of convenience, the plaintiff relies on the decision of Clarke J. in O’Sullivan v Mercy Hospital Cork Limited [2005] IEHC 170 in which he held:

“The fact that there may be difficulties for the hospital in dealing with the legitimate interests of all of the parties involved which difficulties are significantly compounded by the fact that this process would appear to have gotten off to a most inauspicious start does not alter the fact that the plaintiff is entitled to have her rights and her reputation dealt with in accordance with law. Where she has, as I have found, made out an arguable case that what is intended will be in breach of those entitlements I am satisfied that the balance of convenience would favour the granting of an interlocutory injunction unless some particular and exceptional countervailing injustice that will occur by reason of a delay could be pointed to. I am not satisfied that any such countervailing factor has been established and in particular I am not so satisfied provided that the full hearing of this action can, as I intend it will, be made ready for hearing in a relatively short period of time.”

59. The plaintiff submits that any inconvenience caused to the defendant by the granting of the relief sought will be short term and is alleviated by the willingness of the plaintiff to cooperate both in relation to the earliest possible trial date, and to participate in an investigation process which confirmed to her rights to fair procedures and natural justice.

Submissions on behalf of defendant
60. The defendant submits that the plaintiff’s case centres around two points:

(i) A claim that the plaintiff was entitled to participate at the report stage of the stage 4 disciplinary process, i.e. that the chairperson should have sought out the views of the plaintiff in relation to the matters addressed in his report, and incorporated those views into the report, and
(ii) That the board (as distinct from the chairperson) has demonstrated bias or prejudgment that is fatal to the whole process.
61. In relation to the first point, the defence submits that the authorities are quite clear that an employee does not enjoy any entitlement to participate in the preparation of the report of the chairperson prior to the presentation of the same to the board. It is submitted that the procedure set out in Circular 60/2009 is a procedure that was the product of protracted negotiations (over a period of years) involving teacher’s unions, school patrons, management organisations and the Department of Education and Skills. It is submitted that had it been agreed that a teacher or principal should participate in the preparation of the chairperson’s *157 report, it would have been reflected in the circular. In short, the fact that there is no such provision in the circular is not an oversight and such a significant provision should not be implied.

62. Counsel also relied on the authorities of Morgan v Trinity College [2003] 3 I.R. 157, O’Brien v AON Insurance Managers (Dublin) Ltd [2005] IEHC 3 and Minnock v Irish Casing Co. Ltd, all as authority for the proposition that the rules of natural justice do not apply to preliminary enquiries that are in their nature investigatory, and where no findings of any sort are made on behalf of the inquirer other than to determine whether or not there is a prima facie case to warrant a formal disciplinary process.

63. It is submitted on behalf of the defendant that there was no question of the chairperson or the board making findings in the preparation of the report and that all of the evidence makes it clear that the chairperson was at pains to emphasise to the defendant that the purpose of the report was to determine whether or not there was a prima facie case, and not to make any findings against the plaintiff. It is submitted that there is no finding in the July report which has an impact on the subsequent procedures; that everything remains to be determined with the full input of the plaintiff.

64. As to the plaintiff’s contention that the defendant, i.e. the board (as distinct from the chairperson) has demonstrated prejudgment, it is submitted that this is not supported by the evidence. First, it is submitted that insofar as the plaintiff places reliance upon text in the July report that refers to views of the board or concerns of the board, this text has its origins in the April report, i.e. prior to consideration by the board of the report prepared by the chairperson in relation to the principal which was presented for the first time to the May meeting of the board.

65. Secondly, the defendant places great emphasis upon the fact that from the very outset, i.e. from the time that the board determined that the chairperson should prepare a report outlining issues of concern in relation to the principal, the board was reminded by the chairperson of the need to be familiar with the disciplinary procedure in advance of considering the chairperson’s report and before making any judgment in the matter. Reliance is also placed upon subsequent board minutes that record the reminders given by the chairperson to the board, following the delivery of the chairperson’s report to the effect that the principal must be afforded the opportunity to respond to the report and that there was not to be adjudication on allegations in the report, but instead a determination as to whether or not there was a prima facie case to be answered.

66. Counsel for the defendant argues that the plaintiff has misinterpreted those parts of the report which she alleges constitute findings of fact or conclusions in relation to the performance of her duties. He further argues that it is clear from a proper reading of the July report that the chairperson, in regard to these matters, is either making allegations and/or expressing his own view on the issues *158 complained of but that in no sense does the report purport to express findings of fact of the board. In some cases counsel argues that where views of the board are expressed, they relate to matters previously discussed by the board, i.e. prior to this investigation about which the views of the board would have been well known to the plaintiff. Accordingly, counsel submits that the matters complained of by the plaintiff do not constitute any evidence of the making of findings or the formation of conclusions by the board.

67. In response to other points it is submitted that the chairperson was doing no more than formulating an allegation and/or expressing his view on the issue.

68. The defendant responds to a number of other points on the basis that the issues raised refer back to historic events and that insofar as any views are expressed to be views of the board, e.g. that staff morale is low, this could not be considered to be a finding of fact arrived at by the board between the months of April and July 2015, i.e. the report may reflect views of the board that predated this investigation and it is submitted that this does not constitute any findings of fact on the part of the board in relation to the conduct of the plaintiff. It is further submitted that the board can hardly be expected not to know matters that are notorious in the school and which have been the subject of much discussion by the board itself previously.

69. It is further submitted that the test of whether or not the disciplinary process is contaminated by bias or prejudgment is an objective test, i.e. would a reasonable person believe that the decision maker will bring an impartial mind to the matters it has to decide? Reliance is placed in this regard on the decisions of Denham J. (as she then was) in Bula Ltd v Tara Mines Ltd (No. 6) [2000] 4 I.R. 412 and O’Callaghan v Mahon [2008] 2 I.R. 514 in which Fennelly J. said that the test was one of a hypothetical observer, neither oversensitive nor careless of his own position.

70. Finally, the defendant submits that even if there has been any defect in the processes to date, there are significant and important safeguards provided for in Circular 60/2009. These include:

• The principal will have an opportunity to provide a written response to the July report;
• There will be an oral hearing at which she may be legally represented;
• The plaintiff will have an opportunity to call evidence and cross-examine witnesses at the oral hearing;
• The chairperson will have no further involvement in the process;
• The plaintiff has a right of appeal to an independent body, if she is dissatisfied with the decision of the board; and
• In the event of her dismissal, the plaintiff still has the remedies afforded to her by the unfair dismissal acts or she may challenge the outcome by way of judicial review.
*159

71. The defendant submits that the balance of convenience does not favour the plaintiff in the light of the safeguards afforded to the plaintiff and in view of the alternative remedies available to the plaintiff.

Decision
Compliance with procedures

72. The first question to be addressed in considering this application is whether or not there has been compliance by the chairperson with the procedures prescribed by Circular 60/2009. Counsel for the defendant has submitted that in construing these procedures, the court should not do so as though the circular was a statute and should look at the procedures in a flexible and purposive way and I agree with this submission. To apply standards of statutory interpretation to such circulars might well make them unworkable.

73. The first step in stage 4 of the circular requires the chairperson to prepare a “comprehensive report on the facts of the case”. Clearly the word “facts” in this context must be treated with some circumspection as to present a report that is solely confined to incontrovertible fact may well result in a report that contains so little information as to serve no useful purpose. That the procedure does not envisage the chairperson himself making findings is clear from the requirement of the board of the management, following receipt of the report, to seek the views of the principal in writing on the report.

74. It is quite clear that it is at that stage in the process that the principal is entitled to participate and make her submissions, and not at the stage when the chairperson is preparing his report, although it must be said that there would be nothing to prevent the chairperson seeking out the views of the principal on the matters under investigation in the course of preparing the report. However, he is not obliged to do so on the basis of the procedures in there current format.

75. Moreover, this is consistent with the jurisprudence in the area, to which the court has been referred. It is quite clear that the principles of fair procedures and natural justice do not apply to the investigator stage provided that, in the words of Clarke J. in Minnock “no findings of any sort are made on behalf of the inquirer other than to determine whether there is sufficient evidence or materials to warrant a formal disciplinary process.”

76. Before considering this question, i.e. whether or not the report contains findings, it should be observed that counsel for the plaintiff is correct in saying that the procedure envisaged by Circular 60/2009 was not exactly followed when the report was first available. The chairperson first brought his report on the principal to the May meeting of the board. Strictly speaking, in accordance with the procedures, he should at the same time have given a copy of that report to the principal. At that meeting, the board, having decided that there was a prima facie case, were unable to decide on how best to proceed and adjourned the matter for further consideration to its meeting on 4 June, when it then decided to continue *160 the stage 4 procedure and to seek the principal’s views on the report. First however, the chairperson had to amend the report further to reflect the direction of the board to omit one heading of complaint (having already omitted an other following the May meeting). The chairperson did not get around to attending to this until July and did not send the report to the principal until mid-August.

77. It is submitted on behalf of the plaintiff that, by the time the report was finalised, the board had effectively discussed and considered the content of the report on three occasions, the first being at the April meeting when a number of the same issues referred to in the July report were discussed in the context of the April report (into matters of concern in the school generally) and then again at the May and June board meetings. By reason of this, it is submitted, the board must by the time the July report was finalised, have reached conclusions adverse to the plaintiff (which it is further submitted are reflected in the July report) without having afforded the plaintiff the right to be heard.

78. There is no doubt that strict compliance with the procedures set out in Circular 60/2009 requires the chairperson to send his report to the principal at the same time that he sends it to the board. However, counsel for the defendant has submitted that it is necessary for the board to consider the report in the first instance in order to decide whether or not there is a prima facie case that merits proceeding any further with the matter. I do not think however that this is correct. There is no ambiguity about the procedure in this respect — it clearly envisages the chairperson delivering, simultaneously, his report to each of the board and the principal. As counsel for the defendant submitted in another context, these procedures were the subject of exhaustive negotiations and if it was intended that the board should be given the report in advance of the principal, then the procedures would have been worded accordingly. Even if a board determines that it does not wish to advance an investigation any further, after receiving a report from the principal, it seems to me that a principal would in any event be entitled to receive a copy and would most likely want to receive to a copy of the chairperson’s report in case there are any adverse inaccuracies that a principal would not wish to see left uncorrected or in any way on the principals’ record.

79. Furthermore, the detailed consideration and discussion of the report at meetings of the board (in this case on two occasions, disregarding the April meeting), in the absence of any response from the principal must inevitably lead to the possibility that by the time the board eventually receives the response of the principal, the board, or individual members of the board, will already have begun to reach conclusions, (based on the July report or its earlier drafts) notwithstanding whatever warnings may have been given to the board that it should not rush to judgment.

80. The July report itself contains a number of remarks or comments (set out in paras 25-28) which by any standards could only be regarded as highly prejudicial to the plaintiff. A number of them are most definitely in the nature of *161 conclusions and some are in the nature of rhetorical questions, begging only of an answer adverse to the plaintiff. A considerable amount of time at the hearing was taken up in discussing whether or not those parts of the July report that referred to “the views of the board” in fact represented the views of the board. However, I am not altogether sure that this really matters; it is clear from the authorities that where the investigator goes beyond the mere gathering of facts in order to determine whether or not there is a case to answer to warrant a formal disciplinary proceedings and makes findings or draws conclusions, the enquiry can not any longer be characterised as one which Clarke J. described in Minnock of a “pure evidence-gathering type” to which the rules of natural justice do not apply. In that case, Clarke J. held that the second defendant, who was conducting an investigation on behalf of the first defendant employer had purported to make what he described as findings and for that reason he granted an order restraining the continuation of the investigation pending the full trial of the action.

81. In the McLoughlin case, the human resources manager of the defendant was conducting an investigation on behalf of her employer. The board of the defendant had passed a resolution delegating the adjudicative function in any disciplinary hearing to an independent third party, and the human resources manager was to be responsible for assembling the relevant evidence and formulating allegations, if any, against the plaintiff. The resolution delegating the adjudicative function also recorded that the defendant had resolved to observe principles of fair procedures and natural justice at all times. However, Laffoy J. granted an order restraining the defendant from carrying out the investigation in the manner proposed because, inter alia, the affidavit evidence of the human resources manager indicated that she had made a “judgment that the conduct of the plaintiff warrants her dismissal, presumably, because she considers it serious misconduct.” Laffoy J. also referred to other comments of the human resources manager, which she did not quote but, which in the view of Laffoy J. pointed to a prejudgment on the part of the human resources manager in relation to the conduct of the plaintiff.

82. In this case, and as is referred to in para.34 (supra) Mr Cleary states on affidavit that he had formed certain views and had prepared a report which reflected those views. Counsel for the defendant submits that this is permissible and that if the chairperson’s words are to be construed as a determination on his part that there is a case to answer, this is entirely consistent with the case law relied upon by the defendant. The chairperson’s views are those referred to in paras 25-28 (supra) which quite clearly reflect very negatively on the plaintiff in the performance of her duties and there must be a strong case that they go far beyond the gathering of evidence or the formulation of allegations based upon the evidence. Moreover, the circumstances of this case as a whole do not seem to me to be materially different to those that gave rise to interlocutory relief in the Minnock and McLoughlin cases.

*162

83. In my view the plaintiff has established a strong case that at the full trial of the action, she will, notwithstanding the cautions given by the chairperson to the board when considering the drafts of the report at the May and June meetings of the board, succeed in establishing:

1. That the chairperson and the board did not proceed with the investigation in accordance with Circular 60/2009, in that the chairperson did not distribute copies of his report to the plaintiff and the board simultaneously and the board proceeded to discuss the report at two meetings in advance of giving the same to the plaintiff, to the likely detriment of the plaintiff and/or;
2. That the July report contains not just a statement of the facts, but also findings and conclusions which have been made without affording the plaintiff any opportunity to respond, thereby depriving the plaintiff of fair procedures and natural justice, and/or;
3. If Circular 60/2009 envisages the making of findings as part of the preparation of a comprehensive statement of the facts, then it is clear that the plaintiff would be entitled to fair procedures and natural justice at that stage in the process, i.e. when the report is being prepared by the chairperson.
84. It is well established that in a matter such as this, damages will not be an adequate remedy for a person such as the plaintiff in the event that the investigation proceeds and she is dismissed from her employment, by reason of the reputational damage that the plaintiff would suffer consequent upon her dismissal.

85. As to the balance of convenience, while it is clear that an investigation of this kind is very disruptive to the orderly running of the school and therefore requires urgent resolution from the point of view of the defendant, nonetheless I am satisfied that the balance of convenience lies in favour of granting an injunction limited to restraining the defendant from continuing its investigation pending the full trial of the matter. Clearly an early trial date is desirable and I will address that by making appropriate orders as to delivery of pleadings.

Coffey -v- William Connolly & Sons Ltd

[2007] IEHC 319 (18 September 2007)
Edwards J.

This is an application by the plaintiff for injunctive relief on an interlocutory basis.
Facts
The defendant is a limited liability company having its registered offices at Goresbridge in the County of Kilkenny. It carries on the business of manufacturing animal feeds and pet foods and trades under the name of Connolly’s Red mills. It is a substantial enterprise employing approximately 95 people directly and another 80 people as subcontractors. Last year it had an annual turnover of €78.9 million. In recent years the defendant has pursued a strategy of diversification and has been seeking to develop new products and in particular high value pet food products. During the summer of 2006, and in the context of that diversification, the defendant sought to recruit a person to fill a new position in the company of Brand and Marketing Manager. The plaintiff applied for that position and was successful. By a letter dated 15th August, 2006 she was formally offered the position of Brand and Marketing Manager to commence work shortly thereafter. There is some dispute between the parties as to the exact date on which the plaintiff actually commenced work but nothing turns on it in my opinion.
The terms of the plaintiff’s contract of employment with the defendant are contained in the letter of 15th August, 2006. The letter, which runs to some three A4 pages, sets out the proposed conditions of employment. At the end of the letter provision was made for the plaintiff to append her signature to the document and thereby to indicate her acceptance of the defendant’s offer of employment on the terms and conditions therein set out. The plaintiff has signed the document in question and dated it the 1st September, 2006.
It is not necessary for the purposes of this judgment to recite the entire contents of the contract document as only certain terms thereof are relevant to the issues that I have to decide. It seems to me that the relevant conditions (which are numbered) are those set out at 2, 10, 11 and 17 respectively. It is necessary for the purposes of this judgment to recite those terms.
“2. Probation
Your appointment will be subject to satisfactory completion of a probationary period of six months continuous service commencing from the date of employment. The company reserves the right to extend this probationary period and may terminate your contract at any time during the probationary period if in its opinion you are unsuitable for the position offered.”
“10. Annual Holidays and Public Holidays
You will be entitled to 20 days annual holidays. Accrued annual holidays must be taken during the company annual holiday year, which runs from November to October. However, in certain exceptional circumstances, the carryover of annual holidays from one year to the next may be allowed, provided they are taken within six months of the next leave year. You will be entitled to take two weeks consecutive holidays during the summer period. All holidays must be agreed in advance using the holiday authorisation procedure.
You will be entitled to such days off as are designated as public holidays.”
“11. Knowledge of Rules/Regulations
You are required to familiarise yourself with and strictly abide by the following procedures:
a. Grievance and Disciplinary Procedures (appendix 2)
b. Health and Safety and Welfare Procedures
c. Company Policies.”
“17. Termination of Employment
During probation your employment may be terminated by one weeks notice from either party (except in the case of serious misconduct, as detailed in Appendix 2 attached). Following completion of your probation your employment may be terminated by one months notice from either party. The company reserves the right to pay you in lieu of this notice period or such longer period as required by law. On termination of employment you undertake to return all company property.”
It is also appropriate that I recite in full for the purposes of the judgment the contents of Appendix 2 to the letter of 15th August, 2006.

“Appendix 2
DISCIPLINARY PROCEDURES
In the interest of maintaining good working relationships and consistency, the company has established a procedure for disciplinary action because of failure to meet standards with regard to conduct, or performance.
The following procedure shall be observed in matters of discipline.
STAGE ONE – VERBAL WARNING
The management will warn an employee verbally of the specific aspect of the work or conduct which is below standard, stating clearly that this is the first warning and will advise the improvements which must be made. The incident will be noted by the management. If the conduct is satisfactory the warning lapses after six months.
STAGE TWO – WRITTEN WARNING
Where the employee does not improve to the required standard within the time allowed by the company, the management will issue a second warning (written) to the employee, and will record and file the main points of the discussion. If the required improvement is achieved the warning lapses after twelve months.
STAGE THREE – FINAL WRITTEN WARNING BEFORE DISMISSAL
If the employee standard of work or behaviour does not improve despite use of Stages One and Two s/he will be given a final written warning.
STAGE FOUR
If despite warnings given/action taken in accordance with Stages One, Two and Three an employee’s conduct and performance is still not acceptable to the company, s/he will be dismissed.
SERIOUS MISCONDUCT
Notwithstanding the above disciplinary procedures certain conduct or actions may be such as to justify immediate suspension or termination of employment.
Management may send home an employee, with pay, for serious misconduct. In such cases the employee will be sent off the work premises until his case can be dealt with but any such action will be without prejudice to the ultimate decision of the company. Such cases will be considered by management within 48 hours and a final decision will be issue within five days.”

When the plaintiff took up her position with the defendant company she relocated from County Clare to County Kilkenny with her eleven year old daughter. The defendant company gave her a sum of €12,000 towards her relocation expenses. She put her house in County Clare on the market but to date has been unsuccessful in selling it. After moving to Kilkenny she stayed in a hotel initially and after a short time rented a fishing lodge from William Connolly, a Director of the defendant company, at a rent of €1,500 a month. In March, 2007 she purchased a house in Thomastown for approximately €500,000 to establish a home base in Kilkenny close to her employment. Because she has been unable to sell her house in County Clare, she is currently paying two mortgages totalling a sum of €2,500 per month. Her daughter is currently in boarding school. The plaintiff has deposed that her decision in that regard was influenced in part by a desire on her part to be able to better concentrate on her job.
There is a very considerable level of dispute between the plaintiff and the defendant concerning how the plaintiff got on after she started work. There are significant conflicts in the evidence and it is impossible for me to resolve those conflicts on the basis of the affidavits. In any case it is not necessary for me to resolve them for the purposes of determining the application presently before the court. However, it is common case that the plaintiff attended a performance review on 30th April, 2007. The review was not concluded on that date. It was adjourned and was only concluded at a resumed meeting on 28th May, 2007. I have already alluded to the fact that there is some dispute between the parties as to when the plaintiff formally started work and that I do not consider this to be of great importance. Nevertheless, taking the latest date suggested, which is the date suggested by the defendant, namely, the 23rd October, 2006, it is clear that the initial six month probationary period provided by the contract terminated on 23rd April, 2007. The review meeting was not convened until 30th April, 2007 and, as I have said ,only concluded on 28th May, 2007. It is clear from the evidence that the defendant expressed unhappiness about aspects of the plaintiff’s work performance in the course of that review. It was agreed between the parties on 28th May, 2007 that the plaintiff would remain on probation until 27th August, 2007. No point seems to have been made by the plaintiff that her probationary period had in fact expired on 23rd April, 2007 at the latest. On the contrary, it is common case that the plaintiff was agreeable to remaining on probation until 27th August, 2007. A record of what was discussed, and agreed to, was subsequently set out in an email from Alan Murphy, Financial Controller at Connolly’s Red mills to Joe Connolly and William (otherwise Bill) Connolly, Directors of the defendant company, sent on 31st May, 2007. This email has been exhibited before me.
Following the conclusion of the plaintiff’s first performance review on 28th May, 2007 the plaintiff remained in probationary employment with the defendant and continued to act on a day to day basis as the Brand and Marketing Manager for the defendant company. Again, there is significant conflict between the plaintiff and the defendant as to how the plaintiff was getting on in her job during this extended probationary period. Once again it is not necessary for me to resolve these conflicts at this stage. However, it appears that the 27th August came and went without any decision being taken by the defendant company with respect to the plaintiff’s probation. Now the defendant company points to special circumstances in relation to that and it is important to set these out. In his affidavit of 8th September, 2007, Mr. Joe Connolly, a Director of the defendant company, asserts that the plaintiff, without any prior notice to the defendant, sent an e-mail to her superiors at 12.09 on Saturday 11th August, 2007 stating that she would be out of the office until the 29th of August. This e-mail further gave the additional particulars that she would be attending the RDS on the 11th and 12th of August in connection with company business, that she would be visiting the defendant’s U.K. office from the 12th to the 14th of August, and that she would be on holidays from the 15th to the 29th of August inclusive, save for Saturday 25th August when she would visit the Pointers and Setters Championship Stakes on behalf of the defendant. It is the defendant’s contention that at the time at which she sent this email the plaintiff must have been aware that by virtue of taking holidays at that time she would prevent the company from conducting a review of her performance until after the expiry of the extended probation period. She was not due to return from holidays until two days beyond the 27th of August, namely on 29th August, 2007. The defendant makes much of the fact that the plaintiff did not seek advance agreement to the taking of holidays at that time, as she was required to do in accordance with Condition 10 of the terms and conditions of her employment. It is the defendant’s case that in circumstances where she gave the company no advance notice, and where she would have been aware that her proposed holidays straddled the originally fixed date on which her extended probationary period was to expire, she must be deemed to have acquiesced in a further extension of the probationary period until a date on which her performance review could be conveniently convened after her return. As it happened a review meeting was convened on 3rd September, 2007 and adjourned to 4th September, 2007. The defendant contends that at this time the plaintiff was still on probation. The plaintiff contends that her probation had lapsed on the 27th of August.
In any event at the meeting that commenced on 3rd September, 2007, and which was adjourned to and concluded on 4th September, 2007, the plaintiff was told that the defendant considered that she had not completed her probation period satisfactorily and that they proposed to terminate her employment. Again, there are conflicts and disputes between the parties as to precisely what occurred at this time. I cannot, and in any event do not have to, resolve these conflicts at this time.
The plaintiff’s case
The plaintiff contends that her probationary period expired by effluxion of time on 27th August, 2007. Since no action was taken by the defendant company to terminate her employment before the expiry of the extended probationary period, and since that period had not been extended by agreement between the parties, her employment thereafter was unconditional. The plaintiff says that upon her ceasing to be a probationer, if the defendant company had a problem with her performance, it was obliged to invoke the disciplinary procedure set out in appendix 2 to the letter of 15th August, 2006. She contends that before she could be validly and lawfully dismissed for poor performance in her job she would have to be afforded the benefit of the four stage process set out in the agreed disciplinary procedures recited in appendix 2. She says that in purporting to dismiss her summarily and without affording her the benefit of the agreed disciplinary procedures the defendant company is in breach of contract. Indeed, the plaintiff appears to be contending that the purported dismissal was ineffective in that paragraph 1. of the General Endorsement of Claim on her Plenary Summons claims a Declaration that the plaintiff is and remains an employee of the defendant. It would appear therefore that the plaintiff is making the case that she has not been wrongfully dismissed but rather that she has never been validly dismissed at all.
The specific reliefs that she seeks in her notice of motion are in the following terms:-
1. An interlocutory injunction restraining the defendant from treating the plaintiff otherwise than continuing to be employed by the defendants;
2. An interlocutory injunction restraining the defendant from publicising or announcing or otherwise giving effect to the purported dismissal of the plaintiff from the position of marketing manager of the defendant and
3. An interlocutory injunction restraining the defendant from appointing any other person to the position of marketing manager of the defendant
4. Such further and other orders as this honourable may deem just and
5. An order providing for the costs of and incidental to this application.
Counsel for the plaintiff has helpfully referred the Court to various authorities including American Cyanamid Co –v- Ethicon Ltd [1975] 2 WLR 316; Campus Oil Ltd -v- Minister for Industry and Energy and Others (No 2) [1983] 1 IR 88; Hill –v- CA Parsons & Co Ltd [1972] 1 Ch 305; Phelan –v- BIC (Ireland) Ltd, Biro BIC Ltd and others [1997] ELR 208; Shortt –v- Data Packaging Ltd [1994] ELR 251; Carroll –v- Bus Atha Cliath [2005] 4 IR 184; Maha Lingum –v- Health Service Executive [2006] ELR 137 & Naujoks –v- National Institute of Bioprocessing Research and Training Ltd [2007] 18 ELR 25.

The defendant’s case
The defendant has also referred to Court to various authorities, including the Maha Lingum, Shortt and Carroll cases cited by the plaintiff. In addition the defendant referred the Court to Evans –v- IRFB Services (Ireland) Ltd [2005] 2 ILRM 358; and Foley –v- Aer Lingus Group Plc , an unreported High Court judgment of the late Ms Justice Mella Carroll delivered on the 1st of June, 2001. Further, Counsel for the defendant, Mr Rory Brady S.C., has furnished the Court with detailed written submissions, which the Court was grateful to receive. The defendant’s arguments as therein set out may be summarised as follows. The defendant is adamant that the plaintiff stands dismissed, and that she was dismissed during the currency of on-going probation. It contends that as she was still a probationer it was entitled to terminate her employment on the grounds of unacceptable job performance without recourse to the disciplinary procedure. The defendant contends that it did not intend or ever propose to take any disciplinary action against the plaintiff. The defendant made the decision that the plaintiff had not completed her probation period satisfactorily and decided to terminate the contract while providing the plaintiff with her full notice entitlement. In those circumstances the defendant was entitled to dismiss under the contract.
The defendant says that the relief being sought by the plaintiff is, in substance, a mandatory interlocutory injunction. The defendant makes the point that the courts have been slow to grant interlocutory injunctions to enforce contracts of employment and that this reluctance of the courts to grant orders in wrongful dismissal cases derives from the inability of a court to supervise what would amount to a specific performance of a contract of employment. The defendant contends that the plaintiff always understood that there would be a review of her probationary period before her probation would cease. Accordingly, even though the 27th August, 2007 had passed before the review meeting took place the plaintiff’s probation continued. The defendant further contends that damages would be an adequate remedy in this case as the plaintiff, if she succeeds, would be entitled to recover 19 months salary at most. Moreover, it was submitted that the plaintiff has significant property assets and is by no means indigent. This is not the type of case to which the principles in Fennelly –v- Assicurazioni Generali S.P.A. and another (unreported, ex tempore, Costello P, 13th August, 1997) apply, so says the defendant. As to the balance of convenience the defendant says it has lost confidence in the plaintiff and that as the relationship between the parties was marked with problems the Court would have to exercise extreme caution before directing the resumption of the plaintiff’s employment with the defendant.

The Law
The Supreme Court in Campus Oil v The Minister for Industry (No. 2) [1983] 1 I.R. 88 identified the principles to be applied by a court in the granting or withholding of interlocutory injunctive relief. Firstly, the court must be satisfied that the strength of the plaintiff’s case meets a certain minimum threshold. In the case of a prohibitory injunction the plaintiff is required to satisfy the Court that there is a fair issue to be tried. However, if the applicant is seeking a mandatory interlocutory injunction the threshold is higher. In the case of Maha Lingam v. The Health Service Executive [2006] E.L.R. 137 Fennelly J. stated:-
“It is well established that the ordinary test of a fair case to be tried is not sufficient to meet the first leg of the test for the grant of interlocutory injunction where the injunction sought is in effect mandatory. In such a case it is necessary for the applicant to show at least that he has a strong case that he is likely to succeed in the hearing of the action.”
Secondly, the court must consider whether damages would be an adequate remedy for the party seeking the injunction, if he was successful at the trial of the action; and, thirdly, whether the balance of convenience favours the grant or refusal of an injunction at the interlocutory stage.
With regard to the question of the threshold, I have to agree with the defendant that in this case the plaintiff is, in substance, seeking a mandatory interlocutory injunction. Close scrutiny of the plaintiff’s case is instructive. She does not contend that she has been wrongfully dismissed. Her position is that she has not in fact been dismissed. That much is clear from the General Endorsement of Claim to her Plenary Summons and also from the way in which she has framed her claim for interlocutory relief. Ostensibly her position would appear to be that while the defendant’s action in purportedly dismissing her was wrongful, and amounted to a repudiatory breach of contract, it did not of itself automatically terminate the employment relationship. She has elected not to regard the employer’s breach of contract as terminating the contract. It is clear to me from a review of the authorities that, in principle, she is entitled to adopt that position. In that regard see Industrial Yarns Limited v. Green [1984] I.L.R.M. 15, wherein Costello J. stated:-
“At common law that repudiation would not automatically bring the contract of employment to an end. The employee is free to accept that the repudiation has terminated the contract or not to do so. (See Gunton v. Richmond upon Thames LBC [1980] 3 W.L.R. 714 for a recent view on the effect of an employers repudiation of the contract of employment).”
I am not required at this stage of the proceedings to determine whether or not the plaintiff’s employment has in fact been lawfully, or for that matter effectively, determined. These will be matters for determination at the trial of the action. What I am concerned with, however, is whether she is entitled to interlocutory relief pending the trial, and, if so, whether that should be mandatory or prohibitory relief, or both. As I have indicated it is clear to me that the plaintiff is seeking to have her contract of employment positively enforced pending the trial of the action. Although the injunctions she has claimed are couched in prohibitory language, the practical effect of the injunction claimed at paragraph 1. of her Notice of Motion, if granted, will be to require the defendant to treat the contract as continuing to subsist until the issue as to the validity or otherwise of the purported determination is decided at the trial. Undoubtedly the plaintiff has raised a fair issue to be tried. I am completely satisfied about that. However, I am not convinced that the plaintiff has discharged the onus upon her of showing that she has a strong case that she is likely to succeed in her action. She clearly has a stateable case but she must go a good deal further than that to meet the required threshold. The evidence in certain key respects is conflicting. Even if it were possible for this court to resolve the issue as to whether or not the plaintiff was still on probation at the time that she was purportedly dismissed on the basis of the affidavits alone, and I do not believe that it is, that issue would not be dispositive of the matter. There is a serious issue concerning the correct interpretation of the contract that requires resolution. The plaintiff contends that the defendant contracted to give her the benefit of the disciplinary procedure in the event of any perceived lack of acceptable performance on her part (after her probation period had expired) and, that being so, her purported dismissal without resort to the disciplinary procedure was not just unlawful but ineffective. As to whether the plaintiff’s interpretation of the contract is correct, the matter is arguable both ways. It is clear to me that both sides are in a position to proffer cogent legal arguments in support of their respective positions on that issue. It is not for me to resolve that issue at this time. There is definitely a fair issue to be tried but it could not be said that the plaintiff’s case is so strong with respect to it as to induce the belief that she is more likely than not to succeed at the trial of the action. She might or might not succeed. The jurisprudence in this area is not yet settled and is continuing to evolve.
Additionally, her contention that her purported dismissal was not just unlawful but was also ineffective raises serious legal issues in terms of the primary relief that she claims in her General Endorsement of Claim. At para.1. of the General Endorsement of Claim she seeks a declaration that she is and remains an employee of the defendant. However, there is case-law that suggests that such a declaration should never be made. In Vine v. NDLB [1957] A.C. 488, Viscount Kilmuir L.C. (at 500) made it clear that a declaration that a dismissal was null and void will not be granted in the case of an ordinary contract of employment. Further, Barry J. in Barbour v. Manchester Regional Hospitals Board [1958] 1 W.L.R. 181 at pp. 194 to 195 made it clear that a declaration would not be granted to the effect that the plaintiff’s employment had never been validly determined. If, however, the plaintiff had sought a declaration that his employment had never been lawfully or rightly determined, such a declaration, if necessary, might have been made. There is little doubt that a declaration will lie to declare a breach of contract. Moreover, a declaration will lie to declare that a dismissal was wrongful. However, the plaintiff in this case does not seek such relief. Rather, she seeks a positive declaration that the plaintiff is and remains an employee of the defendant. On the basis of the authorities that I have mentioned it must surely be open to question, though it remains to be determined at the trial of the action, whether the plaintiff would be successful in obtaining the primary relief that she seeks.
On the other hand, there is a line of authorities in this country tending to suggest that where a purported dismissal was in breach of fair procedures and natural and constitutional justice the dismissal may be not just unlawful but ineffective. The plaintiff relies, inter alia, on the decision of Clark J in Carroll –v- Bus Atha Cliath [2005] 4 IR 184. There are a number of passages in the judgment in that case that I have found particularly helpful. In the course of his judgment Clark J quoted the following passage, inter alia, from the judgment of Barrington J in Parsons v. Iarnod Eireann [1997] 2 I.R. 523:
“The traditional relief at common law for unfair dismissal was a claim for damages. The plaintiff may also have been entitled to declaration in certain circumstances, for instance, that there was an implied term in his contract entitling him to fair procedures before he was dismissed. But such declarations were in aid of his common law remedy and had no independent existence apart from it. If the plaintiff loses his right to sue for damages at common law the heart is gone out of his claim and there is no freestanding relief which he can claim at law or in equity.”
In Carroll v. Bus Átha Cliath, Clarke J. viewed this statement as:-
“….a recent reiteration of the general principle of law to the effect that a court will not grant orders which have, in substance, the effect of ordering specific performance of a contract of employment.
He then went on:
“In Cassidy v. Shannon Castle Banquets, [2000] E.L.R. 248, Budd J
granted a declaration that a purported dismissal was in breach of natural and constitutional justice and that, as a consequence, the dismissal was without efficacy and invalid. However, it was made clear that the above declarations did not coerce a re-instatement. In that respect Parsons v. Iarnrod Eireann was distinguished. It is also clear from a consideration of the judgment of Budd J. in Cassidy v. Shannon Castle Banquets that a factor taken into account in that case was the entitlement of the plaintiff to clear his name. In that respect it is of some importance to note that there have been significant developments in the typical terms of employment of many employees in recent years. Such changes have a material effect upon the circumstances in which, as a matter of contract, many employees can be dismissed.
The traditional position at common law was that a contract of employment could be terminated on reasonable notice without giving any reason. In those circumstances it was obvious that the only remedy for a breach of contract by way of dismissal was for the payment of the amount that could have been earned had appropriate notice been given. However, it is now frequently the case that employees cannot be dismissed, as a matter of contract, save for good reason such as incapacity, stated misbehaviour redundancy or the like. It would appear that the development of the law in relation to affording employees as certain compliances with the rules of natural justice in respect of possible dismissal derives, at least in material part, from this development. If the stated reason for seeking to dismiss an employee is an allegation of misconduct, then the courts have, consistently, held that there is an obligation to afford that employee fair procedures in respect of any determination leading to such a dismissal. That does not alter the fact that the employer, may still, if he is contractual free to so do, dismiss an employee for no reason. It simply means that where an employer is obliged to rely upon stated misconduct for a dismissal, or where not so obliged chooses to rely upon stated misconduct, the employer concerned is obliged to conduct the process leading to a determination as to whether there was such misconduct in accordance with many of the principles of natural justice.
In those circumstances it seems to me that it is open to the court to grant declarations concerning most alleged breaches by an employer of his contractual obligations. Parsons v. Iarnrod Eireann imposes a limit in cases where the declaration could not avail the plaintiff in any practical way.
Where, as here, the consequences of a declaration as to a breach in respect of the plaintiff’s entitlement to date simply gives rise to a claim in damages, then no difficulty therefore arises.”
Later Clark J went on to say:
“However, a more difficult question arises as to whether I should … make orders which would require the defendant physically to provide the plaintiff with work. I have been referred to some limited number of authorities which suggest that in certain limited circumstances, the courts have, notwithstanding the general policy to the contrary, granted injunctive relief which has the effect of requiring that an employee be actually permitted to work. Many of those judgments appear to have arisen at an interlocutory stage. O’Donnell v. Chief State Solicitors, [2003] E.L.R. 268, Martin v. Nationwide Building Society, [2001] 1 I.R. 228 and Brian v. Finglas Child and Adolescent Centre, (unreported, High Court, Kelly J. 10th May, 2004). The extent to which there may be, notwithstanding the general policy of the courts to the contrary, a jurisdiction to make a mandatory order which would have the effect of entitling an employee to return actively to work after appropriate findings and a plenary hearing is, therefore, open to significant doubt. Even if such a jurisdiction exists, it seems to me that it could, by inference, only arise in circumstances where it was clear that no other difficulties could reasonably be expected to arise by virtue of the making of an order.”
This judgment raises a number of issues that bear upon the question as to whether or not the plaintiff in the instant case has demonstrated strong grounds. Firstly, even if the plaintiff were to succeed in satisfying a Court that her purported dismissal was in breach of contract, and/or in breach of natural and constitutional justice and that, as a consequence, the dismissal was without efficacy and invalid, it seems unlikely that a Court would coerce her re-instatement. The plaintiff is effectively claiming this. Quite apart from the declaratory relief claimed in the General Endorsement of Claim, injunctive relief is sought which, though prohibitory in language, is mandatory in substance. As pointed out by Clark J it is questionable as to whether a jurisdiction to make such orders exists. Even if it does, issues of trust and confidence would come into play. In the all circumstances one could not be confident that the plaintiff would succeed. At best she has raised fair issues to be tried.
Accordingly, in so far as the plaintiff claims what is, in substance, mandatory interlocutory injunctive relief in paragraph 1 of her Notice of Motion, that claim falls at the first hurdle. However, she also claims additional injunctions on the more usual prohibitory basis. In relation to paragraphs 2 and 3 of her Notice of Motion, I am satisfied that the plaintiff has raised a fair issue to be tried at the trial of the action and that I can now go on to consider the question of the adequacy of damages in relation to those. Having considered all of the evidence in this case I am satisfied that damages would not be an adequate remedy in the event of the plaintiff being successful at the trial of action. With respect to the injunction claimed at paragraph 2 if, pending the resolution of the issues in this case, the fact of the plaintiff having been purportedly dismissed by the defendant were to be published widely, such publication would undoubtedly damage the plaintiff’s standing and reputation both within the company and without. With respect to the injunction sought at paragraph 3, I am satisfied that the plaintiff has altered her position to her detriment in ways that cannot be fully compensated in damages. While the costs of moving and accommodation and so forth can all be addressed under the heading of damages, the circumstances of this case also impinge upon her family and domestic life and the arrangements that she has made with regard to her daughter’s education. I am satisfied that the plaintiff’s claim for prohibitory injunctive relief meets the requirement that damages should not be an adequate remedy.
Turning then to the balance of convenience, the plaintiff claims that she requires injunctive relief to maintain the status quo pending the trial of the action. Certainly injunctions 2 and 3 as claimed in her Notice of Motion will assist in that regard. However, it is been strongly urged upon me on behalf of the defendant that the balance of convenience does not favour the granting of interlocutory injunctive relief even on the limited basis under consideration by me now. The defendant’s argument in that regard is that a relationship of trust and confidence is an essential feature of the contract of employment. It is urged upon me that there has been a total loss of trust and confidence and various aspects of the evidence have been drawn to my attention in support of that contention. However, in circumstances where I am declining to grant an injunction in the terms claimed at paragraph 1 of the plaintiff’s Notice of Motion, it seems to me that the defendants trust and confidence argument loses much of its force. If I grant to the plaintiff the injunctions claimed at paragraphs 2 and 3 of her Notice of Motion it will have the effect of restraining the defendants from publishing the fact of her purported dismissal and it will require them to forebear from filling her post until the hearing of the action. In other words her job will be kept open until the issues in this case have been fully litigated. However, defendant will not be coerced to permit her to work pending the trial of the action or to pay her. It seems to me that in those circumstances issues of trust and confidence simply don’t arise. Now it might well be said that the defendant could be prejudiced in the conduct of its business by being unable to fill the plaintiff’s post. However, it is quite clear from the evidence that the defendant’s management structure is hierarchical. The plaintiff’s contract requires her to report to the Sales Director and Managing Director of the company. Equally, there are quite a number of personnel subordinate to her in the structure. I imagine that the functions of her post could be apportioned in the short term between her superiors and her subordinates. Therefore I am not satisfied that a consideration of this kind would tip the balance of convenience against the granting of injunctive relief.
In all the circumstances I am disposed to grant to the plaintiff prohibitory interlocutory injunctions in the terms of paragraphs 2 and 3 of her Notice of Motion. However, I must refuse her application for an interlocutory injunction in the terms of paragraph 1 thereof. I will reserve the question of costs to the hearing of the action.

Donal O’Donovan v Over-C Technology Limited and Over-C Limited

[2020 No. 708P] (WLIE 1)

High Court

3 July 2020

[2020] IEHC 327
Mr. Justice David Keane

Introduction
1. On 12 June 2020, I gave judgment granting Mr O’Donovan an employment injunction against the defendants (whom I will refer to collectively as ‘the Over-C companies’). This ruling should be read in conjunction with that judgment, which can be found under the neutral citation [2020] IEHC 291. In accordance with the joint statement made by the Chief Justice and the Presidents of each court jurisdiction on 24 March 2020 on the delivery of judgments during the Covid-19 pandemic, I invited the parties to seek agreement on any outstanding issues, including the costs of the application, failing which they were to file concise written submissions, which would then be ruled upon remotely unless a further oral hearing was required in the interests of justice.

2. Regrettably, there has been little direct engagement, and no agreement, between the parties. Consequently, they have each filed written submissions addressing a range of issues, including: the appropriate terms of the proposed interlocutory order; the appropriate directions to facilitate an early trial; the appropriate order on costs; and whether it is appropriate to grant a stay on the proposed interlocutory order pending appeal. Neither side has suggested that an oral hearing is required on any of those issues. Hence, this is my ruling on each of them.

The terms of the proposed order
i. a liquidated sum?

3. Mr O’Donovan submits that the interlocutory order I propose, which he refers to as a final order, should be modified to reflect what he describes as the precise sum due and owing to him under the judgment. That submission misunderstands the nature of the proposed order, the specific terms of which are set out at paragraph 67 of the judgment. It provides that the Over-C companies are to continue to pay Mr O’Donovan the salary – as well as any bonus or other benefit – due to him under his contract of employment for as long as they wish to assign any of the duties of CFO to him and, in any event, for no less than the period of six months from the end of January 2020 (i.e. the period of six months to the end of July 2020), on the provision by Mr O’Donovan of an undertaking to the court to carry out any such duties. It follows that, if and when Mr O’Donovan provides the necessary undertaking (preferably on affidavit, given the present circumstances), he will have an immediate entitlement to whatever arrears of salary and other benefits have accrued to him by that date, as well as a prospective entitlement to whatever salary and other benefits fall due to him from then on, either for as long as he is required to perform any of the duties of CFO or until the end of July, whichever is later. That is not an order directing the payment of a liquidated sum, nor is it necessary to attempt to convert it into one, in whole or in part.

ii. the date from which the six-month payment period is to run

4. The Over-C companies submit that the six-month period covered by the proposed order should not run from the end of January 2020 but rather from 7 January, because that is the date upon which they purported to terminate Mr O’Donovan’s employment, later paying him one month’s salary from that date in lieu of notice.

5. Perhaps because of the reference in the judgment to the decision of the Supreme Court in Fennelly v Assicurazioni Generali S.P.A. (1985) 3 ILT 73, limiting the duration of the salary payments in that case to six months, the Over-C companies appear to argue either that six months should be considered as a general or inflexible limit on the duration of such payments or that the order proposed in the judgment was intended to apply a strict six-month limit to the duration of the payments that Mr O’Donovan was to receive in this case, mistakenly failing to take account of the payment that the Over-C companies made to Mr O’Donovan on 30 January to cover the period of one month from 7 January.

6. I do not accept that, in fixing the duration of the salary payments to be made by the employer in Fennelly, the Supreme Court was setting a general limit, or creating a specific and inflexible rule, on the appropriate duration of such payments in respect of all such orders. Hence, the order I propose is not intended to provide Mr O’Donovan with precisely six month’s salary from the date of the purported termination of his employment. Rather, in identifying the least risk of injustice, I have judged it fair that Mr O’Donovan should continue to receive his salary (and any other benefits to which he is entitled under his contract of employment), during the further period of six months from the end of January 2020; that is, until the end of July 2020. In doing so, I have not overlooked the payment that the Over-C companies made to Mr O’Donovan on 30 January.

7. Any such salary payment is, of course, subject to the deduction of tax in the usual way by operation of law. Contrary to the submission made on behalf of Mr O’Donovan, I do not believe that it is necessary to include a recital to that effect in the proposed order.

8. In summary, since I am not persuaded by the arguments of either side for a different or modified form of order, I will grant an interlocutory injunction in the terms proposed at paragraph 67 of the judgment.

Directions to facilitate an early trial
9. Mr O’Donovan would like an early trial and submits that the court should give certain specific directions, and engage in general case management, to that end. However, he does not identify any grounds of urgency in support of that application.

10. As the judgment notes (at para. 68), Mr O’Donovan’s claim is in reality one for a fair termination process rather than for reinstatement in the role of CFO. That is so for the following reasons. First, in suing the Over-C companies for defamation and misrepresentation as well as wrongful dismissal, Mr O’Donovan effectively acknowledges that the employment relationship of mutual trust and confidence between them has irreparably broken down. Remember, the Over-C companies contend that Mr O’Donovan’s employment as CFO was terminated for sub-standard performance during his probationary period and now also allege that, while in that position, he wrongly disclosed sensitive commercial information to a third party in breach of confidence. All of that is very different from the position in Fennelly, where Costello J noted that the parties retained the highest regard for one another and the reason relied on for the termination of the applicant’s employment was a massive down-turn in the respondent employer’s business. Second, it is common case that Mr O’Donovan’s employment may be lawfully terminated by either party on one month’s notice in the first year and on three months’ notice thereafter. And third, Mr O’Donovan is thus effectively free to pursue other employment opportunities, while plainly under a legal duty to mitigate his loss. Although the Covid-19 pandemic may have adversely affected the job market, I do not see how that unfortunate circumstance can be laid at the door of the Over-C companies. It is against that background that, as part of the Fennelly type order that I propose to make, the Over-C companies will be released from their undertaking not to appoint a new CFO to replace Mr O’Donovan.

11. Hence, I fail to see any remaining circumstance of special urgency surrounding Mr O’Donovan’s wrongful dismissal claim. Nor can I identify any special urgency attending his claims of defamation and misrepresentation that would require those claims to be effectively granted priority over others of the same kind by the provision of an expedited trial.

12. That is not to say that these proceedings should not proceed to trial with all reasonable dispatch – only that they should do so in accordance with the applicable rules of court rather than specific directions made as part of a case management process not generally available to other litigants pursuing comparable claims.

13. Thus, I do not propose to give directions or engage in case management.

The costs of the application
i. applicable rules and principles

14. Order 99, rule 2(3) of the Rules of the Superior Courts (‘RSC’), as inserted by the Rules of the Superior Courts (Costs) 2019 (S.I. No. 584 of 2019), reproduces the former O. 99, r. 1(4A), which had been introduced by the Rules of the Superior Courts (Costs) 2008 (S.I No. 12 of 2008). That rule states in material part:

‘The High Court … upon determining any interlocutory application, shall make an award of costs save where it is not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application.’

15. Order 99, rule 3(1) of the RSC provides in material part:

‘The High Court, in considering the awarding of the costs of any action or step in any proceedings … in respect of a claim or counterclaim, shall have regard to the matters set out in section 169(1) of the [Legal Services Regulation Act 2015], where applicable.’

16. Section 169(1) of the Act of 2015 states:

‘A party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings, unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties, including—
(a) conduct before and during the proceedings,
(b) whether it was reasonable for a party to raise, pursue or contest one or more issues in the proceedings,
(c) the manner in which the parties conducted all or any part of their cases,
(d) whether a successful party exaggerated his or her claim,
(e) whether a party made a payment into court and the date of that payment,
(f) whether a party made an offer to settle the matter the subject of the proceedings, and if so, the date, terms and circumstances of that offer, and
(g) where the parties were invited by the court to settle the claim (whether by mediation or otherwise) and the court considers that one or more than one of the parties was or were unreasonable in refusing to engage in the settlement discussions or in mediation.’
17. Thus, the rule is that the costs of an interlocutory application (including an interlocutory injunction application) must be awarded to the party who is successful against the party who is not successful, unless having regard to the nature and circumstances of the case and the conduct of the parties it is just to order otherwise, and an award of costs must be made unless it is not possible to do so justly at the interlocutory stage.

18. As Murray J explained in Heffernan v Hibernia College Unlimited Company [2020] IECA 121 (Unreported, Court of Appeal, 29 April 2020) (at para. 29), in respect of the former O. 99, r. 1(4A):

‘That provision reflected both the preference articulated in the case law pre-dating [its introduction] that those bringing and defending interlocutory applications should face a costs risk in the event that the Court determines that the stance they adopted was wrong (Allied Irish Banks v Diamond (Unreported, High Court, 7 November 2011) at p. 6 of the transcript of the ex tempore judgment of Clarke J.), and the fact that there will be cases in which it is not possible to determine where the proper burden of the costs of an interlocutory application should lie without the benefit of discovery, a complete marshalling by the parties of relevant evidence and in some cases an oral hearing (Dubcap Ltd v Microchip Ltd (Ex tempore Unreported, Supreme Court, 9 December 1997 at p.4)).’

19. In the earlier Supreme Court decision in ACC Bank plc v Hanrahan [2014] 1 IR 1, Clarke J had elaborated on the basis for the introduction of O. 99, r. 1(4A) in the following terms (at 5-6):

‘[8] The reason for the introduction of that rule seems to me to be clear. While, historically, there had been a tendency to reserve the costs of most motions to the trial judge, a view has been taken that this can lead to injustice for, at least in very many cases, a judge who has heard a motion is in a better position than the trial judge to consider the justice of where the costs of that motion should lie. This will especially be so in cases where the trial court will not have to revisit the merits or otherwise of the precise issue that was raised by motion. For example, if there is a dispute over discovery then that dispute will have been resolved before the case comes to trial. Of course, discovered documents may well be relied on at the trial and, indeed, in some cases may turn out to be decisive. But, at least in the vast majority of cases, the fact that the documents, with the benefit of hindsight, have turned out to be either very useful or of very little use, will not add very much, if anything, to an assessment of whether the positions adopted by the parties on a discovery motion were reasonable or appropriate. A judge hearing a discovery motion will, therefore, in almost all cases, be in a better position than the trial judge to decide where the costs of such a motion should lie. Like considerations apply to many other cases such as motions for further and better particulars.

[9] It is, of course, the case that such motions are very much ‘events’ in themselves. There are issues as to the appropriate scope of discovery or particulars. They are decided once and for all on the motion. The merits of the results of those motions are not, in the vast majority of cases, in any way revisited at the trial.

[10] Slightly different considerations seem to me to apply in cases where, at least to a material extent, some of the issues which are before the court at an interlocutory stage arise or are likely to arise again at the trial in at least some form. As I noted in Allied Irish Banks v. Diamond [2011] IEHC 505, [2012] 3 I.R. 549 and as approved by Laffoy J. in Tekenable Limited v. Morrissey & ors [2012] IEHC 391, (Unreported, High Court, Laffoy J., 1st October, 2012) somewhat different considerations may apply in cases where the interlocutory application will, to use language which I used in Allied Irish Banks v. Diamond [2011] IEHC 505 and which Laffoy J. cited in Tekenable Limited v. Morrissey & ors [2012] IEHC 391 ‘turn on aspects of the merits of the case which are based on the facts’. It is true that both of those cases concerned the costs of an interlocutory injunction. One of the issues which, of course, arises on an application for an interlocutory injunction is as to whether the plaintiff has established a fair issue to be tried and, indeed, whether the defendant has established an arguable defence. In many cases the argument for both plaintiff and defence on those questions is dependent on facts which will not be determined at the interlocutory stage save for the purposes of analysing whether the facts for which there is evidence give rise to an arguable case or an arguable defence.

[11] However, the point made in Allied Irish Banks v. Diamond [2011] IEHC 505, [2012] 3 I.R. 549 is that those facts may well be the subject of detailed analysis at trial resulting in a definitive ruling as to where the true facts lie. In substance a plaintiff may well secure an interlocutory injunction by putting forward evidence of facts which, if true, would give him an arguable case and by succeeding on the balance of convenience test thereafter. However, if the facts on which the plaintiff’s claim is predicated are rejected at trial, then the justice of the case may well lead to the conclusion that the interlocutory injunction was wrongly sought. It may be that, on the basis of the evidence before the court at the interlocutory state, the injunction was properly granted. However, with the benefit of hindsight, and after the trial, it may transpire that the case for the granting of an interlocutory injunction was only sustained on the basis of an assertion that the facts were other than the true facts as finally determined by the court at trial. It follows that in such cases there may well be good grounds for not dealing with the costs at the interlocutory stage, for the trial court may be in a better position to assess the justice of the costs of an interlocutory hearing when it has been able to decide where the true facts lie. It is not necessarily just that a plaintiff who secures an interlocutory injunction on the basis of putting up false facts should get the costs of that interlocutory injunction even if it was fairly clear that an injunction would be granted on the basis of the facts as asserted.’

20. In Glaxo Group Ltd v Rowex Ltd [2015] 1 IR 185 (at 210), Barrett J neatly summarised the relevant distinction in the following terms (at 210):

‘A distinction falls to be drawn between (a) cases where the decision on an interlocutory injunction application turns on issues in respect of which a different picture may emerge at trial and (b) cases where the application turns on matters such as adequacy of damages or balance of convenience which will not be addressed again at the trial. In the former category of cases, a risk of injustice may arise in determining costs at the stage of the interlocutory injunction application; in the latter the same risk may not arise ( Haughey v. Synnott [2012] IEHC 403, (Unreported, High Court, Laffoy J., 8th October, 2012); Allied Irish Banks v. Diamond [2011] IEHC 505, [2012] 3 I.R. 549; ACC Bank plc v. Hanrahan [2014] IESC 40, [2014] 1 I.R. 1).’

ii. the event that costs should follow

21. Mr O’Donovan seeks an order for his costs of the interlocutory injunction application against the Over-C companies on the basis that he was successful in obtaining an employment injunction. The Over-C companies seek an order for their costs of the application against Mr O’Donovan on the basis that: (a) Mr O’Donovan made a different case at the hearing of the application than that flagged in his motion papers; and (b) Mr O’Donovan failed on several issues.

22. The interlocutory injunction application was dealt with in a single day. The sole issue was, in substance, whether Mr O’Donovan was entitled to an employment injunction against the Over-C companies. On that issue, Mr O’Donovan has succeeded and the Over-C companies, who argued trenchantly that he was not, have failed.

23. The Over-C companies invoke Veolia Water plc v Fingal County Council (No. 2) [2007] 2 IR 81 in support of their position. In that case, in considering the proper identification of the ‘event’ that costs should follow, Clarke J drew a broad distinction between two different approaches.

24. The first approach is where, in the ordinary way, the successful party was required to bring or defend an application concerning a disputed entitlement, which dispute could only have been resolved in that way. That party will be regarded as having succeeded, even if not successful on every point raised. The prosecution or defence of the application will have been justified by the result; the result will be the event; and the party concerned will be entitled to the costs of the application.

25. The second approach is where the successful party has not succeeded on all the issues that were argued before the court. In that case the court should consider whether it is reasonable to assume that the costs of the parties in pursuing the set of issues before the court were increased by the successful party having raised additional issues on which that party was not successful. Where the court is satisfied that the costs were increased in that way, it should attempt to reflect that fact in its order for costs whether by disallowing, setting off, or awarding the costs attributable to witnesses called to address any such issue or issues; disallowing, setting off, or awarding any discrete item of expenditure incurred in doing so; disallowing, setting off, or awarding the costs of the portion of the hearing directed to any such issue or issues; or by combining some or all of those measures.

26. Clarke J concluded (at 87) that the second approach is appropriate in more complex litigation involving a variety of issues even where, in the overall sense, one party may be said to have succeeded and the other party may be said to have failed, while acknowledging that, in more straightforward litigation, the first approach is appropriate, even where some elements of a successful party’s claim or defence have not succeeded, unless those elements have affected the overall costs of the litigation to a material extent.

27. I judge without hesitation that the first approach is the appropriate one in this case.

28. The Over-C companies rely on Mr O’Donovan’s failure: (a) to make out a strong case that he had been dismissed on grounds of misconduct; and (b) to obtain an injunction directing either a fresh performance assessment of the provision of an appeal against the original assessment. Further, they point out that the employment injunction granted did not direct that Mr O’Donovan be permitted to resume the duties of CFO. Finally, they suggest that the absence of any reference in his letter before action to ‘the issue of an appeal’ implies that the Over-C companies were deprived of any prior opportunity to address that aspect of the dispute between the parties, and that, in consequence, Mr O’Donovan cannot establish that it was necessary or fair to bring the present application.

29. I am not persuaded by those arguments. The hearing of the application took just one day. I do not accept that it could properly be characterised as ‘complex litigation involving a variety of issues’ in the way that Veolia and the other cases referred to in that judgment were. I do not accept that Mr O’Donovan’s failure to establish a strong case that he had been dismissed for misconduct added to the costs of the application in any material way, bearing in mind that he was successful in establishing a strong case that he had been dismissed for poor performance.

30. Similarly, I do not accept that the invitation to the court made by counsel for Mr O’Donovan at the hearing of the application to consider an injunction directing the Over-C companies to provide Mr O’Donovan with a fresh performance assessment or an appeal against the original performance assessment, as an alternative to an injunction directing his reinstatement as CFO, constituted a separate issue that materially added to the costs of the application. Further, the Fennelly type injunction that Mr O’Donovan has obtained does direct his reinstatement as CFO (which was, in effect, the principal relief that he sought), save that it does not require the Over-C companies to assign any duties to him in that role, nor does it preclude them from appointing another CFO, should they wish to do so. An order in such terms was, perhaps, inevitable in circumstances where it is common case that the relationship of mutual trust and confidence between the parties has broken down and where it has never been in dispute that the current absence of a CFO is causing ongoing prejudice to the Over-C companies. But it certainly cannot be suggested that Mr O’Donovan contested either of those propositions, much less that he did so in a way that added materially to the costs of the application.

31. Mr O’Donovan’s letter before action of 24 January included a demand for his reinstatement as CFO and threatened proceedings for wrongful dismissal and an application for injunctive relief if that demand was not met. The Over-C companies’ email response on 29 January stated that, entirely in accordance with the terms of his contract, Mr O’Donovan’s probation had not been extended, leading to the lawful termination of his employment, and that the proposed proceedings would be ‘vehemently’ defended. Against that background, I am entirely unpersuaded by the suggestion that, before the issue of these proceedings and the application for injunctive relief, the Over-C companies were deprived of a fair opportunity to address Mr O’Donovan’s asserted contractual entitlement to an appeal against the adverse performance assessment that led to his dismissal, not least because the Over-C companies did not offer or concede any such entitlement either in their response to Mr O’Donovan’s letter before action or at the hearing of the injunction application.

32. Nor do I accept the Over-C companies’ separate argument that Mr O’Donovan made a different case at the hearing of his interlocutory injunction application than he had in his proceedings and notice of motion, such that he should not be entitled to his costs. Among the reliefs claimed in the general indorsement of claim in the plenary summons that issued on behalf of Mr O’Donovan on 29 January are permanent injunctions restraining the Over-C companies from, among other things, terminating his contract of employment; repudiating that contract; or interfering with his discharge of the role and functions of CFO. In the notice of motion that issued on his behalf of 31 January, interlocutory injunctions are sought in the same terms. In the affidavit that he swore on 30 January to ground the application for those injunctions, Mr O’Donovan avers over several paragraphs to the alleged breach of his asserted right of appeal, culminating in the averment (at para. 29) that an appeal was offered and withdrawn in direct breach of both his contract of employment and his entitlement to natural and constitutional justice.

33. Hence, I conclude that the event in this case was Mr O’Donovan’s successful application for an employment injunction. Further, I can find nothing in the nature and circumstances of the case, or in the conduct of the proceedings by the parties, that would warrant a departure from the principle that the costs follow the event.

ii. the possibility of a just adjudication on the issue of costs.

34. The decision on this interlocutory injunction application turned very significantly on whether Mr O’Donovan had established a strong case that his dismissal was carried out in breach of the terms of his contract of employment. The nature and scope of the relevant terms of that contract and the question whether any such term was breached in the circumstances of Mr O’Donovan’s dismissal must inevitably be central issues at trial, when a different picture may – or may not – emerge. That is a factor that strongly militates against the possibility of a just adjudication on the issue of the costs of the application at this – the interlocutory – stage.

35. The parties also joined issue on the separate question of the balance of convenience, or least risk of injustice, in granting or withholding an employment injunction. That question was resolved in favour of the grant an interlocutory injunction and the issue will not be revisited at trial.

36. For that reason, I conclude that I should make a similar order to the carefully calibrated one made by McDonald J in the recent case of Paddy Burke (Builders) Limited (In liquidation and receivership) v Tullyvaraga Management Company Ltd [2020] IEHC 199, (Unreported, High Court, 30 April 2020). That was a successful appeal against an interlocutory injunction that had been granted in the Circuit Court. The appeal succeeded on the basis that the respondent to it had failed to establish both that there was a serious question to be tried and that the balance of convenience favoured the grant of an interlocutory injunction. McDonald J concluded that, because a different picture might emerge on the first issue at trial, it would not be just to fix the unsuccessful respondent to the appeal with the costs of the interlocutory injunction application, but also that, because the balance of convenience issue could not be revisited at trial, only the costs of the successful appellant should be made costs in the cause.

35. As Mr O’Donovan succeeded before me in establishing both that he has a strong case to make at trial and that the balance of convenience favours the grant of an injunction, I will grant an order similar to that made in Burke, making only Mr O’Donovan’s costs of the interlocutory injunction application, and not those of the Over-C companies, costs in the cause.

A stay on the interlocutory order pending appeal
36. The Over-C companies seek a stay on the interlocutory order I propose, pending an appeal to the Court of Criminal Appeal, should they decide to lodge one.

37. Of course, under Article 34.4.1° of the Constitution of Ireland, the Court of Appeal has a general appellate jurisdiction from all decisions of the High Court, subject only to such exceptions as are prescribed under that Article or otherwise by law. An appeal against the making or refusal of an interlocutory order falls within the category of appeals known as ‘expedited appeals’ under O. 86A, r. 7(1) of the RSC. Nonetheless, O. 86A, r. 5(1) provides that an appeal to the Court of Appeal does not operate as a stay of execution or of proceedings under the decision appealed from, except so far as the High Court orders or, should such order be refused, so far as the Court of Appeal directs.

38. In Redmond v Ireland [1992] 2 IR 362 at 366, the Supreme Court (McCarthy J; Finlay CJ and Egan J concurring) expressed the view, in addressing the factors to be taken into account by an appellate court in considering an application for a stay pending appeal, that the overall consideration is to maintain a balance so that justice will not be denied to either party. In Irish Press plc v Ingersoll Irish Publications [1995] 1 ILRM 117 at 121, Finlay CJ posited, in effect, a two-stage test of (1) whether there is an arguable ground of appeal and, if so, (2) whether the balance of convenience favours a stay. In Okunade v Minister for Justice [2012] 3 IR 152 at 193 and, later, in C.C. v Minister for Justice and Equality [2016] 2 IR 680 at 695, Clarke J noted the common conceptual basis, and hence close similarity, between the principles governing the grant or refusal of an interlocutory injunction pending trial and those governing a stay pending appeal.

39. In seeking a stay on the proposed interlocutory injunction here, the Over-C companies have not identified the ground or grounds on which they would propose to appeal, submitting merely that the order ‘should be subject to a stay in the event of an appeal to the Court of Appeal’. Hence, I cannot be satisfied that there is an arguable ground of appeal.

40. As McCarthy J pointed out in Redmond (at 366), in considering the balance of convenience on an application for a stay of execution pending appeal, it is necessary to consider, on the one hand, whether monies paid out on foot of an order may be irrecoverable and, on the other hand, whether the bringing of an appeal might, of itself, be damaging to the party who has the benefit of the order.

41. In this instance, the Over-C companies submit that the salary and other benefits they have been directed to pay for period of six months may prove irrecoverable in view of Mr O’Donovan’s financial circumstances, which, they contend, have already been ‘well-canvassed’ in these proceedings. I infer that this is a reference to Mr O’Donovan’s averment that, without remuneration pending trial, he will be unable to discharge his debts as they fall due, including his monthly mortgage payments, insurance premiums and the expenses associated with rearing a young family. Of course, Mr O’Donovan argues that his present – hopefully temporary – financial embarrassment is the direct result of the unlawful conduct of the Over-C companies. Whether those companies would be unable to recover the equivalent of six months’ salary from Mr O’Donovan (and, indeed, their costs of the proceedings) in the event of their successful defence of the action is difficult to say on the limited evidence available; just as it is difficult to say whether Mr O’Donovan would be able to recover damages and costs from the Over-C companies in the event that he is successful at trial. As matters stand, the uncontroverted, albeit untested, evidence before me is that Mr O’Donovan cannot discharge his household and living expenses without the benefit of the interlocutory order I propose. That tilts the balance of convenience decisively against placing a stay on that order pending appeal.

42. The application for a stay on the interlocutory order pending appeal is refused.

Order accordingly.

Patrick McFadden v Muckno Hotels Ltd

[2020] IECA 110 (22 April 2020)

Donnelly J.

Faherty J.

Haughton J.
Mr. Justice Robert Haughton

Introduction

1. This is an appeal from the order of Costello J. made on 3 May 2018 (perfected on 8 May 2018) whereby Costello J. determined costs in respect of an interlocutory injunction application, and ordered as follows: –

“IT IS ORDERED that the Plaintiff do recover from the Defendant the costs of the said application for short service, the costs of the interlocutory injunctions Motion up to the 22nd June, 2017 and the cost of the application this day when taxed and ascertained.”

Background

2. The background to the proceedings is that the Appellant employed the Respondent as manager of Glencarn Hotel. By letter dated 2 August 2016 the Appellant through its solicitor Mr. Mallon made allegations against the Respondent, of drinking on the premises which required an explanation/investigation; and by a further letter dated 16 November 2016 the Appellant through its said solicitor, made allegations concerning the payment of musical performers in the hotel and of double booking, which also required an explanation. The Respondent’s managerial responsibilities were withdrawn.

3. On 21 November 2016 the appointment by the Appellant of Mr. Michael O’Sullivan, a HR Consultant to investigate was notified to the Respondent. However the investigation was not commenced because the Respondent was on sick leave. The Respondent was certified unfit to work from early October 2016 and remained out until he was considered certified fit on 11 February 2017.

4. Following the Respondent’s return to good health, on 23 February 2017 the Appellant’s solicitor wrote to the Respondent notifying that he was suspended on full pay “pending the completion of this investigation and the preparation of a report”. On 22 March 2017 he was notified the independent person now appointed to investigate was Mr. Oliver Costello B.L. In late March/early April, the investigator interviewed various individuals in the course of the investigation, and on 21 April 2017 met with the Respondent in company with his solicitor. Objection was taken by the Respondent/his solicitor in engaging with any matters arising outside of the allegations made against the Respondent in the letters of 2 August 2016 and 16 November 2016.

5. The investigator’s report was completed on 3 May 2017 and found that the Respondent had engaged in behaviour that contravened the Appellant’s Disciplinary Code, and that his actions amounted to gross misconduct, and it included a recommendation that the Appellant’s Board take such disciplinary decisions as might appear appropriate. A copy of this report was received by the Respondent on 8 May 2017. Objection was taken that a number of findings fell outside the remit of the investigation.

6. The Respondent’s salary was due to be paid into his bank account on 3 May 2017, but was not received.

7. By letter of 11 May 2017 the Appellant’s solicitors wrote to the Respondent’s solicitors indicating that the investigator’s report had been considered, that the Appellant accepted its findings of fact, and that the Appellant proposed to take disciplinary action, which might include summary dismissal, and seven days was given for a response and reasons as to why the Respondent should not be dismissed.

8. The Respondent’s solicitors Patrick J. Farrell replied on 18 May 2017 in a lengthy letter that will be referred to later in this judgment. In the second paragraph it was indicated that the Respondent’s salary had ceased being paid since 3 May and in the third paragraph they sought “immediate payment of the salary due to Mr. McFadden”, and stated that unless this was confirmed by close of business on Friday 19 May “we will be advising our client of his entitlement to seek urgent injunctive relief, without further notice to your client.” In the remainder of the letter they express their client’s concerns in relation to the manner in which the investigation was carried out and the contents of the investigator’s report, and ended by indicating that the Respondent “is amenable to considering reasonable proposals vis á viz participating in a fair and lawful investigation”.

9. In a further important letter of 19 May 2017 Mallon Solicitors responded. Firstly they indicated that “the employer will agree to pay Mr. McFadden’s salary pending the determination of the disciplinary process.” They then addressed the Respondent’s solicitor’s contentions in relation to the disciplinary investigation, and in summary they stood over the investigator’s report. They ended stating “we are again affording Mr. McFadden a period of seven days to set out his reasons in writing as to why he should not be dismissed” indicating that if there was no response within that time frame “the employer will proceed to take such disciplinary action as it deems appropriate in the circumstances”. This was the last correspondence before the proceedings commenced.

The proceedings

10. The Plenary Summons was issued on 23 May 2017 seeking interlocutory injunctions restraining the Appellant from further conducting the disciplinary investigation, from relying on the investigator’s report, requiring the Appellant to continue to pay the Respondent’s salary, compelling the Appellant to reinstate the Respondent as general manager, and restraining the Appellant from terminating the employment “other than in accordance with his legal and contractual entitlements and his right to fair procedures”. The Respondent also sought declarations in similar terms, damages for breach of contract and exemplary damages for damage to his reputation.

11. A Notice of Motion was then issued on 23 May 2017, with leave of the High Court (Gilligan J.) for short service returnable to 26 May 2017, seeking the following interlocutory reliefs: –

(2) An interlocutory injunction restraining the Defendant, its servants or agents, from relying on the purported findings of the disciplinary investigation into the Plaintiff’s alleged conduct and/or the report dated the 3rd May, 2017 regarding the Plaintiff’s alleged misconduct.

(3) If necessary an interlocutory injunction requiring the Defendant to pay the Plaintiff his salary pending further Order of this Honourable Court.

(4) If necessary an interlocutory injunction compelling the Defendant to end the Plaintiff’s suspension and administrative leave and to reinstate him in his position as general manager pending further Order of this Honourable Court.

(5) If necessary an interlocutory injunction restraining the Defendant from terminating the Plaintiff’s employment other than in accordance with his legal and contractual entitlements and his right to fair procedures.

(6) Further and other relief.

(7) Costs.”

12. The Motion was grounded on an affidavit of the Respondent sworn on 23 May 2017. This and the Notice of Motion were served electronically on that date. A supplemental affidavit of the Respondent also sworn on 23 May 2017, purely for the purposes of exhibiting the investigator’s report of 3 May 2017, was served electronically on 24 May 2017.

13. On 25 May 2017 the Appellant’s solicitors wrote to the Respondent’s solicitors seeking an adjournment to consider the matter, and in that letter undertook to pay the Respondent’s salary and to postpone the disciplinary process pending the adjourned date.

14. On 26 May 2017 the Appellant offered interlocutory undertakings firstly to continue to pay his salary, secondly not to conduct the disciplinary investigation and/or procedure against the Respondent other than in accordance with his legal and contractual entitlements and his right to fair procedures, and thirdly not to rely on the “purported findings of the disciplinary investigation into the Plaintiff’s alleged misconduct and/or the report dated 3 May 2017 regarding the Plaintiff’s alleged misconduct.”

15. It is accepted that on the basis of that offer senior counsel for the Respondent adjourned the matter on consent to the 29 May 2017. As counsel for the Respondent apparently had difficulties attending court on that day the matter was further adjourned to the 22 June 2017. It also appears to be accepted that what was to happen on 29 May 2017, and subsequently did happen on 22 June 2017, was the giving of these undertakings in court by counsel for the Appellant in the form already offered.

16. In the meantime, a replying affidavit was sworn by Mr. John Deane, a director of the Appellant on 31 May 2017. In this affidavit Mr. Deane in essence refutes the concerns about the investigation expressed in the Respondent’s affidavit and his solicitor’s correspondence. He avers that the salary payment due on 3 May 2017 was not paid due to an oversight, and that as soon as the Appellant was made aware of the failure by the Respondent’s solicitor’s letter of 18 May 2017: –

“14. ….immediate arrangements were made to pay the said salary and it had been paid on the date of the swearing of the Plaintiff’s said affidavit being 23rd May 2017 but before the said affidavit was received by the Defendant. In this regard I beg to refer to the said letter dated 18th may 2017 exhibited at “PMcF 10” in the Plaintiff’s said Affidavit sworn on 23rd May 2017. I undertake, and have been authorised by the Defendant to so undertake, that the Plaintiff’s salary will be paid whilst he remains on administrative leave.”

The following two paragraphs are also relevant to this appeal –

“15. I say and am so advised by legal advisers that the matters which the Plaintiff has laid before the Honourable Court are capable of resolution in the disciplinary procedure which the Plaintiff seeks to prohibit or restrain but notwithstanding I say that the Plaintiff has elected to take a claim in the Honourable Court. I further say that at no time did the Plaintiff request the Defendant do what he now seeks to have done through orders of the Honourable Court. Neither did the Plaintiff warn the Defendant that unless certain actions were taken that he would be seeking the assistance of the Honourable Court.

16. I undertake, and I am so authorised by the Defendant to undertake, that pending the trial of the within action the Defendant will not dismiss the Plaintiff on grounds of misconduct and/or gross misconduct including the findings in the said investigation of the said Mr Oliver Costello.”

In paragraph 20, Mr. Deane prayed the court not to grant the Respondent the reliefs sought or any relief, and to grant the Appellant the costs of the Motion.

17. The undertakings were formally recorded in the consent Order of Gilligan J. made on 22 June 2017, and followed the terms of paragraphs 1, 2. 3 and 5 of the Notice of Motion. By that Order the Motion also stood adjourned to 12 October 2017 and by consent the question of costs was reserved.

18. On 29 June 2017 the Appellant terminated the Respondent’s contract of employment with notice in accordance with the terms of his contract, and did not seek to rely on the alleged wrongdoing concerned in the subject of findings in the investigation. Following this, the Respondent commenced unfair dismissal proceedings which were pending before the Workplace Relations Commission when the order appealed from was made, and this court was informed that those proceedings are still pending before the WRC at the present time.

The costs hearing

19. The question of costs ultimately did not come to be determined until it was heard before Costello J. on 3 May 2018, when after hearing argument at 2pm, she gave an ex tempore judgment granting the Respondent the costs of the application for short service (for the Notice of Motion), of the interlocutory application up to 22 June 2017 and the cost of the application for costs.

20. The Transcript of the judgment records the trial judge’s reasoning.

“So, the question is, in order to determine whether the plaintiff is entitles to his costs against the defendant: firstly, did the application require to be brought in the first place? And I’m satisfied that it did. On the 18th of May 2017, the plaintiff’s solicitors clearly set out the two matters in dispute, the non-payment of his salary while on administrative leave, and the issues that they had with the conduct of the disciplinary investigation. While the letter did not specify any particular undertakings that were required from the defendant. it was clear that further reliance upon the disciplinary investigation would result in an application being made to Court. So, the first requirement has been satisfied, because on the 19th of May 2017, the defendant’s solicitors replied, and they made clear that they were continuing to rely upon the investigation and the report generated as a result of the investigation, and therefore if the plaintiff was to preserve his position, he was required to institute proceedings and to seek the relief from the Court. Then the defendant was given an adequate opportunity to deal with matters other than by way of court proceedings, because it would have been open to the defendant to agree not to rely upon the investigation and the report of Mr. Costello, and instead to proceed, as it did subsequently on the 29th of June 2017 to terminate the plaintiff’s employment in accordance with the terms of his contract of employment. So, the second requirement, in my opinion is met: that the defendant was given an adequate opportunity to avoid the necessity of bringing the proceedings.”

“The undertakings on the 22nd of June, given by the defendant to the Court, amounted to a success to the plaintiff on foot of this motion. It was not necessary that there be a hearing, and in this regard, it is important to rely upon the decision of the Court of Appeal, Mr. Justice Peart in Irish Bacon Slicers v Weidemark Fleischwaren GmbH & Co. On page eight of the judgment Mr. Justice Peart said: –

‘The defendant has placed considerable reliance on the fact that there was no event, since there has been no court determination of the application in question. The reality, in my view, is that it was only the defendant which prevented this application being determined by the Court and he did so by offering to the Court the very undertaking which he’d been called upon by the plaintiff’s solicitors to provide some five weeks previously.’

While the undertakings were not expressly sought in the letter of the 18th of May, the fact that the core issue was whether or not reliance should be placed upon the report emanating from the investigation was clearly established and, in my opinion, relying on Irish Bacon, it is clear that the undertakings amounted to a success and it cannot be said that there was no event within the meaning of the rule – the jurisprudence on costs.

The defendant had the opportunity to deal consensually with the matter and it only dealt with it consensually from the 22nd of June 2017, and there’s no particular reason why it could not have been dealt with consensually earlier. So, on that basis, the plaintiff is entitled to the costs of the application for short service and for the interlocutory application up to the 22nd of May, and the plaintiff is also entitled to the costs of this application.

MS BOLGER: Sorry, judge, I think that’s the 22nd of June, not the 22nd of May.

JUDGE: Sorry, 22nd of June, yes, thank you.”

The permanent undertakings

21. Before considering this judgment, it is necessary to refer to two “permanent undertakings” recorded in the perfected Order of Costello J. of 3 May 2018 as follows: –

“And it appearing that an agreement has been reached between the parties on undertakings to the Court

and the Defendant through its Counsel providing the following permanent undertakings to the Court

1. In terms of paragraph 1 of the Notice of Motion namely not to conduct the disciplinary investigation and/or procedure of and against the Plaintiff, as notified to the Plaintiff by the Defendant in their letters of 2nd August and 15th November 2016, other than in accordance with his legal and contractual entitlements and his right to fair procedures.

2. In terms of paragraph 2 of the Notice of Motion namely not to rely on the purported findings of the disciplinary investigation into the Plaintiff’s alleged conduct and/or the report dated the 3rd of May 2017 regarding the Plaintiff’s alleged misconduct

By consent IT IS ORDERED that the Action do stand struck out”.

22. There is an issue with these permanent undertakings, which Counsel for the Appellant asserts were not in fact agreed or consented to. The Transcript of the proceeding does show that they were only mentioned at the end of the hearing, and after the trial judge had granted a 21 day stay on the Order in relation to costs, starting at line 27: –

“MS. BOLGER: Judge, the entire proceedings are effectively –

JUDGE: I know that.

MS. BOLGER: And in those circumstances if the undertakings that were given in terms of paragraphs 1 and 2 of the Notice of Motion, they survived the proceedings, the others no longer apply –

JUDGE: Yes.

MS. BOLGER: … because of this determination. So the proceedings can be struck out on the basis of the costs award that your lordship has made today, but noting the undertakings

and those undertaking –

JUDGE: In paragraphs 1 and 2 to continue.

MS. BOLGER: In paragraphs 1 and 2.

JUDGE: On that basis, I will strike out the proceedings. The undertakings given on the 22nd of June 2017, that numbers 1 and 2 of the Notice of Motion continue. I’ll put a stay on the costs order. It is a 21 day appeal to the Court of Appeal at this point in time? It is 28 day? 28 days. Okay. Well, okay. We’ll do it until the Court of Appeal directions hearing, if an appeal is brought.

MS. BOLGER: Judge. I’m just conscious there’s a journalist present in court and I am not sure if I made it clear earlier that my client denies all of the allegations as referred to by Ms. Donovan in her submissions. I just want to make that clear on behalf of my client that those allegations of wrongdoing were at all times denied.

MS. DONOVAN: I am very obliged, Judge.

JUDGE: Thank you.”

23. From this it does seem that the question of permanent undertakings was raised at the end of the hearing, which counsel for the Appellant informed the court took place on a Monday in a busy court and was only intended to be a costs hearing. The Transcript does not record any express agreement on behalf of the Appellant to the giving of these two permanent undertakings. It would be unusual for permanent undertakings to be given in a costs hearing at the end of an interlocutory matter which had concluded, and it could only happen by agreement. It is far from clear that counsel was aware that this application would be made, or had instructions to give such undertakings, or agreed to the permanent undertakings.

24. The question of whether the permanent undertakings were in fact given, and whether the Order of Costello J. of 3 May 2018 is a correct record in that regard, is not properly before this court. I also note that if such permanent undertakings were given they could have continuing significance in respect of the unfair dismissal claim pending before the WRC.

25. Of particular note is that the trial judge cannot have had regard to the recorded permanent undertakings when reaching her decision on costs as they were only raised after that decision was made.

26. For the reasons just given I do not consider that it would be just for this court to take into account the record of such permanent undertakings in coming to its decision on this appeal in relation to the costs award in the High Court.

The parties’ submissions

27. In written and oral submissions counsel for the Appellant argued that it was not necessary for the Respondent to seek injunctive relief because an undertaking in relation to the Respondent’s salary was given on 19 May 2017 and because further undertakings in relation to halting the disciplinary process and non-reliance on the investigation report were not sought in advance of the issue of the Notice of Motion, but were proffered on 25 May 2017 soon after it issued – all of which undertakings became recorded in Court on 22 June 2017. Counsel sought to distinguish Irish Bacon Slicers on a number of grounds, but primarily because specific undertakings were sought by the plaintiff in advance, but were not offered or given until the matter came before the court. It was submitted that this court should follow the approach of Laffoy J. in O’Dea v Dublin City Council [2011] IEHC 100 where she considered that in interlocutory matters costs should follow where a result is brought about by a determination of the court on issues before the court, rather than any supervening event, such as an agreement of the parties in which the court has not been involved. Counsel submitted that the “event” was brought about by acceptance of an offer by the Appellant, rather than any determination of the court. It was submitted that, contrary to what senior counsel for the Respondent had informed the High Court on 12 October 2017, the substantive matter had not “fallen away” in that orders were sought by the Respondent regarding alleged breach of contractual right to fair procedures, alleged personal injury and alleged reputational damage which survived the termination of the Respondent’s contract of employment in June 2017. Counsel for the Appellant submitted that this court should substitute the High Court order on costs in favour of the Respondent with “no orders to costs”.

28. Counsel for the Respondent in written and oral submissions argued that the trial judge was correct in her assessment of the pre-trial correspondence, which amounted to a finding of fact which it would be manifestly unjust to require this court to re-examine – reliance was placed for this submission on the judgment of Denham CJ in Leopardstown v Templeville Developments [2017] 2 ILRM 393. Counsel relied on the decision in Irish Bacon Slicers, on the basis that the substance of the present proceedings had “fallen away” as a result of the undertakings given on 22 June 2017. It was submitted that the undertaking as to payment of salary was only given at the issuance of the motion, and the other undertakings were only given subsequently. Counsel sought to distinguish O’Dea on the basis that the application there for an injunction was partially heard before being adjourned and settled between the parties, whereas the present application was never heard in the High Court as undertakings were offered causing the substance of the matter to “fall away”. It was submitted that if there was no “event” then that came about not by mutual settlement of the parties after engaging the court but by pre-emptive proffering of undertakings by the Appellant which rendered a substantive hearing of the action unnecessary. Counsel relied on the judgment of Peart J. in Irish Bacon Slicers quoted by the trial judge. It was submitted that the Respondent had a strong case in the interlocutory application and that all orders sought were likely to be granted. It was submitted that it was necessary for the Respondent to bring the application seeking interlocutory orders, and that the Respondent was afforded sufficient time to engage with the matter to attempt to circumvent bringing the matter before the court.

Costs of interlocutory applications

29. Order 99 of the Rules of the Superior Courts 1986 to 2019 was most recently amended by substitution and is now set out in the Schedule 1 in S.I. 584/2019, which applies with effect from 3 December, 2019. O. 99, r 1 now contains definitions, and O.99 r. 2 now governs the ‘Right to Costs’ and provides:

“2. Subject to the provisions of statute (including sections 168 and 169 of the 2015 Act) and except as otherwise provided by these rules:

(1) The costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those Courts respectively” (this reflects the former O99 r.1(1)).

(2) No party shall be entitled to recover costs of or incidental to any proceeding from any other party to such proceeding except under an order or as provided by these Rules.

(3) The High Court, the Court of Appeal or the Supreme Court, upon determining any interlocutory application, shall make an award of costs save where it is not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application.

(4) An award of costs shall include any sum payable by the party in favour of whom such award is made by way of value added tax on such costs, where and only where such party establishes that such sum is not otherwise recoverable.

(5) An order may require the payment of an amount in respect of costs forthwith, notwithstanding that the proceedings have not been concluded.”

Rule 2(3) reflects the wording of the former O.99 r.1(4A) that came into operation on 21 February, 2008 and was considered by Laffoy J. in O’Dea [2011] IEHC 100 and Tekenable [2012] IEHC 391 and Peart J in Irish Bacon Slicers Limited [2014] IEHC 293, and accordingly that jurisprudence continues to be relevant. Order 99 r.1(4A) itself replaced a regime where there was no onus on the court to determine costs on interlocutory applications, and courts tended to reserve the costs of interlocutory injunction applications – even where the application was successful – the reason being that the issues had yet to be determined and new facts/discovery might lead to a different outcome at full hearing.

30. For the sake of completeness mention should be made of the Legal Services Regulation Act 2015, the statute now referred to in the new O.99. The substituted O.99 was promulgated following on the enactment of the 2015 Act and the introduction of a new system for the assessment of costs by Legal Costs Adjudicators. Section 168 now confers a statutory power on the courts in civil proceedings to award costs at any stage of the proceedings. Section 169(1) provides that an “entirely successful” party in proceedings is entitled to their costs “unless the court otherwise orders” and sets out the matters that the court must consider. This latter provision was not opened to the court; although it is not necessary to decide the point, it would seem to apply to the award of costs at the close of proceedings rather than costs of interlocutory hearings.

31. In O’Dea v Dublin City Council [2011] IEHC 100 Laffoy J. had to consider what, if any, order for costs should be made in circumstances where an application for an interlocutory injunction came on for hearing before the court on 16 December 2010, but, having been part-heard was adjourned to the following day and from thence to Tuesday, 21 December 2010 on which date the court was informed that the plaintiff was not proceeding with the application because he had achieved an outcome to what he was seeking from the defendant which he considered satisfactory. The court was also informed that because of the outcome, the plaintiff would not be proceeding with the substantive action.

32. Laffoy J. referred with approval to the decision of Herbert J. in Garibov v Minister for Justice, Equality and Law Reform and Ors. [2006] IEHC 371 – a case where the applicants sought leave to seek judicial review in respect of a deportation order, but before that application came on for hearing the deportation order was revoked, rendering judicial review of the deportation order moot. The applicants withdrew the application for leave but argued that they should be entitled to their costs. Herbert J. stated –

“What is before the court is an application to seek judicial review. Without dealing with the application fully on its merits it would be impossible and, indeed improper for the court to endeavour to predict the outcome of the application. It appears to me that the question which the court must ask in considering its application for costs is, whether in the circumstances it was reasonable for the applicants to have commenced their application for leave to seek judicial review.”

Herbert J. considered that it was reasonable for the applicants in the particular circumstances of the case to have sought leave, and he awarded them their costs.

Having referred to Garibov, Laffoy J. then states under “Conclusions” –

“6.1 In applying the principles as to liability for costs set out in the Rules in this case, the first question the Court must consider is whether there has been an ‘event’ and, if so, what it was. As I understand it, ‘event’, as envisaged in the Rules is a result which determines the dispute before the Court. Without expressing any definitive view on this point, in my view, what the Rules and the authorities envisage is a result brought about by a determination of the Court on the issues before the Court, rather than by some supervening event, such as an agreement of the parties in which the Court has not been involved. In this case there has been no determination by the Court on the issues which came before it on 16th December 2010. That being the case, the question which arises is what function the Court has in relation to liability for costs. The answer, in my view, is that it has none.

6.2 Before outlining the reasons for that conclusion, for completeness I would point out that, if the Court had a function in relation to costs where, as here, the ‘event’ is brought about by the moving party accepting an offer of the respondent, on the basis of the history of the dealings between the parties, in my view, it would be difficult to conclude that the prosecution of the application for an interlocutory injunction was necessary to produce the outcome which has been achieved for the plaintiff, but, more particularly, that it was necessary to vindicate the legal rights of the plaintiff.

6.4 In order at this juncture to ascertain what the probable outcome of the plaintiff’s application would have been, the Court would have to assess this case on the merits and, in doing so, reach a conclusion as to whether the plaintiff would have overcome the first hurdle. I am of the same view as Herbert J. in the Garibov case that it would be improper for the Court to attempt to predict what the outcome would have been. The reality is that the parties have rendered the issues which were raised on the application for the interlocutory injunction moot, and it is invidious to expect the Court to speculate at this juncture on what would have been the outcome, if the matter had proceeded.”

Laffoy J. went on to point out that even if the plaintiff had been granted an interlocutory injunction it would not have followed as a matter of course, that the plaintiff would have been awarded the costs of the application, if it was “not possible justly to adjudicate upon liability for costs.”

At para. 6.7 Laffoy J. stated –

“6.7 When, as in this case, on an application for an interlocutory injunction, there has been a supervening event which renders it unnecessary for the Court to determine the issues on the application, such as an offer made to the moving party by the respondent being accepted, which results not only in the moving party’s motion, but also the substantive action, being struck out, it is no function of the Court to determine where liability for costs incurred up to that point lies, when the Court has made no determination on the issues on the application for an interlocutory injunction or on the issues in the substantive action. If the parties had not reached agreement on where liability for costs lies, then, prima facie, the proper exercise of the Court’s discretion is as was indicated by Supreme Court in the Callagy case, namely, as happened there, that the plaintiff be ordered to pay the costs of the proceedings including the costs of the motion.”

33. In Tekenable Limited v Morrissey & Ors [2012] IEHC 391 Laffoy J. followed the principles she had enunciated in O’Dea. An application for interlocutory injunctions was brought by the plaintiff, a company developing/selling software, against two former employees to restrain breaches of clauses in their contracts imposing obligations on them to respect the complete confidentiality and security of the plaintiff’s affairs, including the names of its clients, in circumstances where it appeared that the defendants had solicited business from the plaintiff’s clients, including entering into a contract with the Irish Insurance Federation (IIF). Undertakings were sought but not given, and the proceedings were issued and an interlocutory application was pursued. Affidavits were exchanged, and the claims made were contested. It was resolved by undertakings given to the court by the defendants on foot of an agreement between the parties. This did not extend to the IIF contract which the plaintiffs informed the court would be subject of their damages claim. The plaintiff sought costs of the interlocutory application, and the defendants advocated for no order as to costs or alternatively that costs be reserved.

Laffoy J dealt with the matter of costs on the basis that the main proceedings would continue. She differentiated the case from O’Dea –

“22. …first, the substantive proceedings are continuing, and secondly, the interlocutory injunction was disposed of on terms that the defendants gave the undertaking to the Court in the terms scheduled to the order of the Court. The first difference is obviously material to the question whether the Court should adjudicate on the costs of the interlocutory injunction, because it gives the Court the option to reserve the question of adjudication of the costs of the interlocutory application to the trial Judge, which may be a tenable proposition if the trial Judge has to determine the substantive issue.”

She concluded: –

“25. This is a case in which I think it would be inappropriate to adjudicate on the issue of who should bear the burden of the costs of the interlocutory injunction, either by awarding the costs to the plaintiff or by making no order for costs, for a number of reasons. First, the court has not been required to adjudicate and has not adjudicated on whether an interlocutory injunction in the terms sought by the plaintiff would have been granted or refused, if the application had proceeded. In particular, in my view, the fact that the Court made a consent order accepting the undertaking in the terms given by the defendants does not amount to an adjudication on the plaintiff’s application such as would allow the Court to form a view as to whether there was an ‘event’ in consequence of which liability for costs could be attributed. Secondly, because of the supervening agreement between the plaintiff and the defendant scheduled to the Court order of 23rd March 2012, the issues which arose on the interlocutory application, the objective of which was to keep matters in statu quo pending the hearing of the substantive action, have become moot and it would serve no purpose and, in my view, it would be inappropriate for the Court to express a view at this juncture as to whether an injunction in the terms sought would have been granted or refused. Thirdly, even if the plaintiff’s application had proceeded, given that, like the circumstance which arose in Allied Irish Banks Plc. & Ors. v. Diamond & Ors the outcome of the application would have turned, to use the terminology of Clarke J, ‘on particular aspects of the merits of the case which are based on the facts’, irrespective of whether the Court would have decided to grant or refuse an injunction, it would probably have adopted the approach adumbrated by Clarke J in relation to costs at the end of his judgment.”

Accordingly costs were reserved to the trial judge.

34. The Respondent relies on Irish Bacon Slicers Limited v Weidemark Fleischwaren GmbH & Co. [2014] IEHC 293, in which Peart J referred to the judgments of Laffoy J. in O’Dea and Tekenable. Importantly Peart J does not appear to differ from the approach taken by Laffoy J in those cases in which he notes the results were not brought about by any determination of the interlocutory issue – rather in O’Dea there was a negotiated settlement, and in Tekenable there was no determination but there were undertakings until the trial of the action.

At p.7 he considered that in approaching costs of an interlocutory injunction –

“It will on occasion be that the Court will hesitate about awarding the costs of an interlocutory injunction to a plaintiff at that stage of the proceedings, even where that plaintiff has prevailed on that application, because it may work an injustice on the defendant in the event that the issues are ultimately determined in the defendant’s favour to the extent that the Court might then consider that the particular plaintiff had not been justified in seeking the interlocutory injunctions. The Court must proceed cautiously in this regard and give serious consideration to the question whether it is possible to justly make an award of costs without awaiting the determination of the many issues that may be in dispute in the substantive claim.

It is of course desirable on policy grounds that the parties should not needlessly pursue applications for injunctive interlocutory relief where it is possible to secure an agreed solution short of an injunction order, such as the giving of an undertaking. The fact that the Court is required to make an award of costs where it determines that injunction application, save where it might not be possible to justly do so, should serve to encourage a defendant to give an undertaking to do or not do that which is sought to be restrained by order, especially where it can be anticipated that a court will be satisfied that the relatively low threshold of establishing a fair issue to be tried can be surmounted by the plaintiff, and where either damages can reasonably be seen not to give the plaintiff an adequate remedy, and/or the balance of convenience favours maintaining the status quo and granting the injunction. It is right that there should be costs consequences immediately visited upon a defendant who waits until the injunction hearing itself to proffer an undertaking, thereby removing the need for the plaintiff to proceed to a hearing of his application. The fact that there is no ‘event’ in the sense of a court’s determination of whether or not an injunction should or should not be granted does not seem to me to be something of which such a defendant should be able to gain advantage by having the question of costs kicked off into the long grass, to be retrieved perhaps a year later, or more, when the substantive action is finally determined. That itself would be unjust to the plaintiff who in a real sense has prevailed on his application.”

At p.8 Peart J. then stated –

“The defendant has placed considerable reliance on the fact that there has been no ‘event’ since there has been no court determination of the application in question. The reality in my view is that it was only the defendant which prevented this application being determined by the court, and he did so by offering to the Court the very undertaking which he had been called upon by the plaintiff’s solicitor to provide some five weeks previously. That is when this undertaking should have been given in the circumstances of this case.”

Noting that, unlike sub-rules1(3) (relating to costs of jury trials), and sub-rule 1(4) (relating to costs of any issue of fact or law), where costs “shall follow the event”, sub-rule 1(4)A did not adopt such wording, he observed –

“But new rule 1(4)A contains no such derogation from the general rule of discretion contained in r.1(1). It simply provides that upon determining any interlocutory application “shall make an award of costs” save where it cannot justly adjudicate upon the costs liability. There is no reference to costs having to follow any event. In other words, the Court is required simply to exercise its discretion, and is not constrained by any rule that says that costs shall follow the event.”

His reason for awarding the plaintiff the costs appears in the following paragraph:

“In so far as this new rule speaks of “upon determining any interlocutory application” and any suggestion that in the present case the Court did not determine the application because the defendant proffered an undertaking, it must be pointed out that this is an undertaking proffered to the court and accepted by the court, and consequently is an undertaking the breach of which constitutes a contempt of court. The acceptance of that undertaking by the court determined the application. It brought it to an end – even if all the issues raised on the application were not individually the subject of a determination by the Court.”

Peart J. then addressed the facts before him where a request for an undertaking not to issue a Petition to wind up, in default of which an injunction would be sought, was sent on 19 June 2013 and not responded to, leading to a successful application for an interim injunction (20 June) followed by a delay until 23 July (during which affidavits were exchanged and further costs incurred) when the interlocutory hearing was listed, whereupon counsel for the defendant informed the court of the defendant’s willingness to give undertakings in the terms of the notice of motion. These did not emanate from any agreement or even negotiations. Peart J concluded:

“In such circumstances it is obvious in my view that the costs of the Notice of Motion should be awarded to the plaintiff. The motion should never have to have been brought in the first place.”

Discussion

35. In my view in his judgment in Irish Bacon Slicers Limited, Peart J. was applying the principles which were established by Laffoy J. in O’Dea and Tekenable, but on the facts before him he considered that the acceptance of the undertakings by the court amounted to a ‘determination’ of the motion. I agree with counsel for the Appellant that the facts in the present case can be distinguished from those in Irish Bacon Slicers Limited. Firstly that was a case with very different facts – the defendant had threatened to petition to wind up the plaintiff company without any justification or basis for so doing (as the debt was disputed), leaving the plaintiff with no option but to issue legal proceedings to protect its position. By comparison and without prejudging the outcome, the Appellant in the instant case had a basis for its action in proceeding to disciplinary investigation and procedure. Further in Irish Bacon Slicers Limited an interim injunction had been granted, whereas in the instant case undertakings were offered, and accepted, within days of the issue of the motion seeking interlocutory relief, following which were given to the court, and without any hearing having to be undertaken by the court. More particularly, in Irish Bacon Slicers Limited undertakings were sought five weeks before they were eventually given. In the instant case, the undertaking in relation to payment of salary was given on 19 May 2017 before the motion issued, and the other undertakings (which were not requested in correspondence but) reflecting paragraphs 1 and 2 of the Notice of Motion, were given some three days after service, and before the return date. Also no undertakings were given (or insisted upon) in respect of two reliefs sought in the Notice of Motion – at paragraph 4, where an order was sought compelling the Appellant to end the suspension and administrative leave, and at paragraph 5 which sought an injunction restraining termination of the contract of employment other than in accordance with the contract and right to fair procedures. By comparison, in Irish Bacon Slicers Limited, the undertakings covered all the reliefs sought and were only given after the exchange of affidavits and in court on the day when the matter came on for hearing, whereupon the defendant informed the court through its counsel that while it was prepared to give the undertakings; they were not offered in advance. Furthermore, in Irish Bacon Slicers Limited an undertaking not to present a Petition also stated to the court that it would bring separate High Court proceedings seeking to recover the amount claimed to be due. This meant that there would be no further hearing in the proceedings and there would be no court to which the costs of the interlocutory application could be reserved – the proceedings were effectively rendered moot making it incumbent on the court to decide the liability for costs unless “it [was] not possible justly to adjudicate” upon the issue. In the instant case the undertakings did not in my view render the entire proceedings moot, and indeed when the undertakings were given on 22 June 2017 the question of costs was reserved to a date in October.

36. In my view the circumstances in which the court had to decide the costs of the interlocutory application in Tekenable most closely resemble the present case, as undertakings had been given but the main proceedings were still proceeding and would require the court at trial to adjudicate on the substantive claim.

37. The question of costs in the present case fell to be considered by the trial judge, and now fall to be considered by this court, by consideration of the circumstances as they prevailed on 22 June 2017, when the undertakings were recorded but the proceedings were continuing. This was before the Appellant terminated the Respondent’s employment.

38. Viewed at that time there had been no determination by the High Court of the interlocutory application – for the reasons given earlier the instant case differs in that respect to Irish Bacon Slicers Limited, particularly because there the undertakings were proffered at the last moment to the court. Here there was agreement over undertakings, the extent of which fell short of what was sought in the Notice of Motion, as early as May 2017, and from 25 May 2017 it was or should have been apparent that the Respondent would not be required to move the application. As a result the court was not called upon to adjudicate on the opposing positions ultimately taken on affidavit, or to consider the application on its merits.

39. Also there had as of 22 June 2017 been no “event” rendering the proceedings moot or determining the dispute before the court, and the proceedings were continuing. As Peart J observed in Irish Bacon Slicers Limited, the wording in O99 r.1(4A) should encourage the giving of undertakings, and the courts favour the giving of undertakings where interlocutory injunctions are sought. I would endorse the observation made at paragraph 95 of the Appellant’s submission that “if the giving of undertakings is, as a general proposition, to be considered an event entitling a plaintiff to his costs, then such would have an undesirable chilling effect on the giving of undertakings.” Of course where the undertaking comes so late in the day that it is proffered to the court on the day the interlocutory application is due to be heard, as happened in Irish Bacon Slicers Limited, I entirely agree with Peart J that the court should be astute not to let a defendant “gain advantage by having the question of costs kicked off into the long grass.” In the present case it was not until the costs hearing on 3 May 2018 that it became apparent to the court that, as the Respondent was pursing the unfair dismissal claim and did not want to pursue the present proceedings further, the action could be struck out. This signalled abandonment by the Respondent of whatever residual claim he might have in the present proceedings, and was an “event”, although neither party appears to have sought the costs of the action up to that point in time.

40. The question that remains is that posed by Herbert J. in Garibov, namely whether it was reasonable for the Respondent to have brought the application for interlocutory relief, or as Laffoy J. put it in O’Dea “whether it was necessary to vindicate the legal rights of the plaintiff”. This requires in the first place consideration of the correspondence, and particularly the Respondent’s solicitors letter of 18 May 2017, and the Appellant’s solicitor’s reply of 19 May 2017.

41. The Respondent argues that this court should not revisit the trial judge’s findings in relation to the correspondence, and in particular her finding that the Appellant was given adequate opportunity to furnish undertakings, and that the failure to give these promptly, or earlier than they were given, meant that the consensual order of 22 June 2017 based on undertakings was a success for the Respondent.

42. This argument is based on the judgments of the Supreme Court in Hay v. O’Grady [1992] IR 210, and in the Leopardstown Club case where at paragraph 88 Denham CJ stated –

“In other words, an appellate court should not interfere with a primary finding of fact by a trial court which has heard oral evidence, unless it is so clearly against the weight of the evidence as to be unjust”. It is undoubtedly true that where oral evidence has been given in the court below the appellate court will not interfere with a primary finding of fact if supported by credible evidence, and will be slow to interfere with inferences of fact but could do so from circumstantial evidence. In this regard Denham C.J. in Leopardstown approved and applied the principles established in Hay v. O’Grady which she summarises at paragraph 82:

“[82] The principles identified by the Hay v. O’Grady [1992] I.R. 210 jurisprudence include the following:-

– An appellate court does not proceed by way of a full re-hearing of a case.

– An appellate court is bound by the findings of fact of a trial judge which are supported by credible evidence.

– In general, an appellate court proceeds on the findings of fact of a trial judge.

– The fact that there is contrary evidence does not alter the position.

– An appellate court should be slow to substitute its own inferences of fact where such depends upon oral evidence, and a different inference has been drawn by the trial judge.

– The fact that there is some evidence before a trial judge which may lead to a different conclusion does not alter the fundamental principle.

– A finding of the credibility, or not, of a witness is a primary finding of fact.”

43. In the instant case there was no oral evidence, and the costs hearing did not rely on any oral evidence – there was only evidence on affidavit before the trial judge, and precisely the same evidence is before this court. This indeed is accepted by counsel for the Respondent in their submissions but it is nevertheless submitted, albeit that oral evidence is rare in interlocutory applications; Leopardstown Club and Hay v. O’Grady should still apply. However a hearing at first instance based purely on documents is materially different to one based on oral evidence where the trial judge hears and sees witnesses and can take into account their demeanour, and where this may have a bearing on the context and meaning of the documents put in evidence. In the absence of anything on affidavit putting the context or meaning of documents or communications in issue – It is not logical to apply in their entirety principles relating to findings of fact, whether primary or inferential, established in Hay v. O’Grady and applied in Leopardstown Club to a purely documentary hearing.

44. It must be accepted however that even in a documentary only appeal, the appellate court is bound by the trial judge’s finding of facts where there is credible evidence to support them. This court should therefore review the relevant findings of the trial judge in relation to the correspondence to ascertain whether they were supported by the evidence. Therefore if there is credible evidence for the trial judge’s findings then this court should not come to a different conclusion. Further if on a fair reading the correspondence is capable of two or more constructions one of which could reasonably have been adopted by the trial judge then this court should be slow to interfere. But if a finding is not supported by the evidence then this court is entitled to intervene and substitute its own finding of fact.

45. The Respondent’s solicitor’s letter of 18 May 2017 in the second paragraph points up the cessation of payment of the salary since 3 May 2017 and in the third paragraph expressly calls on the Appellant “to arrange immediate payment of the salary due to Mr. McFadden” and intimates that unless confirmation is received by close of business on Friday 19 May “we will be advising our client of his entitlement to seek urgent injunctive relief, without notice to your client”. Two points should be noted about this. Firstly, the Respondent’s solicitors were very alive to the need to seek an undertaking before seeking urgent injunctive relief. Secondly, in the first paragraph of the reply from Mallon Solicitors of 19 May 2017 it is stated that “The employer will agree to pay Mr. McFadden’s salary pending the determination of the disciplinary process”. This agreement in fact goes beyond what was sought, which related only to the salary that was due.

46. Turning to the remainder of the Respondent’s solicitor’s letter of 18 May 2017, which runs to six pages, the Respondent’s solicitor then sets out a series of concerns about the procedures being adopted by the investigator, and the manner in which the investigation was being broadened. Reference is made to the letters of 2 August 2016 and 16 November 2016 as limiting the scope of the investigation into the allegations therein set out, and to the letter received from the investigator on 20 March 2017 notifying of his appointment and the purpose of his investigation. The writer then refers to a letter sent to the investigator on 28 March 2017 raising queries about the investigation, to which Mr. Costello replied on 3 April 2017. Surprise is expressed at the investigator stating that it was a matter for him as an independent person to indicate how he would conduct the investigations, and that no restrictions or limitations had been placed on him in that regard by the Appellant. The writer then refers to the meeting with the investigator attended by the Respondent, at which copies of Mr. Costello’s notes of meetings he had held with other persons were furnished. Surprise is expressed upon review of those notes of the fact that the witnesses spoke about alleged incidents going beyond those specified in the letters of 2 August and 16 November 2016. Mention is made of the Appellant then giving his account, but declining to comment on other matters not core to the subject of the investigation. Concern is then expressed at the investigator’s report which it was said made findings going significantly beyond the specific incidents which he was tasked to investigate. Concern is also expressed at the investigator’s apparent decision not to interview a person identified by the Appellant, and his decision to interview other individuals. A request is made for correspondence between the Appellant and the investigator identifying these individuals. The letter then states: –

Our client remains suspended from his employment in order to allow your client’s investigation to take place. Our client has sought to engage with the investigator appointed by you. However our client cannot be subjected to any disciplinary procedure or any decision adverse to his interests by reference to the outcome of a flawed investigation which went beyond the investigation which you had sought to put in place.”

In the closing paragraphs the author states –

“Our client is amenable to considering reasonable proposals vis á viz participating in a fair and lawful investigation but this needs to be done in a manner that will ensure that his suspension is brought to an end as soon as is possible and that any further damage to his professional reputation is neutralised.

We look forward to hearing from you.”

47. I find that there is no express request in this letter for an undertaking by the Appellant not to continue the disciplinary investigation. On the contrary, the letter expresses a continuing willingness on the part of the Respondent to participate in a fair and lawful investigation.

48. I also find that there is no express request for an undertaking that the Appellant would not rely on the findings or purported findings of the disciplinary investigation or the investigator’s report of 3 May 2017.

49. The trial judge acknowledges this where she states “While the letter did not specify any particular undertakings that were required from the defendant…” but she continues by stating “It was clear that further reliance upon the disciplinary investigation would result in an application being made to the Court.” In my view this was not at all clear, and there was no evidence in the letter to support this inference or to conclude that failure to give further unspecified undertakings would result in a court application. In making this finding the trial judge fell into error and made a finding that was material to her decision.

50. In Mallon Solicitors’ reply of 19 May 2017 they give the undertaking in relation to payment of salary pending determination of the disciplinary process and it is thereafter made clear that the Respondent’s solicitor’s contentions in the letter of 18 May 2017 are refuted. It is stated that the Appellant did not dictate to the investigator the manner in which he should conduct his investigation, that procedural fairness was observed by Mr. Costello, that his notes of interviews were furnished to the Respondent, and that all steps were taken to ensure that the Respondent had an opportunity to address in full all matters which had emerged in the course of the interviews. It was noted that the Respondent was interviewed on 21 April 2017 and denied the allegations, and declined to engage in relation to the bulk of the issues raised. It is made plain in the letter that the Appellant is standing over Mr. Costello’s report, and accepting his findings in full, and giving the Respondent a further period of seven days in which to set out his reasons in writing as to why he should not be dismissed or why the Appellant should not take appropriate disciplinary action.

51. The response of 19 May 2017 is stamped “received” by Patrick J. Farrell & Co. on behalf of the Respondent on 22 May 2017. There is no evidence that there were any further communications between the Respondent and the Appellant or their respective solicitor. The application for short service was made on the following day. That application was moved in circumstances where, despite the “concerns” expressed in the letter of 18 May 2017, the Respondent failed to seek specific undertakings from the Appellant in relation to continuation of the disciplinary process and the use of Mr. Costello’s report/the adoption of his findings. Notwithstanding that the Appellant in the letter of 19 May indicated that it was standing over of the report on findings, it was not given an opportunity to consider giving further specific undertakings in advance of the motion issuing. There should have been a clear and unequivocal request for those undertakings in advance, and this could have been done promptly by email or by telephone.

52. I am not therefore satisfied that it was reasonable or necessary for the Respondent to issue the Notice of Motion on 23 May 2017, or to pursue interlocutory relief to protect his rights. It is notable that in the short time frame afforded to the Appellant after service of the Notice of Motion instructions were forthcoming to offer undertakings, and this was done on 25 May 2017. It was certainly not necessary for the Respondent thereafter to pursue interlocutory relief given that undertakings had been proffered and essentially accepted and that it only remained for counsel to confirm on these undertakings in open court. In my view the trial judge fell into error in concluding that there was “no particular reason” why the Appellant could not have given the undertakings at an earlier point in time.

53. Further while undertakings were given which cover paragraphs 1, 2 and 3 of the Notice of Motion, as noted earlier the Respondent did not seek to pursue the additional interlocutory injunctions sought at paragraphs 4 and 5. This was a choice made by the Respondent.

54. In light of my finding that the application was premature given the failure to seek specific undertakings in advance, in my view it is not necessary or appropriate for this court to enter on consideration of the merits of the claim for interlocutory reliefs, or to pronounce on what the outcome would have been. Thus it is not necessary to consider whether the Respondent could have demonstrated a fair or serious issue to be tried, the relative strengths of the parties positions, whether damages might have been an adequate remedy, the balance of convenience, or the scope of any interlocutory orders that might have been appropriate.

55. I have earlier expressed the view that the termination of the Respondent’s employment on 29 June 2017 did not render the balance of the Respondent’s claims moot. The termination occurred in accordance with the terms of the contract of employment, by the giving of reasonable notice. Albeit that it was followed by the Respondent’s claim before the WRC for unfair dismissal, it did not dispose entirely of the reliefs sought in the General Indorsement of Claim in the plenary summons, and in particular the claims for breach of constitutional rights to fair procedures, the right to earn a livelihood and the right to a good name, and the claim for exemplary damages for damage to reputation. In particular there is authority to support the proposition that the claim for reputational damage would have survived the termination of the Respondent’s employment.

56. In the present case the Appellant submits that the appropriate order to be substituted for that of the High Court is “no order as to costs”. It is not therefore necessary for this court to consider whether it should go further and order costs in favour of the Appellant. This is a case where there was no determination by the trial judge of the interlocutory application and therefore the requirement in O.99 r.2(3) (formerly r.1(4A)) that the court “shall make an award of costs” does not apply. Instead the general discretion in relation to the costs applies. Having regard to all the circumstances I would allow this appeal and would substitute the costs order of the High Court in favour of a no order as to costs of the application for leave of short service, of the Notice of Motion seeking interlocutory relief, and of the costs of the hearing on 22 June 2017.

As this judgment is being delivered electronically, Donnelly and Faherty JJ. have indicated their agreement with it.

Patrick McFadden v Muckno Hotels Limited

Record Number: 2018/231

Court of Appeal

22 April 2020

[2020] IECA 110
Mr. Justice Robert Haughton

JUDGMENT
Introduction
1. This is an appeal from the order of Costello J. made on 3 May 2018 (perfected on 8 May 2018) whereby Costello J. determined costs in respect of an interlocutory injunction application, and ordered as follows: –

Background
2. The background to the proceedings is that the Appellant employed the Respondent as manager of Glencarn Hotel. By letter dated 2 August 2016 the Appellant through its solicitor Mr. Mallon made allegations against the Respondent, of drinking on the premises which required an explanation/investigation; and by a further letter dated 16 November 2016 the Appellant through its said solicitor, made allegations concerning the payment of musical performers in the hotel and of double booking, which also required an explanation. The Respondent’s managerial responsibilities were withdrawn.

6. The Respondent’s salary was due to be paid into his bank account on 3 May 2017, but was not received.

The proceedings
10. The Plenary Summons was issued on 23 May 2017 seeking interlocutory injunctions restraining the Appellant from further conducting the disciplinary investigation, from relying on the investigator’s report, requiring the Appellant to continue to pay the Respondent’s salary, compelling the Appellant to reinstate the Respondent as general manager, and restraining the Appellant from terminating the employment “other than in accordance with his legal and contractual entitlements and his right to fair procedures”. The Respondent also sought declarations in similar terms, damages for breach of contract and exemplary damages for damage to his reputation.

11. A Notice of Motion was then issued on 23 May 2017, with leave of the High Court (Gilligan J.) for short service returnable to 26 May 2017, seeking the following interlocutory reliefs: –

(1) “An interlocutory injunction restraining the Defendant, its servants or agents, from further conducting the disciplinary investigation and/or procedure of and against the Plaintiff, as notified to the Plaintiff by the Defendant in their letters of the 2nd August and the 15th November 2016, other than in accordance with its legal and contractual entitlements and his right to fair procedure.
(2) An interlocutory injunction restraining the Defendant, its servants or agents, from relying on the purported findings of the disciplinary investigation into the Plaintiff’s alleged conduct and/or the report dated the 3rd May, 2017 regarding the Plaintiff’s alleged misconduct.
(3) If necessary an interlocutory injunction requiring the Defendant to pay the Plaintiff his salary pending further Order of this Honourable Court.
(4) If necessary an interlocutory injunction compelling the Defendant to end the Plaintiff’s suspension and administrative leave and to reinstate him in his position as general manager pending further Order of this Honourable Court.
(5) If necessary an interlocutory injunction restraining the Defendant from terminating the Plaintiff’s employment other than in accordance with his legal and contractual entitlements and his right to fair procedures.
(6) Further and other relief.
(7) Costs.”
12. The Motion was grounded on an affidavit of the Respondent sworn on 23 May 2017. This and the Notice of Motion were served electronically on that date. A supplemental affidavit of the Respondent also sworn on 23 May 2017, purely for the purposes of exhibiting the investigator’s report of 3 May 2017, was served electronically on 24 May 2017.

The following two paragraphs are also relevant to this appeal —

In paragraph 20, Mr. Deane prayed the court not to grant the Respondent the reliefs sought or any relief, and to grant the Appellant the costs of the Motion.

The costs hearing
19. The question of costs ultimately did not come to be determined until it was heard before Costello J. on 3 May 2018, when after hearing argument at 2pm, she gave an ex tempore judgment granting the Respondent the costs of the application for short service (for the Notice of Motion), of the interlocutory application up to 22 June 2017 and the cost of the application for costs.

20. The Transcript of the judgment records the trial judge’s reasoning.

MS BOLGER: Sorry, judge, I think that’s the 22nd of June, not the 22nd of May.

JUDGE: Sorry, 22nd of June, yes, thank you.”

The permanent undertakings
21. Before considering this judgment, it is necessary to refer to two “permanent undertakings” recorded in the perfected Order of Costello J. of 3 May 2018 as follows: –

“And it appearing that an agreement has been reached between the parties on undertakings to the Court and the Defendant through its Counsel providing the following permanent undertakings to the Court
1. In terms of paragraph 1 of the Notice of Motion namely not to conduct the disciplinary investigation and/or procedure of and against the Plaintiff, as notified to the Plaintiff by the Defendant in their letters of 2nd August and 15th November 2016, other than in accordance with his legal and contractual entitlements and his right to fair procedures.
2. In terms of paragraph 2 of the Notice of Motion namely not to rely on the purported findings of the disciplinary investigation into the Plaintiff’s alleged conduct and/or the report dated the 3rd of May 2017 regarding the Plaintiff’s alleged misconduct
By consent IT IS ORDERED that the Action do stand struck out”.

“MS. BOLGER: Judge, the entire proceedings are effectively —

JUDGE: I know that.

MS. BOLGER: And in those circumstances if the undertakings that were given in terms of paragraphs 1 and 2 of the Notice of Motion, they survived the proceedings, the others no longer apply —

JUDGE: Yes.

MS. BOLGER: … because of this determination. So the proceedings can be struck out on the basis of the costs award that your lordship has made today, but noting the undertakings and those undertaking –

JUDGE: In paragraphs 1 and 2 to continue.

MS. BOLGER: In paragraphs 1 and 2.

MS. DONOVAN: I am very obliged, Judge.

JUDGE: Thank you.”

The parties’ submissions
27. In written and oral submissions counsel for the Appellant argued that it was not necessary for the Respondent to seek injunctive relief because an undertaking in relation to the Respondent’s salary was given on 19 May 2017 and because further undertakings in relation to halting the disciplinary process and non-reliance on the investigation report were not sought in advance of the issue of the Notice of Motion, but were proffered on 25 May 2017 soon after it issued – all of which undertakings became recorded in Court on 22 June 2017. Counsel sought to distinguish Irish Bacon Slicers on a number of grounds, but primarily because specific undertakings were sought by the plaintiff in advance, but were not offered or given until the matter came before the court. It was submitted that this court should follow the approach of Laffoy J. in O’Dea v Dublin City Council [2011] IEHC 100 where she considered that in interlocutory matters costs should follow where a result is brought about by a determination of the court on issues before the court, rather than any supervening event, such as an agreement of the parties in which the court has not been involved. Counsel submitted that the “event” was brought about by acceptance of an offer by the Appellant, rather than any determination of the court. It was submitted that, contrary to what senior counsel for the Respondent had informed the High Court on 12 October 2017, the substantive matter had not “fallen away” in that orders were sought by the Respondent regarding alleged breach of contractual right to fair procedures, alleged personal injury and alleged reputational damage which survived the termination of the Respondent’s contract of employment in June 2017. Counsel for the Appellant submitted that this court should substitute the High Court order on costs in favour of the Respondent with “no orders to costs”.

Costs of interlocutory applications
29. Order 99 of the Rules of the Superior Courts 1986 to 2019 was most recently amended by substitution and is now set out in the Schedule 1 in S.I. 584/2019, which applies with effect from 3 December, 2019. O. 99, r 1 now contains definitions, and O.99 r. 2 now governs the ‘Right to Costs’ and provides:

“2. Subject to the provisions of statute (including sections 168 and 169 of the 2015 Act) and except as otherwise provided by these rules:

(1) The costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those Courts respectively” (this reflects the former O99 r.1(1)).

(2) No party shall be entitled to recover costs of or incidental to any proceeding from any other party to such proceeding except under an order or as provided by these Rules.

(5) An order may require the payment of an amount in respect of costs forthwith, notwithstanding that the proceedings have not been concluded.”

Herbert J. considered that it was reasonable for the applicants in the particular circumstances of the case to have sought leave, and he awarded them their costs.

Having referred to Garibov, Laffoy J. then states under “Conclusions” —

Laffoy J dealt with the matter of costs on the basis that the main proceedings would continue. She differentiated the case from O’Dea —

She concluded: –

Accordingly costs were reserved to the trial judge.

At p.7 he considered that in approaching costs of an interlocutory injunction —

At p.8 Peart J. then stated —

His reason for awarding the plaintiff the costs appears in the following paragraph:

“In such circumstances it is obvious in my view that the costs of the Notice of Motion should be awarded to the plaintiff. The motion should never have to have been brought in the first place.”

Discussion
35. In my view in his judgment in Irish Bacon Slicers Limited, Peart J. was applying the principles which were established by Laffoy J. in O’Dea and Tekenable, but on the facts before him he considered that the acceptance of the undertakings by the court amounted to a ‘determination’ of the motion. I agree with counsel for the Appellant that the facts in the present case can be distinguished from those in Irish Bacon Slicers Limited. Firstly that was a case with very different facts – the defendant had threatened to petition to wind up the plaintiff company without any justification or basis for so doing (as the debt was disputed), leaving the plaintiff with no option but to issue legal proceedings to protect its position. By comparison and without prejudging the outcome, the Appellant in the instant case had a basis for its action in proceeding to disciplinary investigation and procedure. Further in Irish Bacon Slicers Limited an interim injunction had been granted, whereas in the instant case undertakings were offered, and accepted , within days of the issue of the motion seeking interlocutory relief, following which were given to the court, and without any hearing having to be undertaken by the court. More particularly, in Irish Bacon Slicers Limited undertakings were sought five weeks before they were eventually given. In the instant case, the undertaking in relation to payment of salary was given on 19 May 2017 before the motion issued, and the other undertakings (which were not requested in correspondence but) reflecting paragraphs 1 and 2 of the Notice of Motion, were given some three days after service, and before the return date. Also no undertakings were given (or insisted upon) in respect of two reliefs sought in the Notice of Motion – at paragraph 4, where an order was sought compelling the Appellant to end the suspension and administrative leave, and at paragraph 5 which sought an injunction restraining termination of the contract of employment other than in accordance with the contract and right to fair procedures. By comparison, in Irish Bacon Slicers Limited, the undertakings covered all the reliefs sought and were only given after the exchange of affidavits and in court on the day when the matter came on for hearing, whereupon the defendant informed the court through its counsel that while it was prepared to give the undertakings; they were not offered in advance. Furthermore, in Irish Bacon Slicers Limited an undertaking not to present a Petition also stated to the court that it would bring separate High Court proceedings seeking to recover the amount claimed to be due. This meant that there would be no further hearing in the proceedings and there would be no court to which the costs of the interlocutory application could be reserved – the proceedings were effectively rendered moot making it incumbent on the court to decide the liability for costs unless “it [was] not possible justly to adjudicate” upon the issue. In the instant case the undertakings did not in my view render the entire proceedings moot, and indeed when the undertakings were given on 22 June 2017 the question of costs was reserved to a date in October.

42. This argument is based on the judgments of the Supreme Court in Hay v. O’Grady [1992] IR 210, and in the Leopardstown Club case where at paragraph 88 Denham CJ stated —

“[82] The principles identified by the Hay v. O’Grady [1992] I.R. 210 jurisprudence include the following:-

– An appellate court does not proceed by way of a full re-hearing of a case.
– An appellate court is bound by the findings of fact of a trial judge which are supported by credible evidence.
– In general, an appellate court proceeds on the findings of fact of a trial judge.
– The fact that there is contrary evidence does not alter the position.
– An appellate court should be slow to substitute its own inferences of fact where such depends upon oral evidence, and a different inference has been drawn by the trial judge.
– The fact that there is some evidence before a trial judge which may lead to a different conclusion does not alter the fundamental principle.
– A finding of the credibility, or not, of a witness is a primary finding of fact.”
43. In the instant case there was no oral evidence, and the costs hearing did not rely on any oral evidence – there was only evidence on affidavit before the trial judge, and precisely the same evidence is before this court. This indeed is accepted by counsel for the Respondent in their submissions but it is nevertheless submitted, albeit that oral evidence is rare in interlocutory applications; Leopardstown Club and Hay v. O’Grady should still apply. However a hearing at first instance based purely on documents is materially different to one based on oral evidence where the trial judge hears and sees witnesses and can take into account their demeanour, and where this may have a bearing on the context and meaning of the documents put in evidence. In the absence of anything on affidavit putting the context or meaning of documents or communications in issue – It is not logical to apply in their entirety principles relating to findings of fact, whether primary or inferential, established in Hay v. O’Grady and applied in Leopardstown Club to a purely documentary hearing.

44. It must be accepted however that even in a documentary only appeal, the appellate court is bound by the trial judge’s finding of facts where there is credible evidence to support them . This court should therefore review the relevant findings of the trial judge in relation to the correspondence to ascertain whether they were supported by the evidence. Therefore if there is credible evidence for the trial judge’s findings then this court should not come to a different conclusion. Further if on a fair reading the correspondence is capable of two or more constructions one of which could reasonably have been adopted by the trial judge then this court should be slow to interfere. But if a finding is not supported by the evidence then this court is entitled to intervene and substitute its own finding of fact.

“Our client’s employer cannot take any further steps in the context of the current disciplinary procedure, by reference to what is clearly an unfair and flawed investigation and findings which go significantly beyond the incidents which were to be investigated. Our client remains suspended from his employment in order to allow your client’s investigation to take place. Our client has sought to engage with the investigator appointed by you. However our client cannot be subjected to any disciplinary procedure or any decision adverse to his interests by reference to the outcome of a flawed investigation which went beyond the investigation which you had sought to put in place.”

In the closing paragraphs the author states —

We look forward to hearing from you.”

As this judgment is being delivered electronically, Donnelly and Faherty JJ. have indicated their agreement with it.

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