Ireland: The Employment Injunction

Injunctions to restrain a dismissal

When an employee is dismissed generally the employee will sue for unfair dismissal in the EAT. However, there are circumstances where an employee will attempt to injunct the dismissal in the High Court.

Beginning with Fennelly v. Assicurazoni Generali SPA (Unreported Ex tempore, (Costello P.) 13th August, 1997 the High Court had shown a willingness to grant an interlocutory injunction to allow a plaintiff to be paid salary pending the determination of the action. This became known as the 'Fennelly order'. It is still the case that the normal introductory order sought is the 'Fennelly order' – it is considered very difficult to get an order compelling the defendant to take the plaintiff back into the workplace.

In Sheehy v. Ryan [2004] 15 ELR 87 and Orr v. Zomax [2004] 1 IR 486 the High Court refused to grant injunctions restraining the dismissal. In the latter case the court stated:-

This line of authority was approved in by the Supreme Court in Maha Lingham  v. Health Service Executive [2006] ELR 137 who also stated that the test of introductory stage for an injunction of this nature was "a strong case that he is likely to succeed at the hearing of the action." The Supreme Court also stated:-

The logic is that, if the employee is dismissed for misconduct but fair procedures were not followed,  the court might intervene because the dismissal has more far reaching consequences for the plaintiff such as damage to reputation than does a dismissal for redundancy or ill health say.

The plaintiff may seek a 'Fennelly order' at interlocutory stage and later at full hearing seek a declaration that the dismissal was null and void. This would normally be without prejudice to the employer investigating the matter afresh, this time in accordance with fair procedures. In Carroll v Dublin Bus [2005] IR 184 the plaintiff was dismissed for misconduct for allegedly being involved in union activities at a time when he was certified as unfit to work. At full hearing the High Court made a declaration that the dismissal was void on the basis that fair procedures had not been applied. In particular the decision to dismiss was made arising from a meeting the plaintiff did not attend.

Since Maha Lingham  v. Health Service Executive there have been some cases in which the plaintiff succeeded in getting an inerlocutory injunction in relation to a dismissal for other than misconduct. Those cases include:-

• In Naujoks v. National Institute of Bioprocessing and Medical Research [2007] ELR 84 the plaintiff was a CEO dismissed with 6 months notice. There was a strong arguable case  that it was represented to him he would be in the position for at least 5 years. There was a strong arguable case that dismissal had taken place contrary to the articles of association of the company. There was a strong arguable case that the plaintiff had not been furnished with written notice of dismissal is required by the contract of this employment. There was a strong arguable case that dismissal was for misconduct when reading the replying affidavit of the defendant which stated the defendant had lost confidence in his ability to manage the company.
• In Burke v. Independent Colleges Ltd. 2011 ELR 169 the court granted an injunction on the basis that the dismissal was affected contrary to the requirement in the articles of association which required the consent of another company before dismissal was affected.
• In Holland v. Athlone Institute of Technology 2012 ELR 1 the plaintiff won a claim befor the Labour Court to the effect that he held a contract of indefinite duration. Shortly after this the High Court granted an interlocutory injunction restraining the dismissal on the basis that there was a strong arguable case that the plaintiff had a legitimate expectation that his contract of indefinite duration had the same status to that of a tenured lecturer and the expectation arose from the DOE circulars.

Injunction to restrain disciplinary procedure from continuing in it's current form

In some cases, an employee may seek to injunct disciplinary procedures from continuing in circumstances where a decision to dismiss has not been reached. Usually the introductory order sought will be that the defendant cannot continue with the disciplinary hearing until fair procedures are complied with or the order might be more specific about what actions the employer must take to comply with fair procedures. For instance, this could arise where the plaintiff has not been furnished with statements against him prior to the hearing.

In Becker v Board of Management of St. Dominic's Secondary School [2005] 1 IR 561 the court refused an interlocutory order of this nature and stated:-

"[I]t is my view that a court should only intervene in the course of an uncompleted disciplinary process in a clear case....

In general terms it seems to me that the circumstances in which the court should intervene is where a step, or steps, or an act, has been taken in the process which cannot be cured and which is manifestly at variance with the entitlement to fair procedures."

In Minnock v. Irish Casing Company Ltd [2007] ELR 229 the High Court (Clarke J.) granted an injunction to restrain an investigation into disciplinary matters from proceeding. The defendant argued that the second defendant had only engaged in an investigation process and not a disciplinary process and therefore the injunction was premature. The court held that the second named defendant had purported to make findings and had therefore not confined himself to collecting evidence and determining whether there was a case to answer to warrant formal disciplinary proceedings. Those findings were made in breach of fair procedures where inter-alia the plaintiff only received a detailed account of the financial allegations being made against him 3 days before the investigation. The defendants were free to appoint another person to carry out a fresh investigation.

In McLoughlin v. Setanta Insurance Ltd. 2012 ELR 57 the plaintiff was a general manager for the defendant and was suspended with pay for allegedly making a significant overstatement of underwriting results and a substantial reduction in the claims reserves. The human resource manager was to conduct an investigation to establish findings which would be presented to the board who would determine whether to proceed to a disciplinary hearing. The plaintiff was granted an injunction restraining the investigation from proceeding on the basis that there was evidence that the human resource manager had prejudged the allegations. The court in particular looked at the replying affidavit of the defendant to find such prejudgement.

Conclusion

Where an employee has been dismissed for misconduct and fair procedures had not been complied with there may well be value in bringing a High Court injunction. The principal advantage to the plaintiff is a speedier resolution than is offered by the Employment Appeals Tribunal.

There may be cases where the injunction option might be considered for a dismissal for other than misconduct such as where there is breach of an express or implied contractual term or breach of the articles of association. However, the test of balance of convenience and damages not being an adequate remedy will have to be considered before the interlocutory injunction is brought.

In relation to an injunction to restrain a disciplinary process from continuing, the High Court will not intervene unless a step has been taken in the process which cannot be cured and which is manifestly at variance with the entitlement to fair procedures. Even then the court is likely to make orders in relation to how the disciplinary procedures should proceed rather than stop them completely. Success at this stage might be a pyrrhic victory – it might enable the employer to cure defects in the disciplinary process and leave the employee with less arguments to make at the ultimate EAT or court hearing.

I intend to update this page as the law develops.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.