Buckley v National University of Ireland, Maynooth

• Jurisdiction: Ireland
• Judge: Mr. Justice Roderick Murphy,
• Judgment Date: 13 February 2009
• Neutral Citation: [2009] IEHC 58
• Court: High Court
• Docket Number: [595 P/2009]
• Date: 13 February 2009

[2009] IEHC 58

THE HIGH COURT

[595 P/2009]

Buckley v National University of Ireland, Maynooth

BETWEEN/

DR. ANN BUCKLEY

PLAINTIFF

AND

NATIONAL UNIVERSITY OF IRELAND, MAYNOOTH

DEFENDANT

PROTECTION OF EMPLOYEES (FIXED-TERM) ACT 2003 S9

PROTECTION OF EMPLOYEES (FIXED-TERM) ACT 2003 S15

PROTECTION OF EMPLOYEES (FIXED-TERM) ACT 2003 S16

COFFEY v CONNOLLY UNREP EDWARDS 18.9.2007 2007/9/1868 2007 IEHC 319

MAHA LINGHAM v HEALTH SERVICE EXECUTIVE 2006 ELR 137

PROTECTION OF EMPLOYEES (FIXED-TERM) ACT 2003 S14

ORR v ZOMAX LTD 2004 1 IR 486

EMPLOYMENT

Interlocutory injunction

Dismissal - Relevant legal principles - Minimum threshold for mandatory interlocutory injunction - Whether damages adequate remedy - Balance of convenience - Legal basis for plaintiff's claim - Specialised statutory regime - Whether plaintiff established strong case likely to succeed at trial - Coffey v Connolly [2007] IEHC 319, (Unrep, Edwards J, 18/9/2007), Campus Oil v Minister for Industry (No 2) [1983] 1 IR 88, Maha Lingham v Health Service Executive [2006] ELR 137, Orr v Zomax Ltd [2004] IEHC 131, [2004] IR 486 and Johnson v Unisys Ltd [2001] UKHL 13, [2003] 1 AC 518 applied - Protection of Employees (Fixed-Term Work) Act 2003 (No 29), ss 9, 14, 15 and 16 - Relief refused (2009/595P - Murphy J - 13/2/2009) [2009] IEHC 58

Buckley v NUI Maynooth

Facts: The plaintiff was an academic who had held two successive fixed term contracts as a research fellow. The contract commenced in 2003 and she was issued with a second fixed term contract in 2006, that expired in 2008. The plaintiff wrote to the University, contending that she was a permanent employee for the purposes of the Protection of Employees (Fixed Term Work) Act 2003, which was rejected by the defendant. The plaintiff brought a case to a Rights Commissioner, who upheld the complaint of the plaintiff. The University made her redundant in 2008 and sought to appeal the decision of the Rights Commissioner to the Labour Court, which was now pending. The plaintiff was then locked out of her office and she instituted interlocutory proceedings to restrain the defendant from terminating her employment. An ex gratia offer to pay salary had been made and had been resiled from.

Held by Murphy J. that the plaintiff was not entitled to the interlocutory reliefs sought. She had failed to establish a strong case that she was likely to succeed at the trial of the action. Common law principles governed the dispute. The decision of the Rights Commissioner was not yet enforceable until the appeal was heard. The Court could not enforce promises where it would not be enforceable by the Labour Court. An implied term of mutual trust and confidence could not assist the plaintiff here.

Reporter: E.F.

Mr. Justice Roderick Murphy,

1 This case arises out of the employment of the plaintiff on two successive fixed term contracts as a Research Fellow in the Department of Music at the National University of Ireland, Maynooth ("NUIM"). The plaintiff sought funding in 2002 for a research project from the Irish Research Council for the Humanities and Social Sciences ("IRCHSS), a state-run body providing research grants. It was a condition of the funding that the plaintiff be based at a third-level institution. The plaintiff approached NUIM to meet this condition, stating that "This requirement could be met simply by an agreement that I would be awarded a contract for the duration of the grant."

2 The defendant wrote to the IRCHSS stating its willingness to host the plaintiff's project at NUIM. Subject to the associated funding being made available by IRCHSS, the defendant stated that it would employ Dr. Buckley on a fixed term contract of employment for a three year period. This contract commenced on 1^st October, 2003. The plaintiff's salary was paid from the grant provided by IRCHSS. She was provided with an office by the University. The plaintiff sought further funding from IRCHSS in 2006 for a new research project which was to commence on the expiration of the first project. Her application was successful and she was issued with a second fixed-term contract that commenced on 1^st October, 2006. This contract was for a two year period and was thus to expire on 30^th September, 2008.

3 On 23^rd November, 2007, Dr. Buckley wrote to the Personnel Officer of NUIM, stating that she believed herself to be a permanent employee of the University pursuant to s. 9 of the Protection of Employees (Fixed-Term Work) Act of 2003. The University did not agree with her interpretation of the 2003 Act and refused to confirm that the plaintiff was now a permanent employee of the University.

4 The plaintiff brought a case to the Rights Commissioner pursuant to the statutory mechanism provided for in the 2003 Act. The Rights Commissioner upheld the plaintiff's claim in a decision of 8^th August, 2008. The Rights Commissioner declared that the plaintiff was entitled to a contract of indefinite duration with the University and to receive compensation of €5,000.

5 The plaintiff's second fixed-term contract expired on 30^th September, 2008. On 27^th August, 2008, the University's Director of Human Resources informed the plaintiff that they were making her redundant from 30^th September, 2008, and enclosing a statutory form of redundancy together with a copy of the University's appeal against the decision of the Rights Commissioner to the Labour Court. The appeal is a full de novoappeal pursuant to s. 15 of the 2003 Act. The decision of the Labour Court remains pending at the date hereof.

6 At the Labour Court hearing on 16^th October, 2008, the defendant made a new case that the plaintiff was never an employee of the University. An adjournment was granted by the Labour Court so the plaintiff could consider the new case being made by the University. At this hearing, it is alleged that the University gave an undertaking to the Court that they would maintain the status quo in relation to the position of the plaintiff. Subsequent to the hearing, the plaintiff was asked by the University authorities to vacate the office which she had been provided with in the music department. Dr. Buckley received a letter from Brendan Baker, the Director of Human Resources in the University on 2^nd December, 2008, in which he stated:-

"The undertaking given to the Labour Court is in respect of your salary only and no other arrangements.

You are therefore requested to vacate room 35 (the office) by Friday the 5^th of December, 2008. Your co-operation in the matter is appreciated."

7 The Irish Federation of University Teachers (of which the plaintiff is a member) responded to this letter and wrote to Mr. Ray McGee, Deputy Chairman of the Labour Court on 4^th December 2008. The Labour Court responded by letter of 5^thDecember, 2008, to the IFUT General Secretary and Mr. Baker, stating as follows:-

"The Court would wish to remind the parties that, on the day [of the hearing], the Court, in granting the adjournment, expressed a hope that such adjournment would be a short one of only a couple of weeks, but that on receipt of IFUT's legal submission, which were to be copied to the NUI Maynooth, a new date would be set."

8 In the interim, the Court remarked to the parties that it would prefer that there be no change in the status quo regarding the claimant. The College's response as recorded was that it was willing to continue the arrangements, including payment.

9 Obviously, the Court's only direct role in this matter is under the specific provisions of the Protection of Employees (Fixed-Term Work) Act,2003.

10 The Court would prefer that this be the only matter at issue on resumption of the case and is simply reminding the parties what occurred on the 16^thOctober last."

11 The resumed hearing before the Labour Court occurred on 16^thDecember, 2008. By letter of 18^thDecember from the defendant's solicitors, the plaintiff's representative was informed that the University would cease to pay the plaintiff with effect from 12^thJanuary, 2009. The letter stated:-

"We are aware that, while an undertaking was mentioned at the Labour Court hearing, there was no undertaking given at the Labour Court."

12 As you know, the University has continued to make certain payments to Dr. Buckley since the expiry of her fixed-term contract on 30^thSeptember, 2008. This was an ex gratia payment on the part of the University as a gesture of goodwill and in ease of Dr. Buckley until the hearing of the Appeal.

13 Please note that, as the hearing of the Appeal has now taken place, the University will cease to pay your client with effect from 12^thJanuary, 2009. The University also requires your client to vacate her office on Monday, 5^thJanuary, 2009, due to accommodation needs.

14 The University's position is that Dr. Buckley has no entitlement to ongoing pay in circumstances where the decision of the Rights Commissioner is under appeal and as Dr. Buckley has had no contract since 30^thSeptember. 2008. Furthermore, in the context of any remedy sought by your client, damages would be an adequate remedy."

15 On 22^nd January, 2009, the plaintiff attended at her office in the University. She left the office at lunchtime. When she returned the door locks on her office had been changed and she was unable to obtain access to the office.

16 The plaintiff alleges that as a result of the actions of the University she has been gravely injured in her reputation as an academic and that she has been greatly embarrassed and humiliated. She alleges that she is still an employee of the University and the actions of the University in taking her off the payroll and in locking her out of her office have been arbitrary, illegal and in breach of fair procedures.

17 The plaintiff is seeking an interlocutory injunction restraining the defendants from terminating the...