Cma v K
| Jurisdiction | Ireland |
| Judge | Ms. Justice Eileen Roberts |
| Judgment Date | 02 March 2023 |
| Neutral Citation | [2023] IEHC 96 |
| Court | High Court |
[2023] IEHC 96
THE HIGH COURT
Interlocutory injunction – Termination of employment – Unlawful dismissal – Plaintiff seeking an interlocutory injunction against the defendant restraining the termination of the plaintiff’s employment or her removal from her position pending further order of the court – Whether the plaintiff was unlawfully dismissed outside her probationary period
Facts: The plaintiff applied to the High Court for an interlocutory injunction against the defendant seeking to restrain the termination of the plaintiff’s employment or her removal from her position pending further order of the court. The plaintiff also sought an order restraining the defendant from commenting on her work performance pending further order of the court and an order that the defendant continue to pay her salary and benefits including her pension contributions pending further order. The plaintiff also sought an order anonymising her details and directing that there be no publication of her identity or anything that could result in her identification pending further order. All of the reliefs were resisted by the defendant. The plaintiff claimed that she was unlawfully dismissed outside her probationary period. The plaintiff believed that the decision to dismiss her was also unlawful as a consequence of the defendant’s failure to have regard to its public sector equality duty as required by s. 42 of the Irish Human Rights and Equality Commission Act 2014. The defendant took issue with the plaintiff’s delay in seeking injunctive relief and regarding the plaintiff’s failure to give an undertaking as to damages.
Held by Roberts J that while the plaintiff had raised fair arguments regarding the date from which her probation period should run and regarding the validity of her being paid in lieu of notice, the plaintiff’s case was not so strong with respect to those aspects as to raise a reasonable expectation that she was more likely than not to succeed at the trial of the action on those points. Neither, in Roberts J’s view, had the plaintiff established a strong case on which she was likely to succeed at trial that she was entitled to and was denied fair procedures in relation to the termination of her contract of employment on the grounds of poor performance. Roberts J also did not believe that the declaratory relief sought by the plaintiff regarding the public sector equality duties owed to her raised a strong case justifying the court intervening in the dispute by way of mandatory injunctive relief. Roberts J held that reinstatement would be simply unworkable in the circumstances and damages should be an adequate remedy for a claim for damages for wrongful termination of a contract of employment. In light of Roberts J’s findings on the absence of a strong case likely to succeed at trial and on the balance of convenience and the adequacy of damages, she held that she did not need to consider the defendant’s arguments on delay by the plaintiff in the case. Roberts J refused the plaintiff’s motion seeking orders restraining the defendant from terminating her employment, restraining the defendant from commenting on her work performance pending further order of the court or requiring the defendant to continue to pay the plaintiff’s salary and other benefits including her pension contributions pending further order of the court.
Roberts J granted the plaintiff an order pursuant to the provisions of s. 27 of the Civil Law (Miscellaneous Provisions) Act 2008 prohibiting the publication or broadcast of any matter relating to the proceedings which would, or would be likely to, identify her. Roberts J was satisfied from the evidence provided by the plaintiff regarding her health conditions that all of the necessary requirements for an order were satisfied under s. 27(3) namely that the plaintiff had a medical condition, that her identification as a person with that condition would be likely to cause undue stress to her and that the order giving her anonymity would not be prejudicial to the interests of justice.
Application refused.
JUDGMENT of Ms. Justice Eileen Roberts delivered on 2 March 2023
. This is an application by the plaintiff for an interlocutory injunction against the defendant seeking to restrain the termination of the plaintiff's employment or her removal from her position pending further order of this court. The plaintiff also seeks an order restraining the defendant from commenting on her work performance pending further order of the court and an order that the defendant continue to pay her salary and benefits including her pension contributions pending further order.
. The plaintiff also seeks an order anonymising her details and directing that there be no publication of her identity or anything that could result in her identification pending further order.
. All of the reliefs are resisted by the defendant.
. As will be apparent from the title to this judgment and certain redactions and changes to quotations within the body of this judgment substituting the name of the defendant by “the employer”, I decided to grant the plaintiff the anonymity order she sought. I made that order pursuant to the provisions of section 27 of the Civil Law (Miscellaneous Provisions) Act 2008. Section 27 (1) provides that where in any civil proceedings a relevant person has a medical condition, an application may be made to the court in which the proceedings have been brought for an order under that section prohibiting the publication or broadcast of any matter relating to the proceedings which would, or would be likely to, identify the relevant person as a person having that condition. I am satisfied from the evidence provided by the plaintiff regarding her health conditions that all of the necessary requirements for an order were satisfied under section 27(3) namely that the plaintiff has a medical condition, that her identification as a person with that condition would be likely to cause undue stress to her and that this order giving her anonymity would not be prejudicial to the interests of justice. Accordingly, I made that order prior to the publication of this judgment and it now governs the reporting of this judgment.
. The plenary summons in this case issued on 7 February 2023. The plaintiff claims damages for breach of contract and wrongful dismissal. She also seeks immediate injunctive relief restraining the termination of her employment. The application was heard by this court on 17 February 2023. By that date the defendant's position was that the plaintiff's employment had already been terminated.
. One of the key issues in this case is whether the plaintiff was on probation when the defendant dismissed her. The evidence in that regard will be considered in some detail.
. In addition to the plaintiff's claim that she was unlawfully dismissed outside her probationary period, the plaintiff also argues that her employer, as a public body within the meaning of section 42 of the Irish Human Rights and Equality Commission Act 2014, has a statutory duty to have regard to the need to eliminate discrimination, promote equality of opportunity and treatment of staff and protect the human rights of its staff. The plaintiff argues that the defendant failed to have regard to its statutory duty during the course of the plaintiff's employment and in the circumstances of her dismissal and she seeks a declaration to that effect. The plaintiff avers in her grounding affidavit that she is a disabled person within the meaning of the Employment Equality Act 1998–2011 by reason of her stated medical conditions She says she disclosed these issues to the defendant who failed to make reasonable accommodation or take appropriate measures to adapt the workplace for her.
. The plaintiff's contract of employment is dated 21 February 2022. It was signed on behalf of the defendant on 21 February 2022 and by the plaintiff on 22 February 2022.
. The contract provides at clause 1.1 “ The term of your employment shall commence on 16 March 2022, subject to the provisions for termination hereafter appearing”.
. Clause 2 deals with probation and is in the following terms insofar as relevant to this claim:
“ 2.1 For the first eleven months of this contract you will be on probation.
2.2 During the period of your probation, your performance will be subject to review by your supervisor(s) to determine whether you:
(i) have performed in a satisfactory manner
(ii) have been satisfactory in general conduct, and
(iii) are suitable from the point of view of health with particular regard to sick leave.
2.3 Prior to completion of the probation period a decision will be made as to whether or not you will be retained. This decision will be based on your performance assessed against the criteria set out in (i) to (iii) above.
2.4 Notwithstanding paragraphs 2.2 and 2.3 above, termination of this agreement within the probationary period shall be at the discretion of [the employer] and in the event of such termination, you will receive two weeks' notice. Likewise, where you intend to resign from your employment during your probationary period you will be required to give [the employer] two weeks' notice in writing.
2.5 In certain circumstances where the capacity of your supervisor to assess performance and your capacity to demonstrate your suitability is interrupted, your probation may be extended…”
. Clause 14 of the plaintiff's contract of employment deals with termination. It is in the following terms insofar as it is relevant to this claim:
“ 14.1 The Minimum Notice and Terms of Employment Acts 1973 to 2005 apply. In the event of the termination of your employment you will be entitled to receive one month's notice in writing or some such longer...
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