Coffey v William Connolly & Sons Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice John Edwards
• Judgment Date: 18 September 2007
• Neutral Citation: [2007] IEHC 319
• Court: High Court
• Docket Number: [No. 6600P/2007]
• Date: 18 September 2007

COFFEY v CONNOLLY & SONS LTD

BETWEEN

MARY COFFEY

PLAINTIFF

AND

WILLIAM CONNOLLY AND SONS LIMITED

DEFENDANT

[2007] IEHC 319

[No. 6600P/2007]

THE HIGH COURT

EMPLOYMENT LAW

Dismissal

Injunction - Contract of employment - Termination - Whether probationary period had expired - Whether obligation to invoke disciplinary procedure - Principles to be applied - Mandatory interlocutory injunctions - Whether strong case - Adequacy of damages - Balance of convenience - Trust and confidence - Prejudice to defendant - Campus Oil Ltd v Minister for Industry and Energy (No 2) [1983] 1 IR 88 and Maha Lingum v HSE [2006] ELR 137 applied - American Cyanamid Co v Ethicon Ltd [1975] WLR 316, Hill v CA Parsons [1972] 1 Ch 305, Phelan v BIC (Ireland) Ltd [1997] ELR 208, Shortt v Data Packaging Ltd [1994] ELR 251, Carroll v Bus Atha Cliath [2005] IEHC 278, [2005] 4 IR 184, Naujoks v National Institute of Bioprocessing [2007] 18 ELR 25, Evans v IRFB Services (Ireland) Ltd [2005] IEHC 107, [2005] 2 ILRM 358, Foley v Aer Lingus Group (Unrep, Carroll J, 1/6/2001), Fennelly v Assicurazioni Generali (Unrep, Costello P, 13/8/1997), Industrial Yarns Ltd v Green [1994] ILRM 15, Vine v NDLB [1957] AC 488, Barbour v Manchester Regional Hospitals Board [1958] 1 WLR 181 and Parsons v Iarnrod Eireann [1997] 2 IR 523 considered - Prohibitory interlocutory injunction granted (2007/6600P - Edwards J - 18/9/2007) [2007] IEHC 319

Coffey v William Connolly & Sons Ltd

the plaintiff was recruited by the defendant under a contract of employment which provided for an initial six month probationary period, during which she could be summarily dismissed. Thereafter, certain specified procedures were to apply in the event that she was to be dismissed. The parties agreed to extend the probationary period for a further number of months. The defendant then purported to dismiss the plaintiff on the basis that it was dissatisfied with her performance. The plaintiff sought to restrain her dismissal on the basis that it was void as the extended probationary period had expired and the defendant had failed to adhere to the agreed non-probationary procedures for dismissal. On an interlocutory injunctive application, the plaintiff sought, inter alia, the following reliefs: 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.

Held by Mr Justice Edwards in granting the plaintiff the reliefs sought at paragraphs 2 and 3 of her notice of motion that the relief being sought at paragraph 1 was, in substance, a mandatory interlocutory injunction which required that the plaintiff show at least that she had a strong case that was likely to succeed at the hearing of the action. As the plaintiff had merely shown that there was a fair issue to be tried rather than that she was more likely than not to succeed at the trial of the action, she had not met the threshold for the grant of the relief sought at paragraph 1 of her notice of motion. In respect of the other reliefs sought, the plaintiff had met the required threshold for the grant of interlocutory relief, namely, that there was a fair issue to be tried, that damages would be an inadequate remedy to her and that the balance of convenience favoured the grant of relief sought.

Reporter: P.C.

AMERICAN CYANIMID CO v ETHICON LTD 1975 2 WLR 316

CAMPUS OIL LTD & ORS v MIN INDUSTRY & ENERGY & ORS (NO 2) 1983 IR 88

HILL v CA PARSONS & CO LTD 1972 1 CH 305

PHELAN v BIC (IRL) LTD 1997 ELR 208

SHORTT v DATA PACKAGING LTD 1994 ELR 251

CARROLL v BUS ATHA CLIATH (DUBLIN BUS) 2005 4 IR 184 2005 ELR 192 2004 6 1392

MAHA LINGHAM v HEALTH SERVICE EXECUTIVE 2006 ELR 137

NAUJOKS v NATIONAL INSTITUTE OF BIOPROCESSING RESEARCH & TRAINING LTD 2007 ELR 25

EVANS v IRFB SERVICES (IRL) LTD 2005 2 ILRM 358

FOLEY v AER LINGUS GROUP PLC 2001 ELR 193

FENNELLY v ASSICURAZIONI GENERALI SPA & ANOR 1985 3 ILTR 73

INDUSTRIAL YARNS v GREENE 1984 ILRM 15 1983 2 526

VINE v NATIONAL DOCK LABOUR BOARD 1957 AC 488

BARBER v MANCHESTER REGIONAL HOSPITAL BOARD & ANOR 1958 1 WLR 181

PARSONS v IARNROD EIREANN 1997 2 IR 523 1997 ELR 203

JUDGMENT of

Mr. Justice John Edwards

1 delivered on Tuesday the 18th September, 2007.

2 This is an application by the plaintiff for injunctive relief on an interlocutory basis.

3 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 15^th 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.

4 The terms of the plaintiff's contract of employment with the defendant are contained in the letter of 15^th 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 1^st September, 2006.

5 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

6 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

7 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.

8 You will be entitled to such days off as are designated as public holidays."

"11. Knowledge of Rules/Regulations

9 You are required to familiarise yourself with and strictly abide by the following procedures:

a a. Grievance and Disciplinary Procedures (appendix 2)

b b. Health and Safety and Welfare Procedures

c c. Company Policies."

"17. Termination of EmpIoyment

10 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."

11 It is also appropriate that I recite in full for the purposes of the judgment the contents of Appendix 2 to the letter of 15^th August, 2006."Appendix 2DISCIPLINARY PROCEDURES

12 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.

13 The following procedure shall be observed in matters of discipline.

STAGE ONE - VERBAL WARNING

14 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

15 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

16 If the employee standard of work or behaviour does not improve despite use of Stages One and Two...