Employment injunctions: an over-loose discretion

AuthorPeter Charleton
PositionJudge of the High Court. This is the text of a lecture given at the National Judicial Conference, Dublin Castle, 20 November 2009
2009] Employment Injunctions 1
My interest in this topic developed as a result of my
experience of doing the Chancery No. 2 list in the High Court.
On almost every Monday there were a few employment
injunction applications.1 Typically, over the previous week or
two, someone will have been dismissed from their employment,
or purportedly made redundant, a process of sorts would have
been gone through, and the party dismissed would seek to be
reinstated immediately, on full pay. This was often against the
background of where it was either a small company where the
parties were at loggerheads with each other, or where allegations
of dishonesty were focused on the ex-employee seeking the
injunction. The case law that was continually cited seemed to me
to be lacking in clarity overall. I felt I was thus being called upon
to exercise judgment where the legal principles were so uncertain
as to leave that discretion insufficiently certainly grounded in law.
That continues to be my view. I think that the lack of clear legal
principles in dealing with what are essentially business
relationships puts too wide a variation on the nature of the
potential orders that may be made, or may be refused, in these
cases. A sense of urgency informed my suggestion that this topic
should be further debated upon. This was because of a case that
happened just before last Christmas. During the week before that
particular Monday morning Chancery motion list, a dismissed
employee had sought, and had obtained, an interim ex parte
injunction requiring his employers to accept him back at work,
* A Judge of the High Court. This is the text of a lecture given at the National
Judicial Conference, Dublin Castle, 20 November 2009.
1 I would like to thank Orla Veale-Martin for research assistance into the
relevant authorities.
Judicial Studies Institute Journal [2009:2
with liberty given for short service of a notice of motion seeking
that, and other, injunctive relief for the Monday on which I was
sitting. The employer did not like the order made. In fact, over the
weekend, the employer had gone to the office and changed all of
the locks. In addition, computer access to the dismissed employee
was blocked. On arriving at the office expecting, apparently, to
work cheerfully with those who had just dismissed him for
misconduct in the context of what was alleged to be a disgraceful
lack of fair procedures, his way was barred. He then sought, not
only an interlocutory injunction, but to lock up his ex-employers
for contempt of court. I do not know what happened to the case.
It was adjourned on the basis that the employer had to put in
replying affidavits. The blithe notion that an employment
relationship could continue in circumstances where the parties
manifestly distrusted each other, and where one was now seeking
to lock up the source of his employment in Mountjoy jail, struck
me as ironic.
Because of that case, and because of a number of other
encounters with this form of injunction, the following questions
occurred to me: has the notion of personal service been so
completely removed from the law, that we expect people who
have had a serious falling out, resulting in sacking, to continue to
work together under court order, and under threat of contempt,
as if they were emotionless computers? By what standard is an
employment injunction to be judged, it being, of its essence,
an order to reverse a sacking? What are the range of options that
are open to the court in making such an order? Is there any
certainty as to what fair procedures means within the context of
ending an employment relationship; this being the ground on
which most injunction applications are launched? Is the equitable
jurisdiction a usurpation of the statutory jurisdiction given by law
under the Unfair Dismissals Acts, 1977 to 2007; and is the
availability of that alternative remedy a bar to the grant of
injunctive relief? Why is an interlocutory injunction possible in
circumstances of an employment contract, when the court at full
hearing never grants a permanent or perpetual injunction?

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