Grenet v Electronic Arts Ireland Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Tony O'Connor
• Judgment Date: 21 December 2018
• Neutral Citation: [2018] IEHC 786
• Docket Number: [2018 No. 10641 P.]
• Court: High Court
• Date: 21 December 2018

[2018] IEHC 786

THE HIGH COURT

O'Connor Tony J.

[2018 No. 10641 P.]

BETWEEN

JEAN-PHILLIPPE GRENET

PLAINTIFF

AND

ELECTRONIC ARTS IRELAND LIMITED

DEFENDANT

Termination of employment – Interlocutory injunctive relief – Contractual rights – Plaintiff seeking interlocutory injunctive relief – Whether the plaintiff had established that his contractual rights were compromised

Facts: The manner by which the defendant, Electronic Arts Ltd, sought to terminate the employment of the plaintiff, Mr Grenet, and to avoid handling damage to the reputation of the plaintiff by virtue of actions taken ostensibly on its behalf led to an application to the High Court for interlocutory injunctive relief.

Held by O’Connor J that the the plaintiff had established a prima facie case that his contractual rights for a proper investigatory, disciplinary and appeal process were compromised.

O’Connor J held that the court would make the following orders: (i) an interlocutory order requiring the defendant to pay the plaintiff’s salary and emoluments as they fall due pending further order at the trial of the proceedings; (ii) an interlocutory injunction restraining the defendant from recruiting or hiring or appointing any person to replace the plaintiff or to fill the role of senior director, global service delivery and EA Ireland Site Lead pending further order at the trial of the proceedings; (iii) an order directing the plaintiff to deliver the statement of claim within such time as O’Connor J would hear counsel about and for the defendant to deliver its defence; and (iv) an order giving liberty to the parties to apply upon 48 hours’ notice sent by email, confirmed by telephone message and sent by letter to the court in respect of any further interlocutory relief as may be necessary prior to the determination of the plaintiff’s claim at a plenary hearing.

Application granted.

JUDGMENT of Mr. Justice Tony O'Connor delivered on the 21st day of December, 2018

Introduction

1 The manner by which the defendant has sought to terminate the plaintiff's employment and to avoid handling damage to the reputation of the plaintiff by virtue of actions taken ostensibly on its behalf has led to this application for interlocutory injunctive relief.

History

2 The plaintiff, who is a French national, has held senior managerial roles in Microsoft and Hewlett-Packard among other corporations. He is a graduate in Computer Science and Electronics from École Supérieure d”Électronique de l'Ouest in Angers, France. He conducts business with a reasonably good command of English whenever required.

Job Title

3 Under the heading ‘ Job Title and Duties’ in the Employment Agreement prepared by the defendant and ‘ made’ on Thursday, 28th June, 2018, (‘ the contract’) the plaintiff was appointed:-

‘Senior director of Global Service Delivery and EA Site Lead reporting to John Pompei …’

Undisputed for this Application

4 The defendant has chosen not to dispute, for the purposes of this application at least, the account of the plaintiff relating to or leading to:-

(i) the motivation and integrity of Ms. Tracy Simmons (a director of Electronic Arts Inc (‘ EA’) in Austin, Texas, USA, who had reported to the plaintiff) in making a complaint about an inappropriate comment of the plaintiff during her one-on-one video conference (slack) call on 9th November, 2018; and

(ii) the unapologetic, unexplained and unilateral withdrawal by the defendant on 10th December, 2018, of its investigatory, disciplinary and appeal process accompanied by its withdrawal of the termination letter dated 14th November, 2018.

Court Order, Friday, 6th December

5 On Friday, 6th December, 2018, Allen J., pursuant to the ex parte application of counsel for the plaintiff, restrained the defendant, until the hearing of the interlocutory injunction application, from:-

(i) taking any further step to implement the purported dismissal communicated to the plaintiff on 14th November, 2018; and

(ii) appointing any other person to the plaintiff's role as described above.

Monday, 10th December, 2018

6 Over the weekend something occurred for the defendant which may be reviewed at the plenary hearing of these proceedings. A letter dated 10th December, 2018, (which failed to identify the plaintiff as a director of the defendant when letters prior to the plaintiff's dismissal had so shown) was signed by Mr. Pompei. It was sent to the defendant at his family home in Galway which he had rented for two years upon the commencement of his employment in July 2018. The letter is worth quoting in full because it forms the basis of the ‘ cynical and unedifying’ criticism of the plaintiff in seeking to ‘ …have his good name, reputation, contractual and constitutional rights vindicated’ as alleged by solicitors for the plaintiff in their reply of 11th December, 2018:-

‘Dear Mr. Grenet,

We refer to the letter of termination of employment dated 14th November, 2018, and the proceedings served on the company by your solicitors. We note the Orders made by Mr. Justice Allen on 6th instant, on foot of an ex parte application, restraining the company from taking any further steps to implement that dismissal or from appointing any other person to your role. In light of what follows, we respectfully request that both orders be vacated.

Please note that with immediate effect, this letter of termination is withdrawn. The company will not be proceeding further in respect of the matters dealt with therein and instead gives notice of termination in accordance with your contractual entitlements pursuant to Clauses 12 and 14 of your employment contract.

You have been reinstated to the payroll with effect from the date of termination and the company will discharge any salary and other emolument to you from the period of 14th November, 2018 to date. The company's solicitor have written separately to yours confirming our agreement also to discharge your legal costs (on a party and party basis) in the proceedings bearing record number 10461P 2018, same to be taxed in default of agreement.

The company does not require you to work your notice and accordingly has determined to pay you in lieu same. Payment of the relevant sums will be made directly to your bank account on the next scheduled pay date but with immediate effect you have been restored to payroll.

Subject to agreement in respect of the continued protection of the company's confidential information it is prepared to waive its entitlement to rely on post termination restrictions.

Yours faithfully

John Pompei

Head of Player Experience Operations.’

Changing Tack to No Fault Termination

7 Counsel for the defendant referred to the following cases in his submission that the defendant could abandon the earlier process and dismissal to opt for the no-fault dismissal provision in accordance with Clause 14 of the contract:-

(i) Orr v. Zomax Ltd [2004] 1 I.R. 486 – High Court interlocutory injunction, Carroll J. (‘ Orr’);

(ii) Maha Lingham v. Health Services Executive [2006] 17 ELR 140 – Supreme Court appeal from interlocutory injunction refusal, Fennelly J. (‘ Maha Lingham’);

(iii) Sheehy v. Ryan [2008] 4 I.R. 258 – Supreme Court appeal from plenary hearing, Geoghegan J. (‘ Sheehy’);

(iv) Carroll v. Bus Átha Cliath/Dublin Bus [2005] 4 I.R. 184 – High Court interlocutory injunction, Clarke J. (‘ Carroll’);

(v) Bradshaw v. Murphy [2014] IEHC 146 – High Court interlocutory injunction, Finlay Geoghegan J. (‘ Bradshaw’); and

(vi) Hughes v. Mongodb Limited [2014] IEHC 335 – High Court interlocutory injunction, Keane J. (‘ Hughes’);

Suggested Principles

8 Counsel for the defendant submitted that the following principles can be extrapolated from those cases:-

‘(i) a contract of employment can be terminated lawfully as a matter of contract and common law by the giving of notice outside of the reason of stated misconduct;

(ii) no implied contractual terms undermine the foregoing;

(iii) an employer can lawfully terminate the employment post an earlier dismissal provided the terms of the contract are complied with by way of a no fault dismissal and the reason for the dismissal is not misconduct or justified by misconduct; and

(iv) an earlier adverse determination against an employee can be withdrawn or not relied upon in a no-fault dismissal by way of termination on contractual notice, is lawful and will not be restrained.’

9 Counsel further stated that his client is ‘ being goaded into reopening’ the process and that there is no authority for the proposition that another party can compel performance of a contract to invoke the disciplinary process.

Plaintiff's Contractual Right

10 Counsel for the plaintiff emphasised the contractual right under Clause 21 of the contract to the grievance and disciplinary procedure. He submitted that the Court must conclude from the failure to give a reason for the termination that the no-fault termination was cloaked ‘ in new and relatively see-through clothes’.

11 Counsel explained how Orr related to redundancy, Maha Lingham related to a lack of funding, Sheehy related to an alleged job for life, Carroll concerned a dispute about alternative work, Bradshaw involved an alleged partnership and Hughes related to alleged poor performance. This is very much a summary but it allows one appreciate the distinguishing feature of the plaintiff's circumstances. Whatever about those summarised comparisons, it is this Court's impression that any plenary trial of these proceedings will indeed involve a set of circumstances that have not been addressed in those cited cases. Can an employer who alleges and acts upon harassment-type complaints to the point of termination of employment abandon same to avail of a...