Kearney v Byrne Wallace
| Jurisdiction | Ireland |
| Judge | Ms. Justice Baker |
| Judgment Date | 28 November 2017 |
| Neutral Citation | [2017] IEHC 713 |
| Court | High Court |
| Docket Number | [2017 No. 8798 P.] |
| Date | 28 November 2017 |
[2017] IEHC 713
THE HIGH COURT
Baker J.
[2017 No. 8798 P.]
Employment – Breach of contract – Dismissal from services – Redundancy – Injunction – Jurisdiction – Unfair Dismissal Act 1977 – Common law remedy
Facts: The plaintiff sought an order for an injunction for restraining the defendant from dismissing the plaintiff from his employment position as an associate solicitor. The plaintiff also sought an order to the effect that the defendant should have continued to pay his salary pending the trial of action. The defendant argued that the Court had no jurisdiction to entertain the present application as the appropriate forum to deal with the present matter would be the one prescribed under Unfair Dismissal Act 1977. The plaintiff argued that he was not asking any relief pertaining to the unfair dismissal. The plaintiff averred that he was seeking declaratory relief for breach of contract under the original jurisdiction of the High Court.
Ms. Justice Baker refused to grant the injunction to the plaintiff. The Court held that the plaintiff's claim in real pertained to an unfair dismissal by reason of unfair selection for redundancy. The Court pointed out that the claim, as pleaded, would fall under the Unfair Dismissal Act 1977 for which the procedures to deal with such claims were defined. The Court further held that the plaintiff had failed to establish a strong case warranting an injunction. The Court followed the judgment of Laffoy J. in Nolan v. Emo Oil Services Ltd [2009] IEHC 15 in the present case.
The plaintiff is a solicitor and was employed as an associate solicitor in the defendant legal firm since 23rd August, 2006. He was absent from work due to ill health for periods of time until he was served with written notice dated the 28th August, 2017, by which the firm purported to make him redundant.
This judgment is given in an application by the plaintiff for an injunction restraining the defendant from dismissing and/or implementing the purported removal of him from his position as an associate solicitor and for an order that the defendant firm continue to pay his salary and other emoluments pending the trial of the action.
The plaintiff qualified as a solicitor in 1996 and has worked for Byrne Wallace, a firm of solicitors with offices in Dublin, since 2006, working at all times in its healthcare department. The terms and conditions of employment were set out in a written letter furnished to the plaintiff on the 23rd August, 2006, at the commencement of his employment.
The plaintiff suffers from bipolar mood disorder and, while he had successfully managed his condition, he has from time to time needed to take time off work as a result of ill health caused by the symptoms of the disorder and the side effects of his prescribed medication. His evidence is that, before he took up his employment with the defendant firm, he apprised them of the nature of his illness.
In late 2011, the plaintiff's basic salary was reduced from €100,000 per annum to €60,000 per annum. The plaintiff concedes that this happened at a time when the recessionary forces in the economy impacted on the firm and he knew that pay cuts were imposed on other associate solicitors at or around that time. The plaintiff complains however that, while the salary of his co-workers has been restored or substantially restored, the firm only agreed to a modest increase for him of €5,000 a year in April, 2013 and that his salary remains at a level that he argues is unjustified.
The plaintiff took a long period of sick leave from July, 2013 until November, 2015 and the firm continued to pay his salary during that period of absence in accordance with the firm's sick pay policy. The plaintiff had another short period of unpaid leave in May, 2016 and was later assessed by a doctor appointed by the defendant firm, who agreed that he was fit to return to work.
However, the plaintiff was not re-engaged at that time and he has since instituted proceedings bearing Record No. 2016/ 11077P, in which he seeks relief that, inter alia, the defendant firm permit the plaintiff to return to work as a solicitor at a rate of pay commensurate to that of other employees doing similar work and a declaration that he is and continues to be employed at the defendant firm and that he is entitled in that context to be provided with work to do.
That action has not yet come on for hearing and the plaintiff also seeks an order that the proceedings be heard together, simultaneously or sequentially.
The present proceedings relate to the letter of the 28th August, 2017, by which the defendant firm purported to terminate the employment of the plaintiff on account of redundancy. The statement of claim (at para. 21) pleads that the letter wrongly and in repudiatory breach of contract purported to declare the plaintiff's position to be redundant. It is pleaded that the actions of the defendant firm are ‘carefully contrived’ and that circumstances do not exist to justify his dismissal on grounds of redundancy. Paragraph 25 of the statement of claim contains a plea that the functions and responsibilities with which he was formerly engaged continue to be performed in the firm in a manner similar to that performed by him and that the defendant firm continues to recruit solicitors, who hold similar or less impressive qualifications and experience than those of the plaintiff, to carry out that work.
The claim is pleaded broadly that the termination is null and void and a declaration is sought that the position of the plaintiff in the defendant firm as an associate solicitor ‘is not redundant’. Damages are sought for breach of contract, breach of warranty and/or breach of statutory duty.
The plaintiff argues there is no genuine basis that would give rise to the redundancy that the defendant firm seeks to impose upon him. He argues that no denial is made that the plaintiff has a wide range of skills and expertise in diverse roles within the firm. The parties agree that the relevant threshold test for the making of a so-called ‘employment injunction’ is that set out by the Supreme Court in Maha Lingam v. HSE [2005] IESC 89, which states that a party seeking injunctive relief that is mandatory in substance and form should have a ‘strong and clear case’.
The plaintiff says that he meets this test, that the test in Maha Lingam is not intended to be prohibitively difficult and that the characterisation of the threshold by the defendant is unduly onerous.
Further, he argues that he is a fully qualified and experienced solicitor, and that the defendant has not denied that he has general legal skills which could be deployed elsewhere within the firm.
The defendant argues that the plaintiff has not been unfairly selected for redundancy, nor is the redundancy contrived or a sham.
I do not accept the argument of the plaintiff that the factual basis for his submission that the redundancy is a sham have not been materially contradicted in the affidavit evidence, and the replying affidavits taken together do point to a factual dispute which cannot be resolved at the present stage, but the existence of which makes it more difficult for the plaintiff to establish a strong, arguable case.
The primary issue in the hearing was one of jurisdiction. The defendant argues that no right of action exists at common law arising from an alleged unfair selection for redundancy and that the cause of action derives from the statutory redress scheme established by the Redundancy Payments Act 1967 (as amended) and the Unfair Dismissal Act 1977. The defendant argues therefore that the claim is properly one to be determined in the forum designated by legislature, by reference to the legislative criteria and in the context of the legislative test.
The defendant points to the fact that no express clause in the written contract of employment is alleged to have been breached by the firm.
The plaintiff denies that the claim is properly characterised as a claim for unfair dismissal or a claim for damages or reinstatement under the Unfair Dismissal Act or the Redundancy Payments Act and that the pleaded claims invoke the original jurisdiction of the High Court because it seeks declarative and mandatory relief and that the claim is not a claim that the plaintiff was...
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Kearney v Byrne Wallace
...of the High Court dated 21st December 2017 (Baker J) for the reasons explained in a written judgment delivered on 28th November 2017 ([2017] IEHC 713). The appellant appealed to the Court of Appeal by way of notice of expedited appeal filed on 15th January 2018. The question at the heart of......
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Power v Health Service Executive
...element of the plaintiff's claim.’ 67 The last case in this line of authority to which I was referred was Kearney v. Byrne Wallace [2017] IEHC 713. The plaintiff, a solicitor, sought an interlocutory injunction restraining his dismissal by reason of what he argued was a contrived redundanc......