Kearney v Byrne Wallace
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE MICHAEL PEART |
| Judgment Date | 23 July 2019 |
| Neutral Citation | [2019] IECA 206 |
| Date | 23 July 2019 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2019] IECA 206 Record Number: 2018 16 |
[2019] IECA 206
THE COURT OF APPEAL
Peart J.
Peart J.
Whelan J.
McGovern J.
Neutral Citation Number: [2019] IECA 206
Record Number: 2018 16
Interlocutory injunctions – Jurisdiction – Redundancy – Appellant seeking interlocutory injunctions – Whether the High Court had jurisdiction to grant an injunction such as was sought in the proceedings
Facts: The plaintiff/appellant, Mr Kearney, by his notice of motion dated 10th October 2017, sought certain interlocutory injunctions, including restraining the defendant/respondent, Byrne Wallace, from dismissing and/or implementing his purported dismissal from his position as a solicitor in the firm, and requiring the firm to continue to pay his salary, pending the determination of the substantive issues in the proceedings. His application was refused by order 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 this appeal was whether, as found by the trial judge, the High Court has no jurisdiction to grant an injunction such as was sought in these proceedings where the appellant had been dismissed on the basis of an asserted redundancy, and where he asserted that the redundancy relied upon by the firm was a “sham”.
Held by Peart J that he was not satisfied that the appellant had made out a strong case upon which he might succeed at trial, and such that the Court was required to proceed to a consideration of the other factors that the Court would have to consider in order to grant the kind of injunction that the appellant sought, such as the adequacy of damages and the balance of convenience. Peart J held that the more arguable case was, as submitted by the respondent, that the appellant’s remedy on the facts of this case lay within the statutory framework provided by the Unfair Dismissals Act 1977 and the Redundancy Payments Act 1967.
Peart J held that he agreed with the reasoning and conclusions of the trial judge, and would dismiss this appeal.
Appeal dismissed.
By his notice of motion dated 10th October 2017 the plaintiff/appellant sought certain interlocutory injunctions, including restraining the defendant firm from dismissing and/or implementing his purported dismissal from his position as a solicitor in the firm, and requiring the firm to continue to pay his salary, pending the determination of the substantive issues in the proceedings. His application was refused by order 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 now appeals to this Court by way of notice of expedited appeal filed on 15th January 2018.
Before setting out the trial judge's reasons for refusing the appellant's application, it would be helpful to provide some factual background.
The appellant qualified as a solicitor in 1996, and took up employment with the defendant in August 2006 as an associate solicitor at a salary of €90,000 per annum, which was increased in 2008 to €100,000 per annum.
Unfortunately, the appellant has had to endure certain health difficulties. In 1996 he was diagnosed with bipolar mood disorder. He informed the firm about this prior to his taking up employment there in 2006. His illness has forced him to be absent from work for various periods since his employment commenced. For example, he was absent from 27th July 2010 until his return on the 5th September 2011 – some 13 months. Upon his return he was informed that his salary was reduced to €60,000 per annum. The firm maintain that this reduction was in line with reductions made to salaries of other employees caused by the downturn in the economy since 2008. The appellant on the other hand maintains that the cuts made to others were not as great as the reduction of €40,000 made to his salary. He also referred to the fact that other employees' salaries have been restored in more recent times, whereas his remained essentially unchanged, save for a modest increase of €5,000 in April 2013.
In July 2013 the appellant was again absent from work until November 2015 – an absence of some 27 months. He continued to be paid during this period in accordance with the firm's sick pay policy, and his salary was not further reduced.
Following his return to work in November 2015 the appellant had an unpleasant disagreement with a superior staff member in relation to the apportionment of a fee for the presentation of a paper that he had prepared, and he accepts that he was rude to that person on that occasion.
The appellant took annual leave on 5th May 2016, and was given an additional period of unpaid leave until the 27th May 2016. It appears that during that period the firm requested that the appellant attend an independent medical practitioner for an assessment of his fitness for work. That assessment concluded that he was fit for work, and the appellant's own psychiatrist also agreed that he was fit for work.
The appellant requested on several occasions to be allowed to return to work, but he says that these requests were ignored. He engaged a firm of solicitors to write to the firm in relation to his request to return to their employment, and eventually the appellant instituted plenary proceedings (not the present proceedings) in which he sought, inter alia, a declaration that he is and continues to be a solicitor employed by the firm, and that the firm was required to provide them with work to do. Those proceedings also sought an order directing the firm to pay him at the same rate of remuneration as an appropriate comparator who, unlike him, does not suffer from a disability. Those earlier proceedings have proceeded to the extent that a statement of claim and defence have been delivered, but they have not been heard and determined.
The appellant experienced certain difficulties in obtaining certain payslips and a P60 for 2016 as averred by him in his affidavit sworn on the 29th September 2017. He engaged the assistance of the Workplace Relations Commission and also of his solicitors in relation to that difficulty, and in due course these documents were furnished by the firm on the 31st July 2017. There was also a difficulty about which he complained because his practising certificate was not renewed by the firm for the year 2017. Those difficulties are dealt with in the affidavits.
The present proceedings were commenced on 2nd October 2017 some weeks after the appellant had received a letter from his employer dated 28th August 2017. This letter set out in some detail a history of relevant events, and concluded with the following paragraph:
‘Having conducted a review in relation to your position, it is clear that your previous role is not available and in fact it no longer exists. We have examined other possibilities but unfortunately we are unable to identify another suitable role for you within the firm having regard to your expertise and experience. We therefore, and with regret, have no option but to regard your role as redundant with immediate effect. We will arrange to pay your statutory contractual entitlements together with a payment in lieu of two months' notice as per your contract of employment and will arrange for a member of our HR team to contact you to progress this.’
The appellant disputes that a genuine redundancy situation existed, and considers that the work he was previously doing continues to be done at the firm, and has asserted in addition that the firm is actively recruiting as of the date of swearing of his said affidavit.
In his proceedings the appellant seeks a number of declarations, including that the termination of his employment is null and void; that he continues to be employed by the firm; and that they are obliged to provide him with work to carry out. He also seeks a declaration that his position as an associate solicitor is not redundant, and in addition, various injunctive reliefs, as well as damages under various headings including aggravated and/or exemplary damages for breach of contract, negligence, breach of duty and so forth.
As already stated, this application for interlocutory injunctive relief was directed towards obtaining an interlocutory injunction to restrain his purported dismissal pending the determination of the substantive proceedings and an order directing the firm to pay his salary, expenses, and bonuses as they fall due and pending the determination of the substantive issues.
In her judgment the trial judge set forth an uncontroversial summary of the background facts, which reflect in large measure the summary which I have set forth above. She also referred to the contents of the statement of claim delivered by the appellant. In that regard she stated the following at paras. 9 and 10 of her judgment regarding the appellant's claims:
‘9. 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 the circumstances do not exist to justify his dismissal on the 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...
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