Lonergan v Salter Townsend and Others

JurisdictionIreland
JudgeMrs Justice Macken
Judgment Date09 February 1999
Neutral Citation[1999] IEHC 205
CourtHigh Court
Date09 February 1999
Docket NumberNo. 1998 13005P

[1999] IEHC 205

THE HIGH COURT

No. 1998 13005P
LONERGAN v. SALTER TOWNSEND & ORS

BETWEEN

DAVID LONERGAN
PLAINTIFF
-AND-
GEORGE SALTER-TOWNSHEND, THE IRISH COUNCIL FOR PEOPLE WITH DISABILITIES AND THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM
DEFENDANTS
Abstract:

Employment — Injunctive relief sought — Interlocutory stage — Plaintiff Chief Executive Officer of second defendant — Plaintiff's position terminated — Plaintiff seeking reinstatement and resumption of payment of salary — Whether plaintiff actually appointed as CEO of second defendant — Whether plaintiff engaged pursuant to contract of employment — Whether plaintiff was of probationer status — Whether agreement can be enforced against unincorporated body — Whether fair issue to be tried — Whether damages adequate remedy for plaintiff — Whether special principles apply when injunctive relief is sought in employment cases — Whether plaintiff would suffer irreparable loss if salary discontinued pending trial of action — Whether plaintiff should be reinstated when third defendant has appointed steering committee to carry out management business of second defendant.

The Court was satisfied that there was a fair issue to be tried in this case as to whether the alleged agreement could be enforced against an unincorporated body and as to whether the plaintiff was engaged under a contract of employment with probationer status. Further, the plaintiff had established that he would suffer irreparable loss and damage if his salary was stopped pending the trial of the action. The High Court so held in ordering the second defendant to continue to pay the plaintiff's salary and directing that the plaintiff may be requested by the appointed steering committee to carry out work ordinarily done by a Chief Executive Officer.

1

JUDGMENT of Mrs Justice Macken delivered on the 9th day of February. 1999

2

This is an application by the Plaintiff for interlocutory relief in which the Plaintiff seeks the following, namely reinstatement into the post of Chief Executive Officer of the Second Defendant, the resumption of payment of his salary from the purported termination date and an injunction to restrain the second and third Defendants from appointing any other person to the post of Chief Executive Officer, all pending the hearing of the action.

3

Effectively the Defence of the second Defendant at interlocutory stage, is that there is no fair issue to be tried, on the basis (a) that the Plaintiff was never appointed to the post of Chief Executive Officer of the second Defendant, (b) that the relationship which he had with the second Defendant was that of Consultant, paid on a week to week basis, (c) that that Consultancy was terminated lawfully, (d) that even if he had a different status he was a probationer, (e) that as such a probationer the second Defendant was entitled to terminate or the second Defendant in relation to the Plaintiff's probationary employment to be bound by the Rules of Natural or Constitutional Justice insofar as these relate to prior notice, or an opportunity to be heard, etc.

4

The third Defendant, who effectively funds the operation of the second Defendant, at this stage points to the fact that, regardless of whether or not the Plaintiff establishes a fair issue to be tried, the third Defendant has put in place a Steering Committee which is in fact carrying on the Management Business of the second Defendant (including the business previously carried on by the Chief Executive Officer), and that it would not be in the interests of the second Defendant to have the Plaintiff reinstated in those circumstances. Both the second and the third Defendants in any event say that damages are an adequate remedy.

5

In order to understand the strength of the arguments made by all of the parties, it is necessary to set out the background to this dispute. Before I set that out however, I should say that the First Defendant was Joined by the Plaintiff to represent the second named Defendant, and I will return to this matter in due course, since it too forms part of the claims in the Notice of Motion served by the Plaintiff.

6

The second Defendant is a Council, effectively representing a number of voluntary bodies throughout the Country, and established to look after and promote awareness of disablement in the population, and the interests of disabled persons. It is not unlike a number of other Councils set up or established to promote interests of particular segments of the community, but it does not have the status of an incorporated body established pursuant to statute. It is funded by voluntary donations, but substantially by subvention from the third named Defendant as part of a programme, to ensure that the interests of this particular segment of the community are promoted.

7

There is a Board of the Council. I do not know the exact membership of the Board. It is clear from Minutes of certain Board Meetings that certain other persons appear to have observer status at Board Meetings, not always having a vote (although on some occasions they do appear to have voted).

8

In 1997 the second Defendant, through an outside recruitment agency, advertised the post of Chief Executive Officer. The Plaintiff was among those who applied for the position but was, at that time, unsuccessful. It appears to be common case that he was ranked next to the successful candidate at the time. The successful candidate was then appointed to the post of Chief Executive Officer. The position did not work out. From September of 1997 the Plaintiff kept in touch with the then Secretary of the second Defendant who in April 1998 asked the Plaintiff if he would be interested in taking on the position of Chief Executive Officer when it became vacant in May. He indicated that he would.

9

The Plaintiff gave evidence (and this is not disputed) that when he was asked if he would commence work in May of 1998, he was studying and requested that this be postponed until July of 1998, but was told that he would have to start immediately. He therefore agreed to do so, and it appears to be common case that he started work in or around the 22 May 1998. He was told verbally that he would enter a consultancy arrangement initially for a period of six weeks, and the second Defendant has exhibited a letter addressed to the Plaintiff (which the Plaintiff does not recall receiving) which supports his understanding. I do not at present find anything of significance in the fact that the letter was written but not apparently received.

10

The Plaintiff was set certain tasks which he appears to have set about complying with in the initial period and at the same time a draft contract was prepared by the second Defendant's legal advisors. This was prepared in a most timely manner by the Solicitors, and was sent with a letter from the Defendant's Solicitors also dated the 22nd May to the then Secretary of the Council, under cover of a private and confidential letter. The Solicitors suggested, again quite correctly, that there might be certain additional terms which the Council or the Plaintiff or other Members of the Board might wish to insert.

11

No such suggestions were made by any Member of the Board, or by the Secretary, or indeed by the Plaintiff, and therefore no second draft became necessary. Rather, the agreement was sent to the third Defendant, for its approval, some time in June 1998. It was eventually returned by the third named defendant, approved, some time in September, 1998 or perhaps late August. In the meantime it would appear that the Plaintiff continued to be paid the same amount of money as he had been paid pursuant to the consultancy arrangement which existed from the 22nd May 1998.

12

Before I turn to consider other matters relating to the claim. I should point out some of the salient features of the Agreement as drafted and approved by the third Defendant, but before doing so, I draw attention to the fact that on the 13th June, when the Board met and considered, inter alia, the Agreement, it was decided that Board Members would have an opportunity of objecting to the terms of the Agreement within seven days of the agreement being received by them. It is unclear whether this was to be after it had been approved by the third Defendant or prior to that, but since the third Defendant's approval appears to be key (being the pay master), I think the Agreement would first have to have the approval of the third Defendant. However I do not have to reach a concluded view on this point, but this appears to me to be a logical sequence.

13

The salient features of the Agreement as originally drafted, and which are relevant to a consideration of the matters before me, include the following:

14

1. It is expressed to be made between the Irish Council of People with Disabilities, who is described as "the employer" and the Plaintiff, who is described as "the executive";

15

2. It provides for a probationary period of "approximately" five months. But what is important in the context of the probationary period is that the Consultancy period is, under Clause 2.2 of the Agreement, to be "reckoned" as part of the probation period.

16

3. According to the same clause 2.2, if the Agreement is extended after the probationary period, then the Agreement continues for a period of two years.

17

4. Under the duties imposed, the Plaintiff is obliged to obey the reasonable directions of the Board. There is no mention in Clause 3.3 of a Management Committee, but the Plaintiff is to be answerable under Clause 3, in effect, to the Chairman (Clause 3.1.6) presumably so that the Chairman in turn can report fully to the Board.

18

5. Combined with the Terms of Clause 8 of the Agreement, the Plaintiff clearly was to report directly to the Board, and was to liaise with the Chairman.

19

6. The payment scheme under the Agreement was to be at £47,000...

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