Mc Carthy (plaintiff) v Breeo Foods Ltd and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hanna |
| Judgment Date | 27 November 2009 |
| Neutral Citation | [2009] IEHC 524 |
| Court | High Court |
| Date | 27 November 2009 |
[2009] IEHC 524
THE HIGH COURT
BETWEEN
AND
RSC O.63A r1(A)(viii)
SHEEHY v RYAN & MORIARTY 2008 4 IR 258 2008/58/12111 2008 IESC 14
PARSONS v IARNROD EIREANN/IRISH RAIL 1997 2 IR 523 1997 ELR 203 1997/11/3548
WALLACE v UNITED GRAIN GROWERS LTD 152 DLR (4TH) 1
ADDIS v GRAMOPHONE CO LTD 1909 AC 488
DORAN v DELANEY & ORS (NO 2) 1999 1 IR 303 1999 1 ILRM 225 1998/17/6459
EMPLOYMENT
Dismissal
Contract of employment - Termination - Notice period - Damages - Whether failure to give reasonable notice of termination amounted to wrongful dismissal - Whether entitlement to bonus payments - Sheehy v Ryan [2008] IESC 14, [2008] 4 IR 258 applied ; Parsons v Iarnrod Eireann [1997] 2 IR 523; Wallace v United Grain Growers Ltd (1997) 152 DLR (4th) 1; Addis v Gramaphone Co. Ltd [1909] AC 493 and Doran v Delaney (No. 2) [1999] IR 303 considered - Relief granted (2008/1066P - Hanna J - 27/11/09) [2009] IEHC 524
McCarthy v Breeo Foods Ltd
Facts The plaintiff's claim is that he was wrongfully dismissed. The plaintiff maintains that following termination of his employments, he was entitled to at least six if not twelve months notice. He claims that he was entitled to bonus payments for the final fifteen months of his contract. All of the above claims are contested by the defendants. Extensive negotiations took place between the parties. The plaintiff sought the following reliefs; injunctions restraining the defendants from appointment any person to the plaintiff's position and from giving effect to the plaintiff's termination and a number of declaratory reliefs. The plaintiff sought damages for breach of contract and/negligence and/or breach of duty, damages for deceit and/or negligent misstatement and/or negligent misrepresentation and/or breach of warranty and/or contrivance, damages for loss of the plaintiff's legitimate expectation and costs.
Held by Hanna J. that the plaintiff was seeking was could be described as radical relief in the context of a case related to the termination of the plaintiff's employment, made an award of damages for the plaintiff €301, 479.00 to cover six month notice period and bonus payments that six month notice period would trigger.
Reporter: C O' C
Mr. Justice Hanna delivered on the 27th day of November, 2009.
The plaintiff describes himself in the statement of claim as a managing director and employee of the defendants or either ( sic) of them. He resides at Dromard, Clover Hill, Mallow, in the County of Cork. The defendants are component parts of the Dairygold group with the second named defendant being a holding company. The plaintiff alleges that, in or around May 2000, he entered into a contract of employment with the third named defendant for the position of site manager at Mallow, Co. Cork. He was subsequently requested by the third named defendant (and agreed to so do), to transfer his employment from the third named defendant to the second named defendant in or around June, 2006, as managing director of the first named defendant. He was thereafter employed by the second named defendant pursuant to a contract of employment in the position of managing director.
I think it important that I indicate the approach which I adopted in the hearing of these proceedings. In the plenary summons which the plaintiff issued on 8 th February, 2008, the following reliefs were claimed:-
1. A declaration that he is and continues to be the Managing Director of the first named Defendant company, (hereinafter referred to as "Reox").
2. A declaration that the plaintiff is entitled to payment of salary, annual bonus, payments under third named defendants First Executive Incentive Plan and payments under Reox's Put and Call Option Agreement of the 29 th day of May 2006.
3. A declaration that the purported termination of the plaintiff's aforementioned employment as embarked upon by the defendants on or about the 23 rd day of November 2007 is without efficacy in that it was unwarranted and in breach of the tenets of natural justice.
4. A declaration that the plaintiff has a legitimate expectation to payments of monies pursuant to the Put and Call Option Agreement of the 29 th day of May 2006.
5. A declaration that the defendants have acted mala fides in the selection for redundancy and treatment of the plaintiff.
6. A declaration that the defendants have been guilty of contrivance and mala fides in relation to the purported selection of the plaintiff for redundancy and failure to re-deploy him, which selection in reality was for the purpose of excluding the plaintiff from the said First Executive Incentive Plan and the Put and Call Option Agreement of the 29 th day of May 2006.
7. A declaration that the exclusion of the plaintiff from the said First Executive Incentive Plan and the Put and Call Option Agreement of the 29 th day of May. 2006 is wrongful and in breach of contract and furthermore is as a result of mala fides and self interest on the part of the executives of the defendants and will lead to enhanced sums for those persons who will now remain a part of the said Plan and Agreement.
8. An injunction restraining the defendants, or any of them, their servants or agents, from appointing or purporting to appoint any person other than the plaintiff to the plaintiff's position as Managing Director or from assigning the plaintiff's functions and duties to any person other than the plaintiff.
9. An injunction restraining the defendants, or any of them, their servants or agents, from giving effect to the purported termination of the plaintiff's employment.
10. An injunction restraining the defendants, or any of them, their servants or agents, from treating the plaintiff as other than continuing to be employed by the defendants.
11. An injunction requiring the defendants to pay the plaintiff's salary, bonus entitlements and payments under the Incentive Plan and Put and Call Option Agreement as they fall due until the trial of the action or until such further order as this Honourable Court may deem meet.
12. An injunction requiring the defendants to fund the preservation of the plaintiff's pension entitlements, life assurance and death in service benefits as maintained on the plaintiff's behalf by the defendants including an order requiring the continuing funding of same by the defendants to the trial of the action.
13. An order, if necessary, directing the defendants to make available an appropriate alternative position to permit access to the Fund and Bonus.
14. Damages for breach of contract and/or negligence and/or breach of duty.
15. Damages for deceit and/or negligent misstatement and/or negligent misrepresentation and/or breach of warranty and/or contrivance.
16. Damages for loss of the plaintiff's legitimate expectations.
17. Damages for breach of the mutual duty of trust and fidelity as between the plaintiff and the defendants.
18. Damages for misrepresentation and negligent misstatement to include punitive and/or exemplary damages.
19. The taking of an account of all monies due to the plaintiff in order for the payment of all monies so due.
20. Interest pursuant to Statute.
21. Further and other relief.
22. Costs.
As can be seen, the plaintiff was seeking what could rightly be described as somewhat radical reliefs in the context of a case related to the termination of the plaintiff's employment. An attempt had been made to have the case admitted to the Commercial Court list notwithstanding the provisions of order 63A, r. 4a (viii) which excludes proceedings in respect of any service provided under a contract of employment. This application was unsuccessful and the matter remained and came before me in the Chancery list. On the first day of the proceedings counsel for the defendants, Mr. Shipsey, S.C., complained that the relief sought was, in effect. unknown to the law and that the action was not founded in law. This was, he argued, a wrongful dismissal claim and the plaintiff was attempting to stray far beyond the constraints of potential reliefs available to him at common law. Notwithstanding the protestations to the contrary of Mr. Nesbitt, S.C., and in the absence of any persuasive authority to the contrary, I made an initial ruling in this matter accepting Mr. Shipsey's argument that this was, indeed, a wrongful dismissal claim. Breach of contract, inter alia, had been pleaded though it must be said that much of the pleadings were taken up with matters other than that. Certainly, nothing in the statement of claim specifies the amount of notice to which the plaintiff claimed that he was entitled. The substantive element of the claim advanced by the plaintiff is well described in the plaintiff's solicitor's certificate setting out the reasons why the matter should be listed in the Commercial Court list.
2 "1. The proceedings seek, inter alia, declaratory and injunctive relief and damages for breach of contract, negligence, breach of duty, deceit, negligent misstatement, negligent misrepresentation, breach of warranty, contrivance, loss of the plaintiff's legitimate expectations and damages for breach of the duty of trust and fidelity, following on the purported redundancy of the plaintiff in or around the 23 rd of November 2007 as a result of which the plaintiff is to be excluded from the defendant's First Executive Incentive Plan and from the Put and Call Option Agreement of the 29 th day of May 2006, which exclusion will lead to enhanced benefits for those persons who will now benefit from the said Plan and...
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