Mullarkey v Irish National Stud Company Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 30 June 2004
• Neutral Citation: [2004] IEHC 116
• Docket Number: No. 9728 P/2004
• Court: High Court
• Date: 30 June 2004

[2004] IEHC 116

THE HIGH COURT

No. 9728 P/2004

MULLARKEY v. IRISH NATIONAL STUD COMPANY LTD

BETWEEN

PATRICK MULLARKEY

PLAINTIFF

and

THE IRISH NATIONAL STUD COMPANY LIMITED

DEFENDANT

Citations:

CHARLTON V HH THE AGA KHANS STUDS SOCIETE CIVILE 1999 ELR 136

TERMS OF EMPLOYMENT INFORMATION ACT 1994 S3

Abstract:

Employment law - Injunction - Entitlement to sick pay - Contract - Implied terms - Balance of convenience - Whether damages adequate remedy - Whether plaintiff entitled to sick pay - Terms of Employment (Information) Act, 1994.

Facts: The plaintiff had been employed with the defendant for a number of years as farm and tourism manager. However there had been a deterioration in working relations between the plaintiff and the Chief Executive of the defendant. At some stage new proposals relating to the management structure had been put forward which the plaintiff saw as an attempt to demote him. The plaintiff instituted proceedings seeking a number of injunctions regarding the new proposals. Thereafter the plaintiff was absent from work due to illness and the present judgment concerned the entitlement of the plaintiff to pay whilst on sick leave. The defendant claimed that the only entitlement the plaintiff had was to pay for the first 13 weeks and thereafter payment of salary should cease.

Held by Mr. Justice Kelly in finding in favour of the plaintiff. On balance the plaintiff had made out a fair case that sick pay in the context of a management employee was payable for a reasonable time which was in excess of 13 weeks. Given the plaintiff worked in the public sector the norm would be that the plaintiff would receive full pay for 26 weeks with a reduction to half pay for the 26 weeks thereafter. Given the plaintiff’s family circumstances damages would not be an adequate remedy and the balance of convenience was in favour of granting the injunction with regard to pay.

Reporter: R.F.

JUDGMENT of

Mr. Justice Kelly

delivered the 30th day of June, 2004

1 The plaintiff has been an employee of the defendant for the last 25 years. He began his career with the defendant as farm manager. He was given a letter of appointment which dealt with many of the terms and conditions which one would expect to find in such a document, but no mention was made of any entitlement to payment whilst on certified sick leave.

2 The letter of appointment pointed out that the pension and life assurance scheme for which the plaintiff was eligible was a State scheme. That is not surprising since the defendant operates in the semi-state sector although an independent commercial entity.

3 The letter of appointment is the only written contract of employment ever received by the plaintiff.

4 In 1994 the plaintiff was promoted to the post of farm and tourism manager. He was furnished with a document setting out the management structure which was to apply from that time on.

5 The plaintiff alleges that from the time of his promotion his formerly good working relationship with the chief executive of the defendant, a Mr. John Clarke, began to deteriorate. That process of deterioration has gone from bad to worse over the years.

6 So serious did the situation become that the defendant retained the services of an independent facilitator to try and resolve the breakdown in the relationship between the plaintiff and its chief executive.

7 The facilitator, a Mr. O'Connell, investigated the matter and issued a report in January 2002. He reviewed the many areas of conflict and difficulty between the plaintiff and Mr. Clarke. Having reviewed them he said the following:-

"This in turn is how the present state of affairs has come about. As a result Pat Mullarkey has suffered complete loss of morale and thus ceased to co-operate positively with John Clarke. For this reason the C.E.O. has tended to bypass Pat Mullarkey when matters relating to tourism are being discussed or implemented.

This history of error and misunderstanding has resulted in the total loss of mutual respect and confidence on a personal level between John Clarke and Pat Mullarkey.

As it cannot continue without potential damage to the good management of the stud and not to mention the health and well being of the men concerned, it remains to be seen if means can be devised which will eliminate the impact of the mutual antagonism and possibly in time heal the rift".

8 He made a series of recommendations to try and resolve matters. There is no point in my setting them out in detail since unfortunately the antagonism has continued. The question of who bears responsibility for that state of affairs will be a matter for the trial judge.

9 Mr. O'Connell's observations concerning the likely affect of this disturbing state of affairs on the health of the plaintiff at any rate, has proved to be prophetic.

10 The plaintiff is now and has for some months been out of work on certified sick leave. He is under the care of both a general practitioner and a consultant psychiatrist. Both of those doctors express the view that his illness is directly related to the situation which obtains at his place of work.

11 The plaintiff contends that he has been subjected to a continuous campaign of harassment and bullying, largely at the hands of Mr. Clarke. These allegations are set forth in enormous detail in the affidavit evidence. It is no part of my function at this stage of the case to make any adjudication of whether the plaintiff is right or wrong in respect of these allegations. I am precluded from making any final or binding determinations of fact on an interlocutory application of this type. The plaintiff has however demonstrated that there is an issue for trial inso far as these allegations are concerned.

12 The event which triggered this litigation and which comes after years of recrimination was a proposal to alter the management structure of the defendant again. That occurred at a meeting on the 5^th March, 2004. The plaintiff says that the proposal amounted in effect to a demotion of him, although his salary would remain the same. He regards this alteration in structure as a further act of wrongdoing on the part of the defendant. So disturbed was he by the proposal and the way that it was to be implemented that he had to seek medical advice and was referred to hospital by his general practitioner. He has been out sick since that time.

13 The first three injunctions sought at the outset of the hearing before me over the last two days, sought to restrain the carrying into effect of the changes in management structure mooted by the defendant insofar as they would affect the plaintiff.

14 Wisely, these injunctive reliefs were not ultimately pursued particularly having regard to the plaintiff's continued illness. I am not therefore concerned with them for the purposes of this ruling.

15 The forth and fifth injunctions have been pursued. In effect they seek to have the plaintiff's salary paid to him pending trial notwithstanding his illness.

16 The defendant contends that the only entitlement which the plaintiff has to be paid salary whilst on sick leave is one which is limited to a period of 13 weeks. That period has now expired and so the plaintiff is not entitled to any further payment by way of salary.

17 The plaintiff contends that he is entitled to be paid in full whilst ill until such time as the illness ceases or the action comes to trial, whichever is the sooner.

18 The plaintiff contends that this...