Nolan v Emo Oil Services Ltd

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 21 January 2009
• Neutral Citation: [2009] IEHC 15
• Court: High Court
• Date: 21 January 2009

Nolan v Emo Oil Services Ltd

BETWEEN

PAUL NOLAN

PLAINTIFF

AND

EMO OIL SERVICES LIMITED

DEFENDANT

[2009] IEHC 15

No. 10294 P/2008

THE HIGH COURT

EMPLOYMENT LAW

Injunction

Interlocutory - Unfair dismissal - Redundancy - Plea that no genuine redundancy - Plea of unfair selection for redundancy - Whether remedies of wrongful dismissal and unfair dismissal mutually exclusive - Whether injunctive relief available in support of claim of unfair dismissal - Maha Lingham v Health Service Executive [2005] IEHC 186, (2006) 17 ELR 137 and Sheehy v Ryan [2008] IESC 14 (Unrep, SC, 9/4/2008) applied; Shortt v Data Packaging Ltd [1994] ELR 251 distinguished - Relief refused (2009/10294P - Laffoy J - 21/1/2009) [2009] IEHC 15

Nolan v Emo Oil Services Ltd

Facts: the plaintiff sought an interlocutory injunction restraining the defendant from giving effect to his purported dismissal by reason of redundancy and requiring the defendant to continue to pay his salary pending the trial of his claim for wrongful dismissal. He contended that a genuine redundancy did not exist and, in the alternative, that he had been unfairly selected for redundancy by the defendant. The defendant contended that the claim could not be litigated in a common law action for wrongful dismissal as the appropriate procedure was to bring a claim for unfair dismissal before the Employment Appeals Tribunal.

Held by Ms Justice Laffoy in refusing the relief sought that, in order to obtain an interlocutory injunction, the plaintiff had to show a strong case that he was likely to succeed at the hearing of the action. That a common law claim for wrongful dismissal and a statutory claim for unfair dismissal were mutually exclusive. That the Oireachtas, in enacting the Unfair Dismissals Acts and in introducing the concept of unfair dismissal provided for specific remedies for unfair dismissal and specific procedures for obtaining such remedies in alternative forums. For the common law courts to expand its common law jurisdiction in parallel to the statutory code in relation to unfair dismissal and redundancy would end up supplanting the code. Accordingly, as the plaintiff could not succeed in his common law action where the allegation was that he had been unfairly selected for redundancy and/or that no genuine redundancy had existed in the first place, he was unable to show a strong case that he was likely to succeed at the hearing of the action.

Reporter: P.C.

MAHA LINGHAM v HEALTH SERVICE EXECUTIVE 2006 17 ELR 137

SHEEHY v RYAN UNREP SUPREME 9.4.2008 2008 IESC 14

FENNELLY v ASICURAZIONI GENERALI SPA 1985 3 ILTR 73

SHORT v DATA PACKAGING LTD 1994 ELR 251

JOHNSON v UNISYS LTD 2003 1 AC 518

REDUNDANCY PAYMENTS ACT 1967 S7

1 Judgment of Miss Justice Laffoy delivered on the 21st day of January, 2009

2 On this application for an interlocutory injunction the plaintiff claims various orders, some prohibitory and some mandatory. The essence of the relief he claims is encapsulated in two of the orders he claims:-

3 (a) an interlocutory injunction restraining the defendant from giving effect to his purported dismissal by reason of redundancy from the post of Credit Manager; and

4 (b) an interlocutory injunction requiring the defendant to continue to pay his salary and associated emoluments and benefits currently owing and as they fall due.

5 While not so expressed in the notice of motion, the intention is that the orders shall regulate the relationship of the plaintiff and the defendant pending the hearing of the substantive action.

6 The plaintiff's employment with the defendant was regulated by a contract in writing under which the plaintiff was appointed as a permanent employee of the defendant as Credit Manager commencing on 1 ^st November, 2001. The contract was a comprehensive document, which set out the conditions of employment including the entitlement of the defendant to terminate the employment on notice. Clause 7 provided that the period of notice which required to be given by the defendant to the plaintiff to terminate his employment should be determined according to the length of continuous service. In the case of service of between five and ten years the length of notice required was four weeks, which coincides with the requirement of the Minimum Notice and Terms of Employment Act 1973. It is common case that in September 2008 the plaintiff's employment was terminable by four weeks' notice in accordance with the contract.

7 At the beginning of 2008, the defendant, which is the supplier of oil products, had a work force of one hundred and sixty. Because of the economic downturn it introduced two redundancy schemes in 2008. Fifteen redundancies resulted from the first scheme, which was announced in February 2008, of which five were compulsory.

8 The second scheme, which resulted in a further nine redundancies, five of which were compulsory, was announced while the plaintiff was on annual leave in August 2008. On 15 ^th August, 2008 the defendant announced a redundancy scheme under which, in the first instance, it invited applications for voluntary redundancy across all sections of the defendant. It was stated that in the absence of the required number of volunteers, the defendant would arrange to make redundancies on a compulsory basis. The ultimate deadline for acceptance of applications for voluntary redundancy was 2 ^nd September, 2008. The plaintiff received notification of the redundancy scheme while on annual leave, but he did not wish to avail of it.

9 After the plaintiff returned from annual leave, he was called to a meeting with the Managing Director of the defendant, Mr. Gerry Wilson, on 3 ^rd September, 2008. He was informed that his position of Credit Manager was being made redundant with effect from the end of September 2008 and that, in future, his work would be done by the Managing Director and the Financial Controller in addition to their existing duties. Subsequently at a meeting on 4 ^thSeptember, 2008, he was informed that his redundancy would be effective from 30 ^thNovember, 2008. On the following day, 5 ^thSeptember, 2008, the plaintiff was furnished with form RP50, which was the notification of redundancy, which gave the date of the notice of termination of his employment as 5 ^thSeptember, 2008 and the proposed date of termination as 30 ^thNovember, 2008. The form, which was the prescribed form under the Redundancy Payments Acts 1967 to 2003, incorporated a claim for statutory redundancy from the Social Insurance fund. In addition to the statutory redundancy, the defendant proffered to the plaintiff an ex gratia payment of €9,100.

10 It is not in dispute that the notice of termination given to the plaintiff was sufficient to terminate his employment in accordance with his contract of employment. The dispute which has given rise to these proceedings and this application is the plaintiff's contention, which was first raised at the beginning of November, 2008, that genuine bona fide redundancy does not exist in relation to the position of Credit Manager which was held by the plaintiff. Alternatively, the plaintiff contends that if a redundancy situation does exist, he has been unfairly selected for redundancy. In broad terms, the factual basis on which the plaintiff alleges that making him redundant was a contrivance is that his working relationship with Mr. Wilson deteriorated after late 2006 when he had made Mr. Wilson aware that he had been offered the position of Credit Manager by a competitor of the defendant, which he had declined. He alleges that thereafter he was sidelined and Mr. Wilson commenced dealing directly with a subordinate of the plaintiff who occupied the position of Senior Credit Controller with the objective of replacing the plaintiff with her. Mr. Wilson has categorically denied this allegation and has averred that the plaintiff's redundancy has arisen out of the current difficult economic conditions and not otherwise. The position of the defendant is that Mr. Wilson, as Managing Director, and the Financial Controller are going to take on the plaintiff's functions, while the Senior Credit Controller will be assigned "some of the more junior duties formerly performed by the plaintiff", although she will not receive any promotion or additional remuneration as a result of the decision to make the plaintiff's position redundant. I have stated the factual position in broad terms. However, there is a considerable body of detail on the affidavits, which gives rise to conflict. The Court cannot, and should not attempt to, resolve those conflicts on this application.

11 Counsel for the plaintiff accepted that, as, in effect, the plaintiff is seeking a mandatory interlocutory...