Nolan -v- EMO Oil Services Ltd, [2009] IEHC 15 (2009)

Docket Number:2008 10294 P
Party Name:Nolan, EMO Oil Services Ltd
Judge:Laffoy J.

THE HIGH COURT2008 No. 10294 PBETWEENPAUL NOLANPLAINTIFFAND EMO OIL SERVICES LIMITEDDEFENDANTJudgment of Miss Justice Laffoy delivered on the 21st day of January, 2009On 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:-(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(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. 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.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 1st 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.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.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 15th 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 2nd September, 2008. The plaintiff received notification of the redundancy scheme while on annual leave, but he did not wish to avail of it.After the plaintiff returned from annual leave, he was called to a meeting with the Managing Director of the defendant, Mr. Gerry Wilson, on 3rd 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 4th September, 2008, he was informed that his redundancy would be effective from 30th November, 2008. On the following day, 5th September, 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 5th September, 2008 and the proposed date of termination as 30th November, 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.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...

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