Orr v Zomax Ltd

• Jurisdiction: Ireland
• Judge: Carroll J.
• Judgment Date: 25 March 2004
• Neutral Citation: [2004] IEHC 47
• Docket Number: [2004 No. 1356 P]
• Court: High Court
• Date: 25 March 2004

[2004] IEHC 47

THE HIGH COURT

NO. 1356P/2004

ORR v. ZOMAX LTD

BETWEEN

ROBERT ORR

PLAINTIFF

AND

ZOMAX LIMITED

DEFENDANT

Citations:

CAMPUS OIL V MIN ENERGY (NO 2) 1983 IR 88

PARSONS V IARNROD EIREANN 1991 ELR 203

UNFAIR DISMISSALS ACT 1977

UNFAIR DISMISSALS ACT 1977 S15(2)

UNFAIR DISMISSALS ACT 1977 S15

UNFAIR DISMISSALS ACT 1977 S15(3)

JOHNSON V UNISYS LTD 2001 2 AER 801

INDUSTRIAL RELATIONS ACT 1971 (UK)

EMPLOYMENT RIGHTS ACT 1996 (UK)

SHEEHY V RYAN & MORIARTY UNREP CARROLL 3.2.2004

FENNELLY V ASSICURAZIONI GENERALI SPA 1985 3 ILTR 73

HILL V CA PARSONS LTD 1972 CH 305

INDUSTRIAL RELATIONS ACT 1971

HARTE V KELLY 1997 ELR 125

GEE V IRISH TIMES UNREP MCCRACKEN 27.6.2000

Synopsis:

EMPLOYMENT

Wrongful dismissal

Unfair dismissal - Redundancy - Injunction - Damages - Whether plaintiff could make a claim for unfair dismissal under the common law rules and therefore outside the statutory framework (2004/1356P - Carroll P - 25/3/2004)

Orr v Zomax Ltd - [2004] 1 IR 486

Facts: The plaintiff who was an engineer joined KAO Information Systems (KAO) in 1995. Subsequently, there was a transfer of undertaking by KAO to the defendant company in 1999 and the plaintiff's employment continued pursuant to the EU Acquired Rights Directive. The plaintiff was appointed Client Services Manager of Microsoft Business by the defendant pursuant to a contract dated 16 May 2000. That contract set out the relevant notice period required to be given in order to terminate the contract. In November 2003 the defendant decided to amalgamate the plaintiffs role and the position of Contract Centre Manager to create a new Business Relationship Manager role. The plaintiff unsuccessfully applied for the position. Subsequently the plaintiff received a letter from the director of the defendants company stating that he was entitled to two months notice of the termination of his employment together with statutory redundancy. The plaintiff was offered the choice of receiving pay in lieu of notice and an ex gratia payment equivalent to one months salary. Further correspondence and meetings took place and that plaintiff stated that the 'purported redundancy' was not accepted by him. Consequently the plaintiff was put on "garden leave" with pay for the duration of the notice period. The plaintiff did not return to work and a plenary summons was issued on 3 February 2004 challenging the validity of the redundancy. On 4 February 2004 the plaintiff issued a notice of motion claiming certain financial and injunctive relief, including an order that the defendant continue to pay his salary and fund and maintain his pension and life assurance benefits until the trial of the action and also an injunction restraining the purported termination and the performance of the plaintiff's duties by any person other than the plaintiff. The plaintiff claimed that the issue to be tried was that he was unfairly dismissed because there was no valid redundancy and he was really dismissed because of criticisms made about him by Microsoft. The plaintiff also claimed that there must be an implied term in the contract that the employer must act reasonably and fairly. The defendants countered this argument by submitting that that was not a fair issue to be tried as unfair dismissal is governed by the Unfair Dismissals Acts, which provide a statutory remedy which is mutually exclusive to the common law remedy for damages.

Held by Carroll J in refusing to grant the relief sought: 1. That the case law adduced by the defendant supported the proposition that the common law claim for damages for wrongful dismissal and the statutory claim for unfair dismissal are mutually exclusive. The plaintiff was attempting to introduce a new obligation under the common law on the employer to act reasonably and fairly in the case of dismissal. However, at common law an employer can terminate employment for any reason or no reason provided adequate notice is given. There was no allegation by the plaintiff that the notice provided to him was inadequate. Accordingly the plaintiff failed to demonstrate that there was a fair issue to be tried.

Parsons v Iarnrod Eireann [1997] E.L.R. 203 and Johnson v Unisys Limited [2001] 2 A.E.R. 801 followed.

2. Obiter That damages would be an adequate remedy and in fact would be the only remedy available to the plaintiff. It was highly unlikely that he would be re-instated in employment where the defendants were unwilling to take him back and had no place for him.

3. Obiter That if the plaintiff did not succeed at the trial there would be a real injustice to the defendant if it was obliged to pay the plaintiff his salary until the date of the trial. The case law adduced in support of that application involved cases that were emphasised as containing special or exceptional circumstances. The plaintiff did not allege irreparable loss and damage if deprived of his salary and he failed to make out a case on the balance of convenience that he should be paid his salary after the period of notice expired.

Reporter: L.O'S

1 JUDGMENT of Carroll J. delivered the 25th day of March 2004.

2 The plaintiff is an engineer by profession. He originally joined KAO Information Systems (KAO) in 1995. There was a transfer of undertaking by KAO to the defendant in 1999 and the plaintiff's employment continued pursuant to the EU Acquired Rights Directive. With KAO he was Programme Manager assigned to the new Microsoft account. In 2000 he was appointed Client Services Manager-Microsoft Business, by the defendant pursuant to contract dated 16 ^th May, 2000.

3 The contract provided his employment commenced 1 ^st June 2000.

4 Clause 12 deals with termination of employment and provides:-

" Notice periods

5 After the successful competition of the probationary period this contract may be terminated by either party giving written notice of not less than the following:

- Less than four years service	1 month
- Four years but less than nine years service	2 months
- Nine years service and over	3 months

6 The company may terminate the contract without notice if you are in serious breach of contract, are guilty of gross misconduct or any conduct likely to bring yourself or the company into disrepute, including any conduct which renders you unsuitable to perform the duties required of your position."

7 The contract also provides

"This contract supersedes any other contract or arrangement which may have been entered into by the parties."

8 The plaintiff's grounding affidavit contains an enormous amount of unnecessary detail. He refers to negative feedback from Microsoft which he says was not due to deficiencies on his part.

9 At a meeting on 6 ^th November, 2003 the defendant announced a re-organisation whereby a new Business Relationship Manager role was to be created amalgamating the plaintiff's role as Client Services Manager and the position of Contract Centre Manager. The plaintiff applied for the job and was interviewed and short listed.

10 On 18 ^th November, 2003 he was informed that he had not got the job. At a meeting on 19 ^th November, 2003 the plaintiff was given a letter from Mr. Dignam, Director of the defendant company, referring to the meeting on 6 ^th November, 2003 and the company restructuring and also referring to the job selection process.

11 He continued

"Your contract of employment provides for two months notice on the termination of your employment. In addition you are entitled to statutory redundancy and I am attaching a schedule to this letter outlining your entitlements. As we appreciate that this is not an easy thing for you to deal with we are anxious that you should be treated with consideration. Accordingly if you would prefer to receive pay in lieu of notice we can agree to that and in addition we will make an ex gratia payment equivalent to another month's salary."

12 In addition I enclose for your attention your RP1 form which gives formal notice of your redundancy. If you decide to take pay in lieu of notice then the termination of your employment will take effect on 3 ^rd December, 2003".

13 Mr. Dignam again wrote on 25 ^th November outlining the options available in the light of the recent restructuring and included a list of current open positions although at a lower level.

14 On 8 ^th December, 2003 Mr. Dignam wrote referring to a meeting at which the plaintiff confirmed he would be returning to work on 9 ^th December to work out his notice. This would bring him to 3 ^rd March, 2004. He said he (the plaintiff) would take up a project management role reporting to him for the duration of his notice.

15 On 12 ^th December, 2003 the plaintiff replied disagreeing with Mr. Dignam in several matters and concluded by saying "The purported redundancy is not accepted by me and I continue to reserve my position pending the outcome of further negotiations."

16 Having had a meeting, Mr. Dignam replied on 19 ^th December, 2003 to clarify the situation and outline the options. He said that with immediate effect he (the plaintiff) was "on garden leave" and would be paid through the pay roll until 3 ^rd March unless they heard otherwise. He would then be paid statutory redundancy. If he decided on pay in lieu of the remaining part of his notice, he would be paid the remainder tax free. He referred to the plaintiff's statement at the meeting that he had not decided whether to accept redundancy or not and he said this was not an option. He asked him to take time to consider and if he would like to return to work out his notice to contact him to discuss this option further but this would require clear ground rules.

17 The plaintiff did not return to work and a plenary summons was issued on 3 ^rd February, 2004 claiming the following relief

18 1. A declaration that the purported termination of the plaintiffs tenure by the defendant for reasons of...