Philpott v Ogilvy and Mather Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Roderick Murphy
• Judgment Date: 21 March 2000
• Neutral Citation: [2000] IEHC 30
• Docket Number: [2000 No. 2315P]
• Court: High Court
• Date: 21 March 2000

PHILPOTT v. O'GILVY & MATHER LTD

BETWEEN

ANTHONY PHILPOTT

PLAINTIFF

AND

O'GILVY & MATHER LIMITED

DEFENDANT

[2000] IEHC 30

No. 2315p/2000

THE HIGH COURT

Synopsis

Employment

Employment; termination of employment; injunction; plaintiff had been employed by the defendant as Creative Director; plaintiff had been dismissed from his employment; plaintiff seeking inter alia an injunction restraining the defendant from giving effect to the purported dismissal of the plaintiff and a mandatory injunction requiring the defendant to pay his salary as it falls due; whether the plaintiff had been denied a contractual right to notice; whether injunctive relief is the appropriate remedy for such denial; whether the plaintiff had been denied natural justice in the manner in which he was dismissed; whether the plaintiff is entitled to injunctive relief although he had not claimed damages for wrongful dismissal; whether the defendants had made allegations of misconduct against the plaintiff.

Held: Relief denied.

Philpott v. O'Gilvy & Mather Ltd - High Court: Murphy J. - 21/03/2000 - [2000] 3 IR 206

The plaintiff had been employed as a creative director by the defendant. The defendant sought to terminate the employment of the plaintiff. The plaintiff applied for injunctive relief to restrain the purported dismissal. Held by Murphy J in refusing the relief sought. The plaintiff had not elected to pursue a remedy under the Unfair Dismissals Act, 1977 and had not claimed damages for wrongful dismissal. In such circumstance the remedy of equitable relief had no independent existence from a claim for wrongful dismissal and was therefore not available.

Citations:

HILL V C A PARSONS & CO LTD 1992 1 CH 305

GUNTON V RICHMOND-UPON-THAMES LONDONBOROUGH COUNCIL 1980 ICR 755

IRANI V SOUTHHAMPTON & SOUTHWESTHAMPSHIRE HEALTH AUTHORITY 1985 ICR 590

SHORTT V DATA PACKAGING LTD 1994 ELR 251

PHELAN V BIC 1997 ELR 208

BOLAND V PHEONIX SHANNON 1997 ELR 113

ROB V HAMMERSMITH & FULHAM LONDONBOROUGH COUNCIL 1991 ICR 514

JONES V GWENT CO COUNCIL 1992 IRLR 251

HARTE V KELLY 1997 ELR 125

LONERGAN V SALTER-TOWNSEND & IRISH COUNCIL FOR PEOPLE WITH DISABILITIES & MIN FOR JUSTICE UNREP MACKEN 9.2.1999 2000 ELR 15

INDUSTRIAL RELATIONS ACT 1990 CODE OF PRACTICE ON DISCIPLINARY PROCEDURES (DECLARATION) ORDER 1996 SI117/1996

PARSON V IARNROD EIREANN/IRISH RAIL 1997 ELR 203

UNFAIR DISMISSALS ACT 1977 S15(2)

HICKEY V EASTERN HEALTH BOARD 1991 1 IR 208

1 Mr. Justice Roderick Murphy delivered the 21st day of March, 2000.

2 The Plaintiff in this matter seeks an Injunction from the Court restraining the Defendant from giving effect to the purported dismissal of the Plaintiff from his post of Creative Director in the Defendant who is a well known advertising agency.

3 Among several other reliefs sought the Plaintiff is applying for a mandatory injunction requiring the Defendant to pay his salary as it falls due and to discharge all other incidents of the Plaintiff's employment. This relief is regarded as vital.

4 The Plaintiff was working in the advertising industry in Canada in 1998. He sent his portfolio to Mr. Wright of Bell Advertising which is now part of the Defendant with a view to employment with that company or with any other similar company in Ireland.

5 An agreement was reached on the fundamentals of contract of service. It is common ground that the Plaintiff would be employed as of March, 1999 as a Creative Director on a salary of £60,000 per anumn. In addition an allowance must be made with regard to relocation expenses.

6 By letter of the 20th November, 1998 Mr. Wright offered the Plaintiff a position as Creative Director on certain terms and conditions including a condition relating to discipline and to termination.

7 The Plaintiff says he returned this contract to Mr. J.P Donnelly, the new managing director of the Defendant in December. This is denied by Mr. Donnelly. The Plaintiff says that the contract did not contain all of the elements of agreement with Mr. Wright. Particularly it did not deal with pension entitlements, the provision of a car, the provision of health insurance and the reimbursement of all trans location expenses for the Plaintiff and his family. He further states that though relocation expenses were limited to £1,000 in the aforesaid written offer that the company, in fact, agreed to pay £4,000 which was later increased to £4,700 and, ultimately. to £7,500 (to be refunded if the Plaintiff did not remain in the Defendant's company for more than one year). In addition, a Ford Fiesta was supplied to the Plaintiff's wife. The Defendant says that these elements were ex gratia and not contractual terms of the agreement.

8 Moreover, the Defendant says that the contract was never returned to them and that the Plaintiff continually requested a new contract reflecting what he believed to be the agreement between himself and Mr. Wright.

9 It seems to me that this preliminary issue of the return of the contract is not matters with which I should concern myself at the stage of an interlocutory injunction. It is clear that the Plaintiff commenced work in March of 1999 and continued until February, 2000.

10 The Plaintiff says that on the 4th February, 2000 he was summarily dismissed without being given any warning or notice. No disciplinary procedures were followed and he was denied natural justice in the manner in which the decision was taken.

11 By letter dated the 7th February, 2000 he was given "the required one months notice of our wish to terminate your contract of employment from today the 7th of February, 2000. I understand that this is a difficult time for you but given the circumstances we would prefer if you did not work out your notice period. We will of course pay you in full for the notice period."

12 The Defendant agreed to pay a further £2,500 as an ex gratia payments and not to look for a refund of the costs of relocation. However, it required the Plaintiff's wife to return the car on the 7th March, 2000.

13 The Plaintiff was asked, the following day, to vacate the building by close of business. Later that day the company confirmed, by letter, that the Plaintiff was being suspended on full pay effective February 8th, 2000. It required that the Plaintiff vacate the building by close of business on the 8th returning all house keys.

14 On the 14th of February, 2000 the group financial director wrote to the Plaintiff purporting to clear up any ambiguity that might have arisen over the letter of the 7th February and confirmed the company's intention to terminate the Plaintiff's contract as of the 7th February, 2000. The company would pay one months salary in lies of notice and honour the other commitments made in that letter of the 7th, a sum of £7,500 would be transferred to the Plaintiff's bank which, the writer believed, discharged the companies responsibility to the Plaintiff.

15 Mr. Wright, by Affidavit, takes issue with some of the averments contained in the Plaintiff's Affidavit. While the Plaintiff performed his creative duties adequately there were a number of difficulties with his interpersonal relationships and a number of disputes with colleagues and more importantly with clients. His behaviour in walking out of work made it clear to the Defendant that the Plaintiff did not have the qualities necessary to operate at the level of creative director.

16 Mr. Donnelly, in his Affidavit, also takes issue with a number of averments of the Plaintiff and says that the Plaintiff has exaggerated and misrepresented the circumstances surrounding his arrival. Mr. Donnelly states that the Plaintiff constantly made an issue out of relatively minor matters rather than approaching them in a manner appropriate to his position. It was difficult for the Defendant to deal with him or for him to discharge his duties in respect of people who were reporting to him.

17 These difficulties as specified in Mr. Donnelly's Affidavit as are conversations he had in relation thereto with the Plaintiff.

18 Mr. Donnelly says that the Plaintiff indicated that he would be prepared to reconsider his resignation in July, 1999. Mr. Donnelly says he decided that as the Plaintiff had shown no previous evidence of leadership qualities that he was of the view that the Plaintiff would not do so in the future and that he would accept the Plaintiff's resignation which was during the probationary period of six months as provided in the contract. Mr. Donnelly said he allowed the Plaintiff to complete the creative work on the projects and to relieve the Plaintiff of his managerial duties. Again this is denied by the Plaintiff.

19 In relation to the meeting of the 4th February, 2000 and the subsequent letters, Mr. Donnelly says that he was conscious that the Plaintiff had not ever executed his contract of employment but that he considered one months notice and the waiver of his relocation expenses to be appropriate. As the Plaintiff refused to leave the premises and created a disturbance he was informed that he would be suspended and that the matter would be subsequently resolved.

20 I have difficulty in reconciling the Defendant's understanding that the Plaintiff had resigned his employment in July, 1999 with dismissal letters of the 7th and 14th February, 2000 (and, indeed, the...