Rooney v O.J. Kilkenny

• Jurisdiction: Ireland
• Judge: Mr. Justice Kinlen
• Judgment Date: 09 March 2001
• Neutral Citation: [2001] IEHC 32
• Docket Number: 2001 No. 1121P
• Court: High Court
• Date: 09 March 2001

ROONEY v. KILKENNY & MURPHY

BETWEEN

COLETTE ROONEY

PLAINTIFF

AND

OSSIE J KILKENNY AND BRIAN P MURPHY

DEFENDANTS

[2001] IEHC 32

2001 No. 1121P

THE HIGH COURT

Synopsis:

Employment

Employment; injunctions; contract; plaintiff had taken certified sick leave and seeks an injunction requiring the defendants, her employers, to maintain her sick pay pending trial of action in which she alleges conduct of first named defendant resulted in a severe stress reaction on her part; defendants seek to terminate her employment contract; whether plaintiff entitled to sick leave; whether there is a fair issue to be tried between parties; whether damages would be an adequate remedy; whether balance of convenience favours granting of injunctive relief sought.

Held: Injunction granted; sick pay and pension installments to be maintained by defendants; plaintiff obliged to furnish defendants with evidence of her unfitness to work on weekly basis and to allow herself be examined by medical practitioner nominated by defendants.

Rooney v. Kilkenny - High Court: Kinlen J. - 09/03/2001

A dispute arose between the plaintiff and the defendants over the plaintiff’s employment. In this regard the plaintiff sought a number of injunctions. Kinlen J held that the plaintiff would be entitled to an order directing the payment of a weekly sum. The hearing would be expedited.

Citations:

BOYLE V AN POST 1992 2 IR 436

MORRISON V BELL 1939 2 KB 187

JAKEMAN V SOUTH WEST THAMES REGIONAL HEALTH AUTHORITY 1990 IRLR 67

AMERICAN CYANAMID COMPANY V ETHICON LTD 1975 AC 396

LOCABAIL CASE 1986 1 WLR 657 CA

DIX & CRUMP ON CONTRACTS OF EMPLOYMENT 82 PARA 3.52

REILLY V IRISH PRESS LTD 1971 105 ILTR 194

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

FENNELLY V GENERALI SPA 1985 3 ILTR 73

JUDGMENT of

Mr. Justice Kinlen

1 delivered the 9th day of March, 2001.

2 The Plaintiff issued Plenary Summons on the 26th January, 2001. The general endorsement of claim includes a request for a declaration that the Plaintiff is entitled to payment of her salary as a term and condition of her employment whilst on certified sick leave and that she is and continues to be in the permanent and pensionable employment of the Defendants as personal assistant to the first named Defendant. She also sought other declarations, injunctions and orders. She then brought a motion dated the 29th January, 2001 for the following orders and relief:-

3 1. An Injunction restraining the Defendants their servants and agents from treating the Plaintiff as other than continuing to be employed by the Defendant.

4 2. An Injunction requiring the Defendant to maintain the Plaintiffs sick pay until further order or the trial of the action.

5 3. Without prejudice to the relief sought at paragraph 2 aforesaid an injunction requiring the Defendants to pay the Plaintiffs salary as it falls due and requiring the Defendants to discharge all other incidents of the Plaintiffs employment and in particular the relevant pension premiums.

6 4. An Injunction restraining the Defendants from dismissing or purporting to dismiss the Plaintiff from her said post.

7 5. An Injunction restraining the Defendants, their servants and agents from appointing any person other than the Plaintiff to the Plaintiffs said position and restraining the discharge of the Plaintiffs function and responsibilities by any person other than the Plaintiffs. She also seeks further and other relief and costs.

8 This Motion is presently before this Court. The Plaintiff is a certified chartered Accountant and the Defendants are partners in an accountancy firm, practice under the style of O J Kilkenny & Co. The Plaintiff has been personal assistant to the first named Defendant since the month of February 1990. She alleges that she is being subjected to oppressive, abusive and bullying treatments by Mr. Kilkenny since at least 1999. She had only had one days illness off work since she started until January 2000. As a result of the alleged confrontation on the 19th January, 2000 she was away from work for approximately 2 weeks with stress related disorder. The Plaintiff was diagnosed by her psychiatrist as having a severe stress reaction which she ascribed directly to work stress. She also certified her as unfit to work.

9 Since the Plaintiffs problem was mainly with her immediate boss the first named Defendant, the second named Defendant offered to meet her to discuss her grievances. She refused to attend this meeting unless she was accompanied by her solicitor in view of her medical condition. The Defendants solicitors replied in a letter of the 24th October, 2000.Inter alia it states:-

"At a recent hearing in the Law Society in relation to a claim made by Mr. Ernie Fallon it was stated by your clients representative that she would be not returning to her employment with O. J. Kilkenny and Co. You might confirm that that is the position and if so our client is prepared to offer your client 3 months pay in lieu of notice together with a bonus in the sum of £50,000.00 and to arrange for the transfer of her pension entitlements under the scheme. If your client is maintaining the position that she is returning to work our client will need to take steps to ascertain her fitness to return to work and the likely date of such return."

10 You might note that our client has no contractual arrangement with your client in relation to payment of sick pay. Notwithstanding this our client has been paying your client her full salary for a considerable period of time. Your client has, we assume, applied for and obtained Social Welfare Benefit for this period and you might arrange for any Benefit Payments to be remitted to our client. Our client will be reviewing its position in relation to sick pay as it cannot continue to pay your client sick pay on an indefinite basis. Our client will pay your client for the month of October, 2000 (that such payment will be deducted from the three months notice mentioned above).

11 A reply of Messrs. A & L Goodbody, Solicitors for the Defendants on the 31st October, 2000 reads:-

"For the record and as was made clear to the Disciplinary Tribunal of the Law Society the position is that our client remains unfit for work. Her medical advise is that her health problems are entirely due to her situation at your clients work place. We enclose a copy of her medical report in this respect. Accordingly, the position is not, as seems to be suggested in your letter, one of our clients deciding not to return to her employment but rather that your client has wrongfully created that situation. If you are in any doubt as to whether our client can or can not return to work now or at all, we would suggest that you arrange for a medical examination to confirm the position.

With regard to Social Welfare Benefit we will advise our client appropriately. As regards sick pay your client does have an obligation to continue payment. We are instructed that another employee was paid for at least as long. If your client wishes to be seen to be dealing with this serious matter appropriately it would need to rethink the strategy and messages conveyed with reference to continuing payment of our client. Furthermore, we could point out for the record that our client has earned and is due from your clients the bonus of £50,000.00 which sum has been due since July, 1997 and unless payments together with interest is made by return we are instructed to issue proceedings forthwith."

12 By Notice of Motion dated the 29th...