Sheehy v Ryan

• Jurisdiction: Ireland
• Judge: Mr. Justice Michael Peart
• Judgment Date: 29 August 2002
• Neutral Citation: 2002 WJSC-HC 6357
• Court: High Court
• Docket Number: No. 10338P/2002
• Date: 29 August 2002

SHEEHY v. RYAN

BETWEEN

MARY SHEEHY

PLAINTIFF

AND

LAURENCE RYAN

DEFENDANT

2002 WJSC-HC 6357

No. 10338P/2002

THE HIGH COURT

Synopsis:

INJUNCTION

Interlocutory - Test to be applied — Fair issue to be tried - Balance of convenience - Whether balance of convenience favours granting of relief - Payment of salary - Likely time for case to get to trial - Whether plaintiff's salary should be paid pending trial of action (2002/10338P - Peart J - 29/8/02)

Sheehy v Ryan

Facts: in July 2002 the plaintiff was advised by the defendant of her dismissal on the grounds of redundancy. She stated that had she not been given an unequivocal assurance by the defendant that if she accepted his offer of employment, she would be the holder of a permanent and pensionable post, she would not have left a similar position with Carlow VEC to accept the offer. She applied for an interlocutory injunction requiring the defendant to pay her all salary and maintain and fund her pension benefits accruing from the date of her purported redundancy to the trial of the action.

Held by Peart J that he had to satisfy himself in the first instance that there was a fair issue to be tried in the proceedings. On being satisfied in that regard, it had then to be decided whether the balance of convenience was in favour of granting the interlocutory relief sought or whether damages would be an adequate remedy. There was a fair issue to be tried on the question of whether the termination constituted an unlawful repudiation of the plaintiff’s appointment and whether the redundancy was a valid redundancy, or merely a device employed by the defendant to bring about an end to the plaintiff’s employment. The balance of convenience was in favour of granting the reliefs sought due to the likely time scales involved in the case getting to trial and that in the meantime the plaintiff would be left without a salary and nothing to live on.

Citations:

CAMPUS OIL LTD V MIN INDUSTRY (NO 2) 1983 IR 88

AMERICAN CYANAMID V ETHICON LTD 1975 1 AER 504

PHILPOT V OGILVY & MATHER LTD 2000 3 IR 206

PARSONS V IARNROID EIREANN 1997 ELR 203

UNFAIR DISMISSALS ACT 1977 S15

EEC DIR 77/187 /EEC

FENNELLY V ASSICURAZIONI GENERALI 1985 3 ILTR 73

JUDGMENT of

Mr. Justice Michael Peart

1 delivered the 29th day of August, 2002.

2 This is an application on behalf of the plaintiff in these proceedings for an interlocutory injunction limited to the reliefs sought in paragraphs 1 and 2 of the Notice of Motion herein dated the 31^st day of July 2002, namely:

3 1. An order that the defendant do pay to the plaintiff all salary as accruing from the month of August 2002 to the trial of the action or until further order of this honourable court;

4 2. An order requiring the defendant to fund and maintain the plaintiff's pension and life assurance benefits by paying all instalments of premium together with such further or other order restraining the defendant, his servants and agents from reducing the plaintiff's pension benefits in any mode whatsoever.

5 Counsel for the plaintiff Mr. Horan stated at the outset that he was not seeking interlocutory relief in respect of paragraphs 3 – 6 of the said Notice of Motion.

6 The application is grounded on the plaintiff's own affidavit sworn the 29^th of July 2002 and its exhibits, and a further affidavit sworn by her on the 26^th of August 2002.

7 The application is opposed by Mr. Mallon on behalf of the defendant. In aid of that opposition affidavits have been sworn by Brendan Byrne on the 19^th of August 2002, and by the defendant Laurence Ryan on the 21^st of August 2002.

8 The first affidavit of the plaintiff sets out in detail her employment history with the Central Bank in 1970 where she remained until 1971, when she resigned that position to take up employment with Carlow Vocational Education Committee. She remained in that position until July 1974, when she accepted an offer from Bishop Lennon, as Bishop's Secretary. Bishop Lennon was at that time Bishop of Kildare and Leighlin. She states that at that time her salary was linked to her remuneration with Carlow V.E.C. in that she was offered her V.E.C. salary plus 25%, and that it was part of her employment conditions that a non-contributory pension would be put in place for her. In 1977 she was appointed Diocesan Secretary. She exhibits a number of documents relating to her conditions of employment. She also exhibits a number of other documents relating to her pension entitlements, including a letter dated the 20^th of July 2000 signed by the defendant, in which he confirmed his intention that the pension proposal in favour of the plaintiff, which he submitted on the 7^th of July 2000 will be funded by the Diocese up to her retirement date, and including a document entitled "Executive Pension Account Application Form" which includes disability cover up to the age of 65. She makes reference to certain under funding of her pension which was corrected in July 2000.

9 In paragraph 5 of her affidavit she refers to two meetings she had in March 2001 with the defendant when, apparently, certain disquiet was expressed by him as to the level of pension contributions payable for her, and it was suggested that she might make a contribution to the premium, which would result in a reduction of her salary. She was very concerned at this proposal especially in view of the fact that she had recently increased her mortgage on her home to £150,000 approximately, on to the basis of her remuneration. In her affidavit she details the many and considerable responsibilities she had in her capacity as Diocesan Secretary. Importantly, in paragraph 7 she states that in 1974, although this is not evidenced in writing she admits, she was given what is described as "an unequivocal assurance" by Bishop Lennon in 1974 that if she accepted his offer of employment, she would be the holder of a permanent and pensionable post. She states that she would not have accepted the offer in the absence of such an assurance, given that she held such a position within the V.E.C., and she states that at that time she still had the option of returning to her position at the Central Bank in 1974. She says that it was then, and still is her understanding that in accepting employment with the defendant, she was to remain in office until the age of 65 years, subject of course to her carrying out her duties satisfactorily, and not misconducting herself. She believes that she has conducted herself to the highest standards during her employment, and certainly has been given no reason to believe otherwise. She emphasises how important it was to her in 1974 that she was taking up a permanent job.

10 At paragraph 9 she states that on the 22^nd of October 2001 the defendant said to her that he wanted to talk to her about "her business". She took this to refer to unconcluded discussions earlier in 2001, which presumably is a reference to the meeting in March 2001 referred to at paragraph 5 of her affidavit regarding a contribution by her to her pension premium. He said however that for health reasons he had been advised that he should not deal with this matter personally, but that a Mr. Gerard Dooley would be in contact with her. At paragraph 10 she states that in October 2001 Mr. Dooley had a meeting with her at which he said he had been authorised to deal with her on what she described as "employment issues", and in particular relating to her salary and pension. She was disturbed and offended by the reference to employment issues. She was concerned that there might be any reduction in her salary proposed in view of the fact that she had recently increased her mortgage.

11 In December 2001, Mr. Dooley advised her solicitors Gallagher Shatter that the defendant was desirous that the plaintiff would "retire with him" (being a reference to the defendant), and that he "wanted to sort matters out before the new bishop was appointed". He apparently stated that she would be treated "honourably", but she believes it was made clear that it was intended that she should relinquish her position. She advised her solicitors that she did not wish to do this, and she states that she also told the defendant that she could not retire because it would cost her her home. She refers to some correspondence which then passed between Mr. Dooley and her solicitors, dealing with certain proposals on behalf of the defendant, and which were rejected by the plaintiff, as being inadequate for her needs. She states that by letter dated the 23^rd of July 2002 she was advised by the defendant of her dismissal on the grounds of redundancy. This letter went on to state that for some time past he had wished to restructure the diocesan administration by amalgamating the two posts of Diocesan Secretary (the plaintiff's position) and the Chancellor and Diocesan Secretary held by a Fr. Kemmy. He referred to the fact that Mr. Dooley had not been able to agree a redundancy package, and that he regrettably had therefore had to proceed without her agreement. He attached a form RP1 and indicated that...