The Employment Injunction

Author:Mr Stephen O'Sullivan
Profession:Stephen O'Sullivan, Barrister
 
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Injunctions to restrain a dismissal

When an employee is dismissed generally the employee will sue for unfair dismissal in the EAT. However, there are circumstances where an employee will attempt to injunct the dismissal in the High Court.

Beginning with Fennelly v. Assicurazoni Generali SPA (Unreported Ex tempore, (Costello P.) 13th August, 1997 the High Court had shown a willingness to grant an interlocutory injunction to allow a plaintiff to be paid salary pending the determination of the action. This became known as the 'Fennelly order'. It is still the case that the normal introductory order sought is the 'Fennelly order' - it is considered very difficult to get an order compelling the defendant to take the plaintiff back into the workplace.

In Sheehy v. Ryan [2004] 15 ELR 87 and Orr v. Zomax [2004] 1 IR 486 the High Court refused to grant injunctions restraining the dismissal. In the latter case the court stated:-

"As the law stands, at common law an employer can terminate employment for any reason or no reason provided adequate notice is given. In cases involving dismissal for misconduct the principles of natural justice also apply, but that does not arise here. "

This line of authority was approved in by the Supreme Court in Maha Lingham v. Health Service Executive [2006] ELR 137 who also stated that the test of introductory stage for an injunction of this nature was "a strong case that he is likely to succeed at the hearing of the action." The Supreme Court also stated:-

"I would slightly qualify that by saying that it does depend on the contract but in the absence of clear terms to the contrary which are unambiguous and unequivocal, that clearly is the position".

The logic is that, if the employee is dismissed for misconduct but fair procedures were not followed, the court might intervene because the dismissal has more far reaching consequences for the plaintiff such as damage to reputation than does a dismissal for redundancy or ill health say.

The plaintiff may seek a 'Fennelly order' at interlocutory stage and later at full hearing seek a declaration that the dismissal was null and void. This would normally be without prejudice to the employer investigating the matter afresh, this time in accordance with fair procedures. In Carroll v Dublin Bus [2005] IR 184 the plaintiff was dismissed for misconduct for allegedly being involved in union activities at a time when he was certified as unfit to work. At full hearing the High...

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