The Chief Executive of GOAL has been granted a temporary High Court order restraining any steps by the agency to suspend him or deal with his employment. RTE reported that he (John O’Shea) claims that complaints made by some GOAL staff against him, including complaints of behaviour resulting in a culture of institutionalised bullying, are “false and concocted.”
It is report that Mr O’Shea had been told not to attend a board meeting of the agency last week where a vote to suspend him was defeated by six votes to five. His Senior Counsel, Paul McGarry, told the court that another meeting of the board had been fixed for this evening. It was his view that there was concerted action to remove him and he feared another effort to suspend him might be made at that meeting. Yesterday the judge granted an order restraining the taking of any steps at this evening’s meeting to deal with Mr O’Shea’s position.
Mr. O’Shea has been granted an Interim injunction, to preserve the current status quo and avoid a scenario where he is suspended from his position. However what is an Injunction and what is required in order to be granted injunctive relief? The matter of Employment Injunctions is becoming ever more prominent in Employment law with some very high profile cases recently highlighting their use. One recent case, and one which garnered a lot of media attention was the High Court case of Mullen v Brown Thomas, where Ms Justice Mary Laffoy granted an injunction preventing Brown Thomas from effecting its decision to dismiss an employee (Mary Mullen). But what is an Injunction?
In order to explain Employment injunctions it is appropriate to first put injunctions into context, the first Employment Injunction was carried out over 20 years ago, in the case of Fennelly v. Assicurazioni Generali Spa & Another, and since then injunctions have been requested on many occasions where an employee claims to have been wrongfully dismissed. An injunction is an order restraining the person to whom it is directed from carrying out a specified act or requiring them to perform such an act. They are not confined solely to anti-dismissal injunctions and a wide range of injunctions have been sought such as ordering an employer to pay sick pay or prohibiting the advertising of a particular role or bringing a suspension of an employee to an end. Nor are they solely confined to being sought by employees, although this is most common, as employers can also request injunctions to enforce an element of an employee’s contract of employment, such as the prohibiting of the employee working for a competitor for a specific period following their termination of employment.
Types of injunctions
Injunctions can typically be classified into two categories
- Prohibitory Injunction: where one part is restrained from carrying out a particular act, this is the most common form of injunction sought; and
- Mandatory Injunction: which obligates as party to carry out particular actions.
1) Interim injunctions are sought to preserve the status quo in a dispute until such a time as the action can be tried but is usually only obtained for a particular time (a matter of days) and will only have effect until a further order is made. It is often requested on an ex parte basis where a matter is particularly urgent.
2) Interlocutory injunctions are sought to preserve the status quo in a dispute until such a time as the action can be tried but unlike interim injunctions, will have effect until the final hearing of the action takes place.
Criteria for injunctive relief
Typically the remedy in law where a plaintiff has succeeded in their action is an award of damages, however in order to secure an injunction a court will seek to establish the following;
- That there is a serious question to be tried. The use of the word serious implies that the plaintiff must have a fair or bona fide issue to be tried, and the court must be satisfied that the claim is not frivolous or vexatious.
- That damages would not be an adequate remedy. The court will seek to establish if the plaintiff would be adequately compensated by an award of damages if no injunction was granted but at trail stage they succeeded in resolving the uncertainty in their favour. If there is a fundamental breakdown in the employment relationship and there is no reasonable prospect of the employee being reemployed then if they succeeded at trial the best they could hope for would be damages, and as such in these circumstances the granting of injunctive relief would be inappropriate.
- The balance of convenience favours the granting of an injunction rather than its refusal. Having decided that there is a fair issue to be tried and that damages would not be an appropriate remedy, the court must then decide whether the balance of convenience favours the granting or refusal of an injunction. It is not decided on the merits of each case but on the balance of convenience.
Traditionally the objections to Injunctions were firstly that it was wrong to enforce a contract requiring personal services, as in the absence of mutuality it would be unfair to force an employer to continue to employ an employee who was opposed to continue working for the employer, and secondly where damages could provide an appropriate remedy to an employee.
It is important to state that Courts are reluctant grant injunctive relief to order the specific performance of a contract of employment and will not compel and employer and employee to continue to work together where one or both no longer wish to maintain the employment relationship. Also, and most importantly, injunctive relief will not be granted unless there has been a breach of the person’s constitutional or contractual rights, whether they are in writing or implied. This is important, as it makes it abundantly clear that a court will not grant injunctive relief simply because an employee was dismissed, there must be a fundamental breach in the manner of the dismissal or the terms of the contract of employment. This fundamental breach could be someone whose dismissal falls within the remit of the statutory unfair dismissals legislation, or if they were wrongly dismissed and not given appropriate notice of the dismissal. If they are dismissed with notice, then this will not be categorised as “wrongful dismissal” no matter what the motives are behind the dismissal, and in this instance damages would be considered a more appropriate remedy so injunctive relief would not be granted.
Employers should also note that an unsuccessful injunction application may have serious implications for the plaintiff as if the injunction is not secured the implication is that the High Court view is that the employment relationship subsists and consequently there may be difficulty involved in claiming unfair dismissal before the EAT, and also the substantial exposure to costs associated with taking such a high court action.
Types of orders sought
We have mentioned the two primary types of injunctions that are sought (interim and interlocutory), however the application of these may vary and there are four particular types of order that can be sought by an employee applying for an injunction against their employer.
- An Order of Reinstatement: this is an order reinstating the employee who has been dismissed to their former position. This is difficult to obtain due to the arguments against injunctions mentioned above (reluctance to order specific performance of a contract where there is a mutual fundamental breakdown in trust and confidence) militate against the granting of such an order.
- The “Fennelly Order”: so named after the case mentioned at the beginning as the first Employment injunction granted (Fennelly v. Assicurazioni Generali Spa & Another) where the order does not require the reinstatement of the employee but instead requires that the employer does not proceed with their dismissal. This order is far more likely to be successful prohibits the employer from appointing someone to the employees position and requires the employee to be paid pending the hearing.
- Restraining the Employer from Replacing the Employee: restrains the employer from taking steps to compromise the position of the employee within the business, such as appointing a replacement or reorganising the business.
- Requiring that Disciplinary Hearings be Conducted in Accordance with Fair Procedures: seeking of injunctive relief against an employer in respect of disciplinary action. It is highly unlikely this order may be granted to restrain the operation or effect of a disciplinary process that is being conducted in accordance with fair procedures, such as the employee’s contractual terms.
Recent media attention to some high profile cases have cast a spotlight on this form of action. However, employers should note that a judgement of the Sheehy v Ryan case, exhibited that adherence to the contract of employment could keep an employer out of the courts. The Supreme Court in that case concluded that there had been no breach of contract, as the employer was entitled to terminate the employee’s position upon the giving of reasonable notice. The facts showed that the employer had given three months’ notice where the contract obliged notice of only four weeks.
The Brown Thomas case is an anomaly given that even though the employers followed procedure the order for injunctive relief seemed to have relied on the contention that the dismissal would do irreparable damage to the employee’s reputation and that Ms. Mullen would struggle to find another job in the niche market. It is debatable that if dismissed many employees would suffer damage to their reputation, however it is suggested that the question of reputational damage alone should not be enough to ground an injunction, and thus preventing the otherwise lawful dismissal of an employee.
Employers who do not follow fair procedures in terminating employment for misconduct reasons have always been at risk of an injunction. If the Brown Thomas case is to be relied on in the future, it may also see that employers who dismiss for non-misconduct reasons will be at risk of injunction, if the reputation of the employee is on the line. The decision is an ex parte decision so we will need to see further clarification before this trend becomes precedent. In the interim employers should where possible seek to follow fair procedure in their dealings with employees and they will find that the risk of a potential successful injunction is severely lessened.
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