There are circumstances in which the High Court will grant an Injunction to a Plaintiff employee to restrain the Defendant employer from terminating the Plaintiff’s employment where the Defendant employer is alleging gross misconduct and has commenced a disciplinary process, which is flawed. Such High Court Applications are however risky and costly.
The principles upon which a Court will grant such an Injunction were clarified in Merck, Sharp & Dohme Corporation -v- Clonmel Healthcare Limited  IESC 65,  2 IR 1, where, in summary, the Supreme Court stated that the Court should firstly consider whether, if the Plaintiff succeeded at the Trial, a permanent Injunction might be granted. If not, then it is extremely unlikely that an Interlocutory Injunction seeking the same Relief pending Trial could be granted. The Court should consider whether there is a fair question to be tried and, in considering how best the matter should be arranged pending the Trial, consider the balance of convenience and the balance of justice. In doing so, the Court should consider the question of the adequacy of damages, as an alternative to an Injunction. The Court should be robustly skeptical of a claim that damages are not an adequate remedy but, in consideration of the above, the fundamental objective is to seek to minimize injustice. It has long been accepted that, in order to obtain an Injunction to prevent termination of the employment relationship, it is necessary to establish, not just a fair issue to be tried, but a strong case likely to succeed.
Most recent Decision
This question again came up for consideration by the High Court by Mr. Justice Rory Mulchay in the Decision of RM Plaintiff -v- SHC Defendant Rec No. 2023/2003P  IEHC 424 in a Judgment delivered on the 19th July 2023.
Where it will be noted that the identity of the parties had been anonymized, an Order had been made previously by another Judge of the High Court that the names of the parties be anonymized as a result of an application submitted to the Court. This would be unusual in Civil Court employment law cases (where Family Law Hearings are always anonymized).
The Plaintiff worked for the Principal of the Defendant for many years. After her return from a period of sick leave the Plaintiff was contacted by the Principal, requesting whether an important action had been undertaken, which would have serious negative consequences if not attended to. The Plaintiff was left very disturbed by the manner in which the Principal raised the issue with her. Following the call, the Plaintiff left the office and later that day was certified as unfit to return to work. Over the next number of weeks, the Plaintiff contacted the office on a number of occasions seeking to meet with the Principal and she declined the offer of the financial controller of the firm to meet with her.
Arising from the Principal’s refusal to meet with the Plaintiff, the Plaintiff subsequently delivered a 28-page letter to the Principal’s home on the evening of the 15th June 2022. It was the manner of the delivery of that letter and the contents thereof which gave rise to the allegation of gross misconduct against the Plaintiff.
After return from sick leave in early November 2022 the Plaintiff was suspended on the 30th November 2022 with pay pending a Disciplinary Investigation relating to her conduct on the evening of the 15th June 2022, alleging “inappropriate, intimidating behavior” that night. Terms of Reference was subsequently drawn up after the appointment of an Investigator and ultimately the Investigator issued a Report on the 13th March 2023 which was sharply critical of the Plaintiff; although not making any finding of gross misconduct or otherwise.
Following receipt of the Report, the Plaintiff received a letter dated 23 March 2023 from the financial controller stating that, in accordance with the disciplinary procedure, she was the “nominated company representative”, that the findings of the Report were sufficiently serious to potentially amount to gross misconduct, warranting summary dismissal, and requested the Plaintiff to provide a written statement in response, which she would consider before making a decision.
When the Plaintiff subsequently replied by email rejecting the allegation of misconduct and querying the inclusion of the firm’s Disciplinary Policy (which it was accepted previously had not applied to her as it was not in existence at the date of her appointment), the Plaintiff subsequently received a letter dated 6th April 2023 purporting to be from the financial controller. The letter stated that: “having taken all the facts and circumstances into consideration, I have decided to summarily dismiss you from your engagement with immediate effect”. She was also informed that an appeal could be submitted in writing to the Principal, i.e. the Defendant, within 5 working days and would be decided by the Defendant.
One significant feature, as noted by the Judge, of the letter was that although it was purported to be from the financial controller, it was signed by the Principal.
The blurring of lines between the Investigation and the Disciplinary Procedure
As will be noted, at this time the matter had come out of the Investigation and was moving into a Disciplinary procedure. However, whereas the matter should have stayed with the financial controller for a decision to be made as to whether the matter would move to a Disciplinary procedure where, in the normal course someone else would be appointed to chair the Disciplinary Hearing, at that point the Principal stepped in and by-passed this process, making a decision to dismiss the Plaintiff and, contrary to proper procedure, stating that ultimately any appeal would be decided by her also!
While the Plaintiff replied, stating that she wished to appeal and subsequently requested an extension of the time allowed for the Appeal ultimately the employer replied, stating: “as matters stand, your employment with the Firm is terminated upon grounds of gross misconduct”.
The email did state that any Appeal received “same shall be considered strictly without prejudice”, but by that stage the damage had already been done!
Subsequently on the 28th April 2023 the Plaintiff’s solicitor wrote to the Defendant with regard to the process and called upon the Defendant to give certain undertakings with regard to the Disciplinary process. The Defendant replied by letter dated 2nd May 2023 denying the allegations of breach of fair procedures and declining to reinstate the Plaintiff. That letter was signed by the Principal.
Judge Mulcahy noted that there were a number of matters given rise to a strong case for breach of fair procedures, referring to the blurring of the lines between the investigation phase and the disciplinary phase. There was a breach of the Plaintiff’s entitlements to a fair procedure and he was satisfied that she had established a strong case that the Defendant had failed to follow a disciplinary procedure with which she was bound to comply. The fact that the Defendant seems to have had at least some involvement in the initial decision to dismiss the Plaintiff might, on its own, constitute a strong case likely to succeed.
Balance of Justice
Taking account of the principles outlined in previous case law and particularly noting that this disciplinary process related solely to the events of the night of the 15th June 2022, where there was no suggestion of dishonesty or lack of competence on the part of the employee, noting also that the Plaintiff was entitled not to have her reputation tarnished by a finding of misconduct based on an unfair process, the Judge was of the view that it would be premature to conclude that the employer/employee relationship was at an end at that stage.
In the circumstances he granted a limited form of Injunction, directing the employer to pay the Plaintiff’s salary pending the trial of the action on the provision by her of an undertaking to carry out any reasonable duties that the Defendant, in her discretion, may require of her. While the Defendant could choose to suspend the Plaintiff pending the trial of the action, that was on the basis that she would continue to pay her salary and the Defendant would be restrained from relying on any statement in the Disciplinary procedure which occurred after the date of receipt by her of the Investigators Report.
In what can only be described, in the writer`s view, as a “rush of blood to the head”, this Principal made a decision to step in to the Disciplinary process prematurely, dismissing the employee and in turn stating that any Appeal would be decided by her also. This resulted in very expensive High Court Proceedings for the employer and, in default of resolution, the continuing cost of the payment of the employee`s wages pending the trial of the action and in turn a Trial which could take a number of days to be heard in the High Court.
During the Hearing, Judge Mulcahy noted what was stated by Clarke J in an earlier case of Bergin v Galway Clinic Doughiska Ltd  IEHC 386,  2 IR 205 (at p.212), part of which I have quoted below:
“…. It would be somewhat naïve not to surmise that a significant feature of the interlocutory hearing is concerned with both parties attempting to establish the most advantageous position from which to approach the frequently expected negotiations designed to lead to an agreed termination of the contract of employment concerned. The employee who has the benefit of an interlocutory injunction can approach such negotiations from a position of strength as can the employer who has successfully resisted an interlocutory application.
The risks for an employee can often be less, particularly where that employee does not own property and is a “person of straw”. In those circumstances, the employer cannot threaten to pursue the employee for Costs, where the employee is unsuccessful in the Injunction Application. The position for the employer however is very different. The employer could lose their business in the costs of such a High Court Hearing.
It would be wise therefore to take legal advice in a Disciplinary process before a rush of blood to the head!
For further information on Employment Claims you should contact:
Morgan McManus Solicitors