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 interlocutory 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  15 ELR 87 and Orr v. Zomax  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  ELR 137 who also stated that the test of interlocutory 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  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 Court made a declaration that the dismissal was void on the basis that fair procedures had not been applied. In particular the decision to dismiss was made arising from a meeting the plaintiff did not attend.
Since Maha Lingham v. Health Service Executive there have been some cases in which the plaintiff succeeded in getting an interlocutory injunction in relation to a dismissal for other than misconduct. Those cases include:-
- In Naujoks v. National Institute of Bioprocessing and Medical Research  ELR 84 the plaintiff was a CEO dismissed with 6 months notice. There was a strong arguable case that it was represented to him he would be in the position for at least 5 years. There was a strong arguable case that dismissal had taken place contrary to the articles of association of the company. There was a strong arguable case that the plaintiff had not been furnished with written notice of dismissal is required by the contract of this employment. There was a strong arguable case that dismissal was for misconduct when reading the replying affidavit of the defendant which stated the defendant had lost confidence in his ability to manage the company.
- In Burke v. Independent Colleges Ltd. 2011 ELR 169 the court granted an injunction on the basis that the dismissal was affected contrary to the requirement in the articles of association which required the consent of another company before dismissal was affected.
- In Holland v. Athlone Institute of Technology 2012 ELR 1 the plaintiff won a claim befor the Labour Court to the effect that he held a contract of indefinite duration. Shortly after this the High Court granted an interlocutory injunction restraining the dismissal on the basis that there was a strong arguable case that the plaintiff had a legitimate expectation that his contract of indefinite duration had the same status to that of a tenured lecturer and the expectation arose from the DOE circulars.
- In Norton v. HSE 2013 ELR 313 the plaintiffs were social workers carrying out social work for the HSE. On paper they were employed by Don Bosco and were dismissed by Don Bosco in 2012. The HSE proposed that they would be replaced by HSE workers. The plaintiffs succeeded in getting an interlocutory injunction restraining the dismissal, primarily on the basis of the Temporary Agency Workers Directive 2008/14, which was due to be commenced on 5/12/11 but had not been commenced at the time of their dismissal. The directive provided inter alia that temporary agency workers would be informed of opportunities for permanent employment. The court pointed to the fact that, although Don Bosco discharged the plaintiff’s wages, all control was exercised by the HSE.
- In Brennan v. Irish Pride Bakeries 2015 IEHC 665 the plaintiff succeeded in getting an injunction for payment of salary pending the action. A receiver was appointed to the defendant who dismissed the plaintiff, a senior employee, without paying 3 months notice as required under the contract. The court held the plaintiff had a contractual entitlement to 3 months notice and an injunction was appropriate. The defendant could either pay 3 months notice or pay salary pending the determination of the action. The employer appealed having paid the 3 months notice. The appeal was refused by the Court of Appeal. The receiver could not be put in a better position than the employer – if the employer was obliged to pay 3 months notice then so was the employer. There was a potential practical benefit to the injunction – there was a transfer of undertaking situation and it was arguable the plaintiff transferred with the business. The defendant had not shown an inability to pay the plaintiff’s salary pending salary pursuant to the injunction and the injunction might be refused if it had.
In Ryan v. ESB International Limited 2013 ELR 173 the plaintiff had been employed by the defendant for over 20 years as an engineer. In his last 3 years of employment, he made 3 sets of bullying complaints against other employees. The plaintiff argued that at least one set of complaints were not considered on the merits. In 2013 he had received a final written warning for having said to an employment assistance officer that he was glad he ‘hadn’t come to work armed’ on learning who had been appointed to hear one set of bullying complaints. The plaintiff was then called to a further disciplinary hearing “to establish whether the relationship of trust and confidence has been damaged beyond repair”, by reason of the bullying complaints that were made and not upheld. Following a hearing of this allegation, the claimant was dismissed on the grounds of gross misconduct 2/11/12. The court held that the plaintiff had proven a strong arguable case likely to succeed. The defendant had embarked on a fresh investigation of the documentation generated by the plaintiff’s bullying complaints which was wholly divorced from any consideration of the veracity of the bullying complaints or a consideration of whether there was justification for the plaintiffs sense of grievance arising from the way the complaints were handled. The court granted a Fennelly order rather than an order allowing the plaintiff to return to work. The delay of 8 weeks in instituting the interlocutory proceedings was not fatal.
In Hartnett v. Advance Tyre Company Limited (Unreported High Court 19/12/13) the plaintiff was dismissed for receiving corrupt payments from a supplier. The court held there was a breach of fair procedures – the plaintiff was not permitted to cross-examine the supplier alleging he was asked to make a payment. The court refused to grant the injunction on basis of balance of convenience – the plaintiff had revealed in a disciplinary hearing that he had received a sum of money, had not disclosed this fact earlier, and would not disclose the amount at the appeal hearing.
In Hughes v. Mongodb Limited (Unreported High Court 6/6/14) the court stated that a dismissal for performance, as opposed to misconduct, would not implicitly require fair procedures and merit an injunction. An injunction might be available if the contract expressly required fair procedures in a performance dismissal.
Injunction to restrain disciplinary procedure from continuing in it’s current form
In some cases, an employee may seek to injunct disciplinary procedures from continuing in circumstances where a decision to dismiss has not been reached. Usually the interlocutory order sought will be that the defendant cannot continue with the disciplinary hearing until fair procedures are complied with or the order might be more specific about what actions the employer must take to comply with fair procedures. For instance, this could arise where the plaintiff has not been furnished with statements against him prior to the hearing.
In Becker v Board of Management of St. Dominic’s Secondary School  1 IR 561 the court refused an interlocutory order of this nature and stated:-
“[I]t is my view that a court should only intervene in the course of an uncompleted disciplinary process in a clear case….
In general terms it seems to me that the circumstances in which the court should intervene is where a step, or steps, or an act, has been taken in the process which cannot be cured and which is manifestly at variance with the entitlement to fair procedures.”
In Minnock v. Irish Casing Company Ltd  ELR 229 the High Court (Clarke J.) granted an injunction to restrain an investigation into disciplinary matters from proceeding. The defendant argued that the second defendant had only engaged in an investigation process and not a disciplinary process and therefore the injunction was premature. The court held that the second named defendant had purported to make findings and had therefore not confined himself to collecting evidence and determining whether there was a case to answer to warrant formal disciplinary proceedings. Those findings were made in breach of fair procedures where inter-alia the plaintiff only received a detailed account of the financial allegations being made against him 3 days before the investigation. The defendants were free to appoint another person to carry out a fresh investigation.
In McLoughlin v. Setanta Insurance Ltd. 2012 ELR 57 the plaintiff was a general manager for the defendant and was suspended with pay for allegedly making a significant overstatement of underwriting results and a substantial reduction in the claims reserves. The human resource manager was to conduct an investigation to establish findings which would be presented to the board who would determine whether to proceed to a disciplinary hearing. The plaintiff was granted an injunction restraining the investigation from proceeding on the basis that there was evidence that the human resource manager had prejudged the allegations. The court in particular looked at the replying affidavit of the defendant to find such prejudgement.
In Elmes v. Vedanta Lisheen Mining Limited (Unreported High Court 21/2/14) the plaintiffs were senior management team employed at Lisheen mine. Arising from the death of a minor in April 2013, senior employees of the defendant did a report which included a finding that management had adequately reinforced proper behaviour and a video presentation was done recommending the disciplining of senior management. The court refused an order barring any disciplinary proceedings – the plaintiffs had failed to make it a strong arguable case likely to succeed, and no disciplinary procedures had commenced. The court refused an order directing the defendant to appoint an independent investigator to investigate grievances the plaintiffs had raised – there was no legal authority that would entitle the court to make such an order. The court made an order extending the sick pay beyond the express term of 6 weeks – there was a strong arguable case that the defendant had a practice of paying more than six weeks sick pay.
In Joyce v. Board Management Colaiste Iognaid 2016 ELR 140 the plaintiff succeeded in getting an interlocutory injunction restraining the disciplinary process from continuing in it’s existing form. The defendant had produced a report in July 2015 which purported to be an investigation report. The court held there was a breach of circular 60/2009, the disciplinary procedure applicable, in that the defendant did not distribute copies of the report to the plaintiff and the board simultaneously but rather furnished a copy to the plaintiff after it had been discussed by the board of management. Also the report contained findings and conclusions which had been made without affording the plaintiff fair procedures.
In Rowland v. An Post  IESC 20 the court refused an injunction restraining a disciplinary process from continuing as the claim was premature and the process had not reached a point where it had gone irremediably wrong. There were separate and subsequent proceedings to challenge the termination of the postmaster and they could go ahead and all issues of fair procedures could be determined therein. The allegation against the plaintiff was that he had artificially increased activity at the post office to get better payment. He argued he had not been furnished with data of comparable post offices and had not been given the right to cross-examine persons who compiled the questions against him.
In Lyons v. Longford Westmeath ETB 2017 IEHC 272 the employee succeeded in getting an order quashing the findings of an investigation body that he had bullied another employee because he had not been permitted legal representation before the investigator and he had not been permitted to cross-examine the complainant and other witnesses. The findings of the investigation were to be used by the employer in determining sanction (stage 4 stage), and he was entitled to legal representation at stage 4 under the company rules.
Injunction to restrain a transfer of duties outside of the disciplinary process
In Earley v HSE  IECA 158, the Court of Appeal granted a declaration to the effect that the re-assignment of the plaintiff from her role, as Area Director of Nursing, Mental Health Services for the Galway/Roscommon area to Area Director of Nursing with the Programme Management Office of the National Mental Health Division of the HSE, constituted a breach of contract. The High Court had granted an interlocutory injunction but refused an injunction at full hearing. The Court of Appeal overturned the High Court decision and found that there was no basis by which the Ms Earley could have been lawfully re-assigned from her position. The Court of Appeal reviewed the plaintiff’s contract of employment and found that there was no express contractual right allowing the HSE to re-assign.
Where an employee has been dismissed for misconduct and fair procedures had not been complied with there may well be value in bringing a High Court injunction. The principal advantage to the plaintiff is a speedier resolution than is offered by the Employment Appeals Tribunal.
There may be cases where the injunction option might be considered for a dismissal for other than misconduct such as where there is breach of an express or implied contractual term or breach of the articles of association. However, the test of balance of convenience and damages not being an adequate remedy will have to be considered before the interlocutory injunction is brought.
In relation to an injunction to restrain a disciplinary process from continuing, the High Court will not intervene unless a step has been taken in the process which cannot be cured and which is manifestly at variance with the entitlement to fair procedures. Even then the court is likely to make orders in relation to how the disciplinary procedures should proceed rather than stop them completely. Success at this stage might be a pyrrhic victory – it might enable the employer to cure defects in the disciplinary process and leave the employee with less arguments to make at the ultimate EAT or court hearing.
I intend to update this page as the law develops.
The content of this article is intended to provide a general guide to the subject matter and is not intended to be a substitute for legal advice. Specialist advice should be sought about your specific circumstances.
Stephen O’Sullivan BL