High Court of Ireland Decisions

1. The Plaintiff in this matter seeks an Injunction from the Court restraining the Defendant from giving effect to the purported dismissal of the Plaintiff from his post of Creative Director in the Defendant who is a well known advertising agency.

2. Among several other reliefs sought the Plaintiff is applying for a mandatory injunction requiring the Defendant to pay his salary as it falls due and to discharge all other incidents of the Plaintiff’s employment. This relief is regarded as vital.

3. The Plaintiff was working in the advertising industry in Canada in 1998. He sent his portfolio to Mr. Wright of Bell Advertising which is now part of the Defendant with a view to employment with that company or with any other similar company in Ireland.

4. An agreement was reached on the fundamentals of contract of service. It is common ground that the Plaintiff would be employed as of March, 1999 as a Creative Director on a salary of £60,000 per anumn. In addition an allowance must be made with regard to relocation expenses.

5. By letter of the 20th November, 1998 Mr. Wright offered the Plaintiff a position as Creative Director on certain terms and conditions including a condition relating to discipline and to termination.

6. The Plaintiff says he returned this contract to Mr. J.P Donnelly, the new managing director of the Defendant in December. This is denied by Mr. Donnelly. The Plaintiff says that the contract did not contain all of the elements of agreement with Mr. Wright. Particularly it did not deal with pension entitlements, the provision of a car, the provision of health insurance and the reimbursement of all trans location expenses for the Plaintiff and his family. He further states that though relocation expenses were limited to £1,000 in the aforesaid written offer that the company, in fact, agreed to pay £4,000 which was later increased to £4,700 and, ultimately, to £7,500 (to be refunded if the Plaintiff did not remain in the Defendant’s company for more than one year). In addition, a Ford Fiesta was supplied to the Plaintiff’s wife. The Defendant says that these elements were ex gratia and not contractual terms of the agreement.

7. Moreover, the Defendant says that the contract was never returned to them and that the Plaintiff continually requested a new contract reflecting what he believed to be the agreement between himself and Mr. Wright.

8. It seems to me that this preliminary issue of the return of the contract is not matters with which I should concern myself at the stage of an interlocutory injunction. It is clear that the Plaintiff commenced work in March of 1999 and continued until February, 2000.

9. The Plaintiff says that on the 4th February, 2000 he was summarily dismissed without being given any warning or notice. No disciplinary procedures were followed and he was denied natural justice in the manner in which the decision was taken.

10. By letter dated the 7th February, 2000 he was given “the required one months notice of our wish to terminate your contract of employment from today the 7th of February, 2000. I understand that this is a difficult time for you but given the circumstances we would prefer if you did not work out your notice period. We will of course pay you in full for the notice period.”

11. The Defendant agreed to pay a further £2,500 as an ex gratia payment and not to look for a refund of the costs of relocation. However, it required the Plaintiff’s wife to return the car on the 7th March, 2000.

12. The Plaintiff was asked, the following day, to vacate the building by close of business. Later that day the company confirmed, by letter, that the Plaintiff was being suspended on full pay effective February 8th, 2000. It required that the Plaintiff vacate the building by close of business on the 8th returning all house keys.

13. On the 14th of February, 2000 the group financial director wrote to the Plaintiff purporting to clear up any ambiguity that might have arisen over the letter of the 7th February and confirmed the company’s intention to terminate the Plaintiff’s contract as of the 7th February, 2000. The company would pay one months salary in lieu of notice and honour the other commitments made in that letter of the 7th, a sum of £7,500 would be transferred to the Plaintiff’s bank which, the writer believed, discharged the companies responsibility to the Plaintiff.

14. Mr. Wright, by Affidavit, takes issue with some of the averments contained in the Plaintiff's Affidavit. While the Plaintiff performed his creative duties adequately there were a number of difficulties with his interpersonal relationships and a number of disputes with colleagues and more importantly with clients. His behaviour in walking out of work made it clear to the Defendant that the Plaintiff did not have the qualities necessary to operate at the level of creative director.

15. Mr. Donnelly, in his Affidavit, also takes issue with a number of averments of the Plaintiff and says that the Plaintiff has exaggerated and misrepresented the circumstances surrounding his arrival. Mr. Donnelly states that the Plaintiff constantly made an issue out of relatively minor matters rather than approaching them in a manner appropriate to his position. It was difficult for the Defendant to deal with him or for him to discharge his duties in respect of people who were reporting to him.

16. These difficulties as specified in Mr. Donnelly’s Affidavit as are conversations he had in relation thereto with the Plaintiff.

17. Mr. Donnelly says that the Plaintiff indicated that he would be prepared to reconsider his resignation in July, 1999. Mr. Donnelly says he decided that as the Plaintiff had shown no previous evidence of leadership qualities that he was of the view that the Plaintiff would not do so in the future and that he would accept the Plaintiff’s resignation which was during the probationary period of six months as provided in the contract. Mr. Donnelly said he allowed the Plaintiff to complete the creative work on the projects and to relieve the Plaintiff of his managerial duties. Again this is denied by the Plaintiff.

18. In relation to the meeting of the 4th February, 2000 and the subsequent letters, Mr. Donnelly says that he was conscious that the Plaintiff had not ever executed his contract of employment but that he considered one months notice and the waiver of his relocation expenses to be appropriate. As the Plaintiff refused to leave the premises and created a disturbance he was informed that he would be suspended and that the matter would be subsequently resolved.

19. I have difficulty in reconciling the Defendant’s understanding that the Plaintiff had resigned his employment in July, 1999 with dismissal letters of the 7th and 14th February, 2000 (and, indeed, the suspension letter of the 8th February, 2000) which make no reference to the alleged resignation of July, 1999.

20. It is common cause that no reasons were given for the dismissal and that the notice of one month did not correspond to that contained in the written offer of 20th November, 1998.

21. While I have no doubt that the terms of the offer of 1998 in respect to notice was accepted, at least by conduct of the Plaintiff, the Defendant would appear to have ignored this provision.

22. This being so, it seems to me that the Plaintiff has been denied a contractual right to notice. However, the remedy for such denial lies in damages not in injunctive relief.

23. Mr. Horan, S.C., for the Plaintiff laid considerable stress on the lack of reasons for the purported dismissal of the 4th February. He says that the reasons given in the Affidavit of Mr. Donnelly were not put to the Plaintiff at or before the time of the purported dismissal. He had not an opportunity to comment on or refute those allegations.

24. Mr. Conaughton, B.L., on behalf of the Defendant, stressed that the Defendant genuinely believed that the Plaintiff intended to resign from his position. In such circumstances the issue of natural justice had no place. The Defendant was prepared to give three months notice or payment in lieu.

25. The Defendant had not invoked disciplinary issues.

26. Moreover, the Defendant submits that the only issue is that of damages. There is, accordingly, no issue which requires injunctive relief.

27. The Plaintiff’s Affidavit discloses that there is a serious issue relating to the Plaintiff’s unhappiness while working for the Defendant. He refers to the Defendant endeavouring to undermine his role; that he was not afforded an opportunity from the commencement to act as Creative Director; that he was deeply dissatisfied and threatened to resign.

28. If the Defendant had disparaged or besmirched the Plaintiff in any way then, clearly, it would have had to abide by principles of natural justice in dealing with the Plaintiff. However, it did not do so. It gave the Plaintiff notice.

29. The Plaintiff relies on the following cases and the statutory instrument in support of his contention that proper procedures were not followed and that, accordingly, he was denied principles of natural justice. These cases are:

30. Hill -v- C A Parsons & Company Limited (1992) 1 CH 305;

31. Gunton -v- Richmond-upon-Thames Londonborough Council (1980) ICR 755;

32. Irani -v- Southhampton and Southwesthampshire Health Authority (1985)

33. Terence Shortt -v- Data Packaging Limited (1994) ELR 251;

34. Bryan Boland -v- Pheonix Shannon (1997) ELR 113;

35. Rob -v- Hammersmith and Fulhum Londonborough Council (1991) ICR 514;

36. Jones -v- Gwent County Council (1992) IRLR 251;

37. Harte -v- Kelly (1997) ELR 125 and

38. Lonergan -v- George Salter Townsend, The Irish Council for People with

39. Disabilities and The Minister for Justice, Equality and Law Reform

40. The Plaintiff also relies on the code of practice on disciplinary procedures contained in SI number 117 of 1996 (Industrial Relations Act, 1990, Code of Practice on Disciplinary Procedures) Declaration Order, 1996.

41. It is clear that while many of these cases apply to office holders that the subsequent provisions and, indeed, the Code of Disciplinary Procedures applies to employees generally. However, all apply to purported dismissal for reasons given or arising out of disciplinary procedures.

42. The Defendant stresses that these have no application to the present application for injunctive relief.

43. Mr. Conaghton relies on the following Supreme Court decision as a ground for dismissing the Plaintiff’s application.

44. In its defence of the proceedings, the defendant raised a preliminary objection seeking to have the plaintiff’s claim struck out as the claim contravened Section 15(2) of the Unfair Dismissals Act, 1977 in that the Plaintiff had already made application to a Rights Commissioner under the provisions of the Act.

45. In the High Court, Carroll J. allowed the defendant’s preliminary objection and struck out the proceedings against the defendant.

46. The plaintiff appealed to the Supreme Court which dismissed the appeal.

47. The grounds of dismissal were:

48. In this case the Plaintiff seeks a declaration that he is and continues to be Creative Director in the Defendant’s employ pursuant to a contract of service and that the purported summary termination of that contract of service was and is without efficacy and constitutes an unlawful repudiation of the Plaintiff’s contract on the grounds particularised in the endorsement of claim.

49. Barrington J. giving judgment for the Supreme Court agreed with the submission on behalf of the defendant. He stated that this was a case of the oust of the jurisdiction of the High Court which remains the same. He continued:

50. In the present case, the Plaintiff has not elected to pursue a remedy under the Unfair Dismissals Act, 1977. He had not been in employment for the requisite period required under the Unfair Dismissals Act. However, Parsons has a relevance insofar as the pleadings are concerned. The Plaintiff seeks a declaration that he is and continues to be a Creative Director in the Defendant’s employ pursuant to contract of service and looks for further declarations and injunctions. In respect of damages he seeks aggrevated/exemplory damages in defamation, misrepresentation, negligent misstatement, deceit and want and infringement of the Plaintiff’s constitutional right to earn a livelihood.

51. Significantly, there is no claim for damages for wrongful dismissal.

52. In such circumstances it seems to me that Parsons has application. If the traditional relief at common law for Unfair Dismissal was a claim for damages then the Plaintiff may also have been entitled to declarations and injunctions in aid of his common law remedy. But if such equitable relief has no independent existence apart from the claim for damages for wrongful dismissal then, it seems to me, that there is no other free standing relief which can be claimed at law or in equity.

53. Moreover, in relation to the rules of natural justice being complied with, it seems that the Defendant has not chosen to dismiss the Plaintiff for misconduct. In Mervin Phelan -v- BIC (Ireland) Limited, Biro BIC Limited, Associate BIC SA and Robert McDonald (1997) ELR 208 at 210-211 the Court held as follows:

54. In this case the Defendants make no allegation of misconduct.

55. In the circumstances the Plaintiff is not entitled to the relief claimed.