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Rooney v. Kilkenny [2001] IEHC 32 (9th March, 2001)
THE
HIGH COURT
2001
No.
1121P
BETWEEN
COLETTE
ROONEY
PLAINTIFF
AND
OSSIE
J KILKENNY AND BRIAN P MURPHY
DEFENDANTS
JUDGMENT
of Mr. Justice Kinlen delivered the 9th day of March, 2001.
1. The
Plaintiff issued Plenary Summons on the 26th January, 2001. The general
endorsement of claim includes a request for a declaration that the Plaintiff is
entitled to payment of her salary as a term and condition of her employment
whilst on certified sick leave and that she is and continues to be in the
permanent and pensionable employment of the Defendants as personal assistant to
the first named Defendant. She also sought other declarations, injunctions and
orders. She then brought a motion dated the 29th January, 2001 for the
following orders and relief:-
- An
Injunction restraining the Defendants their servants and agents from treating
the Plaintiff as other than continuing to be employed by the Defendant.
- An
Injunction requiring the Defendant to maintain the Plaintiffs sick pay until
further order or the trial of the action.
- Without
prejudice to the relief sought at paragraph 2 aforesaid an injunction requiring
the Defendants to pay the Plaintiffs salary as it falls due and requiring the
Defendants to discharge all other incidents of the Plaintiffs employment and in
particular the relevant pension premiums.
- An
Injunction restraining the Defendants from dismissing or purporting to dismiss
the Plaintiff from her said post.
- An
Injunction restraining the Defendants, their servants and agents from
appointing any person other than the Plaintiff to the Plaintiffs said position
and restraining the discharge of the Plaintiffs function and responsibilities
by any person other than the Plaintiffs. She also seeks further and other
relief and costs.
2. This
Motion is presently before this Court. The Plaintiff is a certified chartered
Accountant and the Defendants are partners in an accountancy firm, practice
under the style of O J Kilkenny & Co. The Plaintiff has been personal
assistant to the first named Defendant since the month of February 1990. She
alleges that she is being subjected to oppressive, abusive and bullying
treatments by Mr. Kilkenny since at least 1999. She had only had one days
illness off work since she started until January 2000. As a result of the
alleged confrontation on the 19th January, 2000 she was away from work for
approximately 2 weeks with stress related disorder. The Plaintiff was
diagnosed by her psychiatrist as having a severe stress reaction which she
ascribed directly to work stress. She also certified her as unfit to work.
3. Since
the Plaintiffs problem was mainly with her immediate boss the first named
Defendant, the second named Defendant offered to meet her to discuss her
grievances. She refused to attend this meeting unless she was accompanied by
her solicitor in view of her medical condition. The Defendants solicitors
replied in a letter of the 24th October, 2000.
Inter
alia
it states:-
“At
a recent hearing in the Law Society in relation to a claim made by Mr. Ernie
Fallon it was stated by your clients representative that she would be not
returning to her employment with O. J. Kilkenny and Co. You might confirm that
that is the position and if so our client is prepared to offer your client 3
months pay in lieu of notice together with a bonus in the sum of £50,000.00
and
to arrange for the transfer of her pension entitlements under the scheme. If
your client is maintaining the position that she is returning to work our
client will need to take steps to ascertain her fitness to return to work and
the likely date of such return.
You
might note that our client has no contractual arrangement with your client in
relation to payment of sick pay. Notwithstanding this our client has been
paying your client her full salary for a considerable period of time. Your
client has, we assume, applied for and obtained Social Welfare Benefit for this
period and you might arrange for any Benefit Payments to be remitted to our
client. Our client will be reviewing its position in relation to sick pay as
it cannot continue to pay your client sick pay on an indefinite basis. Our
client will pay your client for the month of October, 2000 (that such payment
will be deducted from the three months notice mentioned above).
A
reply of Messrs. A & L Goodbody, Solicitors for the Defendants on the 31st
October, 2000 reads:-
“For
the record and as was made clear to the Disciplinary Tribunal of the Law
Society the position is that our client remains unfit for work. Her medical
advise is that her health problems are entirely due to her situation at your
clients work place. We enclose a copy of her medical report in this respect.
Accordingly,
the position is not, as seems to be suggested in your letter, one of our
clients deciding not to return to her employment but rather that your client
has wrongfully created that situation. If you are in any doubt as to whether
our client can or can not return to work now or at all, we would suggest that
you arrange for a medical examination
to
confirm the position.
With
regard to Social Welfare Benefit we will advise our client appropriately. As
regards sick pay your client does have an obligation to continue payment. We
are instructed that another employee was paid for at least as long. If your
client wishes to be seen to be dealing with this serious matter appropriately
it would need to rethink the strategy and messages conveyed with reference to
continuing payment of our client. Furthermore, we could point out for the
record that our client has earned and is due from your clients the bonus of
£50,000.00 which sum has been due since July, 1997 and unless payments
together with interest is made by return we are instructed to issue proceedings
forthwith.”
4. By
Notice of Motion dated the 29th January, 2001 and returnable for the 5th
February of this year the Plaintiff seeks:-
- An
Injunction restraining the Defendants their servants and agents from treating
the Plaintiff as other than continuing to be employed by the Defendants
1
An
Injunction requiring the Defendant to maintain the Plaintiffs sick pay until
further order or the trial of the action.
2
Without
prejudice to the relief's sought at paragraph 2 hereof an Injunction requiring
the Defendant to pay the Plaintiff a salary as it falls due and requiring the
Defendants to discharge all other incidents of the Plaintiffs employment and in
particular the relevant pension premiums.
3
An
Injunction restraining the Defendants from dismissing or purporting to dismiss
the Plaintiff from her said post.
4
An
Injunction restraining the Defendants, their servants and agents from
appointing any person other than the Plaintiff to the Plaintiffs said position
and restraining the discharge of the Plaintiffs functions and responsibilities
by any person other than the Plaintiff.”
5. It
is agreed by the both parties that this Plaintiff has not been dismissed.
However, it is clear that unhappy differences have arisen between the parties.
The sooner this case is expedited to a full hearing in Court the better for
both parties. It is not necessary at this stage to decide on the merits of the
case. Senior Counsel has stated it is not necessary for this Court to decide
whether she is difficult, whether her employer is the root of the problem. The
question is simply is she entitled to sick leave? The parties agree that the
contract of employment still endures. There is no statutory right to sick
leave. The problem about repayment of Social Welfare Benefit has been resolved
between the parties.
The
Court has been referred to
Boyle
-v- An Post
1992 2 IR 437,
Morrison
-v- Bell
1939 2 KB p.187 1939 1 AER 745. In the
Morrison
-v- Bell
case Scott L J says at p.198 of the official report.
“In
the contrary these cases say in my opinion quite clearly, that under a contract
of service irrespective of the question of the length of notice provided by
that contract wages continue through sickness and incapacity from sickness to
do the work contracted for until the contract is terminated by a notice by the
employer in accordance with the terms of the contracts”
6. This
case lists a long series of English cases
in
which eminent Judges come to the same conclusion as Scott L J in
Morrison
-v- Bell
case
.
The
Court is also being referred to the 6th ed. of Dix and Crump on contracts of
employment at p. 82 at paragraph B.52 states:-
“If
under the terms of his contract expressed or implied the employee is entitled
to wages through temporary sickness. He is entitled during such absence to
receive his full remuneration in accordance with the terms of his employment.
This may, in certain circumstances
include
the bonus.”
7. The
Court was also refereed to
Jakeman
and Others Plaintiffs in the South West Thames Regional Health Authority and
London Ambulance Service
Defendants 1990 Industrial Relations Law Reports p. 62 which found that
mandatory interlocutory relief is sought a more onerous test generally applies
than that of whether the Plaintiffs have a good arguable claim that there is a
question to be tried as laid down in the
American
Cyanamid Company -v- Ethicon Limited.
The headnote reads:-
“In
the present case while there was undoubtedly a serious question to be tried the
Plaintiffs case could not be said to be a clear one. Nor were there any
special circumstances either hardship or otherwise which made it inappropriate
to apply the Locabail test (1986 1 WLR 657 CA) that a clear case must be shown
and that would justify granting mandatory relief on the basis that there was a
serious question to be tried. Although for the Plaintiffs to do without the
wages claimed until the issue was finally determined might well be difficult
for them, such is the case in every claim by an employee for wages paid to him
by his employer and in many other claims for money not arising out of the
employment relationship. In any event whether the initial test was one of a
clear case or of a serious issue to be tried the balance of convenience lay in
favour of refusing the interlocutory relief in that if the Plaintiffs were to
succeed at trial in establishing their right to the deducted wages they would
be adequately compensated by an award of damages. No authority was cited in
which the Court had regarded temporary hardship as a ground for granting
interlocutory relief in a claim for payment of wages. This was understandable
since otherwise nearly every strong case for unpaid wages would attract such an
Order for interlocutory relief. Mandatory interlocutory relief is generally
not appropriate even in a clear case of entitlement to unpaid wages.”
8. In
the 6th ed. Of Dix and Crump on Contracts of Employment paragraph 3.52 p. 82
the following appears:-
“If
under the terms of this contract expressed or implied the employee is entitled
to wages during temporary illness, sickness he is entitled to during such
absence to receive his full remuneration in accordance with the terms of his
employment. This may in certain circumstance include a bonus.”
“The
authority for that statement is
Morrison
-v- Bell
already cited. I should also draw attention to the Terms of Employment
(Information) Act, 1994
Reilly
-v- The Irish Press Limited
ILTR 1971 p.194 Maguire P states at p.195 “as was said by Mr. Martin
Maguire a custom or usage of any kind is a difficult thing to establish.
Before a usage such as is contended for here can be established it must be
proved by persons whose position in the world of journalism entitles them to
speak of with certainty and knowledge of its existence. I have to be satisfied
that it is so notorious well known and acquiesced in, that in the absence of
agreement in writing it is to be taken as one of the terms of the contract
between the parties.”
It
is argued that the letter of the 24th October already cited was not a
termination of employment , merely a termination of sick pay. Is it right that
an employer who refuses to pay is in a better position than someone who pays
for a reasonable period based on generosity ?. If there is, that is something
for a trial judge. The Defendant says 6 months is good practice and is so
regarded by big firms and in public services. This was not contradicted. The
Defendant should not be penalised for doing the decent thing. The difficulty
in this case is in very similar circumstances Laffoy J made an Order similar to
the one sought here. That is
Mary
Charlton -v- H. H. The Aga Khan’s Studs Société Civile
1998 No. 9515P judgment given the 22nd December, 1998
.
9. The
Court has to be satisfied that there is a fair issue to be tried between the
parties and that damages would not be an adequate remedy and that the balance
of convenience favours the granting rather than the refusing of the injunctive
relief claimed.
10. There
are undoubtedly fair issues to be tried in this case for example as to whether
she is entitled to sick pay and if it is restricted to “a reasonable
period” and if so what is the legal definition of “a reasonable
period”. As she had been out on three occasions due to illness she
states that another employee had been out a longer period and was paid in full
this
may
involve finding there is an implied term for the payment (after deduction of
state benefit sick pay). There is also a conflict on the affidavits regarding
the “fault” had in the relationship between the Plaintiff and the
first named Defendant.
11. On
the question of the balance of convenience Laffoy J refers to the line of
authorities commencing with the decision of Costello J, as he then was, in
Fennelly
-v- Generali Spa
1985 3ILTR 73:-
“damages
would not be an adequate remedy for the Plaintiff if it were to be found at the
trial of the action she was entitled to as she contends to sick pay having
regard to the circumstances of the matter justice requires that the Defendant
should be ordered to discharge her sick pay and reserve her pension
entitlements pending the trial of the action subject to the Defendants
reasonable requirements in relation to verification of the Plaintiffs
incapacity for work on medical grounds being adhered to”
“If
the Plaintiff becomes fit for work before the trial of the action her
entitlement to sick pay will cease. The Defendants acknowledges that the
Plaintiffs contract of employment still subsists and, if the Plaintiffs
incapacity ceases, and she presents for work it would be for the Defendants
then to decide what steps to take.”
12. The
Court would adopt as its decision in this case the last preceding two
paragraphs. It is important to realise that in this particular case it is
alleged that the Plaintiffs incapacity is due in part or entirely to the
conduct of the first named Defendant. This is another factor which will be
taken into account on the question of the balance of convenience.
13. Having
regard to all those factors at this stage damages may not be adequate
.
The
Court will adopt the judgment of Laffoy J by making similar orders. It is of
utmost importance that the trial of the action should be expeditied. I propose
fixing a date for the trial and making any Orders in relation to pleadings,
discovery and such like as are necessary on hearing Counsels submissions
pending the trial of the action the following orders will be enforced.
- An
Order that the Defendant pays the Plaintiff a weekly sum equivalent to her nett
salary less a sum as the Plaintiff is entitled to by way of disability or other
benefit from the state provided that the Plaintiff furnishes to the Defendant
on a weekly basis evidence in the form of a certificate from a medical
practitioner of her unfitness for work and that the Plaintiff complies with
reasonable requirements of the Defendant that the Plaintiff be examined by a
Medical Practitioner nominated by the Defendant and that the Defendant maintain
the Plaintiffs pension rights, superannuation and other benefits by paying the
premiums in respect thereof.
- Each
party shall have liberty to apply. The costs are reserved to the trial judge.
The Plaintiff does not have “a blank cheque” and must do everything
possible to expedite her case.
© 2001 Irish High Court
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