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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Judge & Anor v. Diageo Ireland Ltd. [2004] IEHC 411 (21 December 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/411.html Cite as: [2004] IEHC 411 |
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[2004] IEHC 411
Case No. 2004/19744P
APPLICANT
RESPONDENT
JUDGMENT WAS DELIVERED BY MR. JUSTICE KELLY AS FOLLOWS ON 21ST DECEMBER 2004:
The plaintiffs are long standing employees of the defendant. The first plaintiff, who is now 45 years old has been employed by the defendant since the 4th December 1978 and therefore has 26 years service. The second plaintiff is now 48 years old and has been employed by the defendants since the 26th December, 1973, and therefore has 31 years service.
Both plaintiffs are administrators with the defendant at its Dundalk Brewery premises. Both plaintiffs are members of a trade union. Over the years various agreements have been made between the defendant and various Trades Unions providing for, inter alia, new pay structures, early retirement schemes and redundancy schemes. This case concerns one such agreement. It was made in January 2002 and is known as the Dundalk Brewery Transformation Agreement.
It provided, inter alia, for the selection and allocation of staff to positions within the defendant's employment known as 'core roles' or 'support roles'. The agreement also provided for
voluntary parting terms but with a built-in income protection scheme in respect of those whose salaries or earnings would be altered. This was particularly important to those who were assigned 'support roles' or 'support positions'. Each of the plaintiffs was assigned to support positions and were so informed by letter of the 20th June, 2002. Their new positions began on the 1st July, 2002.
In these support positions the plaintiffs were to continue to receive the income which they had been receiving up until they commenced the new positions on the 1st July, 2002 and thereafter they would continue to be remunerated at the same rate as theretofore. However, on the 1st January, 2005, there will be a change in that their salaries will not as of then be paid at the former rate. Rather they will be paid at a lesser rate in accordance with the transformation agreement.
Both plaintiffs commenced their support positions on the 1st July, 2002, and so for the last two and a half years have been paid the rate of pay which was applicable to their employment prior to the 1st July, 2002, but as I say that will be reduced substantially as of the 1st January, 2005, if they remain in the defendants employment. Persons such as the plaintiffs are however entitled, at any time up to the 31st December of this year, to avail themselves of a voluntary parting scheme. This allows a person availing him or herself of it to a lump sum in addition to their statutory redundancy entitlement and also to enhanced pension arrangements.
In respect of the first plaintiff, the voluntary parting scheme will result in him being paid statutory redundancy of euro26,918.70 and a lump sum, of euro91,543.98, together with a pension of euro30,818.95 when he attains his 50th birthday.
In the case of the second plaintiff, she will get statutory redundancy of euro31,997.70 plus euro85,608.29 by way of lump sum and an enhanced pension of euro34,592.86 once she achieves her 50th birthday.
These terms are available to the plaintiffs until the 31st December of this year. Thereafter if they decide not to take them they will continue to be employed by the defendant, but at the rates of pay specified in the transformation agreement which as I have already noted are substantially less than their present salary. Neither plaintiff wishes to remain on in the defendant's employment after the 1st January, 2005 on those terms. Both wish to avail themselves of the voluntary termination scheme. In fact, they say, that they have no option but to do so. They do not wish to avail themselves of the termination scheme on the defendants terms, The reason for this approach is because of the following: The plaintiffs say that had they been over 50 years old on or before the 31st December, 2002, more generous benefits would be available to them under the severance scheme. They complain that they have, because of their age, been treated less favorably than other employees comparable to them in all things save age. This, they say, is a discrimination against them on the grounds of age which is and has been unlawful since the implementation of the Employment Equality Act 1998 in October of 1999.
Under Section 30 of that Act they say that their contract of employment with the defendant contains an implied non-discriminatory equality clause.
This is a complaint which the plaintiffs have been making for a long time. Over two years ago they began a claim before the statutory authority empowered to deal with such matters, namely the Equality Tribunal. Their claim commenced on the 16th December, 2002. Nothing then appears to have been done for a period of ten months. Written submissions on behalf of the plaintiffs were not furnished until the 15th October 2003. The defendants responded on the 22nd December 2003 with further submissions from the defendant in February 2004.
There was some correspondence with the Tribunal in May and June of 2004 but it was not until the 24th November 2004 that the plaintiff's made further written submissions. On any view of it the plaintiffs do not appear to have prosecuted their claim before the Equality Tribunal with either speed or vigour.
One of the terms upon which the termination package is available to the plaintiffs is as follows:
"The departing employee agrees and acknowledges that he has no claim against the company or any group company, its servants, agents, officers, executives, or shareholders, arising out of this employment or pursuant to the Redundancy Payments Acts 1967 to 2003; the Unfair Dismissals Act, 1977 to 2001; the Minimum Notice and Terms of Employment Act, 1973 to 2001; the European Community Safeguarding of Employees Rights on Transfer of Undertakings Regulations, 2003; the Terms of Employment Information Act, 1994 and 2001; the Payment of Wages Act, 1991; the Protection of Employment Act, 1977; the Organisation of Working Time Act, 1997; he Parental Leave Act, 1988; the Employment Equality Act, 1988; the National Minimum Wage Act, 2000; or pursuant to any amendment of any of the foregoing statutory provisions or otherwise or at Common Law."
Execution of an Agreement acknowledging those terms
is the only basis upon which the defendant is prepared to offer the termination package. The package has to be accepted by the 31st December, 2004, and will not be available thereafter. It is in these circumstances that the plaintiffs seek the reliefs which are sought in this application.
Those reliefs are as follows.
(a)They seek an order directing the defendant to pay the plaintiffs a voluntary severance package pursuant to the transforming Guinness package in a manner that will permit the plaintiffs to continue with their claim against the defendant before the Equality Tribunal pursuant to the Employment Equality Act, 1998.
(b)A Declaration that the plaintiffs are entitled to pursue a claim pursuant to the Employment Equal ity Act, 1998 without losing their legal and/or contractual entitlement to voluntary service.
(c)An injunction restraining the defendant from discriminating against the plaintiffs in any way in relation to the transforming Guinness severance package as a result of their proceedings before the Tribunal.
(d)An injunction restraining the defendant from interfering in any way with the plaintiffs proceedings before the Tribunal pursuant to the Employment Equality Act, 1998.
(e)An injunction restraining the defendant from declining to pay the plaintiffs voluntary severance in accordance with transforming Guinness;
(f)An injunction restraining the defendant from requiring the plaintiffs to execute the document and conditions of departure in order to avail of the transforming Guinness Voluntary
Severance Package; and
(g)An order directing an early date for the hearing of the within claim."
Counsel for the plaintiff acknowledges that in effect the relief which is sought at paragraph (a) of that Notice of Motion is the effective relief which is contended for here.
The grant of a mandatory interlocutory injunction, which is of course what is sought here, is rare. It is an exceptional form of relief. The defendant contends that this case does not come anywhere near to meeting the appropriate criteria for the grant of such an order.
First the defendant contends that the plaintiffs have not shown that there is a fair case for trial. The defendants says that there is no legal basis for the Court's intervention. I'm of the view that the defendant is correct in this regard. I'm not aware of any case where the Court has intervened to re-write the terms of a voluntary severance agreement which is what, in effect, is sought here.
No case in support of her contention has been cited by counsel for the plaintiff and she acknowledges that there is no such case. I bear in mind what was said by Lord Reid in delivering his speech in the Case of American Cyanamid -v- Ethicon, which is reported at [1975] 1 All ER at page 504 and in particular the passage at 510, where having considered the Court's function at this stage of the litigation and the necessity to be satisfied that there is a serious issue for trial, or a serious question to be tried, he went on and said:
"So unless the material available to the Court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the Court should go on to consider whether the balance of conveniences lies in favour of granting or refusing the interlocutory relief that is sought."
Now, I note there that Lord Reid refers to the prospect of the plaintiff's succeeding in his claim for a permanent injunction at trial. In my view, the plaintiff's have no realistic prospect of obtaining the injunction which is sought in this case at trial. If they do have a case at all it seems to me that it will be one which will be met by an award of damages, a matter to which I will turn in a moment.
In any event, I have to bear in mind that if the injunction were to be granting at this stage of the proceedings, it would in effect be granting on motion at an interlocutory stage, the principal relief which is claimed in the action. That would preempt the ultimate decision of the Court. I think it would be peculiarly inappropriate to grant such an injunction in circumstances where, in my view, the prospect of getting such an injunction at the trial is remote.
I also have to bear in mind that the grant of such an injunction at this stage would effectively decide the very issue which is before the Equality Tribunal. Therefore, it seems to me that the plaintiffs fall at the first hurdle insofar as demonstrating that there is here a serious issue for trial. Lest, however; I'm wrong in that view I will go on to consider the other two matters that any plaintiff has to satisfy the Court on before an interlocutory injunction can be granted. The next issue is the inadequacy of damages.
The essence of the plaintiffs case is that they should get better terms than those which are on offer. They say that they should be treated as if they were over 50 on the relevant date. The net effect of such would be to give them enhanced terms, all of which are quantifiable in money terms. Regardless of the way in which the claim is formulated, it's about getting more money or money's worth and thus such damage is remediable in an award of damages. If the plaintiff's legal rights have been breached, then an award of damages will, in my view, compensate them fully in that regard.
Even If I'm wrong in this, I am quite satisfied that the balance of convenience is against the grant of the injunction rather than in its favour. The plaintiffs could have pursued their claim before the Equality Tribunal with much greater speed. For all I know the case might well have been decided thereat . this stage. The delay encountered before that tribunal seems very largely that of the plaintiffs. Now at the 11th hour they seek this Court's intervention. They do so in circumstances were they have availed themselves of the terms on offer since July of 2002, but now wish to alter those terms.
I note that eighteen people received the June 2002 letters. Nine are still employed and the other nine presumably have taken the package. Four of the nine remaining are taking the package without demur. Three will remain on in their position subsequent to the 1st January, 2005. That leaves the two plaintiffs, (One other who is a co-applicant with them before the Equality Tribunal has now taken the package without resort to this Court.)
The agreements which are the subject of the package have been negotiated by trade unions representing the plaintiffs. It seems to me that the plaintiffs are free to choose or to reject the package, but they are
not entitled to an order from this Court to effectively re-write it so as to make what is a voluntary severance an involuntary one from the defendant's point of view.
If the plaintiff's believe in the efficacy of their case before the Tribunal, then they can continue with it where their rights will, I have no doubt, be fully vindicated. A difficulty is confronted by them, of course, if they take the package on the terms offered by Defendant in that they, on one view of it at least, will then be writing off their entitlements to pursue the matter before tribunal. But that is a matter for them to decide and, as I say, if they believe in the efficacy of their case, then they can continue on quite freely in the defendants employment and pursue their claim before the Equality Tribunal where, if they are correct, they will be fully vindicated. It is entirely up to them as to whether they take the terms which are on offer or not. But in my view, there is no basis upon which this Court could intervene at this stage and grant injunctive relief of the type sought for the reasons which I have indicated.
Consequently, the application for an injunction will be refused.
Approved: Peter Kelly 12-01-2005