High Court of Ireland Decisions

APPROVED                                                                                                 [2025] IEHC 79

 

THE HIGH COURT

Record No.: 2025/447 P

BETWEEN:

 

TOM RONAN

                                                                                                            Plaintiff

 

-and-

 

COMMISSIONER FOR AN GARDA SIOCHANA, IRELAND AND

THE ATTORNEY GENERAL

                                                                                                            Defendants

JUDGMENT of Mr. Justice Rory Mulcahy delivered on 14 February 2025

 

Introduction

 

1.         On 23 March 2023, the plaintiff turned 70. As a consequence, and in accordance with the terms of his employment, he was required to retire from his position as a civilian driver for the first defendant. His retirement was against his wishes. Colleagues in the same role, who had been hired at different times and whose employment was, therefore, subject to different terms and conditions, were permitted to work past their 70^th birthdays.

 

2.         On 1 August 2023, the plaintiff brought a claim to the Workplace Relations Commission (WRC) under section 77 of the Employment Equality Act 1998, claiming that he had been discriminated against on the grounds of age.

 

3.         By decision dated 21 October 2024, the adjudication officer with the WRC determined that the plaintiff had been discriminated against on the grounds of age because, in effect, the mandatory retirement requirement operated unduly harshly in the circumstances of the plaintiff's case. The adjudication officer concluded that re-instatement was not appropriate as "it has been determined that mandatory retirement is a legitimate aim" but ordered that the plaintiff be re-engaged as a driver within four weeks of the decision and that his employment be extended by a further three years from the date of re-engagement. He directed that this period of employment be treated as pensionable service.

 

4.         The first defendant lodged an appeal against this determination with the Labour Court on 14 November 2024. It did not re-engage the plaintiff. On that date, it wrote to the plaintiff seeking his consent to a stay on the WRC determination, and on 20 November 2024, it requested a stay from the Labour Court. The plaintiff's consent was not forthcoming, but in any event, the Labour Court replied by letter dated 27 November 2024, stating that it had no jurisdiction to grant such a request. Its letter continued:

 

"The WRC has issued a decision in a complaint and the decision has been appealed to the Labour Court. The Court will hear the appeal as a de novo hearing of the complaint and the decision of the Adjudication Officer (A.O.) will have no meaning for the Court other than the fact that the A.O. made a decision, and it has been appealed."

 

5.         The plaintiff called on the first defendant to re-engage him in accordance with the WRC determination. The defendant refused to do so, citing section 43(3) of the Workplace Relations Act 2015. The plaintiff's solicitor sent a pre-action letter on 21 January 2025 threatening proceedings and an application for an injunction if the plaintiff was not re-engaged. Although the defendants prepared a reply dated 24 January 2025 in which it set out the reasons why it believed the plaintiff was not entitled to the reliefs claimed and why an application for an injunction was not warranted, due to an administrative oversight, this letter was not sent prior to the institution of these proceedings.

 

6.         On 29 January 2025, the plaintiff issued the within proceedings. On 30 January 2025, he sought and obtained an interim injunction requiring that the plaintiff be re-engaged in accordance with the decision of the WRC. On 4 February 2025, the defendants brought an application seeking to discharge that injunction. The court directed that both applications be heard together and the application was heard by me on 6 February 2025.

 

The proceedings

 

7.         The plaintiff's plenary summons seeks a variety of remedies. In addition to claims for damages and injunctive relief, he seeks a number of declaratory reliefs. He seeks a declaration that his purported termination is void for not having been effected in a legally valid manner. This is the plaintiff's claim that he was, as he puts it in his written submissions, "discriminatorily dismissed".

 

8.         He also seeks a declaration that he is currently employed in terms of the WRC determination dated 21 October 2024 ("the Determination") and that he is and continues  to be the lawful incumbent of the position of civilian driver for the first defendant. He seeks an order that he be permitted to perform his duties as such. On the plaintiff's case, following the Determination ordering his re-engagement, he has lawfully been the incumbent in the post of civilian driver from 21 November 2024 (his calculation of the four-week period within which the first defendant was directed to re-engage the plaintiff) and that he enjoys that status unless and until the Determination is overturned on appeal.

 

9.         In addition to those claims, the plaintiff claims that the State has breached its EU law obligation to provide an effective remedy for breach of his EU rights by failing to provide a mechanism for seeking interim measures from the Labour Court pending its decision on the first defendant's appeal. He claims a breach of his constitutional rights on the same grounds.

 

Statutory scheme

 

10.     The plaintiff's complaint was made pursuant to the Employment Equality Act 1998, as amended ("the 1998 Act"). That Act prohibits discrimination, inter alia, on the grounds of age. However, it provides, at section 34(4) that:

 

(4) Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees if—

(a) it is objectively and reasonably justified by a legitimate aim, and

(b) the means of achieving that aim are appropriate and necessary.

 

11.     Section 77 of the 1998 Act entitles a person claiming to have been discriminated against to seek redress by referring a case to the WRC. Where the claim can not be dealt with in accordance with section 78, which relates to mediation, it shall be investigated by the WRC pursuant to section 79. Section 82 of the 1998 Act sets out the forms of redress for which a decision of the WRC may provide. These include the payment of compensation, re-instatement and re-engagement.

 

12.     Section 83 of the 1998 Act provides a right of appeal to the Labour Court. The statutory mechanism for so providing is to apply the provisions of section 44 of the Workplace Relations Act 2015, as amended ("the 2015 Act") to a decision of the WRC under section 79 of the 1998 Act (with necessary modifications).

 

13.     Similarly, section 91 of the 1998 Act applies the provisions of section 43 of the 2015 Act to decisions under section 79. Section 43 provides for the enforcement of decisions of the WRC. Section 43(1) provides as follows:

 

(1) If an employer in proceedings in relation to a complaint or dispute referred to an adjudication officer under  section 41  fails to carry out the decision of the adjudication officer under that section in relation to the complaint or dispute in accordance with its terms before the expiration of 56 days from the date on which the notice in writing of the decision was given to the parties, the District Court shall—

(a) on application to it in that behalf by the employee concerned or the Commission, or

(b) on application to it in that behalf, with the consent of the employee, by any trade union or excepted body of which the employee is a member,

without hearing any evidence (other than in relation to the matters aforesaid) make an order directing the employer to carry out the decision in accordance with its terms.

 

14.     However, section 43(3) makes clear that the entitlement to enforce a decision of the WRC before the District Court does not arise where that decision is under appeal:

 

(3) The reference in subsection (1) to a decision of an adjudication officer is a reference to such a decision in relation to which, at the expiration of the time for bringing an appeal against it, no such appeal has been brought, or if such an appeal has been brought it has been abandoned and the references to the date on which notice in writing of the decision was given to the parties shall, in a case where such an appeal is abandoned, be construed as a reference to the date of such abandonment.

 

15.     By operation of section 91 of the 1998 Act, therefore, a complainant may enforce a decision of the WRC under section 79 of the 1998 Act in the District Court, unless that decision has been appealed to the Labour Court pursuant to section 83.

 

Relevant law

16.     The State's entitlement to fix a mandatory retirement age was the subject of the recent Supreme Court decision in Mallon v Minister for Justice [2024] IESC 20, in which a county sheriff challenged the legislation which required him to retire at 70. He claimed that the legislation was in breach of the State's obligations pursuant to Directive 2000/78/EEC ("the Employment Equality Directive"). That claim was rejected by the High Court (Phelan J) and by the Supreme Court (Collins J delivering the judgment of the Court).

 

17.     In submissions in these proceedings, the plaintiff complained that he did not have a copy of his terms and conditions and it was unclear on what legislative basis he had been required to retire. It has, however, always been the plaintiff's case that his terms and conditions required him to retire at 70. The legislative basis for this (and for the reasons that other colleagues were not so required) is helpfully explained in Mallon:

 

"43. At the time of this Court's decision in In re the Employment Equality Bill, the standard retirement age for civil servants in the State was 65: section 8 of the Civil Service Regulation Act 1956. That could be extended in certain circumstances: section 8(4). The regime has changed significantly in the period since that decision. Section 3 of the Public Service Superannuation (Miscellaneous Provisions) Act 2004 removed the compulsory retirement age for new entrants to the public service generally (though continuing to provide for retirement ages for certain specific sectors, such as An Garda Síochána). Pre-2004 entrants continued to be governed by the 1956 Act. That remained the position until the enactment of the Public Service Pensions (Single Scheme and Other Provisions) Act 2012, section 13(2) of which established a general retirement age of 70 for new entrants (public servants recruited between 2004 and 2012 were not affected). Finally, section 3 of the Public Service Superannuation (Age of Retirement) Act 2018 amended the Public Service Superannuation (Miscellaneous Provisions) Act 2004 so as to increase the compulsory retirement age for most pre-2004 public servants to 70." 

 

18.     The court rejected an argument that, because there was a statutory remedy available, a complaint to the WRC, the applicant was precluded from bringing proceedings by way of judicial review, noting the remedy being sought by the applicant (at para. 59):

 

"Mr Mallon is not here pursuing a statutory claim for redress that the Oireachtas has exclusively assigned to a statutory tribunal such as the WRC, to the exclusion of the Article 34 courts. That would indeed be the case if Mr Mallon was seeking to pursue a statutory claim for discrimination under the 1998 Act in these proceedings, but he is not. He is instead looking for a remedy - a declaration that Section 12(6)(b) is incompatible with the Directive and is "thus void and of no legal effect" - that is not available from the WRC."

 

19.      However, it rejected the applicant's claim that the relevant legislation was contrary to the obligations of the Directive, concluding that the measure at issue in those proceedings met the requirements of Article 6 of the Employment Equality Directive, which is transposed into Irish law by section 34(4) of the 1998 Act. The conclusions are summarised at paragraph 110(1) to (9) of the judgment, including at sub-paragraph (6):

 

"The imposition of a retirement age of 70 is not disproportionate, generally or with particular reference to the position of sheriffs. Member States enjoy "broad discretion" in this area and it is for the competent authorities to "find the right balance between the interests involved." A retirement age of 70 is higher, and in many cases considerably higher, than the thresholds for mandatory retirement considered without criticism or condemnation by the CJEU. It is significantly higher than the pensionable age for the purposes of the State pension. The appropriate retirement age in the public service generally has been the subject of recent public engagement and consideration by the Oireachtas, resulting in the enactment of the 2018 Act which provides for a mandatory retirement of 70. While the State could have elected to fix the mandatory retirement age at a level higher or lower than 70 (or could have decided not to have any general retirement age), provided that the prescribed retirement age appears reasonably designed to achieve the objectives being pursued, the requirements of Article 6(1) will be satisfied (paras 87-97)."

 

Parallel jurisdiction

 

20.     In their submissions, the defendants argue that the plaintiff is seeking to invoke a parallel jurisdiction which does not exist. By this they mean that the court does not have power to grant an injunction in aid of a statutory claim. They rely, in particular, on the decision in Power v HSE [2019] IEHC 462, in which two decisions relied on by the plaintiff are addressed. Those are related decisions of the High Court (Hogan J) in McGrath v Athlone Institute of Technology [2011] IEHC 254 and Holland v Athlone Institute of Technology [2011] IEHC 414.

 

21.     McGrath and Holland both involved lecturers at Athlone Institute of Technology who were being made redundant. Each claimed that they were entitled to a contract of indefinite duration by virtue of section 9 of the Protection of Employees (Fixed-Term Work) Act 2003. In McGrath, the plaintiff had pursued a claim to this effect to the Rights Commissioner, which had been rejected, and had an extant appeal to the Labour Court. He sought declaratory relief from the High Court regarding his entitlements under the Act and an injunction. Though the court concluded that it was not entitled to grant the declaratory relief, since that jurisdiction had been given by statute to the Labour Court, it also concluded that, in exceptional circumstances, the High Court would have jurisdiction to grant an injunction "in aid of the Labour Court":

 

"16. In my judgment, in that situation this Court would enjoy such a jurisdiction, not least by reason of the inherent full original jurisdiction which this Court enjoys to determine all questions of law and fact by virtue of Article 34.3.1 of the Constitution. It may be recalled that in Pierse v. Dublin Cemeteries Committee (No.1) [2009] IESC 47, [2010] 1 ILRM 349 the Supreme Court held that a plaintiff had standing to pursue a claim for damages for alleged breaches of constitutional rights in respect of the operation of a private Act of the Oireachtas by a statutory body in circumstances where that was the only real remedy open to him. It is (at least) necessarily implicit in the judgment of Macken J. that such a plaintiff must be afforded such a right, as otherwise he would have been left without an effective remedy.

 

...

 

18. It must be acknowledged that those cases concerned issues of standing and the jurisdiction to grant relief in respect of substantive civil actions which obviously raised justiciable issues. If, nevertheless, the plaintiff were to be left with the decision of an administrative agency whose efficacy was otherwise wholly undermined if no interim relief could be given by this Court, then in such exceptional cases, this Court must be deemed to enjoy such a jurisdiction, not least by reason of the obligation placed on the judicial organ of the State by the terms of Article 40.3.1 of the Constitution to ensure that legal rights can be appropriately vindicated: see, e.g., the decision of the Supreme Court in Grant v. Roche Products Ltd. [2008] IESC 35, [2008] 4 IR 679."

 

22.      In McGrath, Hogan J declined to grant the injunction, concluding that it was inappropriate to do so in circumstances where, even if the plaintiff did have a contract of indefinite duration, i.e., even if he won before the Labour Court, that did not necessarily render his redundancy unlawful. It would merely mean that he was a permanent employee, but his employment could still be terminated at will.

 

23.     In Holland, the Labour Court had already ruled in the plaintiff's favour. In that case, the court reiterated its views regarding an effective remedy. The court granted the injunction in Holland, but not on the basis that the Labour Court had already ruled in the plaintiff's favour (Hogan J noted that, in McGrath, he had proceeded on the assumption that the plaintiff would also establish that fact) but rather on the basis that the plaintiff had established a strong case that he had a legitimate expectation, by reference to certain Departmental Circulars, that his employment was not terminable at will.

 

24.     In Power, the plaintiff sought an injunction in aid of an effective remedy before the WRC to restrain his dismissal pending the determination of his claim before that tribunal, also a claim that he was entitled to a contract of indefinite duration. The respondent contended that the High Court had no jurisdiction to grant such an order. The High Court (Allen J), having examined the relevant jurisprudence, including the above-referenced cases, identified the difficulties that the existence of such a jurisdiction might create:

 

72. On one view, any consideration of the basis upon which the court should exercise the jurisdiction for which the plaintiff contends must come after the decision as to whether the jurisdiction exists, but I think that it is useful to contemplate hypothetically the nature of the jurisdiction contended for. Mr. Quinn accepts, as he must in the face of overwhelming authority, that the court had no jurisdiction to entertain the substantive statutory claim. He accepts, also, that it is neither necessary nor appropriate that the court should express a view on the likely outcome of the claim before the Workplace Relations Commission. That being so, the argument goes, it would not be appropriate for the court to apply the Maha Lingham test. It seems to me that that is so. It would not be appropriate for the court to provisionally pre-empt or prejudge the determination of an issue which it has no jurisdiction to decide by finding that the plaintiff has a strong case. It seems to me that the principle that the court ought not to express a view as to the strength of the plaintiff's case in another forum applies equally to embarking on any analysis as to whether the plaintiff has established a fair issue to be tried before that other forum. For that reason, Mr. Quinn is thrown back on an argument that the court should assume that the plaintiff will make out his case. In this case, the assumption that the court is invited to make goes beyond the right to the remedy. Of the range of remedies available to the WRC (in the awarding or enforcement of which the court has no role) the court is asked to assume that the only appropriate remedy could be a declaration that the plaintiff is entitled to a contract of indefinite duration as CEO of the Saolta University Health Care Group, and that such a remedy would be wholly undermined unless the plaintiff is kept in post and the defendant is prevented from appointing any other person to the position.

 

73. It seems to me that if it is objectionable in principle that the court should attempt to make any assessment of the merit of the claim, or the possible or likely remedy, it must be a fortiori wrong that it should act on the basis of assumptions. To do that would be to interfere with the defendant's rights and obligations without allowing it to be heard.

 

25.     On the question of jurisdiction, the court concluded as follows:

 

"77. The High Court has no jurisdiction to adjudicate either upon the merits of the plaintiff's claim under the Act of 2003 or what the appropriate remedy might be if he were to succeed before the bodies empowered by law to determine the dispute.

 

78. The High Court has no jurisdiction to make interim or interlocutory orders in cases in which it has no jurisdiction to decide the substance of the dispute.

 

79. The High Court has no inherent jurisdiction to supplement the statutory remedies made available by the Oireachtas to administrative tribunals for the enforcement of statutory rights.

 

80. The plaintiff has the right to pursue his statutory claim. The body charged with adjudicating that claim is the body charged with deciding, if appropriate, which of the statutory remedies is appropriate. The plaintiff's right to pursue his claim is not in any way ineffective or less meaningful because the available remedy may not be all that he might wish, or might be different to the remedy available to the courts in dealing with common law claims, or other administrative agencies in dealing with other statutory claims."

 

Applicable principles - injunction

 

26.     The principles concerning the grant of an interlocutory injunction are well understood and have recently been clarified in Merck, Sharp & Dohme Corporation v Clonmel Healthcare Limited [2019] IESC 65, [2020] 2 IR 1. An applicant for an injunction must establish that there is a fair question to be tried and that the balance of justice lies in favour of granting the injunction. In determining where the balance of justice lies, the adequacy of damages as a remedy will be the most important consideration.

 

27.     It has long been accepted that, in order to obtain a mandatory injunction or 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 (see, for instance, Maha Lingam v HSE [2005] IESC 89). The plaintiff accepts that that is the applicable threshold in this case.

 

28.     In his written submissions, the plaintiff includes the observations in Mason v ILTB Limited [2021] IEHC 477, that the strong case threshold does not require a plaintiff to establish that its case will succeed. The High Court (Butler J) stated (at para. 33):

 

"Therefore, the finding that a case is strong in the sense of being one which will probably succeed at trial does not carry with it an indication that the case actually will succeed at trial. Rather, on the basis of the evidence before the court at the interlocutory stage and allowing for the fact the disputed factual elements of the plaintiff's case may have to be taken at their height, it means that the plaintiff has exceeded by some margin the fair question to be tried threshold and has raised a case which is not only stateable but which has a real prospect of success."

 

29.     The reference to a strong case being one which will  "probably succeed" is a reference to the court's earlier discussion of the decision in Earley v HSE [2015] IEHC 520 in which the High Court (Kennedy J) noted that a plaintiff was required to show that it was probably going to be successful at trial, not that it would probably obtain any particular relief. In this regard, Butler J clarified that the requirement to establish a strong case likely to succeed did not require that the entirety of a plaintiff's case meet that threshold.

 

Arguments

30.     As appears from the plenary summons, the plaintiff, in substance, pursues three separate remedies. The first is that he has been unfairly dismissed. Second, he claims an entitlement to be currently employed. This is characterised by the defendants, correctly in my view, as an application to enforce the WRC determination. And third, he argues that the absence of a mechanism for obtaining interim relief from the WRC or Labour Court denies him an effective remedy because, he contends, if he ultimately succeeds before the Labour Court and obtains the same relief as he did before the WRC, he may not be in a position to benefit from such a decision, in light of his age.

 

31.     In respect of the first of those claims, he argues that he has a strong case, pointing to the fact that he has succeeded before the WRC. In claiming that he has been discriminated against on the grounds of age, he places emphasis on the fact that there are civilian drivers older than him who have not been forced to retire - because they were hired between 2004 and 2012 - and, as he colourfully observed, had to leave his retirement party early because they were working the next day. He argues that his case is distinguishable from Mallon for this reason, and in light of the financial hardship that retirement has caused him.

 

32.     In relation to the claim, in effect, to enforce the WRC determination, he also argues that he has a strong case. He notes that there is no provision in the legislation for a stay on an order of the WRC. Absent a stay (or the provision for a stay), he argues, the decision should be deemed to have automatically taken effect when the time for compliance with the order elapsed. The first defendant's request for a stay was, he says, an acknowledgement of this fact. He should, therefore, be treated as employed, and permitted to work, pending the determination of the Labour Court appeal.

 

33.     His final claim is, perhaps, contingent on the second claim. If the WRC determination is not operative pending an appeal, he argues that he has been denied an effective remedy. He relies on the provisions of Article 47 of the EU Charter of Fundamental Rights, which provides, in part, as follows:

 

Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

 

34.     He contends that the Labour Court process (including the possibility or likelihood of a case being stated to the High Court) is likely to be so lengthy that, even if he obtains the same relief, he may be too old to benefit from any order that he be re-engaged. The plaintiff did not present any evidence regarding the processes of the Labour Court, rather he referred to criticisms of the length that a hearing had taken in another case (four years, due to the Labour Court's practice of only scheduling two hearing days at a time) in the judgment of the High Court (Cregan J) in An Bord Bainistíochta Moshíológ v The Labour Court (No. 1) [2023] IEHC 484, at paragraphs 439 - 442. He argues that the failure to provide for interim relief is in breach of his EU law rights and his constitutional rights.

 

35.     The defendants dispute that the plaintiff has a strong case that he has been discriminated against, arguing that the claim that a mandatory retirement age of 70 is discriminatory has already been addressed and rejected in Mallon. More fundamentally, however, they claim that the plaintiff is not entitled to agitate a claim for age discrimination before this court as that is a matter for the appropriate statutory tribunal, first the WRC, then the Labour Court, and, moreover, he is not entitled to seek an injunction in aid of those statutory processes where the legislation does not make provision for such an application. In this regard, they rely on the decision in Power. Even if, as suggested in McGrath and Holland, there does exist a jurisdiction to grant interim relief in aid of an administrative tribunal, it would only arise in the most exceptional case, where the decision of the WRC would be, as Hogan J put it in Holland, "wholly undermined if no interim relief" could be given by this court. They say that this is not such an exceptional case and, accordingly, on no view has the plaintiff made out a strong case for an injunction.

 

36.     In relation to the part of the claim that the absence of an interim remedy in the legislation is in breach of the plaintiff's EU law rights, they contend that the plaintiff has not made out a strong case and that the comprehensive remedies provided by statute are effective.

 

37.     Each party contends that the balance of justice favours their position. The plaintiff contends that if an injunction isn't granted, he will be denied an effective remedy and that if he is unable to return to work pending the determination by the Labour Court, although there is no risk of damage to reputation, which has grounded applications for injunctive relief in other cases, there will be injury to his self-esteem and human dignity which is not capable of being compensated in damages.

 

38.     The defendants contend that any loss is clearly compensatable in damages given that there are no issues of reputation arising. They point to the difficulty compliance with the orders sought would create, particularly the order in relation to pension provision, which, it is said, is contrary to the applicable legislation.

 

39.     They also contend that significant delay on the part of the plaintiff should disentitle him to relief. In addition to some minor complaints about delay in progressing the application before the Labour Court, which could not be regarded as significant, they point to the fact that, insofar as his claim relates to the absence of a mechanism for interim relief in the statutory scheme, that has been apparent since before the plaintiff submitted his claim to the WRC in 2023. There has, therefore, been appreciable delay in bringing forward that claim, such as to disentitle the plaintiff to relief.

 

Discussion

40.     In light of the decision in Power (and also Holland and McGrath), there seems little doubt that the plaintiff cannot pursue a claim in this court that he has been discriminated against on the grounds of age, there being a statutory remedy available, a statutory remedy, moreover, which he has been pursuing since 2023 (see also, Mallon at para. 59, quoted above).

 

41.     In circumstances where that statutory process is in train and a decision falls to be made by the Labour Court, it would be inappropriate to trespass on the decision-making role of that body. I will, therefore, respectfully adopt the approach taken by Allen J in Power and refrain from commenting on the strength of the plaintiff's claim save to say he has, necessarily, not made out a strong case that he is entitled to a remedy before this court in relation to his claim that he has been discriminated against, but solely on the grounds that it appears he is not entitled to seek a remedy for discrimination on the grounds of age from this court at all. To be absolutely clear, that is in no way a reflection on the strength of his claim before the Labour Court.

 

42.     The next claim to consider is his claim that he is entitled to an injunction from this court in aid of his discrimination claim before the Labour Court. If such a jurisdiction exists, it would, it seems, require the court to assess the merits of that claim, which would present obvious difficulties for the reasons identified in Power. It is appropriate, therefore, to first consider whether there is a jurisdiction to grant an injunction in the circumstances of this case.

 

43.     In Power, the court concluded that there was no such jurisdiction. As in that case, the grant of an injunction here would involve the court deciding matters on an interlocutory basis in circumstances where it would not and could not decide the substance of the case.

 

44.     Moreover, the grant of an injunction would not merely supplement the provisions of the applicable statutory scheme but would, in my view, alter the terms of the scheme. Properly understood, the statutory scheme for dealing with cases regarding age discrimination does not require that decisions of the WRC be implemented where they are the subject of a pending de novo appeal to the Labour Court. That this is so is clear from the terms of section 43 of the 2015 Act. Section 43 provides an enforcement mechanism for decisions of the WRC, an application to the District Court. This alone makes clear that orders of the WRC are not self-executing. An order for re-instatement or re-engagement no more means that an employee stands re-instated or re-engaged than does an order for compensation mean that an employee automatically finds the compensation ordered in their bank account. Of course, any order of the WRC can and should be implemented without the need for enforcement where there is no appeal, but if not implemented, the order can only be enforced through the District Court.

 

45.     Crucially, where there is an appeal, then it is clear from section 43(3) that the order cannot be enforced in the District Court. This is expressly accepted by the plaintiff in his written submissions. That being so, it is clearly not correct to suggest that an order from the WRC which is under appeal should be treated as being operative. To grant an injunction to give effect to the terms of the WRC order would, therefore, not supplement but subvert the statutory scheme.

 

46.     Even if there exists, as suggested by Hogan J in McGrath and Holland, an exceptional jurisdiction to grant relief where there is a statutory remedy, that jurisdiction could only arise in exceptional circumstances, where the statutory remedy was wholly undermined. It is, frankly, difficult to see on what basis this case could be described as an "exceptional" case and still less on what basis it could be said that the statutory remedy has been wholly undermined.

 

47.     Insofar as the plaintiff claims exceptionality, this seems to be based on the proposition that his dismissal on grounds that he had reached the maximum retirement age has caused him financial hardship, and because of his age, he cannot readily find alternative employment and may not realise the benefit of any award in his favour from the Labour Court. He also relies on the fact that other employees have not been required to retire at 70. On no view could that provide a sufficient basis for bypassing the statutory code. That the mandatory retirement age does not apply to those who were engaged between 2004 and 2012 has already been addressed in Mallon.

 

48.     The statutory process involves first a claim to the WRC and then a full right of appeal. At the commencement of the WRC process, both sides were fully aware that any order made by the WRC could be appealed by the other side. The fact that the WRC ruled in favour of the plaintiff and the first defendant has then appealed, far from undermining the statutory process, is instead the statutory process in action. Insofar as the plaintiff claims that the process would be undermined if he were not granted an injunction, what he really means is that he may not get the benefit of an order which is the subject of an appeal. That is precisely what the legislative scheme contemplates.

 

49.     If he prevails in the Labour Court and the Labour Court grants the same remedy as did the WRC, then he will obtain the benefit of that remedy. However, the appropriate remedy is a matter for the Labour Court. What the plaintiff suggests is that this court assume that he will succeed before the Labour Court and that the Labour Court will grant him the same remedy as did the WRC and, what is more, that he will not be in a position to avail of that remedy at that time so that, in effect, he should be given the remedy on an interim basis now.

 

50.      This court cannot simply assume the outcome of the Labour Court hearing or that the first defendant, if unsuccessful, will be ordered to re-engage the plaintiff. Even if this could be assumed, there is no evidential basis for contending that the plaintiff would not enjoy the benefit of any award made. There was no evidence of how long the statutory procedure will take prior to completion other than the plaintiff's assertion that it is likely to be "some years before legal proceedings are concluded" in light of a potential appeal by the defendants to the High Court. The plaintiff does not provide his means of knowledge for such a statement, the only basis for that assertion seems to be the lengthy period that an entirely different type of appeal took in the An Bord Bainistíochta case. Moreover, there is no medical evidence that the plaintiff would be unable to take up his position if re-engagement were ordered at some future point.

 

51.     In the circumstances, I am not persuaded that there is any jurisdiction to grant the injunction sought in aid of the statutory process. Even if I am wrong in that, and a jurisdiction exists to intervene in an exceptional case, I am not satisfied that this is such an exceptional case. The statutory scheme has not been wholly undermined. The plaintiff has, thus, clearly not made out a strong case for an injunction in aid of his discrimination claim before the Labour Court.

 

52.     For similar reasons, I am not satisfied that the plaintiff is entitled to an injunction on the basis of his claim that the absence of a mechanism for interim relief in the statutory scheme is in breach of his EU or constitutional rights. The statute provides a comprehensive regime for addressing claims of discrimination. The plaintiff has not established any evidential basis for asserting that the statutory does not afford him an adequate remedy and has certainly not established a strong case that this is so. Of course, if the court granted the interlocutory relief which he seeks, that would, almost inevitably, defeat his claim that his rights had been infringed. That conundrum aside, the plaintiff has not made out a case for an injunction on this ground either.

 

53.     In light of the above conclusions that the plaintiff has not met the threshold for the grant of a mandatory injunction, it is not necessary to address the question of the balance of justice or the discretionary grounds relied on by the defendants.

 

Conclusion

 

54.     In the circumstances, I refuse the plaintiff's application for an interlocutory injunction. I propose making an order discharging the interim injunction granted on 30 January 2025. For the avoidance of doubt, the interim injunction will remain in place pending the making of final orders on this application. I will list the matter on 26 February 2025 at 10.30 am for the purpose of finalising these matters and addressing the question of costs.

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