Redundancy, unfair dismissal
The plaintiff, who was an engineer, joined KAO Information Systems in 1995. Subsequently, there was a transfer of undertaking by KAO to the defendant company in 1999 and the plaintiff's employment continued pursuant to the ED Acquired rights directive. The plaintiff was appointed client services manager of Microsoft Business by the defendant, pursuant to a contract dated 16 May 2000. That contract set out the relevant notice period required to be given in order to terminate the contract. In November 2003, the defendant decided to amalgamate the plaintiff's role and the position of contract centre manager to create a new business relationship manager role. The plaintiff unsuccessfully applied for the position. Subsequently, the plaintiff received a letter from the director of the defendant company stating that he was entitled to two months' notice of the termination of his employment together with statutory redundancy. The plaintiff was offered the choice of receiving pay in lieu of notice and an ex gratia payment equivalent to one month's salary. Further correspondence and meetings took place and the plaintiff stated that the 'purported redundancy' was not accepted by him. Consequently, the plain
tiff was put on 'garden leave' with pay for the duration of the notice period. The plaintiff did not return to work and a plenary summons was issued on 3 February 2004, challenging the validity of the redundancy. On 4 February 2004, the plaintiff issued a notice of motion claiming certain financial and injunctive reliefs, including an order that the defendant continue to pay his salary and fund and maintain his pension and life assurance benefits until the trial of the action and also an injunction restraining the purported termination and the performance of the plaintiff's duties by any person other than the plaintiff. The plaintiff claimed that the issue to be tried was that he was unfairly dismissed because there was no valid redundancy and he was really dismissed because of criticisms made about
him by Microsoft. The plaintiff also claimed that there must be an implied term in the contract that the employer must act reasonably and fairly. The defendants countered this argument by submitting that that was not a fair issue to be tried, as unfair dismissal is governed by the Unfair Dismissals Acts, which provide a statutory remedy which is mutually exclusive to the commonlaw remedy for damages.
Carroll J refused to grant the relief sought, holding that:
1) The case law adduced by the defendant supported the proposition that the common law claim for damages for wrongful dismissal and the statutory claim for unfair dismissal were mutually exclusive. The plaintiff was attempting to introduce a new obligation under the common law on the employer to act reasonably and fairly in the case of dismissal. However, at common law an employer can terminate employment for any reason or no reason provided adequate notice is given. There was no allegation by the plaintiff that the notice provided to him was inadequate. Accordingly, the
plaintiff failed to demonstrate that there was a fair issue to be tried. Parsons v Iarnr6d Eireann ( ELR 203) and Johnson v Unisys Limited ( 2 AER 801) followed
2) Obiter: damages would be an adequate remedy and in fact would be the only remedy available to the plaintiff. It was highly unlikely that he would be reinstated in employment where the defendants were unwilling to take him back and had no place for him
3) Obiter: if the plaintiff did not succeed at the trial, there would be a real injustice to the defendant if it was obliged to pay the plaintiff his salary until the date of the trial. The
case law adduced in support of
that application involved cases that were emphasised as containing special or exceptional
circumstances. The plaintiff did not allege irreparable loss and damage if deprived of his salary and he failed to make out a case on the balance of convenience that he should be paid his salary after the period of notice expired.
Orr v Zomax Limited, High Court, Ms Justice Carroll, 25/3/2004 [FL8944]