Part 2

In the second part of three articles, Donnacha T. Anhold provides his second article in the area of employment law injunctions.

The main headings under which employees commonly bring injunctions are:

  • Breach of the Employee’s Entitlements
  • Breach of Fair Procedures
  • Breach of Constitutional Rights

Breach of the Employee’s Entitlements

Commonly in this area, the employee will seek to restrain not particularly a dismissal, but what would otherwise be a breach of their contractual entitlements or other entitlements. As explained by Hogan.J in the Wallace v. Irish Aviation Authority Case, this arises where an employee has been “denied the benefit of a key contractual protection at the time when such a protection is vitally necessary to protect your interest”.  Therefore an employee may ask the Court to intervene and grant an injunction whereby the employee wants the unlawful breach of their contractual rights halted or rescinded. The case of  Brennan -v- Irish Pride Limited  gives an example of a simple breach whereby Gilligan. J described it as “merely suing for a breach of his contractual terms”, wherein the employer sought to renege on the employee’s employment and entitlements to redundancy by giving him statutory notice of one week, in certain circumstances whereby it is provided for in his contract.

The issue of contractual rights of the employer conflicting with that deemed to be a mandatory retirement age was highlighted in the case of Quigley -v- HSE.   In this case Dr. Quigley had a written contract of employment which provided for indefinite period of employment.  However, when Dr. Quigley turned 65 he was advised by the HSE that his employment would terminate by reason of what the HSE claimed was the maximum retirement age of 65.

Dr. Quigley was able to identify two fellow employees who by the same or similar contract had been allowed to work beyond the age of 65.  Dr. Quigley sought an injunction restraining the purported termination of his employment pending the determination of the proceedings that he had initiated.  On seeking to rely on the Employment Equality Acts, European Council directive for equal treatment, Article 14 of the European Convention of Human Rights, Dr. Quigley claimed that his termination of employment was invalid as his contract of employment was not subject to a maximum retirement age.  Gilligan J. held that Dr. Quigley made a strong case for which he was likely to succeed on the basis that his contract did not require him to retire at age 65 and that Dr. Quigley had produced a strong and clear body of evidence from three fellow employees of the defendant as regards his contention as to the decision pertaining.  Subsequently Judge Gilligan found that the strong case test had been satisfied.

Breach of Fair Procedures

Usually invoked in the area of disciplinary procedures and subsequently unfair dismissal proceedings.  However it is to be noted it is not limited to these specific areas.  In the case of McGlinchy -v- Ryan, the Court held that “it is well settled, as a matter of constitutional law and in contract law that an employee involved in a disciplinary process in the course of his employment is entitled to be afforded fair procedures, although what constitutes fair procedures may vary from case to case”.

Breach of Constitutional Rights

Every citizen in this country has constitutional rights such as;

  • Right to earn a livelihood.
  • Right to dignity in the workplace.
  • Right to dignity as a person.
  • Right to an employee’s good name and reputation.

In the case of O’Shaughnessy -v- Boston Scientific Ireland Limited, the Court found that the plaintiff/employee was “entitled to the dignity of employment and satisfaction and fulfilment that it will give” .   An employee also enjoys their right to good reputation and employment prospects.  The case of “Dillon – v- CUS”  clearly identified this whereby Hogan J. stated “by virtue of article 40.3.2 and article 40.3.1 respectively these are constitutionally protected rights and the courts are obliged in particular to ensure that the constitutional right to a good name in both professional and employment context is adequately vindicated.

All of the above issues in this article clearly explain where an employer is in breach of fair procedures and where the employees entitlements are  breached such as lack of fair procedures in the workplace and a breach of the employee’s constitutional rights, these situations can vary greatly. Equally they can affect an employee’s employment to the extent that irreparable harm or damage may be caused to the employee’s employment. Sometimes seeking an injunction against the employer is the only option to halt the continuation of that process of the employer against the employee.

Should any of these issues affect you please contact us on 071-91-62211 or by email at info@carteranhold.ie