High Court: Solicitor made redundant by ByrneWallace has application for injunction rejected

About this case:

• Judgment:
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Ms Justice Baker said that the case was analogous to Nolan v. Emo Oil Services.

Background

Laurence Kearney, a solicitor, suffers has bipolar mood disorder and explained that, before he took up his employment with ByrneWallace in 2006, he apprised them of the nature of his illness.

In late 2011, due to the recession, his basic salary was reduced from €100,000 to €60,000 per annum – and although he conceded that this applied to other associate solicitors at the time, he complained that the salary of his co-workers was restored or substantially restored whereas his was only modestly increased by €5k in 2013.

Mr Kearney argued that this was unjustified.

After a period of paid sick leave from May 2013 to Nov 2015, Mr Kearney had a short period of unpaid leave in May 2016 and was later assessed by a doctor appointed by ByrneWallace, who agreed that he was fit to return to work. In August 2017 he was served with written notice, by which ByrneWallace purported to make him redundant.

However, Mr Kearney was not re-engaged at that time and instituted proceedings seeking:

The proceedings before Justice Baker related to the letter by which ByrneWallace purported to terminate Mr Kearney’s employment on account of redundancy.

Mr Kearney pleaded that:

The issues

The parties agreed that the relevant threshold test for the “employment injunction” was that set out in Maha Lingam v. HSE IESC 89, which states that a party seeking injunctive relief that is mandatory in substance and form should have a “strong and clear case”.

Mr Kearney argued that he met this test which was not intended to be prohibitively difficult, and that the characterisation of the threshold by ByrneWallace was unduly onerous.

ByrneWallace argued that Mr Kearney was not unfairly selected for redundancy, nor was the redundancy contrived or a sham.

Jurisdiction

The primary issue in the hearing was one of jurisdiction.

ByrneWallace argued that:

Mr Kearney denied this and argued that:

Mr Kearney argued that a form of injunctive relief in support of his claim exists as a matter of law outside the statutory scheme operating in the employment context, under which proceedings are to be commenced in the more informal setting of the Workplace Relations Commissions (WRC).

In order for him to succeed in defeating the argument of ByrneWallace that the injunction may not be granted because he does not have a “strong” case, Mr Kearney had to establish that he had a strong argument that his claim was one recognised by the common law.

The authorities

Firstly, Justice Baker considered Maha Lingam v. HSE; and two judgments which followed this, namely Nolan v. Emo Oil Services Ltd IEHC 15, and Burke v. Independent Colleges Ltd. IEHC 412.

Justice Baker considered Brennan v. Irish Pride Bakeries, and said that Quigley v. HSE IEHC 654 was also on point.

Justice Baker rejected the argument that Wallace v. Irish Aviation Authority IEHC 178 was authority for a departure from the approach in Nolan v. Emo Oil Services.

Justice Baker stated that the claim was properly characterised as one within the statutory scheme, and essentially statutory in origin. The declaratory relief sought and the claims regarding alleged breach of fairness were ancillary to that primary relief. The requirement to establish a strong case cannot be satisfied by the ancillary reliefs and must bear on the substance of the claim.

While expressing sympathy for Mr Kearney, Justice Baker considered the circumstances to be analogous to those in Nolan v. Emo Oil Services; and held that Mr Kearney had not made out a strong case that would justify the granting of an injunction.