The longstanding and somewhat stark starting position of the Common Law in relation to the termination of employment is that an employee can be dismissed for any or no reason on reasonable notice, with damages offering an adequate remedy as necessary. An employee may take certain steps to prevent termination or the processes which may lead to termination, both in terms of immediate dismissal and in relation to steps short of dismissal. A key element of any such steps is the Injunction. That said however, Courts are unlikely to grant an Employment Injunction where the claim arises squarely under legislation which requires the claim to be brought and heard by the Workplace Relations Commission. Nonetheless, in the correct set of circumstances the bringing of an Interim or Interlocutory application can result in a fairly quick resolution to matters.
- Injunction Basics
In simple terms an Interlocutory Injunction is a Court Order either prohibiting a person from doing something, or requiring a person to do something, so as to protect an existing Common Law right pending a full Trial in relation to an infringement of that right. Within an employment context, the existing rights that may be protected arise from the Employment Contract. Generally, the need for an injunction in the employment context arises where an employer fails to adhere to a fair, reasonable and transparent process in a disciplinary process or in the lead up to dismissal. An employee may successfully challenge the legitimacy of the process and be granted an injunction which will restrain the employer from giving effect to the purported disciplinary process and/ or removal, pending trial or settlement. The tests which an employee must meet to obtain an Injunction are:
- The employee must demonstrate a strong case that they are likely to succeed at the hearing of the main claim;
- Damages are not an adequate remedy;
- That the balance of convenience when weighing up the potential harm and interests of the parties, favours the granting of an Injunction.
The threat of resorting to the expedited process of Injunctive Relief remains one of the most influential mechanisms for employees seeking to achieve an early settlement of an employment dispute.
Injunction applications regularly attract media attention and, if granted, tend to have onerous and costly implications for employers. While the Irish Courts have in the past been reluctant to interfere with, or restrain, the normal operation of internal workplace procedures, (particularly where employees have a statutory remedy available in the Workplace Relations Commission), they appear more willing in recent times to intervene if it is in the interest of justice to do so. Notwithstanding this, as each case turns on its own facts, employees should continue to proceed with caution, mindful of the many challenges that can be brought to bear prior to a successful outcome in addition to the onerous cost’s implications.
Augustus Cullen Law have recently successfully concluded a case for the Plaintiff wherein injunctive relief was granted. The following article appeared on The Irish Times here.
Article by: Marie Hynes, Senior Associate Solicitor at Augustus Cullen Law Solicitors. Augustus Cullen Law is based at 7 Wentworth Place, Wicklow. If you would like more information on this topic, call +353 404 67412 or email firstname.lastname@example.org
27 August 2020