High Court grants limited injunction restraining employer from relying on post-report disciplinary steps pending trial.

APPROVED [2023] IEHC 424

THE HIGH COURT

Record No.: 2023/2003 P

Between:

RM

Plaintiff

-and-

SHC

Defendant

JUDGMENT of Mr. Justice Rory Mulcahy delivered on the 19th day of July 2023

Introduction

1. This is the Plaintiff’s application for an injunction to restrain the Defendant from terminating her employment on the grounds of gross misconduct. The Plaintiff claims that the process by which the Defendant has purported to dismiss her is not in accordance with fair procedures.

2. The Defendant denies any breach of fair procedures and contends that, in any event, damages would be an adequate remedy for any loss which the Plaintiff may have sustained. The Defendant says there has been a mutual loss of trust and confidence, irretrievably tainting the employment relationship, such that the grant of an interlocutory injunction would be inappropriate.

3. For the reasons set out herein, I have concluded that the Plaintiff has established a strong case likely to succeed that there has been a breach of fair procedures. In addition, although it may well be that, if successful at trial, damages will be the Plaintiff’s remedy, it would, in my view, be premature to conclude that damages will be the only remedy available. In the circumstances, the least risk of injustice warrants the grant of limited injunctive relief pending the trial of this action. Accordingly, I propose to grant an interlocutory injunction on the terms set out below.

4. I note that on 15 May 2023 the High Court (Roberts J) delivered an ex tempore judgment in which she made an Order pursuant to section 27 of the Civil Law (Miscellaneous Provisions) Act 2008 anonymising the identity of the Defendant in any publication or broadcast relating to the proceedings ([2023] IEHC 252). As stated by Roberts J, a necessary consequence of that order, “is that the Plaintiff’s identity should also be anonymised as well as the respective addresses, occupations and professions of the parties.” In the circumstances, in the background section of this judgment in which I set out a brief summary of the main facts relevant to this application, I have sought to avoid identifying factual matters which might tend to undermine the anonymisation ordered. I have, in particular, sought to omit any details which might tend to identify the occupations of the parties and their place of work.

Background

5. The Plaintiff works in a Firm (“the Firm”) of which the Defendant is the Principal.

Apart from an eighteen-month period approximately ten years ago she has worked for the Defendant for over twenty years, in positions of increasing responsibility. She does not, however, hold a management position within the Firm. Until the events giving rise to the disciplinary proceedings the subject of these proceedings, the Plaintiff and Defendant seem to have had a positive working relationship.

6. On 17 May 2022, the Plaintiff returned from a period of sick leave and annual leave.

She took a call that day from the Defendant, who was working from home, concerning an issue regarding whether an important action had been taken. It would have serious negative consequences for the Firm had this not happened and the Defendant was understandably concerned. This issue had arisen while the Plaintiff was out of the office. There is some dispute about what precisely was said on that call, but the Plaintiff describes the experience as being the most difficult of her professional life, extremely embarrassing – since others could hear the call - and degrading. The Defendant accepts that she lost her temper on the call and says that she apologised for doing so but believes that the Plaintiff lost her temper too and should also have apologised.

7. Following that call, the Plaintiff left the office and later that day was certified unfit to return to work.

8. Over the next number of weeks, the Plaintiff contacted the office on a number of occasions seeking to meet with the Defendant. The financial controller of the Firm offered to meet with her, an offer she turned down, but the financial controller also made clear that it was considered “entirely inappropriate” for the Defendant to meet the Plaintiff while the Plaintiff was certified as unfit to work. It is not clear why it was considered appropriate for the financial controller to meet with the Plaintiff, but not the Defendant. The Plaintiff was requested to engage with a medical/occupational health assessor with whom the Firm had arranged an appointment.

9. During this period of absence from work, the Plaintiff began composing a letter, addressed to the Plaintiff, in which she set out, in very direct terms, a large number of issues which had, in the Plaintiff’s view, caused difficulties within the office over the years. The Plaintiff hand delivered the 28-page letter to the Defendant at her home on the evening of 15 June 2022. It is the manner of the delivery of that letter and the contents thereof which gave rise to the allegation of gross misconduct against the Plaintiff.

10. The Firm wrote to the Plaintiff on 17 June 2022 raising serious concerns about the delivery of the letter at the Defendant’s home, its contents and, in particular, potential breaches of confidentiality contained therein. In a further letter dated 21 June 2023, it was stated that it had been decided that most appropriate course of action was that the Plaintiff would remain off work pending the occupational health/medical assessment taking place. The letter stated that upon receipt of the medical report, they would have an opportunity to reflect in light of any recommendations made on how best to proceed including in respect of the Plaintiff’s fitness to work. In these letters and a subsequent letter of 27 June 2023, the Firm repeatedly noted the Plaintiff’s obligation in relation to breach of confidentiality. In a letter of 30 June 2023, the Firm expressly sought undertakings that there would be no disclosure to third parties of the contents of the letter, which undertakings were forthcoming. The Defendant claims that the undertaking should have been given in response to the earlier letters and claims that the delay only served to heighten the Defendant’s concerns about potential breaches of confidentiality.

11. The Plaintiff was medically assessed by the Defendant’s nominee in July 2022. She was diagnosed as having an adjustment reaction linked to the circumstances in which she found herself. The medical report stated her symptoms appeared proportionate to her interpersonal difficulties at work. The report suggested a mediated approach to a resolution.

12. Stephen Drew of Drew Consulting, which provides outsourced human resources services, was appointed by the Defendant. The Plaintiff thereafter was given an opportunity to raise her workplace-related concerns with Mr Drew. She met with him in September 2023.

13. The Plaintiff’s sick pay was stopped on 22 August 2022. She was certified fit to return to work in early November 2022 by both her own doctor and the Defendant’s doctor.

Shortly thereafter the Plaintiff was advised, by letter dated 30 November 2022, that she was being suspended with pay pending a disciplinary investigation relating to her conduct on the evening of 15 June 2022. This seems to have been the first occasion on which the events of 15 June 2023 were raised as a disciplinary issue. The letter stated that the focus of the investigation would be the Plaintiff’s unannounced attendance at the Defendant’s home and her “inappropriate, intimidating behaviour” that night, and the contents of the ‘Personal Statement’ she handed to the Defendant:

“[I]ncluding, in particular:

• the threat by you to breach the sacrosanct principle of …. confidentiality pertaining to clients, past and present of the practice which was only withdrawn after several written warnings (letters dated the 17th, 21st, and 30th June 2022 also the subject of your recent SAR)

• the very serious, inappropriate allegations made against the Principal of the practice both professionally but predominantly in her personal capacity and concerning members of her family, current and former colleagues […..].

• the threat to the [Principal] implicit at page five of the said personal statement to “sue you, go to the media, create hassle, badmouth you”.

• the threat at page 27 of the said personal statement to relay the various serious, inappropriate and damaging allegations contained therein to a third party, namely the occupational health specialist whom you're requested to attend in the context of your certified sick leave wherein you stated “in my view this letter contains some of your deepest, darkest issues (maybe even demons), and I can't imagine you want them aired...”

14. The letter put the Plaintiff on notice that her actions may constitute gross misconduct “within the disciplinary rules and procedures” of the Firm. The Plaintiff was told that the disciplinary process was outlined in the Employee Handbook which the Plaintiff would be provided with the following day. The letter also enclosed a contract of employment. It is accepted that the Plaintiff had never previously been provided with the Employee Handbook. There were no written disciplinary or grievance procedures in place within the Firm. In circumstances where the Plaintiff had never previously been provided with this Handbook and it did not form part of her contract of employment – with which she had also never been furnished – the parties agreed an alternative procedure.

15. The agreed procedure, which was reduced to writing as Terms of Reference dated 8 February 2023, provided for the appointment of an independent investigator with a factfinding function only who would prepare a report, the final version of which would be issued to the Plaintiff and to the financial controller. The financial controller would “decide based on the findings of the report whether any further action is required.” An investigator (“the Investigator”) was appointed by the Firm, who met with the Defendant on 13 January 2023 and the Plaintiff on 9 February 2023.

16. The Investigator had written to the Plaintiff on 19 December 2022. In that letter she said that “[f]ollowing receipt of my report and findings, your employer will then decide whether or not to schedule a disciplinary hearing and that hearing may result in the application of a disciplinary sanction, up to and including dismissal.” This is not expressly reflected in the Terms of Reference.

17. The Investigator delivered a detailed report on 13 March 2023 (“the Report”). She was sharply critical of the Plaintiff for having delivered the letter in the manner in which she did, arriving at the Defendant’s home, unannounced, late in the evening having been advised that the Defendant would not meet her while she was certified unfit to return to work. She was also very critical of the contents of the letter, which she considered “inappropriate and unacceptable”. The Report concluded that:

“I am satisfied that, despite [the Plaintiff’s] personal views, it was absolutely not [the Plaintiff’s] place to set out in extensive detail all of the areas where she considered [the Defendant’s] personal and professional behaviour and conduct could be improved. Furthermore, I find the tone and the language used to be entirely unacceptable.”

18. The Investigator made clear that she had not investigated the Plaintiff’s complaints about the Defendant, but that she would consider that the Plaintiff’s actions were inappropriate even if the Plaintiff’s complaints in her letter of 15 June 2022 were wellfounded. She found it reasonable that the Defendant had found that the Plaintiff’s arrival at her home unannounced to be a threatening and intimidating experience for her which had a significant negative impact on her, although she also accepted the Plaintiff’s account that she had not acted in a threatening manner and that the exchange had most likely been short polite, if slightly terse.

19. She also concluded that the Plaintiff had not intended the letter to be read as a threat to make the content of the letter public, although it was reasonable for the Defendant to have arrived at the conclusion that it did contain such a threat.

20. Following receipt of the Report, the Plaintiff received a letter dated 23 March 2023 from the financial controller. The letter stated that, in accordance with the disciplinary procedure she was the “nominated company representative”, that the findings were sufficiently serious to potentially amount to gross misconduct warranting summary dismissal and asked the Plaintiff to provide a written statement in response which she

would consider before making a decision. A copy of the disciplinary procedure was included with the letter.

21. The Plaintiff replied in a short email dated 30 March 2023. The email noted that the Investigator had concluded that it was not the Plaintiff’s intention to cause upset and distress to the Defendant. It also stated that her actions had to be seen in the context of her medical condition at the time. She rejected the allegation of gross misconduct. She also queried the inclusion of the Firm’s disciplinary policy which, she pointed out, did not apply to her. She asked the financial controller to clarify this point.

22. On 6 April 2023, the Plaintiff received a letter purporting to be from the financial controller. The letter stated that “having taken all the facts and circumstances into consideration, I have decided to summarily dismiss you from your engagement with immediate effect”. The letter further stated that in line with the Firm’s disciplinary policy, the Plaintiff had a right to appeal the decision. That appeal could be submitted in writing to the Principal, i.e. the Defendant, within 5 working days and would be decided by her.

23. One significant feature of this letter is that although it purported to be from the financial controller, it was signed by the Defendant, a fact identified by the Plaintiff when she received the letter and acknowledged by the Defendant in her affidavit.

24. The Plaintiff replied by email dated 17 April 2023 stating that she did intend to appeal but that the timeframe was unrealistic. She stated that she was going to seek legal advice to explore all avenues open to her including unfair dismissal and would revert with her appeal in due course.

25. In a letter sent by email at 9.43 am on 20 April 2023, the financial controller replied extending the time for the Plaintiff to submit an appeal to 9 am on 24 April 2023, i.e.

two working days later. The Plaintiff replied by email the following day, Friday 21 April 2023, saying that the timeframe was still unrealistic and informing the financial controller that her grounds of appeal would be submitted on 28 April 2023.

26. The financial controller replied the following day, a Saturday. Notwithstanding that the extended period for submitting an appeal had not yet lapsed, the email stated that “as matters stand, your employment with the Firm is terminated upon grounds of gross misconduct.” The email, however, went on to say that the matter was closed subject to receipt of a written appeal as per what was described as the “very reasonable” time extension granted. It continued “[i]n the event of any such written appeal received from you thereafter, same shall be considered strictly without prejudice only and with due observance of the principles of due process and fair procedures. No further time extensions shall be granted and this email is notice of such.” The email did not state that an appeal submitted on 28 April 2023 would not be considered.

27. On 28 April 2023, the Plaintiff’s solicitor wrote to the Defendant and raised a number of “serious issues” with the process leading to the Plaintiff’s dismissal. The letter called on the Defendant to give certain undertakings in relation to her reliance on the existing procedure, and also to confirm that no further action in relation to the Plaintiff would be taken. It also called for an undertaking that the issues raised by the Plaintiff would be investigated.

28. The Defendant replied by letter dated 2 May 2023. The allegations of breach of fair procedures were “wholeheartedly and without hesitation refuted” and it was stated that the Plaintiff had been “treated with nothing but the utmost of fairness”. It was also stated that “there are absolutely no circumstances giving rise to me, as [Principal] considering nor agreeing to such said mandatory relief by way of reinstatement.”

29. On 4 May 2023, the Plaintiff commenced the within proceedings and obtained short service for a motion seeking interlocutory relief. Affidavits were exchanged and the matter was heard before me on 27, 28 and 29 June 2023.

Principles

30. 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. The Supreme Court set out a series of steps which might be of assistance in deciding whether an injunction should be granted:

“(1) First, the court should consider whether, if the plaintiff succeeded at the trial, a permanent injunction might be granted. If not, then it is extremely unlikely that an interlocutory injunction seeking the same relief upon ending the trial could be granted;

(2) The court should then consider if it has been established that there is a fair question to be tried, which may also involve a consideration of whether the case will probably go to trial. In many cases, the straightforward application of the American Cyanimid and Campus Oil approach will yield the correct outcome. However, the qualification of that approach should be kept in mind. Even then, if the claim is of a nature that could be tried, the court, in considering the balance of convenience or balance of justice, should do so with an awareness that cases may not go to trial, and that the presence or absence of an injunction may be a significant tactical benefit;

(3) If there is a fair issue to be tried (and it probably will be tried), the court should consider how best the matter should be arranged pending the trial, which involves a consideration of the balance of convenience and the balance of justice;

(4) The most important element in that balance is, in most cases, the question of adequacy of damages;

(5) In commercial cases where breach of contract is claimed, courts should be robustly sceptical of a claim that damages are not an adequate remedy;

(6) Nevertheless, difficulty in assessing damages may be a factor which can be taken account of and lead to the grant of an interlocutory injunction, particularly where the difficulty in calculation and assessment makes it more likely that any damages awarded will not be a precise and perfect remedy. In such cases, it may be just and convenient to grant an interlocutory injunction, even though damages are an available remedy at trial.

(7) While the adequacy of damages is the most important component of any assessment of the balance of convenience or balance of justice, a number of other factors may come into play and may properly be considered and weighed in the balance in considering how matters are to be held most fairly pending a trial, and recognising the possibility that there may be no trial;

(8) While a structured approach facilitates analysis and, if necessary, review, any application should be approached with a recognition of the essential flexibility of the remedy and the fundamental objective in seeking to minimise injustice, in circumstances where the legal rights of the parties have yet to be determined.”

31. It has long been accepted that, in order to obtain 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).

32. In Mason v ILTB Limited [2021] IEHC 477, 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.

“32. The plaintiff points out that this higher standard does not apply to all aspects of his claim. In particular, the plaintiff contends he need only establish a fair question to be tried as regards his application for an injunction to restrain the holding of an investigation. I accept that this is correct. However, in purely practical terms, if elements of the plaintiff's case meet the higher threshold then it is unnecessary to decide whether those elements which do not do so nonetheless meet the lower threshold. The test applies to the plaintiff's case as a whole and not to every element of the plaintiff's case individually. Therefore, I will address the strong case test first and I will only consider whether there is a fair question to be tried if the strong case test is not met.”

33. The Court’s observation in Merck, Sharp and Dohme regarding the grant (or refusal)

of an injunction providing a tactical advantage has a particular resonance where an injunction is sought in an employment dispute. As Clarke J (as he then was) observed in Bergin v Galway Clinic Doughiska Ltd [2007] IEHC 386, [2008] 2 IR 205 (at p.

212):

“In practice the full trial rarely arises. It is the frequent experience of the court dealing with such matters that a great many of the cases which are the subject of an interlocutory ruling are resolved by agreement between the parties before the matter comes to trial. It would be somewhat naïve not to surmise that a significant feature of the interlocutory hearing is concerned with both parties attempting to establish the most advantageous position from which to approach the frequently expected negotiations designed to lead to an agreed termination of the contract of employment concerned. The employee who has the benefit of an interlocutory injunction can approach such negotiations from a position of strength as can the employer who has successfully resisted an interlocutory application.”

34. In Bergin, the Court granted an injunction, notwithstanding the Court’s acknowledgement that, at trial, damages might be the appropriate remedy:

“It is clear from cases such as Fennelly v. Assicurazioni Generali (1985) 3 I.L.T. 73 and Maha Lingham v. Health Service Executive [2005] IESC 89,

[2005] 17 E.L.R. 137, that a plaintiff may be entitled to injunctive relief which would have, to some extent, the effect of continuing his or her employment but only, it would seem, where the plaintiff concerned can establish a strong case.

That such can be the case even though damages might well be the appropriate remedy at trial, is clear from, for example, Shortt v. Data Packaging Ltd [1994] E.L.R. 251 and Phelan v. BIC (Ireland) Ltd. [1997] E.L.R. 208.”

35. In Hennigan v An Coimisiún Le Rincí Gaelacha [2023] IEHC 87, Roberts J concluded that damages would not be an adequate remedy (at para. 105) for the following reasons:

“I am satisfied that the plaintiff would not be adequately compensated by an award of damages were she to succeed at trial in relation to the lawfulness of her suspension but remained suspended during that time. While much of the damage complained of by the plaintiff arising from her suspension may perhaps have already been incurred, I believe there continues to be ongoing prejudice and damage to the plaintiff’s health, reputation and well-being that does not lend itself easily to being compensated by an award of damages.”

36. However, in O’Donovan v Over-C Technology Limited [2021] IECA 37, the Court of Appeal (Costello J) concluded that damages were an adequate – indeed the only – remedy where the relationship of trust and confidence between the parties had broken down. In that case, the trial judge had concluded that the plaintiff would not be reinstated at the hearing of the action, a fact accepted by the plaintiff. As Costello J put it (at para. 72), the trial judge failed to give effect to this finding. She went on to state the following:

“74. More importantly, Mr. O’Donovan accepted that the mutual trust and confidence which is necessary between an employer and an employee had been irretrievably lost. The trial judge acknowledged this. In these circumstances, the courts do not normally grant permanent injunctions restraining the termination of the contract of employment as this would amount to a permanent mandatory injunction to continue a contract of employment in circumstances where such an order would be simply untenable. The trial judge acknowledged that, in effect, Mr. O’Donovan’s claim was one for damages for wrongful termination of his contract of employment. By definition, damages are an adequate remedy within the meaning of the jurisprudence in those circumstances and, accordingly, no injunction ought to have been granted.”

37. O’Donovan concerned a dismissal for poor performance, which the Court of Appeal concluded did not attract the requirements of fair procedures, and where it was accepted that the relationship of trust and confidence had broken down. However, it is clear that the nature of the continuing relationship between employer and employee will be of significance in determining what, if any, relief to grant (see, for instance, Bergin at paras 6.3. and 6.4).

38. In O’Donovan the Court of Appeal also noted that the application in that case was made after the contract of employment had been terminated. The Court concluded:

“73. If, as the appellants argued, and Mr. O’Donovan apparently accepted, his contract of employment had, in fact, terminated when he instituted the proceedings, then he could not be reinstated on foot of an order granted in these proceedings. His claim was for wrongful, not unfair, dismissal. Had he remained in place when he commenced the proceedings he might have obtained an order restraining the termination of his employment, if, for instance, he could show that his employment was about to be terminated for alleged misconduct without affording him fair procedures; but, once his contract was terminated he could not be reinstated to his former position in wrongful dismissal proceedings.”

39. This contrasts with the view taken by Clarke J in Bergin:

“4.11 I should finally add that it does not seem to me to be appropriate to make a distinction as to the stage at which a disciplinary process has reached, in determining the entitlements of an employee to an injunction. It can hardly be the case that the entitlement or otherwise of an employee to an injunction could depend on whether he happened to get to court before a particular stage had been reached. An employee who has already been summarily dismissed is undoubtedly seeking a mandatory injunction if he seeks to restrain the employer concerned from acting as if he had been dismissed. If, whether by luck, diligence, prescience or a combination of any of those, the employee concerned happens to seek an injunction before the employer has made a final decision (even by, say, a matter of hours) such an application could be couched as one restraining the dismissal but, for reasons similar to those relied upon by Fennelly J. in Maha Lingham v. Health Service Executive [2005] IESC 89, [2005] 17 E.L.R. 208, I am satisfied that the substance of such an order, if made, remains mandatory. It was, amongst other things, for reasons such as that, that I expressed the view in Becker v. St. Dominics Secondary School [2006] IEHC 130, (Unreported, High Court, Clarke J., 13th April, 2006), and further cases which followed it, that the courts should only intervene in the middle of a disciplinary process in a clear case. I note that Feeney J. has expressed a similar view in a subsequent ex tempore judgment.”

Strong Case Likely to Succeed

40. In the absence of a written contract of employment, the Plaintiff’s case rests on an implied right to fair procedures where her employer seeks to dismiss her for misconduct. The Defendant does not dispute the existence of such an implied right but argues that even if a breach is established here, it is not such as to entitle the Plaintiff to an injunction.

41. In the proceedings, the Plaintiff sought relief, in effect, prohibiting the Defendant from continuing with disciplinary proceedings at all, or at least, setting at naught everything which had taken place to date. However, at hearing, the Plaintiff accepted that she could have no complaint regarding the role of the Investigator and the procedure followed by her, albeit that she says that she does not accept some of her conclusions. This was, in my view, a sensible concession. The appointment of an independent investigator by the Defendant showed, at that stage, a clear awareness of the requirement for fair procedures and was an appropriate first step by her. There is nothing in the conduct of the Investigator which has been identified as giving rise to any complaint. There is, therefore, no basis for impugning the process up to the completion of the Report.

.

42. There are, however, a number of matters which give rise to a strong case for breach of fair procedures. The first and most obvious is the failure to comply with the procedure which the Plaintiff had been told would apply.

43. In this regard, as noted above, the Plaintiff was advised that on foot of the Investigator’s Report, the employer would decide whether to have a disciplinary hearing and that that hearing might result in the application of a sanction. This process, had it been followed, would appear to have maintained a clear distinction between an investigation phase and a disciplinary phase. However, rather than offer the Plaintiff a hearing upon receipt of the Report, the Firm issued a letter stating that the findings in the report potentially amounted to gross misconduct warranting summary dismissal and affording the Plaintiff one week to reply in writing.

44. Irrespective of whether the overall procedure to that point – the appointment of an investigator to complete a fact-finding report and a proposed sanction on foot thereof with a right to reply in writing – might in another case meet the requirement for fair procedures, it seems to me that the Plaintiff has a strong case for contending that it falls short of the agreed procedure and therefore was in breach of her entitlements.

45. The Defendant argued for the first time at the hearing of the injunction application that insofar as the Plaintiff was told by the Investigator that the investigation would be followed by a hearing, that commitment was made by the Investigator and did not bind the Defendant. Although the Defendant may be able to establish at trial that she is not bound by the Investigator’s representations, she did not deny that she was aware of the commitment given by the Investigator, which was stated in correspondence well in advance of the investigation taking place. She may also argue that the Terms of Reference, agreed by the Plaintiff, somehow displace any representation made by the Investigator, although it is not obvious that those Terms are inconsistent with any representation made. For present purposes, in circumstances where the Investigator was appointed by the Defendant, I am satisfied that at this stage the Plaintiff has established a strong case that the Defendant has failed to follow a disciplinary procedure with which she was bound to comply.

46. I am also satisfied that the Plaintiff has made out a strong case that the initial decision to dismiss the Plaintiff and the appeals procedure afforded were in breach of fair procedures. The issues here need to be considered together.

47. As set out above, the Defendant’s case is that the financial controller was appointed as the decision-maker to investigate an alleged breach of discipline in which, in effect, the Defendant was the complainant. Both the Defendant and the financial controller have averred that that initial decision, communicated on 6 April 2023, was made by the financial controller. However, both accept that it was the Defendant who signed the letter communicating the decision. No explanation is given for this by the Defendant other than to say that the financial controller was “responsible for [the letter’s] content”.

48. The fact that the Defendant seems to have had at least some involvement in the initial

decision to dismiss the Plaintiff might, on its own, constitute a strong case likely to succeed notwithstanding the averments that the decision was made by the financial controller. However, taken together with the fact that the same letter advised that any appeal would be decided by the Defendant, this clearly, in my view, meets the necessary threshold for the grant of an injunction. In circumstances where the Defendant considered it necessary to appoint an outside investigator to conduct the initial investigation of the Plaintiff’s conduct, it is surprising, to say the least, that she considered it appropriate to designate herself as the party who would determine any appeal by the Plaintiff. It is all the more so where it appears that she had at least some involvement in the decision from which the appeal was to be made. The Plaintiff has a strong case that having the complainant act as decision-maker on an appeal was unfair and that this, especially given the Defendant’s apparent involvement in the initial

decision to dismiss, involved at least an element of pre-judgment.

49. In truth, the Defendant’s main argument in defence of this aspect of the procedure was not that it was fair but that the Plaintiff did not raise any particular objection to it. The Defendant places some reliance on the fact that it appears from telephone records that the Plaintiff had been in contact with her solicitor at various times between 17 August 2022 and 8 March 2023 and had been in touch with the Workplace Relations Commission in October 2022. In light of that evidence, the Defendant questions the Plaintiff’s evidence that it was only when she consulted with counsel in or about 22 April 2023 that she realised the extent of the breach of fair procedures. In the circumstances which arose here, it does not seem to me that any purported ‘approbation’ or delay by the Plaintiff in raising concerns about the procedure being followed is sufficient to disentitle her to injunctive relief even if, as the Defendant’s evidence suggests, the Plaintiff may have obtained legal advice at points along the way.

50. When informed of the potential that she would be summarily dismissed for gross misconduct in the letter of 23 March 2023, she queried the procedure being applied and sought clarification. She was not provided with clarification. Rather the next thing she was told was that a decision had been made to dismiss her in a letter from the financial controller which was, confusingly, signed by the Defendant. She was given a right of appeal and sought a short period of time to submit that appeal. She has averred that she subsequently met with counsel and realised for the first time that her entitlement to fair procedures may have been breached. On the day that she said that she would submit her appeal, her solicitor wrote to the Defendant raising issues about fair procedures.

51. The argument that had the Plaintiff raised issues about fair procedures in a timely fashion, these could have been addressed, rings hollow given the Defendant’s forceful rejection of the complaints made when they were raised in the Plaintiff’s solicitor’s letter. In any event, as the Plaintiff argues, an employer’s obligation when conducting an investigation into an employee’s misconduct is to provide a fair procedure. It is not to provide a fair procedure only to the extent that that is requested and detailed by the employee. Put otherwise, an employer is not entitled to conduct an unfair investigation into an employee’s misconduct simply because the employee doesn’t raise an immediate objection. In the circumstances of this case, it does not seem to me that the Plaintiff’s failure to cry foul in clear terms at the first opportunity deprives her of her entitlement to seek relief. At the time her solicitor wrote on 28 April 2023 setting out in clear terms the concerns about the process, nothing had happened which would have prevented the Defendant addressing the concerns raised had she seen fit to do so.

52. Any difficulties which arose in completing the disciplinary process fairly seems likely to have been contributed to by the failure to have in place established disciplinary or grievance procedures before the events giving rise to the proceedings, and the failure to provide the Plaintiff with a contract of employment. Although the Defendant criticises the Plaintiff for lack of co-operation in engaging with the disciplinary procedure, and her failure to set out her concerns in a timely manner, a good portion of the blame for that must, for this reason, rest with the Defendant.

53. The difficulties may also have been contributed to by the failure to clearly differentiate the investigative phase of the process from the disciplinary phase. The importance of doing so was identified by Irvine J in Iarnród Éireann v McKelvey [2018] IECA 346:

“45. The decision in Burns, because it focuses upon a charge of misconduct which was immediately to become the subject matter of a formal disciplinary hearing, does not engage with the difference between the rights to which an employee may be entitled depending upon whether they are the subject matter of what is often referred to as a preliminary investigation and a formal disciplinary process. The investigative process is usually conducted to ascertain whether there are issues that an employee should be required to answer in a formal disciplinary process and there are no immediate legal consequences that flow from such investigations. On the other hand, a formal disciplinary inquiry, which often follows on from an investigative process, has the potential to have serious consequences for the employee as it is at the end of this process that sanctions may be employed if misconduct is found. Relevant to the rights of the employee in the course of the preliminary investigation is the fact that the findings of fact made in the course of such an investigation are of significance only insofar as they may lead to a formal disciplinary process. If a formal disciplinary inquiry is later commenced the misconduct alleged will have to be proved in the course of that inquiry and for that reason the employee will be entitled to challenge all of the evidence adduced and will be entitled to call their own evidence. The distinction between these two processes is helpfully considered by Laffoy J. in Maher v. Irish Permanent [1998] 4 I.R. 302.”

54. In this regard, what seems to have been intended, at least on the Investigator’s understanding as evidenced by her letter of 19 December 2022 to the Plaintiff, was that her Report would be part of an investigation phase which might trigger a decision whether to move to a disciplinary process. It is noted that the Investigator did not make any findings as to whether any of the Plaintiff’s actions amounted to misconduct.

However, what seems to have occurred is that the Defendant treated the investigation and the Report as part of the disciplinary phase, and the basis for proposing a sanction.

55. The Defendant, in her written submissions, places some reliance on the dicta of Costello J in O’Donovan to the effect that reinstatement would not be possible if termination had already taken place and accordingly submitted that an injunction should not be granted. The Plaintiff argues that that observation was obiter, since the Court had already decided to refuse the injunction and, in any event, was made in a case which did not concern dismissal for misconduct. The Plaintiff points out that Bergin is authority for the proposition that the happenstance of seeking relief either immediately before or immediately after termination should not affect the test which should apply.

56. At the hearing of the action, the Defendant placed less weight on this argument than in the written submissions, which may reflect that there is some ambiguity about whether the Plaintiff’s employment had, in fact, been formally terminated. Of course, on the Plaintiff’s case, it could only ever have been a purported termination, based on an invalid procedure and therefore of no effect. Given the Firm’s acceptance that it might accept a ‘late’ appeal, i.e. after 24 April 2023, it seems to me that it is at least arguable that absent formal notification of a decision to terminate the Plaintiff’s employment, her employment had not come to an end and that, therefore, the entitlement to an injunction to restrain termination remained alive even if O’Donovan represents a change in the law from the position set out in Bergin regarding the time at which relief must be sought.

Balance of Justice

57. The existence of a strong case likely to succeed is not sufficient to warrant the granting of an injunction. The Court is also required to consider the balance of justice or the balance of convenience, as part of which a consideration of the adequacy of damages will form the most important element (see Merck, Sharp and Dohme). The Court must therefore consider whether or not the grant of an injustice gives rise to the least risk of injustice pending a trial.

58. The Plaintiff does not seek reinstatement pending the full hearing, rather she seeks what has been termed a Fennelly Order after the decision in Fennelly v Assicurazioni Generali (1985) 3 ILT 73, which is an order directing an employer to pay an employee all salary and other benefits to which the employee is entitled under the relevant contract of employment, on the undertaking of the employee to carry out such duties under that contract as the employer may require. Typically, an employee would remain suspended on those terms pending the trial of the action.

59. If such an Order were made then, consideration of the adequacy of damages apart, the balance of convenience would lie in granting the injunction sought. The loss of income for the Plaintiff if not entitled to be paid pending a resolution of these proceedings would clearly have a greater negative impact on the Plaintiff than would the burden of paying her have on the Defendant. I accept what is said by counsel for the Defendant regarding the size of the Defendant’s firm, but no evidence of any kind has been adduced by her to suggest any significant negative impact pending trial. If an early trial of the action can be achieved, which seems eminently possible, any financial burden suffered by the Defendant would be minimised. If ultimately successful, any loss to the Defendant will not be so great that the Plaintiff’s undertaking in damages would not be adequate to compensate her.

60. Nor is the Plaintiff’s position one of such seniority that uncertainty about whether she needs to be permanently replaced would create insuperable difficulties for the Defendant.

61. In the circumstances, therefore, the key question is whether damages are an adequate remedy for the Plaintiff.

62. Having regard to the reputational harm which would be caused to the Plaintiff if she were dismissed for misconduct pending the hearing of the within action, damages would prima facie not be an adequate remedy. Although the Defendant is entitled to dismiss the Plaintiff for misconduct, she is only entitled to do so following a fair process. The Plaintiff is entitled not to have her reputation tarnished by a finding of misconduct based on an unfair process.

63. However, the authorities make clear that in many, if not most, employment injunction cases, the remedy at trial is ultimately one of damages. Where the relationship of trust and confidence is acknowledged to have broken down between the parties, damages will be the only remedy available and thus an injunction would not be appropriate, per O’Donovan. Considered through the prism of the principles set out in Merck, Sharp and Dohme, since a permanent injunction will not be granted at trial, no injunction should be granted on an interlocutory basis.

64. The Defendant has averred that in her view the relationship of trust and confidence has broken down. Since she is the employer, that averment must be given significant weight. Is it enough to determine the issue in her favour? In Bergin, Clarke J makes clear that an employer’s averment to this effect cannot be determinative and I respectfully agree.

65. The matters giving rise to the alleged breakdown in trust and confidence between the parties relate solely to what occurred on 15 June 2022. There is no suggestion of dishonesty or lack of competence. Notwithstanding the contents of the letter, which were highly critical of the Defendant, the Plaintiff avers that she has “great admiration and respect” for the Defendant. The Firm’s initial reaction to the letter was to require the Plaintiff to engage with the medical assessment at which point they would consider her fitness to return to work. The issue of a disciplinary proceedings was only raised some five months later. Although the Investigator concluded that the content of the letter of 15 June and the circumstances in which it were delivered were “unacceptable and inappropriate”, it was accepted by here that there was no intention to be threatening to the Defendant that evening or to threaten to disclose the contents of the letter. Much of the focus of the disciplinary proceedings was the allegation that the Plaintiff had threatened breaches of confidence, which the Investigator not to be so.

66. It may be that, as in Bergin, having regard to the issues giving rise to the disciplinary proceedings and, indeed, the manner in which this injunction application has been contested, with some vigour on both sides, that it is improbable that the Court at the hearing of this action would make an Order requiring that the Plaintiff would be allowed to continue with her duties. However, in my view, it would be premature to conclude that the employer/employee relationship is at an end at this stage, and it would be inappropriate to refuse an injunction which would otherwise be available on the basis that this was so. The Defendant contends, in the letter of 23 March 2023, that the events of 15 June 2022 were such as to entitle the Defendant to dismiss the Plaintiff for gross misconduct “in the sense of severing and irreparably damaging the bond of trust between” the employer and employee. The question of whether her actions amounted to gross misconduct is precisely the question which the Plaintiff wants determined in a fair procedure and she has made out a strong case for arguing that she has not been afforded such a procedure.

67. In all the circumstances, I propose granting a limited form of injunction in the following terms:

(i) That the Plaintiff is paid her salary pending the trial of the action (and any applicable bonus and other benefit arising during that period), on the provision by her of an undertaking to carry out any of the reasonable duties that the Defendant, in her discretion, may require of her.

(ii) That the Defendant is not required to assign any duties to the Plaintiff at any time pending the trial of the action.

(iii) That the Defendant may choose to suspend the Plaintiff pending the trial of the action, but that is without any prejudice to the Defendant’s obligation to continue to pay the Plaintiff’s salary set out at (i) above.

(iv) The Defendant will be restrained from relying on any step in the disciplinary procedure which occurred after the date of receipt by her of the Investigator’s Report.

68. I will not make any Order restraining the Defendant from taking such further steps as she considers appropriate on foot of the Investigator’s Report or from otherwise seeking to terminate the Plaintiff’s employment pursuant to contract.

69. I will hear the parties as to the precise form of Order and will, if requested, fix directions to facilitate an early trial.