High Court dismisses interim salary claim in employment dispute due to lack of strong case on evidence.

Neutral Citation No. [2016] IEHC 376

THE HIGH COURT

[2016 No. 4395 P]

BETWEEN

CATHERINE RYAN

PLAINTIFF

AND

BANK OF IRELAND

DEFENDANT

JUDGMENT of Mr. Justice Paul Gilligan delivered on the 17th day of June, 2016.

1. In essence the plaintiff’s claim in these proceedings is for a declaration that the purported termination of her employment by letter

of the Bank of Ireland as dated the 6th day of May, 2016, is a nullity and of no effect. Inter alia the plaintiff claims a number of other

reliefs and effectively she seeks either a return to employment with the defendant and damages as suffered to the date of her return

to employment or alternatively damages both to date and into the future. In this interlocutory application the only relief being pursued

on the plaintiff’s behalf is the payment of her salary pending the determination of these proceedings.

2. The salient facts appear to be that the plaintiff was employed in a very senior position at a substantial salary with a leading firm of

chartered accountants in the city of Dublin. She was approached by a recruiter in January, 2015, who indicated to her that the Bank

of Ireland had indicated to her that they were looking for a performance and award benefits manager at a very substantial salary, and

that they were looking for someone who could move into the top role in that department within eighteen months. I have been

provided with a copy e-mail in this regard but no affidavit has been proffered by either of the parties herein from the recruiter.

3. It appears that the plaintiff, despite certain misgivings, proceeded to enter an interview process with the defendant’s human

resources department and in line with the senior position with the defendant bank which was being discussed the plaintiff underwent

a number of interviews, examinations, and tests, and on the 25th June, 2015, the plaintiff was offered a contract for the position of

Deputy Head of Group Performance and Reward within the Bank of Ireland Group of companies. The offer was subject to receipt of

two satisfactory references, medical assessments and verification of the plaintiff’s qualifications and the information she had provided

on the application form.

4. The plaintiff was advised to carefully read the documents as contained in the letter of offer and she was given ten working days to

either accept the offer and if she did not the offer would no longer be open for acceptance by her.

5. The plaintiff was not advised to seek legal advice as regards the terms of her employment contract as attached to the letter and

neither did she.

6. Paragraph 4 of the contract provided for a probationary period and that the plaintiff would be employed on probation for a period of

six months with effect from the 5th October, 2015. It was specifically set out that the plaintiff’s suitability as an employee would be

assessed during the probationary period and that her employment could be terminated during the probationary period on four weeks’

notice if her conduct/performance was considered unsatisfactory or if it was considered that she was otherwise unsuitable to

continue in employment with the company. It was provided in the contract that the probationary period could be extended at the

discretion of the Bank of Ireland.

7. At para. 17(B) of the proposed contract it was specifically set out that the Bank would be entitled to terminate the plaintiff’s

employment at any time by giving not less than twelve weeks’ written notice of termination and likewise the plaintiff would be entitled

to terminate by giving the same period of notice.

8. At para. 24 of the contract under the title “Prior Agreement” it was stated that the terms and conditions as set out in the letter

supersede any prior agreements, representations and commitments between the plaintiff and the Bank of Ireland Group relating to the

plaintiff’s employment, “all of which are hereby terminated.”

9. The plaintiff proceeded to sign the letter of contract with Bank of Ireland and then resigned her position with the leading firm of

accountants, with whom she was in employment and proceeded to commence work.

10. The plaintiff’s period of probation was extended but culminated in a letter of termination of her employment on the 6th May, 2016,

effectively on the basis that the plaintiff had failed to satisfy the defendant that she was a suitable employee to perform the role as

assigned to her.

11. From the plaintiff’s perspective the situation that has arisen has the gravest of consequences particularly having regard to her

personal circumstances, her age, her family commitments, her ongoing financial position and her general well being, against a

background where she was effectively head-hunted out of her previous, very substantial position of employment.

12. From the defendant’s perspective, they take a straightforward approach relying on the terms of the contract of employment, that

the plaintiff was unsuitable for the position as Deputy Head of Group Performance and Reward within the Bank of Ireland Group of

companies, that any previous discussions about any aspect of the terms and conditions of the plaintiff’s proposed employment are

superseded by the agreement which the plaintiff entered into and in particular at para. 24 relating to prior agreement and that they

are entitled within the terms of the agreement to terminate and pay the plaintiff the equivalent of four weeks’ salary.

13. Mr. Callanan on the plaintiff’s behalf relies effectively on the decision of Fennelly J. in the Supreme Court in Maha Lingam v. Health

Service Executive [2005] IESC 89 and submits that, in effect, the plaintiff makes out a “strong case” for the reliefs as sought and in

the particular circumstances all she is seeking is the payment of her salary pending the determination of the proceedings.

14. Mr. Connaughton on the defendant’s behalf relies on the terms and conditions of the contract as entered into between the parties

and the fact that there is no known precedent either in the Irish or English authorities which would in effect in the circumstances of

this case entitle the plaintiff to be paid her salary on an ongoing basis pending the determination of the proceedings. It is conceded,

however, on the defendant’s behalf that if the Court is satisfied that the plaintiff at this interlocutory stage makes out a strong case

that is likely to succeed the Court can exercise its discretion as regards the payment of the plaintiff’s salary pending the trial of the

action.

15. Having read and considered the affidavits as delivered and the submissions as made particularly on behalf of the plaintiff it is quite

clear that issues of trust and confidence loom large as the plaintiff alleges the Bank directed her to perform compliance duties as

opposed to the intended and discussed “Group Performance and Reward” duties and the plaintiff makes the most serious of allegations

as against the Bank and it’s senior employees which in turn are flatly contradicted. It is a central issue in the plaintiff’s case that she

relied on the defendant’s representations as to what the proposed position would entail and she maintains the position and the

manner in which she was treated turned out to be very different. Accordingly, the issues of trust and confidence relate to both

parties. Notwithstanding the content of the e-mail from Mairead Griffin to the plaintiff as dated the 12th January, 2015, and which in

effect started the whole process rolling the defendants deny that it was ever intended that the plaintiff was to take over the senior

position in the relevant department within eighteen months. The parties on occasion agree that certain conversations did take place

but come nowhere near agreeing the salient aspects of those conversations and in one instance in relation to the plaintiff’s averment

that a lunch took place with a named employee of the defendant at a named restaurant at a particular time, the defendant’s

representative avers that at a point in time but not in any way relevant there may have been a lunch but it was not in the named

restaurant at the particular time as alleged by the plaintiff.

16. From the plaintiff’s perspective if her averments as contained on affidavit are generally correct she would make out a strong case.

17. From the defendant’s perspective if the averments as made on their behalf are generally correct then it would appear that a

different situation may prevail.

18. This is a case that will be determined on the evidence adduced before the Court trying the issues between the parties and in

accordance with the principles as set out in Hay v. O’Grady [1992] I.R. 210 the trial judge will have every opportunity to assess the

veracity of the evidence adduced on behalf of both parties, will have the opportunity to assess witnesses and their demeanour and

the surrounding supporting facts and documents and will come to a conclusion based on the totality of the evidence adduced before

the trial court.

19. This Court is not in a position in these circumstances to come to a conclusion that the plaintiff on the current state of the

contested affidavit evidence of both parties makes out a strong case that is likely to succeed and as the onus rests with the plaintiff

the Court is not in a position to exercise its discretion and grant the plaintiff the relief she seeks, namely the payment of her salary on

an ongoing basis pending the determination of the proceedings.

20. The Court takes the view that it has to have regard to the extremely unfortunate background circumstances that pertain in the

particular circumstances of this case and accordingly directs that this is a case which has to be brought to trial at the earliest

possible opportunity and I will hear the submissions of counsel as to how this process can be facilitated.