Probationary Dismissals and Fair Procedures : High Court grants Injunctive Relief

HRHQ Labour Court judge

By Louise O’Byrne, Partner, Employment Law Group, Arthur Cox. LLP

In a recent decision, Buttimer v Oak Fuel Supermarket Limited Trading as Costcutter Rathcormac  [2023] IEHC 126, the High Court granted two interlocutory orders restraining an employer from: (i) appointing another person to fill a role left vacant following a disputed dismissal, and (ii) publishing or communicating to any party that the employee was no longer employed, pending the outcome of the full trial.

The employee was employed as Store Manager in the employer’s fuel station for a period of approximately two months.  Following her dismissal the employee issued proceedings seeking a series of interlocutory orders restraining her employers from;

  1. treating her as other than employed or continuing to be employer by them;
  2. appointing another person in her position;
  3. terminating her contract of employment other than in accordance with her legal entitlement;
  4. communicating to any other party that she is no longer employed by them; and
  5. requiring her employer to pay her salary.

Under the terms of her employment contract, the employee was subject to a probationary period of six months. During this probationary period, she could be dismissed without cause on one week’s notice. Within two weeks of her start date, allegations were made against the employee by co-worker. An investigation was launched in accordance with the employer’s bullying and harassment policies and she was informed that the disciplinary procedure may apply if the allegations were substantiated. While the investigation was ongoing the employee signed a new contract of employment which stated that the standard disciplinary procedures did not apply during the probationary period.  Further complaints were made against the employee a few weeks later. Shortly after the second set of complaints were lodged, the employer terminated the employee’s employment. The employee claims she was dismissed as a direct result of the allegations made against her and the alleged misconduct. She argues that she was not afforded fair procedures and so was wrongfully dismissed. The employer rejects this version of events. They contend she simply failed her probation because of poor performance but that even if she had been dismissed for misconduct, the disciplinary procedure did not apply during her probationary period.

Rather than make a ruling as to the facts and entirety of the of the case it was for the Court to determine whether to order the reliefs sought should be granted pending the outcome of the full trial of action. In its decision, the Court noted that consideration of this determination “should not be approached as a checklist but as the flexible remedy which an injunction is intended to be”.

Applying the principles of Merck Sharp & Dohme v Clonmel Healthcare  [2019] IESC 65, the Court found the employee had successfully established the possibility that an injunction restraining her termination might be granted at the trial of action. The next question considered by the Court was whether the employee had a strong case that was “likely to succeed at the hearing of the action”. Given the facts of the case, to satisfy this question, the employee was required to establish she had a strong case that her employment was terminated for misconduct rather than poor performance. Where a dismissal is for misconduct, an employer must comply with fair procedures. The Court determined that “the mere fact that [certain conduct] might also be considered as a performance issue does not preclude it from being misconduct”. The Court must consider the real and substantive of the reason for the dismissal. The right to fair procedures does not only arise where the termination is for stated misconduct, nor can it be contracted out of. While in this case the employee’s second contract disapplied the company’s standard disciplinary procedure during the probationary period, the employer could not contract out of the common law and constitutional principles of fair procedures. Applying the above reasoning the Court found the employee had established a strong case that was likely to succeed at trial.

The Court then moved to consider whether, on the balance of convenience, the employee should be granted the relief’s sought.  It was held that the primary focus when deciding to grant an injunction “has to be to minimise the risk of injustice”.  In making this assessment the Court considered:

  1. the strong case that damages would be an adequate relief in this case, as the direct financial loss would be readily calculable (this would be the amount the employee would have been paid had she not been wrongfully let go and arguably, limited to one week’s notice);
  2. the significant damage to the employee’s reputation as a result of the termination and the questionable value granting an interlocutory injunction would have in mitigating that damage;
  3. the fairness of obliging the employer to pay the employee’s salary until the trial of action; and
  4. the objective breakdown in the relationship of trust and confidence between the employee and employer.

On the balance convenience the Court found the employee should be awarded two of the six injunctions sought.  The employer was restrained from: (i) taking any steps to appoint another person to fill the role left vacant by the employee and (ii) communicating to any party that she is no longer connected to the employer.

About the authors

Louise O’Byrne is a Partner in the Employment Law group. Louise provides commercial and solutions focussed advice to a wide range of clients to include clients in the financial services, manufacturing, retail, technology, energy, pharmaceutical and healthcare sectors. Louise advises and represents employers in all types of employment disputes, including unfair dismissal, employment injunctions, occupational stress and bullying claims, transfer of undertakings, fixed-term and part-time work and discrimination claims. She regularly appears for clients in the Workplace Relations Commission, the Circuit Court and the High Court. Louise has particular expertise in advising on the employment aspects of corporate transactions and outsourcings.

Colin Rooney is a Partner in the Technology and Innovation Group. Colin has extensive experience advising domestic and international clients on information management issues, with his data protection and information technology practice covering all aspects of data processing across all industry sectors. His practice also has a strong emphasis on commercial IT agreements. Colin is a frequent speaker on data protection and freedom of information topics, including at the Data Protection Leadership Forum, which the Group launched in 2019. He is also a frequent contributor to various legal journals on the above-mentioned topics.