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Cite as: [1997] IEHC 129

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Courtenay v. Radio 2000 Ltd. t/a Classic Hits 98 FM [1997] IEHC 129 (22nd July, 1997)

THE HIGH COURT

1997 No. 7903p

BETWEEN

PATRICK COURTENAY

PLAINTIFF

AND

RADIO 2000 LIMITED T/A CLASSIC HITS 98 FM

DEFENDANT

Judgment of Miss Justice Laffoy delivered on the 22nd day of July 1997

1. This application for interlocutory injunctions arises out of the purported dismissal by the Defendant of the Plaintiff from his position as a radio presenter with the Defendant.

2. The Plaintiff has been employed by the Defendant as a radio presenter since August 1989 under a series of contracts in writing, the most recent being a contract dated 21st April, 1994 for the term from 1st April, 1994 to 31st March, 1996. It is common case that on the termination of that term the Plaintiff continued in the employment of the Defendant, but without any further contract in writing having been entered into. The terms of the Plaintiff's employment from 1st April, 1996 onwards are matters to be determined at the trial of the action.

3. On 9th June, 1997, the Plaintiff was suspended on full pay until further notice for allegedly breaching the electronic media embargo in relation to the general election during a broadcast on the day of the general election, 6th June, 1997. The Plaintiff was apprised that a full investigation would take place into the incident and he was invited to attend a meeting with Mr. Ken Hutton, the General Manager of the Defendant, on 11th June, 1997. The Plaintiff attended the meeting on 11th June, 1997 accompanied by his solicitor. At the meeting, the Plaintiff contended that he had not been in breach of any instruction given to him by the Defendant in relation to broadcasting on 6th June, 1997. In his Affidavit to ground this application, the Plaintiff averred that he was told at the meeting that the matter would be discussed at Board level and that he would be informed of the outcome by Monday 16th June, 1997. The Plaintiff's account of what occurred at the meeting on 11th June, 1997 has not been controverted by the Defendant.

4. While the evidence before the Court may not tell the whole story, on the evidence the next intimation which the Plaintiff got of the Defendant's intentions in relation to his employment was at a meeting on 4th July, 1997. At that meeting, a letter of dismissal was handed to the Plaintiff. The letter was signed by Mr. Hutton. It stated that Mr. Hutton had considered the Plaintiff's conduct on general election day in the light of what was referred to as the Plaintiff's " wholly unacceptable prior record with the station " and that, in the circumstances of the case and having regard to the Plaintiff's prior history, Mr. Hutton had come to the conclusion that the station could no longer have trust and confidence in him and, in particular, trust and confidence to make live broadcasts. The letter stated that Mr. Hutton had determined that the Plaintiff's employment should terminate forthwith, that he would be paid until 1st August, 1997 in lieu of notice but he would not be required to attend at work during that period of notice.

5. The reliefs sought by the Plaintiff on this application are as follows:-

(a) an injunction restraining the Defendant by itself or by its servants or agents from terminating the Plaintiff's contract of employment;

(b) an injunction restraining the Defendant by itself or by its servants or agents from causing to be published to any party that the Plaintiff has been dismissed;

(c) an injunction restraining the Defendant by itself or by its servants or agents from withholding any benefits of employment from the Plaintiff including all pay and other emoluments;

(d) an injunction restraining the Defendant from implementing the Plaintiff's purported dismissal until the trial of the action;

(e) an Order, if necessary, requiring the Defendant to reinstate the Plaintiff to his position as a radio presenter pending the trial of the action or until further Order of the Court; and

(f) an injunction restraining the Defendant by itself or by its servants or agents from appointing another person to the Plaintiff's position pending the trial of the action and an Order restraining the performance of the Plaintiff's duties as presenter of the Drive Time programme by any person other than the Plaintiff.

6. In broad terms, the Plaintiff contends that his purported dismissal was unlawful on two grounds. First, he contends that he was not afforded fair procedures and natural and constitutional justice, in that there was no investigation of the complaints against him and he was given no opportunity to answer the complaints and, in particular, the complaints about his "prior record". Secondly, the Plaintiff contends that, in any event, there was no substantive ground justifying his dismissal and that, in particular, he did not breach the guidelines of the Independent Radio and Television Commission in relation to broadcasts on general election day or, alternatively, that he did not breach any instruction given to him by his employer as to the implementation of those guidelines.

7. I am satisfied that there are fair issues to be tried between the parties as to whether his purported dismissal was lawful on both grounds.

8. It remains to consider, on this interlocutory application, whether damages would be an adequate remedy and whether the balance of convenience lies in favour of granting or refusing the reliefs sought by the Plaintiff.

9. The basis on which the Plaintiff asserts that damages would not be an adequate remedy if he establishes that his dismissal was wrongful and that the balance of convenience lies in favour of granting him the reliefs he has sought is that the broadcasting community in Dublin is small, that the publicity that he has been suspended or dismissed for alleged breach of IRTC guidelines, which has already occurred in the national print media, is seriously damaging to his reputation and that dismissal has the capacity to render him unemployable and to ruin his career. On the other hand, the Defendant's response is that the Plaintiff was employed to present live broadcasts and that, given that trust and confidence in the Plaintiff no longer exists on the part of the Defendant, it would be inappropriate for the Court to grant the reliefs sought by the Plaintiff and, in any event, to do so would be to result in an unworkable situation.

10. My decision in relation to the various reliefs sought by the Plaintiff is as follows:-

(1) Having regard to the nature of the Plaintiff's employment with the Defendant, to present live broadcasts, and having regard to the attitude evinced on the part of the Defendant, I do not think it would be appropriate to make an Order requiring the Defendant to reinstate the Plaintiff to his position as a radio presenter pending the trial of the action and, accordingly, I refuse the relief set out at (e) above.

(2) In relation to the relief set out at (f) above, I accept the submission made by Mr. Stewart, on behalf of the Defendant, which is succinctly conveyed by the cliché " the show must go on " and I refuse that relief also.

(3) I consider that employment as a broadcaster, which is a high profile occupation, is in a special category and that the Plaintiff might possibly establish at the trial of the action that this is one of the exceptional circumstances in which an injunction is the appropriate remedy in an employer and employee dispute. However, I express no view whatsoever on this issue. Nonetheless, I think that the balance of convenience lies in favour of granting the Plaintiff an injunction restraining the Defendant from implementing the purported dismissal until the trial of the action and, accordingly, I grant the relief set out at (d) above.

(4) In relation to the relief set out at (c) above, in support of the claim for this relief, the Plaintiff relies on a line of authorities commencing with the decision of Costello J., as he then was, in Fennelly -v- Assicurazioni Generali Spa [1985] 3 I.L.T.R. 73, in which such relief was granted by the Court. Mr. Stewart, on behalf of the Defendant, contends that cases in which such relief was granted were exceptional cases and that the Plaintiff does not fall within the ambit of the principle which was applied in those cases. In particular, Mr. Stewart points to the fact that, on his own evidence, the Plaintiff acknowledges that the Defendant would be contractually entitled to terminate his employment on six months notice. The whole thrust of the letter of dismissal dated 4th July, 1997 was that the Plaintiff's employment was being terminated for misconduct, not that his employment was being terminated on notice in accordance with the contractual terms which governed his employment. It seems to me that the Plaintiff does come within the principle deduced from the Fennelly case and the subsequent cases in which that principle was applied, which, in my view, is that relief should be granted if it would perpetrate an injustice to leave a person who alleges that he has been wrongfully dismissed without his salary, and only with the prospect of an award of damages at the trial of the action, pending the trial of the action. Accordingly, I will make an Order directing the Defendant to pay the Plaintiff's salary, and such other emoluments as he would be entitled to under his contract of employment, from 1st August, 1997 until the trial of the action on condition that the Plaintiff gives to the Court, in addition to the usual undertaking as to damages, an undertaking that he will perform such duties on behalf of the Defendant as are reasonably appropriate pending the trial of the action, although whether the Defendant wishes to avail of the Plaintiff's services is entirely a matter for the Defendant.

(5) On the evidence, I am satisfied that the Defendant and its officers have acted properly to date in relation to publicity surrounding the Plaintiff's employment with them and, in the circumstances, I refuse the relief set out at (b) above.

(6) I also refuse the relief set out at (a) above as such relief would be inappropriate on an interlocutory application and, in any event, I consider that the Plaintiff's interest is adequately protected by the reliefs I have granted.

11. I will give each party liberty to apply and I will reserve the costs.