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Rooney v. Kilkenny [2001] IEHC 32 (9th March, 2001)

THE HIGH COURT

2001 No. 1121P

BETWEEN

COLETTE ROONEY

PLAINTIFF

AND

OSSIE J KILKENNY AND BRIAN P MURPHY

DEFENDANTS

JUDGMENT of Mr. Justice Kinlen delivered the 9th day of March, 2001.

1. The Plaintiff issued Plenary Summons on the 26th January, 2001. The general endorsement of claim includes a request for a declaration that the Plaintiff is entitled to payment of her salary as a term and condition of her employment whilst on certified sick leave and that she is and continues to be in the permanent and pensionable employment of the Defendants as personal assistant to the first named Defendant. She also sought other declarations, injunctions and orders. She then brought a motion dated the 29th January, 2001 for the following orders and relief:-

An Injunction restraining the Defendants their servants and agents from treating the Plaintiff as other than continuing to be employed by the Defendant.
An Injunction requiring the Defendant to maintain the Plaintiffs sick pay until further order or the trial of the action.
Without prejudice to the relief sought at paragraph 2 aforesaid an injunction requiring the Defendants to pay the Plaintiffs salary as it falls due and requiring the Defendants to discharge all other incidents of the Plaintiffs employment and in particular the relevant pension premiums.
An Injunction restraining the Defendants from dismissing or purporting to dismiss the Plaintiff from her said post.
An Injunction restraining the Defendants, their servants and agents from appointing any person other than the Plaintiff to the Plaintiffs said position and restraining the discharge of the Plaintiffs function and responsibilities by any person other than the Plaintiffs. She also seeks further and other relief and costs.

2. This Motion is presently before this Court. The Plaintiff is a certified chartered Accountant and the Defendants are partners in an accountancy firm, practice under the style of O J Kilkenny & Co. The Plaintiff has been personal assistant to the first named Defendant since the month of February 1990. She alleges that she is being subjected to oppressive, abusive and bullying treatments by Mr. Kilkenny since at least 1999. She had only had one days illness off work since she started until January 2000. As a result of the alleged confrontation on the 19th January, 2000 she was away from work for approximately 2 weeks with stress related disorder. The Plaintiff was diagnosed by her psychiatrist as having a severe stress reaction which she ascribed directly to work stress. She also certified her as unfit to work.

3. Since the Plaintiffs problem was mainly with her immediate boss the first named Defendant, the second named Defendant offered to meet her to discuss her grievances. She refused to attend this meeting unless she was accompanied by her solicitor in view of her medical condition. The Defendants solicitors replied in a letter of the 24th October, 2000. Inter alia it states:-

“At a recent hearing in the Law Society in relation to a claim made by Mr. Ernie Fallon it was stated by your clients representative that she would be not returning to her employment with O. J. Kilkenny and Co. You might confirm that that is the position and if so our client is prepared to offer your client 3 months pay in lieu of notice together with a bonus in the sum of £50,000.00 and to arrange for the transfer of her pension entitlements under the scheme. If your client is maintaining the position that she is returning to work our client will need to take steps to ascertain her fitness to return to work and the likely date of such return.

You might note that our client has no contractual arrangement with your client in relation to payment of sick pay. Notwithstanding this our client has been paying your client her full salary for a considerable period of time. Your client has, we assume, applied for and obtained Social Welfare Benefit for this period and you might arrange for any Benefit Payments to be remitted to our client. Our client will be reviewing its position in relation to sick pay as it cannot continue to pay your client sick pay on an indefinite basis. Our client will pay your client for the month of October, 2000 (that such payment will be deducted from the three months notice mentioned above).

A reply of Messrs. A & L Goodbody, Solicitors for the Defendants on the 31st October, 2000 reads:-

“For the record and as was made clear to the Disciplinary Tribunal of the Law Society the position is that our client remains unfit for work. Her medical advise is that her health problems are entirely due to her situation at your clients work place. We enclose a copy of her medical report in this respect.

Accordingly, the position is not, as seems to be suggested in your letter, one of our clients deciding not to return to her employment but rather that your client has wrongfully created that situation. If you are in any doubt as to whether our client can or can not return to work now or at all, we would suggest that you arrange for a medical examination to confirm the position.

With regard to Social Welfare Benefit we will advise our client appropriately. As regards sick pay your client does have an obligation to continue payment. We are instructed that another employee was paid for at least as long. If your client wishes to be seen to be dealing with this serious matter appropriately it would need to rethink the strategy and messages conveyed with reference to continuing payment of our client. Furthermore, we could point out for the record that our client has earned and is due from your clients the bonus of £50,000.00 which sum has been due since July, 1997 and unless payments together with interest is made by return we are instructed to issue proceedings forthwith.”

4. By Notice of Motion dated the 29th January, 2001 and returnable for the 5th February of this year the Plaintiff seeks:-

An Injunction restraining the Defendants their servants and agents from treating the Plaintiff as other than continuing to be employed by the Defendants

1 An Injunction requiring the Defendant to maintain the Plaintiffs sick pay until further order or the trial of the action.

2 Without prejudice to the relief's sought at paragraph 2 hereof an Injunction requiring the Defendant to pay the Plaintiff a salary as it falls due and requiring the Defendants to discharge all other incidents of the Plaintiffs employment and in particular the relevant pension premiums.

3 An Injunction restraining the Defendants from dismissing or purporting to dismiss the Plaintiff from her said post.

4 An Injunction restraining the Defendants, their servants and agents from appointing any person other than the Plaintiff to the Plaintiffs said position and restraining the discharge of the Plaintiffs functions and responsibilities by any person other than the Plaintiff.”

5. It is agreed by the both parties that this Plaintiff has not been dismissed. However, it is clear that unhappy differences have arisen between the parties. The sooner this case is expedited to a full hearing in Court the better for both parties. It is not necessary at this stage to decide on the merits of the case. Senior Counsel has stated it is not necessary for this Court to decide whether she is difficult, whether her employer is the root of the problem. The question is simply is she entitled to sick leave? The parties agree that the contract of employment still endures. There is no statutory right to sick leave. The problem about repayment of Social Welfare Benefit has been resolved between the parties. The Court has been referred to Boyle -v- An Post 1992 2 IR 437, Morrison -v- Bell 1939 2 KB p.187 1939 1 AER 745. In the Morrison -v- Bell case Scott L J says at p.198 of the official report.

“In the contrary these cases say in my opinion quite clearly, that under a contract of service irrespective of the question of the length of notice provided by that contract wages continue through sickness and incapacity from sickness to do the work contracted for until the contract is terminated by a notice by the employer in accordance with the terms of the contracts”

6. This case lists a long series of English cases in which eminent Judges come to the same conclusion as Scott L J in Morrison -v- Bell case . The Court is also being referred to the 6th ed. of Dix and Crump on contracts of employment at p. 82 at paragraph B.52 states:-

“If under the terms of his contract expressed or implied the employee is entitled to wages through temporary sickness. He is entitled during such absence to receive his full remuneration in accordance with the terms of his employment. This may, in certain circumstances include the bonus.”

7. The Court was also refereed to Jakeman and Others Plaintiffs in the South West Thames Regional Health Authority and London Ambulance Service Defendants 1990 Industrial Relations Law Reports p. 62 which found that mandatory interlocutory relief is sought a more onerous test generally applies than that of whether the Plaintiffs have a good arguable claim that there is a question to be tried as laid down in the American Cyanamid Company -v- Ethicon Limited. The headnote reads:-

“In the present case while there was undoubtedly a serious question to be tried the Plaintiffs case could not be said to be a clear one. Nor were there any special circumstances either hardship or otherwise which made it inappropriate to apply the Locabail test (1986 1 WLR 657 CA) that a clear case must be shown and that would justify granting mandatory relief on the basis that there was a serious question to be tried. Although for the Plaintiffs to do without the wages claimed until the issue was finally determined might well be difficult for them, such is the case in every claim by an employee for wages paid to him by his employer and in many other claims for money not arising out of the employment relationship. In any event whether the initial test was one of a clear case or of a serious issue to be tried the balance of convenience lay in favour of refusing the interlocutory relief in that if the Plaintiffs were to succeed at trial in establishing their right to the deducted wages they would be adequately compensated by an award of damages. No authority was cited in which the Court had regarded temporary hardship as a ground for granting interlocutory relief in a claim for payment of wages. This was understandable since otherwise nearly every strong case for unpaid wages would attract such an Order for interlocutory relief. Mandatory interlocutory relief is generally not appropriate even in a clear case of entitlement to unpaid wages.”

8. In the 6th ed. Of Dix and Crump on Contracts of Employment paragraph 3.52 p. 82 the following appears:-

“If under the terms of this contract expressed or implied the employee is entitled to wages during temporary illness, sickness he is entitled to during such absence to receive his full remuneration in accordance with the terms of his employment. This may in certain circumstance include a bonus.”

“The authority for that statement is Morrison -v- Bell already cited. I should also draw attention to the Terms of Employment (Information) Act, 1994 Reilly -v- The Irish Press Limited ILTR 1971 p.194 Maguire P states at p.195 “as was said by Mr. Martin Maguire a custom or usage of any kind is a difficult thing to establish. Before a usage such as is contended for here can be established it must be proved by persons whose position in the world of journalism entitles them to speak of with certainty and knowledge of its existence. I have to be satisfied that it is so notorious well known and acquiesced in, that in the absence of agreement in writing it is to be taken as one of the terms of the contract between the parties.”

It is argued that the letter of the 24th October already cited was not a termination of employment , merely a termination of sick pay. Is it right that an employer who refuses to pay is in a better position than someone who pays for a reasonable period based on generosity ?. If there is, that is something for a trial judge. The Defendant says 6 months is good practice and is so regarded by big firms and in public services. This was not contradicted. The Defendant should not be penalised for doing the decent thing. The difficulty in this case is in very similar circumstances Laffoy J made an Order similar to the one sought here. That is Mary Charlton -v- H. H. The Aga Khan’s Studs Société Civile 1998 No. 9515P judgment given the 22nd December, 1998 .

9. The Court has to be satisfied that there is a fair issue to be tried between the parties and that damages would not be an adequate remedy and that the balance of convenience favours the granting rather than the refusing of the injunctive relief claimed.

10. There are undoubtedly fair issues to be tried in this case for example as to whether she is entitled to sick pay and if it is restricted to “a reasonable period” and if so what is the legal definition of “a reasonable period”. As she had been out on three occasions due to illness she states that another employee had been out a longer period and was paid in full this may involve finding there is an implied term for the payment (after deduction of state benefit sick pay). There is also a conflict on the affidavits regarding the “fault” had in the relationship between the Plaintiff and the first named Defendant.

11. On the question of the balance of convenience Laffoy J refers to the line of authorities commencing with the decision of Costello J, as he then was, in Fennelly -v- Generali Spa 1985 3ILTR 73:-

“damages would not be an adequate remedy for the Plaintiff if it were to be found at the trial of the action she was entitled to as she contends to sick pay having regard to the circumstances of the matter justice requires that the Defendant should be ordered to discharge her sick pay and reserve her pension entitlements pending the trial of the action subject to the Defendants reasonable requirements in relation to verification of the Plaintiffs incapacity for work on medical grounds being adhered to”

“If the Plaintiff becomes fit for work before the trial of the action her entitlement to sick pay will cease. The Defendants acknowledges that the Plaintiffs contract of employment still subsists and, if the Plaintiffs incapacity ceases, and she presents for work it would be for the Defendants then to decide what steps to take.”

12. The Court would adopt as its decision in this case the last preceding two paragraphs. It is important to realise that in this particular case it is alleged that the Plaintiffs incapacity is due in part or entirely to the conduct of the first named Defendant. This is another factor which will be taken into account on the question of the balance of convenience.

13. Having regard to all those factors at this stage damages may not be adequate . The Court will adopt the judgment of Laffoy J by making similar orders. It is of utmost importance that the trial of the action should be expeditied. I propose fixing a date for the trial and making any Orders in relation to pleadings, discovery and such like as are necessary on hearing Counsels submissions pending the trial of the action the following orders will be enforced.

An Order that the Defendant pays the Plaintiff a weekly sum equivalent to her nett salary less a sum as the Plaintiff is entitled to by way of disability or other benefit from the state provided that the Plaintiff furnishes to the Defendant on a weekly basis evidence in the form of a certificate from a medical practitioner of her unfitness for work and that the Plaintiff complies with reasonable requirements of the Defendant that the Plaintiff be examined by a Medical Practitioner nominated by the Defendant and that the Defendant maintain the Plaintiffs pension rights, superannuation and other benefits by paying the premiums in respect thereof.
Each party shall have liberty to apply. The costs are reserved to the trial judge. The Plaintiff does not have “a blank cheque” and must do everything possible to expedite her case.