High Court of Ireland Decisions

Judgment Title: Buckley -v- National University of Ireland Maynooth

Neutral Citation: [2009] IEHC 58


High Court Record Number: 2009 595 P

Date of Delivery: 13 February 2009

Court: High Court

“The undertaking given to the Labour Court is in respect of your salary only and no other arrangements.
You are therefore requested to vacate room 35 (the office) by Friday the 5th of December, 2008. Your co-operation in the matter is appreciated.”

“The Court would wish to remind the parties that, on the day [of the hearing], the Court, in granting the adjournment, expressed a hope that such adjournment would be a short one of only a couple of weeks, but that on receipt of IFUT’s legal submission, which were to be copied to the NUI Maynooth, a new date would be set.
In the interim, the Court remarked to the parties that it would prefer that there be no change in the status quo regarding the claimant. The College’s response as recorded was that it was willing to continue the arrangements, including payment.
Obviously, the Court’s only direct role in this matter is under the specific provisions of the Protection of Employees (Fixed-Term Work) Act, 2003.
The Court would prefer that this be the only matter at issue on resumption of the case and is simply reminding the parties what occurred on the 16th October last.”

“We are aware that, while an undertaking was mentioned at the Labour Court hearing, there was no undertaking given at the Labour Court.
As you know, the University has continued to make certain payments to Dr. Buckley since the expiry of her fixed-term contract on 30th September, 2008. This was an ex gratia payment on the part of the University as a gesture of goodwill and in ease of Dr. Buckley until the hearing of the Appeal.
Please note that, as the hearing of the Appeal has now taken place, the University will cease to pay your client with effect from 12th January, 2009. The University also requires your client to vacate her office on Monday, 5th January, 2009, due to accommodation needs.
The University’s position is that Dr. Buckley has no entitlement to ongoing pay in circumstances where the decision of the Rights Commissioner is under appeal and as Dr. Buckley has had no contract since 30th September. 2008. Furthermore, in the context of any remedy sought by your client, damages would be an adequate remedy.”

“The Supreme Court in Campus Oil v. The Minister for Industry (No. 2) [1983] 1 I.R. 88 identified the principles to be applied by a court in the granting or withholding of interlocutory injunctive relief. Firstly, the court must be satisfied that the strength of the plaintiff’s case meets a certain minimum threshold. In the case of a prohibitory injunction the plaintiff is required to satisfy the Court that there is a fair issue to be tried. However, if the applicant is seeking a mandatory interlocutory injunction the threshold is higher. In the case of Maha Lingham v. Health Service Executive [2006] E.L.R. 137, Fennelly J. stated:-
‘It is well established that the ordinary test of a fair case to be tried is not sufficient to meet the first leg of the test for the grant of interlocutory injunction where the injunction sought is in effect mandatory. In such a case it is necessary for the applicant to show at least that he has a strong case that he is likely to succeed in the hearing of the action.’
Secondly, the court must consider whether damages would be an adequate remedy for the party seeking the injunction, if he was successful at the trial of the action; and thirdly, whether the balance of convenience favours the grant or refusal of an injunction at the interlocutory stage.”

without hearing the employer or any evidence (other than in relation to the matters aforesaid) make an order directing the employer to carry out the determination in accordance with its terms.

“In addition the plaintiff/appellant relies on the implementation in the Act of 2003, the Protection of Employees (Fixed-Term Work) Act 2003 implementing Council Directive 99/70 of June 28, 1999. However, having looked at that Act the court cannot see that it significantly alters the matter. It is unnecessary to go into it except that the general policy of the directive and the Act seems to be to protect employees who are employed on short-term fixed term contracts and who have been employed on such basis for a certain minimum number of years, either three or four years, and accepting for the sake of the purpose of the present case, that the plaintiff is employed under such a contract of employment, the question would be whether he could make out a case to justify the grant of an interlocutory injunction. There are two major obstacles in the place of the plaintiff/appellant in this context; first, that is that the implementing Act, the 2003 Act, contains, like the Unfair Dismissals Act, its own statutory scheme of enforcement and it does not appear to be envisaged by the Act that it was intended to confer independent rights at common law or to modify in general the terms of contracts of employment to be enforced by the common law courts; and the second is that in any event the general provisions and policy of the Act and of the directive seems to be to put persons who were in such short term contracts in the same position as if they were persons who were on fixed long term contracts but in neither event does it appear to interfere with the ordinary right and obligation of the employer to terminate the contract on the giving of reasonable notice and for that reason the matter comes back within the general ambit, therefore, of the sort of remedy that would be available to the plaintiff/appellant for the termination of the contract.”

“Where a decision of a rights commissioner in relation to a complaint under this Act has not been carried out by the employer concerned in accordance with its terms, the time for bringing an appeal against the decision has expired and no such appeal has been brought, the employee concerned may bring the complaint before the Labour Court and the Labour Court shall, without hearing the employer concerned or any evidence (other than in relation to the matters aforesaid), make a determination to the like effect as the decision.”

“The argument developed by Mr. O’Reilly in particular on behalf of the plaintiff/appellant is that there has developed in parallel with the statutory scheme of things the tendency of the courts to imply a term of good faith and mutual trust into contracts of employment. That implies, as far as the employee is concerned that he will work faithfully and respect the employment obligations that he has towards his employer and that is he should act in good faith towards his employer, but by purity of reasoning, therefore, the employer is equally bound not to act so as to undermine the contract of employment but to act also in good faith on the basis that there is a relationship of mutual trust between the parties.

This is a development which is perhaps at its early stages and it is not contested, in the present case, by Mr. O’Reilly that he needs to develop that law further in order to bring it to bear in the present case and to secure the injunction that he seeks. There has been a discussion of course of the English case of Eastwood v. Magnox Electric plc [2004] 3 All ER 991 decided this year and referred to in the judgment of Carroll J. and in particular in the majority speech in the House of Lords in that case where Lord Nicholls, as cited by Carroll J., took the view that because of the statutory code relating to unfair dismissal, in effect that it was not for the courts to extend further into the common law, the implied term regarding mutual trust in such a way as to upset the balance set by the legislature. In other words that the principle that there is an implied term of mutual trust and good faith in contracts of employment does not extend so as to prevent the employer terminating a contract of employment by giving proper notice and, having already said that it is not contested that proper period of notice was given in this case, the question is whether the plaintiff has made out the sort of case that would be necessary to show that the contract of employment had been undermined to such an extent by the employer in this case that the employer was deprived of the right to give a proper period of notice of termination.

For reasons already given it would appear necessary for the plaintiff to establish a strong and clear case that this was so in the present case. For reasons already mentioned in the summary of the evidence there is a very significant gap indeed. So far as the defendant is concerned the employment was terminated for the simple straightforward reason that the employment was not authorised and was not funded and that there was no question of the dismissal being motivated by any suggestion of racial discrimination or racial slur. It is not necessary, it seems to the court, to decide on the full ambit of such an implied term. No doubt, if the plaintiff/appellant had been able to produce a strong and clear body of evidence that the defendant in the present case was motivated by a policy of racial discrimination, the matter would be entirely different but, so far as the court can see, the evidence does not measure up to anything like to that extent and accordingly in the view of the court the plaintiff/appellant has not made out a case such as satisfies the test that could be posited on the basis of a development of the principle of the implied term of mutual trust.”

“In Johnson v. Unisys Limited [2001] UKHL 13, [2003] 1 AC 518, the House of Lords, dealing with the statutory regime of unfair dismissal introduced in its original form by the Industrial Relations Act 1971 and subsequently in force under the Employment Rights Act 1996, held that an employee had no right of action at common law to recover financial loss arising from the unfair manner of his dismissal. A conclusion to the contrary would be inconsistent with the statutory system for dealing with unfair dismissals established by parliament in 1971 to remedy deficiencies in the laws that then stood. The remedy adopted by parliament was not to build on the common law by creating a statutory implied term that the power of dismissal should be exercised fairly or in good faith leaving the courts to give a remedy on general principles of contractual damage. Instead, it set up an entirely new system outside the ordinary courts at which tribunals applied new statutory concepts and offered statutory remedies. For the judiciary to construct a general common law remedy for unfair circumstances attending dismissal would be contrary to the evident intention of parliament that there should be such a remedy but it should be limited in application and extent….

It has therefore been held by the Supreme Court that the common law claim for damages for wrongful dismissal and the statutory claim for unfair dismissal are mutually exclusive. The House of Lords decision in Johnson v. Unisys Limited [2001] UKHL 13, [2003] 1 AC 518 underlines this. What the plaintiff is seeking to do is to introduce a new obligation under the common law on the employer to act reasonably and fairly in the case of dismissal. As the law stands, at common law an employer can terminate employment for any reason or no reason provided adequate notice is given. In cases involving dismissal for misconduct, the principles of natural justice also apply, but that does not arise here.”