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Court of Appeal puts nail in the coffin for injunction applications where dismissal is by way of redundancy

The Court held that the Claimant was constructively dismissed and awarded him €15,000.  The Labour Court did not have sufficient information from the Claimant to confirm his financial losses and on that basis was cautious about the amount of the award.

The unjustifiable suspension appeared to be a major part of the Labour Court’s considering that the Respondent’s conduct was unreasonable to such an extent that the Claimant was not required to first utilise the grievance procedure prior to resigning.    


28th  June 2019

The Court of Appeal this week dismissed an appeal of the 2017 High Court decision of Kearney v Byrne Wallace. The High Court had refused to grantMr Kearney injunctive relief to prevent his dismissal taking effect due to the fact that his termination was by way of redundancy.

Mr Kearney, an associate solicitor for Byrne Wallace since 2006, suffered from bipolar mood disorder and was absent from work for significant periods between 2010 and 2016. On seeking to return to work in 2017, Mr Kearney was informed that his role was being made redundant. Mr Kearney argued that he had been unfairly selected for redundancy on the basis that “either because no genuine circumstances existed in the firm to justify his redundancy or because he was selected for redundancy on account of his absence from work due to ill health”. The plaintiff sought an injunction to restrain his dismissal and a declaration that he continues to be employed by the defendant and entitled to be provided with work, relying on evidence that the defendant continued recruiting solicitors to illustrate that the actions of the defendant were “carefully contrived”. 

The High Court following the decision in Nolan v Emo Oil Services, found that his claim arose under statute, namely the Redundancy Payments legislation and the Unfair Dismissal legislation and that no common law route was available to him. Redress to his claim should be sought before the Workplace Relations Commission. The High Court had concluded that a strong case had not been established to warrant injunctive relief.

The matter was appealed to the Court of Appeal, who agreed with the High Court and the key decision in Nolan v Emo Oil Services, finding that the Nolan decision was “an insuperable obstacle” in seeking an injunction in this instance. Mr Kearney argued inter alia that his redundancy was a “sham” and as such breached the implied term in his employment contract, that of mutual trust and good faith. Mr Justice Peart, while noting that such an implied term may exist, it did not however “deprive the employer of the right to terminate the contract of employment with proper notice and for example where it was based on redundancy”.

The Court found in dismissing the appeal that Mr Kearney had not established that his employer had acted in bad faith in reaching a decision to terminate his employment on the basis of redundancy and therefore, could not “escape the clutches of the decision in Nolan and that line of authority”. Given the statutory route of redress available to employees the Court confirmed that it would be entirely inappropriate to grant such injunctive relief.

1st August 2019

Anne O’Connell Solicitors

Fitzwilliam Hall, Fitzwilliam Place, Dublin 2


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