McGrath -v- Athlone Institute of Technology
Neutral Citation: (2011) IEHC 254.
High Court
Judgment was given on June 14th, 2011, by Mr Justice Gerard Hogan.
Judgment
An assistant lecturer on the bricklaying course in the Athlone Institute of Technology was refused an injunction preventing him being made redundant, as previous case-law stated an employee’s contract of employment could be terminated at will in a case such as this.
Background
The plaintiff was employed as an assistant lecturer on the institute’s bricklaying course. The institute contended there was no longer any demand for the course and sought to make the plaintiff redundant. Mr Justice Hogan stressed the plaintiff had been a perfectly satisfactory employee.
The plaintiff contended as he had been employed on fixed term contracts he was a permanent employee under the Protection of Employees (Fixed Term Work) Act 2003. This matter was at present before the Labour Court.
He sought an interlocutory injunction preventing the institute from ending his employment.
An issue of professional privilege arose, as another lecturer, David Holland, stated he had found in his own file legal advice to the college indicating the plaintiff was entitled to a contract of indefinite duration. The institute maintained the advice had been placed in this file in error, and no privilege had been waived in this regard.
Mr Justice Hogan said it was clear the institute never intended there should be such disclosure of these advices and there could be absolutely no question of waiving their privilege. The issue was committed to the adjudicative process via the Labour Court. A litigant’s opinion of the strength of his case was not relevant.
Decision
On the issue of the interlocutory injunction being sought, he said the fairest thing was to assume he would be able to show at the full hearing in the Labour Court he was a permanent employee, either under the 2003 Act or by virtue of representations made to him.
As the Labour Court was at present seized of the dispute, he said nothing in his judgment should be understood as expressing any view on the merits of the case.
The defendant had said the High Court had no jurisdiction in the matter, and it was true its only jurisdiction was on appeal from the Labour Court on a point of law. He was seeking declaratory relief in aid of what he hoped would be a favourable Labour Court decision, and because the Labour Court had no jurisdiction to grant him interim or interlocutory relief.
If the Labour Court did find in his favour, the High Court would have jurisdiction to grant an injunction in circumstances where failure to do so would undermine the benefit of that decision. The critical question was whether the institute could terminate the plaintiff’s employment in the way proposed, even if the Labour Court held he had a contract of indefinite duration.
At common law an employer can dismiss for any reason or no reason, on giving reasonable notice, even a permanent employee. Change in this area was a matter for the Oireachtas, he said, and it did legislate in the Unfair Dismissals Acts, but in so doing left unchanged the common law on termination of employment contracts.
The Supreme Court’s decision in Sheehy -v- Ryan confirmed that permanent employment could be terminated by the employer, unless there was an express clause to the contrary. This ruled out any possibility of an injunction insofar as it concerned a contractual claim.
If he was ordered to be reinstated by the Labour Court, there was nothing in the 2003 Act to suggest his re-employment could not be terminated in the future. If that happened, the plaintiff could pursue the matter under the Unfair Dismissals Acts.
He concluded that even if the Labour Court’s decision were favourable to the plaintiff, this would not in practice significantly improve his position in terms of seeking an injunction.
If he were dismissed following a favourable decision from the Labour Court, he would be entitled to relief under the Unfair Dismissals Act, but this would be a matter for the Employment Appeals Tribunal and not the High Court.
The full judgment is on courts.ie