Delivering judgment this month in O’Mahony v Examiner Publications (Cork) Limited, Thomas Crosbie Holdings Limited and Thomas Crosbie Printers Limited (“Examiner Group”) (Unreported, 5 November 2010) Ms Justice Mary Laffoy has, once again, emphasised the reluctance of the High Court to grant an injunction preventing a redundancy dismissal.

The plaintiff, Mr Michael O’Mahony, applied to the High Court seeking a mandatory interlocutory injunction restraining the Examiner Group from dismissing him from his employment in circumstances where his role was purported to be redundant. O’Mahony also sought an order compelling the Examiner Group to reinstate his pay pending the full trial of the action.

An application for an interlocutory injunction is heard in advance of a full hearing of the issues between the parties and is decided on the basis of sworn affidavits, rather than oral evidence. In order to obtain a mandatory order (e.g. restraining dismissal and reinstating pay) at the interlocutory stage, an employee must show “that he has a strong case that he is likely to succeed at the hearing of the action” (per Fennelly J in Maha Lingham v HSE [2006] 17 ELR 137). Ms Justice Laffoy was of the opinion that O’Mahony had not made out that necessary “strong case” and refused the application.

Ms Justice Laffoy noted that the case was unusual in that there was “gargantuan conflicts of evidence” in the affidavits provided by O’Mahony, on the one hand, and the Examiner Group, on the other. There appeared to be agreement between the parties that O’Mahony commenced employment with Examiner Publications (Cork) Limited in 1980, when he was 17 years of age. He was originally employed as a clerk and worked his way up to Group Training Manager. On 10 August 2010 he was advised he was to be made redundant and on 26 August was sent a redundancy notice, which was to take effect from 22 October. He was to be paid statutory redundancy only. However, beyond this, the evidence of the parties differed significantly.

O’Mahony claimed that in the year 2008 he was called to a meeting and told by then Managing Director, Mr Dinan, that the training budget would be significantly reduced and that he would be transferred to the accounts and payroll department, where he would be trained in general accounts. O’Mahony was very shaken after the meeting and asked Mr Dinan: “Will I be safe?” and was told “you will be all right”. O’Mahony stated that he “understood” that Mr Dinan told him that, if the new role did not work out, O’Mahony would be redeployed in the Examiner Group on the same terms and conditions as he had enjoyed up to that point in time. In effect, O’Mahony was asserting that a special condition relating to redeployment had been inserted in his contract of employment as a result of this conversation. The Examiner Group disputed this version of events, but no evidence was provided by Mr Dinan, who had since left the Examiner Group.

Ms Justice Laffoy held that, if proved, the special condition O’Mahony attempted to rely upon could amount to a contractual right worthy of protection by the Court. However, on the basis of O’Mahony’s own evidence, his assertions were “as to his understanding and belief in relation to the existence of an agreement with Mr Dinan, but no more.” Without more, O’Mahony had not shown that he had a strong case that he was likely to succeed at the hearing of the action.

O’Mahony also claimed that this was not a valid redundancy as the Examiner Group was attempting to make him redundant from the position of Group Training Manager. O’Mahony maintained that after his conversation with Mr Dinan in 2008 the role of Group Training Manager had ceased to exist and that his role had been changed to “Accounts Administrator/Payroll Administrator”. He accused the Examiner Group of attempting to effect a dismissal “dressed up” as a redundancy.

Refusing to grant an order on this basis also, Ms Justice Laffoy found that O’Mahony should have sought redress before the Employment Appeals Tribunal pursuant to the Unfair Dismissals Acts 1977-2007, rather than seeking relief in the High Court.
This restates the position taken by Ms Justice Laffoy in her judgment last year in the case of Nolan v Emo Oil Services [2009] 20 ELR 122. 8. Conclusion

The judgment in O’Mahony v Examiner Group is further evidence of the reluctance of the High Court to grant injunctive relief in redundancy cases. If an employee is seeking compensation for unfair dismissal, proceedings should be issued in the Employment Appeals Tribunal, rather than the High Court. The judgment also highlights the benefits of recording, in writing, any significant alterations to an employee’s terms and conditions of employment. If changes are recorded, there can be no disagreement, at a later stage, as to what was, or was not, agreed.

For further information please contact Emmet Whelan.

November 2010.