This is an appeal against the decision of the High Court where the Plaintiff/Respondent, Mr O’Donovan was granted an injunction against the Defendants/Appellants. Mr. O’Donovan was offered a contract of employment with the first named appellant, the employer, by way of letter which he accepted on the 31st of May 2019.  On the 6th of August 2019, he commenced work for the employer as its Chief Financial Officer (CFO). The employer reserved the right to take either remedial action or to terminate Mr. O’Donovan’s employment during the probationary period. There were also express clauses in the contract governing disciplinary rules and procedures and disciplinary appeal procedure.

When Mr. O’Donovan returned from annual leave on the 7th of January 2020, he had a meeting with the Chief Executive Officer of his employer, Mr. Michael Elliot.  At that meeting, Mr. Elliot informed Mr. O’Donovan that his performance was substandard and that the confidence of the board in his capabilities was “at an all-time low”, and that he had lost confidence in Mr. O’Donovan.  He told Mr. O’Donovan that his employment was terminated with immediate effect and that payment in lieu of notice would be forthcoming, and that he would write to him confirming his decision.

The trial judge in the High Court held that Mr. O’Donovan had not established a strong case that he was dismissed for misconduct, however, he had established a strong case that his dismissal was in breach of his contract of employment on the grounds that the employer had failed to afford him fair procedures.

The Court of Appeal were of the view that the trial judge failed to give adequate weight to the fact that the termination occurred during the probationary period and that this was a critical fact in this case.  During a period of probation, both parties are – and must be – free to terminate the contract of employment for no reason, or simply because one party forms the view that the intended employment is, for whatever reason, not something with which they wish to continue.  Neither party can hold the other to the continuation of the employment against the wishes of the other.  The Court of Appeal failed to accept that  a court can imply a right to fair procedures – still less uphold a cause of action for the breach of such an alleged right – in relation to the assessment of an employee’s performance by an employer (other than for misconduct, which does not arise here) during the probationary period, as this would negate the whole purpose of a probationary period.

Mr. O’Donovan had accepted that the mutual trust and confidence which is necessary between an employer and an employee had been irretrievably lost and therefore to grant a permanent injunction restraining the termination of the contract of employment would be simply untenable.

Accordingly, the Court of Appeal held that the appellants have succeeded on the appeal and are entitled to an order for costs against Mr. O’Donovan in respect of the appeal and in respect of the hearing in the High Court. 
https://www.courts.ie/view/judgments/407a36b1-8660-4181-b6b8-9387a6b1b84c/5bed32a6-11a2-4d5b-91e7-f2e9585012eb/2021_IECA_37%20(Unapproved).pdf/pdf