What is an injunction?

An injunction is a court order to compel a party to perform or to restrain a party from performing a particular action. An injunction may be sought by an employee to stop their employer from pursuing or continuing disciplinary proceedings against them. An employee seeking an injunction must establish a strong case that they will be successful at the trial of the action.

Why may an employee seek an injunction in a disciplinary process?

The most common reasons for an employee seeking an injunction in a disciplinary process are:

Suspension of the employee

A holding suspension, pending the investigation of a complaint, must not:

• be imposed in a manner which unfairly affects an employee’s constitutional right to a good name; and 
• be allowed to continue for an inordinate period of time. 

A suspension lasting days or weeks could be regarded as a holding mechanism. However, a suspension lasting longer than this and where no substantive progress has been made in the investigation may be the subject of a High Court application for an order lifting the suspension.

Identity of the investigator

If an employer’s Disciplinary Procedure provides that the investigation will be conducted by a person(s) to be agreed between the parties, and the agreement of the employee is not sought, this may result in an employee application to the High Court to stop the investigation.

Delays in the investigation

If there are unwarranted or prejudicial delays in the investigation, an employee may make an application to the High Court requiring the procedure to be halted. 

Pre-judgment and bias

If there is prejudgment and bias in a disciplinary procedure this will be a breach of an employee’s constitutional right to natural justice and fair procedures, and may be the subject of an employee application to the High Court to stop the process. For example, if an adverse finding of fact is made against an employee in advance of a disciplinary hearing taking place the process will be fundamentally flawed.

Why may the High Court grant an injunction in a disciplinary process?

In determining whether or not to interfere in an ongoing disciplinary process, the High Court will consider:

• if the procedural problems raised by the employee can be corrected by the employer taking appropriate measures prior to the disciplinary process concluding; and
• if the conduct of the disciplinary process is such that the process has gone irretrievably wrong, and nothing can be done to rectify the process. 

The High Court is reluctant to grant orders which will bring disciplinary proceedings to an end unless the employer is guilty of extensive unfairness. The High Court is more willing to intervene when a decision to dismiss has been taken. 

The High Court will not grant an injunction where the employment claim arises under legislation which requires the claim to be submitted to and adjudicated upon by the Workplace Relations Commission.

What steps can HR take to minimise the risk of an injunction in a disciplinary process?

• Follow the steps outlined in their employer’s Disciplinary Procedure when an allegation of wrongdoing is made against an employee.
• A holding suspension should only be implemented to facilitate the proper conduct of the investigation and any consequent disciplinary process. Before implementing a holding suspension, consider the necessity for it.
• Ensure the purpose of any investigation is information gathering only and not fact finding.
• The investigator should collect evidence and determine if there is a case to answer to warrant formal disciplinary proceedings. The investigator must not exceed their remit and engage in formal disciplinary procedures.
• Any investigation or report into alleged disciplinary matters should include a right of reply on the part of the employee being investigated. 
• The employee should be afforded their constitutional rights to their good name, natural justice and fair procedures. 
• The employee should be afforded a right of appeal against any disciplinary decision.
• It is only in exceptional circumstances that an employee has a right to legal representation during a disciplinary process.
• An employer can dismiss an employee on probation for any or no reason, provided the reason for the dismissal is not based on allegations of misconduct and they are not precluded from doing so by contract. 
• If an employee threatens to seek an injunction in a disciplinary process, HR should immediately consult their employer’s legal advisor. High Court injunction applications are fast paced and the legal costs are high. Any such application may also result in unwelcome publicity for the employer.