RM

SHC

The plaintiff brought an application to the High Court for an injunction to restrain the defendant from terminating her employment on the grounds of gross misconduct.

The plaintiff worked at a firm of which the defendant was the principal. One day, the plaintiff was on a call with the defendant which she found to be extremely embarrassing and degrading. Following this, the plaintiff left the office and was certified unfit to work. During the subsequent period of absence, the plaintiff wrote a 28-page letter setting out the issues which had caused difficulties in the office over the years. She hand-delivered this letter to the defendant at her home on the evening of 15 June 2022. The manner of the delivery and the contents of the letter (in particular, potential breaches of confidentiality) gave rise to the allegation of gross misconduct against the plaintiff.

The plaintiff was certified to return to work in November 2022. She was subsequently suspended without pay pending a disciplinary investigation relating to her "inappropriate, intimidating behaviour" on 15 June 2022 and the "Personal Statement" that she had delivered. The letter informing the plaintiff of her suspension, also put her on notice that her actions may constitute gross misconduct as per the firm's Employee Handbook. The plaintiff had never previously been provided with this Handbook and it did not form part of her contract, thus the parties agreed an alternative procedure. The alternative procedure was to appoint an independent investigator with a fact-finding function who would prepare a report, a final version of which would be provided to the plaintiff and the financial controller of the firm. The financial controller would "decide based on the findings of the report whether any further action was required."

The Investigator delivered a detailed report in March 2023, which concluded that the contents of the plaintiff's letter were "inappropriate and unacceptable". The plaintiff received a note from the financial controller stating that the findings amounted to gross misconduct warranting summary dismissal.

In April 2023, the firm informed her of her dismissal. Although the letter appeared to be from the financial controller, it was in fact signed by the defendant. The plaintiff was given five working days to appeal the decision. The plaintiff requested an extension, of which two working days were granted. When the plaintiff responded that this extension was still unrealistic, the financial controller told the plaintiff that her employment was terminated on grounds of gross misconduct.

Having established the existence of a strong case likely to succeed, the Judge also considered the balance of justice. Following the Supreme Court decision in Merck Sharp and Dohme v Clonmel Healthcare [2019] IESC 65, the judge stated that adequacy of damages was an important factor to consider. The Judge noted that the plaintiff was seeking a Fennelly Order (directing an employer to pay an employee all salary and other benefits to which they are entitled) and found that the loss of income for the plaintiff would have a greater negative impact than the burden of paying her would on the defendant. 

The Judge imposed a limited form of injunction as follows:

i) the plaintiff is paid her salary pending trial, as long as she carries out any of the reasonable duties that the defendant may require of her.
ii) the defendant is not required to assign any duties to the plaintiff.
iii) the defendant may choose to suspend the plaintiff, without prejudice to (i) above.
iv) the defendant will be restrained from relying on any step in the disciplinary procedure which occurred after the date of receipt by her of the Investigator's Report.

This judgement highlights that the adequacy of damages for the plaintiff is an important element in determining cases of this nature.