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Interlocutory order for salary refused

Barry Walsh



A former employee of an Irish retail bank has failed to obtain an interlocutory order for the continuation of payment of salary pending the substantive hearing of her wrongful dismissal High Court claim. The employee was dismissed by the bank in May 2016 and commenced legal action claiming that her termination was invalid and that she should be reinstated to her position.

The background is that the employee was head-hunted and, following a series of interviews, she commenced employment with the bank as Deputy Head of Group Performance and Reward in late 2015. The contract of employment included a six months’ probationary period (which could be extended at the bank's discretion) and a four weeks’ notice period during probation. The employee claimed that a number of representations were made to her during the recruitment process, particularly in relation to the duties of the role and the opportunity to progress to Head of Group Performance and Reward. However, as is normal, the contract contained an “entire agreement” type clause which provided that the contract superseded any prior representations. The employee’s probationary period was extended and she was dismissed on 6 May on the basis that she was not suitable to perform the role.

In order to obtain an injunction of this nature, an employee must make out a “strong case” for the orders sought. The employee claimed that the representations made to her in relation to the role were fundamentally different to the duties she was ultimately assigned.  The employee also made a number of serious allegations against the bank. In reply, the bank relied on the entire agreement clause in the contract and contradicted the employee’s various claims. Justice Gilligan in the High Court found that issues of trust and confidence were central to the case and, due to the contradictory affidavits, it was not possible to assess the evidence at the interlocutory stage. On that basis, the employee was refused an order for continuation of salary pending the full hearing. However, the Court directed that the case should be heard at the earliest possible opportunity.

The case is noteworthy as such applications are relatively rare and it is generally difficult for an employee to obtain what is, after all, a rather onerous order.

The question of whether the employee had selected the appropriate forum and the basis for a claim of wrongful rather than unfair dismissal was not considered in the judgment. However, the fact that the employee had less than the requisite 12 months’ service for an unfair dismissal claim was probably a significant factor in the choice of forum and claim. We will provide a further update if, and when, the case proceeds to a full hearing (sometimes such cases lapse at this stage and proceed no further).  A copy of the judgment is available here.