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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Mullarkey v. Irish National Stud Company Ltd. [2004] IEHC 116 (30 June 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/116.html Cite as: [2004] IEHC 116

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HC 234/04

THE HIGH COURT

2004 No. 9728 P

BETWEEN

PATRICK MULLARKEY

PLAINTIFF

and THE IRISH NATIONAL STUD COMPANY LIMITED

DEFENDANT

JUDGMENT of Mr. Justice Kelly delivered the 30^th day of June, 2004

The plaintiff has been an employee of the defendant for the last 25 years. He began his career with the defendant as farm manager. He was given a letter of appointment which dealt with many of the terms and conditions which one would expect to find in such a document, but no mention was made of any entitlement to payment whilst on certified sick leave.

The letter of appointment pointed out that the pension and life assurance scheme for which the plaintiff was eligible was a State scheme. That is not surprising since the defendant operates in the semi-state sector although an independent commercial entity.

The letter of appointment is the only written contract of employment ever received by the plaintiff.

In 1994 the plaintiff was promoted to the post of farm and tourism manager. He was furnished with a document setting out the management structure which was to apply from that time on.

The plaintiff alleges that from the time of his promotion his formerly good working relationship with the chief executive of the defendant, a Mr. John Clarke, began to deteriorate. That process of deterioration has gone from bad to worse over the years.

So serious did the situation become that the defendant retained the services of an independent facilitator to try and resolve the breakdown in the relationship between the plaintiff and its chief executive.

The facilitator, a Mr. O'Connell, investigated the matter and issued a report in January 2002. He reviewed the many areas of conflict and difficulty between the plaintiff and Mr. Clarke. Having reviewed them he said the following:-

"This in turn is how the present state of affairs has come about.

As a result Pat Mullarkey has suffered complete loss of morale and thus ceased to co-operate positively with John Clarke. For this reason the C.E.O. has tended to bypass Pat Mullarkey when matters relating to tourism are being discussed or implemented.

This history of error and misunderstanding has resulted in the total loss of mutual respect and confidence on a personal level between John Clarke and Pat Mullarkey.

As it cannot continue without potential damage to the good management of the stud and not to mention the health and well being of the men concerned, it remains to be seen if means can be devised which will eliminate the impact of the mutual antagonism and possibly in time heal the rift".

He made a series of recommendations to try and resolve matters. There is no point in my setting them out in detail since unfortunately the antagonism has continued. The question of who bears responsibility for that state of affairs will be a matter for the trial judge.

Mr. O'Connell's observations concerning the likely affect of this disturbing state of affairs, on the health of the plaintiff at any rate, has proved to be prophetic.

The plaintiff is now and has for some months been out of work on certified sick leave. He is under the care of both a general practitioner and a consultant psychiatrist. Both of those doctors express the view that his illness is directly related to the situation which obtains at his place of work.

The plaintiff contends that he has been subjected to a continuous campaign of harassment and bullying, largely at the hands of Mr. Clarke. These allegations are set forth in enormous detail in the affidavit evidence. It is no part of my function at this stage of the case to make any adjudication of whether the plaintiff is right or wrong in respect of these allegations. I am precluded from making any final or binding determinations of fact on an interlocutory application of this type. The plaintiff has however demonstrated that there is an issue for trial insofar as these allegations are concerned.

The event which triggered this litigation and which comes after years of recrimination was a proposal to alter the management structure of the defendant again. That occurred at a meeting on the 5^th March, 2004. The plaintiff says that the proposal amounted in effect to a demotion of him, although his salary would remain the same. He regards this alteration in structure as a further act of wrongdoing on the part of the defendant. So disturbed was he by the proposal and the way that it was to be implemented that he had to seek medical advice and was referred to hospital by his general practitioner. He has been out sick since that time.

The first three injunctions sought at the outset of the hearing before me over the last two days, sought to restrain the carrying into effect of the changes in management structure mooted by the defendant insofar as they would affect the plaintiff.

Wisely, these injunctive reliefs were not ultimately pursued particularly having regard to the plaintiff's continued illness. I am not therefore concerned with them for the purposes of this ruling.

The forth and fifth injunctions have been pursued. In effect they seek to have the plaintiff's salary paid to him pending trial notwithstanding his illness.

The defendant contends that the only entitlement which the plaintiff has to be paid salary whilst on sick leave is one which is limited to a period of 13 weeks. That period has now expired and so the plaintiff is not entitled to any further payment by way of salary.

The plaintiff contends that he is entitled to be paid in full whilst ill until such time as the illness ceases or the action comes to trial, whichever is the sooner.

The plaintiff contends that this entitlement arises from the fact that his illness is caused by the wrongdoing of the defendant. Apart from the fact that this very question cannot be decided at this stage and must await trial, I am quite satisfied that in any event there is no legal basis for this contention.

The argument which is made is a far reaching one and would apply to any case where there was an alleged or even an admitted wrongdoing on the part of an employer. The argument goes that in such a case, salary should be paid until trial regardless of contractual entitlements. The argument rests on the assertion that an employee has a right at law to be paid salary until the trial of an action for damages because the illness which results in him being out of work is the employer's fault. This right, it is said, is enforceable by injunction.

I am satisfied that there is no such legal right nor any arguable case in support of it. The two cases cited namely Charlton v. His Highness, The Aga Kahn's Stud (Laffoy J., 22^nd December, 1998) and Rooney v. Kilkenny (2001) E.L.R. 129 do not in my view support the proposition. These cases involved the court identifying the existence of an implied term entitling the plaintiff to sick leave for a reasonable time. Neither of them decided that because of the wrongdoing of an employer an employee injured by such acts or emissions was ipso facto entitled to be paid salary until the trial of an action for damages.

I now turn to the question as to whether in the contractual arrangements between the plaintiff and the defendant there is a fair case at to the existence of an implied term entitling him to payment of salary whilst sick for a period in excess of the 13 weeks conceded by the defendant.

It is rather astonishing that a body such as the defendant operating in the semi-state sector and with 82 employees does not appear to have terms and conditions relating to sick pay entitlement documented in crystal clear fashion. That however appears to be the case here. The plaintiff has never been furnished with any such document nor is there evidence of any other employee being so furnished despite statutory obligations under s 3 of the Terms of Employment (Information) Act, 1994. The matter as to this implied term is dealt with in the affidavit evidence as follows. The defendant's company secretary swore in his affidavit of the 21^st June, 2004 as follows:-

"In respect of persons in the plaintiff's position who do not have current written contracts and are full time staff, the entitlement to sick pay is clear. Such an employee is entitled to sick pay for a period of 13 weeks. Thereafter sick pay ceases. From my inquiries of long standing staff members, including the chief executive, this policy of 13 weeks sick pay is and has been notorious amongst staff members for in excess of 20 years.

In relation to other employees the position is different. For seasonal staff there is an express contractual provision giving them a right to 4 weeks sick pay".

This was responded to by the plaintiff who in his affidavit of the 23^rd June, 2004 swore as follows:-

"I am aware that a policy of 13 weeks sick pay is being operated within the defendant's organisation for members of non-management staff. I do not believe that there is any precedent for a member of the defendant's management team having been absent from work on certified sick leave for a period in excess of 13 weeks and I say that I have never been advised by the defendant that my sick pay is limited to 13 weeks".

This in return was responded to as follows:-

"In paragraph 22 of the plaintiff's second affidavit the plaintiff states that he does not believe a policy of 13 weeks sick pay operated by the defendant applies to the defendant's management staff. I say and believe that this is untrue and incorrect. I beg to refer to a copy of minutes of the meeting of the Health and Safety Committee held on the 7^th February, 2002 which the plaintiff attended. The minutes record that at that meeting 'a discussion took place on the clause relating to sick pay and the following was agreed:-

less than 6 months - 2 weeks,

6 months to 1 year – 4 weeks,

more than 1 year - 13 weeks in any 12 months.

Employees with repeated or prolonged absences may be requested to attend the company's occupational physician.

It was agreed that a pre-employment medical should be requested where the company felt it was necessary'.

These minutes do not distinguish between members of management and members of non-management staff. The policy of 13 weeks sick pay applies to all staff. Given the importance placed by the plaintiff on decisions of the Health and Safety Committee in his affidavits I assume that if the plaintiff understood the defendant's sick pay scheme to be otherwise he would have made his views known at that meeting."

Finally the plaintiff says in a further replying affidavit:-

"I have no recollection whatsoever of any discussion of the Health and Safety Committee about a period of 13 weeks paid sick leave applying to all employees. I say further that I have no recollection of ever seeing the document purported to be minutes of that meeting of the 7^th February, 2002. It was not the practice for minutes to be furnished to members of the committee or for the members of the committee to approve the minutes. I do recall a discussion at the meeting of the Health and Safety Committee about the sick pay for seasonal employees' which was proposed at 4 weeks and was confirmed in writing to these employees. No similar document has ever been furnished to me or, to the best of my knowledge, to any other member of the management team. I repeat my previous averment that at no time was I ever informed by the defendant, its servants or agents that my entitlement to be paid sick pay was to be limited to a period of 13 weeks".

This evidence suggests that there is no documentation to support the 13 weeks cut off period for management staff except for the minutes of the Health and Safety Committee of February 2002. It is hard to see how that committee could itself either impose or alter terms of employment.

The evidence also demonstrates that there is no precedent for payment for management staff who are ill for a period in excess of 13 weeks because that event has never occurred to date.

Has the plaintiff made out a fair issue for trial that he is entitled to a longer period of sick pay than one of 13 weeks? The court could only conclude that he has if its of the view that it is a reasonable prospect that at trial, and having regard to all of the circumstances, the trial judge might imply such a term into the contract of employment.

In support of the plaintiff's contention are the following factors:-

(a) The silence of his written contract on the topic,

(b) The absence of any documentary evidence on the part of the defendants supporting its case that sick pay is payable only for a 13 week period. (Apart that is from the minutes of the Health and Safety Committee to which I have already referred),

(c) The lack of any precedent,

(d) An apparent non-compliance with the provisions of the 1994 Act, in respect of management staff recruited in the last 10 years,

(e) The fact that the defendant operates in the semi-public sector where normally more generous sick pay terms are available.

From the defendants point of view I have the sworn statement which I have recorded as to the generally accepted belief going back over 20 years.

On balance it appears to me that a fair case has been made out by the plaintiff that a reasonable time, in the context of a management employee with the defendant, is one which involves a period of full pay whilst on sick leave greater than that of 13 weeks. Given that the defendant operates in the public sector and that the pension scheme is a State one it appears to me that there is a fair case to be made out that full sick pay entitlement would last for a period of 26 weeks with a reduction to half pay for the 26 weeks thereafter. That is the norm in the public sector.

I am not to be taken as saying that that is in fact so insofar as the defendant is concerned. That will be a matter for the trial judge but I am satisfied that there is a serious issue for trial in that regard.

Such being so the plaintiff has surmounted the first hurdle which confronts him in obtaining injunctive relief.

I must next ask whether damages would be an adequate remedy for him. I am quite satisfied that they would not. His family circumstances have been deposed to and they are not controverted. He has ongoing obligations which will fall to be met and cannot await any award of damages which may ultimately be obtained at trial.

The balance of convenience is in favour of the grant rather than the refusal of the injunction. The situation would be very different if the other injunctive reliefs which were originally sought had been pursued. However the only inconvenience here from the point of view of the defendant is the payment of a definite sum of money for a defined period of time. The inconvenience to the plaintiff in not being paid far outweighs that.

Finally I should deal briefly with a criticism which has been made of the plaintiff in relation to his undertaking as to damages. Whilst there might be some validity in that criticism had the plaintiff pursued his claim to other injunctions and been granted them, I am quite satisfied that his undertaking is sufficient to support the repayment of any monies which may be paid to him between now and trial in the event of the trial judge taking the view that this injunction ought not to have been granted.

I am also satisfied that there must be a speedy trial of this matter and I will give directions as to accelerated pleadings.