THE HIGH COURT
4977P 2002
BETWEEN 
CON DAVIS
PLAINTIFF
AND
SEAN WALSHE 
AND 
PLYNTH LIMITED 
TRADING AS DEW WHOLESALE
DEFENDANTS

JUDGMENT of Mr. Justice Roderick Murphy delivered the 14th day of May, 2002.
1.	ISSUE
	In this employment case the Applicant seeks an interlocutory injunction.  The Applicant obtained an interim injunction on the 4th of April, 2002 restraining the Defendants from terminating the Applicants contract of employment or taking any steps whatsoever on foot of a purported dismissal or suspension of the Applicant; interfering with the employment of the Applicant or interfering with the discharge by the Applicant of the role and functions of sales director; interfering with the remuneration of the Applicant or other emoluments of the Applicant in his capacity as Sales Director; publishing in any manner whatsoever any statement or other communication to the effect that the Applicant had been dismissed from his employment had been or would be terminated and, appointing any person to the position of sales director or to carry out the functions of the same save with the consent of the Applicant or by Order of the Court.  An undertaking as to damages was given.
	Interlocutory relief was sought in the same terms.
	The general endorsement of claim dated the 4th of April, 2002 originally claimed those injunctive reliefs together with damages for breach of constitutional rights, damages for reckless infliction of emotional suffering, trauma, distress and upset, damages for conspiracy, damages for defamation and injurious falsehoods,  together with a claim for accounts of sums found to be due and owing to the Plaintiff.  By amended plenary summons bearing the same date the Plaintiff claimed as follows:
		1.  A declaration that the Plaintiff is and continues to be in the employment of 			the first named Defendant as its Sales Director.
		2.  A declaration that the purported dismissal of the Plaintiff communicated to 			him on the 25th of March, 2002 is null and void and of no efficacy being in 			breach of the principals of natural and constitutional justice and being in 				breach of the Plaintiff’s contract of employment with the Defendant.
	A Statement of Claim delivered the 29th of April, 2002 prayed for such declarations and injunctive reliefs.  This statement described the first Defendant as the principal shareholder and Managing Director of the second Defendant.  
2.	FACTS: 
	Both the Statement of Claim and the grounding Affidavit for this motion refer to the first named Defendant on his own behalf and on behalf of the second named Defendant inducing the Plaintiff to enter into a contract for services for twelve months.  On satisfactory completion of such contract the Plaintiff would then commence working with the second named Defendant as an employee and would receive 25% of the shareholding in the second named Defendant from the first named Defendant in consideration of the Plaintiff entering into the aforesaid contract.  This was confirmed to the Plaintiff at the end of the first year of his relationship with the Defendants.
	On Monday 25th of March, 2002 the Plaintiff alleges that the first named Defendant wrongfully and in breach of the Plaintiff’s constitutional rights to natural and constitutional justice in attempting to terminate the Plaintiff’s said contract of employment.  The Plaintiff was informed that he was suspended without pay with immediate effect.  This was confirmed in writing.  The Plaintiff did not and does not accept the aforesaid repudiation but contends that his contract of employment is extant.  It is not capable of being terminated save on the giving of reasonable notice of twelve months and save only for valid reasons.  There are no objective grounds for any loss of trust or confidence between the parties.  The Plaintiff contends that by reason of the wrongful and unlawful acts he has suffered loss, damage, inconvenience and expense, including damage to his reputation and an inference that he was guilty of some misconduct justifying his immediate removal.
	Two days later, on the 27th of March, 2002 the Plaintiff was offered redundancy or another position as Sales Representative as the company needed to cut back.  The Defendant’s denied that the Plaintiff was entitled to any share holding.
3.	APPLICATION FOR INTERLOCUTORY INJUNCTIVE RELIEF
	Mr. Mark Connaughton, B.L., for the Applicant, says there is a serious question regarding the validity of the purported dismissal or redundancy.  There was no examination of the financial position of the company made known to him.  He contends that he has been involved in all decisions of the company and, as Sales Director, is entitled to be involved in such a decision.
	The fact of dismissal is in dispute.  The Applicant says that he is not contending that there is either a wrongful dismissal or an unfair dismissal.  There has, in the circumstances, been a breach of his constitutional rights.
	The Plaintiff says that he received the sum of £3,000 on the 8th of August, 2001 by way of dividend out of a bonus payment from suppliers. 	
	While there was no written service agreement, the Plaintiff is entitled to fair procedures.  What occurred was a blatant abuse of rights.  Being excluded will cause irreputable damage to the business.
	The balance of convenience lies with the injunctive relief continuing.  The Plaintiff confirms an undertaking that he will not visit the premises.  An undertaking in respect of damages was also confirmed.
4.	RESPONDENT’S POSITION
	The Applicant has not sought damages for dismissal.  There is no action for damages.  Accordingly no injunction can be given.
	The Applicant is not a shareholder.  He is not registered as a member of the second named Defendant.  Even if he were a shareholder he would have no right to injunctive relief.  His right would be for relief under Section 205 of the Companies Act, 1963.  The payment made was not a dividend but one of two loans made in August, 2001 £2,000 (out of the bonus) and in December, 2001 (£4,000).
	There is, significantly, no claim for specific performance of the alleged agreement regarding shareholding nor any injunctive relief sought to restrain the transfer of shares.
	There is no claim for reinstatement - it is not an unfair dismissals case which, in any event, should be heard by the Employment Appeals Tribunal.  
	The Applicant is not a Director and has no right to be involved in decisions regarding redundancy.  He is not registered as such in the Companies Office.  In any event he wasn’t made redundant but offered an interim position as a sales representative.
	There is, accordingly, no arguable case for any of the reliefs sought.  The balance of convenience, in a company employing eight to nine persons with a turnover of £1.5 million is against the continuation of the injunction which entails the payment of a substantial salary in the absence of any contribution being made by the Applicant.
5.	APPLICANT’S REPLY
	The relief sought is not governed by common law.  The Judicature Act provides for a fusion of law and equity.  The principles of natural law are not limited to office holders but apply to the Applicant in this case.
	Damages are not an adequate relief.  The Applicant seeks a declaration as contained in the amended endorsement of claim which was the subject of the Affidavit of the Applicants Solicitor sworn on the 18th of April, 2002 in which she prayed the Court for liberty to amend the plenary summons.  No Order to that effect was been referred to.  However Counsel for the Defendant did not object.
	No notice was given.  Accordingly the purported summary dismissal is invalid.
6.	Both parties referred to Philpott -v- Ogilvy and Mather Limited [2000] 3 IR 206.  In that case the Plaintiff claimed that he was summarily dismissed within a year of commencing employment.  He says he was not given any warning or notice.  He claimed that no disciplinary procedures were followed and that he was denied natural justice in the manner in which the decision was taken.  He sought an injunction restraining the Defendant from giving effect to the purported dismissal of the Plaintiff.  The Defendant, on the other hand argued that it had not invoked disciplinary procedures and, accordingly, the issue was not one of natural justice but of damages.  
		In that case the Plaintiff alleged that he was summarily dismissed without been given any warning or notice on the 4th of February, 2000.  By letter of the 7th of February, 2000 he was given “the required one month’s notice of our wish to terminate your contract of employment from today the 7th of February, 2000.  I understand that this is a difficult time for you but given the circumstances we would prefer if you did not work out your notice period.  We will of course pay you in full for the notice period”.
	The Court refused the various declaratory and injunctive reliefs claimed.  Equitable relief had no independent existence in the absence of a claim for damages for wrongful dismissal.
	I have no doubt that in Philpott as in the presence case a purported termination in a summary manner is a traumatic event in any employee’s working life.  The Unfair Dismissals Act offers redress to an employee who has been unfairly dismissed.  It is clear that this remedy is available as an alternative to an action for wrongful dismissal in the courts.
	This is not such an application: it is an application for interlocutory relief pending the trail of the claim for declarations and a permanent injunction.  The issue before the Court is whether, the traditional relief at common law for wrongful dismissal arose primarily from an absence of adequate notice.  In the present case the Plaintiff says that he was entitled to twelve months notice.  In the absence of adequate notice - whatever the trial Court should determine - it is clear that the remedy lies in damages.  Where there is a claim for damages for wrongful dismissal the Plaintiff may also be entitled to declarations and injunctions in aid of that common law remedy.  As held in Philpott -v- Ogilvy and Mather at 213, equitable relief has no independent existence apart from a claim for wrongful dismissal.  If the Applicant denies he has been dismissed - insofar as no proper notice was given - he is, paradoxically, undermining his right to equitable relief.
	There is no right to reinstatement at common law: this is given as an alternative remedy under the Unfair Dismissals Act, 1977.  The Court will not force an employee on a reluctant employer (see Battini -v- Guy as a locus classicus).
7.	DECISION
	No allegation of misconduct has been made such as to require the employer to inform the employee of the allegations before any dismissal takes place.
	While the mode of purporting to dismiss the employee was abrupt, the subsequent letter of the 27th of March, 2002 attempted to ameliorate the mode of dismissal by offering an option to the Applicant.  It does not seem to me that the Court needs to determine the matter otherwise than as one of employment.  The issue of partnership or quasi partnership does not seem to arise in the context of employment by a company.  The employment was not, despite the allegations of inducement by the company’s Managing Director, with the first named Defendant.  The issue of shareholding does not, in itself or in conjunction with other relationships with the company, give a right to injunctive relief in the terms sought.
	I am, accordingly, satisfied that whether or not there is a serious issue to be tried damages will be an adequate remedy.
	In the circumstances the Plaintiff is not entitled to the relief claimed.