A recent High Court case has again illustrated the importance of ensuring that a termination of employment is dealt with in accordance with the employee’s contract of employment.

While statute in Ireland provides for minimum notice to be given, if an employee’s contractual notice period is longer than the statutory notice period, then notice of termination must be given in accordance with the contract.  Should the terms of the contract be breached, the employee may seek an injunction to prevent the termination of their employment, arising from the defective notice of termination. 

Facts
In this case the employee claimed that the notice of termination which he received breached his contractual terms, as it only provided for two weeks notice, rather than the 16 week notice period, as provided for in his contract.  The employee also argued that his termination was not in accordance with the articles of association of the company.

Decision
The Court decided that the employee’s contract had been improperly terminated, as the length of notice given by the employer did not correspond with the notice period in the employee’s contract.  Since the employee was also a director of the company, a resolution of the board should have been passed effecting his termination.  No such resolution was passed in this case.  The Court held that due to the employer’s “fundamental failure” to adhere to the contractual terms, the employee should be granted an injunction, preventing his employer from terminating his contract of employment.  The Court was also critical of the employer for not affording the employee the right to challenge his redundancy selection.  The Court did, however, state that so long as proper procedures were adhered to, the employer could still terminate the employee’s contract, at a future date.

Comment
The essence of the matter before the Court was not whether the termination was genuine, but whether the manner of the termination was in accordance with the employee’s contractual terms.  These types of injunctions come before the courts again and again.  To reduce the potential for costly legal fees and publicity, employers should ensure that any termination of employment is in accordance with the employee’s contractual terms and where appropriate, with the employer’s memorandum and articles of association.  Where unsure, specific advice should be taken prior to the giving of notice.

Contributed by Caoimhe Heery, Alicia Compton.