The Irish Times has been directed by the High Court to continue paying the salary and benefits of its financial controller, Mr Richard Gee, pending the determination of legal proceedings taken by Mr Gee challenging his dismissal by the company.
Mr Justice McCracken also ordered yesterday that Mr Gee (56), a father of two, should not be dismissed from employment by the company. He refused an order restraining Mr Gee's dismissal from the post of financial controller with the Irish Times, saying he was not prepared to say there could not be another financial controller.
He also refused other orders sought by Mr Gee, including an injunction restraining the Irish Times from appointing any other person to the position of chief financial officer. The Irish Times was in the process of reorganising its management and to delay this could cause great loss to the company which was not calculable in damages, Mr Justice Mc Cracken said. The potential damage to the Irish Times in granting those orders was far greater than that to Mr Gee.
It was his view that at the ultimate hearing of the action, assuming Mr Gee succeeded, the strong probability was that he would only obtain an order continuing his employment in some capacity but not necessarily in that of financial controller.
Last April, Mr Gee was notified by Mr Nick Chapman, managing director of the Irish Times, that his position as financial controller was redundant and that the company intended to appoint a chief financial officer. He was given 12 months' notice and informed he would have to work three months of that period. He is continuing to work as financial controller.
Proceedings challenging the dismissal were instituted against the Irish Times Ltd and Irish Times Publications Ltd and an application for a number of interlocutory orders was heard last week by Mr Justice McCracken. In his decision, Mr Justice McCracken noted Mr Gee was a chartered accountant employed by the Irish Times since 1982. He was appointed financial controller in 1988, and in 1991 was appointed a director of ITPL.
Mr Justice McCracken said ITPL was not a trading company and he was not concerned with Mr Gee's arguments that he was entitled to be retained as a director of that company. Mr Gee had not made out an arguable case that he was specially entitled to retain the directorship.
He said the Irish Times wanted to reorganise its management and had notified Mr Gee of its intention to appoint a CFO, whose functions would allegedly differ from those of the financial controller but whose appointment would make him redundant. He was given 12 months' notice. The judge stressed there was no question of any misconduct on the part of Mr Gee and the only basis for the notice was redundancy.
Mr Gee challenged the redundancy and claimed entitlement to interlocutory orders on three grounds: that there was no redundancy because the proposed new post was essentially the same as that of financial controller; that it was Irish Times policy that there should be no forced redundancy, policy which was incorporated in agreements with trade unions representing 90 per cent of the Irish Times workforce and, at least by implication, this was also a term of Mr Gee's employment; and that the Irish Times did not comply with the rules of natural justice in taking the decision to make Mr Gee redundant.
Mr Justice McCracken was satisfied Mr Gee had an arguable case on the first two points but he had serious doubts whether, in the absence of allegations of wrongdoing, there was an arguable case on the third. He was making no findings on the ability of Mr Gee to carry out the duties of financial controller or of CFO. He said the courts were traditionally loath to grant specific performance of a contract of employment although there were exceptions and the well-established practice was to continue payment of salary pending trial.
The Irish Times had said it was not necessary to make an order directing continued payment of salary and benefits until trial because the company was prepared to do this in any event, but it was not prepared to agree to Mr Gee's request that it appoint no other person to perform his job or car ry out his functions pending trial.
The judge said Mr Gee was effectively seeking a mandatory order that the Irish Times continue not only to pay his salary but permit him to continue to work. The Irish Times was not prepared to do this as it had lost trust and confidence in Mr Gee.
The Irish Times said Mr Gee had not claimed contractual entitlement to the financial controller post for life but had sought not to be made redundant and to continue in a post of similar standing. He had accepted he could be moved sideways and did not dispute that the Irish Times had a right to reorganise its management staff and redeploy him. Mr Gee was also seeking to restrain the Irish Times from appointing a CFO, although he was not claiming any contractual entitlement to that position.
Mr Justice McCracken said he was satisfied this was a proper case for an order directing continued payment of salary and benefits until trial and an order restraining dismissal from employment, but he was not entitled to the other reliefs he had sought.
While Mr Gee was claiming the proposed new post of CFO was the same as financial controller and that he was losing job satisfaction if his work was not continued, he was not disputing the Irish Times's right to reorganise its management and the balance of convenience lay with the Irish Times in that regard. The judge directed that a defence to the full action be delivered by the Irish Times within two weeks.
