Saturday 18 November 2017

Firm's decision to make solicitor redundant is 'a sham' to avoid legal obligations to client, High Court heard

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Aodhan O'Faolain

Legal firm's decision to make one of its associate solicitor's redundant is "a sham", the High Court heard.

Laurence Kearney had been an associate solicitor with Byrne Wallace, Harcourt Street, Dublin 2, since 2006, where he worked in their health care department.

Following a decision to terminate his employment, he seeking injunctions, including one restraining Byrne Wallace from implementing his purported dismissal.

Mr Kearney of The Richmond, Smithfield, Dublin, also seeks an injunction preventing Byrne Wallace from treating him other than being employed as a solicitor with the firm.

The law firm opposed the application and rejected the claim the redundancy was a sham.

Mr Kearney's counsel, Frank Callanan, said in late August Mr Kearney he was being made redundant.

Counsel said the redundancy  is "a sham"  so Byrne Wallace can avoid its legal obligations to his client.

The firm "continues to expand" and is "recruiting solicitors" for work Mr Kearney is qualified to do, counsel said.

Mr Kearney's position is "demonstrably not redundant" counsel added. 

In a sworn statement, Mr Kearney, who has bipolar mood disorder, said he been earning €100k a year with the firm when he went out sick between July 2010 and September 2011.

When he returned, his salary was cut to €60k a year. He said others at the firm had their salaries cut, but not as much as his reduction.

He sought to get his pay restored but said he got a modest increase of an addition €5000  per year.

He said that he went out sick again between July 2013 and November 2015.

He said he wanted to return to work, but despite being passed medically fit to do so, Byrne Wallace excluded him from the workplace from May 2016 onwards.

As a result he brought separate legal proceedings against the firm aimed at directing Byrne Wallace to allow him return to work.

In late August the firm informed him his "previous role was not available" and that "it no longer exists".

The firm said it had "no option" other than to regard his role as "redundant with immediate effect."

Mr Kearney said he had no alternative but to bring the action, despite the fact the case will have implications for him personally and his career.

In reply, the firm  says when he returned to work the amount of work available in the section he had been employed in was very limited.

Byrne Wallace said it had reduced its health care team from seven to four people by 2015 and it is not seeking to hire others in that team.

On his return to work Byrne Wallace says Mr Kearney had been assigned to carry out duties that were different to what he was doing before he became ill, and was paid an appropriately.

It says many of its employees were subjected to significant salary reductions during the relevant period and Mr Kearney was not the only member of staff subjected to severe pay cuts at the time.

The firm also argues that the High Court lacks the jurisdiction to hear a claim concerning the validity of of a redundancy.

The Labour Court and the Workplace Relations Commission are the appropriate forums for such claims, the law firm claims. 

Mr Kearney's application for an injunction was heard on Friday by Ms Justice Marie Baker.

Following the conclusion of legal submissions, the judge said she was reserving her decision.

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