Case: Hill v CA Parsons Ltd [1972] 1 Ch 305
Outcome: followed
While courts are generally reluctant to grant an injunction to continue an employment relationship where it has been terminated, in a number of cases the courts have, in view of the special circumstances of those cases, granted an interim injunction to restrain an employer from treating a notice of termination as having terminated an employment relationship. One notable case is Hill v CA Parsons Ltd [1972] 1 Ch 305 (' Hill' ), especially at 314 and 320. 39 The same course was taken by Smith J in the Supreme Court of Victoria in Reilly v State of Victoria (1991) 5 VIR 1 (' Reilly' ), especially at 11 to 12. There, his Honour granted an injunction restraining the State of Victoria from acting on a notice of termination of a casual public servant. Other cases to similar effect include: Irani v Southampton &amp; South West Hampshire Health Authority [1985] ICR 590 and Dietman v Brent London Borough Council (1988) IRLR 299; [1987] ICR 737 (' Dietman' ). In Dietman at 754, Hodgson J reviewed several cases where injunctions were granted on an interim basis to restrain a termination of employment: see Crisp v Holden (1910) 54 S.J. 784; Smith v Mcnally [1912] 1 Ch 816; Hill ; Chappell v Times Newspapers Ltd [1975] ICR 145; Jones v Lee [1980] ICR 310 and R v British Broadcasting Corporation; Ex parte Lavelle [1983] ICR 99 at 113. These cases recognise that an interim injunction can be granted to restrain an employer treating a dismissal as valid or effective in circumstances where fair processes or natural justice have not been afforded to the employee in accordance with the contract of employment. In Dietman, the employer had dismissed the employee without adhering to contractual processes that needed to be followed in connection with the dismissal. Hodgson J concluded that the Court can intervene by injunction to prevent the implementation of the dismissal until the proper procedures laid down in the contract have been followed: at 755[B]. 45 If any difficulties were to arise, a range of solutions could be found within the public service. In Hill, Denning MR said at 314 [H]: 'If the company did not want [an employee] to come to work, the court would not order the company to give [the employee] work, but so long as [the employee] was ready and willing to serve the company, whenever they required his services, the court would order the company to do their part of the agreement...'. See also Robb v Hammersmith and Fulham London Borough Council, supra, at 520-523. The decision of the High Court in Jarratt v Commissioner of Police for New South Wales [2005] HCA 50 ; (2005) 221 ALR 95 indicates that the right of an employee to procedural fairness under his or her contract of employment is not easily displaced. 46 In short, while the sort of difficulty identified by Dr Jessup is a real consideration, it does not arise in this case in such a way as to warrant the refusal of relief. 47 The respondents did not dispute that the summary dismissal of the applicant would be likely to inflict reputational damage on the applicant. The summary dismissal has been imposed on the applicant before she has had any opportunity of exercising her rights of review under the Act and the Regulations. It is at least reasonably arguable that the review processes and other protective mechanisms in the Act and the Regulations proceed on the footing that irreparable harm, such as reputational damage, should not be inflicted on an employee until that employee has had the chance of exercising his or her rights of review. It also seems to me that the efficacy of the review process will be enhanced if at the time of any review there is an order in force which prevents the employer from treating the notice of termination as an operative one. 48 In my opinion, the balance of convenience strongly favours the grant of interim relief. Without it, the applicant will be deprived in a legal or practical sense of the full measure of her rights to have her termination notice reviewed and potentially reconsidered. She will also have lost the opportunities to continue in employment pending an internal review, and to avoid the reputational and other irreparable harm that is likely to follow from summary dismissal. Success at final trial, and an award of damages for wrongful dismissal, would not be an adequate remedy in these circumstances. On the other hand, the grant of the injunction will not inflict any significant hardship on the respondents. They will be required to make appropriate and workable arrangements to continue the applicant's employment and to carry out the review process that is mandated by legislation. 49 For the above reasons, I consider that there are serious questions to be tried, and that an evaluation of the balance of convenience and discretionary considerations support the grant of interim relief. The applicant has proffered two undertakings, the first being the usual undertaking as to damages, and the second being an undertaking that she will forthwith institute the review process available to her under regs 6 and/or 8 of the Regulations. I will require that these undertakings be given to the Court. 51 The first order sought corresponds with the form of injunction that was granted in Hill and by Smith J in Reilly . I am satisfied that an injunction in this form is appropriate.