The Irish Times recognised its financial controller, Mr Richard Gee, had been a loyal servant of the company and wished to treat him generously in a situation of redundancy, the High Court heard yesterday.
But Mr Gee (56) did not have the capabilities for the new position of chief financial officer (CFO) which The Irish Times wished to fill as urgently as part of a management reorganisation programme, Mr Paul Sreenan SC, for the company, said.
Mr Gee was seeking to paralyse The Irish Times's appointment of a CFO, although the need for this post was agreed by the managing director, Mr Nick Chapman; chairman, Mr Don Reid; and the group's auditors.
Mr Sreenan was opposing Mr Gee's application for orders restraining The Irish Times from removing him from the post of financial controller or from appointing anyone else to that or any similar post.
The interlocutory orders are sought pending the outcome of legal proceedings taken by Mr Gee against The Irish Times Ltd and Irish Times Publications Ltd. The hearing of the interlocutory application concluded yesterday, and Mr Justice McCracken will give his decision on Tuesday.
In his submissions Mr Sreenan argued that Mr Gee had not established any serious issue to be tried; that damages were an adequate remedy if Mr Gee won his case; and the balance of convenience was against granting the orders. Mr Gee argued he was entitled to his salary and benefits for the rest of his working life, while the defendants said he was entitled to these for 12 months.
Counsel said Mr Gee got 12 months' notice of redundancy on April 27th, of which he was required to work only three months. The company would pay his salary and benefits for 12 months, giving ample time for hearing the action. The company would continue paying his salary for longer pending the trial.
Mr Justice McCracken said he would be very reluctant to make any order restraining The Irish Times from appointing someone on a temporary basis to do Mr Gee's work, provided Mr Gee was paid and no one was appointed permanently.
Counsel said this was not a misconduct case. The Irish Times had made that very clear. Mr Gee had been a loyal servant, and the company wished to treat him generously in a redundancy situation. The company was reorganising its management, and Mr Gee was aware this process of reevaluation and reorganisation was going on. Mr Gee himself had acknowledged there was a need for a CFO to be appointed.
Mr Gee did not allege a legal right to be appointed CFO, nor did he allege a legal right to be financial controller for life, counsel said. The high water mark of Mr Gee's case was that, in the event of his not continuing as financial controller, he had an implied contractual right to some suitable alternative post with the same salary and benefit.
There was no such legal right, and that argument neither stood up on law or on facts, Mr Sreenan said. In terms of business efficiency that proposition was unstatable. The Irish Times was a fully commercial company. There were agreements with trade union members in the company giving those employees contractual rights, but there was no binding agreement with members of management against compulsory redundancy.
The judge said there was no suggestion that redundancy was forced on any person, and Mr Gee could have a legitimate expectation this would not happen to him. Mr Sreenan said he would have to establish this was an implied term of his contract.
Mr Sreenan said it would be unfair to require the defendants to keep Mr Gee in his post until the action was determined. The removal of the documents had undermined trust and confidence.
Mr Justice McCracken said Mr Gee was entitled to use the documents to support his argument that he was capable of doing the work of a chief financial officer.
Mr Tom Mallon, for Mr Gee, said his client was entitled to protect the existence of his position as financial controller pending the hearing of the action. This was not a genuine redundancy because Mr Gee's position was effectively the same as that of CFO. If not a genuine redundancy, it amounted to wrongful dismissal for which Mr Gee would be entitled to damages and perhaps reinstatement.
