The High Court has ordered Over-C Technology Limited and its parent, Over-C Limited, to pay former chief financial officer Donal O’Donovan six months’ salary and applicable benefits while his wrongful dismissal action proceeds. The order does not require the companies to reinstate him or assign him CFO duties, and permits them to appoint a replacement.
Mr Justice David Keane’s ruling concerns an interlocutory injunction application, not the final determination of the action. The judge found that Mr O’Donovan had established a strong case that he had an implied contractual right to fair procedures in the assessment of his performance during probation, and that this right was breached when he was dismissed and his appeal was treated as withdrawn.
Mr O’Donovan began work as CFO of Over-C Technology in Cork in August 2019. His contract provided for a six-month probationary period and referred to disciplinary procedures and an appeal process. On 7 January 2020, chief executive Michael Elliot told him his employment was terminated with immediate effect. A letter cited alleged sub-standard performance, including an inflated sales projection and inadequate preparation for board meetings. Those were the company’s stated allegations, not findings made at this hearing.
Mr O’Donovan disputed the allegations and said he had not been told of performance concerns before his dismissal. He argued that the process breached his contractual rights. The companies disputed his claims and maintained that the dismissal was for poor performance during probation, not misconduct. They also said he effectively withdrew his appeal after objecting to the proposed hearing arrangements.
The judge was not satisfied that Mr O’Donovan had shown a strong case that he was dismissed for misconduct. On the evidence then available, poor performance during probation appeared more likely to have been the stated reason. However, the judge found a strong case that the companies had not raised the alleged performance issues with him before dismissing him, and that he was entitled to fair procedures, including an opportunity to be heard or appeal.
Weighing the parties’ positions, the judge noted that the relationship of mutual trust and confidence had broken down and that the companies faced prejudice from being without a CFO. He concluded that the balance of convenience favoured a modified “Fennelly order”: the companies must pay salary for six months from the end of January 2020, with applicable bonus and benefits, provided Mr O’Donovan undertakes to perform any CFO duties required. They may place him on leave and need not assign duties. If they assign duties after that six-month period while the action remains pending, they must pay accordingly.
The judge stressed that he had not finally decided the disputed legal or factual issues. The order preserves arrangements pending trial; it does not determine whether the dismissal was unlawful. The parties were directed to seek agreement on any remaining issues, including costs, and to file short written submissions within 14 days if they could not agree.