The High Court awarded Ewaen Fred Ogieriakhi €127,905 in damages after finding that the State’s failure to apply EU law correctly led to his dismissal from An Post in 2007.
Mr Justice Hogan found that the State had wrongly refused to recognise Mr Ogieriakhi’s right of permanent residence under Article 16(2) of the EU Free Movement Directive. That refusal meant An Post dismissed him because it believed he had no legal right to work in Ireland. The judge held that the breach was sufficiently serious to meet the test for damages under EU law.
Mr Ogieriakhi, a Nigerian national who later became an Irish citizen, had married French national Laetitia Georges in 1999. The couple lived apart from late 2001 or early 2002, but the Court of Justice of the European Union later ruled that a non-EU spouse could acquire permanent residence after five years’ qualifying residence even if the couple separated and lived with other partners.
The Minister had refused Mr Ogieriakhi’s 2007 residence application on the basis that his five-year period of residence ended before the Directive’s April 2006 implementation date. A High Court judge rejected his challenge in 2008. The legal position changed after the Court of Justice’s 2010 ruling in *Lassal*, which established that qualifying five-year periods completed before that date counted. The Minister granted Mr Ogieriakhi permanent residence in November 2011.
An Post suspended Mr Ogieriakhi in October 2007 and dismissed him after he did not attend a meeting to produce a work permit. The company had sought legal advice about employing a non-EU national without a permit, and the Department subsequently told it that he had no entitlement to work. In April 2008, the Minister granted him Stamp 4 permission, allowing him to work. An Post offered to re-engage him if a suitable vacancy arose, but the Employment Appeals Tribunal later upheld the dismissal based on his status at the time. The High Court found that the offer was not followed by a formal written offer.
The €107,905 award for lost income reflected a six-year period from October 2007 to October 2013. The judge reduced the award by 50% for part of that period because Mr Ogieriakhi had not pursued the re-engagement offer, but applied no reduction after February 2011, when he sought reinstatement following *Lassal* and An Post took no steps to remedy the matter.
The court also awarded €20,000 for breach of Mr Ogieriakhi’s constitutional right to a good name. It found that the ordinary remedies available under contract and defamation law were inadequate in the unusual circumstances of his dismissal. The total award was made against Ireland and the Attorney General. The judgment does not state an award against An Post.