A blocklayer is entitled to €30,000 general damages against the Building and Allied Trades Union (BATU) over breach of his right to earn a livelihood and loss of opportunity by not admitting him to membership of the union after a probationary period, the Court of Appeal has ruled.
The award includes €7,500 exemplary damages as an indication of the court's disapproval of the union's treatment of John O'Connell, Ms Justice Ann Power said. Mr O'Connell is also entitled to the bulk of his legal costs and expenses against BATU, she added.
Mr O'Connell worked mainly in the Limerick area and had held a C2 certificate from Revenue entitling him to work as a self-employed subcontractor on building sites.
He had been a member of BATU but his membership lapsed in the 1990s when he went abroad to work. On his return to Limerick in 1997, he sought to rejoin the union.
BATU was then strictly applying a policy of protecting workers in direct employment and limiting membership to employees of building contractors who could provide confirmation from Revenue they did not hold a C2 certificate.
Mr O’Connell claimed potential employers were told not to hire him.
Probationary
After his C2 certificate expired in 1999, BATU granted him probationary membership but refused him full membership status when the probationary period ended.
In High Court proceedings, Mr O'Connell claimed BATU deprived him from becoming a member and also prevented him working as a blocklayer because he was not a member, severely diminishing his ability to earn a living from 2000 onwards.
BATU, which alleged Mr O’Connell tried to bully his way into the union, denied the claims.
In an earlier 2016 judgment on appeals by Mr O’Connell and BATU over a High Court decision, the Court of Appeal found nothing unlawful in BATU obliging employers to employ only union members.
However, it held BATU breached Mr O’Connell’s constitutional right to earn a livelihood in the post-probationary period because of its insistence that only members could be employed on sites in Limerick, where BATU had a monopoly, while at the same time refusing him membership.
Damages claim
The court overturned, as unsupported by evidence, High Court findings that BATU and certain of its officials had, from 2000 onwards, conspired to threaten or intimidate employers who had employed Mr O’Connell because he did not have a union card.
It directed a re-hearing to determine his damages claim over breach of his right to earn a livelihood.
After the High Court ruled in 2018 that Mr O’Connell was entitled to €15,000 general damages for breach of his right to earn a livelihood, he appealed, arguing he was entitled to additional damages.
Giving the court’s judgment on Friday, Ms Justice Power said, given the absence of evidence from Mr O’Connell, representing himself, to substantiate his claim for lost earnings of some €368,000 between 2000 and 2008, the High Court had not erred in concluding it could not “take a guess or go off to do its own calculations”.
The High Court had erred in deciding no damages should be awarded for loss of opportunity for reasons including evidence of lost opportunity had previously been accepted at an earlier stage of the proceedings and upheld, she said.
She allowed the appeal concerning failures to award damages for loss of opportunity and to consider and assess, adequately, the claim for exemplary damages.
Mr O’Connell, she found, was entitled to a €22,500 general damages award to reflect his loss of opportunity due to the union’s breach of his constitutional right to earn a livelihood. She also awarded €7,500 exemplary damages to mark the court’s disapproval of the union’s treatment of Mr O’Connell.
The High Court paid insufficient attention to “the seriousness of the union’s wrongdoing” in this case and failed to have due regard for the attack on Mr O’Connell’s human dignity and the “obvious humiliation” visited on him, she said.
Final orders will be made later.
