Berber -v- Dunnes Stores Ltd, Supreme Court,Judgment was delivered by Mr Justice Finnegan on February 12th 2009, Mrs Justice Denham and Mr Justice Hardiman concurring.
Judgment
An appeal by Dunnes Stores against a High Court ruling that a manager who suffered from Crohn’s Disease and who left the company following a number of disagreements was wrongly dismissed, was upheld, and orders of the High Court that he should be compensated were set aside.
Background
Adam Berber joined Dunnes Stores as a trainee manager in 1980 at the age of 19, and worked as store manager in various locations until 1988, when he was transferred to a position as buyer. He worked in this position until February 2000.
He felt that from this time on there was a change in the attitude of his employer towards him, manifested by the fact that he was sent abroad much more rarely and that there appeared to be much greater interest in his health than before. He had been diagnosed with Crohn’s Disease in 1978, but had been managing it well for many years, and rarely missed work.
In October 2000 he was told he was being transferred back to store management from buying, and his colour blindness, with which he was diagnosed earlier that year, was referred to. He considered this a demotion and sought a meeting with Mrs Heffernan, which took place on November 23rd.
At that meeting it was agreed that he would return to store management, initially in Blanchardstown, where he would undergo training with a view to being fast-tracked for appointment as store or regional manager within six to 12 months.
He went to the Blanchardstown store, where he was asked to work in the homewares department. He considered this a variation of his agreement with Mrs Heffernan, and following a number of exchanges with the director of store operation, refused to attend the store until he had spoken to Mrs Heffernan. He was suspended with pay, and began communicating with his employer through his solicitor.
In a letter of December 7th the solicitor said the firm’s conduct towards his client had resulted in him becoming ill, and that his doctor had ordered him to rest.
The company’s solicitors responded stating that the reason for his suspension was his attitude to the director of store operations in Blanchardstown. The company offered to overlook the incident provided he reported for work in Blanchardstown as soon as certified fit to do so by his doctor.
He returned to work on December 28th, but there were further incidents relating to his dress code, his being described as a “trainee manager” on a store roster, and a training plan which, he said, failed to take account of his 21 years’ experience.
On January 21st, 2001, his specialist wrote to the company saying that the “recent wrangle” had exacerbated his symptoms of Crohn’s Disease.
He returned to work towards the end of April 2001. On May 15th there was a disagreement about the length of his shift. On May 30th his solicitors wrote to the company stating that it had “repudiated its obligations towards him as an employee” and imposed physical and emotional suffering on him, and seeking damages. It cited advice from his specialist that he should cease working in that environment.
The High Court found that he was owed €9,079 in bonuses that had been withheld. It also found that the employer was entitled to move him from buying to store management, and that Mrs Heffernan had a bona fide concern about his health.
However, it found that after November 23rd the director of store operations failed to have proper regard to his medical condition. The manner in which the company dealt with him in the knowledge of the precarious nature of his physical and psychological health amounted to oppressive conduct likely to seriously damage the employer/employee relationship. Accordingly, the company breached its obligation to maintain trust and confidence.
This was appealed by the company to the Supreme Court.
Decision
Mr Justice Finnegan said that there is implied in a contract of employment a mutual obligation that neither the employer nor the employee will conduct themselves in a way likely to damage the relationship of confidence and trust between them.
In this case the trial judge had found that up to November 23rd, 2000, the company took appropriate steps to preserve that relationship. He considered the conduct of both parties after that.
Having examined the conduct of Mr Berber, Mr Justice Finnegan found that his refusal to co-operate with the move to Blanchardstown until he had spoken to Mrs Heffernan was unreasonable.
When he did return to work on December 28th his employer had been notified of his state of health, but he had been certified as fit to return by his doctor. Further incidents arose, but there was a willingness to accommodate some, if not all, of the respondent’s concerns concerning his training and the timetable of a future promotion.
The final incident related to his being rostered to work on May 15th from 10am until 8.30pm, when he incorrectly believed he had been rostered to work from 8.30am to 6pm. He refused to work beyond this time, and said that the manager would hear from his solicitor.
“This was part of a consistent pattern of conduct and not an isolated incident: the respondent objected to written communications to him being sent to him directly and required that all such communications should be sent to his solicitor. I consider the respondent’s stance in this regard as damaging to the relationship and unreasonable,” Mr Justice Finnegan said.
He said that, in the light of the history of the interaction between the appellant and the respondent, the conduct of the company did not amount to a repudiation of the contract of employment.
Referring to Mr Berber’s claim for personal injuries arising out of the stress he suffered, he said that special problems attend claims for psychiatric injury, because they give rise to difficult issues of foreseeability and causation, and in identifying a relevant breach of duty. It was necessary to distinguish between signs of stress and signs of impending harm to health.
There were a number of medical reports detailing the exacerbation of Mr Berber’s Crohn’s Disease, and the role played in it by stress at work, culminating in a report on May 31st, 2001, from his consultant, stating that the best approach would be for him to get out of this environment.
There was also a report from a consultant psychiatrist, which stated there had been a “psychological adjustment disorder with features of anxiety and possible features of depression . . . on a background of workplace stress”.
At least from receipt of the letter of December 7th referring to Mr Berber’s Crohn’s Disease, the company had a duty to take reasonable care not to cause harm. Mr Justice Finnegan said he had already found that its reaction to the events of March 2001 was reasonable.
“Each of the incidents raised in the course of the hearing and which occurred after 23rd November taken individually fails on the test of foreseeability,” he said. “The appellant responded reasonably to each incident as it arose and the alternative available to the appellant was to abdicate from all control of the manner in which the respondent would carry out the duties of his employment.”
He allowed the appeal and set aside the High Court order and judgment, except for the sum of €9,079 in bonus payments, which should be paid with interest at the Courts Act rate.
The full judgment is on www.courts.ie
Hugh O’Neill SC, Mark Connaughton SC and Marcus Dowling BE, instructed by William Fry, for the appellant; Roddy Horan SC, Pádraig McCartan SC and Maireád McKenna BE, instructed by McCarthy Associates, for the respondent