Berber v Dunnes Stores Ltd

• Jurisdiction: Ireland
• Judge: Mr Justice Finnegan
• Judgment Date: 12 February 2009
• Neutral Citation: [2009] IESC 10
• Court: Supreme Court
• Docket Number: APPEAL NO. 464/2006
• Date: 12 February 2009

[2009] IESC 10

THE SUPREME COURT

Denham J.

Hardiman J.

Finnegan J.

APPEAL NO. 464/2006

Berber v Dunnes Stores Ltd

BETWEEN

ADAM BERBER

PLAINTIFF/RESPONDENT

and

DUNNES STORES LIMITED

DEFENDANT/APPELLANT

MALIK v BANK OF CREDIT & COMMERCE INTERNATIONAL SA (IN LIQUIDATION) 1996 ICR 406 1995 3 AER 545

LEWIS v MOTORWORLD GARAGES LTD 1986 ICR 157 1985 IRLR 465

OMILAJU v WALTHAM FOREST LONDON BOROUGH COUNCIL 2005 1 AER 75 2005 ICR 481 2004 EWCA CIV 1493

BROWN v MERCHANT FERRIES LTD 1998 IRLR 682

WOODS v WM CAR SERVICES (PETERBOROUGH) LTD 1981 IRLR 347 1981 ICR 666

COURTAULDS NORTHERN TEXTILES LTD v ANDREW 1979 IRLR 84

BLISS v SOUTH EAST THAMES REGIONAL HEALTH AUTHORITY 1985 IRLR 308 1987 ICR 700

BRODIE THE HEART OF THE MATTER: MUTUAL TRUST & CONFIDENCE 1996 25(2) ILJ 121

HARRINGTON v IRISH LIFE & PERMANENT PLC UNREP SMYTH 18.6.2003 2003/25/5905

MAHER v JABIL GLOBAL SERVICES LTD 2008 1 IR 25 2005 16 ELR 233 2005/37/7677 2005 IEHC 130

MCGRATH v TRINTECH TECHNOLOGIES LTD & TRINTECH GROUP PLC 2005 4 IR 382 2005 ELR 49 2004/35/8005

QUIGLEY v COMPLEX TOOLING & MOULDING UNREP LAVAN 9.3.2005 2005/51/10690 2005 IEHC 71

HATTON v SUTHERLAND 2002 2 AER 1 2002 ICR 613 2002 EWCA CIV 76

CIVIL LIABILITY ACT 1961 S2

STOKES v GUEST KEEN & NETTLEFOLD (BOLTS & NUTS) LTD 1968 1 WLR 1776

EMPLOYMENT

Contract

Repudiation - Claim for wrongful dismissal - Breach of implied term of contract - Relationship of trust and confidence - Claim for breach of contract - Personal injury - Store buyer - Colour blindness test - Transfer back to store management - Mutual obligations of employer and employee - Reciprocal duties - Whether conduct amounted to repudiation of contract - Applicable test - Objective test - Conduct of parties - Cumulative effect of conduct - Whether conduct of employer unreasonable and without proper cause - Effect of conduct on employee - Liability for stress engendered injury - Liability in negligence - Duty of care - Failure to take reasonable care - Damage - Reasonable foreseeability - Awareness of vulnerability - Risk of harm - Gravity of potential harm - Cost and practicality of prevention of harm - Malik v Bank of Credit and Commerce International SA [1996] ICR. 406; Lewis v Motorworld Garages Limited [1986] ICR 157; Western Excavating (ECC) Limited v Sharp [1978] ICR 221; Post Office v Roberts [1980] IRLR 347; Woods v W.M. Car Services (Peterborough) Limited [1981] ICR 666; Omilaju v Waltham Forest London Borough Council [2005] 1 All ER 75; Brown v Merchant Ferries Limited [1998] IRLR 682; Courtaulds Northern Textiles Limited v Andrew [1979] IRLR 84; Bliss v South East Thames Regional Health Authority [1985] IRLR 308; British Aircraft Corporation Limited v Austin [1978] IRLR 332; Harrington v Irish Life and Permanent Plc (Unrep, Smyth J, 18/05/2003); Pepper v Webb [1969] 2 All ER 216; Brewster v Burke [1985] 4 JISLL 98; Maher v Jabil Global Services Limited [2005] 16 ELR. 233; McGrath v Trintech Technologies Limited [2005] ELR 49; Quigley v Complex Tooling and Moulding [2005] IEHC 71 (Unrep, Lavan J, 9/3/2005); Hatton v Sunderland [2002] 2 All ER 1 and Stokes v Guest Keen and Nettlefold (Bolts and Nuts) Limited [1968] 1 WLR 1776 considered - Appeal substantially allowed (464/2006 - SC - 12/2/2009) [2009] IESC 10

Berber v Dunnes Stores Ltd

Facts: The issue arose on appeal inter alia whether the plaintiff, who had been employed by the defendant for twenty one years, had been wrongfully dismissed by an alleged breach by the appellant of an implied term of the contract of employment not to destroy or damage the employment relationship and whether he was entitled to damages. The plaintiff suffered from Crohn’s disease since his late teens and his employer was made aware of his illness. The plaintiff was transferred to a new branch and worked for four days at the new branch before ceasing work due to ill health. The plaintiff contended that his treatment in the new store exacerbated his ill health as well as the change in his occupation from buyer to trainee store manager. The trial judge had found that the injures of the respondent were reasonably foreseeable and that the appellant was in breach of contract.

Held by the Supreme Court per Finnegan J. (Hardiman & Denham JJ concurring), that the Court was not satisfied that the appellant acted any way other than reasonably. Had the appellant insisted on discussing a training place when the respondent was fit for work, such conduct might have been viewed as oppressive. Each of the incidents raised failed on a test of foreseeability and cumulatively also. 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 duties. The injury sustained by the respondent was unforeseeable and the claim for breach of duty would fail. The appeal would be allowed and the judgment of the High Court set aside except for the sum awarded to the respondent of a Christmas bonus and the annual bonus.

Reporter: E.F.

Mr Justice Finnegan

1 The respondent was an employee of the appellant. The respondent in his pleadings advances a number of causes of action. For the purposes of this appeal the issues which arise are as follows:-

2 1. Was the respondent wrongfully dismissed by reason of a breach by the appellant of the implied term of the contract of employment that it would not conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee, such breach amounting to repudiation of the contract of employment which the respondent was entitled to accept.

3 2. Was the respondent in breach of the contract of employment and/or negligent and in breach of duty as a result of which the respondent sustained personal injury and special damage being five months loss of earnings referable to a period over and above the three month notice period during which the respondent was unemployed in consequence of personal injury.

4 The respondent commenced employment with the appellant as a trainee manger in April 1980 at the age of nineteen. On completion of his training he was employed as a store manager at various locations until 1988. From 1988 until November 2000 he transferred from store management to the position of buyer being successively group footwear merchandiser, men's footwear buyer and men's readymade buyer. On his last management performance review in February 2000 his performance was generally rated at the level of "effective contribution". The assessment provided for four performance standards in descending order - excellent, highly effective, effective contribution and below standard. The review contained a comment "colour issue". Some years prior to that review the appellant had a colour blindness test carried out on all buyers and the respondent was reported as colour blind. Notwithstanding this he had been moved to a position as men's readymade buyer. From February 2000 onwards the plaintiff's evidence was that there was a change of attitude towards him evidenced by the following:-

5 (a) Unlike previous years as a buyer when he spent as many as fifty days abroad during 2000 he was sent abroad only once.

6 (b) There was an increased interest in the state of his health notwithstanding an excellent work attendance record. He had been diagnosed with Crohn's disease in 1978. He had a recurrence of his disease in 1995 and again in spring 2000. In the years 1995, 1996 and 1999 he missed one day through illness. He had no absences in 1998. He was absent for five days in 1997 and seven days in 2000 up to 23^rd November 2000 (the relevance of which date will appear hereafter).

7 In July 2000 he was told that he was not being sent on a trip to the Far East because Mrs Heffernan was concerned that he might get ill on account of his Crohn's disease and he considered this "bizarre". In October 2000 the respondent was informed that he was to be transferred from buying back to store management and his colour blindness was adverted to at this time. He was informed on the 22^nd November 2000 that he was to be moved to the appellant's store in the ILAC Centre Dublin as either department manager of menswear or ladieswear. The respondent considered this demotion and sought a meeting with Mrs Heffernan and a meeting took place on the 23^rd November 2000. At the meeting it was agreed that the respondent would return to store management initially at the appellant's store in Blanchardstown Shopping Centre, which was regarded as it's flagship store, where he would undergo training with a view to being fast-tracked for appointment as store manager or regional manager within six to twelve months. The respondent's understanding was that he would commence work in the ladieswear department in Blanchardstown on the 4^th December 2000. On the 27^th November 2000 the respondent was directed to report for duty that day to Blanchardstown and to take up a position in the homewares department. He considered this a variation of his agreement with Mrs Heffernan and he tried to contact her without success as she was abroad. He did not go to Blanchardstown on the 27^th November 2000 but was contacted the next day by the director of store operations Mr McNiffe. On the 28^th and 29^th November the respondent had three meetings with Mr McNiffe. At the meeting on the 28^th November 2000 the respondent refused to go to Blancharsdstown until such time as he had spoken with Mrs Heffernan. There were two meetings on the 29^th November 2000. At the first meeting the respondent read out a statement which he had prepared but refused to furnish a copy of the same to Mr McNiffe and maintained his refusal to go to Blanchardstown. At the second meeting the respondent...