Berber v Dunnes Stores Ltd

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 24 October 2006
• Neutral Citation: [2006] IEHC 327
• Court: High Court
• Date: 24 October 2006

[2006] IEHC 327

THE HIGH COURT

No. 10522 P/2001

BERBER v DUNNES STORES LTD

BETWEEN/

ADAM BERBER

PLAINTIFF

AND

DUNNES STORES LIMITED

DEFENDANTS

O'BYRNE v DUNNES STORES 2003 14 ELR 297

MAHMUD v BCCI 1997 ICR 606

MCDERMOTT CONTRACT LAW 1ED 1075

LYONS v M F KENT & CO INTL 1996 ELR 103

WALLACE v UNITED GRAIN GROWERS LTD 1997 152 DLR (4TH) 1

WALKER v NORTHUMBERLAND CO COUNCIL 1995 1 AER 737

GOGAY v HERTFORDSHIRE CO COUNCIL 2000 IRLR 703

EASTWOOD v MAGNOX ELECTRIC PLC 2005 1 AC 503

MAHER v JABIL GLOBAL SERVICES LTD 2005 16 ELR 233

MCMAHON & BINCHY LAW OF TORTS 3ED PAR 18.03

SPRING v GUARDIAN ASSURANCE PLC 1994 ICR 596

Abstract:

Employment law - Contract law- Wrongful dismissal - Constructive dismissal - Personal injuries - Damages - Repudiation of contract - Whether the defendant’s conduct towards the plaintiff amounted to a repudiation of the plaintiff’s contract of employment.

Facts: The plaintiff, who had been employed by the defendant for twenty one years, sought damages for constructive and wrongful dismissal, personal injuries and defamation. The plaintiff suffered from Crohn’s disease since his late teens and his employer was made aware of his illness. The plaintiff’s employment with the defendant ceased six months after his transfer to another store belonging to the defendant. The plaintiff only 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. The plaintiff alleged that the inclusion of his name on the weekly duty roster under the heading “new trainees” amounted to defamation. The plaintiff further claimed that the defendant’s conduct towards him amounted to a repudiation of the defendant’s obligations to him and consequently terminated his contract of employment.

Held by Laffoy J. in favour of the plaintiff:

1. That the manner in which the defendant treated the plaintiff in the knowledge of the precarious nature of his physical and psychological health viewed objectively amounted to oppressive conduct. Accordingly, the defendant breached its obligation to maintain the plaintiff’s trust and confidence and that breach went to the root of the contract, thereby amounting to a repudiation of the contract. Consequently, the plaintiff was entitled to damages for wrongful dismissal to be measured on the basis of the loss of three months’ salary, that period being considered a reasonable notice period in the absence of an express notice period in the contract of employment, and a proportionate share of all relevant bonuses.

2. That the defendant’s breach of its duty of care owed to the plaintiff resulted in the plaintiff suffering psychological symptoms and an exacerbation and prolongation of his physical symptoms and the plaintiff was entitled to an award of €40,000 by way of general damages.

3. The plaintiff’s claim for damages for defamation was successfully defended on the basis of qualified privilege.

Reporter: L.O’S.

1 Judgment of Miss Justice Laffoy delivered on 24th October, 2006 .

The factual background

2 The plaintiff commenced his employment with the defendant as a trainee manager in April, 1980 when he was just short of nineteen years of age. Following his training he was employed as a store manager at various locations, Enniscorthy, Wexford and Bray. He moved from store management to buying in 1988. Thereafter until November, 2000 he was involved in various facets of buying, advancing from a trainee through the positions of Group footwear merchandiser and men's footwear buyer and ultimately to men's "ready-mades" buyer. It is common case that the senior managers and executives of the defendant viewed the plaintiff's performance in his various roles positively and that it was expected that he would advance further within the business. On a management performance review in February, 2000 his performance was generally rated at the level of "effective contribution". One matter, however, which was alluded to was the fact that he is colour-blind.

3 It is the plaintiff's case that from March, 2000 onwards the attitude of senior managers and executives of the defendant towards him changed. That perception was engendered by the fact that, unlike previous years when as a buyer he spent as many as fifty days abroad sourcing and buying products, in the spring and summer of 2000 he went abroad only once on business, to a clothing show in Germany. It was also fuelled by an increased interest in the state of his health, which he perceived as unnecessary because of his attendance and work record. The plaintiff has suffered from Crohn's disease since his late teens. In July, 2000 the reason ascribed for not sending the plaintiff on a buying trip to the Far East was the concern of the defendant's Managing Director, Margaret Heffernan, that he might get ill because of his medical condition. The plaintiff's evidence was that it was at that stage that he felt that the defendant was stopping him from doing his job and that he thought there was "something bizarre going on". In the following month, August 2000, at the behest of Mrs. Heffernan, the plaintiff was requested to report to the defendant's Human Resources department on his medical condition. In October, 2000 the plaintiff was informed by his departmental head, David McDermott, that he was to be transferred from buying back to store management. The plaintiff's colour-blindness was adverted to in this context. Eventually, on 22nd November, 2000 the plaintiff was informed that he was to be moved to the defendant's store in the ILAC Centre in Dublin as either department manager of menswear or ladies” wear. This assignment was perceived by the plaintiff as a demotion. His response was to seek a meeting with Mrs. Heffernan.

4 That meeting was facilitated and it took place on 23rd November, 2000. The outcome of the meeting was that it was agreed that the plaintiff would go back into store management, that he would start in the defendant's store in Blanchardstown Shopping Centre, which at the time was regarded as the defendant's "flagship" store, that he would undergo training there with a view to "fast tracking" him through store management so that he could be appointed as store manager or a regional manager within six to twelve months. It was the plaintiff's understanding that he would start work in Blanchardstown on 4th December, 2000 and that he would start in the ladies” wear department. It is clear on the evidence that the plaintiff was unhappy about the change, but I am satisfied on the evidence that he was prepared to make the most of it. However, because of a series of unfortunate incidents, the plaintiff's career with the defendant ended within six months.

5 The first of those incidents was that when the plaintiff arrived at work in the defendant's head office in Stephen Street on 27th November, 2000 there was an email awaiting him directing him to report for duty that day in Blanchardstown. He was to take up a position in the homewares, not ladies” wear, department. The plaintiff was upset by this direction, which he considered to be at variance with his agreement with Mrs. Heffernan. He tried to contact Mrs. Heffernan but she was not available. The evidence was that she had gone abroad. The plaintiff did not go to Blanchardstown. The next day he was contacted by John McNiffe, who was the director of store operations at the time. Mr. McNiffe's evidence was that he had received a phone call from Mrs. Heffernan asking him to deal with the plaintiff. Mr. McNiffe and the plaintiff had three meetings. At the first, on 28th November, 2000, there was no resolution because Mr. McNiffe directed the plaintiff to go to Blanchardstown but the plaintiff would not agree to go until he had spoken with Mrs. Heffernan. The matter was left on the basis that the plaintiff would "sleep on it" and they would meet again the following day. There were two meetings on 29th November, 2000. At the first, that morning, the plaintiff maintained the position that he needed to speak to Mrs. Heffernan to clarify issues. The plaintiff had brought a statement which he read to Mr. McNiffe. Mr. McNiffe asked for a copy of the statement but the plaintiff refused to give it to him. Mr. McNiffe adjourned the meeting until 5 o'clock the same day. The plaintiff's evidence was that Mr. McNiffe told him to have "another think" about what he was saying and this is consistent with Mr. McNiffe's evidence. On the resumption of the meeting the plaintiff adopted the same position as he had adopted previously. Mr. McNiffe suspended him from work with pay because he would not go to Blanchardstown. Following his suspension, the plaintiff's solicitors entered the fray on his behalf.

6 In their first letter dated 7th December, 2000 the plaintiff's solicitors quoted the prepared statement which the plaintiff had read to Mr. McNiffe on 29th November, 2000, which was in the following terms:

"I have had the opportunity to give the matter further thought. Nothing has changed overnight. I would ask again that I have the opportunity to meet with Mrs. Heffernan before I go to Blanchardstown in that we can clarify some of the commitments or promises that she made to me to discuss some of the issues that have arisen since my meeting with her on 23rd November.

I am quite happy to go to Blanchardstown on the terms that I agreed, together with Mrs. Heffernan, in our one to one meeting last Thursday and I will adhere to those terms and I am quite happy to fulfil my part and carry out Mrs. Heffernan's personal request to me regarding my change of direction within the company. Remember, that all I want is to be treated fairly and honourably after twenty years of service to the company."

7 In their letter, the plaintiff's solicitors...