Berber -v- Dunnes Stores Limited, [2006] IEHC 327 (2006)

Docket Number:2001 10522 P
Party Name:Berber, Dunnes Stores Limited
Judge:Laffoy J.


2001 No. 10522 P







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

The factual background

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.

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.

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.

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.

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."In their letter, the plaintiff's solicitors threatened proceedings if the suspension was not lifted. Further, they alleged that the defendant's conduct towards the plaintiff and the stress it had generated had resulted in him becoming ill and his doctor had certified his absence from work.

As I have stated, the plaintiff suffers from Crohn's disease. He was first diagnosed in 1978 during an operation after he presented with acute appendicitis. At the operation he had a right hemicolectomy and afterwards he was put on medication. He did well. The plaintiff has been treated by Professor Colm O Morain, Consultant Gastroenterologist, since 1994. In 1995 there was a recurrence of his Crohn's disease. Medication was prescribed and the plaintiff went into remission within three to six months. The plaintiff continued under the care of Professor O Morain who saw him regularly. By December, 1999 Professor O Morain recorded that the plaintiff was doing well and that, while he got intermittent symptoms, they were generally controlled. At that stage Professor O Morain planned to review the plaintiff again in six months. However, in the spring of 2000 the plaintiff had a flare up of his Crohn's disease. He was reviewed by Professor O Morain on 22nd March, 2000, who reviewed him again on 3rd May, 2000 after a colonoscopy and again on 19th May, 2000 after a "barium meal follow through", which showed a suspected loop bowel which was consistent with active Crohn's disease. Professor O Morain put him on infusions of Infliximab. By August, 2000 Professor O Morain found that the plaintiff was dramatically better. By November his symptoms were beginning to recur. He had another infusion of Infliximab. However, when Professor O Morain reviewed him on 13th December, 2000 he recorded that unfortunately the plaintiff had been through an excessive amount of stress with his job, that he had ended up in a legal wrangle. Professor O Morain recorded that this had not contributed to his well-being. He certified the plaintiff as being unfit for work until 28th December, 2000.

The plaintiff's absentee record in the years 1995 to 2000 mirrors the medical evidence. He missed only one day from work in the years 1995, 1996 and 1999. He had no absence in 1998. He was absent for five days in 1997 and for seven days in the year 2000 up to 21st November. That record clearly justifies Professor O Morain's opinion that the plaintiff was very positive towards his work, towards life in general and towards his disease.

Returning to the chronology of events, the defendant's solicitor's response dated 12th December, 2000 to the plaintiff's solicitor's letter sought to justify Mr. McNiffe's decision to suspend the plaintiff on the basis that the position adopted by the plaintiff at his meetings with Mr. McNiffe, his persistence in seeking to speak to Mrs. Heffernan and in refusing to explain his issues to Mr. McNiffe, was unreasonable. However, it stated that the defendant was prepared to overlook the incident provided the plaintiff reported for work in Blanchardstown as soon as his doctor certified him as being...

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