Cronin v Kostal Ireland
Tort – Harassment – Emotional shock – Psychological injury – Conduct of defendant – Requirement to fill out productivity sheets – Whether defendant’s conduct is tolerable in law – Relationship between conduct and injury
MR. JUSTICE HAUGH: This is a claim for damages brought by the plaintiff for emotional shock and psychological injury, allegedly suffered by her arising out of events that primarily occurred on two nights in April of the year 2000 whilst she worked as a factory operative in the defendant’s premises at Kostal Ireland Limited in Abbeyfeale, county Limerick.
The events giving rise to these protracted proceedings started from a very small acorn indeed. Management at the Kostal plant had decided, as a means of checking on productivity or checking on the efficiency of their systems, that employees should henceforth be asked to fill up a document that has become known in these proceedings as the “white sheet”, whereby certain employees should be required to account for their productivity on an hourly basis. If they didn’t meet their targets hour by hour there was provision on the sheet to give a short explanation as to why this was not so.
Whilst it was to some extent a duplication of information already contained on blue forms that were filled in as a matter of course by those employees, the blue forms contained information accumulated on a per shift basis rather than an hourly basis.
We live in a world of men in white coats with clipboards. It is the prerogative of management to decide what information they seek to acquire. They felt as management they were entitled to require their employees to provide this information.
The plaintiff took exception to this request because she felt that the in-house practices that had regulated work activities in the plant had required that these should have been discussed and approved by the union in the first instance. She claimed that this new system was being introduced or forced upon her without any or any adequate consultation or without any union approval.
I am satisfied that when asked to fill up the white form that her declining to do so was expressed in a forcible fashion. She says that she had enjoyed good relations with staff and with the three persons who we are concerned with here prior to these events. It would seem inexplicable that she should have been picked upon by people unless she had been seen by them as the person most vocal in opposition to the filling in of the forms in question.
They sought to prevail upon her to fill up the forms. She declined to do so. She said she wanted to see her contract. She accepts that there would be nothing in her contract that would deal with minutiae such as
this, but that would indicate in terms whether she had to fill out a form such as this. She says she wished to know of her obligations under her contract.
In any event, she didn’t fill up the forms. She said some others did not fill up the forms. She worked on to the completion of her nightshift, some time at 7.30 or thereabouts the following morning. She came on duty the next evening and the question of the forms was there again. They were still at this impasse. I am satisfied that she was again told that it was her duty to fill up the forms. I am satisfied that she had declined to do so, that she stated that she would not and that this then led to the implementation of a form of disciplinary reaction of a sort contemplated and set out in the union agreement that had been negotiated between Kostal Ireland Ltd. and SIPTU. This was a unionised factory when the plaintiff had taken up employment with Kostal she had signed a contract of employment and one of the terms in that contract was that she was expected to join the union. The union that she was then expected to join was the ITGWU. She had been given a booklet that contained the union agreement and this was considered by all parties as something that should regulate the terms of engagement between staff employed in the factory and the management thereof.
There has been a lot of evidence as to how the matters evolved over the first evening and over the early part of the next nightshift. But ultimately management decided that this was a willful or a deliberate refusal to perform work that that was Group C type of misconduct; Group C being a category of misconduct set out in the union agreement, to which I referred, that being: “(1) a refusal to do assigned work”. Leading on, one sees in the union agreement that the consequence contemplated for a category C category-type of misconduct was a final warning and suspension. I am told that this was a disciplinary measure that had been invoked from time to time, that it was not out of the ordinary for this kind of a penalty to be imposed in the Kostal plant.
Now it seems that the plaintiff, or particularly Miss Redmond, the primary union representative of the plaintiff, had considered that on a reading of the agreement that the penalty of a final written warning and suspension was in a sense a mandatory penalty in relation to a category C form of breach of discipline. That seems to have been on the evidence here the expected consequence was there to be such a breach of discipline. The Rights commissioner took a more benign view -- management, in fact, initially took a more benign view. The Rights commissioner took a more benign view again and interpreted the
strict mandatory way. Had I to construe them, which I don’t, I would agree with the construction of the Rights commissioner that these should be looked upon as permissible penalties rather than mandatory penalties.
The Rights commissioner when the matter ultimately came to him felt that in the circumstances, and having regard to the plaintiff’s eventual willingness to complete the forms under protest, that management had been acting inappropriately when they decided to maintain the suspension and to send her home. He decided that the written warning should be removed from her personal file.
The first question that arises here is: was the reaction of management to the plaintiff’s refusal to complete the form so inexcusable or impermissible as to confer on the plaintiff a cause of action? Because one is not entitled to seek damages for mere bad manners or mere insensitivity, but there is however an action known to the law of tort that entitles a person to compensation when they suffer a recognised psychiatric consequence of harassment, that is inexcusable conduct intentionally or recklessly handed out. Before one can succeed in an action for the willful or reckless infliction of emotional harm...
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