Huley v an Post

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 06 October 2017
• Neutral Citation: [2017] IEHC 568
• Docket Number: [2009 No. 2741 P.]
• Court: High Court
• Date: 06 October 2017

[2017] IEHC 568

THE HIGH COURT

McDermott J.

[2009 No. 2741 P.]

BETWEEN

CATHERINE HURLEY

PLAINTIFF

AND

AN POST

DEFENDANT

Tort – Damages & Restitution – Workplace bullying – S. 3(1) of the Statute of Limitations (Amendment) Act 1991 as amended by s. 7(a) of the Civil Liability and Courts Act 2004 – S. 8 of the Safety Health at Work Act, 2005.

Facts: The plaintiff filed a claim for damages for negligence and breach of duty against the defendant arising out of alleged bullying by her co-workers after an incident wherein a co-worker had assaulted the plaintiff at the workplace. The defendant contended that the plaintiff's claim was statute barred as the time began to run from the date of the alleged assault. The defendant also contended that it had suspended the services of the concerned employee immediately after the subject incident and thus, there was no negligence on the part of the defendant.

Mr. Justice McDermott held that the defendant was liable for the bullying and harassment that the plaintiff had suffered from her co-workers. The Court held that the date of assault was not the effective date for the purpose of s. 2(1) of the Statute of Limitations (Amendment) Act 1991. The Court found that the date on which the plaintiff became aware that she had suffered significant injury because of receiving bullying from her colleagues was the effective date for bringing the present claim. The Court noted that despite knowing that the plaintiff's colleagues were constantly harassing the plaintiff over the subject incident, the defendant had failed to ensure the safety of the plaintiff. The Court observed that the defendant should have taken reasonable steps under s. 8 of the Safety Health at Work Act, 2005 keeping in mind the magnitude of the risk of harm and preventing it further.

JUDGMENT of Mr. Justice McDermott delivered on the 6th day of October, 2017

1 The plaintiff's claim is for damages for negligence and/or breach of duty and/or breach of contract against her employer arising out of alleged bullying by her co-workers following an incident which occurred at her workplace on 26th July, 2006.

2 The plaintiff was born 6th October, 1964. She is a married lady and has two children. She was employed by An Post on 25th August, 2003 in a part-time position. She served under various contracts of employment between August 2003 and July 2011 as an ancillary postal sorter at the Cork Mail Centre, Little Island, Co. Cork. Her duties consisted mainly of video-coding mail. A good deal of this work was sedentary but also involved periods during which she would use a trolley to gather items of post from colleagues where the address had been mis-read by the computerised system or could not be read. She was employed in the centre for five four and a half hour shifts on Monday to Friday and a four hour shift on Sunday which attracted over-time. She said that she enjoyed the social side of work meeting people at breaks, for lunch and/or social drinks on Friday evening. She considered that she was friendly with most of her colleagues and got on well her with co-workers and management.

The Incident of 26th July 2006

3 On 26th July, 2006 while she was collecting postal packets with a trolley she asked a work colleague Mr. J. to pass items to her. She knew him to see but had no direct contact with him before this incident. He looked at her. He took some postal packets and fired them into the trolley. His eyes were bulging and he seemed really angry. She could not understand why he was behaving in this manner. She tried to get away from him immediately. The plaintiff's evidence is that she was shaking and in fear. He approached and came very close, almost nose to nose with her. He told her aggressively not to 'f... tell me what to do'. She was afraid that he was about to head-butt her. His nose was touching her nose when he uttered these words. As he said the words he pulled the trolley. She said that she was afraid of her life of him. She accepted that there was no other physical contact made by Mr. J with her in the course of the incident.

4 The plaintiff met her supervisor immediately afterwards who asked whether she was alright. She was brought to the office and asked to fill in an incident report. Ms. Paula McNamara who also witnessed the incident drove her home. While being driven home she was shaking. She had never experienced such an incident. She told her husband and father about the incident which she found very frightening. She said she was unable to return to work immediately.

5 The plaintiff returned to work on 15th August, 2006. Mr. J. was not working there at the time having been suspended. When she returned to work in the coding room she greeted her fellow employees but it was as if she had not spoken. There were three of four co-workers there at the time. She knew that there had been some resentment at the perceived treatment of Mr. J. in the wake of the incident but had not been prepared for how bad the atmosphere was. At approximately 5:50pm a colleague sat down beside her. She was the first person to say hello to her and welcome her back. She suggested that 'she should not give into the atmosphere ...and she should stick it out'. At 6:15pm she went out to the bench area for her break. There were a number of benches at which her colleagues took their break. She sat at a bench but when others came out they all sat separately from her. They did not engage with her or speak to her. She felt that her colleagues blamed her for the events of the 26th July and the repercussions of the incident for Mr. J. She returned to the coding room after the break but was told by her supervisor that she could go home between 8 and 9pm.

6 The following day at approximately 6pm she was approached by the Human Resources Manager, Mr. Ned Keane who asked how she was. She told him of her difficulties which he appeared to know about. She complained that people were ignoring her. He suggested that she give them time and advised that '[it] will die down'. She gave full details to him of what was happening. She complained to another supervisor Mr Harrington some three weeks later.

7 The plaintiff explained how matters deteriorated. She felt that people were "blanking" her but when she complained about this she was ignored. People went out of their way to be disobliging and would deliberately inconvenience her in ways that were petty but relentless. She felt that 75% of her colleagues were ignoring her. This continued into September and October 2006. She felt she was being ostracised and that it was getting worse. Small incidents occurred. When commencing a shift, she was obliged to sign in. Pens were supplied for this purpose. She described how these were habitually removed by others signing in to inconvenience her. On other occasions doors were slammed in her face.

8 In November 2006 matters were not improving. She became very nervous about going to work and felt increasingly isolated there. On some shifts she never spoke to anybody. She experienced continuing pressure coming up to Christmas and was made to feel unwelcome to attend the Christmas staff gathering.

9 There was a high level of tension amongst the workforce of 132 employees followed the incident on the 26th of July. Immediately afterwards Mr. J. was suspended due to his alleged behaviour towards Mrs Hurley and his gross insubordination towards management staff dealing with the issue. He allegedly pushed them and was verbally abusive and truculent towards them. He later attempted to return to the workplace. The Gardaí had to be called to ensure that he did not. Management remained on duty on the gates to prevent him from gaining access to the premises. During this period the plaintiff remained out sick. She believed that the trade union supported Mr. J. in his dealings with management and that she was not offered any support. She concluded that she was victimised by her colleagues following her return and Mr.J's suspension and ultimate dismissal. Most of her work colleagues considered that his dismissal was unfair. She considered that her ostracisation and isolation by her colleagues occurred because they blamed her over what happened to Mr. J.

10 The plaintiff spoke to a number of people including Mr. McCarthy her supervisor and Mr. Ned Keane, the Human Resource Manager and Mr. Harrington. She attended her general practitioner Dr. Lucy Fleming on 5th January, 2007. She did not attend work after the Christmas break from the 28th December as she felt unable to cope with the stress. She obtained a medical certificate for a further ten days and was encouraged to discuss her situation with her supervisor with a view to resolving the matters with her colleagues. When she returned to work the same isolation continued.

11 The plaintiff was unaware that there had been a number of similar incidents prior to this incident between Mr. J with other employees and management. It was suggested to the plaintiff in cross-examination, that she did not make any attempt to communicate with her co-workers on her return. In addition, it was suggested that there were a large number of pens available at signing in. Some people tended to walk away with the pens but there were a sufficient number of pens for staff to register their attendance. Furthermore, it was suggested that the slamming of the doors did not occur because the doors were spring-loaded and could not be slammed. It was also pointed out that she had not identified any co-worker who had allegedly slammed a door in her face. In essence it was suggested that the doors could not be slammed because they had a retarding mechanism which prevented that happening. No technical evidence was adduced to support this proposition. It was suggested that she was not treated in the way alleged and if she was that it did not qualify as behaviour tantamount to...