John O'Connell v Building and Allied Trades Union and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Ryan
• Judgment Date: 17 July 2014
• Neutral Citation: [2014] IEHC 360
• Court: High Court
• Docket Number: [No. 13328 P./2002]
• Date: 17 July 2014

[2014] IEHC 360

THE HIGH COURT

[No. 13328 P./2002]

O'Connell v Building & Allied Trades Union & Ors

BETWEEN

JOHN O'CONNELL

PLAINTIFF

AND

BUILDING AND ALLIED TRADES UNION, EDWARD MORRIS, PATRICK O'SHAUGHNESSY, MICHAEL MCNAMARA,

AND

CONSTRUCTION INDUSTRY FEDERATION

DEFENDANTS

O'CONNELL v BUILDING & ALLIED TRADES UNION & ORS 2012 2 IR 371 2013/41/11908 2012 IESC 36

INDUSTRIAL RELATIONS ACT 1946 PART III

JOEL v CAMMELL LAIRD (SHIP REPAIRERS) 1969 ITR 206

EDUCATIONAL CO OF IRELAND LTD v FITZPATRICK (NO 2) 1961 IR 345

BECTON DICKINSON v LEE 1973 IR 1

ABBOTT & WHELAN v ITGWU & ORS UNREP MCWILLIAM 2.12.1980 (EX TEMPORE)

MURPHY v STEWART 1973 IR 97 1973 107 ILTR 117

CONSTITUTION ART 40.6.1(III)

MESKELL v CORAS IOMPAIR EIREANN 1973 IR 121

YOUNG & ORS v UNITED KINGDOM 1982 ECC 264 1981 IRLR 408 1982 4 EHRR 38

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 11

SORENSEN & RASMUSSEN v DENMARK 2008 46 EHRR 29 20 BHRC 258

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 11 PARA 54

ART 26 OF THE CONSTITUTION & EMPLOYMENT EQUALITY BILL 1996, IN RE 1997 2 IR 321 1998/18/6758 1997 IESC 6

Employment – Interference with employment – Trade Unions – Contractors – Construction Industry Federation – Constitutional rights – Intimidation – Conspiracy - Evidence

The facts of this case involved the plaintiff, a block layer, and his fractured relationship with the defendants, the Building and Allied Trades Union (BATU) and Construction Industry Federation (CIF). The plaintiff alleges that BATU blocked his union membership, which did not involve the CIF, and acrimoniously interfered with the plaintiff”s employment. Additionally the plaintiff contended that the CIF entered into an agreement with the Construction Groups of the Trade Unions that resulted in a situation that employees of contractors and sub-contractors had to be members of a trade union. This new agreement essentially meant that the plaintiff had to become a member of a certain union, namely BATU in order to work. Following the plaintiff”s initial plenary summons and a long history of legal contention the issue was eventually brought before Ryan Sean J in the High Court.

Ryan Sean J considered the submissions from the various parties and carefully analysed the evidence to determine whether or not BATU were indeed in breach of the plaintiff”s constitutional rights to work by intimidating and conspiring against him. Ryan Sean J looked at the Union”s conduct toward the plaintiff, particularly how it instructed it”s members to walk off a site shared by the plaintiff and with the aid of case law such as Sorensen and Rasmussen v. Denmark (2008) 46 EHRR 29 had to determine whether this case was a closed shop case which might conflict with European Legislation. Considering all of the pertinent facts Ryan Sean J declared that

A person has a constitutional right to work, associate and dissociate. A trade union or other association has similar rights. BATU was not obliged to admit the plaintiff as a member, but equally BATU was not entitled to stigmatise the plaintiff. The Union could not legally instruct or encourage its members to walk off unless the plaintiff was dismissed. Such wrongful conduct was in breach of the plaintiff”s constitutional rights and he could sue the Union, even for the tort for intimidation. Additionally Ryan Sean J stated that a difficult person or troublesome one couldn”t justify a policy by the trade union of excluding the worker not only from the Union but from working at all. It was an unlawful conspiracy for BATU to instruct its members to walk off a site because the plaintiff was employed there. Ryan Sean J. held that plaintiff”s claim succeeded against BATU and its officials for breach of constitutional rights, conspiracy and intimidation. In regards to the plaintiff”s case against the other defendants, the CIF, Ryan Sean J. decided that the claim against the CIF must fail; it is statute barred for a long time and there is no evidence of conspiracy or even agreement between the confederation and the Union. Ryan Sean J decided that there was no evidence of conspiracy on the part of the CIF with BATU or the other defendants to deprive the plaintiff of work as a block layer in Limerick at any material time. The claim against the CIF accordingly fails and will be dismissed.

Mr Justice Ryan

1 The plaintiff is a litigant in person who pursued and conducted this lengthy and complex litigation with determination and resourcefulness. He alleges that the Building and Allied Trades Union ("BATU" or "the Union") and its officials firstly deprived him of membership and then sought to prevent him from working because he was not in the Union, conduct that together or separately he claims to have been unlawful or unconstitutional. The plaintiff says that his capacity to earn a living was severely diminished as a result and the situation has continued from 2000 to date.

2 The plaintiff issued his plenary summons in 2002 against the Union and three officials. He applied to join the Construction Industry Federation ("CIF") as another defendant at a very late stage in the litigation process, claiming that it conspired with the other defendants to keep him out of work, and succeeded on appeal to the Supreme Court in a decision of June, 2012. He now seeks injunctions and damages. The defendants have filed full defences denying the plaintiff's claims and the CIF relies on the Statute of Limitations.

3 Mr Karl Sweeney, Barrister, appeared for the BATU defendants; Mr Mark Connaughton S.C. and Ms Lorna Lynch BL acted for the CIF.

4 Mr John O'Connell was born in Canada of Irish parents and came to live in Limerick in or about 1978 when he was in his twenties. He qualified as a blocklayer through AnCO and worked on building sites in the Limerick area. He joined the Ancient Guild of Incorporated Brick and Stonelayers, which later amalgamated with another union to become the Building and Allied Trades Union, the first defendant in the case.

5 Prior to amalgamation, the local representative of the Union in Limerick was the late Mr Jim Kemmy, sometime T.D. and long time trade unionist. Times were hard for building tradesmen in the 1980s with work in short supply. Mr O'Connell had a good relationship with Mr Kemmy, whom he held in high regard. He sometimes worked as a direct employee and at other times as an independent contractor under the Revenue Commissioners' C2 scheme. Although these arrangements were not in accord with union policy, Mr Kemmy took an indulgent view of them, understanding how hard it was for his members to make a living.

6 During the 1990s the plaintiff had to go abroad to get work and his Union dues fell into arrears and his membership may have lapsed. On his return in or about 1997, he again took up building work either as a direct employee or as a C2 independent contractor.

7 On the plaintiff's homecoming, he found a changed working environment in Limerick. There were new Union officials who had an uncompromising attitude on Union rules and were determined to enforce them. Following the establishment of BATU, and perhaps even before that happened, the Union began to impose a strict and even militant policy as to Union membership on building sites. There was to be no more free movement between direct employment as a Union member and work as a C2 contractor. The Union actually wanted to enforce a regime on building sites of having directly employed craftsmen only, eliminating C2 contracting. Mr O'Connell encountered this new policy when he went to revive his Union membership or to join BATU, whichever is the appropriate description of the process.

8 The plaintiff claims that the personal defendants as officials of BATU would not let him join the Union. He claims that they imposed unreasonable conditions on membership and put up obstacles to his candidacy. Eventually, they did admit him to probationary membership but subject to unfair and even unlawful terms, specially tailored to his individual situation and not designed to suit him but rather to discomfit him. He did not graduate to full membership and further acrimony ensued.

9 Then, the plaintiff complains, the Union and its officials blacked him on building sites in and around Limerick and prevented him from getting work. He has been unable to overturn the BATU ban despite appeals to the Irish Congress of Trade Unions ("ICTU") and the Construction Industry Federation. He argues that the latter body, indeed, instead of upholding his rights, actually conspired with the other defendants in keeping him out of work.

10 In his plenary summons issued on the 16^th October, 2002, Mr O'Connell firstly sought injunctions restraining BATU and the officials from:-

(a) Intentionally or recklessly interfering with his trade, business or economic activities;

(i) Conspiring with others to commit any of the above acts.

(b) Interfering with his previous or potential future employers;

(c) Inducing breaches of his contracts of employment;

(d) Intimidating either Mr O'Connell or his employers;

(e) Interfering with his constitutional right to work;

(f) Interfering with his constitutional right to associate and dissociate;

(g) Wrongfully excluding him from membership of BATU;

(h) Watching and besetting Mr O'Connell; and

11 Secondly, he claimed declarations that BATU wrongfully and unlawfully excluded him from their organisation and had failed to consider his application for membership. Thirdly, he sought an injunction to compel BATU to treat any application made by him for membership in accordance with natural justice and with regard to his constitutional rights.

12 Finally, he claimed damages for loss, mental distress, upset and inconvenience suffered.

13 In his statement of claim delivered on the 19^th February, 2004, the plaintiff pleaded that since 1997, each of the...