John O'Connell v Building and Allied Trades Union, Edward Morris, Patrick O'Shaughnessy and Michael McNamara

JurisdictionIreland
JudgeMs. Justice Power
Judgment Date15 October 2021
Neutral Citation[2021] IECA 265
Docket NumberRecord Number: 2018 420
Year2021
CourtCourt of Appeal (Ireland)
Between/
John O'Connell
Plaintiff/Appellant
and
Building and Allied Trades Union, Edward Morris, Patrick O'Shaughnessy and Michael McNamara
Defendants/Respondents

[2021] IECA 265

Faherty J.

Haughton J.

Power J.

Record Number: 2018 420

THE COURT OF APPEAL

UNAPPROVED

JUDGMENT of Ms. Justice Power delivered on the 15 th day of October 2021

1

. This is an appeal against a judgment and order of the High Court [2018] IEHC 815 in which O'Connor J. made an award of damages arising from a breach of the appellant's constitutional right to earn a livelihood. It raises the question of the nature and measure of appropriate damages for the breach that occurred in this case.

Background
2

. The appellant is a block layer by trade. For several years, he operated as a sub-contractor to different builders within the State and was the holder of a C2 certificate from the Revenue Commissioners (‘Revenue’). This certificate entitled him to work as a self-employed sub-contractor on building sites. 1

3

. For a certain period, which shall be considered later in this judgment, the appellant was refused membership of the Building and Allied Trades' Union, the first-named respondent (hereinafter, ‘BATU’ or ‘the respondent union’). According to the appellant, this union held a monopoly position in the Limerick area where he had sought to earn his livelihood. It was BATU's policy that the union existed to protect workers who were in direct employment (or unemployment) and to limit its membership to employees of building contractors who could provide confirmation from Revenue that they did not hold a C2 certificate.

4

. In the 1970s and 1980s, BATU was rather lax in its application of its policy. In the 1990s, however, it adopted a stricter approach and refused trade union membership to holders of a C2 certificate. At the time when BATU's policy had not been strictly applied, the appellant had been a member of the union. However, when he left in the 1990s to work abroad, he did not pay his union dues and, thus, his membership lapsed. Upon his return to Ireland in 1997, he sought to re-join the union as building contractors in the Limerick area would only engage block layers who were members of BATU. By this time, of course, BATU was applying its membership policy, strictly.

5

. As noted, the stricter approach adopted by BATU meant that membership was open only to ‘ workers’, defined in its Rules as ‘ persons in direct employment or unemployment’ and not those holders of a C2 certificate. From 1997 to 1999, the appellant was unwilling to provide a statement from Revenue confirming that he did not hold a C2 certificate. As it later transpired, this was because he did, indeed, have a C2 certificate at that time.

6

. When his C2 certificate expired in 1999, the appellant applied, again, for membership of BATU, this time furnishing the requisite confirmation from Revenue. He was granted union membership for a probationary period, commencing on 1 November 1999. However, when his probation period ended on 31 December 1999, he was not granted full membership status.

Procedural History
7

. The appellant commenced these proceedings against BATU and three named officials (the second, third and fourth respondents herein) by way of plenary summons dated 16 October 2002. Later, on appeal to the Supreme Court, the Construction Federation of Ireland (‘CIF’) was joined to the proceedings [2012] IESC 36, [2012] 2 I.R 371.

8

. When the trial came on for hearing before the High Court in April 2018, the appellant claimed that BATU had conspired to prevent him from working, that he had been intimidated by its officials, and that he had been blacklisted as an employee. He also claimed that his constitutional right to work had been infringed. Being refused membership of BATU meant that he could not find work in the Limerick area and he claimed that it was essential for him to work locally as he had a child with additional needs. At that time, the appellant was represented by solicitors.

9

. Delivering judgment on 17 July 2014 ( [2014] IEHC 360), the High Court (Ryan J.) held that the case against the CIF failed. However, it found that the appellant had been wrongly excluded from BATU, that it had perpetrated conspiracy and intimidation against him and that it had breached his constitutional right to earn a livelihood. Important in this appeal is the fact that the Ryan J. judgment determined only the issue of liability observing (at para. 139) that the assessment of damages was to be held over for a later date. He stated:

“There will be a separate hearing to assess the plaintiff's damages taking into account the impact of the defendants' wrongs on the plaintiff's earning capacity and his rights. It does not follow from my findings that the plaintiff is entitled to be compensated for all the time from when the wrongs were first done to him. It will be for him to prove all the elements of loss actually sustained and properly recoverable, subject to any legally appropriate reductions. That hearing will also consider injunctive and ancillary reliefs.”

10

. The respondents appealed the judgment on liability and the High Court's assessment of damages was, accordingly, postponed.

11

. On 17 November 2016, the Court of Appeal (Peart J.) [2016] IECA 338, upheld the High Court's finding of a breach of the appellant's constitutional right to work but did not find sufficient evidence to support the findings of conspiracy and intimidation. It then remitted the matter to the High Court for an assessment of damages.

12

. On 12 April 2018, O'Connor J. assessed general damages in the sum of €15,000 for the established breach of the appellant's constitutional right to earn a livelihood and refused all other claims for damages. It is in respect of that judgment of O'Connor J. that the appellant brings this appeal.

Established Findings on Liability
13

. To determine this appeal in respect of damages, it is necessary to examine with some precision the established findings made in respect of liability. For that reason, the judgment of the Court of Appeal (Peart J.) on the issue of liability requires some scrutiny.

The ‘wrongful exclusion’ claim
14

. In relation to the claim that the appellant had been prevented from joining the union, Peart J. considered that this fell to be assessed in respect of two distinct periods: the first was the period prior to the appellant's probationary membership, namely, from December 1997 to October 1999 (‘the pre-probationary period’) and the second was the period of the appellant's probation, namely, from 1 November 1999 to 31 December 1999 (‘the probationary period’). After this, the trial judge noted that the appellant never received a full membership card after the probationary period had ended (‘the post-probationary period’).

15

. The Court of Appeal was satisfied that the appellant's non-admission to BATU in the pre-probationary period was not due to a refusal to allow him to join the union but was based rather on the fact that the appellant, as the holder of a C2 certificate, did not qualify for membership. Peart J. noted that during cross-examination it was elicited from the appellant that he had, indeed, held a C2 certificate at the relevant time. As it was BATU's policy to protect workers in direct employment or unemployment only and not self-employed sub-contractors, the Court of Appeal was satisfied that the appellant had not been wrongfully excluded from membership of BATU during the pre-probationary period.

16

. Upon furnishing BATU with a letter from Revenue confirming that he no longer held a C2 certificate, the appellant commenced a probationary period of union membership on 1 November 1999. His probation ended on 31 December 1999. He had complained that during this period, a site on which he was working was visited by Mr. McNamara (from BATU) and that he was told that he was breaking union rules without being informed of the precise rules in respect of which, allegedly, he was in breach. He also claimed that he had suffered intimidation and was coerced or forced into leaving various jobs.

17

. Peart J. was satisfied that on 11 October 1999 (which preceded the probationary period) Mr. McNamara, then BATU branch secretary in Limerick, had visited the Stephen Finn Construction site where the appellant was working and that following this visit, the appellant had been ‘ let go’. 2 When this happened, the appellant had made several attempts to contact Mr. Morris (the area manager) but his calls had not been returned. When the appellant called to Mr. Morris' home on the 13 October 1999, an altercation ensued. That altercation was resolved but it resulted in a condition of ‘no contact’ being inserted into the probationary agreement.

18

. Whereas the High Court had found in favour of the appellant's claims of wrongful exclusion pertaining to his probationary period, the Court of Appeal concluded that the evidence did not support a finding that anything of an illegal nature had occurred during this time. As noted, it accepted (at para. 82) that Mr. McNamara had called to the Finn Construction site in October 1999 but there was nothing to suggest that he had issued an ultimatum that unless the appellant was ‘let go’ the other masons would stage a walk-off. Moreover, contrary to the view of the trial judge, Peart J. found that there was no evidence to support a finding of conspiracy or intimidation on the part of BATU.

19

. Having examined the evidence that had been adduced before the High Court, the Court of Appeal concluded that during the probationary period the appellant had not been wrongfully excluded from union membership because at that time he was, in fact, the holder of a valid probationary membership card.

Wrongful Exclusion Post-Probation
20

. At the end of the 8-week probationary period, the appellant was not admitted...

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