McGrath v Trintech Technologies Ltd

JurisdictionIreland
JudgeMiss Justice Laffoy
Judgment Date29 October 2004
Neutral Citation[2004] IEHC 342
CourtHigh Court
Docket NumberIEHC 342./[2004],[2003 No. 10331P]
Date29 October 2004

[2004] IEHC 342

THE HIGH COURT

IEHC 342./[2004]
RECORD NO. 10331P/2003
McGRATH v. TRINTECH TECHNOLOGIES LTD & TRINTECH GROUP PLC
BETWEEN/
JAMES McGRATH
PLAINTIFF

AND

TRINTECH TECHNOLOGIES LIMITED AND TRINTECH GROUP PLC
DEFENDANT

Citations:

REDUNDANCY PAYMENTS ACT 1967

PARSONS V IARNROD EIREANN 1997 ELR 203

UNFAIR DISMISSALS ACT 1977 S15

UNFAIR DISMISSALS ACT 1977 S15(2)

UNFAIR DISMISSALS ACT 1977 S15(3)

SHEEHY V RYAN & MORIARTY UNREP CARROLL 3.2.2004

HICKEY V EASTERN HEALTH BOARD 1991 1 IR 208

JOHNSON V UNISYS LTD 2001 2 AER 801

MALIK V BANK OF CREDIT & COMMERCE INTERNATIONAL (BCCI ) 1998 AC 20 1997 3 AER 1

ORR V ZOMAX LTD 2004 ELR 161

REDMOND DISMISSAL LAW 2ED PARA 2.11

TREITEL LAW OF CONTRACT 10ED 190

ASPDEN V WEBBS POULTRY & MEAT GROUP (HOLDINGS) LTD 1996 IRLR 521

GENERAL ACCIDENT FIRE & LIFE ASSURANCE CORPORATION 1998 IRLR 641

VILLELLA V MFI FURNITURE CENTRES LTD 1999 IRLR 468

BRISCOE V LUBRIZOL LTD 2002 IRLR 607

JENVEY V AUSTRALIAN BROADCASTING CORPORATION 2002 IRLR 520

BROMPTON V AOC INTERNATIONAL LTD & UNUM LTD 1997 IRLR 639

KELLY V HENNESSY 1995 3 IR 253 1996 1 ILRM 321

FLETCHER V COMMISSIONERS OF PUBLIC WORKS IN IRELAND 2003 1 IR 465 2003 2 ILRM 94 2003 ELR 117

HATTON V SUTHERLAND 2002 2 AER 1

BARBER V SOMERSET CO COUNCIL 2004 2 AER 385

STOKES V GUEST & ORS 1968 1 WLR 1776

CROSS V HIGHLAND & ISLANDS ENTERPRISE 2001 IRLR 336

WALKER V NORTHUMBERLAND CO COUNCIL 1995 1 AER 737

GILLESPIE V COMMONWEALTH OF AUSTRALIA 1991 104 ACTR 1

MCMAHON & BINCHY IRISH LAW OF TORTS 3ED 496

CURRAN V CADBURY (IRL) LTD 2000 2 ILRM 343 2000 ILTR 140

MCHUGH V MIN FOR DEFENCE 2001 1 IR 424

SAFETY HEALTH & WELFARE AT WORK ACT 1989 S6

SAFETY HEALTH & WELFARE AT WORK ACT 1989 S12

SAFETY HEALTH & WELFARE AT WORK (GENERAL APPLICATION) REGS 1993 SI 44/1993 REG 5

SAFETY HEALTH & WELFARE AT WORK (GENERAL APPLICATION) REGS 1993 SI 44/1993 REG 8

SAFETY HEALTH & WELFARE AT WORK (GENERAL APPLICATION) REGS 1993 SI 44/1993 REG 9

SAFETY HEALTH & WELFARE AT WORK (GENERAL APPLICATION) REGS 1993 SI 44/1993 REG 10

SAFETY HEALTH & WELFARE AT WORK (GENERAL APPLICATION) REGS 1993 SI 44/1993 REG 11

SAFETY HEALTH & WELFARE AT WORK (GENERAL APPLICATION) REGS 1993 SI 44/1993 REG 13

EVERITT V THORSMAN (IRL) LTD & ORS 2000 1 IR 256

SAFETY HEALTH & WELFARE AT WORK (GENERAL APPLICATION) REGS 1993 SI 44/1993 REG 19

CONNOLLY V DUNDALK URBAN DISTRICT COUNCIL UNREP SUPREME 18/11/1992 1992/10/3226

CIVIL LIABILITY ACT 1961 S2

Abstract:

Employment law - Contract of employment - Terms and conditions - Implied term - Wrongful dismissal - Whether term that plaintiff could not be dismissed in certain circumstances should be implied into employment contract - Whether plaintiff wrongfully dismissed - Damages

Tort - Personal injuries - Duty of care - Foreseeability - Occupational stress - Damage to health of employee - Whether reasonably foreseeable - Whether breach of duty by employer not to cause stress-related injury to employee - Health, Safety and Welfare at Work Act 1989, sections 6 and 12 - Safety, Health and Welfare at Work (General Application) Regulations 1993 (S.I. No. 44), regulations 5, 8, 9, 10, 11 and 13.

the plaintiff was told by the defendant that he was being made redundant whilst he was absent on certified sick leave. He had recently returned from a posting in Uruguay which he alleged had damaged his health due to the stress suffered by him whilst working there and on his return. He alleged that one of the reasons he accepted that posting was that the defendant had guaranteed that he would be retained in his position for at least a year on his return from there. He sued the defendant for wrongful dismissal, claiming that his redundancy was invalid on the grounds, inter alia, that it was an implied term of his contract of employment that he would not be dismissed by the defendant whilst on sick leave and reliant on the prospect of claiming health insurance benefit which had been introduced by the defendant for its employees. He also alleged breach of an express term that he would be retained for a year in his position on return from Uruguay. He also claimed that the defendant had breached its common law and statutory duties not to endanger the psychiatric health of its employees.

Held by Laffoy J in awarding the plaintiff € 82,526 in damages for breach of contract in failing to retain him for a year after an assignment posting as guaranteed that a term which would be inconsistent with the express terms could not be implied into an employment contract. However, representations which were intended to vary or add to the terms of employment, which were acted on by the employee, gave rise to contractual liability on the part of the employer. Psychiatric harm suffered by an employee due to stress at work had to be reasonably foreseeable by the employer for a breach of statutory duty to give rise to liability therefor. To be liable at common law for such injury, the employer also had to have fallen below the standards of a reasonable and prudent employer.

Reporter: P.C.

1

Judgment of Miss Justice Laffoy delivered on 29th October, 2004.

Factual background to the proceedings in outline
2

These proceedings arise out of the employment by the plaintiff, who is approaching 38 years of age, with the first defendant, which, as I understand it, is a subsidiary of the second defendant. The second defendant was originally joined in these proceedings because it was apprehended that it purported to terminate the plaintiff's employment with effect from September, 2003. The second defendant, with its subsidiaries and associated companies, is involved in information technology on a worldwide basis, in particular, the development of software for processing credit card transactions and other financial payment solutions. It is listed on the Nasdaq in New York and in the Neuermarkt in Frankfurt. Its main office is in Dublin but it also has offices in Dallas, in Potters Bar in the United Kingdom, in Frankfurt and in Montevideo. In reality, there is only one defendant in these proceedings: the company which employed the plaintiff.

3

During the period 1988 to 1998 the plaintiff lived in the United States of America and worked in the information technology sector, where he gained considerable experience. On his return to Ireland in 1998 he worked on a consultancy basis for various financial institutions and companies involved in information technology.

4

The plaintiff's initial working relationship with the defendant was on contractual basis. In April, 2000 he was retained on contract as a project manager. That relationship changed in July, 2000, when he became an employee in the role of Senior Project Manager on the terms of a written contract of employment to which I will refer later. In December, 2001 the plaintiff was promoted to the position of Director of Professional Services. His immediate superior between July, 2000 and December, 2001 was Martin Downes, who was then the Director of Professional Services. Thereafter, he continued to report to Mr. Downes, who had been promoted to the position of Vice-President of Professional Services, until January, 2003.

5

While contracted as a project manager and employed as a senior project manager, the plaintiff worked on projects which took him on foreign assignments. During his first two and a half years with the defendant he suffered bouts of ill health of a physical nature, in particular, in the autumn of 2000, following an assignment in Korea, in April, 2001, while on assignment in South Africa, and in October and November, 2002.

6

While on sick leave in October/November, 2002, he was requested by the defendant to go on an assignment to Uruguay to work in a Uruguayan company, Sursoft SA, which had been acquired by the defendant in 1999. He acceded to the request and was working in Uruguay from mid-January, 2003 until the end of June, 2003, a period slightly in excess of five months. One aspect of the plaintiff's claim is that he alleges that during this period he was subjected to grave work related stress and pressure which resulted in injury to his psychological health and well-being. Another is that the terms of his employment were varied when he took up the assignment to Uruguay.

7

Following his return from Uruguay in late June, 2003, the plaintiff did not return to work. He was absent on certified sick leave.

8

On 26 th August, 2003, the plaintiff was informed by Mr. Downes and by Mr. Gerry Cleary, the Director of Human Resources, that he was being made redundant with effect from 26 th September, 2003. He was one of twelve out of one hundred and thirty employees in the Dublin office whom the defendant decided to make redundant at that time with the objective, according to the defendant, of cost-cutting against the background of a sluggish global market for the defendant's products and services. On the same day written details of the "redundancy package" were furnished to him. The package envisaged the plaintiff receiving a total payment of €27,536.52 to cover one month's pay in lieu of notice, four weeks" pay per year of service worked "including statutory redundancy" and holidays owing. The plaintiff would be required to sign a disclaimer acknowledging that the payment was in full and final settlement of all claims at common law or under statute arising from his employment and its termination.

9

The plaintiff did not accept that the defendant was entitled to make him redundant. His case was that when he took up the assignment to Uruguay he had been guaranteed that the company would retain him for a year in the post of Director of Professional Services following his return. He was also of the view that the method of his selection for redundancy was unfair and invalid.

10

These proceedings were instituted on 11 th September, 2003. On 24 th September, 2003, on an interlocutory application,...

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