Sharkey v Dunnes Stores

• Jurisdiction: Ireland
• Judge: JUSTICE T.C. SMYTH
• Judgment Date: 28 January 2004
• Neutral Citation: [2004] IEHC 163
• Court: High Court
• Docket Number: 147slp/2001
• Date: 28 January 2004

[2004] IEHC 163

THE HIGH COURT

147slp/2001

SHARKEY v. DUNNES STORES

DUBLIN

MR. SEAN SHARKEY

Plaintiff

DUNNES STORES (IRELAND) Limited

Defendant

Citations:

GARVEY V IRELAND 1981 IR 76

GUNN V BORD AN CHOLAISTE NAISIUNTA EALAINE IS DEARTHA 1990 2 IR 168

O'DONNELL V DUN LAOGHAIRE CORPORATION 1991 ILRM 301

MOONEY V AN POST 1998 4 IR 288

JOHNSON V UNISYS LTD 2001 2 AER 801

SIMAAN GENERAL CONTRACTING CO V PILKINGTON GLASS LTD (NO 2) 1988 1 AER 791

VINE V NATIONAL DOCK LABOUR BOARD 1956 1 AER 1

CONWAY V INTO 1991 2 IR 305

Abstract:

Injunction - Declaratory relief - Employment law - Termination - Wrongful dismissal - Whether plaintiff entitled to damages for infliction of emotional suffering - Injunction - Whether injunction restraining plaintiff’s termination should be granted.

the plaintiff sought an injunction restraining the defendant from terminating his employment and damages for the purported termination of his employment, including for emotional suffering. He had been called to a meeting where he has told that he was immediately dismissed. He considered himself dismissed and treated unjustly. The plaintiff had been paid a salary by the defendant after the purported termination upto the hearing of the action.

Held by Smyth J in dismissing the plaintiff’s claim that the mutuality of trust and respect to sustain a viable employer/employee relationship had irreversibly and irretrievably broken down as a result of the events between the parties and that accordingly injunctive relief could not be granted. Foreseeability of harm of emotional suffering did not automatically lead to a duty of care by an employer.

Obiter dictum: that an employee had not right at common law to recover financial losses arising from the unfair manner of his dismissal, because a contrary conclusion would be inconsistent with the statutory scheme for dealing with unfair dismissals.

Reporter: P.C.

JUSTICE T.C. SMYTH

DELIVERED ON WEDNESDAY, 28TH JANUARY 2004

1 I hereby certify the following to be a true and accurate transcript of the judgment in the above-named hearing.

2 The Plaintiff seeks injunctive relief, declaratory relief and damages arising out of what he terms his purported termination of employment by the Defendant on either 2nd or 3rd October 2001.

3 The Plaintiff was born on 18th May 1953, and having completed his secondary school education he obtained his Leaving Certificate. He obtained temporary work with a Health Board for a short period and at age nineteen, in 1972, he went to work for the Defendants. In reality, he was employed by the Defendants, and no one else, for the entirety of his working life. He worked in several different locations in various capacities — he clearly gave satisfaction to his employers and ultimately, in October 2001, he was in a managerial capacity in the Defendant's store at Ard Easmuinn, Dundalk, County Louth. At that time his gross annual salary was £46,500, holiday allowance £2,000, VHI subscription £1,400, bonus £8,000, discount vouchers £1,400, and Sunday unsocial hours allowance £1,500; total £60,800 (euro equivalent 72,200): in addition thereto, he had a company car.

4 The Plaintiff married in 1976 and has five children, three of whom, as of January 2003, were dependent on him, and one of the three is disabled and likely to remain so. Over the years the Plaintiff sought to improve the lifestyle of his wife and family as his financial circumstances improved over the years.

5 On 3rd October 2001, at 3.15pm, the Plaintiff received a telephone call from a Mr. Beggan, an Area Manager of the Defendant's, directing the Plaintiff to meet at 5.00pm at the Hotel Kilmore, Cavan. The Plaintiff was to meet Mr. Beggan and Mr. Tim O'Mahony (whom the Plaintiff knew to be the head of Personnel of Dunnes Stores). Mr. Beggan did not elaborate on the purpose of the meeting despite enquiry from the Plaintiff. The Plaintiff became apprehensive as he "had heard that on previous occasions store managers had been rung up in their store and asked to attend hotels and the outcome of the meetings were that they were let go". It seems that there was considered amongst the staff to be a "list" which existed and that the Plaintiff feared that he was now on it. He was aware that Messrs Gallagher, Walsh and Cudsaya, and several more departed the Defendant's employment in circumstances into which he was being directed to place himself. He did acknowledge that there was no "list" to which he could formally point to and accepted that there was no known policy to let people go at age fifty. The Plaintiff was sufficiently concerned about the terms of the direction that he contacted his wife to accompany him to the meeting.

6 On arrival at the hotel at around the appointed time (Dundalk being some 55 miles away from the specified venue), the Plaintiff and his wife were met in the hotel foyer and when the Plaintiff asked Mr. O'Mahony what was on the agenda for the meeting, he was told "you are the agenda". As this hotel was in the Plaintiff's own home town, this was — from the Plaintiff's perspective — a very inauspicious and embarrassing prelude to the meeting which took place immediately thereafter in a room in the hotel.

7 In the hotel room were the Plaintiff and his wife and Messrs Beggan and O'Mahony. The defendants have given no evidence in this case. It would appear that the only real participants in the meeting were the Plaintiff and Mr. O'Mahony. The undisputed evidence of what took place at the meeting is that of the Plaintiff himself.

8 The meeting began (after social introductions) by Mr. O'Mahony stating that "the company has reviewed its future plans and you are no longer part of their future plans". Despite repeated requests by the Plaintiff, who was shocked by this information, he was never told what the plans were or why he did not figure in them. He felt, as he had an unchallenged and blameless record with the company and given thirty years' loyal service, that he was at least entitled to an understandable reason to him for the termination of his employment. The only response to the explanation he was seeking was a reiteration of the statement given at the outset of the meeting. It is clear from the Plaintiff's evidence that Mr. O'Mahony spoke from a written, prepared statement. The Plaintiff was, however, assured that he was not being made redundant. It was, however, made perfectly clear to him that he was not to go back to the store in Dundalk, in which only two and a half/three hours earlier he was in a managerial position. The Plaintiff considered himself dismissed and treated unjustly — the Defendant viewed the matter as a termination of employment, not a case of dismissal.

9 At the end of the meeting the Plaintiff was handed the document from which evidently Mr. O'Mahony was reading, which is dated 2nd October 2001 (which on balance I am inclined to believe was a mistake). It contains the terms and conditions upon which the Defendant was terminating the Plaintiff's employment; on it were contained the names of two persons (for whose fees the Defendant would be responsible), one of whom might assist the Plaintiff in seeking employment and the other to tender advice on taxation matters. I am satisfied that the Plaintiff was annoyed and, in his own words, "boiling with rage". Such may not have been a helpful response, but it is in all the circumstances understandable. It is accepted that at the end of the meeting Mr. O'Mahony said "same...