The Supreme Court allowed Dunnes Stores’ appeal against most of a High Court judgment in favour of former employee Adam Berber, setting aside the findings on wrongful dismissal and personal injury. It left standing a €9,079 award for Christmas and annual bonuses, with interest at the Courts Act rate from 1 June 2001.
In a judgment delivered by Mr Justice Finnegan on 12 February 2009, the court considered whether Dunnes had repudiated Berber’s employment contract by breaching the implied obligation to maintain trust and confidence, and whether its conduct caused him personal injury.
Berber had worked for Dunnes since 1980, including as a buyer. In late 2000, the company decided to move him back into store management. He objected to the role and arrangements at its Blanchardstown store, was suspended with pay after refusing an instruction to report there, and later took sick leave. The High Court found that Dunnes’ handling of the situation, in light of its knowledge of his precarious physical and psychological health, amounted to oppressive conduct that damaged trust and confidence. It also found that his work situation prolonged his ill health and awarded damages.
The Supreme Court assessed the parties’ conduct after a meeting on 23 November 2000, considering both individual incidents and their cumulative effect. It found that Dunnes was entitled to transfer Berber from buying to a suitable store-management role. His refusal to report to Blanchardstown until he could speak with a senior executive was unreasonable; the company’s decision to suspend him with pay, rather than dismiss him, was not unreasonable in the circumstances.
The court also considered the roster that described Berber as a “new trainee”, the training plan, the circulation of a correction, missed management meetings and a dispute over working hours. It treated the roster description as a mistake, found that the company made reasonable efforts over the training plan, and concluded that the narrower circulation of the correction did not amount to a contractual breach. It also found Berber’s conduct during the May 2001 working-hours dispute unreasonable. Taken together, the company’s conduct did not amount to repudiation of the employment contract, so his constructive-dismissal claim failed.
On personal injury, the court accepted that the employer knew from a solicitor’s letter dated 7 December 2000 that workplace stress was affecting Berber’s Crohn’s disease. But it concluded that the incidents relied on, individually and cumulatively, did not make the psychiatric or physical injury reasonably foreseeable in a way that required further action by the employer. The personal-injury claim therefore failed. The appeal was allowed, subject to the €9,079 bonus award and interest.