Betty Cronin (plaintiff) v. Kostal Ireland Ltd (defendant)
Tort & Claim of harassment in the work place & Employee refused to fill up form in respect of productivity & Onus of proof - Whether demand for its completion could ground a claim for damages for emotional shock and psychological injury & Conduct of the defendant & Whether defendant's conduct tolerable in law & Relationship between conduct and injury.
The High Court (Mr Justice Haugh): Ex tempore judgment delivered December 1st , 2005.
Before one can succeed in an action for the wilful or reckless infliction of emotional harm there must be a form of harassment or a form of misconduct found on the part of the defendant that any right minded right thinking person would consider to be gratuitous or reprehensible. It must be done either with the intention of humiliating or embarrassing the butt of the harassment, or it must be done where there is a risk of such an adverse reaction and that risk is unjustifiably run.
The law only seeks to give rights to people who have been truly wronged in a very specific way. They are not entitled to compensation for wounded pride or wounded feelings merely because they have been treated, as they would see it, rudely or insensitively.
To succeed in an action a plaintiff must go further than to show that they were victimised or picked on, or that the conduct to which they were exposed was carried out vindictively, a plaintiff must show that it was the kind of conduct that would reasonably foreseeable cause the plaintiff to suffer a psychological consequence of the sort that can give rise to a claim for damages.
The High Court so held in dismissing the plaintiff's claim.
Padraig McCartan SC and Joe Revington SC with Michael M. O'Se BL for the plaintiff; Ercus Stewart SC with Eoin M. Murnaghan BL for the defendant.
Mr Justice Haugh said this was a claim for damages for emotional shock and psychological injury, allegedly suffered by her arising out of events that primarily occurred on two nights in April, 2000, whilst she worked as a factory operative in the defendant's premises in Abbeyfeale, Co Limerick. The events giving rise to these protracted proceedings started from a very small acorn.Management at the defendant's plant had decided, as a means of checking on productivity or checking on the efficiency of their systems, that employees should henceforth be asked to fill up a document that has become known in these proceedings as the "white sheet", whereby certain employees should be required to account for their productivity on an hourly basis.
If they didn't meet their targets hour-by-hour there was provision on the sheet to give a short explanation as to why this was not so. Whilst it was to some extent a duplication of information already contained on blue forms that were filled in as a matter of course by those employees, the blue forms contained information accumulated on a per-shift basis rather than an hourly basis.
Mr Justice Haugh said that it is the prerogative of management to decide what information they seek to acquire. They felt as management they were entitled to require their employees to provide this information.
The plaintiff took exception to this request because she felt that the in-house practices that had regulated work activities in the plant had required that these should have been discussed and approved by the union in the first instance. She claimed that this new system was being introduced or forced upon her without any or any adequate consultation, or without any union approval.
Mr Justice Haugh said he was satisfied that when asked to fill up the white form that her declining to do so was expressed in forcible fashion. The plaintiff said that she had enjoyed good relations with staff and with the three persons concerned here prior to these events. It would seem inexplicable that she should have been picked upon by people unless she had been seen by them as the person most vocal in opposition to the filling in of the forms in question. They sought to prevail upon her to fill up the forms.
She declined to do so. She said she wanted to see her contract. She accepted that there would be nothing in her contract that would deal with minutiae such as this, but that would indicate in terms whether she had to fill out a form such as this. She said she wished to know her obligations under her contract. In any event, the plaintiff didn't fill up the forms. She said some others did not fill up the forms. She worked on to the completion of her nightshift, some time at 7.30 or thereabouts the following morning. She came on duty the next evening and the question of the forms was there again. They were still at this impasse. She was again told that it was her duty to fill up the forms. Mr Justice Haugh said he was satisfied that she had declined to do so, that she stated that she would not and that this then led to the implementation of a form of disciplinary reaction of a sort contemplated and set out in the union agreement that had been negotiated between the defendant and SIPTU. On commencement of her employment the plaintiff had been given a booklet that contained the union agreement and this was considered by all parties as something that should regulate the terms of engagement between staff employed in the factory and the management thereof.
Mr Justice Haugh said that there had been a lot of evidence as to how the matters evolved over the first evening and over the early part of the next nightshift. But ultimately management decided that this was a wilful or a deliberate refusal to perform work and was Group C type of misconduct - Group C being a category of misconduct set out in the union agreement, being "(1) a refusal to do assigned work". The union agreement that the consequence contemplated for a category C type of misconduct was a final warning and suspension.
There was evidence that this was a disciplinary measure that had been invoked from time to time, that it was not out of the ordinary for this kind of penalty to be imposed in the defendant's plant. It seemed that the plaintiff, or particularly Miss Redmond, the primary union representative of the plaintiff, had considered that on a reading of the agreement that the penalty of a final written warning and suspension was in a sense a mandatory penalty in relation to a category C form of breach of discipline.
The Rights Commissioner took a more benign view and interpreted the regulations in a discretionary way rather than in a strict mandatory way. Management, in fact, initially took a more benign view. Mr Justice Haugh stated that had the court to construe them, which it did not, he would agree with the construction of the Rights Commissioner that these should be looked upon as permissible penalties rather than mandatory penalties.
The Rights Commissioner, when the matter ultimately came to him, felt that in these circumstances, and having regard to the plaintiff's eventual willingness to complete the forms under protest, that management had been acting inappropriately when they decided to maintain the suspension and to send her home.
He decided that the written warning should be removed from her personal file.
Mr Justice Haugh said that the first question that arose was whether the reaction of management to the plaintiff's refusal to complete the form was so inexcusable or impermissible as to confer on the plaintiff a cause of action? Mr. Justice Haugh said that one is not entitled to seek damages for mere bad manners or mere insensitivity, but there is, however, an action known to the law of tort that entitles a person to compensation when they suffer a recognised psychiatric consequence of harassment that is inexcusable conduct intentionally or recklessly handed out.
Before one can succeed in an action for the wilful or reckless infliction of emotional harm there must be a form of harassment or a form of misconduct found on the part of the defendant that any right-minded right-thinking person would consider to be gratuitous or reprehensible. It must be done either with the intention of humiliating or embarrassing the butt of the harassment, or it must be done where there is a risk of such an adverse reaction and that risk is unjustifiably run.
Mr Justice Haugh said that these are very important considerations because the law only seeks to give rights to people who have been truly wronged in a very specific way. They are not entitled to compensation for wounded pride or wounded feelings merely because they have been treated, as they would see it, rudely or insensitively.
Mr Justice Haugh said that the plaintiff's case was that she was victimised, that she was picked out, that the conduct to which she was exposed was conduct of a sort that the persons, her supervisors, did so vindictively.
Mr Justice Haugh said that to succeed in an action the plaintiff must go further and show that it was the kind of conduct that would reasonably foreseeable cause her to suffer a psychological consequence of the sort that could give rise to a claim for damages. The plaintiff must establish that the conduct of which she complained was done either with the intention of inflicting that kind of consequence, or that that was what should have been a foreseeable risk and that those who meted out that kind of behaviour unjustifiably saw fit to take that risk. That is what the law recognises as reckless.
Mr Justice Haugh said that when one boiled the case down to its essential ingredients it was a request or demand by management that a staff member fill up her form to give information that management at the time thought might be useful to them.
It was no concern of the court as to whether the court would share that view, or as to what views the court might have as to whether the information already given in the blue form was adequate or not. But, prima facie, management are entitled to manage and, prima facie, for that purpose management were entitled to ask employees to account for their productivity over periods of time.
Mr Justice Haugh said that the plaintiff apparently viewed it as a time and motion study and, therefore, the kind of work that she felt should be done either by engineers or by clerical workers. She took great exception to being asked to fill out this form.
Mr Justice Haugh said he was satisfied that to some extent she became the focus of attention because she was perceived as being the most vocal in her opposition to carrying out the duty she was asked to do. There can be no other reason from the evidence, no other inference that could be drawn that would suggest she was picked upon for some other mala fide reason. She was the person who put her foot down in relation to not filling out the form and that that was why the interest of management had by-in-large focused upon her. Now a sort of an impasse was reached on the first night - she didn't fill up the form and she worked on till the end of the shift. Then the next nightshift began with her again declining to fill up the form.
She was again told and reminded that it was her duty to fill the form. She declined to do so. The terms of the union agreement were then invoked. It was perceived by those engaged in supervisory functions at the time that this prima facie constituted a group C form of offence of misconduct and that they invoked then what was perceived as being the appropriate reaction to that, and the plaintiff was suspended pending investigation of the offence and that on investigation it was decided that she was to be dealt with by way of a final written warning.
The strict construction was a view shared by a number of people in relation as to how the union agreement should be interpreted. Management then in reconsideration decided that it should be an ordinary warning simpliciter rather than a final written warning and agreed to replace the kind of warning that had been originally contemplated with the lesser form of warning.
The plaintiff was still not satisfied with that. It turned out that she was correctly not satisfied with that, because she took her complaint to the Rights Commissioner in accordance with the agreed procedures and the Rights Commissioner took the discretionary approach to the regulations and he felt that since she had eventually decided to fill the form under protest, that it was inappropriate to have sent her home and he decided that the warning that had originally (and later in its varied form) been placed on her personal file should be removed.
Mr Justice Haugh said he had no doubt that this had lead to the steady decline in the condition of the plaintiff. Whilst in the opening of the case there had been some mention of a post-traumatic stress disorder that was not supported by the evidence. The plaintiff did not have the cluster of symptoms that would be required to justify such a diagnosis. The court was satisfied that Dr Lucey was correct in saying that she suffered in the first instance a significant and deep-rooted depression, that that had improved with chemical treatment, but that she had suffered an enduring change of personality that she had transformed from a confident outgoing social person into a person who ruminates on her misfortune, who carries her grievances, who has lost her confidence and who has changed for the worst in many ways. The court was satisfied that the plaintiff did not suffer from a recognised psychiatric condition. Mr Justice Haugh said he had read the medical reports handed in on behalf of the defendant. Dr McInerney took the view that when the litigation was over the plaintiff would improve, but on that Mr Justice Haugh preferred the evidence that was given by Dr Lucey - that this was a deep-set long-lasting condition. Mr Justice Haugh did not think it likely to improve with the conclusion of litigation, rather believing that the condition was likely to be irreversible.
Mr Justice Haugh said that the issue that remains was whether this was a form of gratuitous and inexcusable behaviour on the part of those who were concerned with seeking to have the plaintiff fill out the form? Or was it a lesser form of conduct that would not entitle the plaintiff to compensation? Having found that the request or demand that the white form should be filled in was prima facie an entitlement of management - was prima facie a request or a demand for information that they were prima facie entitled to receive, the plaintiff obviously had a great uphill struggle seeking to convince the court that what was done was so inexcusable or so gratuitous that it gave rise to a cause of action of the type as brought by her. The plaintiff had not, in the court's view, discharged the onus that she undertook in bringing a case like this. Mr Justice Haugh said that where management sought to have the kind of information requested of the plaintiff given by the plaintiff they were entitled to say that they required it to be given to them. The defendant was entitled to say that if she persisted in her refusal to give it that that was misconduct. The defendant was entitled, having regard to the way in which the rules were construed, to say to her that if she was not willing to fill up the form she would be punished. The defendant was entitled in the circumstances of this particular case, due to her continuing refusal, to tell her that she was suspended.
Mr Justice Haugh said that these things could not be considered to have been designed to humiliate her; that they could not be considered to have been some form of aberration that three people who enjoyed reasonably good relations with the plaintiff for a long period of time prior to the events in question, and for some reason not supported by evidence, had gone out of their way to humiliate her or belittle her. This was merely management trying to manage.
Mr Justice Haugh said it was not for the court to decide whether there had been adequate consultation prior to the introduction of the white form. Those are matters that arise and are due for resolution within the trade union/management sphere and are not the concern of a court trying a claim of this nature, brought by an individual staff member, be her views as to the adequacy of consultation right or wrong. When the plaintiff refused to fill out the forms in question what happened thereafter was not gratuitous. Mr Justice Haugh said he was persuaded that a right-thinking person would say: "This is behaviour of a sort that cannot be tolerated that cannot be accepted that cannot be excused."
What happened thereafter was a case of the supervisors charged with management on the nightshift seeking to require the plaintiff to fulfil what they saw was her duty, seeking to enforce the will of management, who had decided to introduce this particular white form, who had decided that they wished to have the information from individual employees on an hourly basis.
Mr Justice Haugh said he was not persuaded that it was a form of misconduct of a sort that would entitle a plaintiff to recover in tort damages, because the court was not satisfied that it was a form of behaviour that the law would not tolerate. Mr Justice Haugh said that a claim was also made in contract, but the same considerations applied.
Her contract of course entitled her to various rights. What was done on this occasion did not constitute an actionable breach of contract, even if ultimately the management had not engaged in adequate or appropriate consultation with the unions that would not give rise to a cause of action by the plaintiff. It would not give rise to an entitlement to claim damages when management sought to persist in their efforts to have the form filled up.
Mr Justice Haugh dismissed the claim with costs to the defendant.
Solicitors: Patrick Mann & Co. (Tralee) for the plaintiff; Holmes O'Malley Sexton (Limerick) for the defendant.
P.J. Breen, barrister