Bullying
Cases
Kelly -v- Bon Secours Health System Ltd
[2012] IEHC 21
Cross J.
“3.1 I propose to analyse this claim firstly on the basis of the legal principles involved and then proceed to go through the various allegations in turn of “bullying and harassment” made by the plaintiff to assess whether there is liability in respect of them.
3.2 It is important to realise, of course, that there is no separate tort of “bullying and harassment”. The defendant as an employer of the plaintiff owes a duty of care not to expose their employees to injury and one of the sub-aspects of this maybe a question of bullying and harassment.
3.3 It is further important to realise that in this case, the plaintiff is not just complaining of “bullying”. She makes the case that there is breach of contract, bullying, harassment, discrimination and intimidation against her.
3.4 Fennelly J. stated in Quigley v. Complex Tooling and Moulding Limited [2009] 1 I.R. at para. [13] and following:-
“[13] Counsel for the defendant, accepted that an employer owes a duty of care to his employees at common law not to permit bullying to take place. Both parties accepted the definition of ‘workplace bullying’ at para. 5 of the Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 as an accurate statement of the employer’s obligation for the purposes of this case. That definition is:-
‘Workplace Bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.’
[14] Counsel for the defendant submitted, and I would accept, that bullying must be:-
• repeated;
• inappropriate;
• undermining of the dignity of the employee at work.”
3.5 In this case, of course, the essence of the plaintiff’s case is that the bullying and harassment came not merely from fellow employees but were in effect orchestrated or directed from the management of the defendant’s company or what is sometimes known as corporate bullying.
3.6 I have been referred to the helpful decision of Herbert J. in Sweeney v. Board of Management Ballinteer Community College (Unreported, High Court, 24th March, 2011), in which Herbert J. analysed a number of the instants which the plaintiff relied on in her claim for personal injuries in what she claimed was unlawful bullying and harassment of her by the school principal.
3.7 Some of the plaintiff’s complaints were upheld and others were not. At the outset, Herbert J. set out his view that there had an “escalating mutual distrust” between the plaintiff and the principal as disagreement followed disagreement. He found that:-
“the plaintiff came to believe that every action or omission on the part of Dr. C., whether actually or, as she perceived it, affecting her, was part of a conscious and deliberate campaign by him to bully and harass her.”
3.8 In that case, the analysis which I found most helpful, Herbert J. was critical of a number of the aspects of the plaintiff’s conduct but found certain behaviour amounted to bullying and stated:-
“In my judgment a particularly vicious form of bullying involves isolating the victim in the work place by influencing others by actual or suggested threats to their own interests and by undermining the victim’s standing in the organisation and amongst colleagues by disparaging references. In my judgment this was the first indication of a firm determination on the part of Dr. C. to brook no positive interference, as he saw it, by the plaintiff in his management of the college.”
3.9 In this case, I came to the conclusion that the plaintiff did hold the same belief as was held by the plaintiff in the Sweeney case (above) i.e. that every reaction of the management of the defendants was directed against her and that even matters that were clearly set out for her benefit were in fact part of a grand design to do her down.
3.10 I was strengthened in that view by certain aspects of the medical evidence (which I will discuss further in this judgment).
3.11 To come to that general conclusion, however, is not to decide the case as the individual actions complained of by the plaintiff will have to be analysed, as was done by Herbert J., in the Sweeney case above, and a decision reached as to whether any of them individually and/or collectively in all the circumstances amounts to bullying and harassment bearing in mind the plaintiff’s other causes of action as pleaded.
3.12 In the United Kingdom, the Court of Appeal clarified the law in four joined stress and work cases and in Sutton v. Hatton [2002] 2 AR 1, the court placed considerable emphasis on the employees obligations to inform the employer of the nature of the difficulties and the fact that the difficulties are having an adverse effect on their health and Hale L.J. set out sixteen propositions for dealing with cases of bullying and harassment.
3.13 Laffoy J. in McGrath v. Trintech Technologies Limited [2005] I.R. 382, adopted these sixteen propositions stating that they are:-
“helpful in the application of legal principle in an area which is characterised by difficulty and complexity, subject, however, to the caveat of Lord Walker in Barber v. Somerset County Council case – that one must be mindful that every case will depend on its own facts.”
3.14 Furthermore as is clear in this case as the allegations relate to what I have described as corporate bullying in the main and as the history of the case indicates the plaintiff bringing numerous grievances to the attention of the management, the issues of the foreseeability and notification to the employers are of less significance here than in the Sutton v. Hatton case (above).
3.15 All in all, I find that the best summary of the questions to be addressed was set out by Clarke J. in Maher v. Jabil Services Limited [2005] 16 ELR 233 as follows:-
“(a) had the plaintiff suffered an injury to their health as opposed to ordinary occupational stress;
(b) if so, was that injury attributable to the workplace and;
(c) if so, was the harm suffered to the particular employee reasonably foreseeable in all the circumstances.””
……
(b) The Bullying Issue
9.9 The plaintiff has an actionable case for damages for bullying, harassment and discrimination arising out of some but by no means all of her complaints. She has sustained an injury rather than acceptable stress to meet the test of Clarke J. in Maher v. Jabil (above).
9.10 I have been furnished with the medical report of Dr. Brian Kelly dated 11th November, 2005, the psychological report of Dr. Jean Lynch of the Anti-Bullying and Research Resource Centre of Trinity College Dublin, Dr. Aidan O’Gara and John Casey, Occupational Health officers on behalf of the defendant, Dr. John Gallagher, Consultant Occupational Physician who supplied a number of reports on behalf of the defendants and Dr. Paul O’Connell, Consultant Forensic Psychiatrist who reported on 11th April, 2007 and also gave evidence on behalf of the defendants.
9.11 I found all of the above very helpful and of great assistance. In particular, I found of assistance the evidence of Dr. O’Connell in relation to the personality of the plaintiff. I make this point notwithstanding the forensic cross examination of Dr. O’Connell by the plaintiff which would have done justice to the most proficient practitioner in the round hall! The plaintiff indeed got a number of admissions from Dr. O’Connell that a number of his conclusions were based upon false assumptions and in particular Dr. O’Connell’s conclusions that the plaintiff would have lived in the United Kingdom in the 1970s with her politically active husband which experience would have been stressful and which she survived, was based upon a false assumption.
9.12 Dr. O’Connell was also incorrect in the date of the plaintiff’s marriage and the number of her children.
9.13 However, Dr. O’Connell does state and I accept:-
“It is possible that Ms. Kelly has a paranoid personality which would confer an increased liability to misconstrue a hostile intent to the comment, behaviour or attitudes of others. It would be useful to have access to independent corroborating information such as her primary care records…”
9.14 I believe that any assessment of the plaintiff must conclude that the plaintiff has indeed come to the view wrongly, that all the actions of the defendants were motivated by some malice against her.
9.15 Notwithstanding that view, however, given the findings I have made previously, it is clear that the defendants, at management level were motivated by hostility to the plaintiff stemming initially from the time of her accident.
9.16 This motivation continued until the plaintiff was frogmarched off the premises which was by any scale of thing an extraordinary insult to her.
9.17 The attitude of the defendants may have been due to exasperation which was understandable but was not (in the manner that I have found above) justified.
9.18 It is correct that the plaintiff did work on after being suspended and removed from the defendant’s premises.
9.19 In his examination of the plaintiff, Dr. O’Connell was impressed by how depressed the plaintiff was and indicated that as far as he was concerned, the treatment she was undertaking was not suitable and she was not being given proper antidepressants.
9.20 In his evidence, Dr. O’Connell indicated that having observed the plaintiff conducting her case, he saw somebody who did not appear to be depressed and indicated that it was possible that the adrenaline of the court proceedings carried her on but in any event her examination in November and her upset arose after a number of very stressful instances in her life including the death after illness of her partner and the death of a number of close members of her family.
9.21 In all the circumstances, it is difficult to untangle the different cause of factors in the plaintiff’s present make up. The defendants must indeed take the plaintiff as they find her but they are not responsible for an underlying condition which they did not cause. They are, of course, responsible for the consequences of their actions which may well have had an effect upon the plaintiff which was greater than it would have been on somebody else.
9.22 In addition, of course, the depressive nature of the deaths in the plaintiff’s family and her partner must be extracted from the equation.
9.23 Mr. O’Connell in his conclusions states:-
“In my opinion, the symptoms which Ms. Kelly complains of are essentially depressive in character and grounded in multiple bereavement. There are a number of alternative causes for these symptoms that are independent of the alleged harassment and bullying at work. It is a matter for the court to determine the facts of the allegations. If the allegations are viewed as wholly or partly true there may have been a synergistic effect leading to a worsening of her condition. In addition there may have a complex interaction between Ms. Kelly, her depression, her behaviour and her perception of the behaviour of others that led to a mutually reinforcing negative cycle that corroded workplace relationships…”
9.24 I accept that analysis.
9.25 Bearing in mind Dr. O’Connell’s professional criticism of his colleagues in the psychological profession, I also accept the conclusion of Dr. Jean Lynch from Trinity when she states:-
“The physiological, psychological and behavioural problems that Ms. Kelly suffers are consistent with those well documented in the literature on stress. This has resulted in heightened levels of anger and anxiety, moderate self esteem, extremely severe levels of somatic symptoms, insomnia/anxiety and social dysfunction, mild depressive symptoms and severe levels of intrusive thoughts in behaviours.”
9.26 Accordingly, I have come to the view that the plaintiff’s acute depressive symptoms are not related to the bullying but the other symptoms are related. I believe that as the trust between the plaintiff and the defendants, has in my view irretrievably broken down, that the plaintiff will not be likely to return to work and that fair award of damages for the severe distress and insult she has suffered to the wrongs attributed to the defendant would be to include past and future general damages to a sum of €60,000.
10. Conclusion
10.1 From the foregoing it follows that the appropriate order to make is a decree in the sum of €90,000 to which the plaintiff would be entitled, on the face of it, to her expenses and outlay.”
Ruffley -v- The Board of Management of Saint Anne’s School
Ian Farrell v Deansbridge Couriers Limited
[2014 No. 8671 P.]
High Court
20 December 2019
unreported
[2019] IEHC 916
Ms. Justice O’Hanlon
December 20, 2019
JUDGMENT
Introduction
1. The proceedings herein issued on 13th day of October, 2014 under record no. 2014/8671 P.
2. By way of certificate bearing authorisation no. PL0409201446843 dated 11th April, 2014 and certificate bearing authorisation no. EL0409201446850 dated 16th April, 2014 the Personal Injuries Assessment Board authorised the plaintiff to bring proceedings in respect of the above entitled claims pursuant to s. 17 of the Personal Injuries Assessment Board Act, 2003 and 2007.
The plaintiff’s evidence
3. The plaintiff was at the time of the institution of the proceedings a courier residing at 52 The Beeches Callystown, Clogherhead in the County of Louth. As of the date of the institution of the within proceedings the defendant was a limited liability company registered in this jurisdiction with registered offices at JF Industrial Estate Rathmullen Road, Drogheda, in the County of Louth. The plaintiff brings these proceedings claiming that at all material times he was a visitor as defined by the Occupiers Liability Act, 1995 at the said premises. He further claims that the said premises was a place of work within the meaning of the Safety Health and Welfare at Work Act, 2005 and the Safety Health and Welfare at Work (general applications) Regulations, 2007.
4. The plaintiff gave evidence that he began his working life by collecting glasses in a public house between the ages of 12 and 16 years. Thereafter he worked in nightclubs while he studied to do his leaving certificate examination which he passed. He then worked in Spain for five years in the bar trade there.
5. On his return to Ireland he had part-time security work in Our Lady of Lourdes Hospital, Drogheda, Co. Louth. The plaintiff explained that he always worked very hard and enjoyed driving and was pretty good at it. He then went to work for the defendant courier company and all went well for the first two years, but he says that all of a sudden Mr. Black, who is the manager in the business, became very aggressive towards him. On one occasion he began throwing parcels in the direction of the plaintiff who was trying to sort out parcels in the middle of the depot and spoke to the plaintiff in abusive terms saying that he would direct him to do as he was told and used coarse language. The plaintiff’s evidence was that the harder he worked the worse the treatment of him became. On another occasion the plaintiff was directed to go to Ashbourne in circumstances where he advised that if he were to attend at Ashbourne he would not be able to finish his deliveries for that day but then he continued to follow the instruction he was given. The following morning, he was chastised for acting on the instruction given to drive to Ashbourne. He described going to Ashbourne on the instruction of his boss to collect two pallets. The following morning Mr. Black was very aggressive because the plaintiff hadn’t been able to actually deliver them. He described how he and his wife had saved €25,000 over two years in order to buy a house at that stage and he said that because of the persistent abuse by Mr. Black towards him other drivers stopped talking to the plaintiff Mr. Black was not around. On another occasion when he pointed out that the van he was given to drive was not road worthy Mr. Black said to him that if it broke down he wanted that to happen in the town of Drogheda. If another worker had a problem with a van the plaintiff was required to swap vehicles with that person, with the plaintiff then having to use the less roadworthy vehicle.
6. The plaintiff described on one occasion being abused by Mr. Black because the spare wheel didn’t appear to be in the van and the plaintiff had no knowledge of its whereabouts. Another worker pointed out that Mr. Black had taken it out of that particular van a few days before and had hidden it behind the bin. This was the van which the plaintiff had been directed to drive.
7. On one occasion on a Thursday he had unloaded his van and was ready for work the next day and he was waiting to be paid. He describes being paid in a manner which left him feeling very humiliated and degraded when the pay cheque was thrown by the Director, Mr. Black at his feet and he had to go down on bended knee to pick it up. He felt that this was very unfair treatment in circumstances where he had worked very very hard.
8. On another occasion when he, his wife and child were all unwell he was obliged to take a sick day off work and he left the van back to the depot. He states that Mr. Black followed him, his wife and child to the Tesco store. He found this very very intimidating and felt that he was being threatened and that his wife and son were also being threatened by being followed by Mr. Black.
9. Thereafter the plaintiff managed to seek better employment with Supermacs Drogheda as a manager for two-year period and now works as a warehouse manager with Ecopipe in North Dublin where he began that employment two months ago. The plaintiff claims to have suffered a loss of earnings of €5,243.04. He suffered from a complete lack of response from the defendants from 2014 on and felt that there was stonewalling. He had worked for the defendant for an eight-year period and despite them being notified and served with the proceedings with ample proof of service they have refused to meet the claim. The plaintiff’s counsel submitted that outlay from the solicitor’s point of view has been hugely significant and contended that the defendants have behaved in a manner hugely disrespectful to the court. The plaintiff sought aggravated damages for bullying and harassment. Seven years after his ankle injury he is deemed to have an inversion injury to his ankle and to have complex pain syndrome. The plaintiff describes standard procedure in the depot where pallets were delivered to the middle of the depot for sorting and the procedure is that each driver would sort out their own parcels in the order in which they would be delivered. On one occasion the plaintiff was directed to wait until all the other parcels were sorted out before he could begin to sort his parcels for delivery. When the plaintiff attempted to put parcels into his running order the plaintiff was shouted at by Mr. Black.
10. “What the …. did I tell you?” and when the plaintiff pointed out that other drivers were permitted to sort their parcels and he was not, the defendant’s replied “you do as you are … told”. The plaintiff felt that on return to the depot Mr. Black would single him out even though he might have delivered more parcels than other workers and he felt he was being treated differently.
11. The court deemed service good in circumstances where a number of motions had to issue before judgment in default of appearance was granted by order, dated 19th January, 2015, with an order that the matter be set down for hearing for assessment of damages and granting the costs of the suit after the adjudication of costs to include the costs of the motion and such assessment to take place before a judge sitting alone.
12. He describes events on another occasion in 2013 in the depot. It was a Tuesday morning and the plaintiff was to deliver material to Hickeys Pharmacy. Mr. Black’s office was behind him and as the plaintiff moved the parcels from one side to the other he noted in the van mirror that Mr. Black had a rifle. He states that Mr. Black had pointed the sight of the rifle at the back of the plaintiff’s head as he moved and that he was facing away from Mr. Black at the time. The plaintiff himself was FCA trained and he could therefore recognise that the weapon could have gone off at any time. He was aware that one ought not point a weapon, such as the rifle in the hand of Mr. Black, unless one intended to shoot. The plaintiff noticed a small red light over his head on the inside of the van when he was unloading it which appeared to be on the inside of the van and seemed to be coming from behind him. When he turned around Mr. Black was present with a rifle which had a laser site on it and which Mr. Black was pointing at the back of the plaintiff’s head.
13. The plaintiff felt that even though he worked excessive long hours and had high levels of productivity Mr. Black consistently expressed dissatisfaction and felt that his best was not good enough. The experience with the rifle had a very detrimental effect on the plaintiff who was afraid to go to work, couldn’t sleep and felt very down on the following Sunday. He believes that the defendant showed a grudge against him for no particular reason whatsoever and was very afraid that the next time the trigger could easily be pulled. Because of the economic downturn at that stage, he was obliged to remain in that employment for two more years and Mr. Black continued to be very aggressive towards him. The plaintiff was worked excessively hard, beginning at 7am and taking no breaks because he wouldn’t have been able to get the work done otherwise such was the pressure placed on him by Mr. Black, the company manager.
14. The plaintiff further contends that the defendant turned off lights in the depot on occasion which meant that it was quite dangerous there as the depot itself had grey concrete floors but that there were potholes outside. Where the vans came and went he said there was no kind of identification marking the step from inside to outside and that with the poor lighting a person walking out could be forgiven for believing they were still on a flat surface. On the 17th April, 2012 the plaintiff was caused to fall in such circumstances and suffered an injury to his ankle resulting in what he described as an indescribable pain where he couldn’t move. He states that Mr. Black smiled at this and kept on working and the plaintiff was left there in pain for fifteen minutes. The plaintiff further gave evidence that Mr. Black continued picking up parcels at that stage and began throwing them at him. He took Nurofen and he was afraid of the defendant but did not want to lose his job. He tried to continue working but after a couple of days he had to cease because of the pain in the ankle. He attended his doctor and was very down. He tried to hide his mood as best he could but was given antidepressants. He was very depressed about the fact that he couldn’t carry his son on his shoulders as he was afraid that the ankle would give way and he says that although he had two sessions of physiotherapy at the time he couldn’t afford more. Ten days after this accident he signed off on sick leave and he was off for three months with depression. He asked his employer for help with his medical bill and got none. He was obliged to take taxis at a cost of €40 to €50. He says that after he returned to work his fellow workers were afraid to speak to him in case the difficulties would come back on them from their employer.
15. On or about the 21st November, 2016 an order directing service by leaving a copy of the order granting judgment in default by ordinary pre-paid post on the defendant at the address where it was known the defendant was carrying on business and that such service be deemed to be good and sufficient service of the order and of any future documents requiring personal services upon the said defendant at Ballymakenny Road Drogheda, Co. Louth. Liberty was also given to serve the order of 19th January, 2015 and of the order of 21st November, 2016 by registered post on the Registrar of Companies Parnell House, Parnell Square, Dublin 1. By further order of 2nd February, 2018 liberty was given to serve proceedings on Mr. James Black and Ms. Mary Brady Directors of the defendant company with very specific directions including service on the company’s registration office and the defendant’s accountant, his current trading office, eighteen affidavits of service have been filed in this case.
The Medical evidence
16. The plaintiff’s general practitioner Mr. John Mulroy prepared three reports for court and gave evidence as follows. He indicated that in 2007 the plaintiff started attending him as general practitioner initial stress symptoms appeared in 2009 when the plaintiff showed definite psychological stresses with chest pain and breathlessness which the doctor had investigated and which he attributed wholly to stress rather than physical injuries. This was when the plaintiff showed signs of anterior chest tightness associated with spinal vertebral dysfunction in May, 2009. The result of the appropriate investigations were suggestive of psychological rather than physical cause.
17. This witness gave evidence of the aftermath of the plaintiff’s accident concerning his ankle on the 17th April, 2012 when his right ankle was found not to be capable of bearing weight and his injury was consistent with the ligaments on the inside of the foot being damaged. There was no fracture but the plaintiff was in severe pain and that was described by his general practitioner as not being unusual.
18. The plaintiff was found by his general practitioner to have swelling and tenderness on the day of this injury the right lateral malleolus and restricted range of right ankle movements with what he called a severe inversion injury. The plaintiff had been given a certificate to remain off work for one week and an early return to work on 27th April, 2012 gave rise to the difficulties with his back. Regarding his back he suffered very restricted range of movement of the lumbosacral low back with lumbosacral muscle spasms bilaterally but more obvious on the right side and he was off work and certified incapable of working for a further two weeks. He went back to work before the two weeks was up and told his doctor that six weeks passed before he could walk without experiencing severe pain.
19. His general practitioner described his patient’s history as the victim of a consistent pattern of workplace bullying where he believed that objectively and subjectively that he was treated differently and unfairly at the hands of one individual in authority and was targeted on one occasion with a rifle which had a severe negative impact on him and his family. At that stage he was beginning to manifest signs of depression, depressed mood, feelings of hopelessness and sleep disturbance. On examination he was found to have mild darting pain with activity in the right anterolateral ankle joint with talofibular ligament to the head of the fifth metatarsal mid-lateral foot. His ankle felt unstable and he was in constant fear of it giving away.
20. At that stage he was found to have constant pain and moderate to severe low back stiffness on average three to four days out of seven precipitated by everyday activities. Sleep disturbed by pain in the back induced by twisting or turning over in bed as well as low back stiffness after rising which could last for a number of hours. His pain was obvious to him most days and there was a limitation of activities at least for half the days of the week on average.
21. The plaintiff at that stage was complaining of low mood, increased irritability and aggression and difficulties coping with everyday stresses, increased anxiety, lack of interest or pleasure in former interest and hobbies, sleep disturbance, a strained relationship with his wife and withdrawal from social activities. At that stage the prognosis was guarded and physiotherapy was advised. Oral and topical non-steroidal anti-inflammatory medications were used as well as codeine based analgesics in order to treat his physical difficulties. A second report of 29th June, 2016 confirmed ongoing discomfort in the right ankle when weather is cold, while driving, with prolonged standing and after walking one to two miles. This right ankle instability causes difficulties negotiating uneven or sloped surfaces with reduced balance and coordination. Low level back pain is a feature after prolonged standing as is also the case where the plaintiff is unable to reach his arms over his head when his back is uncomfortable and when bending is also restricted, squatting is restricted, thighs are not reaching parallel with the ground because of discomfort in the right Achilles tendon. The view of the plaintiff’s doctor was that since the plaintiff was no longer exposed to the alleged workplace bullying psychological symptoms have resolved since the 5th May, 2015. The plaintiff was found to have mildly restricted right ankle dorsiflexion which physiotherapy should help. Low back discomfort should respond to mobilisation treatment delivered by a physiotherapist.
22. Ten days later he attended his doctor with an injury to the lower back. The diagnosis was that he had to be careful as to how he used his right foot at that time and he altered how he lifted heavy loads and how he stepped up into the van and this meant that in adjusting his back to protect his ankle he suffered an injury to the lower back. This general practitioner was of the opinion that ankle injuries although this injury was classified as minor it took longer to heal in that the plaintiff’s nerve muscle control mechanism had been thrown out of kilter and the plaintiff had to relearn how to use his ankle. He was fearful that the plaintiff was going to suffer continued loss of power in the ankle and felt that the plaintiff did not have as much physiotherapy as he the doctor would have wished. He found that the plaintiff’s ankle was incompletely recovered structurally and that there was damage to the soft tissue in and around the joint. He said that the brain was involved in relation to the ankle injury and described the plaintiff as having complex regional pain requiring extensive rehabilitation and physiotherapy and that he had suffered persistent functional disturbance. The plaintiff is still not restored to the former use of his ankle in terms of his functional control and the structure has suffered atrophy and a perceptual and functional disorder. The doctor stressed the effect of the event where a loaded rifle was put to the plaintiff’s head by the plaintiff’s employer the defendant and the fear that that engendered in the plaintiff who felt he could have been shot. The doctor felt that there was a pattern of behaviour which caused the plaintiff to be irritable, angry, to have low mood and to be aggressive to his wife. He did not feel that these injuries were in the area of post-traumatic stress disorder in terms of his diagnosis but rather that the events exacerbated a pre-existing anxiety. These difficulties persisted until the 26th June, 2016 when the plaintiff was in new employment and he found that by May, 2015 the psychological difficulties were beginning to resolve. His third report in 2018 referred to coldness in the ankle and the plaintiff’s efforts to keep it warm by wearing a second pair of socks for example. He was driving long distances on uneven ground and he couldn’t certain activities with his child he couldn’t carry his child on his shoulder because of the weakness in his ankle and he suffered sleep disruption at that time. The doctor’s first report was dated the 2nd April, 2014. In this first report the doctor outlined how fifteen years prior to this time the plaintiff had been treated with low back and posterior thigh pain which resolved spontaneously over a three-day period and also told his doctor that he had been involved in a road traffic accident years prior to that when he had neck stiffness for several weeks in respect of which he did not seek medical attention and were symptoms resolved spontaneously. He also had a prior injury to the left knee at work in 2008 but that resolved in one day.
23. Dr. Mulroy general practitioner, gave evidence to this Court and his first report is dated 2nd April, 2014. He described the date of the accident as 17th April, 2012 when the plaintiff suffered a right ankle injury and whereby on the 28th April, 2012 he suffered low back pain which the doctor attributed to the ankle injury resulting from posture problems arising out of this injury. This witness described how he examined the plaintiff on the 5th March, 2014 and he found him to be complaining of psychological distress caused by workplace bullying, right ankle pain, right low back pain and restriction in the activities of daily living. Fifteen years’ prior to this time the plaintiff had been treated with low back and posterior thigh pain which resolved spontaneously over a three-day period. He had also gave a history to the GP of being involved in a road traffic accident years ago which resulted in mild neck stiffness for several weeks and in respect of which he did not seek medical attention and where symptoms resolved spontaneously. He had also hurt his left knee at work in 2008 but that resolved in one day although it was painful enough to disturb his sleep.
24. The plaintiff suffered anterior chest tightness associated with spinous vertebral dysfunction in May, 2009 which was associated with stress at work and again in February and September, 2010 and which was not associated with exertions and he was referred to the Accident and Emergency Department of Our Lady of Lourdes Hospital, Drogheda, Co. Louth where he underwent an exercise stress test which was negative, in September, 2010.
25. The plaintiff describes stepping out of his van on 17th April, 2012 onto an uneven surface sustaining an inversion injury to the right ankle with immediate severe pain causing him to scream when he fell to the ground. The plaintiff was found to have swelling and tenderness the same day when examined by the GP around the right lateral malleolus and restricted range of right ankle movements consistent with severe inversion injury. An x-ray was carried out but no fracture was detected. He was given a certificate to remain off work but after one week he attempted to return to work but developed a right sided low back pain around April 27th 2012 while lifting delivery loads and guarding his right ankle. The plaintiff attended the Magdalene Medical Clinic on April 30th and May 8th 2012. He had a very restricted range of movement of the lumbosacral low back with lumbosacral muscle spasm bilaterally more but obvious on the right side. He was certified as incapable of working for a further two weeks. Although he was not fit for work he returned without making a full recovery and he told his doctor that six weeks passed before he could walk without experiencing severe pain. He sustained an inversion injury to the right ankle and continues to have right ankle discomfort.
The law
Legal submissions on behalf of the plaintiff
26. An order was granted by Justice Iseult O’Malley on 19th January, 2015 for judgment in default of appearance in respect of this matter which became before this court on 22nd November, 2019. The plaintiff brought these proceedings in respect of his claim arising out of a severe inverted injury to his right ankle. The plaintiff suffered an injury which continues to give him difficulty and is symptomatic. His general practitioner is of the view that he may continue to suffer from chronic pain syndrome caused by his accident. The plaintiff’s claim is also for bullying and harassment in work resulting in psychological injuries as well as for his ankle injury.
27. Reference is made to breach of duty of care owed by the employer to an employee McMahon and Binchy Law of Torts 4th Ed. para. [18.80] which states:
“There is no distinctive tort of bullying or harassment. The question is to be resolved in a context of the employer’s liability, by asking whether the employers took reasonable care not to expose the plaintiff to the risk of injury from such conduct.”
28. The legal definition of workplace bullying is defined in para. 5 of the Schedule to the Industrial Relations Act, 1990 (Code of Practice Detailing Procedures for Addressing Bullying in The Workplace) (Declaration) Order, 2002 (S.I. No. 17/2002). That order declares that the code of practice set out in the schedule shall be a code of practice for the purposes of the Industrial Relations Act, 1990. Paragraph 5 of the taskforce on the prevention of workplace bullying published in March, 2001 defines workplace bullying for the purposes of the code of practice as follows:
“Workplace Bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.”
29. The Court of Appeal in Ruffley v. Board of Management of St. Anne’s School [2005] IECA 287 heard an appeal against a decision of Mr. Justice O’Neill (then in High Court) given on 9th May, 2014 whereby the High Court awarded the plaintiff €255,276.00 and costs on foot of her claim for bullying and harassment in the course of her employment as a special needs assistant in the defendant’s national school. The then President of the High Court and Ms. Justice Irvine allowed the appeal on the basis that inter alia there was insufficient evidence in the case to demonstrate workplace bullying and at p. 22 of the judgment Ryan P. (then President of the Court of Appeal) states that for workplace bullying there needed to be inappropriate behaviour which was repeated directly or indirectly at the plaintiff and that this could reasonably be regarded as undermining the plaintiff’s right to dignity at work. At p. 8 of the judgment of Finlay Geoghegan J. in the same case stated: –
“Accordingly I have concluded that a court must first assess whether the conduct or behaviour alleged is objectively to be considered as repeated inappropriate behaviour. If so it must then determine objectively whether it is reasonably to be regarded as undermining the individual’s right to dignity at work.”
30. It is submitted that in the instant case there were numerous examples, given in the evidence and pleadings, of the plaintiff describing incidents stripping him of his right to dignity at work and putting him in fear of his own life and at the time he believed the defendant might shoot him dead.
31. Reference is made to Maher v. Jabil Global Services Limited [2005] IEHC 130 when Clarke J. considered the duty of care an employer had in relation to an employee who alleges that he suffered physical and mental health during the course of his employment and three questions were identified by that judge which have to be addressed as follows:
“has the employee suffered an injury to his or her health as opposed to what may be described as ordinary occupational stress; if so, is that injury attributable to the workplace and if so, was the harm suffered by the particular employee concerned reasonably foreseeable in all the circumstances”.
32. It is submitted that from the evidence of the plaintiff not only was the injury suffered reasonably foreseeable but it seems to have been the desired effect of the defendant’s repeated behaviour towards the plaintiff. In other words, the test on intention is satisfied.
33. Mr. Justice Fennelly in Quigley v. Complex Tooling and Moulding Limited [2009] 1 I.R. at p. 349 states:
“The plaintiff cannot succeed in his claim unless he also proves that he suffered damage amounting to personal injury as a result of his employer’s breach of duty. Where the personal injury is not of a direct physical kind, it must amount to an identifiable psychiatric injury.”
34. Doctor Mulroy GP gave extensive evidence showing that the plaintiff’s anxiety had required ECG testing and that ultimately his depressive order was caused by the bullying and harassment he was subjected to by the defendant, which required being prescribed anti-depressants for an extended period of time and also required him to take an extended period of time off work.
35. The plaintiff’s submissions draw comparisons in terms of quantum between the instant case and the Ruffley case. In the present case the plaintiff suffered depression, anxiety, feelings of hopelessness, sleep disturbance, increased irritability and aggression, difficulty coping with everyday stresses, lack of interest or pleasure in former interests and hobbies and a strained relationship with his wife as well as withdrawal from social activities. Counsel has drawn attention to the fact that the circumstances in the Ruffley case are quite different on the facts to this case and in that case the Court of Appeal found it not to be a bullying and harassment case but they did unanimously uphold Mr. Justice O’Neill’s award for general damages.
36. Liability for workplace bullying therefore comprises four essential proofs, all met in this case
(a) that the plaintiff has suffered a recognisable psychiatric injury,
(b) that the injury was caused by the plaintiff’s treatment at work,
(c) that the plaintiff’s treatment at work satisfies the definition of workplace bullying.
(d) that the plaintiff’s injuries were reasonably foreseeable.
Findings of fact
37. Viewed objectively, there is no doubt in the mind of this Court but that the plaintiff has suffered in relation to the defendant’s breaches in tort, contract and pursuant to statute and in particular the plaintiff has a duty not to permit bullying to take place in the workplace and also has a duty not to cause the plaintiff psychiatric/psychological damage or any emotional or mental distress by reason of a hostile and bullying environment in which the plaintiff was required to work.
38. The defendant further has a duty not to undermine the plaintiff in the workplace and a duty to heed and investigate the plaintiff’s complaints in relation to his treatment in the workplace including his complaints of being bullied, harassed, overworked and/or subjected to unfair treatment or disciplinary sanction.
39. It is quite clear from the evidence of the plaintiff that there was an uneven surface and it was not marked as defining it as between the indoor and outdoor surfaces on the premises and this caused the difficulty for the plaintiff leading to a severe ankle injury. Ample evidence was given to the court outlining nine instances in all of repeated and continuous bullying even to the point where the plaintiff believed that he could have been shot and was in fear for his life and for the well-being of his family.
40. The defendant’s treatment was unfair towards the plaintiff in unfairly subjecting him to disciplinary sanction and in fact showed a bullying attitude by his abusive behaviour in essentially trying to wrong-foot the plaintiff on a number of occasions giving him a chore then countermanding the order and then chastising him for not carrying out the first instruction while failing among other things to provide him with the proper rain gear to carry out the tasks. The defendant’s manager, being the plaintiff’s superior, on the evidence of the plaintiff to this Court, was downright abusive towards him continuously, persistently and he was threatening to him. The worst incident of this was, when in his van, the plaintiff could see in the mirror a red light and could see that there was gun trained on the back of his head and with his FCA training he was well aware of the dangers and thought he was going to be killed. This gun was in the hands of the plaintiff’s superior.
41. An example of bullying included his being singled out as to the manner in which he was to carry out the work and being treated negatively and offensively in front of other staff members when the defendant shouted at him across the depot using foul language abusively towards him. Viewed objectively, this was a pattern of behaviour. He was singled out on one particular occasion concerning returned parcels and late deliveries when he, the plaintiff, had helped others unload their vans and they were all ready to go home but still he hadn’t been given his paycheque. When he asked for same the defendant threw the cheque on the ground at the plaintiff’s feet in the front of staff members. The plaintiff suffered continuously for a five-year period, from this pattern of bullying behaviour.
42. The plaintiff’s ankle condition was treated by his doctor. It was an inverted injury although there was no fracture. What is difficult about this injury in terms of quantum is the fact that he still has symptoms arising from same and that his doctor gave evidence as to his belief that he may have acquired a chronic pain syndrome as a result. Despite intensive treatment he still has this problem. He has been referred for further pain treatment.
43. In addition, it is his doctor’s belief that the injury to the ankle caused acerbated chronic right sided low back pain which still affects him when lifting heavy loads and the doctor explained this as the plaintiff’s attempt to protect his right ankle which lead to this further difficulty. His doctor found him to have mild right lateral neck discomfort and mild discomfort in his posterior upper left arm. He has severe problems still reaching and bending. The plaintiff was not able to bear weight or to walk without severe pain for a six week period arising out of the inversion injury to the ankle. His doctor detailed dorsiflexion of the right ankle as minus 90 degrees with reduced inversion and eversion and a tender right talofibular ligament and calcaneocuboid joint difficulties. The plaintiff was treated for the psychological problems associated with bullying arising out of these incidents by his general practitioner who found that his difficulties did not reach the level of post-traumatic stress disorder but did require treatment over an extensive number of years and that he did suffer a significant loss of the amenities of life as a result having difficulties in his relationship with his wife, being more irritable and certainly having depression and anxiety.
44. This Court finds that these sequelae in terms of the psychological injury, arising out of the bullying and harassment at work of the plaintiff were reasonably foreseeable and yet, despite that, the defendant company and its management, even though the defendant and the plaintiff’s particular manager knew well the effect that this was having on this gentleman as his employee, continued treating him in a manner which is not legally permissible. On the balance of probabilities, the plaintiff’s physical injuries as outlined by his general practitioner were attributable not only to an accident at work where the area was not properly delineated as having a different level between the inside and the outside of the building which was negligent on the part of the defendant in failing to ensure a safe place of work and the accident was reasonably foreseeable and the psychological injuries are attributable on the balance of probabilities to the bullying pattern of behaviour of the defendant employer over a considerable period of years, by any objective standard.
45. It is interesting to note that this employee left the employment to take up a management role with Supermacs in Drogheda for a two-year period and now is in a further management role as a warehouse manager.
46. It is quite clear from the evidence of the plaintiff’s doctor that the plaintiff has suffered a recognisable psychiatric injury. He has been treated for same and has been obliged to take time off work as a result of same. His medical practitioner has no difficulty objectively attributing this illness to bullying of the plaintiff at work.
47. The plaintiff’s own evidence gives viewed objectively a picture of repeated inappropriate behaviour directly inflicted upon him both verbally by one person at the place of work and on any view objectively this could be reasonably regarded as undermining the individual’s right to dignity at work. It is not a question in this case of an isolated incident of the behaviour described in the definition as being an affront perhaps to dignity at work or simply as a once off incident which would not be considered to bullying.
48. It is quite clear from the evidence of the plaintiff that the injuries he received psychologically were reasonably foreseeable. He was candid in giving evidence to the court of any previous difficulties he had had as a result of previous injuries/accidents and this Court formed the view that what he described was certainly much more than ordinary occupational stress attributable to the situation in which he found himself in the workplace. This Court has no difficulty finding that the harm suffered to the particular employee concerned was reasonably foreseeable in all the circumstances.
49. As against this this Court has had to deal with the fact the plaintiff while he through his solicitors took every step to ensure proper service on the defendants which was extensive in all its efforts and was court directed and mandated and that seventeen affidavits of service in all had to be filed, such was the difficulty in trying to have the defendant meet the matter properly. In the final analysis there was no meeting of the matter by the defendant employer. That causes an extra difficulty for this Court in trying to fully assess the evidence given.
50. The plaintiff was in this regard an impressive witness anxious to work with a good pattern of work all of his life from a very young age and subsequent to his leaving the said employment has had two management positions with two well-known companies. He did not exaggerate the situation but it is clear that the continuous pattern of behaviour by his employer towards him did cause him grave difficulties from a psychological point of view.
51. In all the circumstances this Court deems it appropriate taking into account his physical injury which was an inverted ankle injury in respect of which he still continues to have pain and suffering, his low back pain which resulted from the way in which he had to hold himself to protect and prevent pain or minimise pain in his ankle in the sum of €55,000 in respect of his physical injuries pain and suffering to date with a deduction from that sum of €5,000 because of the plaintiff’s failure to attend sufficiently for physiotherapy as recommended by his medical practitioner. This Court awards the sum of €30,000 in respect of pain and suffering into the future in the ankle because he still has an incompletely recovered structure and the difficulty for rehabilitation in this case according to the medical evidence was that the brain was involved that it is a complex regional pain and that this plaintiff requires extensive physiotherapy and rehabilitation and that he has persistent functional disturbance and that the use of his ankle is not restored to its former status in terms of functional control. The finding of his GP was that the ankle structure suffered from atrophy and that it was and is perceptually and functionally disordered.
52. In respect of his psychological difficulties it is quite clear from the medical evidence given that his difficulties pertain to the working environment in terms of psychological difficulty and in particular reference was made by his medical practitioner in his evidence to the fact that a loaded rifle was put to the plaintiff’s head by his boss and that there was a pattern of behaviour which caused the plaintiff to suffer irritability, anger, low mood aggression towards his wife but he said that it did fall short a PTSD diagnosis and that since the 5th May, 2015 the plaintiff’s psychological difficulties had resolved. This medical witness was strongly of the view that the treatment by the defendant of the plaintiff exacerbated a pre-existing anxiety and he was treated with anti-depressants and had symptoms of depression.
53. This Court awards to this most credible witness the sum of €55,000 in respect of the psychological difficulties suffered by the plaintiff noting that these difficulties were very significant for a three-year period and ended when the plaintiff changed his place of employment and by the 5th May, 2015 his psychological systems resolved. This Court further awards the plaintiff €5,000 by way of loss of earnings.
Sweeney v Ballinteer Community School
[2011] IEHC 131, Herbert J. JUDGMENT of Mr. Justice Herbert delivered the 24th day of March 2011
1. Between September 2005 and September 2006, a series of decisions affecting the plaintiff, approximately six in number were taken by Dr. C. as principal teacher of a large community college (hereinafter referred to as B.C.C.), in which the plaintiff was a senior member of the teaching staff. It is not for this Court in these proceedings to decide whether these decisions were correct or incorrect, justified or unjustified. A report of an Investigating Officer appointed pursuant to the provisions of the Code of Practice of March 2003, for “dealing with complaints of bullying and harassment of staff in community and comprehensive schools”, subscribed to and relied upon the plaintiff as a member of the Teachers Union of Ireland and, by the Board of Management of B.C.C. found that the plaintiff had not established that these decisions amounted to bullying or harassment of her by Dr. C.. This finding was sustained by an Appeal Board duly constituted under and in accordance with the terms of the Code of Procedure, on foot of the plaintiff’s appeal dated the 9th March, 2010, from the decision of the Investigating Officer. I have already ruled during the course of this action that to the extent that these decisions of Dr. C. were the subject of inquiry by the Investigating Officer and subsequently by the Appeal Board, this Court would not permit the plaintiff to challenge these findings in the instant case and, would accept the finding that these decisions taken by Dr. C. did not amount to bullying or harassment of the plaintiff.
2. However, these decisions and the facts surrounding them have a residual importance to the present case. The plaintiff did not accept these decisions of Dr. C. and, in each case, to re-echo her own words under cross examination, “went beyond and outside him”. In so doing she knew that she was taking, what she herself described, as a “drastic step”. She accepted in evidence that on the 2nd September, 2005, she told Dr. C. that unless she received what she believed was promised funding from B.C.C. for the second year of her four year degree course in counselling and psychotherapy, “she would do something drastic”. In cross examination the plaintiff denied that she had threatened to take sick leave for a year and insisted that by saying that she “would do something drastic” she meant that she would, “go beyond and outside him”.
3. It is not for this Court to decide in the present case whether or not the plaintiff was entitled to “go beyond and outside” Dr. C. in relation to these decisions or, even if such recourse existed whether she employed correct procedures in availing of it.
4. However, what is important in my judgment to the proper understanding and determination of this action is that these decisions of Dr. C. and the plaintiff’s reaction to them resulted, I find, in escalating mutual distrust between them as disagreement followed disagreement. Eventually, I find that the plaintiff came to believe that every action or omission on the part of Dr. C. whether actually or, as she perceived it, affecting her, was part of a conscious and deliberate campaign by him to bully and harass her.
5. These most regrettable circumstances caused her on the 4th October, 2006, to make a formal complaint of bullying and harassment through a firm of solicitors to the Rev. Chairman of the Board of Management of B.C.C.. I accept the evidence of the Rev. Chairman that this was the first he had heard of the allegation. He was very shocked and he took legal advice before acknowledging this letter by a letter dated the 16th October, 2006. He accepted that he had been aware since October 2005 that the plaintiff and Dr. C. had not been speaking to each other but he told the court that this was not at all unusual amongst teachers. I find that prior to this, in May and June 2006, three teachers on the staff of B.C.C. who were the then serving committee of the Teachers Union of Ireland in B.C.C. had attended a number of meetings with Dr. C. in which they had put to him the plaintiff’s concerns about his behaviour towards her. I am satisfied that at least one of these meetings Dr. C. behaved very aggressively towards a female teacher almost resulting in physical intervention by the two male teachers present. It is not necessary for the purpose of deciding the present action to determine whether Dr. C. is correct in his recollection that no express allegation of bullying or harassment by him of the plaintiff was raised at any of these meetings and accordingly that the contents of the letter of the 4th October, 2006, came as a very great surprise to him. By a letter dated the 7th November, 2006, Dr. C. denied these accusations and furnished particulars to the Board of Management of B.C.C. of what he alleged was bullying of him by the plaintiff.
6. Following a considerable exchange of views in correspondence, which on occasion became unnecessarily acrimonious, on the 13th November, 2006, a practising junior counsel with extensive experience and with an area of specialisation in the Law relating to Education in Ireland was appointed under the Code of Practice as “Investigating Officer” to inquire into these very serious complaints by the plaintiff of bullying and harassment on the part of the Dr. C.. In furnishing very belated details of her claim to the Investigating Officer and to Dr. C. in April 2007, the plaintiff claimed that she had been bullied and harassed by Dr. C. since 1992. However, at the hearing of the instant case, she accepted that this alleged behaviour on the part of Dr. C. only commenced in October 2005, following her appeal against the filling of four “A” posts of responsibility in B.C.C.. The Investigating Officer furnished her report on the 26th October, 2007 and a copy was furnished to the plaintiff.
7. At this point a few biographical details of the plaintiff and of her career are in order. The plaintiff was born on the 8th July, 1954. She separated from her spouse after, what I was informed, was for her a very traumatic marriage followed by a very difficult court separation. She has two children who are now young adults. She qualified as a teacher in 1975. After qualifying she taught in Dublin until 1979 and in Lisbon from 1979 to 1980. In 1980 she became a permanent member of the staff of B.C.C.. In 1993, Dr. C. was appointed principal of B.C.C.. In 1999 the plaintiff became Home-School Liaison Coordinator at B.C.C.. In the circumstances of this case I find it to be of considerable significance that the duties of the holder of this important and responsible post were spelled out in the “job description” as being, inter alia, “to consult, liaise and collaborate with the Principal” of B.C.C.. It is further of significance that the plaintiff told the court that she regarded these as merely guidelines and not necessarily as binding on her. In May 2002, the plaintiff was elected to and served a three year term as a member of the Board of Management of B.C.C., as one of two teacher representatives on that Board. In October 2004, she commenced a four year degree course in counselling and psychotherapy. This involved some limited absences from work. Over the years from 1980 onwards the plaintiff had, through evening courses, obtained diplomas in work related skills such as drugs awareness and personal development counselling. In September 2005, she was appointed learning support teacher at B.C.C.. I find that the evidence clearly establishes that up to this point the plaintiff was regarded by her colleagues at B.C.C. including Dr. C. as a most dedicated and progressive teacher who had done enormous work in extending the educational services provided by B.C.C. to deprived families and especially to children at risk.
8. Unfortunately, all of this came to an end in October 2005, when the plaintiff was unsuccessful in her application for one of four category “A” posts of responsibility within B.C.C.. I find that the plaintiff consider it most unjust that she should have been passed over for these posts having regard to her qualifications, her seniority and her record of exemplary and innovative service as Home-School Liaison Coordinator. She attributed her lack of success to the malign influence of Dr. C.. I accept the evidence that Dr. C. took no part whatever in the actual decision making and, had no vote in the selection of the successful candidates. I accept that he was present at the meetings of the Appointments Committee as secretary and to keep the record. However, there was compelling evidence before the court which I accept that even if Dr. C. took no part in the selection process he totally approved of the result, which he did not wish to see changed. He then made what can only be described as a series of calamitous blunders which would cause a reasonable observer, reasonably to conclude that he was determined that the plaintiff would not under any circumstances be awarded one of these category “A” posts of responsibility in B.C.C.:-
He advised the plaintiff incorrectly, though I am quite satisfied not maliciously, that she could not appeal this decision.
On the 9th November, 2005, a letter under his signature was sent congratulating the successful applicants when, I am satisfied he knew of the plaintiff’s appeal against the decision. I find his explanation for this action unconvincing. In a letter of equal date he apologised to the plaintiff, but then cast doubt on the sincerity of this apology by notifying these teachers of meetings involving “A” post issues on the 16th November, 2005, and the 23rd November, 2005.
He prevailed on a member of the teaching staff of B.C.C. who had been a friend of the plaintiff for more than twenty years to endeavour to persuade her to withdraw her appeal and to apply for a “B” category post which he indicated she could be assured of getting. This offer was very properly declined by the plaintiff. This other teacher, very moved, told the court that she realised in hindsight that she should not have done this as it would probably result, as it did in the loss of the plaintiff’s friendship.
9. I find on the evidence that the plaintiff, who with very good reason, regarded herself as a very senior and experienced teacher who had contributed greatly to the work of B.C.C. felt deeply hurt, disappointed, humiliated and betrayed by these actions of Dr. C.. I find that the plaintiff reacted by deciding to have as little personal contact with Dr. C. as possible. On the 30th October, 2005, the plaintiff appealed successfully against the procedure adopted in filling these “A” posts. The plaintiff was not successful in obtaining one of these posts in the subsequent re-selection process. For his part, I am satisfied, that Dr. C. perceived the plaintiff’s appeal against the “A” post appointments, which I am satisfied on the evidence was entirely unprecedented, as a further going “beyond and outside him” by the plaintiff and, as a challenge to his authority as Principal of B.C.C.. I find that his reaction was to behave thereafter towards the plaintiff in a hostile and dismissive manner and to disparage and marginalise her in the eyes of other teachers and members of the non teaching staff at B.C.C.. Unfortunately also, those colleagues whose promotions to “A” posts of responsibility was jeopardised by the plaintiff’s appeal and their friends on the teaching staff also ostracised the plaintiff.
10. Specific events of which the plaintiff complains and which occurred between October 2005 and September 2006, – the music examination incident; being urgently summoned to Dr. C.’s office during an inspection by an Inspector of the Department of Education; unwarranted requests to attend at the college office and, especially the forcing open of the door of her office and the removal to a different room of her effects including very confidential files in July 2006, during the summer vacation, – an action which elicited a letter of complaint from the college committee of the Teachers Union of Ireland dated the 11th December, 2006, – all served to worsen this totally undesirable state of affairs.
11. I do not accept the bona fides of the explanation offered for the admitted entry by one of the college caretakers, acting on the instructions of Dr. C., into the plaintiff’s office in B.C.C. by slipping the lock with a knife and, the moving of the contents of that office to the Home-School Liaison room. Absent any emergency, ie. fire or flood or, faced with an inability after reasonable and proper attempts to contact the plaintiff and a pressing need in the interests of the college to have the rooms interchanged, what was done on this occasion on the instructions of Dr. C. was high handed and inexcusable. The fact, which I accept, that the college caretaker moved everything very carefully and put everything in exactly the same position in the other room and did not open anything does not mitigate the enormity of this conduct in the least. Neither does the fact that the other teacher made no complaint or that the plaintiff was in any event returning to the Home-School Liaison room at the start of the new term.
12. In addition, the plaintiff in retrospect, now regarded the September 2005, problem in securing what she regarded as promised funding by B.C.C. for the academic costs of the second year of her degree course in counselling and psychotherapy, as yet a further example of harassment and bullying of her by Dr. C.. The Investigating Officer and the Appeal Board appointed and constituted in accordance with the terms of the Code of Procedure held that these events were not shown to have involved bullying and harassment as defined in the Code. It is there defined as a, “destructive and malicious attempt to target a particular individual”. I have already ruled that so far as these events are concerned the plaintiff is bound by these findings of the Investigating Officer and the Appeal Board which, if the issue had fallen to be determined by it, are in accordance with the evidence led before this Court.
13. As almost invariably occurs in such divisive situations some teaching staff members of B.C.C., some members of the Board of Management of B.C.C. and, even some persons from outside B.C.C. who in the course of their official duties became involved in these events, came to take a partisan stance in favour of the plaintiff or of Dr. C.. I found the evidence of a number of witnesses in this case to be unreliable and therefore unhelpful for this reason.
14. Between the 31st August, 2006 and the 27th March, 2007, the plaintiff was absent from work and furnished each week a medical certificate from her General Medical Practitioner, Dr. Philip McMahon, that she was suffering from work related stress. The quite extraordinary manner in which these certificates were furnished, – they were found by the clerical officers each Monday morning pushed under the door of the general office and not given or sent to the Deputy-Principal the person entitled to require and to receive them, – demonstrates in my judgment the continuing concern on the part of the plaintiff to avoid any risk of having to communicate personally with Dr. C., even to the extent of refusing to furnish these very important documents from her own perspective directly to management. The clerical officers further informed the court that each Monday morning a man or a woman would telephone the general office and state that the plaintiff would be absent from work that week. These callers never identified themselves to the clerical officers.
15. I find utterly indefensible, the manner in which the plaintiff chose to return to work at B.C.C. on the 28th March, 2007. She must have realised that this was bound to be seen by Dr. C. with every justification as a calculated and wholly deliberate insult to him as Principal of the college. I accept the evidence of the Rev. Chairman of the Board of Management of B.C.C. at the time, and, the evidence of the present Chairperson of the Board who between them have each 30 years experience in community/comprehensive schools and large private schools that the manner of the plaintiff‘s return to B.C.C. after an absence of 209 certified days was “unbelievable and totally unacceptable”. On the 27th March, 2007, the plaintiff’s present Solicitors acting, one must infer on her instructions or with her consent, sent by Email a letter to the Rev. Chairman of the Board of Management of B.C.C. at his private address notifying him of her intention to return to work on the following day. I accept the evidence of the addressee that he did not receive this communication until after the plaintiff had in fact returned to work. By a letter dated the 12th April, 2007, he wrote to the plaintiff’s Solicitors notifying them of this and asking why no notice of her intended return to the college had been given to Dr. C..
16. I find on the evidence of Dr. C., the former and the present chairpersons of the Board of Management of B.C.C. and the Deputy-Principal of B.C.C. that Dr. C. was entitled to receive at least some days advance notice that the plaintiff intended to return to work on the 28th March, 2007. I find that he was in fact entirely unaware that she had done so until they met accidentally in a corridor some 30 minutes, on her own evidence, after she had entered the college. On the balance of probabilities I am prepared to find that this extraordinary behaviour on the part of the plaintiff was not, as Dr. C. perceived it, a conscious and deliberate attempt on her part to insult him and to undermine his authority as Principal of the College but was a further indication of her anxiety about communicating with him. In my judgment her failure to notify D. C. in advance of her intention to return to work is not explained or excused by her having proffered a medical certificate of fitness to return to work and a further certificate from Dr. McMahon covering her absence from work in the previous week, to the Deputy-Principal in the staff room earlier that morning and, being told by him to give them in at the office later in the day. I am satisfied on the evidence that apart from her failure to give proper notice to Dr. C. the plaintiff’s return to work did not in fact give rise to any staffing or rescheduling difficulties in the college on that day.
17. I accept the plaintiff’s evidence that Dr. C. said to her, “What’s this, what are you doing here, who knows you are back, did you inform the Board of Management”. There can be no doubt but that Dr. C. was entitled to put these questions to the plaintiff and even though the manner in which they were put may have been lacking in diplomacy and somewhat brusque, nonetheless I do not consider that in the extraordinary circumstances it amounted to bullying or harassment of the plaintiff. I am prepared to accept the plaintiff’s evidence that Dr. C. spoke loudly on the occasion and even turned red in the face, even though I have had an opportunity of closely observing him in various circumstances throughout the trial of this action and I never noticed him becoming red in the face. However, there was evidence which I accept, from a number of teachers who as members of the Teachers Union of Ireland had occasion to become involved in these differences between Dr. C. and the plaintiff, that on a number of occasions in meetings with Dr. C. he behaved with considerable and in their opinion unwarranted aggression towards them. However, unlike the case of the plaintiff, these exchanges all appear to have ended amicably and with handshakes all around. Given the sudden unexpectedness of his encounter with the plaintiff, his immediate assumption that she was back at work and, his almost certain anger and resentment at not having been notified in advance by the plaintiff that she was coming back to work, I think it not all unlikely that Dr. C. spoke loudly and aggressively as the plaintiff alleges. I do not however, accept that he became physically aggressive and, “came right up against her” as she claimed in her evidence. I find this to be improbable. In describing the difficulties which arose in September 2005, in relation to the provisions of funding for the second year of her degree course, the plaintiff claimed that during a meeting with Dr. C. in his office, he had become aggressive, had flung down his keys, had jumped up from the table, red faced and with eyes blazing and had invaded her body space. However, she made no complaint about this alleged behaviour at the time. In fact she agreed that things were good with Dr. C. at that time. On the 28th March, 2007, the confrontation with Dr. C. had occurred in an open corridor in what appears to have been the most public part of the College, where everything occurring was capable of being observed by other teachers, non teaching staff, pupils or even parents of pupils. Regardless of how he may have felt on the occasion, I do not regard it as credible that Dr. C. if he had any thought at all for his position as Principal of B.C.C. would have behaved in such a place in the manner suggested by the plaintiff.
18. The plaintiff gave evidence that her answer to these questions by Dr. C. was to say “I am not talking to you unless someone else is present”. She explained this answer by telling the court that she needed another person to be present so that person could be a witness to what Dr. C. was saying and doing as he would later deny both. The plaintiff denied that this was a pre-meditated response on her part. I am unable to accept this. The evidence adduced in relation to other incidents after the 28th March, 2007, together with this incident satisfied me that the plaintiff returned to B.C.C. with a plan to avoid contact with Dr. C. wherever possible and where not possible to stand up to him and insist that any communication between them take place in the presence of some third party acceptable to her. I find it also of significance that this incident was immediately followed by a letter from the plaintiff’s solicitors to the Board of Management of B.C.C. dated the 30th March, 2007.
19. After this exchange the plaintiff told the court that she noticed that the door of the business studies room, about ten feet away, was open. She entered this room where a male colleague, (and one of the Teachers Union of Ireland College Committee), was teaching a class. She told the court that her purpose was to ask this teacher to watch while she went down the corridor as she felt stressed and afraid. I am unable to accept that this as the reason why the plaintiff went into her colleague’s room. I am satisfied that she went there, not as Dr. C. perceived it to convey negative information about him in front of a class, but pursuant to her plan to involve a third party immediately in all confrontations which she might have with Dr. C.. I am satisfied on the evidence that this colleague was discomfited by the plaintiff’s sudden intrusion into his class and was most anxious that she should not linger in the room. I accept this teacher’s evidence that the plaintiff was quivering and appeared to be fighting back tears and had said to him, “He is at me again, its happening again”. I also accept this teacher’s evidence that as they were speaking a knock came to the door and Dr. C. put his head into the room, beckoned this teacher over to the door and said to him “You cannot have people invading your room, you’d want to look after yourself”.
20. I am satisfied that this teacher, who had been a member of the Teachers Union of Ireland Committee that had spoken to Dr. C. in 2006, on behalf of the plaintiff, reasonably and rationally interpreted this statement by Dr. C. as a threat, that he would suffer some detriment for speaking to the plaintiff and not insisting that she leave his room immediately. I find that Dr. C. had full authority to circulate a notice to all the teachers that they should not enter a colleague’s classroom while a class was in progress. I am satisfied that on this occasion Dr. C. was referring solely to the plaintiff whom he disparagingly described as having “invaded” this other teacher’s classroom. I find that this intervention at this time and in these terms by Dr. C. was a destructive and malicious targeting of the plaintiff and amounted to bullying of the plaintiff within the definition of the March 2003 Code of Practice to which both Dr. C. and the plaintiff had subscribed and had invoked. But apart altogether from that definition in my judgment these words were hostile, offensive, unnecessary and disparaging to the plaintiff who was a very senior teacher in the college and would amount to “bullying” within the meaning of the 2002 (now 2007) Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying At Work, or even within the ordinary dictionary definition of that word. In my judgment a particularly vicious form of bullying involves isolating the victim in the work place by influencing others by actual or suggested threats to their own interests and by undermining the victim’s standing in the organisation and amongst colleagues by disparaging references. In my judgment this was the first indication of a firm determination on the part of Dr. C. to brook no positive interference, as he saw it, by the plaintiff in his management of the college.
21. The plaintiff told the court and, this teacher accepts, that the plaintiff left his classroom and ran down the corridor and into the ladies restroom which was about twenty feet away. He said that Dr. C. was not in the corridor at this time. I accept the evidence of Dr. C. that he had gone back to his office and had telephoned the Deputy-Principal and the Rev. Chairman of the Board of Management to advise them of what had occurred. I accept his evidence that he did not know when the plaintiff had left the classroom or where she had gone. The plaintiff gave evidence that when she emerged from the ladies restroom Dr. C. was waiting outside the door. She said that she walked down the corridor and he followed. She then ran into the home-School Liaison room and into her office adjoining that room and locked the door. Using her mobile telephone she immediately contacted two female colleagues, who were the then teachers’ representatives on the Board of Management of B.C.C. When they arrived she unlocked the door and told them what had occurred.
22. I reject as utterly improbable this evidence of the plaintiff that Dr. C. had waited outside the ladies rest room for ten minutes until the plaintiff re-emerged. Dr. C. told the court that the first time this suggestion had been made was during the hearing of the action. I doubt very much if even the most crass and insensitive pupil would do such a thing. While in that room the plaintiff could not have known where Dr. C. was. I believe that it was entirely coincidental that Dr. C. was walking down the corridor when she re-emerged from the ladies restroom. Dr. C. is a married man. He is, as the Rev. former Chairman of the Board of Management very aptly described him, “the Managing Director” of a considerable enterprise. The door to the ladies restroom is on a corridor of the college along which all manner of persons pass and re-pass. It is in my view therefore, an indication of what Dr. Mohan described as “disturbed perceptions” that the plaintiff should make such an allegation against Dr. C..
23. Unfortunately, the matter did not end here. The plaintiff and one of the other teachers whom she had summoned gave evidence that after the plaintiff had unlocked the Home-School Liaison room door, they saw Dr. C. looking in the window of the room from the yard outside the window. I am satisfied that the evidence establishes that this window is approximately eight feet in length and eighteen inches in height. It is made of Perspex, approximately one third of an inch thick which over the ten years of its existence had become discoloured, yellowed and clouded. In addition this window is covered throughout its length by very old and dusty thick net curtains hung in place in the 1970s. Further, the window is generally very dusty on the outside. I am satisfied on the evidence that during daylight hours a person inside this room looking out could only see the shadow of someone outside the window looking in with not even sufficient outline definition to determine whether that person was male or female. If the plaintiff and this other teacher saw someone outside the window on this occasion, I am satisfied that because of the previous events they surmised that it was Dr. C.. I accept his evidence that he did not go out into this yard and look in the window of the Home-School Liaison room.
24. I am satisfied that the events of the 24th October, 2007, when the plaintiff was recorded in the college attendance book as having been absent from work when she was in fact attending an authorised “In-school training course” and ought to have been marked “In service” was a simple mistake. I am also satisfied on the evidence that this mistake was rapidly corrected and that the plaintiff suffered no financial loss as a result of the error. I do not accept that this incident was deliberately contrived by Dr. C. to bully or to harass the plaintiff.
25. On the 20th November, 2007, a further confrontation occurred between the plaintiff and Dr. C.. The parent of a pupil in the school was loudly abusing another teacher for disciplining her son, (he had told that teacher to “shut up”). I find on the evidence, particularly by reference to a contemporaneous note made by the teacher in question and to a letter written by her to the Board of Management and dated the 13th December, 2007, that Dr. C., who just happened to be in the vicinity, heard the noise and came into the classroom and tried to mediate between this teacher and the parent. I accept the evidence of the teacher that she then noticed the plaintiff, with whom she was not on speaking terms, standing in the doorway of the classroom. Dr. C. gave evidence, which I accept, that the plaintiff ought not to have been there at all. I accept the evidence of this teacher and of Dr. C. that he was insisting that the parent go with him to his office to discuss the matter. Instead this parent ran over to the plaintiff who asked her if she was all-right to which the plaintiff replied, “Do you see what’s happening here”. The plaintiff told the court that as Home-School Liaison Coordinator she considered that she had a duty to represent all disadvantaged parents. I accept the evidence of Dr. C. that the plaintiff then advised the parent not to go with Dr. C. to his office unless someone else also went and that she should write to the Board of Management of B.C.C. about the matter. I am satisfied on the evidence that the parent then said that she would not go with Dr. C. to his office unless the plaintiff accompanied her. This was not acceptable to Dr. C.. I find on the evidence that he went over to the plaintiff in the doorway and said to her, “I am giving you an order, I am directing you to return to your room”. The plaintiff returned to her room and the parent went with Dr. C. to his office. Later the teacher was sent for and the parent apologised to her and they shook hands. I find that the plaintiff had no reason to come to or to remain in the door of this teacher’s classroom and, had no right or duty to interfere as she did. Her advice to the parent in the circumstances was grossly irregular, offensive to Dr. C. and, a challenge to his authority as Principal of the College. I find that Dr. C. on this occasion acted properly and proportionally and entirely within the scope of his authority as Principal of B.C.C. I find that on this occasion he neither bullied nor harassed the plaintiff.
26. I find that the quite extraordinary events which occurred at B.C.C. on the 26th November, 2007, came about because the plaintiff was by this time in effect working entirely independently of Dr. C. and the Deputy-Principal of the College. An aspect of this unsatisfactory state of affairs was that the plaintiff was seeking to adhere to a time-table which she had operated prior to September 2005, or, to a new time-table prepared for her by another teacher, but which had not been approved by the Deputy-Principal or even seen by him. I find that the Deputy-Principal, whose sole prerogative it was to approve the daily time-table for the entire College was now also being avoided by the plaintiff who had come to regard him as a supporter of Dr. C.. I find that the Leaving Certificate class which was scheduled, by reference to the college time-table, prepared by the Deputy-Principal, to use the computer room in the College at the time was unable to enter this room because the door was locked and the room was occupied by the plaintiff who was teaching computer skills to three parents of pupils at the college as part of the Home-School Liaison programme. I do not consider it necessary to determine how to by whom the door came to be locked. One of the school caretakers gave evidence that and had unlocked the door to this room. He saw the plaintiff entering the room and he had informed her that by reference to the daily time-table which he had been given that morning by the Deputy-Principal that another class was due to use the room. This class of about fifteen pupils had then arrived. The caretaker said that he went and told the Deputy-Principal that there seemed to be a double booking and that this class was unable to access the computer room and was standing about in the corridor. Significantly, the Deputy-Principal told the court that he had said to Dr. C. that he would deal with the matter as it was his problem and, accompanied by the caretaker immediately went to the area. For some unstated or unexplained reason, Dr. C. had followed. There can be no doubt on the evidence that the door of the computer room was now locked and that the Deputy-Principal knocked loudly on the door which was not opened. As neither the Deputy-Principal nor Dr. C. had keys with them, the caretaker who had a key then unlocked the door to this classroom. I am satisfied that the Deputy-Principal entered the room first followed by Dr. C. I am satisfied on the evidence that they did not “bang” into the room shouting and waving their hands about as alleged by the plaintiff.
27. I find on the evidence, with particular reference to a contemporaneous note made by Dr. C. on the 26th November, 2007, that as soon as he and the Deputy-Principal entered the room, the plaintiff, who had been standing beside a parent at a computer console, turned towards them saying loudly, “Here’s the Principal and the Deputy-Principal coming to bully me”. I am satisfied that the Deputy-Principal then told the parents that there had been a misunderstanding over booking and asked them to turn off the computers and to leave the room as another class was waiting. The parents hesitated, – a wholly natural reaction in the circumstances, – and I accept that Dr. C. and the Deputy-Principal then moved around the room saying “Come on, come on, out you go, out you go”. The plaintiff then protested that they were properly in the room as she had booked it and she pointed to a time-table fixed to the back of the door. The Deputy-Principal told the court that he had examined this A-4 size document and that he had never seen or approved of it. The plaintiff then told the parents not to leave the room and to continue with their work. Dr. C. pointed out that he was the Principal of the College and insisted that they leave. One of the parents told the plaintiff to telephone the Department of Education and the plaintiff had replied that she did not know the number. The evidence clearly establishes that Dr. C. then said to this particular parent, “Turn off that computer or I will call the gardaí”. To this the parent responded, “Well get them then”. The plaintiff then used her mobile telephone to summon the two teachers who were then serving as Teachers Representatives on the Board of Management of B.C.C.. Dr. C. said to the plaintiff “Don’t get another teacher out of her class”. One of these ladies then arrived followed very shortly by the other. One of them suggested to Dr. C. that perhaps both groups could use the computer room simultaneously. Dr. C. would not agree to this proposal and I am satisfied that his reasons for not agreeing were rational and reasonable. The parents then left the computer room and went with the plaintiff to the Home-School Liaison room. One at least of the parents wrote to the Board of Management of B.C.C. about this incident.
28. In my judgment, the behaviour of Dr. C. towards the plaintiff on this occasion was oppressive and bullying. However extremely provocative the plaintiff’s own behaviour may have been and however much her actions may have been interfering with the smooth running of the college on the 26th November, 2007, she should not have been publicly disparaged and humiliated by Dr. C. in front of the parents present. Her countermanding his direction to the parents to leave the computer room may properly be regarded as a amounting to scandalous insubordination. However, in my view it did not cause the bullying but was a consequence of it. I find that there was no necessity at all for Dr. C. to have been in the room on this occasion. The Deputy-Principal could have dealt with the matter as a simple double booking of the computer room, something which the evidence showed had happened in the past. But having chosen to enter, Dr. C. should have disregarded, for the moment at least, the locked door and the plaintiff’s first remarks, explained the position to her with regard to the other class and asked her to inform the parents present of the difficulty and invite their cooperation in the matter. In the event, he treated her and the parents as trespassers and trouble makers. It is significant that Dr. C. told the court that he had felt slandered and undermined and that the plaintiff was embarking on a course of confrontation with the management. Dr. C. later telephoned the Rev. Chairman of the Board of Management who promised to raise the matter at the meeting of the Board scheduled to take place on the 12th December, 2007. If it was raised no action was taken. By letters dated the 28th November, 2007, and the 14th December, 2007, Dr. C. invited the plaintiff to meet him and the Deputy-Principal to discuss the incidents of the 20th November, 2007 and the 26th November, 2007. However, the plaintiff was unable to see her way to attending such a meeting insisting that the matter was something which required to be dealt at Board of Management level and involving her solicitors.
29. The evidence in this case establishes, in my judgment, that the plaintiff considered that she was entitled to very considerable autonomy in the running the Home-School Liaison Programme at B.C.C.. It was never suggested by anyone during the course of the hearing that the plaintiff was anything other than a skilled, experienced and dedicated teacher. However, she no longer communicated with Dr. C. the Principal of the College or with the Deputy-Principal of the College. Having retaken her place on the C.A.R.E. Team on the 17th April, 2007, on resuming her position as Home-School Liaison Coordinator, the plaintiff, following a number of disagreements with other members of the Team who had complained that she was dominating the proceedings at meetings and, because she said that the “body language” employed by other Team members was discouraging her at these meeting, ceased to attend the meetings or to report to the CARE Team after the 13th October, 2007. The effect of this was that from the 13th October, 2007, onwards nobody in authority in B.C.C. really knew where the plaintiff was or what she was doing during her working day. I am however satisfied that she was carrying out her duties as Home-School Liaison Co-Coordinator with the same dedication as she had always devoted to her work.
30. Dr. C. for good and sufficient reasons in my judgment, in September, 2007, had declined to permit the plaintiff to function in the college in the specific role of a Counsellor/Psychotherapist. He advised her that it was ultimately a matter to be decided by the Board of Management of B.C.C., but that he would feel obliged to argue against such an appointment. I do not accept the plaintiff’s contention that by permitting her to do the degree course, Dr. C. had thereby agreed that she would become a Counsellor in the College. Unfortunately, the plaintiff saw this as yet another form of bullying of her by Dr. C. I am quite satisfied that it was not. His decision was taken within the scope of his authority and, as I have already found for reasons which were both rational and reasonable.
31. I find that since her return to B.C.C. on the 28th March, 2007, the plaintiff had been continuously treated by Dr. C. in a bullying and aggressive manner. She had been marginalised and treated by him with unrelenting hostility and contempt. This “freezing out” as she aptly described it caused the plaintiff anxiety and stress. She found particularly hurtful and damaging the fact that when addressing others in her company Dr. C. totally ignored her as if she was not there at all. For anybody, but especially a woman and a senior teacher in the college, this was a particularly savage form of bullying, targeting her and clearly designed to break her will to disagree with any future decisions of his. In all his dealings with the plaintiff after the 28th March, 2007, I find that Dr. C. behaved like an offended tyrant and not as a fellow teacher and long time colleague of the plaintiff who had been appointed to the senior management position in the college. It is certainly not an excuse for this conduct on his part that the plaintiff’s own behaviour in this period, in general and towards him in particular, was inappropriate and, should not have been tolerated by the Board of Management of B.C.C..
32. I find, that at the end of November 2007, Dr. C. had started to become anxious and concerned because of his almost total lack of information as to where the plaintiff was or what she was doing during college hours in her capacity as Home-School Liaison Coordinator. I accept his evidence that he had come to be concerned that the college and its Board of Management might become involved in legal or other problems arising out of the plaintiffs’ unreported and unsanctioned activities as Home-School Liaison coordinator. I accept his evidence that he was particularly anxious because were such to occur he considered that he would be criticised or held responsible because as Principal of the college he had an obligation to the Board of Management of B.C.C. and to the Department of Education to ensure that all teachers were fully and properly discharging their duties. In these litigious and confrontational times I am satisfied that this was a genuine and reasonable concern on the part of Dr. C..
33. Considerable controversy arose during the hearing of this action as to whether a letter dated the 15th December, 2007, from Dr. C. to the Rev. Chairman of the Board of Management of B.C.C. setting out in detail the problems he was experiencing with the plaintiff in the day to day management of the college, was in fact written on that date or whether it was written later and backdated in order to justify his employment of a private investigator to carry our surveillance on the plaintiff. I am satisfied on the evidence, particularly by reference to the contemporaneous diary entry by the Rev, Chairman of the Board of Management that this letter was handed to him by Dr. C. in the college on Wednesday, 19th December, 2007. I am also satisfied that the Rev. Chairman adverted to this letter at the meeting of the Board of Management held on the 10th January, 2008, and, that incomplete transcripts of this letter on yellow paper were on the Board table at this meeting but were not actually distributed to the individual Board members. I am satisfied that there was a brief discussion about this letter at the meeting and that the Board decided to invite Dr. C. and the plaintiff to attend a meeting of the Board on the 17th January, 2008 and explain their respective difficulties. I am satisfied on the evidence that Dr. C. was willing to adopt this course. However, by a letter from her solicitors, the plaintiff indicated that she was not prepared to attend at such a meeting without her solicitor being present as she had concerns about the impartiality of the Board. This was unacceptable to the Board and the meeting did not take place and no further action was taken by the Board of Management.
34. The letter dated the 15th December, 2007, again came before the Board of Management of B.C.C. when a further letter of complaint dated the 2nd April 2008 from Dr. C., and which referred to his earlier letter of the 15th December, 2007, was placed before the Board of Management by its solicitors. However, by this time the matter had passed into the field of litigation and the Board of Management did not consider it further until the 1st October, 2008. On that date the Board of Management under its present Chairperson, having taken advice from the National Coordinator of Home-School Liaison Schemes wrote to the plaintiff seeking details of plans, records, identity of families visited and other matters. After further written requests the matter concluded with a letter from the solicitors for the plaintiff to the Board of Management stating that, “As soon as she is medically fit we will hold a consultation to deal with your queries”. This quite extraordinary situation was resolved by the plaintiff requesting and being granted permission by the Department of Education to take early retirement.
35. This problem as to the authenticity of the letter dated the 15th December, 2007, of the letter dated the 2nd April, 2008, and of the minutes of the meeting of the Board of Management on the 5th December, 2006, all arose because several different texts of these letters and of these minutes were disclosed and put in evidence before the court during the course of evidence. While I consider that the trenchant criticism and close scrutiny by Senior Counsel for the plaintiff of what appears to have been a quite extraordinary practice on the part of Dr. C. of adding to these documents after they had been sent or circulated was entirely justified, I am not satisfied that this was done with a deliberate intent to mislead, though in fact that could well have been the result. I accept that the partial transcription of the letter of the 15th December, 2007, on yellow paper was simply that and nothing more and that it is quite unnecessary to endeavour to discover why or by whom this was done. I am satisfied that this letter of the 15th December, 20007, was a wholly genuine attempt on the part of Dr. C. to persuade the Board of Management of B.C.C. to take action in the matter. I am equally satisfied that what they did, though well intentioned, was altogether too little and too late.
36. It is unnecessary for me to consider what other course Dr. C. might have adopted in these circumstances. I am satisfied that he had endeavoured but with no success to persuade the Inspectorate of the Department of Education to become involved. Suffice it to say that I find that the course which he did in fact choose to pursue was wholly inappropriate. I find that the decision of Dr. C. on the 10th January, 2008, to engage the services of a private investigator for four days in early February 2008, to carry out a covert surveillance on the plaintiff during college hours amounted to a most serious harassment of the plaintiff by him. The activities of this private investigator were brought to an end by the intervention of An Garda Síochána and by an Order of this Court (Laffoy J.) made at the suit of the plaintiff on the 10th April, 2008. I find that the plaintiff has not established on the balance of probabilities that on the 15th September, 2008, and the 16th September, 2008, Dr. C. in breach of the Order of this Court made on the 10th April, 2008, again himself followed the plaintiff.
37. I accept the evidence of the plaintiff that on a number of occasions in December 2007, in the course of her work as Home-School Liaison Coordinator at B.C.C. she found it necessary to drive to the two Resource Centres associated with the college. She claims that on a number of these occasions she was followed by Dr. C. in his motor car. I am satisfied that she reported her concerns to the two teacher representatives on the Board of Management of the B.C.C. and to the three college committee members of the Teachers Union of Ireland. They do not appear to have taken any action in the matter. One must acknowledge the right of Dr. C. as Principal of B.C.C. to visit these Resource Centres whenever he saw fit or the occasion required. Dr. C. denied that he followed the plaintiff on any occasion. There seems little doubt that on one occasion when the plaintiff claims Dr. C. had followed her to one such Resource Centre that he was in fact there to meet members of An Garda Síochána in relation to a break-in and serious vandalism at the centre. I am not satisfied that the plaintiff has discharged the onus on her of establishing on the balance of probabilities that she had been bullied by Dr. C. by being monitored and stalked by him in this fashion.
38. I am satisfied from the evidence and, from my observations of the plaintiff in giving evidence, that she is a lady well capable of asserting and defending what she considers to be her rights. Nonetheless she is still a woman and for a woman on her own to have two men following her about in a car during her working day must be been a truly terrifying experience for her. I unhesitatingly accept her evidence with respect to these events. It is necessary to give a brief summary of what I accept occurred on the 7th February, 2008, and some other days.
39. When the plaintiff drove away from her home on the 7th February, 2008, at 09.15 hours she felt that she was being followed by another motor car with two occupants. She took various evasive measures but this care remained following hers. She made a mobile telephone call to her daughter who appears to have taken the not unreasonable view that her mother was suffering from over vigilance due to work related stress and sought to reassure her. The plaintiff was not reassured and made a mobile telephone call to her brother and explained her fears to him. He advised her to keep a close watch on this car and to keep in contact with him. When the plaintiff parked her motor car at B.C.C. she observed this other car being parked nearby.
40. On entering the college the plaintiff told one of the teachers representatives on the Board of Management whom she felt she could trust, what was occurring. She then informed one of the clerical staff in the college office that she was going to one of the Resource Centres. On arrival at this Resource Centre the plaintiff noted the same motor car parked nearby. On concluding her business at the Resource Centre the plaintiff carried out about seven home visits as part of her duties as Home-School Liaison coordinator. This car continued to follow her even when the house being visited by the plaintiff was situated in a cul-de-sac.
41. The plaintiff noted that one of the men in this car was wearing a yellow coloured helmet of a type worn by builders. I accept the plaintiff’s evidence that she felt hunted, threatened and terrified. She made another mobile telephone call to her brother. Acting on his instructions she noted the registration number of the car that was following her and telephoned the emergency number and explained the situation to An Garda Síochána. Subsequent Garda intervention ascertained that the plaintiff was being followed a private investigator personally employed by Dr. C. without the knowledge or approval of the Rev. Chairman or of the Board of Management of B.C.C..
42. Despite being fully aware of the plaintiff’s long and totally uncharacteristic absences from work, in 2005, 2006 and 2007, medically certified on each occasion as being due to work related stress, which he knew, or would have known had he chosen to consider the matter, rendered the plaintiff very vulnerable to some form of mental illness such as nervous breakdown, Dr. C. arranged for this single lady to be stalked by a private investigator. I find that it was reasonably foreseeable by him, that if the plaintiff for whatever reason, accident, her own hyper vigilance or the ineptitude of the investigator, became aware of being pursued by an unknown male the effect upon her was likely to be so traumatic as to precipitate her, vulnerable as she was, into mental illness. It was not necessary that he should have been able to foresee the actual injury ultimately suffered by the plaintiff. For Dr. C. to have so acted, whether deliberately or with reckless indifference even though he was or ought to have been aware that mental harm to the plaintiff might result from his actions, amounted in my judgment to malicious targeting and harassment of the plaintiff. I find it significant that Dr. C. did not seek prior sanction from the Board of Management of B.C. C. for this extraordinary course of action. Even if he believed that members of the Board whom he considered to be well disposed towards the plaintiff might warn her of his intentions, he did not consult the Rev. Chairman of the Board as he had in the case of other difficulties with the plaintiff since the 28th March, 2007.
43. It is well established in this jurisdiction, both at common law and now by s. 15 of the Employment Equality Act 1998, that even if the Board of Management of B.C.C. did not know or could not reasonably have known (which was not the situation in the present case), that the plaintiff was being bullied and harassed by Dr. C. in the course of her work, it is still vicariously liable for the wrongful acts of Dr. C. once those acts were committed by him within the scope of his employment. If find that the Board of Management of B.C.C. did not authorise any of the acts of Dr. C. which I have held amounted to bullying or harassment of the plaintiff. The Board of Management of B.C.C. was not aware that Dr. C. had engaged the services of a private investigator to carry out covert surveillance of the plaintiff during the course of her work which I have found amounted to harassment of the plaintiff. However, all these acts took place during the official school day and, in my judgment were related to his work and were a wrongful way of performing the task which Dr. C. as principal of B.C.C. was authorised to perform, that is, to manage the business of the college. This involved ensuring that teachers were present and were carrying out their duties properly and responsibly. The Board of Management of B.C.C. decided at its meeting on the 6th March, 2008, having queried Dr. C. at length about the matter, that he had acted within the scope of his employment in engaging the services of the private investigator and in paying for those services out of a college fund administered by Dr. C. Therefore, the vicarious liability of the Board of Management of B.C.C. for the acts of Dr. C. is not an issue in this case. What are involved are issues of foreseeability, causation and damage.
44. On the 22nd December, 2006, Dr. McMahon who had been the plaintiff’s General Medical Practitioner since 1980 concluded that the plaintiff was then suffering from anxiety disorder: prior to this his diagnosis had always been one of stress due to being bullied at work. On the 1st September, 2006, he had advised the plaintiff to take time off from work to recover from this stress which he attributed to being bullied and harassed at work by Dr. C.. On the 27th March, 2007, Dr. McMahon was satisfied that the plaintiff was sufficiently recovered to return to work and he noted that she was very keen to do so. The plaintiff did return to work on the 28th March, 2007, and, despite the events described previously in this judgment, it was not until the 1st April, 2008, that she again felt a need to consult Dr. McMahon.
45. On this occasion the plaintiff complained of being very anxious, unable to sleep, distressed and worried. Her complaint was that she had been followed on her house visits as Home-School Liaison Coordinator by a private investigator engaged by Dr. C.. She felt very despondent that the Board of Management of B.C.C. would do nothing. On this occasion, Dr. McMahon formed the opinion that the plaintiff was bordering on depression. However, he did not prescribe anti-depressants or anti-anxiety medication. He told the court that this was his normal practice as he considered that drug therapy should always be the option of last resort because of the danger of a patient becoming drug dependent.
46. The plaintiff presented again on the 28th August, 2008, following the death of her father, to whom she was very close. On that occasion she told Dr. McMahon that she was, “still fighting for her work conditions and trying to reinstate her service to pupils and parents”. On the 2nd October, 2008, the plaintiff next visited Dr. McMahon. He found her depressed. She asked to be referred to Dr. Abbie Lane, a consultant psychiatrist. Dr. McMahon agreed. He told the court that since she had first become his patient in 1980 and despite a difficult marriage and a very traumatic separation, the plaintiff had never previously needed such a referral. Department of Education sick leave records show that Dr. McMahon issued medical certificates to the plaintiff on the following dates: 9th September, 2008, 10th September, 2008, 2nd October, 2008, 20th October, 2008, 27th October, 2008, 17th November, 2008, 24th November, 2008, 10th December, 2008, 22nd December, 2008, 9th January 2009, 19th January, 2009, 26th January, 2009, and finally on the 9th February, 2009.
47. In cross examination Dr. McMahon accepted that he had never diagnosed the plaintiff as suffering from clinical depression or from any form of psychological or psychiatric illness. He considered that the plaintiff was suffering from severe stress and anxiety which he considered to be a psychological crisis but not an illness. He considered that the plaintiff should see a consultant psychologist, but she asked to be referred to Dr. Lane. She was seen by Dr. Lane on the 10th November, 2008. Dr. McMahon told the court that he had last seen the plaintiff on the 4th December, 2008. On that occasion she had told him that she had decided that resuming work was out of the question. He said that he was not at all in favour of this. He hoped that the plaintiff would resume her work as a teacher which she obviously enjoyed and he tried to persuade her to this effect. He considered that it was too early for her to retire and that it was not in the best interests of her own psychological welfare to retire. He felt that on this occasion she could overcome her problems just as she had done in relation to the very traumatic separation in 1999/2000.
48. Dr. Lane, a consultant psychiatrist, told the court that she saw the plaintiff for the first time on the 10th November, 2008, on referral from Dr. McMahon. On presentation, the plaintiff appeared stressed and pale and wept frequently during the consultation. The plaintiff complained of down mood present all day every day for more than two weeks, lack of interest in or enjoyment of everyday things, disturbed sleep, loss of appetite, constant fatigue, lack of motivation and, poor concentration. Dr. Lane concluded that the plaintiff was suffering from severe clinical depression with an overlay to post traumatic stress disorder. Because of the plaintiff’s description of feeling hopeless and worthless, Dr. Lane considered that there was a possible risk of self-harm and endeavoured, unsuccessfully, to persuade the plaintiff to undergo a period of in-patient treatment. She therefore prescribed anti-depressant and anti-anxiety medication, – Lustral, – at the maximum permitted dosage.
49. Dr. Lane reviewed the patient at two monthly intervals thereafter. By March 2009, she noted that the plaintiff’s mood had improved somewhat, but that she was still anxious, depressed and tearful. Dr. Lane considered that the plaintiff was just about able to cope with the normal chores of day to day living and was not fit to return to work. Throughout 2009, Dr. Lane provided the plaintiff with cognitive behaviour therapy. By June 2010, Dr. Lane was satisfied that the plaintiff was considerably recovered: her mood was up, she had recovered motivation and interest in things, her enjoyment of life had returned and she felt more hopeful. However, she remained anxious at times and was subject to occasional flashbacks and nightmares of persons following her. Dr. Lane concluded that the plaintiff was no longer depressed and was able to go out on her own without being overanxious or over vigilant. At this time Dr. Lane considered that the plaintiff was physically and mentally able to return to work at B.C.C. but she remained, very concerned that the plaintiff might become re-traumatised by a classroom incident, a difficulty with a parent or, continuing friction with the college administration or with colleagues on the teaching staff.
50. Dr. Lane produced in evidence the referral letter dated the 3rd October, 2008, sent to her by Dr. McMahon. This letter referred to bullying and harassment at work and to the fact that the plaintiff’s father had died recently. Dr. McMahon also referred to the fact that on the previous day he had detected what he considered to be signs of a depressive illness. It was Dr. Lane’s expert opinion, which I accept, that given the plaintiff’s history, the death of her father was not the cause her symptoms, though it probably added to her low mood. The fact that these symptoms had continued even though the plaintiff was away from the work environment since the 1st October, 2008, was an indication to Dr. Lane of the severity of the plaintiff’s depressive illness. I am satisfied that Dr. Lane was not shaken in her opinion that there was no other reasonable or rational explanation for the plaintiff’s illness in her history, other than the alleged bullying and harassment. Dr. Lane told the court that the plaintiff had informed her that on the 20th October, 2007, the Investigating Officer under the Code of Procedure had found that she had not been harassed or bullied at work in relation to the matters then at issue. The plaintiff told Dr. Lane that she did not accept this conclusion and that the bullying and harassment by Dr. C. had continued despite the investigation. Dr. Lane conceded that the investigation and its outcome would have had a traumatic effect on the plaintiff. However, she stated that she was quite satisfied by reference to the entire history that this was not what had caused the plaintiff’s illness: in her opinion that was the workplace situation. Dr. Lane accepted that prior to 1st April, 2008, there had been no diagnosis of depression in the plaintiff’s case. She told the court that constant stress and anxiety can lead to depression and that when she saw the plaintiff for the first time on the 10th November, 2008, she had no doubt whatever but that the plaintiff was then suffering from a psychiatric illness, – serious depression.
51. Dr. Lane told the court that in order to form a diagnosis that the plaintiff was suffering from severe depressive illness on the 10th November, 2008, she had to be satisfied that her symptoms had commenced no later than two weeks prior to the date of the consultation. However, given the severity of the plaintiff’s illness on that date she was satisfied that the plaintiff must have been suffering from depression for a very considerable time before that, probably for as long as two years. I find it very significant that on the 1st April, 2008, – almost five moths before her father died on the 25th August, 2008, – the plaintiff was diagnosed by Dr. McMahon as “bordering on depression this time”. Dr. Lane stated that she was aware that the plaintiff had applied to the Department of Education in 2009, for leave to retire on the basis of, “permanent ill health”. Dr. Lane stated that she was not aware that Dr. McMahon had strongly urged the plaintiff not to retire. Dr. Lane told the court that she did not have any role whatever in the plaintiff’s decision to retire.
52. Dr. Lane told the court that she was satisfied that the plaintiff was also suffering from post traumatic stress disorder. She said that the causative trauma was the threat to the plaintiff’s career and therefore her security, the feeling of helplessness in the face of the continuous bullying and harassment and, the profound threat to her core values. Dr. Lane considered that the accumulation of these matters would be sufficiently traumatic to induce post traumatic stress disorder in the plaintiff. In the plaintiff’s case she felt that all the classic symptoms of post traumatic stress disorder had become evident within the expected period: the plaintiff had intrusive memories of the events, nightmares and flashbacks, she was hyper aroused and tense which manifested itself especially in the form of hyper vigilance and hyper alertness, she avoided returning to the College, going out on her own, or anything which reminded her of the trigger events. However, Dr. Lane did not give evidence that the plaintiff had suffered a psychiatric injury because of an immediate fear for her own safety consequent on being followed by the two men. Dr. Lane admitted that she did not seek copies of Dr. McMahon’s’ clinical notes. I accept her explanation that she would not do so unless the plaintiff had a history of mental problems in the past. Dr. McMahon told the court without any reservation or equivocation that the plaintiff, in his medical opinion had not suffered from any psychiatric injury while she was under his care. No medical data studies or literature was advanced in support of the contention that a feeling of helplessness in the face of a perceived threat, not to one’s personal safety but to one’s career and not from a single traumatic event but from an accumulation of events over a period of nineteen months would be a sufficient trauma to give rise to post traumatic stress disorder.
53. It is significant that in the work, “Understanding Mental Health (Blackhall Publishing: 2006), which she produced in evidence by her, Dr. Lane at chap. 2, p. 27 states in respect of “post traumatic stress”, that:-
“This is a common condition which occurs some weeks after a person has been involved in or has witnessed a traumatic event. Examples include being involved in a road traffic accident, being held at gunpoint, being involved in a fire or an explosion. Symptoms come on between two and six weeks following the trauma . . . (etc.).”
54. In the circumstances and having regard to the decision this Court in Mullally v. Bus Éireann [1992] I.L.R.M. 722 and of the Supreme Court in Kelly v. Hennessy [1996] 1 I.L.R.M. 312 I find that the plaintiff has not established, – the onus of proof being on her, – on the balance of probabilities, that she suffered post traumatic stress disorder as a consequence of bullying or harassment by Dr. C..
55. Dr. Mohan a consultant forensic psychiatrist, who gave evidence in the case for the defendant, told the court that he had a consultation with the plaintiff on the 2nd December, 2008, and that he had also considered the following documents: the Report of the Investigating Officer dated the 26th October, 2007, the Pleadings in the instant case, the Clinical Records of Dr. McMahon, Dr. Lane’s Report, the Department of Education Attendance records relating to the plaintiff and, the views of Dr. C. and of his Solicitors. He accepted that the plaintiff did not have a personality disorder. However, he considered that she demonstrated an impaired judgment and a distorted interpretation of work place events, coupled with a tenacious sense of personal rights out of keeping with reality and, an excessive regard for her contribution to B.C.C.. Dr. Mohan agreed that he had come to this opinion principally from his analysis of the report by the Investigating Officer.
56. Dr. Mohan accepted that stress and anxiety, such as that reported by Dr. McMahon in his clinical notes relating to the plaintiff could be a significant causative factor in the onset of depression. However, he felt that the fact that the plaintiff had continued to work after the incident involving the private investigator in early February 2008, until the 1st October, 2008, with only very few days absent was, more consistent with stress than with clinical depression. Dr. Mohan told the court that if the plaintiff was in fact suffering from severe depressive illness on the 10th November, 20008, as was the opinion of Dr. Lane, he considered that evidence of the onset of that illness would have to be sought at least six months prior to that date, but not as far back as two years. He noted that the plaintiff had received no medical treatment for depression prior to the 10th November, 2008. Dr. Mohan considered that the very considerable emotional stress and feeling of victimisation reflected in Dr. McMahon’s clinical records, compounded by feelings of disappointment and anger on the 26th October, 2007, following receipt of the Investigating Officer’s report, followed by the death of her father, to whom she was very close, on the 25th August, 2008, could be capable of causing the plaintiff to become depressed. However, he considered that there was no evidence on the medical record of severe and persistent symptoms, at any rate prior to the 1st April, 2008. It was his opinion that the plaintiff was suffering from anxiety and stress as a normal response to the pressures and problems in the work place.
57. I find on the balance of probabilities that the plaintiff has discharged the onus on her of establishing that she did suffer a psychiatric illness, in the form of clinical depression and, that a direct causative connection existed between that injury and the continuous bullying and harassment of her by Dr. C. from the 28th March, 2007, onwards. The evidence established that Dr. McMahon considered that the plaintiff was fit to return to work on the 28th March 2007, and he furnished a medical certificate to that effect. I accept his evidence that the plaintiff was herself most anxious to return to work at that time. On the 1st April, 2008, Dr. McMahon found the plaintiff to be, “bordering on depression”. This was almost five months before her father died. Undoubtedly she continued to work, but it is not at all unusual for persons suffering from depression to continue to work and from what I observed of this plaintiff, I am satisfied that this would be entirely in keeping with her character. I am prepared to infer that the distress which the plaintiff experienced following the death of her father as noted by Dr. McMahon in his clinical notes for the 25th August, 2008, may have temporarily lowered her mood further, if it was already low. However, I am satisfied from her personal and medical history and from the evidence of Dr. McMahon based upon his unique insight into her character and psyche, as her general medical practitioner for over 30 years, that this bereavement did not cause or materially contribute to the onset of her depression which was noted for the first time by Dr. McMahon a few weeks later on the 2nd October, 2008.
58. Dr. Lane treated the plaintiff for depressive illness from the 10th November, 2008, to June 2010, by which time she considered the plaintiff was fit to return to work. Dr. McMahon agreed and Dr. Mohan accepted that the onset of depressive illness would be consistent with the sort of work place problems which the plaintiff claimed she was experiencing at the hands of Dr. C.. There was no evidence at all to suggest that the plaintiff had a pre disposition to depression even if an older sibling suffered from that illness. The evidence of Dr. McMahon, in my judgment, entirely disposes of that suggestion. I find that Dr. Lane is correct in her conclusion that apart from the constant stress and anxiety suffered by the plaintiff between the 28th March, 2007 and the 7th February, 2008, culminating in the traumatic events of the 7th February, 2008, there is nothing in the plaintiff’s life to otherwise account for the clinical depression suffered her. It was not suggested during the course of the action that the plaintiff was feigning illness or exaggerating her symptoms.
59. Whatever would have been the position in 2005 or 2006, I am satisfied, and I so find, that on the 28th March, 2007, Dr. C. knew or ought reasonably to have foreseen that any bullying or harassment of the plaintiff carried a “materially substantial risk” of the plaintiff suffering a mental injury as a result and could by the exercise by the reasonable care have avoided that result. Dr. C. and the Board of Management of B.C.C. knew that the plaintiff had been absent from work for a number of weeks in November and December 2005, certified by Dr. McMahon as suffering from work related stress. They knew that between the 31st August, 2006 and the 27th March, 2007, the plaintiff had been certified by Dr. McMahon as unfit for work due to work related stress. In my judgment this history of occupational stress put Dr. C. on notice that the plaintiff was vulnerable to some form of mental injury if she was subjected to further stress arising from such as would inevitably follow from bullying or harassment at work. Dr. C., despite the poor start on the 28th March, 2007, could have apologised to the plaintiff for his outburst, welcomed her back and sought to effect a reconciliation between them or if that was not possible, to at least try to work out a modus viviendi with her. If it proved impossible to re-establish even a professional working relationship with the plaintiff, then Dr. C. should have immediately called on the Board of Management of B.C.C. to intervene and to insist that the plaintiff cooperated fully with him in carrying out her duties as Home-School Liaison Coordinator. This is something which a reasonable and prudent manager would have done in the circumstances. Dr. C. ought reasonably to have known in commissioning the surveillance, that if the plaintiff became aware that she was being followed about in public by two unknown men and became frightened as a result, there was a clear and substantial risk that she would suffer a nervous breakdown, post traumatic stress disorder, depression, illusional disorder or some other form of mental illness.
60. Apart from being vicariously liable for the actions of Dr. C. the Board of Management of B.C.C. owed the plaintiff a direct duty of care, as her employer, both at common law band by virtue of the provisions of the Safety Health and Welfare at Work Act 2005, to take reasonable care to prevent her suffering mental injury in the workplace as a result of being harassed or bullied by other employees if they knew or ought to have known that such was occurring. (Quigley v. Complex Tooling and Moulding Limited [2009] I.R. 349). I am satisfied that in the post 28th March, 2007, period the Board of Management of B.C.C. ought to have known, from correspondence from the plaintiff’s solicitors, correspondence from the parents of pupils in the college and, from the personal knowledge of several members of the Board involved in the day to day business of the college that the plaintiff was continuing to claim that she was being victimised, bullied and harassed by Dr. C.. For the same reasons to which I have adverted in the case of Dr. C., the Board of Management ought reasonably to have foreseen that there was a materially serious risk that the plaintiff would suffer some form of mental illness if the situation between her and Dr. C. was permitted to continue.
61. Despite this, the Board of Management of B.C.C. took no reasonable or proper steps as the plaintiff’s employer to address the situation. Following receipt of the letter dated the 15th December, 2007, from Dr. C. the Board of Management following its meeting on the 10th January, 2008, did invite Dr. C. and the plaintiff to meet the Board on the 17th January, 2008, and set out their respective grievances. I am prepared to accept the evidence of the Rev. former Chairman and of the current Chairperson of the Board of Management that the Board was not aware of the full extent of the problems existing and that neither the teacher’s representatives nor the Union representatives on the Board had formally raised the matter before the Board. Nonetheless, between April 2007 and the 10th October, 2008, the Board was aware that the plaintiff and Dr. C. were not communicating with each other, that confrontations were taking place between them and that this was essentially the same sort of situation which had formed the basis for the plaintiff’s complaint of bullying and harassment by Dr. C. on the 4th October, 2006. However, was apart from the single offer to meet the parties on the 17th January, 2008, the Board of Management took no positive action whatsoever to deal with the situation which the Deputy Principal in evidence described as “catastrophic, totally strange, unusual and unreal”. I find that this failure of the Board of Management to act as a reasonably careful and prudent employer would have acted permitted the continuous bullying and harassment of the plaintiff by Dr. C. to continue to the point where the plaintiff began to suffer clinical depression. Dr. C. told the court that he was driven by desperation to engage the services of the private investigator because of the failure to the Board of Management and the Department of Education to take any action in the matter. The evidence of the Rev. former Chairman of the Board of Management and the evidence of the current Chairperson of the Board suggests that the reason why the Board did not act prior to the 10th October, 2008, was that the procedures under the Code of Procedure were slow and complex and, “the lawyers had turned the whole affair into a procedural wrangle and a legal morass”. Certainly the correspondence admitted or proved in evidence in the course of the trial might afford a reasonable basis for that belief. However, this does not provide a reasonable or proper ground for taking no action at all for ten months. In my judgment the Board of Management of B.C.C. was in breach also of the direct duty of care, which, as her employer, it owed the plaintiff.
62. In my judgment the evidence establishes that the plaintiff was subjected to deliberate and continuous bullying and harassment by Dr. C. as a direct consequence of which she suffered mental injury in the form of clinical depression, a result which was reasonably foreseeable. I am satisfied that from some short time after the 7th February, 2008, until June 2010, the plaintiff suffered a serious depressive illness. She has now recovered from this, but I accept Dr. Lane’s evidence that she remains at present anxious at times, is subject to occasional flashbacks and nightmares of persons following her and is vulnerable to becoming re-traumatised by any form of significant confrontation. However, neither Dr. Lane nor Dr. McMahon advised the plaintiff not to return to work or to take early retirement from teaching. On the contrary, Dr. McMahon strongly advised her against such a course. There was no evidence which would lead me to conclude that it would be irrational and unreasonable to expect the plaintiff to continue to serve as Home-School Liaison Coordinator or in some other teaching capacity in B.C.C.. She did so between the 7th February, 2008 and the 1st October, 2008 and with very few days absent from work. There is nothing I can see on the facts in this case which would in any way inhibit a simple and just resolution of the difficulties which have arisen between Dr. C. and the plaintiff which would enable them to continue to work efficiently together as professional colleagues, even if not as friends. The evidence in this case clearly established that it is quite usual for some teachers in large schools and colleges not to be on speaking terms with other teachers in the same school or college.
63. The court has already held that the defendants were negligent in causing or permitting the plaintiff to be harried, watched and beset in the course of her employment with the Board of Management of B.C.C.. I find that the same acts or omissions may form a basis for an action for breach of an implied term of contract. In Matthews v. Kuwait Bechtel Corporation [1959] 2 Q.B. 57, Sellers L.J. delivering the judgment of the Court of Appeal held at p. 66 as follows:-
“It is perhaps sufficient if I say that, in my view, this question is a somewhat artificial one. The existence of the duty arising out of the relationship between employer and employed was recognised by the law without the institution of an analytical inquiry whether the duty was in essence contractual or tortious. What mattered was that the duty was there. A duty may exist by contract, express or implied. Since, in any event, the duty in question is one which exists by imputation or implication of law and not by virtue of any express negotiation between the parties, I should be inclined to say that there is no real distinction between the two possible sources of obligation. But it is certainly, I think, as much contractual as tortious. Since in modern times the relationship between master and servant, between employer and employed, is inherently one of contract, it seems to me entirely correct to attribute the duties which arise from that relationship to implied contract. It is a familiar position in our law that the same wrongful act may be made the subject of an action either in contract or in tort at the election of the claimant, and, although the course chosen may produce certain incidental consequences which would not have followed had the other course been adopted, it is a mistake to regard the two kinds of liability as themselves necessarily exclusive of each other.”
64. In the instant case I think it will be found that the plaintiff elected to present her case in tort. In these circumstances I feel that it can only lead to confusion to deal further with implied contractual terms and remedies for breach of contract.
65. In my opinion the actions of Dr. C. in this case do not amount to what Griffin J. described in Conway v. I.N.T.O. [1991] 2 I.R. 305 at 323 as, “wilful and conscious wrongdoing in contumelious disregard of another’s rights”. In such circumstances the court is not disposed to awarding exemplary, otherwise punitive damages to the plaintiff. In the same case Finlay C.J. defined “aggravated damages” as compensatory damages increased by reason of:-
“(a) The manner in which the wrong was committed involving such elements as oppressiveness, arrogance or outrage or,
(b) Conduct of the wrongdoer after the commission of the wrong: refusal to apologise or ameliorate the harm done, or threatening to repeat the wrong, or
(c) The conduct of the wrongdoer or his representatives in defending the claim up to and including the trial of the action.”
66. In my judgment the behaviour of Dr. C., towards the plaintiff in the present case was oppressive and arrogant and, I find caused her additional hurt and insult. I therefore consider that this is an appropriate for the court to mark its abhorrence of such conduct by awarding aggravated damages to the plaintiff. The court will therefore award damages to the plaintiff for the personal injuries which she has suffered to the date of this judgment in the sum of €60,000 of which the sum of €5,000 represents the increased amount of the compensatory damages. The court will award the plaintiff additional damages in the sum of €15,000 in respect of personal injuries which she may suffer in the future. €13,625 agreed specials.
Other Cases Referred to in Arguments
Educational Company of Ireland Ltd & Anor. v. Fitzpatrick & Others [1961] I.R. 345.
Kennedy & Others v. Ireland and the Attorney General [1987] I.R. 587.
Allen (Claimant) v. Dunnes Stores Ltd. (Jan. 1995) [1996] Employment Law Reports 203.
The Health Board v. B.C. & The labour Court (Jan. 1994) Employment Law Reports.
Maher v. Jabil Global Services Ltd. [2005] I.E.H.C. 1310.
McGrath v. Trintech Technologies Ltd. [2005] 4 IR 382.
O’Keeffe v. Hickey & Others [2009] 1 ILRM 490.
Ruffley v Board of Management of St Anne’s School (CA)
[2015] IECA 287.
THE COURT OF APPEAL
[2014/298]
The President
Finlay Geoghegan J.
Irvine J.
BETWEEN
UNA RUFFLEY
RESPONDENT/PLAINTIFF
AND
THE BOARD OF MANAGEMENT OF ST. ANNE’S SCHOOL
APPELLANT/DEFENDANT
JUDGMENT of the President delivered on 8th December 2015
Summary of Factual Background
1. In the judgment of the High Court in this case, delivered on 9th May 2014, O’Neill J. awarded damages to the plaintiff, Ms. Una Ruffley, in the total sum of €255,276 and costs on foot of her claim for bullying and harassment in the course of her employment as a Special Needs Assistant in the defendant’s National School. The defendant appeals against the findings on liability and damages.
2. The school is a facility for children with physical or intellectual disabilities, and although it is a National School, it admits pupils aged between 4 and 18 years. It was founded by and is under the patronage of KARE, an organisation of parents which provides a wide range of services for children with disabilities that employs some 350 people. The Chief Executive Officer of KARE, Mr. Christy Lynch, is also the Chairman of the Board of Management of St. Anne’s School.
3. The plaintiff received a severe warning in a disciplinary process in the school because of an incident that occurred on 14th September 2009. In the course of her work on that date, she was with a pupil in a room used for individual therapy known as the Sensory Room when she became concerned and sought help because he unexpectedly fell asleep. The Principal was notified and came to the door but failed on three attempts to get into the room. The plaintiff, having returned to the room after calling for assistance, had locked the door from the inside. This became a matter of criticism first by the Principal of the school and subsequently by the Board of Management.
4. In response to the complaint, the plaintiff said that other Special Needs Assistants locked the Sensory Room door and, besides, the school authorities had not given any instruction that the door was not to be locked. There were also practical reasons for doing so: some children, including the particular pupil, had a tendency to run out of the room during therapy and sometimes other children interrupted the engagement by opening the door from outside.
5. The episode might have been forgotten had not another question arisen about the plaintiff’s conduct. The Principal had put in place a means of monitoring the particular pupil’s progress using the equipment in the Sensory Room over a 4-week period under the plaintiff’s guidance. Towards the end of the period, the class teacher to whom the plaintiff was assigned noted an entry that was wrong about the boy’s performance. The plaintiff had ticked a box on the monitoring form devised by the teacher that recorded his having achieved a goal that he had not done. The teacher was not satisfied to let the plaintiff correct the entry. The Principal thought this matter was serious and that it warranted re-activation of the original disciplinary issue. Thus, it came to the Chairman of the Board.
6. The Chairman was particularly concerned about the door locking which he considered very serious. He thought that it should have been obvious to special needs assistants because of their training that child safety demanded that such doors should be kept unlocked. He thought the matter should be referred to the Board, which happened on 23rd November 2009. That body decided that the plaintiff should be given a sanction just below dismissal in the form of a severe grade warning. There was delay in notifying the plaintiff, which was done on 21st December 2009 and confusion and mistaken information about how long it would remain on her record. At a meeting on 18th January 2010, the Principal told the plaintiff that the warning would stay for 18 months. The plaintiff said that she had been in contact with her Union and wanted to appeal the decision. On 20th January 2010, the plaintiff was given a letter signed by the Chairman confirming the sanction, in which there was reference to an investigation of the matter.
7. On 27th January 2010, there was a meeting between the Principal and the plaintiff that was intended to get closure on the matter but it gave rise to a complete conflict of evidence, with the plaintiff alleging that she was subjected to severe denigration by her superior that reduced her to tears. The Principal denied these allegations. The trial judge simply records in his judgment that he accepted the plaintiff’s evidence.
8. On 29th of January 2010, the plaintiff’s Union representative wrote to the Chairman appealing against the sanction imposed on the plaintiff on the grounds, first, that the process was unfair; secondly, that the school had not expressly prohibited locking the Sensory Room door and thirdly, that a final written warning was too severe a sanction. The writer made it clear that he was not suggesting that locking the Sensory Room was “acceptable, but rather, that the practice was known and had not been objected to previously”. There was no investigation and the response was a brief rejection.
9. The plaintiff’s solicitors wrote and the Board repudiated any allegation of wrongdoing and further correspondence debated the issues to and fro.
10. The plaintiff continued to work until September 2010, when the plaintiff experienced an otherwise minor exchange over alleged lateness for work as the last straw and went on certified sick leave due to work-related stress. She has remained out of work since then. Evidence on her behalf was that she sustained psychiatric injuries that prevented her working. Her employment has not terminated by resignation or dismissal.
11. The plaintiff claimed damages from the defendant, as her employers, for bullying and harassment occurring between the date of the Sensory Room incident on 14th September 2009, and the date when she ceased work, 27th September 2010.
12. The judge accepted the definition of Workplace Bullying in para. 5 of the Industrial Relations Act 1990 (Code of Practice detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 (S.I. No. 17/2002):
“Workplace Bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.”
13. In his judgment, the trial judge held as follows: –
“(a) up until March 2010, the Board might not have been aware of the merits of the plaintiff’s case about the sensory room door, notwithstanding that the principal was well aware of it;
(b) from March 2010 onwards, the Board knew what the plaintiff’s case was;
(c) from April 2010, the Board knew that other special needs assistants locked the door from time to time.
The rejection of the plaintiff’s appeal by the Board in May 2010, without any meaningful consideration of the merits of the plaintiff’s case, and the subsequent failure or refusal of the Board in the autumn 2010, when given a fresh opportunity, on foot of the correspondence from the plaintiff’s solicitor, to at all consider the merits of the plaintiff’s case at this late stage when they were aware of the impact that there are now erroneous and unjust decision was having on the plaintiff was, in my view, a persistence by them in their unfair and inappropriate treatment of the plaintiff.”
He said also that he was “quite satisfied that the treatment of the plaintiff throughout this process by Ms. Dempsey was entirely ‘inappropriate’ within the meaning of the definition of bullying in the workplace
(1) that the behaviour of the school was inappropriate
(2) it was not an isolated incident but was persistent for more than a year
(3) the persistent, inappropriate behaviour “wholly undermined the plaintiff’s dignity at work.”
14. The judge held that the plaintiff suffered an anxiety and depressive disorder resulting from her reaction to what happened from September 2009 to September 2010 – that resulted in a high state of anxiety, low mood, loss of confidence and self-esteem and inability to cope with everyday life. Those conditions, and the fear that she would not get a good reference, inhibited the plaintiff from seeking employment elsewhere so she had not worked since 27th September 2010.
The Appeal
15. The appeal to this Court is brought on three grounds: –
1. The conduct of the school and its officers that the plaintiff complained about in this case, and which the trial judge found to have been proved, did not amount to bullying within the definition as accepted by the Supreme Court and by the High Court in previous judgments and as was accepted as the law in this case. What happened here was that there was a disciplinary process that was flawed. The defendants do not deny that the process was wholly defective but submit that that did not make it bullying.
2. There was an absence of evidence of causation in the case to connect any offensive conduct on the part of the school or its officers with the mental health issues that the plaintiff alleged had resulted from the way the school treated her.
3. This ground concerns the award of € 47,000 for loss of earnings into the future. The defendant/appellant protests that such a heading of damages was not actually claimed. It was not pleaded and neither was it provided in particulars under S.I. 391. Evidence was not given in the case as to how long it was going to take the plaintiff to get back to work.
The Appellant’s Submissions
16. The Board of Management submitted that the High Court judge erred in law and in fact in determining that the plaintiff was subject to bullying and harassment, having regard to the legal definition of bullying and harassment as set out in para. (5) of the Industrial Relations Act 1990 (Code of Practice Detailing Procedures For Addressing Bullying in the Workplace) (Declaration) Order.
17. The decision to issue a final written warning to the plaintiff in response to her action locking herself in a room alone with a particularly vulnerable child was a decision taken by the Board of Management and not by the Principal. The investigation in relation to the plaintiff locking herself in the Sensory Room alone with the child was appropriate and a matter which the plaintiff herself accepted should be dealt with by the school Principal. The decision to investigate this issue was not motivated by vindictiveness or an attempt to bully but rather a desire to deal appropriately with a child welfare issue.
18. The actions of the plaintiff in locking herself in a room alone with the child showed sufficient lack of professional judgement that the defendant deemed that a Stage IV warning, as per the school disciplinary procedure was an appropriate, proportionate and necessary response. It was submitted that regard should be had to the fact that certain members of the Board of Management had called for the dismissal of the plaintiff and the evidence was that Ms. Dempsey was not amongst those calling for dismissal of the plaintiff.
19. It was submitted that a failure by an employer to adopt fair or appropriate disciplinary procedures in respect of an employee does not constitute “bullying and harassment” within the definition of same approved in Quigley v. Complex Tooling & Moulding Ltd. [2008] IESC 44, and Catherine Glynn v. Minister for Justice Equality and Law Reform, Ireland and The Attorney General [2014] IEHC 133.
20. There had been no evidence that the defendant, its servants or agents, had been motivated “to humiliate and belittle the victim”. The defendant, its servants or agents, at all material times had been motivated by child welfare/protection issues.
21. It was submitted that in light of the child safety concerns, the action taken by the defendant was justified and did not constitute bullying. Furthermore, it is submitted that all complaints made by the plaintiff flow from the one incident i.e. the locking of the child and the plaintiff in the Sensory Room, and accordingly, there is no evidence of “repeated” behaviour.
22. The second ground advanced by the appellant is that the learned High Court judge failed to have any or any proper regard to the medical evidence adduced on behalf of the plaintiff which showed no causal connection between the allegations of bullying and harassment and the alleged personal injury sustained by the plaintiff.
23. In Quigley, the Supreme Court determined that the plaintiff cannot succeed in his claim unless he also proves that he suffered damage amounting to personal injury as a result of his employers breach of duty where the personal injury is not of a direct physical kind it must amount to an identifiable psychiatric injury.
24. Accordingly, the plaintiff assumes the onus of proof of establishing that such alleged bullying and harassment caused a discernible, identifiable psychiatric injury.
25. It was submitted that the plaintiff has failed to lead medical evidence to prove that she suffered a discernible psychiatric injury beyond what might be described as workplace or occupational stress. It was the plaintiff’s evidence that her first attendance with her General Practitioner in relation to her alleged work-related injury was on 19th August 2010, which was nearly a year after the first event giving rise to the proceedings. It is noted that this visit was towards the end of the 2010 summer holidays, a time when the plaintiff would have been absent from the work environment for a period of approximately six weeks. Furthermore, the plaintiff’s General Practitioner, Dr. McDonnell, accepted that the plaintiff did not attend with symptoms of depression on that date.
26. The third ground is that the learned High Court judge erred in law in assessing general damages in the sum of €115,000 and in assessing future loss of earnings in the sum of €47,000 and allowing the plaintiff loss of earnings to date. The plaintiff did not claim future loss of earnings. The award of damages was excessive, and in particular, the award of future loss of earnings was not appropriate in circumstances where this aspect of loss had not been pursued by the plaintiff at trial.
The Respondent’s Submissions
27. The plaintiff submitted that the actions of the appellant constituted workplace bullying. The plaintiff submitted that O’Neill J. faithfully followed the dicta of the Supreme Court in the case of Quigley v. Complex Tooling & Moulding Ltd. [2009] I.R. 349. In relation to the acts of bullying being repeated, and inappropriate, the judgment is replete with references to incidents of bullying. It is not open to the defendant to suggest that the decision to issue the plaintiff with a final warning was not further bullying of by Ms. Dempsey, given that Ms. Dempsey had sought the support to issue a warning to the respondent.
28. The plaintiff contended that in the light of clear medical evidence adduced on behalf of Ms. Ruffley, a causal connection between the allegations of bullying and harassment and the alleged personal injuries sustained had been shown. Evidence from Dr. Alan Byrne (Consultant Psychiatrist) who diagnosed the plaintiff as having suffered a clinical depression, and Dr. Michael McDonnell (the plaintiff’s General Practitioner), who stated “I thought she was suffering from acute stress reaction, acute anxiety symptoms, she mentioned, she alleged that she was getting bullying and that her work situation was intolerable” and opined that the presenting symptoms which the plaintiff came to him with were consistent with those complaints. He went on to state that the plaintiff continued to suffer from severe anxiety symptoms and depression and that it had a fairly severe effect on the plaintiff.
39. In relation to general damages, the plaintiff’s life and career have been blighted by the bullying which is the subject of these proceedings. The medical evidence adduced on behalf of the plaintiff showed the seriousness of her complaints.
30. In relation to the future loss of earnings, it was, or should have been, obvious to the defendant that the plaintiff had an ongoing claim. The defendant is the employer of the plaintiff. After considerable difficulties, the plaintiff’s loss of earnings was agreed in the sum of €93,276.39. However, that loss of earnings was specifically only up to 6th March 2014. It was quite clear to all parties that the plaintiff (who had complained about the ongoing financial strain of being unemployed), had not worked since 27th October 2010, and that her loss of earnings was continuing. No attempt was made at any stage of the proceedings to suggest that the plaintiff (who still remains an employee of the defendant) ought to have returned to work at an earlier stage with the defendant, or could have obtained work elsewhere. The agreement of the defendant in relation to the plaintiff’s loss of earnings was subject to the defendant alleging that certain social welfare payments were to be deducted therefrom, but the defendant adduced no evidence to show any such deductible amounts.
The Law
31. S.I. No. 17/2002 contains the definition of Workplace Bullying which is set out above.
32. In Quigley v. Complex Tooling & Moulding Ltd. [2009] 1 I.R. at 349, the Supreme Court held that for conduct to amount to bullying it had to be repeated, inappropriate and undermining of the dignity of the employee at work. Furthermore, in his judgment, Fennelly J. said:
“The plaintiff cannot succeed in his claim unless he also proves that he suffered damage amounting to personal injury as a result of his employer’s breach of duty. Where the personal injury is not of a direct physical kind, it must amount to an identifiable psychiatric injury”.
33. In Berber v Dunnes Stores Ltd. [2009] IESC 10, the Supreme Court adopted the view expressed in Hatton and Sutherland as follows:
“It is essential therefore, once the risk of harm from stress in the workplace is foreseeable, to consider whether and in what respect the employer has broken that duty. There may be temptation having concluded that some harm is foreseeable and that harm of that kind has taken place to go on to conclude that the employer is in breach of his duty of care in failing to prevent that harm (and that the breach of duty caused the harm) but in every case it is necessary to consider what the employer not only could but should have done”.
34. In Maher v Gibol Global Services Ltd. [2005] IEHC 130, the High Court considered the duty of care of an employer in relation to an employee who alleges that he suffered physical and mental health during the course of his employment. Clarke J. identified three questions which should be addressed:
“Has the employee suffered an injury to his or her health as opposed as to what may be described as ordinary occupational stress, if so is that injury attributable to the workplace and if so was the harm suffered by the particular employee concerned reasonably foreseeable in all the circumstances”.
35. In Glynn v The Minister for Justice, Equality and Law Reform and The Attorney General [2014] IEHC 133, the facts are stated as follows. The plaintiff had been employed as a civil servant since 1979, performing clerical and accounting duties for Gort Garda Station in County Galway. She told the Court she felt stressed owing to uncomfortable working conditions, bullying and harassment. She complained of an unfavourable working environment, indicated she was not awarded equal pay and states she had several problems working alongside Garda Callaghy. She visited her GP on several occasions and had various consultations with specialist medical advisers as she was ‘down, irritable and not coping’. She had a meeting with Superintendent Mockler in 1996 to discuss her workplace issues. He later telephoned the plaintiff at her home address, which the plaintiff alleged were harassing in nature. However, Superintendent Mockler believed the phone calls were part of the normal process in ensuring staff were helped and supported when experiencing problems in the workplace.. The plaintiff contacted Department of Justice to discuss her ongoing issues yet failed to attend the agreed meeting place on one particular occasion.
36. The Court held: “For an allegation of bullying to be actionable, the first question the Court must answer is whether the behaviour complained of, by reference to an objective test, imports that degree of calibrated inappropriateness and repetition which differentiates bullying from workplace stress or occupational stress. The legal definition of bullying was set out in the Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002. The relevant legal principles to be applied in this case were to be found in Hatton v. Sutherland [2002] 2 All ER 1. As there was ongoing construction work taking place at Gort Garda Station, compelling the plaintiff to carry out her duties in confined conditions, the judge noted that strained working relationships were not difficult to predict. The judge placed heavy reliance on the plaintiff’s failure to disclose her prior history of depression, stressing that such failure or omission was significant in terms of credibility. The judge questioned her failure to attend the arranged meeting with the Department of Justice to which no satisfactory explanation was given. In contrast, the judge found Superintendent Mockler a credible and reliable witness and rejected the allegations of harassment or bullying made against him. The judge commented that the allegations made by the plaintiff are synonymous with that of a one-off isolated incident rather than that of the repetitive conduct necessary to constitute bullying/harassment in the workplace. The judge gave weight to the fact that not one other employee of Gort Garda Station gave evidence to corroborate a culture of harassment or bullying in their place of work. The plaintiff failed to demonstrate that her stress was attributable to the matters complained of in this case”.
37. The approach to be taken by an appellate Court in regard to findings of fact made by a trial judge is well established. The trial judge’s findings of fact on the evidence are not reviewable as to correctness by way of re-examination of the evidence. Inferences and deductions in a process of reasoning may be revisited. Conclusions based on examination of documentary material where this Court is in as good a position as the trial judge are of course open to reconsideration. In Hay v. O’Grady [1992] I.L.R.M. 689, the Supreme Court declared that an appeal court is bound by findings of fact made by the trial judge which are supported by credible evidence, even if there appears to be a preponderance of testimony against them. This is because the trial judge has the advantage of hearing the evidence and observing the manner in which it is given and the demeanour of the witnesses. Where inferences of fact are derived from oral evidence the appeal court should be slow to differ. However, the appellate Tribunal is in as good a position as the trial judge in drawing inferences from circumstantial evidence.
38. It is of course important for the parties and for an appeal Court to understand the reasons why a trial judge made findings of fact. Failure to do so is inconsistent with the principles of reasoned decision making which the courts impose on administrative bodies. In a case where the judge adopts a strong view in favour of one side, it is good practice to reveal the decision maker’s rationale. In this case, there are some trenchant findings on witness credibility which are justified by no more than a bald declaration of acceptance or preference.
Discussion
39. The central issue in the appeal is whether the evidence established a case of bullying. That is the first and principal ground of the appeal. The other two grounds can be briefly decided. The second ground was that there was an absence of evidence of causation in the case to connect any offensive conduct on the part of the school or its officers with the mental health issues that the plaintiff alleged had resulted from the way the school treated her.
40. This point cannot succeed because there was clear medical evidence from the plaintiff’s General Practitioner and from a consultant psychiatrist which was accepted by the trial judge and which he was entitled to accept. The fact that there might be room for scepticism about the connection of the conduct complained about and the injuries alleged to have resulted does not furnish a ground of appeal. A trial judge is entitled to accept evidence that he or she has heard and it is not the function of the Court of Appeal to retry the case. This ground accordingly fails.
41. The third ground concerns the award of € 47,000 for loss of earnings into the future. The defendant/appellant protests that such a heading of damages was not actually claimed. It was not pleaded and neither was it provided in particulars under S.I. 391. Evidence was not given in the case as to how long it was going to take the plaintiff to get back to work. Since the loss of wages to date of trial was calculated at almost € 94,000, it may be that the trial judge divided the sum for past loss of earnings in half and made an award accordingly. In my view, this part of the award of damages cannot stand because there is no evidential basis for it and it was not part of the plaintiff’ claim. Therefore, irrespective of the fate of ground number 1, I would reduce the damages by € 47,000.
42. Turning now to the first and fundamental ground, it is useful to begin with consideration in turn of the events involving the plaintiff during the relevant period.
43. On 15th September 2009, the plaintiff, in the course of a meeting in the Principal’s office, was advised that her conduct in locking the door was being investigated in the context of a disciplinary procedure. This was not inappropriate or undermining of her dignity in the workplace.
44. The meeting with the Principal on the same afternoon, when she brought another Special Needs Assistant with her did not, on her own evidence, cause any concern. The meeting as the judge held centred on developing a programme to assess the progress of the child although there was some other discussion. Whatever about that, on the plaintiff’s evidence she was not upset.
45. The meeting that took place between the Principal and the plaintiff on 18th September 2009 was not upsetting and seems to have been to decide on a date when the child’s progress would be reviewed.
46. On 20th October 2009, all of the SNAs were advised not to lock the Sensory Room door. Again, no complaint can be made regarding the defendant’s conduct in this regard.
47. Approximately four weeks later, the plaintiff met with Ms. Bramhall, in the course of which it was noted that the plaintiff had incorrectly filled in a form regarding the child’s ability to use a swing. The plaintiff did not seem to take any exception to Ms. Bramhall’s refusal to alter the former to insert the correct information.
48. The first action on the part of the defendant that might potentially be viewed as inappropriate, or as undermining of the plaintiff in the workplace, was the meeting with the Principal on 19th October 2009, in which the Principal characterised her error in relation to the completion of documentation concerning the child’s ability to use the swing as some type of falsification. The plaintiff said she felt she was treated unfairly in the course of this meeting.
49. The trial judge was critical of Ms. Bramhall in implicit terms for recording the plaintiff’s entry on the form as “miscommunication”, and explicitly, of Ms Dempsey, the Principal, whose conduct in accusing the plaintiff of falsification he regarded as irrational at best, and he just stopped short of characterising it as being malicious. The evidence in the case, however, as fairly recorded by the judge, does permit a query as to the validity of such a trenchant condemnation. Another SNA had been more successful with the child on occasions when the plaintiff was on sick leave and Ms. Bramhall encouraged her to try to get him to use the equipment with her. The form only required a tick to confirm a positive achievement so it was not a complicated matter and unfamiliarity does not appear to be a convincing reason for error.
50. Accuracy in such circumstances is important. Irrespective of those considerations, the fact is that Ms. Bramhall, as the person in charge of the plaintiff, was not satisfied to accept that the wrong entry was simply a trivial error and so reported to the Principal. Ms. Dempsey challenged the plaintiff with having made a false entry, which the plaintiff denied.
51. It is difficult to see how the Principal was to be criticised for following up the information supplied by the teacher about her Special Needs Assistant. It may be that she was wrong in her inference or understanding of what Ms. Bramhall meant, but it is significant that the latter had been unwilling to overlook the matter. Even if either, or both the Principal and Ms. Bramhall was or were in error, it cannot be said that it was inappropriate because the issue was obviously relevant to their functions in the school and their responsibilities. The mere fact that a superior puts an allegation to an employee does not mean that he or she is bullying the person. In the circumstances, this encounter cannot be said to have been inappropriate.
52. Moreover, even if this was an unfair characterisation of the plaintiff’s actions in incorrectly completing the documentation, it was not an exchange which undermined her dignity at work.
53. While the plaintiff complained that a few days before 23rd November, she was told that her conduct was going to be discussed by the Board of Management, her own evidence was that she did not believe there would be any adverse outcome to that discussion, particularly as she was not furnished with any material that was being put before them. Hence, it is hard to see that this exchange between herself and the Principal could be viewed as bullying or undermining her dignity.
54. The plaintiff was not present at the Board meeting in November 2009 when the issue was brought up and the sanction was determined.
55. The next potentially relevant encounter in relation to bullying is the meeting on the 21st December 2009 when the Principal advised her that a final warning would be delivered after Christmas and that this would remain on her work record for a period of six months. This exchange was a one-off incident. The timing may have been harsh or thoughtless, but it cannot be viewed as part of repeated or inappropriate behaviour or which undermined the plaintiff’s dignity in the workplace.
56. On 18th January 2010, the plaintiff met with the Principal and Mr. Lynch and was advised that she would get a formal warning that would be on record for 18 months. She was shocked and upset at this information. On the trial judge’s conclusion that she should not have been subjected to the disciplinary process, or that the process was unfair, those are not demonstrative that this meeting, the content whereof was not published to any of her work colleagues, was part of a sequence of repeated inappropriate behaviour that undermined her dignity in the workplace.
57. The promised warning letter was delivered on 20th January 2010. Perhaps the sanction was unfair, but it is hard again to see that receipt of a letter published solely to herself was one which could amount to bullying.
58. The next event that might be relevant in the context of the bullying claim is the meeting between the plaintiff and the Principal, allegedly to achieve closure, on 27th January 2010. The judge accepts that the plaintiff, in the course of that meeting, was denigrated and bullied. However, there were no witnesses to that exchange. The content of the exchange was not published to any third party. This event cannot be considered part of a pattern of repeated inappropriate behaviour that undermined the plaintiff’s dignity.
59. The correspondence, in which the Board stood over its decision, despite the points made in favour of the plaintiff, did not constitute bullying within the accepted meaning. Neither was its refusal to be moved by the results of the questionnaire completed by the plaintiff’s colleagues. Its decision may have been wrong. It may have given no meaningful consideration to the fact that the plaintiff had established through her questionnaire that it was commonplace for the SNAs is to lock the door.
60. Finally, the minor incident of criticism of the plaintiff in respect of her alleged late arrival to school on 27th September 2010 cannot be considered bullying. The plaintiff may have been on time, as alleged. Perhaps the Principal was wrong or unfair, but it was not part of a repeated pattern of inappropriate and bullying behaviour.
61. Looking at the case more generally, the locked door was a proper matter of concern for the Principal and the Board. That is correctly acknowledged by the trial judge. The question of the wrong entry in the form was legitimate subject of inquiry by the Principal. Having said that, it is clear that the plaintiff was denied due process and she has real ground of complaint in that regard. The more serious the allegations, the greater the practical importance of fair procedures. In circumstances in which a person might have lost her job, the seriousness of the situation is beyond question.
62. The trial judge is right to be critical of the approach of the Board, not only to the denial of procedural fairness, but also to the severity of the punishment that was imposed. The circumstances that the plaintiff and her Union representative and solicitors put forward amounted at least to substantial mitigation, even if it was legitimate to consider that anybody working in child care should have known not to lock such a door.
63. The Union representative, Mr. Mullen, was entirely correct, in my view, in pointing out the procedural unfairness and the mitigating elements. He was also impressively realistic in his attitude to the locked door. It is noteworthy that this official, who might be considered to be very informed about issues of bullying, did not make any such allegation.
64. Essentially, the Principal and the Board overreacted and denied due process in a matter of legitimate concern without verifying the defence that the plaintiff put forward, but that is not workplace bullying.
65. Under this definition, and so far as relevant to this, case there has to be: –
• Inappropriate behaviour
• repeated
• direct or indirect
• conducted by Ms. Dempsey, with or without the addition of Mr. Lynch the Chairman and/or the Board or the other members
• which could reasonably be regarded as undermining the plaintiff’s right to dignity at work.
Disciplinary matters are proper and appropriate for a Principal of the school and the Board of Management.
66. Was the behaviour repeated? My understanding of the meaning of this term is that it is the same behaviour or class of behaviour that is offensive and amounts to bullying. Name-calling or humiliating comments or practical jokes are examples. It is stretching the meaning of the word ‘repeated’ much too far to regard a continuing process of discipline in pursuit of legitimate concerns, even if actually mistaken or unfair, as repeated behaviour.
67. There is also difficulty in considering what happened as undermining the plaintiff’s right to dignity at work. It may have undermined the plaintiff’s work, or even her right to work, but it cannot properly be regarded as undermining her dignity. It is easy to see how name-calling etc. – what would be considered obvious examples of bullying – would and could be regarded as undermining the person’s dignity at work. Obviously, the fact that it may be different from other examples of bullying does not exclude this behaviour but it seems legitimate to look at how the plaintiff’s dignity was threatened.
68. In my view, if it was regarded as a serious matter for Ms. Ruffley to have behaved in the way she did in the Sensory Room on 14th September 2009, which is accepted by the judge as being a reasonable concern for the school, it was not a defence for her to point out that some of her colleagues on some occasions did the same thing, but I do think that would amount to substantial mitigation of the gravity of the offence. In those circumstances, it should have affected the punishment that was meted out, but I do not think it can be said that because or simply because others did the same thing, that necessarily meant that the disciplinary process was wholly unjustified. It was a case where this was discovered and Ms. Ruffley was the person who was responsible and there was no doubt about that, whereas there might well be an investigation and it might or might not disclose that others had done the same thing on some specific occasion, it strikes me as being a fairly doubtful proposition that any such investigation was going to yield clear evidence of the same having happened on some specific other occasion with such clarity or precision or evidence to furnish a basis of a disciplinary proceeding against somebody else.
69. The question in these circumstances is whether this chain of events constitutes bullying. It is clear that there is legitimate reason for complaint by Ms. Ruffley that she was treated harshly by the disciplinary process. It was not Ms. Dempsey’s original plan, as the evidence revealed, to institute disciplinary proceedings against here, but the Principal changed her mind when she found out about the form-filling incident as reported a month later by Ms. Bramhall. So now the situation changed. Enter the Chairman of the Board, Mr. Lynch, whose concern now became the locking of the door which he regarded at a level of seriousness above that taken by Ms. Dempsey. The Board went along with that. A severe sanction was imposed.
70. The Trade Union official’s letter was a reasonable one and should have resulted in a reconsideration of the situation and perhaps a fuller investigation or an investigation in the first place. The judge’s finding that there was not an investigation or a proper investigation at any reasonable or early enough time seems unchallengeable. The fact is that the school could have ascertained that what the plaintiff was asserting was actually correct. They could then have decided that it did not furnish a defence to the allegation, but nevertheless constituted a considerable mitigation.
71. The judge found that all this was inappropriate behaviour in the first place, a term that he took from the statutory definition of bullying. Then he decided that it was persistent because the process had continued in the way it did, and particularly in persisting beyond March 2010. This is where the question arises as to whether the trial judge’s findings can be upheld in regard to his conclusion about bullying. It seems to come down in the end to a question that this was a disciplinary process that went wrong. It was somewhat excessive and undoubtedly contrary to fair procedures in the first instance but it does seem to have been entirely genuine. The judge accepted that it was legitimate concern on the part of the school management to consider that locking the door was completely unacceptable practice. That was in the interest of child protection and also protection of the carers. So, there was a genuine and serious concern and the plaintiff had engaged in this behaviour about which there was a reasonable enough view that a person in her position should have known that this was not something that should have happened and was inappropriate, to use that term, for somebody in charge of children, particularly children with special needs which was the case here.
72. It may be that Ms. Dempsey was mistaken or that she made an exaggerated response to Ms. Bramhall’s form-filling revelation about the plaintiff. She had a situation where the plaintiff had come under adverse attention in the recent past and was now required to carry out a routine function and had not got it right and Ms. Dempsey had concluded that this was an example of falsification on the part of the plaintiff. So she decided that it was going to the Board and then perhaps Mr. Lynch was entitled to take the strong view that he did – that appears to be the implication of the learned trial judge’s comments and findings.
73. Overall, it seems to me that the required elements of a bullying case have not been established here. Accepting all the criticisms that were made by the trial judge of the process and of Ms. Dempsey and of Mr. Lynch and the Board, here was a process that was engaged in that emanated from serious concerns. It is not that they were just and reasonable in their conclusions. The judge, as I see it, was entitled to come to the conclusion that the Board was quite wrong in its views. He was also justified in coming to the conclusion that Ms. Dempsey arrived at a bizarre decision that there was fabrication. But he does not find that Ms. Dempsey contrived this whole process for the purpose of getting at the plaintiff and neither did Mr. Lynch nor was there any suggestion that he did so. So in circumstances where the Principal of the school and the Chairman of the Board were entitled to be concerned about a matter and were entitled to investigate it, but failed to investigate it, and mistakenly therefore or wrongly implicated the plaintiff, not in a matter for which she might not be criticised, but in a matter whose degree was not of the level that the Board considered it had reached. They were not entitled to consider the matter at the level that they did. So my view is that that does not amount to bullying in law and I think that is a subject that has to be examined in more detail.
Conclusion
74. This was not a case of bullying because:-
(i) The motive was child protection in a school devoted exclusively to children with Special Needs;
(ii) It was accepted all round that it was legitimate in the interest of child protection to ensure that the Sensory Room door was not locked – see
the comments of the trial judge and of Mr. Mullen, the trade union official;
(iii) The Chairman, Mr. Lynch, thought that the plaintiff, as an experienced Special Needs Assistant, should have known not to lock the door; this view does not have to be held to be correct and it is not disputed that it was honestly held.
(iv) The defence that others also locked the door was mitigation but not a full answer to the complaint;
(v) The individual encounters may reasonably be viewed in a different light e.g. the report by Ms. Bramhall on the plaintiff’s completion, inaccurately, of the Form 6, which undermines the conclusion that the process constituted bullying.
(vi) This was a disciplinary process, perhaps arising from a misunderstanding, but honestly pursued in the interest of the children;
(vii) There was nothing in the process of investigation that constituted a sustained campaign maliciously pursued in order to intimidate or humiliate or denigrate the plaintiff;
(viii) The person who would have been most alert as to bullying was Mr. Mullen, the plaintiff’s trade union representative, who did not suggest that this was such a case;
(ix) At worst, this was a botched disciplinary process and not a case of repeated offensive behaviour intended to destroy the plaintiff’s dignity at work;
(x) The definition of bullying has to be stretched beyond breaking point to fit this case;
(xi) If the trial judge’s conclusions are permitted to stand, this judgment will widen the tort of bullying to all kinds of situations that it was never intended to cover;
(xii) The definition is carefully drafted so as to convey the particular nature of the activity that is the subject of the wrong and which is required to be addressed by an employer. It is important that the courts should respect the precision of the definition and its limitations and confine it to the proper circumstances in which it applies. This is not such a case.
75. I would accordingly allow the appeal.
JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 8th day of December 2015
1. This is an appeal by the defendant against the order of the High Court of 30th May 2014, awarding a sum of €255,276.39 as damages for personal injuries by reason of the negligence of the defendant and the judgment of 9th May, 2014, of the trial judge (O’Neill J.) pursuant to which the order was made.
2. The plaintiff was employed by the defendant as a Special Needs Assistant (SNA) in the defendant’s National School known as St. Anne’s in County Kildare. The plaintiff’s claim was based upon facts commencing in September 2009, and ending in September 2010, which, it was contended, constituted “workplace bullying” as defined in the Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace)(Declaration) Order 2002 (S.I. No. 17/2002). The trial judge upheld the plaintiff’s claim that the conduct of the defendant its servants and agents of which she complained constituted workplace bullying, as defined. The plaintiff’s claim as pleaded was that the defendant was in breach of its duty of care as her employer to the plaintiff and negligent. There does not appear to have been any dispute that if the conduct complained amounted to workplace bullying as defined that the defendant was negligent. The trial judge further upheld the plaintiff’s claim that by reason of the said conduct of the defendant, she had suffered an identifiable psychiatric injury caused by the said conduct and awarded in total the sum already indicated.
3. The trial judge refused the defendant’s application for a stay on the order of 30th May 2014.
4. The defendant appealed the judgment and order to the Supreme Court and applied for a stay on the High Court order. By order of 4th July 2014, the Supreme Court granted a stay on the High Court order upon condition that the defendant pay to the plaintiff a sum of €100,000 within two weeks from the date thereof and gave directions aimed at an expedited appeal, including an application to be made to the Chief Justice for priority in October 2014.
5. On 29th October, 2014, the Chief Justice, with the concurrence of the other members of the Supreme Court, made a direction pursuant to which this appeal was transferred to the Court of Appeal.
6. The defendants have pursued a focused appeal upon three grounds:
(i) Notwithstanding findings of fact made by the trial judge (which, it was accepted, could not be interfered with on appeal), the conduct complained of was, in substance, a flawed disciplinary procedure and did not constitute “workplace bullying” as defined in the 2002 Order.
(ii) Even if the conduct of the defendant did amount to “workplace bullying”, as defined, the plaintiff did not suffer a psychiatric illness caused by the said conduct of the defendant.
(iii) The trial judge was in error in awarding a sum of €47,000 in respect of future loss of earnings when no particularised claim for future loss of earnings had been made in the course of the proceeding before him.
Whilst the notice of appeal included a ground in respect of excessive general damages that was not seriously pursued at the hearing.
7. Much of the submission in the appeal centred on the first ground. There was relatively little disagreement between the parties as to the applicable law. Nevertheless, there were certain aspects of the principles about which there was not agreement and in respect of which there is not clear authority. I propose, therefore, firstly setting out my conclusions on the applicable law insofar as they relate to the plaintiff’s claim herein prior to considering the appeal against the conclusions reached by the trial judge.
Applicable Law
8. It must be recalled that the plaintiff’s claim against her employer is a claim for damages for negligence or breach of duty. It was also pleaded in contract but nothing turns on that. Claims of this nature, where the breach of duty alleged is a failure to prevent or engaging in workplace bullying are often colloquially referred to as claims for bullying and harassment. However, as has been pointed out on more than one occasion, there is no separate tort of bullying or harassment (see Kelly v. Bon Secours Health System [2012] IEHC 21; Nyhan v. Commissioner of An Garda Síochána & Ors [2012] IEHC 329). The claim is a claim for damages for breach of the duty of care allegedly owed by the employer to the employee. Where the substance of the claim is an allegation of what is termed bullying or harassment, the causes of action and necessary proofs on the part of a plaintiff may differ depending upon whether the alleged perpetrator is simply a fellow employee, or whether, as was the factual position in this claim, the conduct alleged to constitute the bullying was by the employer, in the sense of either the employer itself or its management. McMahon & Binchy: ‘Law of Torts’ 4th Ed. at para. [18.80], puts it thus:
“[18.80] There is no distinctive tort of bullying or harassment. The question is to be resolved in the context of employers’ liability, by asking whether the employers took reasonable care not to expose the plaintiff to the risk of injury from such conduct. The answer will depend in large part on what facts ought to have been known to the employer. Naturally, matters are different where the plaintiff’s claim is that he or she is the victim of ‘corporate bullying’, where the allegation is that the management of the enterprise is implicated in the bullying activity. Such claims have succeeded in some recent cases, and failed in others.”
9. On the facts herein, the conduct complained of by the plaintiff is conduct of the Principal of the school, Ms. Dempsey, and the Board of Management (“the Board”) which is the employer and its Chairman. It is a claim based upon an allegation of corporate bullying, as that term has been used by McMahon & Binchy in the above cited extract.
10. The complaint made by the plaintiff is that the conduct complained of amounts to “workplace bullying” as defined in para. 5 of the Schedule to the Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace)(Declaration) Order 2002 (S.I. No. 17/2002). That Order declares that the Code of Practice set out in its Schedule shall be a Code of Practice for the purposes of the Industrial Relations Act 1990. At para. 5, workplace bullying for the purposes of the Code of Practice is defined as follows:
“Workplace Bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once-off incident, is not considered to be bullying.”
The Code, as declared in the 2002 Order, notes that this definition was recommended by the Report by the Task Force on the Prevention of Workplace Bullying published in March 2001.
11. It is commoncase that the defendant, as employer of the plaintiff, owes her a duty of care not to engage in or permit conduct which constitutes workplace bullying as defined. This was also the position before the Supreme Court in Quigley v. Complex Tooling & Moulding Ltd. [2008] IESC 44, [2009] 1 IR 349, relied on by both parties, where the definition of workplace bullying taken from the Code of Practice declared in the 2010 Order, was accepted by the defendant as an accurate statement of the common law duty of care. The issue before the High Court, therefore, was whether or not the behaviour or conduct of the defendant (including that of the Principal) complained of constituted workplace bullying as defined. It is important to emphasise that what the Court has to consider in this appeal is whether or not the trial judge was correct in determining that the conduct of which the plaintiff complained as found by him constituted workplace bullying as defined in the 2002 Order. It is not a question as to whether or not the conduct amounted to bullying as that term might be more generally used or understood.
12. In Quigley, Fennelly J. (with whom Denham J. and Geoghegan J. agreed), identified that for the purpose of the above definition of workplace bullying, the conduct must be repeated, inappropriate and undermining the dignity of the employee at work. The identification of those elements presuppose, as was not in dispute in that case, that the actions took place either at the place of work or in the course of employment which is also a necessary proof. That is similarly not an issue in these proceedings.
13. As will appear from the more detailed consideration of the facts below, the complaints of the plaintiff relate to a flawed disciplinary procedure which commenced either in or some time after September 2009 and ended in May 2010. There is an additional complaint in relation to an incident in September 2010. The issues which arose in relation the definition of workplace bullying may be identified as follows:
(i) Could a flawed disciplinary procedure which goes on over a number of months and takes a number of steps ever be considered to be “repeated inappropriate behaviour” for the purposes of the definition?
(ii) Is the conduct complained as being “repeated inappropriate behaviour” to be objectively determined by the Court? As a related matter, is the intention of the person who is alleged to have carried out the behaviour relevant to the determination?
(iii) What are the elements of an individual’s “right to dignity at work”?
Inappropriate Behaviour
14. The only uncertainty in the submissions of the parties as to the proper approach of the Court in determining whether the conduct of the defendant and Principal, as found by the trial judge, was “inappropriate behaviour” within the meaning of the definition of workplace bullying was whether or not this should be objectively determined by the court, or whether the intent of the person concerned was relevant. It was commoncase, in accordance with the authorities, that a court, in assessing whether the alleged repeated inappropriate behaviour was such that it “could reasonably be regarded as undermining the individual’s right to dignity at work” must make that assessment objectively for the very reasons explained by Kearns P. in Glynn v. The Minister for Justice, Equality and Law Reform & Ors. [2014] IEHC 133. In that judgment, Kearns P. at para. 54, having set out the definition of workplace bullying, stated:
“This wording must be taken as requiring an objective test to determine if bullying has occurred. The test must, for reasons of commonsense also, be an objective one given that any other would leave every defendant vulnerable to allegations of bullying based on purely subjective perceptions on the part of a plaintiff who might contend that straightforward situations at work or otherwise were construed by him/her as amounting to bullying.”
15. The above followed a full quotation of the definition, including the reference to the “repeated inappropriate behaviour”. Counsel for the defendant drew attention to an earlier comment by Kearns P. at para. 50 of his judgment in relation to bullying as being “conduct which is intended to reduce that person’s self-worth”. He suggested that this cast some doubt upon the question as to whether Kearns P. intended that the question as to whether the relevant conduct constituted inappropriate behaviour for the purposes of the definition should also be objectively assessed. However, in the same judgment Kearns P. at p. 23, identified as the first question that must be asked in every bullying case, “. . . whether the behaviour complained of, by reference to an objective test, imports that degree of calibrated inappropriateness and repetition which differentiates bullying from workplace stress or occupational stress”.
16. I am of the view that for the very reasons identified by Kearns P., not only must the question as to whether or not the inappropriate behaviour is such that it could reasonably be regarded as undermining the individual’s right to dignity at work be objectively assessed, but the question as to whether the behaviour is inappropriate must also be objectively assessed. It does not appear to me that it could be either dependent upon a subjective perception by the plaintiff, or indeed dependent upon the intent of the perpetrator. Such an approach would be inconsistent with objectively determining whether the inappropriate behaviour is such that it could reasonably be regarded as undermining the individual’s right to dignity at work. If appropriateness or not of the behaviour is to be objectively determined, then the intent of the perpetrator becomes irrelevant.
17. Accordingly, I have concluded that a court must first assess whether the conduct or behaviour alleged is objectively to be considered as repeated inappropriate behaviour. If so it must then determine objectively whether it is reasonably to be regarded as undermining the individual’s right to dignity at work.
18. It appears both difficult and probably dangerous to try and define at a level of principle what would meet the threshold of “inappropriate behaviour”. Any assessment of what is “appropriate” or “inappropriate” behaviour in a workplace context must depend on the relationship and relative positions of the individuals and the full factual context.
Repeated – Flawed Disciplinary Process
19. This appeal concerns, in accordance with the findings of fact made by the trial judge, a seriously flawed disciplinary process which commenced either in September or November 2009 and lasted until May 2010. It appears to have arisen from two separate incidents; a locked door in September 2009 and an inaccurate completion of an assessment form in October 2009. Counsel for the defendant submitted that as a single disciplinary process, albeit as he had to accept on appeal flawed, it could not amount to “repeated inappropriate behaviour” even if it were determined that certain parts of the disciplinary process were unfair or unjust.
20. At a level of principle, I cannot accept this submission. The phrase “repeated inappropriate behaviour” in the definition must, it appears to me, be construed in the context of the last sentence in the definition, namely, “An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once-off incident, is not considered to be bullying”. It therefore appears to me that “repeated” in the definition is being used for the purpose of connoting behaviour which is more than either an “isolated incident” or a “once-off incident”. A disciplinary process which continued over a number of months and, as this one did, consisted of several meetings and interactions between the plaintiff and the Principal and the Chairman of the Board, and the latter inter se and with other members of the Board cannot, as a matter of principle, be considered to be either an isolated incident or a once-off incident. Whether inappropriate behaviour which undermines dignity at work is to be considered as repeated for the purpose of the definition must depend on an assessment of all the facts.
21. Similarly, at the level of principle the fact that the allegedly inappropriate behaviour is part of a disciplinary process does not, it appears to me exclude it potentially constituting workplace bullying as defined if on an objective assessment of all the facts the behaviour complained of meets the criteria in the definition of workplace bullying. The fact that it forms part a disciplinary process may make it more difficult for a plaintiff to so establish. Accordingly, conduct or behaviour during a disciplinary process is not excluded as a matter of principle, but rather, the entire of the relevant facts must be objectively assessed for the purpose of determining whether or not the behaviour of the defendant of which the plaintiff complains objectively constitutes “repeated inappropriate behaviour”, and if so, whether such behaviour is such that it could “reasonably be regarded as undermining the individual’s right to dignity at work”.
Right to Dignity at Work
22. There was some discussion in the course of oral submission as to what were the essential elements of an employee’s right to dignity at work. Counsel was unable to assist the Court with any authorities which have considered this issue in the context of the definition of workplace bullying in the 2002 Order or otherwise. I am not aware of any consideration by a court which is of assistance. Again, it appears to me dangerous to attempt to provide a general definition of the elements which constitute a person’s right to dignity at work. Rather the Court should look at this in the context of the facts of this appeal and in particular both the context in which the alleged inappropriate behaviour arose and the relationship between the plaintiff and the defendant and Principal of the school. Where as on the facts of this case the Court is considering the right of the plaintiff as employee to dignity at work in a context of her treatment by the Principal of the school and the board of management in relation to a disciplinary process such right to dignity must include, it appears to me, a right to be treated with respect, fairly and not less favourably than other colleagues in a similar position. It must include a right not to be singled out for disciplinary treatment in relation to a practice which whilst not acceptable was engaged in by other similar colleagues. It is obvious that an employee must expect, in a situation where it is contended that his or her performance has been less than what is expected or required that she may be subjected to a disciplinary process. However, it appears to me that her right to dignity at work includes a right to be treated with respect and fairly in the above sense and not singled out unfairly from colleagues in a similar position in such disciplinary process.
Findings of trial judge
23. The case was at hearing for nine days before the trial judge. His judgment sets out in careful detail the facts and he makes certain findings of primary facts and in other instances draws inferences from the facts found or the evidence which he accepted. Where there was a complete clash of evidence he indicated in some instances the evidence of which witness he preferred to accept. With the exception of inferences drawn as to the manner in which the Principal must have presented the facts to the board of management meeting on 23rd November, Counsel for the defendant has not submitted that this Court should either set aside findings made or draw different inferences. He has accepted in accordance with the principles set out in Hay v. O’Grady [1992] IR 210, he cannot do so on this appeal having regard to the evidence before the trial judge. Counsel for the plaintiff in submission relied strongly on the findings made and inferences drawn by the trial judge.
24. The trial judge having set out his findings of fact concluded that the defendant both directly and through its Principal were guilty of repeated (or, as he put it, persistent) inappropriate behaviour which “wholly undermined” the plaintiff’s dignity at work. Central to the trial judge’s reasoning, based on the findings of fact made, was that the plaintiff should not have been subjected to the disciplinary process at issue as upon the true facts if known and discovered, as they ought to have been, it would have been “entirely unfair and inappropriate to have initiated a disciplinary process against the plaintiff alone”. He also formed the view that she was unfairly and inappropriately treated in the course of the disciplinary process. In my view, these were conclusions which he was entitled to come to on the facts as found by him. The reasons for which I have formed this view in summary are the following.
25. The relevant facts commenced on 15th September 2009. At this time, the plaintiff had been employed as a Special Needs Assistant (SNA) for approximately eleven years. It appears it was common case that she had discharged her duties as a SNA in that period in a satisfactory manner, enjoyed good relations with teachers and other SNAs and the Principal, Ms. Dempsey and never had any disciplinary issues or grievances save that there may have been some issues surrounding sick leave.
26. The school caters exclusively for children with intellectual disabilities. For approximately five years it had a room known as the “Sensory Room” whose purpose it was to develop the sensory perception of pupils. The door of the Sensory Room had a lock on the inside. Each pupil who used the Sensory Room had a programme designed for him or her by the occupational therapist which was carried out by one or two Special Needs Assistants.
27. It was common case in the evidence before the High Court that prior to 14th September 2009, no instruction was given to the SNAs either to lock the door of the Sensory Room whilst in there with a pupil or not to lock the door of the Sensory Room. It also appears to have been common case that the Safety Statement of the school was entirely silent on any health and safety aspects relating to the locking of the Sensory Room door.
28. The trial judge at para. 41 of his judgment found as a fact that there was “a general practice amongst many of the SNAs, probably a majority of locking the Sensory Room door for the same reasons that the plaintiff locked it from time to time”. This finding of fact has not been sought to be appealed and is one which the trial judge was entitled to conclude on the evidence and is central to his reasoning and what he concluded was the wrongful singling out of the plaintiff for disciplinary process.
29. The further facts as recorded or found in the judgment relevant to my reasoning include the following. On 14th September 2009, the plaintiff was in the Sensory Room with a young boy who suffered from ADHD and surprisingly he fell asleep. The plaintiff contacted her then class teacher, Ms. Bramhall for instructions. She was told to allow the boy sleep for a further period. Ms. Bramhall in turn was concerned and rang the Principal, Ms. Dempsey. Ms. Dempsey called to the Sensory Room and found the door locked and on her third attempt to gain entry the door was opened by the plaintiff who it is found readily accepted that the door had been locked. The question of it being locked or otherwise was not discussed and Ms. Dempsey confirmed the teacher’s instructions and ultimately the child returned with the plaintiff to the classroom.
30. On the following day, the plaintiff was informed by the Principal that she was being investigated in the context of a disciplinary procedure and in the afternoon there was a meeting between the plaintiff, another SNA, the Principal and Ms. Bramhall. The plaintiff accepted that she locked the Sensory Room door and had done so over several years; she gave reasons relating to the non entry of others and the prevention of the pupil described as a “runner” from leaving. She explained that she had not been told to lock nor had ever been instructed not to lock the door. She contended that in April 2009, when the Principal came into the room with a number of visitors and the plaintiff and another SNAs were present, the door had been locked. From the outset the plaintiff explained and contended that locking the Sensory Room door was commonplace amongst the SNAs. The Principal’s note of the meeting was produced to the trial judge and he noted that it did not record a need for further training of the plaintiff in the use of the Sensory Room.
31. A further meeting was held on 18th September 2009, between the Principal, the plaintiff and Ms. Bramhall. At p. 21 of his judgment, the trial judge appears to have accepted the evidence of Ms. Bramhall in relation to that meeting that it was for the purpose of going through a programme for the child in question in the Sensory Room. It was identified that the child was unwilling to get on the swing, notwithstanding that this was part of the programme. The trial judge records that “it was agreed that there would be a four week period during which the operation of the programme of this child by the plaintiff would be reviewed”. Following that meeting Ms. Bramhall drew up forms which listed all the activities in the programme and it provided for the ticking of those activities on a daily basis depending on whether or not they had been accomplished by the child. The plaintiff was to complete the forms.
32. The trial judge rejected the evidence of the Principal that she had handed a letter dated the 18th September to the plaintiff. He did so by reference to the reaction of the plaintiff to the letter when produced in cross examination and its inconsistency with the other contemporaneous events. The trial judge found as a fact at para. 29 that the meeting of 18th September, was “solely concerned with the suitability or otherwise of the child’s programme”. He further found that there was not “the slightest hint of any threat to the plaintiff disciplinary or otherwise”.
33. During the next four weeks the plaintiff initially reported that she was unable to get the child to use the swing, but by the third week, told Ms. Bramhall that she had persisted in trying and had succeeded in getting the child on to the swing, but sitting on it only and not standing or lying on it, the other two prescribed activities relating to the swing. Early in the period the plaintiff had been out of school for a couple of days and another SNA reported getting the child to use the swing.
34. At the end of the four-week period, Ms. Bramhall was conducting the anticipated review with the plaintiff and noticed that the plaintiff had ticked the box on the form for lying on the swing and queried this with the plaintiff who, the trial judge held promptly confirmed that this was wrong and sought Ms. Bramhall’s permission to change the form so as to make it more accurate. Ms. Bramhall refused to allow her to do this and recorded this result on the review of the plaintiff’s performance as a “miscommunication”.
35. There was a further meeting on 19th October between the Principal, Ms. Bramhall and the plaintiff for the purpose of considering Ms. Bramhall’s review of the plaintiff recorded on an SNA staff assessment form. The trial judge was unclear as to the reason for this review, but nothing turns on that. In the course of the meeting, the trial judge found that “the plaintiff was challenged by Ms. Dempsey for having initially recorded that the child the using the swing, as erroneously, Ms. Dempsey thought he was not supposed to use the swing and secondly for filling out the form inaccurately”. He also held that “the plaintiff having been treated in this way, was afflicted by an acute sense of unfairness and grievance and probably did react in a combative way by raising other issues with Ms. Dempsey”. He was satisfied that the plaintiff felt she was being treated unfairly in this review and that she made it apparent.
36. Ms. Dempsey characterised the inaccurate completion by the plaintiff of the form as “falsification” and in her view it raised an additional disciplinary issue. The trial judge records that forms of this kind had never been used before for this child or any child in the school
37. The evidence of Ms. Dempsey as recorded was to the effect, that because of the failure of the plaintiff to improve and her “falsification” of the forms, the disciplinary process needed to be revived and the matter brought to the attention of the Board for what she described as “advice as to how to proceed”.
38. It is also recorded that at this time Ms. Dempsey also spoke to the chairman of the Board, Mr. Lynch who gave evidence in which the trial judge found to have been “only concerned about the locking of the door, which he saw as wholly unacceptable because of the child protection implications involved”.
39. It is important to note that the trial judge was very careful to accept that the locking of the Sensory Room door was a child protection issue and that it was properly a matter of concern for the Board. His findings relate to the inappropriate singling out of the plaintiff for disciplinary action without any investigation when as he held upon the true state of the facts it had been common practice amongst the SNAs.
40. In advance of a scheduled meeting of the Board for the 23rd November, 2009, the plaintiff was informed by Ms. Dempsey that the matter was going to be raised with the Board, but no further information was given. Ms. Dempsey, in her evidence, is recorded as accepting that the plaintiff was merely told that “it” was going to the Board and no more.
41. The trial judge made the following findings in relation to what occurred between 15th September 2009 and the meeting of the Board on 23rd November at paras. 40 and 41 of his judgment:-
“40. In the two months that had elapsed since 15th September 2009, I am quite satisfied from the evidence that Ms. Dempsey did nothing to investigate the plaintiff’s contention that other SNAs locked the door of the Sensory Room, in effect, that it was a common practice amongst SNAs. Ms. Dempsey gave evidence of having regular meetings with teachers and SNAs over the school year so that over that time she would probably meet each member of staff once. Whist this process continued in the two-month period between 15th September 2009, and the 23rd November 2009, during which time she would probably have met four or five SNAs in this way, I am quite satisfied from the evidence that she did not elicit their views on whether or not there was a practice amongst the SNAs of locking the Sensory Room door. At a general meeting of SNAs on 20th October 2010, she did give an instruction that the Sensory Room door was not to be locked, but it is quite clear that she did not conduct any inquiry at this meeting to ascertain whether or not there was a common practice amongst SNAs of locking the door.
41. The evidence of the other SNAs who gave evidence in the case, and also the evidence of the plaintiff, which I accept in this regard, establishes to my satisfaction that there was a general practice amongst many of the SNAs, probably a majority, of locking the Sensory Room door for the same reasons that the plaintiff locked it from time to time.”
42. At the meeting of the Board on 23rd November, present were Ms. Dempsey, Mr. Lynch, the chairman, both of whom gave evidence and four other members. The trial judge records from their evidence that once Ms. Dempsey had presented this matter, which arose under “AOB” the other four members of the Board wanted the plaintiff to be instantly dismissed and it took some persuasion from Mr. Lynch and Ms. Dempsey to dissuade them from that course. The evidence of Ms. Dempsey was that she outlined the fully history of the matter to the Board and the trial judge records that the identity of the plaintiff was not revealed to the Board.
43. The defendants in submission do not accept that the inferences drawn by the trial judge in para. 48 in relation to the manner in which Ms. Dempsey as a matter of probability presented the matter to the Board are justified and I have not relied on those in my reasoning in this judgment. However, what the judge concluded and in my view is supported by the evidence and his other findings at the commencement at para. 49 of his judgment is:-
“Specifically, it is quite clear, that what they [the members of the Board] were asked to consider was the gross misconduct of a single SNA as distinct from a common practice amongst many SNAs, albeit unacceptable. Insofar as Ms. Dempsey gave a history of the review process discussed above, it is probable she presented this, as she did in her evidence, as a failure of training, culminating in the falsification of a document, a presentation of matters which was undoubtedly untrue, unreasonable and grossly unfair to the plaintiff.”
44. The minutes of the Board meeting at item 7 and its subsequent action are recorded by the trial judge at para.s 45 and 46 and were in the following terms:
“Issue with SNA’s performance. Pauline [Dempsey]outlined issues she had with an individual SNA. She has linked in with HR in KARE. She wanted the support of the Board to issue a verbal or written warning under the term of the SNA’s contract. Pauline to link in with HR in KARE to discuss the severity of the warning allowed for the presenting issues. All agreed to support the recommendation. Also, there is a mechanism to suspend an increment if there is dissatisfaction with an SNA’s performance. It was proposed that this should happen in this case in light of the situation Pauline outlined.”
Under the heading ‘Action’, the following is recorded in the minute:
“Pauline to liaise with HR in KARE and proceed with disciplinary action. Notify DES of deferral of next increment for this individual.”
45. The next relevant event was when the Principal informed the plaintiff just before the Christmas break that she was going to get a Part 4 Final Warning which would be given formally in the New Year. The judge was satisfied that in a discussion between the plaintiff and Ms. Dempsey on inquiry the plaintiff was told that this would be on her record for six months.
46. On 18th January 2010, the plaintiff was asked to come to a meeting in the Principal’s office with Mr. Lynch. The plaintiff was accompanied by a colleague SNA. The trial judge held that at that meeting the plaintiff was told by Mr. Lynch that she was to receive a final stage Part 4 Final Warning for a breach in health and safety, the grounds of which were the locking of the Sensory Room door, further she was told that this would be on her record for eighteen months. The judge also held that the plaintiff was shocked by reason of the six month period indicated on 21st December 2009.
47. On the evening of 18th January, there was a Board meeting and the minutes record at Item 8 as set out at para. 53 of the judgment:
“Issue with SNA performance
Met with the individual who was accompanied by another SNA. Talked through the issues and concerns and issued a formal written warning. Draft letter read out to BOM. Pauline will liaise with HR re wording about building in reviews into the letter etc. Deferral of increment was not applicable.”
Under the heading of ‘Action’, the following is recorded in the minute:
“Pauline to liaise with HR in KARE and proceed with letter.”
48. The judge found as a fact that despite what is recorded the issues were not “talked through” at the meeting with the plaintiff on the 18th January.
49. On 20th January, the plaintiff was summoned to the room of the Principal and handed a letter signed by the chairperson of the Board of management confirming the issue of the final written warning as per stage 4 of the disciplinary procedure. The letter is set out in full by the trial judge and, inter alia, stated:
“This warning is being issued as a result of the investigation that was carried out at the request of the Board of management into an incident that occurred on the 14th September, 2009, when you locked yourself and a child into the Sensory Room. On conclusion of the investigation, the matter was discussed at the Board of management on the 23rd November, 2009 and it was agreed at this meeting that you be issued with this warning.”
50. Following this letter, the trial judge made the following findings:
“56. It is to be observed immediately that the statement in the letter that an investigation was carried out at the request of the Board of management is simply not correct. The Board of management knew absolutely nothing of the locked door incident on 14th September, or of any other issue concerning the plaintiff, until the meeting of 23rd November 2009, when, for the first time, they were given Ms. Dempsey’s account of the matter. It is plainly obvious that after the Board of management meeting on 23rd November 2009, there was no further investigation other than queries addressed by Ms. Dempsey and Mr. Lynch, one to the Department of Education and Science with a view to deferring any increment in salary due to the plaintiff, and the other to KARE, solely with regard to the terms of the final written warning.
57. It transpired, on inquiry to the Department of Education and Science, that the plaintiff was not due an increment for three or four years, and therefore the defendants were unable to activate that penalty.
58. It useful to reflect on what had happened to the plaintiff up to this point in time. The plaintiff was subjected to a disciplinary sanction of a severe kind which was unmerited. By this, I mean that the offence of locking the Sensory Room door, which the defendants were entitled to regard as unacceptable, was undoubtedly a common practice amongst the SNAs, and had the defendants, and in particular, Ms. Dempsey, carried out the appropriate enquiries after 14th September 2009, at that time, that would undoubtedly have been readily ascertainable. She did not do that. As a consequence, the picture presented to the Board on 23rd November 2009, was of individual misconduct on the part of the plaintiff.”
51. Having further expanded on these matters, he then reached the conclusion at para. 63 of his judgment:-
“63. I am quite satisfied that the treatment of the plaintiff throughout this process by Ms. Dempsey was entirely “inappropriate” within the meaning of the definition of bullying in the workplace.”
52. Next the plaintiff was asked to come to a meeting with Ms. Dempsey on the 27th January 2010, in respect of which there appears to have been a total conflict of evidence between the plaintiff and Ms. Dempsey. There were not other parties present and the trial judge accepted the evidence of the plaintiff as to what happened in this encounter. It is not submitted on appeal that he was not entitled to do so. This was clearly a question of assessing the relative credibilities of the witnesses in relation to the account of this meeting. The judge records in short form the evidence which he accepted of the plaintiff that “she was subjected to a considerable variety of denigration which belittled, humiliated and reduced her to tears”. Ms. Dempsey is recorded as having denied all of those allegations apart from having mentioned to her “that she had exhausted her use of sick leave and to be more careful on that matter in the future”.
53. Thereafter, the plaintiff went to her Union and a letter was sent by Mr. Mullen of IMPACT to Mr. Lynch in which he sought on her behalf to appeal against the sanction imposed on the grounds relating to the process and sanction and specifically stated:-
“The procedures in place in St. Anne’s had not made it clear that locking the Sensory Room was a health and safety breach. That is not to say that it was acceptable, but rather, that the practice was known and had not been objected to previously.”
54. Thereafter, a meeting was arranged for 23rd March 2010, attended by Mr. Lynch, Ms. Dempsey, the plaintiff and Mr. Mullen. The judge records Mr. Mullen as seeking to persuade the defendants to remove or withdraw the final letter of warning and advocated the closing of the door had been common practice amongst the SNAs. The plaintiff again mentioned the occasion in April 2009, when she and Ms. O’Connell were in the room and Ms. Dempsey had come to the room with a number of visitors and the room was locked. The judge records Ms. O’Connell as giving evidence to that effect. The outcome of that meeting was the Mr. Lynch requested inquiries be made of the SNAs to ascertain whether or not there was a practice to lock the door and also at the meeting the trial judge records Ms. Dempsey as having said that she conducted inquiries of approximately 70% of the SNAs none of whom admitted locking the door.
55. Following the meeting on 23rd March, the plaintiff devised a questionnaire which was put to her SNA colleagues with two questions:
1. Having you ever locked the Sensory Room door?
2. Have you ever been asked by Pauline Dempsey “have you ever locked the Sensory Room door”?
56. Four SNAs answered the questionnaire. All four of whom answered “yes” to the first question and only one SNA answered “no” to the second question. The trial judge accepted evidence from the plaintiff that many more of the SNAs were willing to answer the questionnaire in the affirmative, but only if they would do so anonymously.
57. On 22nd April, Mr. Mullen wrote further to Mr. Lynch referring to the appeal, the questionnaire and seeking a decision on the appeal.
58. The next meeting of the Board on 26th April, appears from the minutes recorded by the trial judge to have considered the letter of the 22nd April and agreed that Ms. Dempsey would speak with the SNAs.
59. On 20th May, Mr. Lynch responded to Mr. Mullen in substance saying: “The Board of management considered the contents of your letter and have decided to stand over their original decision with regard to this matter”. However, as the trial judge records there was no meeting of the Board prior to the dispatch of that letter and the Board’s agreement to that effect was recorded in the minutes of a meeting of 8th June, 2010, which makes no reference to any consideration of the outcome of the inquiries by Ms. Dempsey amongst the SNAs as to what the position was with regard to locking the door.
60. The trial judge reached the following findings at para. 75 of his judgment:-
“I am quite satisfied that the Board did not give any meaningful consideration to the case being made by the plaintiff, namely, that the locking of the door was a common practice amongst the SNAs. At this late stage, when the Board had been alerted to the plaintiff’s case in this regard, they declined to give it any due consideration.”
61. Thereafter a letter was written in May or June 2010, by the plaintiff’s solicitors. This was initially responded to by Mr. Lynch on 28th June indicating that the issues raised would be discussed by the Board at the meeting of 20th September. Subsequent to that meeting, Mr. Lynch responded in some detail in which, inter alia, he denied “any question of bullying or harassment” of the plaintiff who it was contended “has at all times been treated with the utmost sensitivity and has been afforded all of the entitlements due to someone in her position.” He then continued:-
“Whilst it may very well be that from time to time it would appear that certain members of staff have, on very rare occasions, seen fit to lock the door of the Sensory Room at St. Anne’s School, this is not the policy of the school and it strongly advised that members of staff not do this, for reasons as we are sure you will understand, that include the safety and wellbeing, not only of the children, but also the staff member concerned. . . .”
62. The trial judge quoted the letter in full and commented on a number of other matters including a reference to the necessity “on a number of occasions over the past several years to raise with your client the question of her uncertified absences on sick leave.”
63. Following a consideration of these exchanges the trial judge reached the following conclusions at paras. 87 and 88 of his judgment:-
“87. Up until March 2010, it may have been the case that the Board were not aware of the merits of the case being made by the plaintiff, namely, that it was a common practice among SNAs to lock the door of the Sensory Room, notwithstanding that Ms. Dempsey, the Principal, was well aware of the plaintiff’s case. However, from March 2010, onwards, there can be no doubt but that the Board were clearly alerted to the plaintiff’s case, and from not later than April 2010, were also aware that several other SNAs also occasionally locked the Sensory Room door. The rejection of the plaintiff’s appeal by the Board in May 2010, without any meaningful consideration of the merits of the plaintiff’s case, and the subsequent failure or refusal of the Board in the autumn 2010, when given a fresh opportunity, on foot of the correspondence from the plaintiff’s solicitor, to at all, consider the merits of the plaintiff’s case at this late stage when they were aware of the impact that their now erroneous and unjust decision was having on the plaintiff was, in my view, a persistence by them in their unfair and inappropriate treatment of the plaintiff.
88. Thus, in my opinion, the plaintiff has demonstrated to my satisfaction that the inappropriate behaviour of the defendants was not merely an isolated incident but was persistent over a period of in excess of one year. There can be no doubt but that this persistent, inappropriate behaviour of the defendants wholly undermined the plaintiff’s dignity at work.”
Conclusion on First Ground of Appeal
64. In my view, it was open to the trial judge to make the findings made and he was correct in determining that there was repeated inappropriate behaviour by or on behalf of the defendant, and objectively, it was behaviour which could reasonably be regarded as undermining the plaintiff’s right to dignity at that work. As stated at the outset of this judgment, the right to dignity at work in the context of a potential disciplinary process includes a right to be treated with respect, fairly and not less favourable than colleagues in a similar position. Further, it must include a right not to be singled out for disciplinary treatment in relation to a practice, which whilst not acceptable, was engaged in by other similar colleagues. This was precisely the effect of the repeated inappropriate behaviour by the defendant both directly and through its Principal on the plaintiff having regard to the findings made by the trial judge.
65. In reaching this conclusion, I fully recognise that the locking of the Sensory Room door was properly considered by the Board to be a serious child protection issue. However, the door was fitted with a lock; it was agreed that no instruction had been given to SNAs not to lock the door; the trial judge, held it was a common practice amongst SNAs to lock the door; also, that such contention was immediately made by the plaintiff to the Principal. He further held that the Principal, prior to presenting the matter to the Board of management on 23rd November, failed to conduct any inquiry amongst the other SNAs as to whether they did or did not have a practice of locking the Sensory Room door, but on 20th October, she considered it necessary to give a general direction to the SNAs not to lock the Sensory room door. The presentation by the Principal to the Board of the issue as a disciplinary matter relating to the plaintiff alone was, in my view, on all the facts held, objectively inappropriate behaviour. The inappropriate behaviour was repeated in the pursuit by the Principal with the support of the Board, as recorded in the minutes of the meeting of 23rd November, of a severe disciplinary sanction against the plaintiff. The Board itself, in my view, was guilty of inappropriate behaviour in furnishing a letter in which they gave as the basis for the stage 4 warning being issued to the plaintiff to be “as a result of the investigation that was carried out at the request of the Board of management into an incident that on the 14th September, 2009 . . . .” when as held by the trial judge that was simply “not correct” as no such investigation was carried out. On the findings of the trial judge, the behaviour of the Principal during the meeting of 27th January 2010, with the plaintiff was inappropriate. Finally, there was, as determined by the judge, at a time when the Board were made aware of both the plaintiff’s case and the fact that several other SNAs also occasionally locked the Sensory Room door, the rejection of the plaintiff’s appeal without any meaningful consideration of the plaintiff’s case and the subsequent failure and refusal by the Board in the autumn of 2010, when given a fresh opportunity to consider the merits of the plaintiffs’ case at that late stage. The above repeated inappropriate behaviour is such that objectively it could reasonably be regarded as undermining the plaintiff’s right to dignity at work.
66. Accordingly, I would dismiss the defendant’s appeal against the conclusion reached on this issue by the trial judge.
Causation and Future loss of Earnings
67. I have read in draft the judgment of the President. I agree with his conclusion that there was evidence upon which the trial judge was entitled to hold that the plaintiff suffered a psychiatric illness caused by the said conduct of the defendant. I also agree with the President that the appeal against the award of €47,000 for future loss of earnings in the absence of a claim for same must be allowed.
Decision
68. I would dismiss the appeal except in relation to the future loss of earnings and hold that the High Court order should be varied by reducing the amount of the damages awarded by €47,000 to €208,276.39.
Ruffley v Board of Management of St Anne’s School (SC)
[2017] IESC 33,
Judgment of O’Donnell J. delivered the 26th of May 2017
1 This case has already been the subject of a detailed High Court judgment (Ó’Néill J.), [2014] IEHC 235, and three considered judgments of the Court of Appeal, [2015] IECA 287. Normally in such circumstances, it would not be necessary to repeat the facts in particular detail. However, this is an unusual case, and since there has been considerable disagreement as to how to characterise the facts in this case, it is necessary to give some account of the background to this complex case.
2 By the time of the events in 2009 and 2010 which are the subject matter of these proceedings, the plaintiff, Úna Ruffley, had been employed as a Special Needs Assistant (“SNA”) in St. Anne’s School at the Curragh, County Kildare for more than ten years, without notable incident. That school, although treated as a national school, catered exclusively for children with intellectual disabilities and indeed took children from the age of 4 up to 18 years of age. The school had been founded by KARE, an organisation of parents of children with physical and intellectual disabilities. St. Anne’s was under the patronage of KARE, and the Chief Executive of that body, Mr. Christy Lynch, was also the Chairman of the Board of Management of St. Anne’s.
3 St. Anne’s is a small institution catering for between 70 and 75 children, and in 2009 employed 14 teachers and 26 SNAs. The school also had available to it external services such as occupational therapy. It was not in dispute that until the events here described, she had performed her work satisfactorily, and enjoyed good relations with the teachers, others SNAs and the principal, Ms. Dempsey, who figures significantly in the account of this case.
4 For about five years prior to September 2009, the school had a sensory room used to develop the sensory perception of pupils by exposing them to a variety of experiences such as music, vibration, movement, light and colour. The room had previously been used as a store room for computer equipment. It could be locked from the outside with a key, although the evidence was that was never used. It could also be closed from the inside by simply turning a lock to either open or close the door in a fashion which it was said was similar to that in use on a standard toilet door. That lock gave rise to a dispute which has meant that Ms. Ruffley has not worked in St. Anne’s or anywhere else for more than 6 years now, and has led, through an eleven day hearing in the High Court, and a two day appeal to the Court of Appeal, to this Court.
5 The Events
(i) 14th September 2009
On this day Ms. Ruffley was in the room working with a young pupil. Unusually, as he was normally an extremely active child who suffered from ADHD, he fell fast asleep. Ms. Ruffley went out and phoned the teacher Ms. Rachel Bramhall, to ask for instructions. She was told to leave the child asleep, and if he had not awoken within 20 minutes to bring him back to the class. The teacher however being concerned contacted the headmistress in turn. Ms. Dempsey went to the room where she discovered that the door had been locked from the inside, and only gained entry on her third attempt. However, the issue of the door being locked was not raised then.
(ii) 15th September 2009
The following day Ms. Ruffley attended work and was asked by Ms. Dempsey to come to her office. Once there, Ms. Dempsey informed her that she was handling the incident as a disciplinary matter. Ms. Ruffley initially thought that this was because the child had been asleep, but Ms. Dempsey explained it was because the door had been locked. It appears from Ms. Dempsey’s note referred to in the judgment of the High Court that Ms. Ruffley said at this point that she hoped the principal would deal with the other SNAs that did this. The principal’s response was apparently that this was another issue for another day. Ms. Ruffley was requested to return to the office at 2.30pm and informed that someone could attend with her, if she wished.
(iii) 15th September 2009: 2.30pm
Ms. Ruffley returned to the principal’s office accompanied by Ms. Louise Webb, a fellow SNA. The principal had also arranged for Ms. Bramhall, the teacher involved, to be there also. Ms. Ruffley accepted that she had locked the door and said it had been her practice to do so for a number of years both to prevent other pupils entering and disrupting the session and to prevent children, some of whom were very active, from running out of the room. Such children were often described as “runners” and as it happened the child involved here was known to be a “runner”. Ms. Ruffley also claimed that the door had been locked on other occasions including one in April 2009, when she alleged the principal had brought visitors to the room. Ms. Dempsey responded apparently that she had never been aware that the room had been locked and if so would have raised the issue. There was some further discussion of the care of the child in question. It is not suggested that any specific disciplinary action was discussed or suggested at this meeting.
(iv) 18th September 2009
There was a further meeting between Ms. Ruffley, the principal, and Ms. Bramhall. This meeting discussed the care to be given to the child, and it was agreed that over a four week period the plaintiff would complete a weekly form indicating the manner in which the therapy for the child had progressed.
Letter of the 18th September 2009 ( ?)
It is important to note at the outset, that this letter is disputed. The principal gave evidence however that she had handed a letter to Ms. Ruffley dated the 18th September, 2009. That letter recorded that as Ms. Ruffley did not appear clear as to the protocol surrounding the use of the room “we are not going to take disciplinary action”. The letter also recorded however that Ms. Ruffley’s care of the child in question would be reviewed over a three month period. It continued “if the required improvement is not made or if there is any such breach of discipline in any aspect of your work performance, this may result in disciplinary action”. The plaintiff emphatically denied ever having received the letter and the trial judge accepted she had not been given that letter then or since.
(v) Four weeks later (October 2009)
In the review, Ms. Bramhall observed that Ms Ruffley had ticked a box on the forms indicating that she had succeeded in getting the child to lie on the swing, which was an item of equipment in the room, and one recognised measurement of progress. This was queried by Ms. Bramhall, and the plaintiff immediately confirmed that she was wrong and asked to correct the form. The teacher refused to do so and recorded this matter on the form as a “miscommunication”.
(vi) 19th October 2009
A further meeting took place between the plaintiff and the principal Ms. Dempsey. The plaintiff contended that the events of this meeting took place on the 12th November, 2009, but the trial judge considered that she was wrong in this regard at least. At the meeting, the principal challenged the plaintiff in relation to the completion of the form, in part erroneously because she thought the child was not supposed to use the swing. She considered that the incorrect completion of the form amounted to falsification and a further disciplinary issue which justified her in bringing the matter to the Board. The trial judge found that the plaintiff made it clear at this meeting that she considered she was being treated unfairly. The trial judge considered that the form and the plaintiff’s error in that regard had been used by the principal “as a trap for the plaintiff”. (para.35 of the High Court judgment).
(vii) 12th November 2009
There was a further meeting between the plaintiff and the principal as a result of which the plaintiff was moved to another teacher’s classroom. According to the principal, this was necessitated because Ms. Bramhall with whom the plaintiff had been working was leaving the school. It was not suggested that there was anything sinister in this move, and the new teacher confirmed that the plaintiff had worked satisfactorily in the classroom thereafter.
(viii) 23rd November 2009: Board Meeting
The principal considered that she should bring the matter of the plaintiff’s performance to the attention of the board meeting which was held on this date. She spoke to the chairman, Mr. Lynch, in advance, who readily agreed to the matter being raised as he considered that the locking of the door was wholly unacceptable because of the child protection implications involved. The plaintiff was told in advance of the meeting that the matter was going to be raised, but not given any further details. In the discussions with the Board, the plaintiff was not identified. The minutes of the Board meeting recorded that the principal outlined “issues” she had with an individual SNA. She wanted the support of the Board to issue a verbal or written warning and the Board agreed. Evidence was given in relation to this meeting by both the principal Ms. Dempsey, and the chairman Mr Lynch. It appears that the other four members of the Board, who it was suggested were parents of children attending the school, wanted the plaintiff to be instantly dismissed and it took some persuasion from Ms. Dempsey and the chairman to dissuade them.
The Paragraph 48 Findings
At paragraph 48 of his judgment, the trial judge made important findings about this meeting:
“The evidence of Ms. Dempsey was that she outlined the full history of the matter to the Board. The extreme, if not, downright intemperate, reaction of the Board to whatever they were told, suggests as a matter of probability, the account given by Ms. Dempsey to the Board of the history of the matter was almost certainly untrue, highly biased, coloured, and grossly and unfairly damnified the plaintiff. Whilst I would readily accept that the members of the Board would be hyper-vigilant on all issues relating to child protection, and rightly so, as a group of probably fair-minded people, I do not think they would have reached conclusion so adverse to the plaintiff, unless grossly misled as to the true circumstances prevailing.”
There is no doubt that the plaintiff was not informed of the detail of what was said, was not invited to the meeting, or allowed to be represented or given any opportunity of having her views conveyed to the Board. The trial judge concluded at paragraph 50:
“To say that the conduct of Ms. Dempsey in relation to the lead up to this Board meeting and what happened at it was a departure from all the norms of natural justice is a feeble understatement.”
(ix) 21st December 2009
Nothing, however, was said to the plaintiff in the immediate aftermath of the meeting. It appears that the principal was to obtain advice and liaise with Human Resources in KARE. On the 21st December, 2009, just before the Christmas holidays, she informed the plaintiff that she was to get a Final Stage part four warning and would be given a formal notification in the New Year. When asked how long the warning would remain in place, Ms. Dempsey told the plaintiff that it would be on her file for six months.
(x) 18th January 2010
Whilst on yard duty, the plaintiff was asked to come to a meeting in the principal’s office with the principal and Mr. Lynch. The plaintiff was accompanied by a fellow SNA. She was told by Mr. Lynch that she would receive a Final Stage part four warning which would be on her record for 18 months. This period was specified because it appeared that this was provided for in the disciplinary policy and the reference to six months given before Christmas was a mistake. The trial judge found that the plaintiff indicated dissatisfaction and said she had been in touch with her union IMPACT and she wanted to appeal the decision.
(xi) 20th January 2010
The plaintiff called to the principal’s office and was handed a copy of the letter from the Board of Management signed by Mr. Lynch. While the letter informed the plaintiff of the sanction, and the period of 18 months during which it would remain on her file, it contained the following statement:
“This warning is being issued as a result of the investigation which was carried out at the request of the Board of management in to an incident that occurred on the 14th of September 2009, whereby you locked yourself and a child into the Sensory Room.”
The trial judge pointed out in his judgment that no investigation had been held into the matter whether at the request of the board or otherwise.
(xii) 27th January 2010
The plaintiff was asked to come to a meeting with Ms. Dempsey which it was said was to get “closure” on the matter. There was a total conflict of evidence as to what transpired. The trial judge accepted the plaintiff’s evidence that she was subjected to a variety of denigration which “belittled, humiliated and reduced her to tears”. (para.64)
(xiii) 29th January 2010
The plaintiff’s union representative, Mr. Phillip Mullen of IMPACT, wrote to Mr. Lynch referring to the final warning issued and stating that they wished to appeal on the following grounds:
“(1) Process: we believe that the process applied to the investigation did not accord Ms. Ruffley the right to adequately defend herself.
(2) The procedures in place in St. Anne’s had not made it clear that locking the safety room was a health and safety breach. That is not to say it was acceptable, but rather, that the practice was known and had not been objected to previously.
(3) Sanction: We believe that given the circumstances a final written warning is too severe a sanction in this case.
I would very much welcome an opportunity to elaborate on these points at your convenience and would appreciate if you would let me have copies of the relevant documentation (disciplinary procedure, original complaint, minutes of meetings, etc.).
I would also appreciate if you could confirm of any other disciplinary matters relating to Ms. Ruffley are outstanding.
I look forward to your early response.”
(xiv) 23rd March 2010
A meeting was arranged between Mr. Lynch, Ms. Dempsey, the plaintiff and Mr. Mullen. As a result of the meeting Mr Lynch asked the principal to ascertain whether or not there was a practice of locking the door. Ms. Dempsey said she had asked approximately 70% of SNAs, none of whom admitted to locking the door. Immediately after this meeting the plaintiff devised a rudimentary questionnaire which she distributed to her colleagues. It only contained two questions: “Have you ever locked the sensory room door?” and “Have you ever been asked by Pauline Dempsey ‘have you ever locked the Sensory Room Door?’”. Four colleagues answered, all of whom answered the first question “yes”. One of the colleagues answered the second question “no”.
(xv) 22nd April 2010
Mr. Mullen wrote to Mr. Lynch attaching a copy of the questionnaire and asking that it be taken into account and asking to be informed of the Board’s decision.
(xvi) 26th April 2010
There was a Board meeting which discussed the letter.
(xvii) 20th May 2010
Mr. Lynch wrote to Mr. Mullen responding that the Board stood over its original decision.
(xviii) 8th June 2010
There was a further Board meeting which referred to the correspondence and appears to have endorsed the decision to stand over the original sanction. The trial judge was satisfied that the Board did not give any meaningful consideration to the contention that there was a common practice of locking the room.
(xix) 27th May 2010 or 22nd June 2010
A letter was sent to the school by the plaintiff’s solicitors. There is confusion as to the date on the letter, but none as to the contents. The letter required the Board to acknowledge that they had received confirmation from other staff that it was “common practice that the sensory room was locked” and demanded an apology to Ms Ruffley. It appears that it was contended in this letter that the plaintiff had been bullied and harassed.
(xx) 24th September 2010
The Board sent a lengthy reply to the plaintiff’s solicitors. On the question of any practice of locking the door, it said:
“Whilst it may very well may be that from time to time it would appear that certain members of staff have, on very rare occasions, seen fit to lock the door of the Sensory Room at St. Anne’s School, this is not the policy of the school and it is strongly advised that members of staff not do this, for reasons as we are sure you will understand, that include the safety and wellbeing, not only of the children, but also the staff member concerned.”
The letter concluded:
“You are correct in saying that IMPACT represented your client at various points in the course of correspondence about this matter. It was indicated to your client at that time that so long as everything ran smoothly, there should be no reason to revisit these matters. The fact that they are now being revisited is a matter entirely for your client who failed to see what, if anything is to be gained at this stage in continuing with this correspondence.”
The trial judge considered that this paragraph of the letter was a “further rebuff” by the defendant of the plaintiff’s primary assertion namely that the locking of the sensory door was a common practice among SNAs; a practice, which the earlier paragraph appeared to implicitly, if not expressly, acknowledge to have existed.
(xxi) 24th September 2010
The principal appears to have informed staff on this occasion that the door of the sensory room should not be locked. Thereafter there was further correspondence between the solicitors and the school. The trial judge concluded that the plaintiff had done her utmost to pursue her grievance through the internal procedure of the defendant.
6 The matters set out above appear to be the matters upon which the trial judge made his findings of liability. However, he also recorded a further event of the 27th September, 2010, when a further incident occurred within the school. The plaintiff contended that she had arrived on time but had moved her car because there was car park line painting going on. When she went back into the school, she was reprimanded by the principal for being late. As the trial judge observed this would normally be a trivial incident and of little consequence, but for the plaintiff it was the last straw and she left work on that occasion and, regrettably has not returned to the school, or, it appears, worked anywhere else.
Observations on the Facts
7 I have set out the events in this case comprehensively because much of the difference of opinion in this case depends on the assessment of the cumulative impact of the individual events, many of them unremarkable in themselves. It is I think useful to analyse these matters in a little more detail. Although the entire process complained of occupied a year between September 2009 and September 2010, all the incidents of direct engagement with the plaintiff occurred between September 2009 and March 2010 (with the exception of the events just recorded which occurred in September 2010 leading to the plaintiff taking sick leave). Indeed, the meetings between Ms. Ruffley, Ms. Dempsey and others, occurred between September and January 2010. Some of these meetings cannot reasonably be the subject of any complaint such as the meeting on the 18th September, 2009, agreeing that the plaintiff’s care of the child would be monitored or the meeting of the 12th November, 2009, to rearrange the plaintiff’s work with a new teacher. Other matters recorded such as the communication of an incorrect period of time for the duration of the warning, do not appear significant. The trial judge’s most trenchant criticisms were directed towards the procedure. This analysis suggests that the plaintiff’s essential complaint was what was done (i.e. the procedures adopted or the lack of them) rather than the manner in which it was done (personal remarks, or offensive behaviour etc). Indeed the object of most criticism is a meeting (23rd November, 2009) at which the plaintiff was not present and, was not identified by name to the members of the Board and whose identity was not known to anyone other than the principal and the chairman. What is alleged therefore is that the disciplinary process should not have been contemplated, or continued once she raised the question of other SNAs locking the door, the treatment of the incorrect completion of the form as a serious matter justifying the reactivation of the disciplinary issues, the fact that she was not represented at the Board meeting which decided to issue the warning to her, the excessive nature of that sanction, and the fact that the Board considered an appeal against its own decision. The Court of Appeal was correct in my view therefore to identify the core issue as whether a claim for unfair procedures leading to an unfair result could itself amount to bullying.
Fair Procedures
8 One difficulty of this case however is that although it was framed with a heavy emphasis on fairness of procedures, (and indeed it was conceded that the procedures were flawed, even botched), the claim was not directed to a declaration of invalidity of a process or any sanction. There was therefore no close analysis of the precise manner in which a requirement for fair procedures was not adhered to. This was a small school. The core incident itself was not in dispute. The principal was the witness to the fact that the door was locked, and that was not disputed as a matter of fact. Nor indeed does it appear to be disputed that it was inappropriate and improper to lock the door. It is said, and I agree, that once the plaintiff maintained that this was a common practice among SNAs, that that question should have been addressed at least having regard to the sanction to be imposed, and on the judge’s view, in order to consider whether the disciplinary process should be pursued at all. There is also no doubt that at a minimum, Ms. Ruffley ought to have been able to have been able to put her side of the story to the Board, and put forward any evidence in support of her position. I do not think that any elaborate hearing was required, but in any event none was provided. Perhaps one of the difficulties of this case is paradoxically if there had been a stark conflict of evidence, it might have been more apparent that a hearing was necessary. However, no hearing of any sort was held. Furthermore, it was probably undesirable that Ms. Dempsey should take any part in the decision (even though it appears that she argued for a lesser sanction). Although her account was not being contested in relation to the question of whether the door was locked or not, and no allegation had yet been made against her, nevertheless she was a participant in the matter. For all these reasons, and perhaps more, the procedure was clearly defective and liable to be so declared by any court. For my part however, I do not see anything malicious in the way in which this was carried out, and more importantly there was no such finding by the judge. It is not unusual that in small institutions which do not have extensive human resources expertise, (and sometimes even in businesses with such expertise) that errors can be made, particularly in cases which appear obvious, and where the sanction does not involve suspension or dismissal.
9 It is also said that the fact that the Board considered Ms. Ruffley’s appeal was itself a further egregious breach of fair procedures. Certainly, if this was considered to be an appeal it would be plainly wrong that the same body would hear an appeal against itself. However, Mr. Mullen of IMPACT who made the “appeal” appears to have directed it to the Board, and did not raise any issue as to the composition of the Board hearing the matter. It is not suggested there is a provision for appeal in the disciplinary procedures which applied, nor is an appeal a necessary component of a fair procedure. In the nature of this school, there could be no prospect of an internal appeal to another body. However, if this process was simply considered to be a review, or a reconsideration of a decision, then it is not so obviously flawed as a procedure. I do not think that too much should be read into the use of the word “appeal” by Mr. Mullen, unless it was specifically contended that this disciplinary code required such an appeal and was being invoked. If the Board had reconsidered the entire matter and removed the sanction, I do not think it would be said that the procedure was itself flawed simply because the Board had reconsidered the issue, even under the rubric of “appeal”.
10 In my view, the reconsideration by the Board of this matter did not cure the defects of the original Board meeting decision of the 23rd November, 2009, but in my view at least, it did not itself constitute a separate heading of unfair procedures. Overall, what occurred here, in my view at least, is an unfortunately not unusual instance of a flawed procedure. Many similar examples are regularly encountered in courts. Many defective and flawed procedures are carried out and where appropriate the courts will declare them invalid or quash them pursuant to judicial review. Here however the plaintiff claims that these matters have had a serious impact on her mental health and sought to recover substantial damages as a result.
11 The plaintiff had experienced two earlier incidents of depression, one post-partum, and one in reaction to bereavements. During the period of the events set out above, she suffered from headaches, insomnia, diarrhoea and anxiety which her GP put down to stress-related bullying. Evidence was given by a psychiatrist, Dr. Byrne, that her past periods of depression meant that she was predisposed to further depressive illness. The trial judge was satisfied that she suffered from an Anxiety and Depressive Disorder resulting in a high state of anxiety, loss of confidence and inability to cope with life. On review in 2014, she was found to be suffering from a severe anxiety state and severe depression although the judge thought it probable that at this stage the impending litigation was worsening her symptoms. He also concluded that it was probable that “when this litigation is concluded, there is likely to be significant improvement in her anxiety and depressive state”.
12 The trial judge concluded that the matters set out above constituted bullying. He accepted the definition of bullying found in the 2002 Code of Practice Detailing Procedures for Addressing Bullying in the Work Place, (Declaration) Order 2002 (S.I. No. 17/2002) as follows:
“Workplace Bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.”
This has been accepted as an appropriate working definition for the purposes of the claim.
13 At paragraph 63, the trial judge concluded that the treatment throughout the process of the plaintiff by the principal was entirely “inappropriate” within the meaning of the definition. At paragraph 88, he concluded:
“Thus, in my opinion, the plaintiff has demonstrated to my satisfaction that the inappropriate behaviour of the defendants was not merely an isolated incident but was persistent over a period of in excess one year. There can be no doubt but that this persistent, inappropriate behaviour of the defendants wholly undermined the plaintiff’s dignity at work.”
Accordingly he concluded that she was entitled to damages calculated as follows:
Psychiatric injury to date €75,000.
Future psychiatric injury €40,000.
Loss of earnings up to 6th March 2014 €93,276.39
Future loss of earnings €47,000
Total: €255,276.39
Proceedings on Appeal
Court of Appeal
14 The Court of Appeal by a majority (Ryan P., Irvine J.; Finlay Geoghegan J. dissenting) allowed the defendant’s appeal. It appears to have been accepted however that there was no evidence supporting the claim to future loss of earnings and that amount should be deducted leaving the award in issue at €208,276. Ryan P. reviewed the evidence carefully and in some detail. His conclusions on the matter were set out succinctly at paragraph 74 of his judgment.
“This was not a case of bullying because:-
(i) The motive was child protection in a school devoted exclusively to children with Special Needs;
(ii) It was accepted all round that it was legitimate in the interests of child protection to ensure that the Sensory Room door was not locked – see the comments of the trial judge and of Mr. Mullen the trade union official;
(iii) The Chairman, Mr. Lynch, thought that the plaintiff, as an experienced Special Needs Assistant, should have known not to lock the door; this view does not have to be held to be correct and it was not disputed that it was honestly held.
(iv) The defence that others also locked the door was mitigation but not a full answer to the complaint;
(v) The individual encounters may reasonably be viewed in a different light e.g. the report by Ms. Bramhall on the plaintiff’s completion, inaccurately, of the Form 6, which undermines the conclusion that the process constituted bullying.;
(vi) This was a disciplinary process, perhaps arising from a misunderstanding, but honestly pursued in the interests of the children;
(vii) There was nothing in the process of investigation that constituted a sustained campaign maliciously pursued in order to intimidate or humiliate or denigrate the plaintiff;
(viii) The person who would have been most alert as to bullying was Mr. Mullen, the plaintiff’s trade union representative, who did not suggest that this was such a case;
(ix) At worst this was a botched disciplinary process and not a case of repeated offensive behaviour intended to destroy the plaintiff’s dignity at work;
(x) The definition of bullying has to be stretched beyond breaking point to fit this case;
(xi) If the trial judge’s conclusions are permitted to stand, this judgment will widen the tort of bullying to all kinds of situations that it was never intended to cover;
(xii) The definition is carefully drafted so as to convey the particular nature of the activity that is the subject of the wrong and which is required to be addressed by the employer. It is important that the courts should respect the precision of the definition and its limitations and confine it to the proper circumstances in which it applies. This is not such a case.”
15 For her part, Irvine J., having conducted a careful review of the evidence and the law, agreed with the conclusions of the Ryan P. She focused on the requirement that the conduct be repeated, inappropriate and undermines dignity. She considered in particular that to constitute repetition, the events relied on had to be reasonably proximate to each other otherwise there might be no more than individualised stated events. She gave the example where three events occurring within a month of each other might amount to bullying, whereas the same three events occurring over a three year period would not. She did not consider that the conduct of a body acting outside its jurisdiction should be considered to be “inappropriate” in the sense intended by the definition of bullying. She accepted however that a right to dignity at work entitled a person to be treated with reasonable fairness. She also considered that while in most cases of bullying there would be a public element to the undermining of the dignity of the individual, it was not essential that the conduct occur in public. Irvine J. concluded however that the matters alleged here did not amount to bullying. She was critical of the inferences drawn by the trial judge. Two in particular are illustrative. First, she addressed the conclusion that it could be inferred from what the High Court concluded was the ‘“downright intemperate” sanction imposed” that the Board at its meeting of the 23rd November, 2009, had been given an “almost certainly untrue, highly biased, coloured” account by Ms. Dempsey of the plaintiff’s conduct which “grossly and unfairly damnified the plaintiff”. Of this Irvine J. said at paragraph 74:
“Once again, I regret to say I am not satisfied that this inference, can objectively be sustained by reference to the evidence. First, there was Mr. Lynch’s unchallenged evidence that Ms. Dempsey favoured the imposition of a grade 2 or grade 3 warning and was against a more severe sanction. Secondly, even when it could be stated with absolute certainty that the board was fully aware of the plaintiff’s case, namely that other SNAs locked the door and that she had not been instructed not to do this, it was unwilling to withdraw the sanction which it had considered appropriate to impose. Thirdly, it was never suggested to Mr. Lynch, the chairman of the board, in the course of cross-examination that Ms. Dempsey had presented the case to the board in the manner so found by the trial judge.”
16 Irvine J. was also not prepared to accept the inference that no proper consideration was given to the facts of the plaintiff’s case before the Board rejected her appeal. At paragraph 82-84 of her judgment she said:
“82. As to the inference drawn by the trial judge that no proper consideration was given to the facts of the plaintiff’s case before the board rejected her appeal, I have to say that this is an inference about which I have grave reservations particularly in circumstances where Mr. Lynch, the chairman of the board, was never challenged on the matter.
83. Leaving that fact aside, I ask myself what could be the matters to which the trial judge considered the board did not give consideration? It had received in writing the case made by IMPACT in its letter of the 29th January, 2010. That letter referred to the fact that Ms. Ruffley was making the case that it had not been made clear to her that it was a health and safety breach to lock the sensory room door and that the practice had not previously been objected to. The board also had the second letter from IMPACT enclosing the result of Ms. Ruffley’s questionnaire of the 22nd April, 2010, to demonstrate that other SNAs had also engaged in the same practice. It also had the details of the submissions made by Mr. Mullen on Ms. Ruffley’s behalf at the meeting set up following the receipt of the appeal.
84. It seems to me that the trial judge’s inference that the plaintiff’s case was not properly considered can only be ascribed to his subjective view that such was the strength of the plaintiff’s case that the board would have reversed its decision if it had properly applied its mind to the full facts.
17 The conclusion to which Irvine J. came was set out at paragraphs 94 and 95 of her judgment:
“94. All of these factors afforded the plaintiff substantial grounds upon which she might have instituted plenary proceedings seeking a declaration as to the invalidity of both the original decision of the board and the decision which it made on the appeal. For whatever reason, she chose to eschew such an approach in favour of an action for damages for breach of duty on the part of her employer in respect of bullying in the workplace.
95. However, the fact that the board may have conducted the investigative and disciplinary process in the hopelessly flawed manner last described does not bring its conduct anywhere close to meeting the definition of bullying as set out in Quigley. On the facts of this particular case, objectively ascertained, the defendant could not be considered guilty of the type of repetitive inappropriate conduct which undermined the plaintiff’s right to dignity in the workplace for a period of over a year as was found by the trial judge.”
18 Finlay Geoghegan J. dissented. Her judgment is particularly relied on by the appellant in this appeal. She observed that while the claim was often referred to colloquially as a claim for bullying, it had been said that there was no separate tort of bullying or harassment. See: Kelly v. Bon Secours Heath System Limited [2012] IEHC 21, and Nyhan v. Commissioner of An Garda Síochána & anor [2012] IEHC 229. The claim was a species of a claim for breach of the general duty owed by an employer to an employee. She considered that the necessary “proofs on the part of the plaintiff may differ” depending on whether the alleged perpetrator was a fellow employee or whether the conduct alleged to constitute bullying was carried out by the employer or management. She cited with approval an extract from a leading work, McMahon & Binchy, Law of Torts, 4th Ed., (Dublin: Bloomsbury, 2013), at para. 18.80:
“There is no distinctive tort of bullying or harassment. The question is to be resolved in the context of employers’ liability, by asking whether the employers took reasonable care not to expose the plaintiff to the risk of injury from such conduct. The answer will depend in large part on what facts ought to have been known to the employer. Naturally, matters are different where the plaintiff’s claim is that he or she is the victim of ‘corporate bullying’, where the allegation is that the management of the enterprise is implicated in the bullying activity. Such claims have succeeded in some recent cases, and failed in others.”
19 In a careful judgment, the learned judge addressed this definition. She concluded that “repeated” behaviour was to be contrasted with the “isolated incident” or the “once-off” incident also referred to in the code of practice. While the consideration of what behaviour would constitute “repeated” for the purposes of the test “must depend on an assessment of all the facts”, a disciplinary process which continued over a number of months with several interactions between the plaintiff, the principal, and the chairman, could not “be considered to be either an isolated incident or a once-off incident.” (para 20).
20 Finlay Geoghegan J. also considered that it was also difficult and probably dangerous to try and define at a level of principle what would be the threshold for “inappropriate” behaviour. In a workplace context that had to depend on the relationship and relative positions of the individual and the “full factual context”. She was satisfied however that the behaviour here was indeed inappropriate.
21 Finally, Finlay Geoghegan J. addressed the question of conduct undermining the right to dignity at work. In this case she found that satisfied by the breach of fair procedures in this case:
“Where as on the facts of this case the Court is considering the right of the plaintiff as [an] employee to dignity at work in a context of her treatment by the Principal of the school and the board of management in relation to a disciplinary process such right to dignity must include, it appears to me, a right to be treated with respect, fairly and not less favourably than other colleagues in a similar position. It must include a right not to be singled out for disciplinary treatment in relation to a practice which whilst not acceptable was engaged in by other similar colleagues. It is obvious that an employee must expect, in a situation where it is contended that his or her performance has been less than what is expected or required that she may be subjected to a disciplinary process. However, it appears to me that her right to dignity at work includes a right to be treated with respect and fairly in the above sense and not singled out unfairly from colleagues in a similar position in such [a] disciplinary process.” (para.22)
22 At paragraph 43 of her judgment, Finlay Geoghegan J. made it clear that she was not relying on the inferences drawn by the trial judge at paragraph 48 which had been challenged by the defendant. However, she considered that the remaining evidence justified a finding of bullying, and accordingly upheld the award of damages subject only to the deduction of the award in future loss of earnings.
Supreme Court
23 In its determination [2016] I.E.S.C.DET. 52, the Supreme Court granted the appellant leave to appeal on two questions:
1) Whether an unfairly carried out disciplinary process resulting in psychiatric injury is, in itself, capable of being actionable in damages on the basis that it amounts to workplace bullying without evidence of malicious intent on the part of the employer.
2) Whether behaviour not witnessed by other persons in the workplace is capable of undermining the dignity of an employee.
During the hearing of the appeal, it became apparent that to address only these issues might not result in a complete resolution of the case, since even if both questions were answered positively that would not necessarily lead to the overturning of the decision of the Court of Appeal. Accordingly the Court invited the parties to address the question more comprehensively and to consider if the finding of bullying by the High Court was sustainable, because if that were the case, it would follow that the decision of the Court of Appeal should be reversed. However, this meant that the Court did not perhaps have the range of materials and depth of submissions as might have been provided if the broader issue had been addressed from the outset, and so my conclusions as to the law must be subject to some qualification and the possibility of refinement in future cases.
24 It should be noted that prior to the granting of leave in this case, there had already been some brief discussion in this Court about what constitutes bullying in the workplace in Quigley v. Complex Tooling & Moulding Ltd. [2009] 1 IR 349. In that case the plaintiff had worked in a business for 21 years and had become the 4th most senior employee. The business changed hands on a number of occasions before being acquired by the defendant, and later closed down. Evidence was given by the plaintiff and others of the “terrible domineering demeanour” of the new plant manager towards the plaintiff. A shop steward described “the animosity of the plant manager” towards the plaintiff. Other evidence was given of humiliating behaviour by the plant manager and the new managing director when discussing a voluntary redundancy package, and of humiliating and demeaning references to the plaintiff being made to other employees about the plaintiff. The manager often stood on a box only eight feet behind the plaintiff’s work station “with the effect of intimidating the plaintiff”. Other remarks were made suggesting the plaintiff was not capable of performing even basic functions, and needed “some broom training”. Neither the plant manager nor the former managing director were called in evidence so the detailed evidence of victimisation was not challenged.
At page 371, Fennelly J. accepted counsel for the defendant’s submission that:
“bullying must be:-
• repeated;
• inappropriate;
• undermining of the dignity of the employee at work.”
Fennelly J. elaborated further on the issue of bullying in the context of causation, observing at page 372 that:
The plaintiff cannot succeed in his claim unless he also proves that he suffered damage amounting to personal injury as a result of his employer’s breach of duty. Where the personal injury is not of a direct physical kind, it must amount to an identifiable psychiatric injury.
25 The trial judge in this case referred to the above dicta of Fennelly J. in Quigley. Although Fennelly J. recognised the “comparative novelty of the cause of action” in Quigley, he observed that the Court “[had] not been asked to decide any principles of law” because “the parties were ad idem as to the nature of the wrong of harassment or bullying and the standard which should be applied.” (pp. 368-369). In any event, the appeal was allowed on a question of causation. It is the case that Fennelly J. stated that the conduct there amply met the criteria of being repeated, inappropriate and undermining of the dignity of the plaintiff at work. It will be useful to compare the facts of Quigley to the current proceedings, but it remains the case that this case presents the first opportunity for the Supreme Court to give extended consideration to the law of bullying in the workplace.
Discussion
26 This case raises a number of issues. First, as counsel for the appellant observed at the outset of the appeal, the case may appear to be a storm in a teacup. The core issue whether a door should have been locked, or perhaps more precisely what the school (principal, chairperson and Board) should have done once it became aware of the fact and that Ms. Ruffley was contending that this was a common practice, seems a relatively minor and routine matter that ought to have been capable of being addressed in a small school where personal relationships were important and where the plaintiff had worked for 10 years. Hindsight is easy, but it is difficult to think that it would not have been better for all sides if this had been sorted out with more sensitivity and goodwill at any of the number of points on which it may have been possible to resolve it without litigation, and perhaps most obviously when the plaintiff’s union became involved. That would have avoided the stress and considerable expense of a High Court action extending over 11 days trawling through the minutiae of personal relationships.
27 I think it is clear that the case is not one that fits squarely into the core understanding of bullying at work. Although questions of unfair dismissal and bullying can overlap (such as in Quigley and Eastwood v. Magnox Electric [2004] UKHL 35 referred to therein), I am not aware of any case which presents the issue raised in this case of unfair procedures being alleged, without more, to constitute bullying or where a bullying claim relied on similar matters. Although there is an oblique reference at paragraph 61 of the High Court judgment that the behaviour of the principal was hard to understand without an element of bad faith, it is not alleged or found that there was any individual personal animosity traceable to any incident or event. The behaviour was considered to be ‘strange’, ‘odd’ and ‘difficult to understand’ but not malicious. Indeed the Board was unaware of the identity of the plaintiff when they made the initial decision, so there can be no inference of personal animus on the part of the other Board members. Yet they were the members pressing for the most severe sanction. With the exception of the incident on the 27th January, 2010, when the plaintiff was reduced to tears, and to which the High Court judge does not appear to have attributed critical significance, there is no suggestion of personally offensive behaviour. It is not suggested that there was ridicule, personal antagonism, or exclusion from a group. Nor was there shouting in public, or the making of disparaging remarks in public or private about work, appearance, gender or sexuality, status or racial origin. There is no allegation of intimidation or the circulation of damaging gossip, or the use of aggressive and obscene language or repeated requests to do tasks which were either menial or impossible to perform in the time required. Here the complaint relates to unfair procedures in a disciplinary process including what was alleged to be the unfair singling out of the plaintiff for punishment for conduct which others had admitted to, and which the trial judge considered a common practice and perhaps in any event, not unduly serious. This is not to say that such matters cannot constitute bullying, but rather that it compounds the difficulty of this case, that it involves conduct which on any view is at the margins of conduct alleged to be bullying.
28 It is apparent that the plaintiff is a sensitive person. There is no suggestion however that the employer here was aware of the earlier episodes of depression, or that the case should be approached in that light i.e. that the school should have known plaintiff had a predisposition to such matters. It is also disturbing that the remedy (in this case protracted litigation) if not worse, then certainly resembles the wrong in its impact on the individual concerned. It is apparent that by the time the case came on in the High Court, that the plaintiff’s experience of stress, anxiety and depression were bound up with the stress necessarily involved in court proceedings so that the judge considered that the symptoms recounted on examination were attributable to the litigation as much as the original complaints about the school. Furthermore, the trial judge was confident once the case was resolved, it would be possible for her to return to work within six months even though she had at that point been absent for almost four years. It may be said that this is an unavoidable consequence of any claim that goes to court, but it is certainly the case that court proceedings, with all the pressures involved, are a less than ideal method of dealing with complaints of workplace stress. It should also be recognised that such cases impose their own stresses on other people involved because necessarily their own characters and reputation will come under scrutiny in a more personal way than in an ordinary personal injuries claim.
29 A further feature which is not unconnected to the stresses involved are the considerable costs involved of a hearing of this nature which has now extended over 14 days in three courts. If the High Court judgment is upheld then the award of damages and costs and the defendant’s own costs, will on any view be very substantial indeed. On the other hand, if the Court of Appeal decision is upheld, and if it followed that costs were awarded against the plaintiff, then that could easily be ruinous for her. Even if only required to bear her own costs, and her lawyers, as lawyers acting for individuals in unsuccessful cases often do, were willing to reduce their fees, the financial impact would still be very substantial indeed.
30 In my view, these features of the case mean that this case, difficult in itself as a factual controversy, must be looked at more broadly. At some level this novel case will set a benchmark for all bullying claims. The purpose of the law of tort, and in particular the identification of new claims or areas of liability, is not merely to adjust matters fairly between the individual parties (difficult though as that may be in a particular case) but by doing so to enable other cases to be settled without proceeding to a hearing, and many more to be avoided entirely. As Dean Calabresi memorably observed that if a person is held liable for the damage and loss they caused to others, this person will eventually refrain from carrying out the harmful activity— Calabresi, “Some Thoughts on Risk Distribution and the Law of Torts” (1961) 70 Yale Law Journal 499. One justification therefore for the law of torts and the stresses and costs it entails, is that it provides a potent incentive to alter general behaviour. It is necessary therefore to have regard to the impact well beyond this case, of any finding or rejection of liability.
31 Normally in such circumstances it will become particularly important to pay close attention to the facts of the case. However, this case illustrates two truths which may not be immediately apparent to the law student encountering the common law through the medium of reported decisions. First, cases do not come pre-packaged under the headings in the text books. It is not simply a case of concluding which side has acted well, and who has been injured and who should pay. It is an important issue to consider how the case should be analysed as a matter of law. Here for example, as Irvine J. observed, there is little doubt that the disciplinary process engaged in by the school here was flawed, and that a court if asked to do so would have declared the disciplinary sanction invalid. It is not necessary to speculate on the range or type of proceedings or the extent of remedies involved. However, it does not follow from the fact that the plaintiff was wronged by the defendant in some sense, that therefore the plaintiff should recover in excess of €200,000 damages. That is so, even if it is accepted that the plaintiff’s depression, anxiety and stress were caused in whole or in part by the treatment she received. To take just one obvious example, in the field of administrative law where judicial review on the grounds of fair procedures is common place, invalid administrative action does not given rise itself to a claim for damages.
32 It is also important to keep in mind the role of fair procedures in this case. They clearly loom large in the High Court judge’s assessment of the case, and were relied on to a significant extent in the dissenting judgment of Finlay Geoghegan J. in the Court of Appeal. However, it is not necessary to establish a breach of fair procedures to succeed in a bullying claim, and conversely, the presence of unfair procedures does not establish bullying. Bullying often involves a question as to how something was done rather than what was done. In theory it is possible that a disciplinary process conducted in accordance with the rules of fair procedures might still constitute bullying, and even irrespective of the outcome of the process. An ostensibly fair process, and punishment for an established breach may constitute bullying if it is established it was instituted maliciously, and as part of a campaign to victimise an individual. It is important therefore not to blur the distinction between these two different claims by assuming that there is any logical connection between a breach of procedures, and a claim of bullying entitling a party to substantial damages.
33 Furthermore, when appellate courts refer to the facts, and when the facts of a case, if reported, are presented in a compressed format in a headnote, it is easy to think that these are fixed and immutable points. On this approach, fact-finding may be difficult, but once found, facts are hard-edged and clear. But this case illustrates something the fact-sceptic branch of legal realism identified some time ago: facts are more malleable and the line between fact, inference, supposition and speculation are more blurred than the confident finding of fact and pinning down of conclusions in a judgment might suggest. It seems clear that the two judges who would have upheld the plaintiff’s claim in this case, viewed, and more importantly characterised, the events in this case, quite differently from the two judges in the Court of Appeal who rejected the plaintiff’s claim. One side sees the plaintiff as unfairly subjected to a disciplinary process which itself was unfair. The sanction produced was so severe and a refusal to reduce it so incomprehensible that the whole process can only be explicable as bullying. On the other hand, the majority of the Court of Appeal viewed the evidence as portraying a bungled, perhaps seriously bungled, disciplinary process but carried out in relation to an incident the school was entitled to consider serious, and by people including the Board, whose integrity there was no reason to impugn.
34 This difference of approach makes it difficult to review the facts, and indeed to apply the traditional tools of appellate review. In this case, much of the findings of the trial judge are bound up in and difficult to distinguish from inferences he drew. It is very clear that the trial judge took a very strong view of the facts in favour of the plaintiff, and against the defendant.
35 In fact little if anything turns on this appeal on the finding of contested primary facts in this case which is the area in which an appellate court will most readily defer to the trial court. It appears to me that there are perhaps only three areas in which there were contested issues of fact resolved by the trial judge: two in favour of the plaintiff, and one in favour of the defendant, but that none of these conclusions appear to have had a significant impact on the outcome of the case. The trial judge accepted the plaintiff’s evidence that Ms. Dempsey had not handed to her a letter dated the 18th September, 2009, at the meeting on that date, or indeed at all. In another case this might be significant. However the terms of the letter are not themselves particularly important to the resolution of this case. Of course, if the trial judge had found that the letter had been deliberately fabricated after the event, to in some way cover or bolster the defendant’s position, that might be significant, and indeed have an impact on the assessment of the credibility of witnesses if that had been an issue. However, no such finding was made, and the case is not dependent on the credibility of witnesses. Instead it is largely dependent on the assessment of facts which themselves not in contest. In fairness to all parties, I should also observe that there was a degree of confusion on both sides as to the exchange of correspondence and the sequence of events.
36 The second issue is when the plaintiff and Ms. Dempsey met to consider the teacher’s review of the plaintiff conducted by Ms. Bramhall and recorded on an SNA staff assessment form. The plaintiff described the events as occurring at a meeting on the 12th November, 2009, but the judge was satisfied that the meeting occurred on the 19th October, 2009. Again, in other circumstances this might be significant, but nothing appears to turn on it at least for the purposes of the trial judge’s conclusions. Finally, there was a total conflict of evidence between the plaintiff and Ms. Dempsey as to what occurred at a meeting on the 27th January, 2010. In that regard the trial judge accepted the plaintiff’s evidence that she was subjected to a “considerable variety of denigration which belittled, humiliated and reduced her to tears”. It would certainly be helpful for the purposes of appellate review if in addition to the conclusion of denigration, belittling, and humiliation, the specific matters alleged to have been said were set out, but this is clearly a matter in respect of which the judge was entitled to make a finding as between the conflicting accounts. However while denigration, belittling, humiliation and reducing a person to tears even in a private meeting, is clearly potentially relevant to any claim of bullying, it does not appear to have loomed large in the trial judge’s conclusion because before recounting his findings in respect of that meeting, the trial judge had in the immediately preceding paragraph already concluded that the “treatment of the plaintiff throughout this process by Ms. Dempsey was entirely “inappropriate” within the meaning of the definition of bullying in the workplace. Nevertheless, I accept that the finding at paragraph 64 in favour of the plaintiff in respect of the meeting of the 27th January, 2010, is something within the province of the trial judge: there was conflicting evidence and he accepted entirely one version. I also accept for the purposes of this judgment that such a finding of conduct, even occurring at a private meeting between only two individuals is capable of constituting conduct which is inappropriate, and capable of undermining the plaintiff’s dignity at work, and therefore if repeated, capable of constituting bullying. To that extent this is a finding of primary fact, and therefore important, although not central to the conclusion of the trial judge.
37 I accept this finding with some reluctance however, because cogent criticisms have been directed towards the analysis of the facts in the High Court and in particular the finding at paragraph 48 of the judgment that at the meeting of the 23rd November, 2009, Ms. Dempsey outlined the history of the matter to the Board, which was “almost certainly untrue, highly biased, coloured, and grossly and unfairly damnified the plaintiff”. As already noted, Ms. Justice Finlay Geoghegan who otherwise upheld the conclusions of the High Court judge, did not rely on the finding at paragraph 48 because it was challenged by the defendant. It is necessary to explain in a little more detail why that is so, and why in my view Ms. Justice Finlay Geoghegan was certainly correct, at a minimum, to avoid relying on that finding.
38 This finding cannot really be characterised as an inference, but rather as speculation alleged to follow ineluctably from certain facts. The finding here is alleged to follow from the fact that a group of reasonable people could not possibly have come to the “downright intemperate” conclusion which they did, namely if not a recommendation for the decision to dismiss the plaintiff then at least the issuance of a Final Stage part four warning, unless the account they had been given was almost certainly untrue, highly biased, coloured, and grossly and unfairly damnifying of the plaintiff. There are however a number of difficulties with this conclusion. First, the only evidence given of the events at the meeting of the 23rd November, 2009, was that given by Ms. Dempsey and Mr. Lynch. Neither gave any evidence that would allow the judge to conclude that what Ms. Dempsey said to the Board was untrue and highly biased. This is a conclusion derived entirely therefore from the judge’s view of what he describes as the extreme reaction of the Board. This conclusion is dubious as a matter of logic, (there could be other reasons, whether good or bad for the Board’s reaction other than an unfair account by Ms Dempsey, such as that, rightly or wrongly, they took a more serious view of the matter than the judge did) but, as the majority of the Court of Appeal pointed out, it is in any event difficult to square with other uncontested facts: first, that Ms. Dempsey and Mr. Lynch did not encourage the Board in its conclusion, but sought a lesser sanction and sought to dissuade the Board from recommending dismissal; second, that the plaintiff was not identified by name and there could be therefore no question of any personal animus at least on the part of the other members of the Board; and finally, that when the Board was apprised of the case being made on behalf of Ms. Ruffley, namely that the sanction was too severe in and of itself, and in the circumstances where other SNAs had engaged in the practice, the Board nevertheless reaffirmed its decision. But there is perhaps an even more fundamental objection, which must have particular weight in a case such as this concerned at its heart with fair procedures: this assertion was not put to either Ms. Dempsey or Mr. Lynch in cross-examination on behalf of the plaintiff or indeed by the judge, even though the conclusion arrived at in the judgment, of an untruthful, biased, and grossly unfair account, is one necessarily damaging to Ms. Dempsey’s reputation, and also and inescapably meant that Mr. Lynch’s account of the meeting must have been, at a minimum, both partial and inaccurate in a very material respect.
39 I cannot accept therefore the finding at paragraph 48 as a finding of fact. Furthermore, I consider that an erroneous conclusion arrived at by an experienced trial judge who had so clearly and obviously engaged carefully with the facts of this case, is its own warning against any over simplification of the facts in this case. It is apparent however, that Ms. Justice Finlay Geoghegan in the Court of Appeal was able to uphold the trial judge’s finding without relying on the finding at paragraph 48. I have some reservations about this course because it is not clear to me that a court can apply the normal test of deference towards the findings and assessments of the trial judge if it has concluded that in some important and material respect findings have been made which cannot be supported. This must apply particularly in a case such as this which is dependent upon there being a number of incidents and a pattern of behaviour which can satisfy the legal requirement of repeated inappropriate behaviour undermining dignity at work. If one or more incidents relied on by the trial judge is properly rejected by an appellate court, can the overall conclusion of the trial court that there had been repeated conduct sufficient to establish bullying, be one to which the appellate court must continue to defer? It is apparent, that something similar occurred in relation to the inference drawn by the trial judge at paragraph 75 that he was satisfied that the Board did not give any meaningful consideration to the case being made by the plaintiff. As is pointed out by Irvine J., this was not put to Mr. Lynch in cross-examination either. I am not convinced therefore that it is appropriate to merely subtract these findings and then consider whether the balance of matters can justify a finding of liability when we do not and cannot know if the trial judge would himself or herself have so considered. However, given the importance of this case both to the individuals, and more widely, I think it is desirable to proceed to consider the other issues in the appeal on the assumption that it is possible to excise paragraph 48, and consider if the remaining matters can support a finding of bullying.
40 I regret to say, that it appears to me also that despite the welter of evidence of the day-to-day interactions, and the communications and correspondence between the parties, there is nevertheless an absence of evidence on an issue which I consider to be important, if not central. An important component of the High Court finding of bullying was that the original incident – the locking of the sensory room door – was a relatively trivial matter which ought to have been resolved simply, and did not itself merit being brought to the board. In this regard the trial judge takes a contrary view to the principal, Ms. Dempsey, and the chairman, Mr. Lynch, who both considered it should be brought to the Board’s attention, and by definition, the other members of the Board who treated the matter so seriously. This accordingly involves the trial judge substituting his judgment for that of the decision-makers. It is rare for courts to do this, when asked to review the decision of a decision-maker, otherwise than by way of direct appeal. The guarantee of fair procedures is based on the theory that if fair procedures are followed, a fair result will ensue, but there is inevitably a range of decisions which a reasonable decision-maker may take even if a judge on the same material would not make the same decision. A court exercising judicial review is not a court of appeal on the merits. A similar test is applied when reviewing the fairness of dismissals from employment. If procedural fairness is to be a component of the tort claim, a similar approach should apply.
41 Here it is very clear that the trial judge considered that the decision of the Board was not only reached after an unfair and flawed procedure, but was a decision which was wrong in the sense that it was a decision that he himself would not have come to. It may be inferred that he would also have considered that it was a decision to which no reasonable Board could properly have come. But that is a conclusion on an issue which, at a minimum, would have been greatly assisted by evidence from experienced care professionals as to whether the practice of locking the door from the inside was a breach of proper procedures and perhaps critically, if it was, how serious a matter it was.
42 The manner in which the High Court dealt with the first component of this issue is worthy of some note. Initially the judgment simply records the plaintiff’s surprise at being reprimanded because it was said no instruction had been given either to lock or not lock the room. These and further references seem to suggest that the appropriateness of the conduct was a matter of some reasonable debate. However, at paragraph 42 the trial judge accepted, readily, that it was reasonable of the defendant both for health and safety reasons and more probably for reasons of child protection to insist on a prohibition of locking the door. Later, “with the benefit of due consideration and hindsight”, it was acknowledged that it “could easily be said that the necessity of observing child protection standards meant, unequivocally, that … this door should never be locked”. Later again however it is stated that the locking of the door was something “the defendants were entitled to regard as unacceptable”. Given the importance of this issue, it could have benefitted from independent evidence which might have established the seriousness or appropriateness of the conduct, beyond dispute. There seems little doubt however, that the locking of the door in this way was not acceptable conduct. Indeed, that is precisely what the Mr. Mullen plaintiff’s union representative acknowledged when he argued merely that the punishment was too severe. If there is any doubt it is worth considering for a moment what analysis might have been offered in court if in an individual case a child had sought to leave the room and had become agitated and distressed or suffered an injury because of the fact that the door was locked. Again, it is worth considering what the position would be if it had been alleged that a child had been abused in some way while restrained in the room. It is easy in either case to imagine that the practice of locking of the door would have been the subject of very severe criticism, and the fact that it was not in accordance with KARE practice would have been emphasised, and the absence of a specific prohibition in a code of conduct treated as irrelevant.
43 The judgment ultimately does seem to proceed on the basis that the practice was unacceptable, although in my view it would have been desirable that such a conclusion had the support of independent evidence. However there was no evidence whatsoever on what is perhaps a critical question at the heart of much of the division of opinion in this case: how serious a default was this as a matter of best practice? That question was central to this case because the trial judge found that the disciplinary process should not have taken place at all (para. 62) and that the Board’s response in treating the issue as serious was “extreme, if not, downright intemperate”. (para.48). At a minimum, these conclusions would have been more soundly grounded if there had been evidence as to the seriousness with which such an incident should or could be viewed by a reasonable employer of SNAs caring for children with intellectual disabilities. On the other hand, if there was evidence in addition to that offered by Mr. Lynch, that the practice was regarded as a serious default which should have been known by any conscientious SNA, then the case could be viewed in a very different light.
44 I accept that a specific component of the trial judge’s conclusion that the process should not have taken place was his view that there was a common practice among SNAs of locking the door and that accordingly the plaintiff had been “singled out” for punishment unfairly. Again the evidence however is less than clear-cut. There were 26 SNAs employed in the school. (para. 5). The plaintiff devised a rudimentary questionnaire containing two questions the first of which was “Have you ever locked the sensory room door?”. The questionnaire was answered by only four SNAs who all answered, yes. The evidence of the plaintiff and the SNAs who gave evidence was to the effect that more SNAs would have answered affirmatively if they had been able to do so anonymously. Later in the judgment this limited evidence becomes a finding that “there was a common practice of doing this” (para. 62), and indeed that the Board was “aware that several other SNAs also occasionally locked the Sensory Room door” (para. 87). At paragraph 41, there is a finding that “there was a general practice among many of the SNAs, probably a majority, of locking the Sensory Room door” (my emphasis in each case). Again, in my view, the evidence recounted in the judgment is a less than secure basis for the conclusion that there was a general practice among the majority of SNAs of locking the sensory room door, even though that was fundamental to the finding that the process “should not have been commenced”, and that the plaintiff was “singled out”. Even on the plaintiff’s case this was not the type of clear-cut singling out or targeting for a punishment that is sometimes discussed in an employment context, and which can give rise to a finding of unfair dismissal. A classic case is where it is known as a matter of fact, that a certain practice is widespread, but in that knowledge, only one person is selected for punishment, in circumstances which give rise to the reasonable inference that the objective is not to put an end to conduct, but to victimise the individual. In the field of unfair dismissal, consistency in applying procedures may be a component of unfairness. If an employer has previously tended to interpret a disciplinary rule lightly, a sudden decision to dismiss employees for breaking the rule may be unfair. (See: Redmond, Dismissal Law In Ireland (Dublin: Butterworth, 1999), para 13.40). Here however, even on the plaintiff’s case, it is not suggested that Ms. Dempsey, still less the Board, was aware when the disciplinary process was initiated, of the general practice found by the trial judge based on the limited evidence set out above, and therefore, at least in its initiation, the disciplinary process cannot be treated as a singling out of the plaintiff. What happened was something rather more complex: the plaintiff having been found to have been engaging in a practice which it appears to have been accepted even if grudgingly, was inappropriate and unacceptable, and when informed that the matter was being treated as a disciplinary matter, raised the contention that other (unspecified) people had done this on other occasions (also unspecified). The trial judge found that this allegation should have been investigated and that of course goes to the fairness of the procedures followed, but, as Irvine J. suggested in the Court of Appeal, it is certainly a less clear-cut example of being singled out for punishment. Once again it may ground a finding of imperfect and flawed procedures, but it falls short in my view of the type of conduct captured by a bullying claim.
45 One further observation is necessary. One issue left unresolved by the decision of the High Court is any plausible explanation for the conduct criticised. Most cases of workplace bullying involve bullying by an individual, or a group excluding and victimising a person, and which in either case the employer fails to prevent or remedy. There may also be so called ʻcorporate bullying’ involving a superior, or indeed management more generally in the treatment of the individual. Where more than one person is involved as where the individual is ostracised, or subjected to ridicule, it will usually involve some obvious concerted action. However, here, it is not clear what is being alleged or indeed found in this regard. It is not for example alleged merely that Ms. Dempsey bullied the plaintiff, and the school failed to prevent or remedy it. It is clear that Mr. Lynch is also criticised and found culpable although it is not suggested he was involved from the outset. Nor is it suggested that the remaining members of the Board were misled by Ms. Dempsey, alone or together with Mr. Lynch, but instead it appears the members of the Board were criticised as somehow being participants themselves in the bullying. It seems, although it is not clear, that the teacher Ms. Bramhall, may also have been considered a party to the bullying insomuch as she was not prepared to allow Ms. Ruffley correct the weekly forms.
46 If this case was merely about unfair procedures, then the fact that there were a number of disparate actors would not pose a difficulty, and indeed and at some level might enhance the claim: the school would be responsible for the procedures followed, and the cumulative impact of them, and any lack of cohesion and organisation might only give weight to the plaintiff’s case. However, it is I think rather different where it is alleged that reprehensible conduct at a personal level such as bullying is involved. It is not clear if the individuals (Ms. Dempsey, Mr. Lynch, Ms. Bramhall, and the other 4 members of the Board) are alleged to have separately engaged in bullying, or in some form of collective action, or that there was some hidden arrangement or agreement between them arising perhaps out of some pre-existing animus. The absence of any explanation why these different people became parties to a pattern of what was considered to be wholly inappropriate behaviour undermining the dignity of the plaintiff as a person, makes it difficult to defer too readily to the conclusions of the trial judge. Accordingly, I think it is difficult to address this merely at the level of the facts found and inferences drawn, although there is considerable force in my view, in the analysis of those findings in the judgments of the majority in the Court of Appeal. This appeal can be best approached and resolved on a question of law: do the facts found, or not in contest in the High Court, amount to bullying at law?
47 In this regard the trial judge’s approach was to record the facts as found by him, and his strong view of them, and then conclude that this amounted to bullying, without any extended consideration of the law. Thus at paragraph 63, he determined that the treatment of the plaintiff was “inappropriate”. Later at paragraph 88, having stated that the Board persisted in its unfair and inappropriate treatment of the plaintiff, he concluded:
“Thus, in my opinion, the plaintiff has demonstrated to my satisfaction that the inappropriate behaviour of the defendants was not merely an isolated incident but was persistent over a period of in excess of one year. There can be no doubt but that this persistent, inappropriate behaviour of the defendants wholly undermined the plaintiff’s dignity at work.”
48 On this approach the only analysis of the question of undermining of dignity at work, is that it is treated as a necessary consequence of the finding of any inappropriate conduct which was itself persistent. While I recognise that this is a developing area of law, and the facts and evidence in this case were perhaps unusually difficult, I do not think it is sufficient to resolve the legal issue in this way. The requirement of undermining of dignity is an important part of the definition. The matter is dealt with in greater detail in the analysis of the dissenting judgment in the Court of Appeal of Finlay Geoghegan J. and it will be necessary to turn to that in due course. Before doing so, it will I hope be useful to look at the question of liability for bullying in a somewhat broader perspective.
A detour: is there a separate tort of bullying or harassment?
49 While it does not arise directly on this appeal, I consider that the statement of law, accepted without question in this case, that no separate tort of bullying is or can exist, that bullying is in a sense a subspecies only of an employer’s duty of care, but that there can be nevertheless a concept of ‘corporate bullying’ for which the employer is directly responsible, more than a little puzzling and worthy of some consideration. I discuss these matters however, not to raise further uncertainties as to the law, but rather because these matters and the questions they raise cast a helpful light, in my view, on the issues to be determined in this case.
50 There is no doubt that in addition to specific duties imposed by statute, an employer owes extensive duties of care to an employee at common law. Those duties include the duty to provide a safe place of work, a safe system of work, to ensure fellow employees are competent, and that equipment used in the workplace is safe. That duty can clearly extend beyond the direct actions of the employer, and to the actions of other individuals which are or ought to be foreseeable, including the actions of other employees, or indeed third parties. Thus for example, employers have been held responsible for a failure to foresee and take steps to prevent criminal assaults suffered by an employee: Walsh v. Securicor Ireland Ltd [1993] 2 I.R. 507. Another example might be the employee horseplay cases. If the employer knows or ought to have known of the practice, and did not take effective steps to prevent or stop such practices, then an employer may be liable to the injured employee. In addition, an employer may also be vicariously liable for the acts of an employee and without proof of fault in the employer’s part if the actions of the other employee are so closely connected with the employment as to justify the imposition of vicarious liability. But in either case, at least in theory, the fellow employee is also a tortfeasor, either negligent in respect of the safety of another, or in some cases the perpetrator of a deliberate wrong in the nature of an assault for which the employer is vicariously liable. It is not necessary here to discuss the mechanism by which the law as devised to avoid perhaps the full logical consequences of this so that an employer, cannot normally seek contribution and indemnity for the acts of an employee tortfeasor, but the theory that the co-employee is guilty of a tort remains an important component of the basis upon which liability, vicarious liability or in negligence, is imposed upon an employer. It is I think difficult to conceive of circumstances under which an employer may be held liable for the conduct of another person where that person’s conduct is not in itself, at least in theory, itself a tort.
51 However, if bullying conduct is not itself wrongful (or at least actionable), and is only a subspecies of the employer’s duty of care to an employee, certain surprising consequences follow. First, it would mean that actions for bullying could only occur in the employment context. Yet it is plain that there are other areas in which bullying can be encountered. Second, if we take for this purpose a clear-cut example of an extreme case of individual vindictive bullying by one person of another, and where one employee cruelly and mercilessly torments another, with perhaps serious psychiatric consequences for the victim— the bully would nevertheless have no liability to the victim even if the bully was also sufficiently wealthy to pay compensation, and even if, on this hypothesis, the employer was not. Furthermore, under this scenario an employer could escape liability by demonstrating that it had taken all reasonable steps to prevent the bullying. In such a case, a victim of concealed bullying would have no remedy even if the bullying was closely connected to the employment and even if in similar circumstances an employer would be vicariously liable for physical rather than psychiatric injury caused to a victim. Finally, there is a difficulty in reconciling the contention that bullying is only actionable as a subclass of the employer’s duty of care with the statement that the employer can nevertheless be liable for something labelled as ‘corporate bullying’. In such circumstances, it appears that an employer (who can be a single individual) may be made liable for conduct which is voluntary, deliberate and direct. This is not negligence or a breach of a duty of care, any more than deliberate assault is a breach of some separate duty of care. It is instead a separate intentional tort. It appears rather anomalous therefore that an employer can be liable for direct and deliberate conduct, in this case bullying, when in any other circumstance a bully is not.
52 It is clear therefore, that the law as stated in this developing field is somewhat anomalous. This is not by any means a fatal objection however, as it is now well recognised, that the lifeblood of the law has not been logic but rather felt experience. The fact that the law has not pursued the logic of a proposition to a remorseless conclusion may often be an indicator, not of lack of principle, but rather of some important felt constraint upon more widespread liability. Disturbances in the pattern of the common law are often instructive instances, meriting investigation rather than merely anomalies to be removed.
53 It seems likely that these developments in the law in Ireland reflect forces and considerations which may be detected in developments in the jurisprudence of other common law countries. It is useful therefore at this point to briefly survey some relevant developments in other jurisdictions which may cast a light upon the issues to be decided in this case.
International Comparisons
54 The question of liability for intentional or negligent infliction of mental distress has been a difficult topic for the law of torts since at least the decision in Wilkinson v. Downton [1897] 2 QB 57. By the 1990s some consideration had been given to the development of a separate tort of harassment in cases such as Khorasandijan v. Bush [1993] QB 727. In the United Kingdom those developments were overtaken by statute, and the enactment of the Protection from Harassment Act 1997, which created both criminal and civil liability for harassment. Subsequently, it was confirmed that there was no scope for the further development of the common law. The statute itself did not define harassment but it included “causing the person distress”. It has been held that the conduct “must be grave” and that in any event “in life one has to put up with a certain amount of annoyance: things have got to be fairly severe, before the law, civil or criminal, will intervene”: Ferguson v. British Gas Trading Ltd [2009] EWCA Civ 46. Later again, Lord Hoffman observed in Wainwright v. Home Office [2004] A.C. 406 at p.426:
“In institutions and workplaces all over the country, people constantly do and say things with the intention of causing distress and humiliation to others. This shows lack of consideration and appalling manners but I am not sure the right way to deal with it is always by litigation”.
In Dowson v. Chief Constable of Northumbria [2010] EWHC 2612 (QB), Simon J. offered a summary of the necessary features of a claim under the legislation:
“(1) There must be conduct which occurs on at least two occasions,
(2) which is targeted at the claimant,
(3) which is calculated in an objective sense to cause alarm or distress, and
(4) which is objectively judged to be oppressive and unacceptable.
(5) What is oppressive and unacceptable may depend on the social or working context in which the conduct occurs.
(6) A line is to be drawn between conduct which is unattractive and unreasonable, and conduct which has been described in various ways: ‘torment’ of the victim, ‘of an order which would sustain criminal liability’.”
55 In Sutherland v. Hatton [2002] 2 All ER 1, which concerned the field of workplace stress claims, Hale L.J. (as she then was) offered a further detailed list of factors to be considered before any claim for damages for workplace stress. This is undoubtedly an aspect of the employer’s duty of care to an employee. Such workplace stress encompasses bullying, but clearly includes other factors. These matters are helpfully considered in Cox, Corbett and Ryan, Employment Law in Ireland, Chapter 16, “Legal Obligations for the Employer in Respect of Workplace Stress and Bullying” (Dublin: Clarus Press, 2009), pp. 565-615. In Sutherland v. Hatton at pages 19-20, Hale L.J. set out 16 propositions which can I think be understood as permitting claims for stress or bullying, but also seeking to limit and control such claims. It is for example noteworthy that one principle was that identified at subparagraph 11 that an employer who offered a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty.
56 The law has developed differently in other common law jurisdictions. In the United States of America, the early development of the law in the early 20th century was influenced by the legal realists and their acceptance of contemporaneous developments in psychiatry. Accordingly, US law in a number of states was willing to accept the possibility at least of claims for intentional or negligent infliction of an emotional injury. Dean Prosser was a key influence in this development. The most striking thing for present purposes however, is that notwithstanding a willingness to contemplate recovery for emotional distress and psychiatric injury, the law still sought significant limiting devices such as Prosser’s concept of “extreme outrage”. Thus, Prosser and Keeton, Law of Torts 5th Ed., (St Paul, Minnesota: West Publishing Co: 1984) at pages 60-61, expressed the general principle in striking terms:
“In special situations of extreme misconduct recovery is allowed. . . So far as it is possible to generalise from the cases, the rule which seems to have emerged is that there is liability for conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause mental distress of a very serious kind. The requirements of the rule are rigorous, and difficult to satisfy.”
57 This approach is reflected in § 46 American Restatement of Torts (Second) (1977) which provides:
“One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm results from it, for such bodily harm.”
The conduct in question must be “conduct which in the eyes of decent men and women in a civilised community is considered outrageous and intolerable”.
58 It is not necessary to engage in a further survey of these difficult issues and the development of the law of tort to which so much learning has been devoted in common law countries. It is sufficient for present purposes to observe, that in dealing with claims than an individual who claims to suffer a mental or psychiatric injury as a result of the wrongful act of another, the common law has proceeded cautiously. In those cases where recovery is permitted, the common law has sought to set a number of limiting devices, and in particular a requirement that the injury must be measurable and the conduct severe. It is not surprising that this should be so. Returning to the observations made at the outset of this judgment, litigation is extremely costly and demanding both in financial terms, and in the resources which must be applied to it. In addition to this there is the broader cost of claims which must be settled because a plausible claim can be made, and the further social cost that the possibility of such litigation will inevitability lead to the adjustment of behaviour as parties seek to avoid the risk of exposure to costly claims. Where this results in the improvement of workplace practice and behaviours, and the protection of individuals from intolerable behaviour, it is a proper and valuable function of the law of tort. If however, the test adopted leads schools or employers to avoid pressing disciplinary matters so as to avoid the risk of exposure to liability, then the cost is negative. Few people subjected to reprimand or discipline accept it stoically: it is human nature to be offended and indeed to experience a sense of injustice and resentment, all the more so if there is some justification. If bullying claims may be maintained in any such circumstance, and are not clearly and precisely defined, then prudent employers may opt to avoid the action which exposes them to the risk. This is not to say that bullying should be tolerated, or that victims should not be compensated nor indeed that employers should not adapt their behaviour to protect employees from bullying either direct or indirect. It does suggest however, that as Oliver Wendell Holmes observed quoting Plato’s Phaedrus, that when making a new rule, the law should seek “to carve nature at its joint”. In this case that means setting a test which achieves the objective of compensating the victim of a serious wrongdoing, deterring damaging behaviour, and encouraging prudent and sensible practices without encouraging a proliferation of claims more generally, and inhibiting workplace activity to an excessive degree.
59 Turning to the legal issue which arises in this case, it is I think significant that the claim relates to a disciplinary process, and circumstances which are not encompassed by the classic conceptions of workplace bullying. It is undoubtedly a case at the margins at best, and as a result may help define the limits of actionable claims. Here the Court of Appeal set itself the question “could a flawed disciplinary procedure which goes on over a number of months and takes a number of steps ever be considered to be “repeated inappropriate behaviour” for the purpose of the definition?” With the addition that the conduct must also capable of undermining the person’s right to dignity at work is, I consider, the correct question as a matter of law.
60 I agree with Finlay Geoghegan J. in particular that this issue involves a careful focus on at least three terms used in the 2002 Order:
(i) Repeated behaviour;
(ii) Inappropriate behaviour; and
(iii) Behaviour reasonably capable of undermining dignity at work.
I also agree that each component can usefully be considered separately and sequentially. However I would caution against viewing these three matters as separate and self-standing issues as if in a statutory definition. To some extent these terms take their colour from each other and the concepts are incremental. It is, in my view, important for example to recognise that in considering the question of repeated conduct, it is necessary to remember that what is required to be repeated is inappropriate conduct undermining the individual’s dignity at work and not merely that the plaintiff be able to point to more than one incident of which he or she complains. Ultimately, while analysis may be facilitated by looking at the separate elements, it must be remembered that it is a single definition and a single test: was the defendant guilty of repeated inappropriate behaviour against the plaintiff which could reasonably be regarded as undermining the individual’s right to dignity at work?
61 I sympathise with the cautious approach which Finlay Geoghegan J. adopted and which led her to suggest that the consideration of whether conduct was both inappropriate and repeated must depend on the relationship and the relative decisions of the individuals and the “full factual context” (para.18), and on an “assessment of all the facts.” (para.20). Many difficult cases force courts to make qualifications such as this, but unless an appellate court can offer some more precise definition, it offers little guidance not merely to lower courts, but as importantly, to litigants and potential litigants. If everything depends upon the facts (and necessarily the view courts take of them), then it will not be possible to determine whether bullying has occurred in any case, until the final court of appeal has made its determination. It will also not be possible to advise plaintiffs whether or not to pursue claims, or defendants whether or not to defend them, with any confidence. As a result, the number of claims which will be advanced, and settled at some level, will necessarily proliferate. It is therefore necessary to look carefully at the concepts involved.
62 In my view, a telling feature of the definition used in the 2002 Order and adopted in the case law is the distinctive language used in the statutory definition. At each point the statutory drafter has chosen a term at a markedly elevated point in the register: conduct must be repeated, not merely consist of a number of incidents ; it must be inappropriate, not merely wrong; and it is not enough that it be inappropriate and even offensive: it must be capable of being reasonably regarded as undermining the individual’s right to dignity at work.
63 In her judgment, Finlay Geoghegan J. contrasted the phrase “repeated” with the last sentence in the definition which required that the conduct be something other than an “isolated incident of the behaviour”. “[It] may be an affront to dignity at work, but, as a once-off incident, is not to be considered to be bullying.” The judge continued: “it therefore appears to me that “repeated” in the definition is being used for the purpose of connoting behaviour which is more than either an “isolated incident” or a “once off incident””(para. 20). I agree that the concept of repeated behaviour can usefully be contrasted with an isolated or once-off incident, but I do not think it can be defined negatively, as merely something that is not ‘once-off’ or ‘isolated’. It is not enough to point to two different events. What must be repeated is inappropriate behaviour undermining the personal dignity of the individual. That is relevant in this case in two respects. First, it is noteworthy that the plaintiff relies on the conduct of a number of different individuals. Second, the core complaints relates to a flawed disciplinary process, or unfair procedures. In considering such unfair procedures as part of a claim for the invalidity of a disciplinary process, it is appropriate to take into account a number of events. But the reality of the plaintiff’s claim here is that overall the process was unfair. It is not sufficient in my view to say that because that process extended over a period of time and a number of different events that it necessarily therefore satisfied the requirement that the conduct be ‘repeated’. Again, this can best be understood by considering a classic case of bullying. There may be individual and occasional incidents of a superior speaking aggressively, losing his or her temper, or making jokes or comments which are hurtful or offensive. This in itself does not give rise to a claim of bullying. It is when a pattern of behaviour emerges that it can be said that the behaviour is repeated for the purposes of a definition. What must be repeated is the behaviour which is inappropriate and which undermines personal dignity. It is not enough that what is alleged to constitute unfair procedures is comprised of a number of different steps unless each of those steps can be said in themselves to be inappropriate and undermine human dignity. However, I do not consider this to be the most important aspect of the case because to some extent it is dependent upon the question as to whether a defective and flawed disciplinary process can be ‘inappropriate behaviour’ for the purposes of the definition.
Inappropriate behaviour
64 It is suggested that the behaviour here is inappropriate because it was in breach of fair procedures. I cannot agree. Inappropriate behaviour does not necessarily need to be unlawful, erroneous or a procedure liable to be quashed or otherwise wrong in law: it is instead behaviour which is inappropriate at a human level. The test looks to the question of propriety in human relations, rather than legality. Again, the more familiar examples of bullying illustrate this. Purposely undermining an individual, targeting them for special negative treatment, the manipulation of their reputation, social exclusion or isolation, intimidation, aggressive or obscene behaviour, jokes which are obviously offensive to one person, intrusion by pestering, spying and stalking—these examples all share the feature that they are unacceptable at the level of human interaction. That in turn is consistent with the concept of human dignity being protected. I agree that the judge’s finding that Ms. Dempsey humiliated Ms. Ruffley and reduced her to tears at the meeting of the 27th January, 2010, is a finding of behaviour that is inappropriate in this sense. By contrast, the fact that the Board proceeded to make a decision to impose a disciplinary sanction on Ms. Ruffley without informing her of that possibility the matters relied on or giving her an opportunity to present her case, was unfair, flawed and liable to be quashed or declared invalid and unlawful. However, it cannot in my view be said, without more, to be inappropriate in the sense in which that word is used in the definition.
Dignity at Work
65 Perhaps the most important aspect of the definition is the question of undermining dignity at work because it relates closely to the value which is sought to be protected by the law. As I understand it, that is the idea that there is dignity in and at work. The fact that a person may be employed by another and may be required to accept instructions, discipline and control during the working day, does not mean that they are to be treated either by the employer, or fellow workers, in a way which undermines their essential dignity as a human person. This is, in my view, a central feature of the test. It is noteworthy therefore, that both the High Court judge and the dissenting judge in the Court of Appeal do not appear to approach this limb of the definition as providing any separate or additional test. Thus, Finlay Geoghegan J. considered that: “in relation to a disciplinary process such right to dignity must include, it appears to me, a right to be treated with respect, fairly and not less favourably than other colleagues in a similar position”. She concluded: “However, it appears to me that her right to dignity at work includes a right to be treated with respect and fairly in the above sense and not singled out unfairly from colleagues in a similar position in such disciplinary process.” (para. 22). The plaintiff argues therefore that the fact that the disciplinary process was unfair is enough to satisfy this component of the definition.
66 In my view, the manner in which the plaintiff’s argument approaches this limb of the test drains it of much of its meaning. The conduct is said to be repeated because more than one event is relied upon. It is inappropriate because it is in breach of fair procedures, and accordingly, it must be undermining of dignity at work. This is illustrated by paragraph 88 of the trial judge’s conclusion:
“There can be no doubt but that this persistent, inappropriate behaviour of the defendants wholly undermined the plaintiff’s dignity at work.”
In my view for the reasons already set out, it seems to me that the requirement of conduct undermining dignity at work is a separate, distinct and important component of the definition of bullying which identifies the interests sought to be protected by the law, and just as importantly limits the claims which may be made to those which can be described as outrageous, unacceptable, and exceeding all bounds tolerated by decent society.
67 The word dignity, carries a considerable charge with a distinct moral component. The preamble of the 1937 Constitution was it appears the first time the word was used in the context of a fundamental rights guarantee. It has now become to be seen as a vital component in the protection of human rights in the post-war world. It is for example no coincidence that dignity is afforded a preeminent status in the post-war constitutions of both Germany and Israel. In the Irish context, it has been invoked in the context of marital privacy (McGee v. The Attorney General [1974] IR 284), the criminalisation of male homosexuality (Norris v. The Attorney General [1984] IR 36 (Henchy J. dissenting)), the withdrawal of treatment from a patient in a permanent vegetative state (In re a Ward (No.2) [1996] 2 I.R. 79), and the prohibition on assisted suicide (Fleming v. Ireland [2013] 2 I.R. 417). Walsh J. said in Quinn’s Supermarket v. Attorney General [1972] I.R. 1 at pp. 13 and 14, that the guarantee of equality under Article 40.1 was not a:
“guarantee of absolute equality for all citizens and all circumstances but it is a guarantee of equality as human persons (and as the Irish text in the Constitution makes quite clear) is a guarantee related to their dignity as human beings and a guarantee against any inequalities grounded on assumption, or indeed a belief, that some individual or individuals or classes of individuals, by reason of their human attributes whether ethnic or racial, social or religious background, are to be treated as the inferior or superior of other individuals in the community”.
The denial of fair procedures is never a trivial matter but I do not think it can be comfortably said in this case, to be undermining of human dignity, particularly when it is the same breach of procedures which is also contended to be inappropriate. More importantly I consider that the requirement that the procedure be repeated inappropriate and undermining of dignity is a test which uses language deliberately intended to indicate that the conduct which will breach it is both severe and normally offensive at a human level.
68 I am aware that Ms. Justice Finlay Geoghegan lays stress on the fact that she considered the plaintiff had been treated unfairly by reference to other SNAs. She considered that a right to dignity at work included a right to be treated “with respect and fairly and not less favourably than other colleagues in a similar position”, and not to be “singled out unfairly from colleagues in a similar position in such disciplinary process”. (para.22). I accept that the “singling out” or “targeting” of an individual for disciplinary purposes is capable of being a component of bullying. However, the use of the verb in these formulations is important. It is not enough in my view that after the fact it is possible to say that a person has objectively been treated differently and worse than others in a similar situation, even if that in certain circumstances may give rise to a different claim. I accept for example as set out at paragraph 43 above that in the context of dismissal proceedings, an apparent deviation from prior practice may itself be evidence of unfairness. But in many cases in which it can be said a person has been ‘targeted’ or ‘singled out’ for disciplinary sanction and which constitutes at least part of a finding of bullying, the fact of a general practice will have been known to the superior prior to the initiation of any disciplinary process, and in such circumstances may give rise to the inference that the disciplinary proceedings are not being pursued bona fide because of a concern about the practice or behaviour, but rather as a form of punishing and perhaps humiliating the individual concerned.
69 In my view that is not what occurred here. While I have some concerns about the manner in which the limited evidence in this case becomes converted into a finding of general practice, it is not suggested that Ms. Dempsey, still less the Board, were aware of any such practice limited or general at the time the disciplinary process was initiated against the plaintiff. In Ms. Dempsey’s case, she went to the sensory room, could not gain access, and therefore had immediate first hand evidence of what the plaintiff had done. In relation to both Mr. Lynch and the Board, it is not suggested that they were aware of any practice. On the contrary, it is suggested that they should have been told by Ms. Dempsey of the point raised by Ms. Ruffley that other SNAs had done this. But that in my view cannot constitute targeting or singling out of the plaintiff. It is suggested that once aware of this fact, Ms. Dempsey, Mr. Lynch and the Board ought to have conducted a more thorough examination of the extent to which there was a practice among other SNAs. Somewhat surprisingly, the trial judge goes so far as to conclude that this meant that the disciplinary process against Ms. Ruffley should not have proceeded at all. But any such investigation was only relevant to the extent of the sanction to be imposed on Ms. Ruffley: as was submitted on her behalf by her union, the Part Four final warning was alleged to be “too severe”. Of its nature, any such inquiry would not have yielded evidence as clear-cut and direct as emerged when Ms. Dempsey sought access to the sensory room on the 14th September, 2009. It is of course suggested in retrospect that the sanction imposed on Ms. Ruffley was disproportionate having regard to the evidence that was available or potentially available in relation to the practices of other SNAs. This, if comprehensively established, might well sustain a challenge to the sanction imposed. In my view however it would significantly expand the concept of bullying if this type of analysis were sufficient to establish that charge.
70 It may be, that lurking in the plaintiff’s case, and the acceptance of it by the trial judge, and the dissenting judgment in the Court of Appeal, is indeed a belief that Ms. Dempsey, Mr. Lynch and the rest of the Board were not bona fide in their pursuit of the disciplinary process which was in fact targeted at and intended to victimise the plaintiff. If this suggestion is to be made by the plaintiff, it should be made explicitly, put to all the relevant parties, and then be the subject of an express finding by the trial judge setting out the evidence leading to such a conclusion to allow appellate review. The judgment in the High Court, while forceful in favour of the plaintiff, stops well short of such a conclusion. At their height, the facts found in the High Court judgment which are capable of being upheld on appeal judgment do not constitute bullying. Accordingly, the appeal must be dismissed.
71 It may also be appropriate here to address the two questions upon which leave to appeal was granted. It is the case for example that in jurisdictions where there is a separate tort then as set out in the Restatement on Torts (2nd), it is necessary to show some intent to injure and cause distress or recklessness at least. That is necessary under the rule in Wilkinson v. Downton. In the cases where the conduct does meet the high threshold required, this may not indeed be a particularly onerous requirement, given the presumption that a person intends the natural and probable consequences of his or her actions. In most cases of bullying it will be obvious that there is malicious intent. However so long as the cause of action remains a subhead of the employer’s duty of care, it is difficult to see that intent on the part of the bully is an essential feature of the claim: the employer owes a duty of care to the employee to protect them from conduct or matters causing distress amounting to a recognisable psychiatric injury. That duty also extends to workplace stress claims which may have no individual actor involved. It is difficult to see why, if the employer’s duty is to protect an employee from conduct which is damaging, that there should be a necessity that the conduct be actuated by malicious intent. The so-called corporate liability for bullying is slightly different. The conduct must be intentional and calculated to cause distress. I would reserve the question whether malice, in the sense of intent to injure, is an essential component of such a claim. But even if not, malice is not certainly irrelevant. A claim for bullying will certainly be strengthened significantly by proof of malice. This was illustrated by Quigley where it was recorded that the manager said he would “sort out the granddads”. Consciousness on the part of the victim (and others) that they are being pursued vindictively will certainly make it easier to establish that conduct was inappropriate and undermined dignity at work. On the second question, I consider further that conduct which occurs in private can be a component of a claim for bullying. It is possible to treat someone inappropriately and undermine their dignity, without that conduct being witnessed. Again however any element of humiliation in public will certainly strengthen a claim.
Resolution of this Case
72 The difficulties in this case are not however limited to the findings of fact or the legal definition of bullying. The plaintiff succeeded in this case at first instance. The High Court refused any stay on its award. The Supreme Court (to which appeal then lay) imposed a partial stay on the judgment on terms that the defendant was obliged to pay the plaintiff the sum of €100,000. That occurred over two and a half years ago. The plaintiff has not been in employment since she left this school in 2010. There is furthermore the conclusion upon which all judges who have heard this matter are agreed, that the disciplinary procedures followed by the school were inadequate and impermissible, and could and would have been declared invalid in proceedings brought for that purpose. The entire process including the seven years of litigation have been extremely stressful to the plaintiff who it seems likely is particularly vulnerable to such stresses. While in my view the matters alleged here do not give rise to a successful claim for bullying, I readily acknowledge that the degree of judicial disagreement demonstrates that this is by no means clear-cut. In those circumstances, it may be necessary to hear argument as to any consequential orders but I should indicate a provisional view that I would be very slow to order the plaintiff to repay to the defendant the sum of money paid as a condition of obtaining the partial stay, or pay costs. It may indeed be necessary to reflect the fact that the plaintiff would have been justified in coming to court to have it determined that the procedures applied to her were flawed. It would be desirable that the parties could reach their own agreement on these matters but in the event that there is no such agreement, I would be prepared to hear argument and make a final decision in that regard.
Ruffley v Board of Management of St Anne’s School [2017] IESC 33
Judgment of Mr Justice Peter Charleton, delivered on Friday 26th of May 2017
1. Of itself, bullying is not a tort. That obnoxious perversion of the ordinary human duty of give and take may, nonetheless, give rise to tortious liability. No overall theory of what constitutes a tort has yet emerged from the apparently random declaration of individualised wrongs that mark out the parameters of this area of law. Generally it is because people are expected to behave in a particular way in relation to matters under their control, or are required to organise their affairs so as to avoid harming others, or have a responsibility fixed at law towards those who act on their behalf, which mark out the individual principles upon which a series of disparate civil wrongs are based. As Professor Winfield in The Province of the Law of Tort (Cambridge, 1931) put the matter at page 32:
Tortious liability arises from the breach of a duty primarily fixed by the law; such duty is towards persons generally and its breach is redressible by an action for unliquidated damages.
2. Crime and tort had a common origin in the taking charge by an increasingly ordered society, through its judicial system, of private retribution for personal wrongs. In the formation of such rules defining liability, people were instructed through individual decisions as to how the rule of law would both replace individual reaction and place into the category of a wrong any attempt at repayment of one wrong by another. Historically, this began by giving civil as well as criminal remedies for wrongs to the person and this was later extended to a person’s reputation. The development of tort law has been piecemeal. Prior to the decision in Rylands v Fletcher (1868) LR 3 HL 330, issues as to the use or abuse of land were more properly an aspect of the duties and responsibilities of servient and dominant interests. Interference with contractual relations emerged out of the decision in Bowen v Hall (1881) 6 QBD 333, perhaps because in some circumstances it would be unjust to answer a claim of wrong with a no privity defence. In reaction possibly to the balance of influence as between the interests of society and the representation of employees, intimidation was recognised as a tort in Rookes v Barnard [1964] AC 1129. Whereas up to Donoghue v Stevenson [1932] AC 562, negligence was an element of tortious liability, thereafter it became a defined aspect of an overarching wrong subject only, it appears, to public policy limiting its application. So much did the tort of negligence apparently emerge as the answer to every plaintiff’s needs, pleaded as it has been as an alternative to every other defined wrong, this Court had to warn in the majority judgments in Cromane Seafoods v Minister for Agriculture, Fisheries and Food [2016] IESC 6 that this tort has not dissolved the existing definitions of other wrongs or submerged them.
Inflicting illness by manipulating emotion
3. It was with the decision in Wilkinson v Downton [1897] 2 QB 57 that a joke in very bad taste, leading to the unfortunate plaintiff almost losing her reason and suffering obvious physical effects, could give rise to liability. A practical joke is of its nature designed to cause at least momentary amazement, if not shock, but, as in that case, it can go too far: so far that the law must find a remedy. Hence, as Professor Heuston comments at pages 32-33 of the classic 17th edition of Salmond on the Law of Torts (London, 1977):
The law of torts is not a static body of rules, but is capable of alteration to meet the needs of a changing society. One word of warning should be added. It is often rather hastily assumed that any desirable alteration in the law of torts must result in the expansion of the field of liability. But social needs may require contraction as well as expansion. Thus it can hardly be doubted that the courts have been justified in refusing to introduce new heads of tortious liability to enable a witness to be sued for perjury, or conspiracy to defame. Again a tort may be invented or discovered only to have little use made of it. So for a century little has been heard for excluding the plaintiff from a public office to which he is legally entitled.
4. No overall theory has emerged as to why the courts should develop a tort. In our system, it may be because a wrong under the Constitution has been committed, but only where no existing remedy will provide redress; as in Meskill v CIÉ [1973] IR 121. Professor Fleming instances moral wrong as the foundation for liability in tort, morphing into the principle that there should be no liability without fault; C Sappideen and P Vines (editors), Fleming’s the Law of Torts, (10th edition, Sydney, 2011) at paragraphs 1.40-1.50. Professor Heuston comments that reasonable foresight has not come to be used as the overarching principle which it was once thought to be, while public policy has had a restraining influence in addition to the traditional analysis of the conduct of the defendant and the legitimacy of the interest of the plaintiff; see Salmond on the Law of Torts, cited above at page 33.
5. As O’Donnell J remarks in the principal judgment, the range of the expansion of tort liability and its extension into relationships at a distance from the conduct found to be at fault is part of the scheme of the law to order society. It is only on a careful analysis of the balance of not only where legitimate activity should be protected, but also where those who suffer in consequence of the wrongs of others should be compensated, that decisions as to redress for civil wrong develop. Hence, usual dangers such as flooding are tolerated in the tort of the escape of dangerous things; but the building of a repository for toxic gas will lead to a different decision on liability. Making a joke is socially acceptable, and bad taste is tolerated, but sending a person into immediate distress to the detriment of their long-term health is not. Commenting negatively on those who enter willingly into the discourse of public life is different to factual but inaccurate statements about those same individuals under the law of defamation. Whereas vulgar abuse is unpleasant, it is only actionable where it assumes the shape of an assertion of fact which takes away another’s character.
6. In considering, therefore, any extension of the law on negligent or intentional infliction of harm into the workplace, decisions must be informed by what has so often been said in the context of family disputes: that men and women are to be judged with the appropriate measure of appreciation for human nature and that, hence, conduct is be judged according to the standard of human beings, and not of angels.
7. There are two strands of potential liability for a plaintiff to employ against a bully. Firstly, conduct may be so egregious, deliberate and malicious as to engage the rule in Wilkinson v Downton, cited above. In so far as there may be a debate as to whether corporate bullying is a separate tort, this first strand of liability seems to provide the answer. For an employer to persistently and repeatedly engage in unnecessary and nasty conduct over an appreciable time outside the ordinarily tolerated range of correction or discipline necessary in the workplace, in such a way as to undermine the employee’s dignity, so that coming to work becomes not merely difficult but dreaded, according to the standards of robust human reaction, is to engage that tort where organic depression or other physical illness is the consequence. The standard has to be set at a level where giving advice, telling people off, temperamental reaction or emotional interaction is not allowed to disrupt the duty of managers to see that work is done, and the entitlement to healthy satisfaction that actually justifying one’s wages represents. In this context, joining in an unacceptable standard of conduct may engage an employer in the intentional infliction of harm.
8. That line of liability, however, does not seem to be one which has been analysed to a plaintiff’s success in any written decision concerned with bullying to date. Most probably that is so because the tort retains an intentional element which most often may be inferred from the evidence, if it is not otherwise admitted, perhaps in an internal workplace email, but where, as in the original case, the conduct carries obvious connotations. The analysis in the various judgments of the Supreme Court in Britain in Rhodes v OPO [2016] AC 219 also indicates a debate as to the precise elements of this tort. In that and in other English cases, there has been doubt cast on the definition provided in Salmond and Heuston on Torts (21st edition, London, 1996) at p 215, which provides that “one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is liable for such emotional distress, provided that bodily harm results from it”. The principle, however, must remain that an individual who, through utterly unacceptable conduct, deliberately distresses another to the point where they suffer a recognised psychiatric condition, is liable in damages.
9. In the United States of America, the application of the tort of intentional infliction of emotional distress in the employment context has confined liability. The elements of this tort are set out in Womack v Eldridge 215 Va 338, 210 SE 2d 145 (1974) at para 28:
[A] cause of action will lie for emotional distress, unaccompanied by physical injury, provided four elements are shown: One, the wrongdoer’s conduct was intentional or reckless. This element is satisfied where the wrongdoer had the specific purpose of inflicting emotional distress or where he intended his specific conduct and knew or should have known that emotional distress would likely result. Two, the conduct was outrageous and intolerable in that it offends against the generally accepted standards of decency and morality. This requirement is aimed at limiting frivolous suits and avoiding litigation in situations where only bad manners and mere hurt feelings are involved. Three, there was a causal connection between the wrongdoer’s conduct and the emotional distress. Four, the emotional distress was severe.
10. In Law of Torts (4th edition, New York, 1971), Prosser comments at p 56 that so far “as it is possible to generalise from the cases”, liability will only be established on the basis of “conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind.” In Earl v HD Smith Wholesale Drug Co, 2009 WL 1871929 (CD III June 23, 2009), it was acknowledged at p 4 that courts will “recognise a workplace claim for intentional infliction of emotional distress only in the most extreme circumstances.”
11. The second strand of potential liability is that which protects employees from harm in the workplace. An employer is obliged to take reasonable care to protect employees from injury. That duty however is not absolute; it is not that of an insurer. The duty is to remove risks which can be removed, to train employees for the workplace tasks and to organise the workplace in such a way as injury may be avoided. Employees have a duty to take care but, generally in workplace accidents, it is usually not an absence of care or training by an employer which establishes liability, but instead carelessness imputed to the employer through vicarious liability in an action where one employee causes injury to another. Injury can be caused by bullying.
12. In New Zealand and in Australia, the law is based on the general safety of employees and the duty of employers to secure it. Necessarily, the conduct whereby a recognised psychiatric illness will attract damages, if shown to have been caused by conduct at work, has been restricted. In Attorney-General v Gilbert [2002] 2 NZLR 342, the Court of Appeal held at para 72 that general legislation providing for safety at work makes “no distinction between physical, psychiatric or psychological illness or injury.” At para 83, the court consequently held that the employer must take reasonably practicable steps to ensure that employees do not suffer from psychological harm resulting from workplace stress:
An employer does not guarantee to cocoon employees from stress and upset, nor is the employer a guarantor of the safety or health of the employee. Whether workplace stress is unreasonable is a matter of judgment on the facts. It may turn upon the nature of the job being performed as well as the workplace conditions. The employer’s obligation will vary according to the particular circumstances. The contractual obligation requires reasonable steps which are proportionate to known and avoidable risks.
13. This exercise involves a court reconstructing what an employer ought to have known at the time when repeated actions by fellow employees were undermining the plaintiff’s dignity at work. That is a traditional tort exercise. In Koehler v Cerebos (Australia) Ltd [2005] HCA 15, the Australian High Court held at paragraph 35 that “the relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable”. As a result, the “central inquiry remains whether, in all the circumstances, the risk of a plaintiff … sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful.” As Hayne J put it in Vairy v Wyong Shire Council [2005] HCA 62 at paragraph 126, when a plaintiff makes a claim for damages for personal injury caused by the defendant’s negligence, the court becomes engaged in an inquiry into “breach of duty”, hence the court “must attempt to identify the reasonable person’s response to foresight of the risk of occurrence of the injury which the plaintiff suffered.” What this involves is an “attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred.” Conduct giving rise to liability in that jurisdiction seems to be of an extreme kind.
14. In Naidu v Group 4 Securitas Pty Ltd [2005] NSWSC 618, the plaintiff was a security operative, assigned to a TV news channel, and later became the defendant’s assistant, the defendant being the news channel’s security and fire manager.. In this role, the defendant subjected the plaintiff to racist and demeaning name-calling, aggressive and threatening communications, indecent sexual acts, sexual harassment, and directed him to work unpaid hours which cut his sleep to unsustainable levels. The plaintiff was threatened on multiple occasions that he would lose his employment if he did not accede to his manager’s requests. The manager also said he would kill the plaintiff and repeatedly threatened his life if he told anyone about the indecent sexual acts and other bullying behaviours. The manager also threatened him with physical violence and subjected him to racial abuse, requiring him to work on Saturdays at his property, work for which the plaintiff was not getting paid. The New South Wales Supreme Court found that the plaintiff’s employers owed him a duty of care and that the treatment of the plaintiff amounted to workplace bullying, to such an extent that Adams J found that it was “reasonably foreseeable that such illness might well result from the infliction of that conduct upon the plaintiff”. He described the behaviour of the defendant, the manager, at paragraph 17 as “so extreme” that “he well knew, or would have known had he reflected as a reasonable man should have” that the result of what the judge described as prolonged misconduct “could reasonably be expected to expose him to the real risk of such psychological injury.”
15. In this jurisdiction, the High Court has correctly emphasised in a series of decisions that what is involved in bullying as a compensatable wrong is a breach of the standard of care owed by an employer to employees; see Sweeney v Ballinteer Community School [2011] IEHC 131, Kelly v Bon Secours Health System [2012] IEHC 21, Nyhan v Commissioner of An Garda Síochána & Ors [2012] IEHC 329 and Browne v Minister for Justice, Equality and Law Reform [2012] IEHC 526.. An employer has a general duty of care towards their employees. In McMahon & Binchy’s Law of Torts (3rd edition, Dublin, 2000) at paragraph 18.80, the authors state that:
An employer may be personally liable for sexual harassment or bullying of an employee, either on the basis that the employer ought to have been aware of the offending employee’s propensity to act in this way or on the basis of an unreasonable failure to provide a safe system of work.
16. In the 4th edition (Dublin, 2013), it is correctly stated at paragraph 18.80 that:
There is no distinctive tort of bullying or harassment. The question is to be resolved in the context of employers’ liability, by asking whether the employers took reasonable care not to expose the plaintiff to the risk of injury from such conduct. The answer will depend in large part on what facts ought to have been known to the employer. Naturally, matters are different where the plaintiff’s claim is that he or she is the victim of ‘corporate bullying’, where the allegation is that the management of the enterprise is implicated in the bullying activity. Such claims have succeeded in some recent cases, and failed in others.
17. With regard to forming the elements of a tort of wrongful conduct that embraces workplace bullying, the common law in Ireland has not developed through judicial decision according to necessity and justice but instead has been subject to an intervention in the shape of section 5 of the Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 (SI No 17 of 2002). This defines workplace bullying as “repeated inappropriate behaviour”, which may be “direct or indirect, whether verbal, physical or otherwise” engaged in by an individual or a group against the plaintiff at their workplace and which “could reasonably be regarded as undermining the individual’s right to dignity at work.” Whereas under the strand of tort liability derived from Wilkinson v Downton, an isolated but sufficiently grave incident from which intention to cause severe distress may suffice if psychiatric injury results, bullying is by its nature a repeated activity. A consideration of workplace codes of practice from other jurisdictions tends to reveal the same elements – behaviour completely beyond the tolerable, that undermines dignity at work, and which is repeated so that it forms a pattern which genuinely undermines a person’s ability to come to work and serve in his or her position.
18. Whether the courts were obliged, pursuant to the statutory mechanism under which this code of practice was established, to accept this definition has not been argued in this case. In the light of the relevant case law, this seems beside the point. The definition was accepted by the High Court in Quigley v Complex Tooling and Moulding Limited [2009] 1 IR 349, where the plaintiff claimed that he had been a victim of workplace bullying by his manager, which allegedly resulted in mental distress and psychiatric injury. The plaintiff was awarded damages. In the Supreme Court, the award of damages was overturned on the basis that causation of the plaintiff’s depression had not been proven to have resulted from the bullying, but was rather ascribable to him having lost his job when the factory went out of business. At paragraph 15, Fennelly J, however, accepted the code of practice definition and described what the plaintiff had been subjected to as “a unique amalgam of excessive and selective supervision and scrutiny … unfair criticism, inconsistency, lack of response to complaint and insidious silence.”
19. The test requires all of the elements to be fulfilled. It should be considered sequentially. It is objective. Not subjective. It cannot be right to formulate liability on the basis of how people see the conduct of their colleagues in the workplace, but instead only on the basis of how that conduct would be objectively viewed; see Glynn v Minister for Justice, Equality and Law Reform & Ors [2014] IEHC 133 at paragraph 54. An employer is entitled to expect ordinary robustness from its employees; Croft v Broadstairs and St Peter’s Town Council [2003] EWCA Civ 676. Correction and instruction are necessary in the functioning of any workplace and these are required to avoid accidents and to ensure that productive work is engaged in. It may be necessary to point to faults. It may be necessary to bring home a point by requesting engagement in an unusual task or longer or unsocial hours. It is a kindness to attempt to instil a work ethic or to save a job or a career by an early intervention. Bullying is not about being tough on employees. Appropriate interventions may not be pleasant and must simply be taken in the right spirit. Sometimes a disciplinary intervention may be necessary. In Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 1512, the Court of Appeal in England and Wales considered a disciplinary procedure which was alleged to have resulted in the plaintiff suffering from depression. Underhill LJ noted at paragraph104:-
It is a normal characteristic of the employment relationship that employees may be criticised by the employer and sometimes face disciplinary action or other such procedures. And in an imperfect world it is not uncommon for such criticism or disciplinary process to be flawed to some extent: there will be a spectrum from minor procedural flaws to gross unfairness. The message of Croft is that it is not usually foreseeable that even disciplinary action which is quite seriously unfair will lead the employee to develop a psychiatric illness unless there are signs of pre-existing vulnerability.
These facts
20. In every respect, and by ordinary human standards, the school authorities were at fault in their treatment of Úna Ruffley. She was a valued special needs assistant. By no standard could it have been expected that she would have subjected any of the children in the school to any form of ill-treatment. As there is no full transcript before the Court, it has not been possible to work out whether the door which was locked on the 14th of September 2009 incorporated a glass panel. Most school doors do but this, apparently, was a storage room called into action due to pressure for space. She was worried about the child running from the room, and the evidence was that he had that propensity, and chose a remedy which was contrary to the not very well publicised school policy; that a child and a teacher should not be behind a locked door. Had the child bolted out the door and perhaps escaped into the street, it is possible that there could have been either disquiet or injury. Then there would really be need for an inquiry. Other people, completely responsible people, had locked the door in these circumstances. Once the informal survey conducted on her behalf disclosed that her offence was not unique, and that is what the survey did, any attempt at disciplinary action against her should have come to a complete stop. It was then the responsibility of those in charge to acknowledge, and this does not require any formal process, that there was a fairly widespread practice of teachers and special needs assistants locking themselves into a room with children: and that because this could expose them to false claims or could frighten the children, this practice should immediately stop. Thereafter, but only thereafter, a breach of that policy might become serious.
21. In the age of judicial review, disciplinary procedures are necessarily subject to procedural infirmity and may fail due to the principles which are so ingrained in lawyers, being alien to those who are engaged in administration or education. It is also well to take into account the degree to which emotion on both sides may have influenced what has gone wrong here. O’Donnell J is correct to call paragraph 48 of the judgment of ÓNéill J into question. While in most circumstances, this could be regarded as coming within the principle set out in Hay v O’Grady [1992] 1 IR 210 at page 217, being that inferences of fact drawn from witnesses should be treated by appellate courts with especial respect; in reality other explanations were reasonably forthcoming for what had occurred. These include emotional reaction, worry about possible claims and genuine concern for the children. People in such circumstances do not need to have their emotions whipped up but perhaps an equal explanation is that the school board just became overwrought.
22. In all of this, instead of sensibly stepping back, the school authorities allowed the juggernaut of disciplinary action to continue in an unfair fashion and this included an incident where no closure was brought to matters and where one particular meeting was fraught with emotion of an unpleasant kind directed against Úna Ruffley.
23. What is involved here was a disciplinary process where the school authorities, for reasons best known to themselves, entrenched themselves in a dugout of justification whereby they could admit no fault. This is not bullying. The conduct was not at that extreme and repetitive level. It is, instead, a disciplinary process that has gone wrong. It must clearly be acknowledged, however, that the reason that it went wrong had nothing to do with Úna Ruffley but was entirely down to a lamentable failure to rethink by the school.
24. The consequence of this has been obvious emotional distress caused to someone who should otherwise have been valued. Her contribution to the education of those with learning difficulties should be acknowledged by the Court. The school should acknowledge that it was in the wrong and Úna Ruffley should be encouraged to return to her duties. There has been enough litigation about this matter and this part of it is not at all to the credit of the school in any way.
Costs and discretion
25. Not every wrong, even one which results from unfair or unfortunate circumstances, gives rise to a cause of action. Given that the test for bullying is of necessity to be set very high, these are not circumstances which can attract damages. There are, however, circumstances under which the discretion of the court in relation to costs under Order 99 of the Rules of the Superior Courts can enable an acknowledgement that extreme circumstances have occurred. This can result in, and could reasonably be argued to mean here that, the costs of the litigation in the High Court and in the Supreme Court being awarded to the losing party. The circumstances that might justify this, in this one exceptional instance, also include that the relevant law has been clarified by the litigation in a manner which would be of benefit to existing and future cases and to insurers, none of whom can claim, in consequence, this exceptional circumstance. It is also rare for a court to come across an instance where one side is completely at fault, but fails to acknowledge any such failing even in the context where ÓNéill J was required to make particularly trenchant findings of fact.
26. The issue as to costs requires separate consideration, but by no sensible reckoning was this litigation complex. This was an ordinary tort case involving the resolution of straightforward facts: was a door locked, why was it locked, was it a breach of procedures to lock the door, was the plaintiff the only person to lock the door while inside with a child, how would school authorities ordinarily react to such a minor breach of procedures, was it necessary to invoke a formal investigation and reprimand, was a disciplinary note justified, should that have been backed away from once the facts became clear that it was not just Úna Ruffley who had made that understandable mistake, what happened at the meeting of the school board, and what happened on the various occasions when the plaintiff and the school authorities met? In terms of discovery, it is hard to see more being involved than the gathering of internal human resources management and disciplinary files together with a trawl of relevant emails. In the light of whatever submissions are made as to the principal judgment of O’Donnell J and this judgment, the costs issue and the final form of the order should then be decided.