MJ O'Connor Solicitors

The Brief

01.10.2007

Mutual Trust and Confidence in the Workplace – An Evolving Concept

Berber v Dunnes Stores

The plaintiff commenced employment with the defendant as a trainee manager in April 1980. He was employed as store manager in various locations and was ultimately promoted.

Problems arose from March 2000 and after numerous meetings with the store manager, the plaintiff was suspended with pay as he would not go to the flagship store.

The medical history of the claimant is consistent with the occurrences at work. The plaintiff was first diagnosed with Crohns disease in 1978 during an operation from which he recovered well.

On 13th December 2000, his consultant recorded that he had been through excessive stress from his work and he certified that this did not contribute to his well being. The plaintiff reported for duty on the 28th December 2000 but only worked for four days before ceasing to work due to ill health. The plaintiff’s last day of work was the 15th May 2001 on which a disagreement arose with which resulted in an alleged verbal attack over lock up hours.

Part of the plaintiff’s claim was for breach of contract in that the plaintiff was constructively and wrongfully dismissed by the defendant.

It was held by Laffoy J that the defendant had acted in a bona fide manner up to the 23rd of November 2000. The court found that there was a genuine concern in relation to his health and that all was done to protect the employer employee relationship up to that date. However, the Store Manager had adopted “ an uncompromising stance with the plaintiff from the outset” by not considering the plaintiff’s medical condition while at the same time being made aware of the stress he was experiencing. The court did highlight that the plaintiff’s conduct was not always reasonable but it was clear according to Laffoy J that distrust and lack of confidence was apparent. The way in which “the defendant dealt with the plaintiff in the knowledge of the precarious nature of his physical and psychological health viewed objectively amounted to oppressive conduct”.

Laffoy J found that the defendant unlawfully repudiated the plaintiff’s contract of employment and awarded damages in sum of €72,622.

In the context of the employment injunction, the importance of establishing continuing mutual confidence if a court is to intervene in an employment dispute is unambiguous. Cogent evidence of lack of trust and confidence in the relationship will undermine the overriding concern of any judge as to whether it is a workable relationship. It is not to say that injunctions have not been granted in cases where mutual trust and confidence does not exist, but that it is done in limited circumstance.

What is sufficient to constitute the destruction of trust and confidence? In Bank of Credit and Commerce International (in compulsory liquidation)v. Ali and Others[1] it was found that generally carrying on a corrupt and dishonest operation on a vast scale is enough to breach the trust in a workers contract. It would appear to be quite clear in itself and not worthy of examination as to why this enhances the distrust in the employment relationship. Further the notion of trust and confidence goes on to say that stigma damages are recoverable as a result of the employer breaching such an implied term in terms of reputation and financial loss.

In Liz Allen v. Independent Newspapers (Ireland) Ltd[2] the claimant had been employed as a crime correspondent with the respondent from August 12, 1996 until September 20, 2000 when she resigned. The issue in this case was that of harassment and bullying, of isolation at work and that the conduct of the respondent undermined her confidence and her health. It was held to be reasonable in all the circumstances for the claimant to terminate her contract of employment. The claimant's conclusion that she could have no confidence in the respondent to either properly or effectively address her grievances was a reasonable conclusion.

Employers must understand that this implied term has been elevated in status due to recent court decisions and the level it has now reached is that of an obligation as opposed to an intangible concept. It is very much a real and working procedure that must be processed with the people in mind. However, it must be remembered that the concept itself allows for rights, obligations and duties on both sides. How that is implemented will depend on the criteria used and the approach adopted.

Emma L. Callanan, Barrister-At-Law

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