Following on from our blog post yesterday, we will now look at the remaining six areas of complaint in respect of bullying and harassment alleged by the plaintiff in the recent High Court case of Browne v Minister for Justice, Equality and Law Reform and Others, judgement in which was delivered by Cross J on 4th December 2012.Complaints seven to twelve are dealt with in sequence below.7. Improper DressIn this complaint it was noted that the Book of Evidence in the Canal Murders had been apparently stolen from court in 2001 and the book was ultimately recovered. After meeting with an informant to obtain information concerning the recovery of the book, the plaintiff arrived late at Kilmainham station and was summoned by a superintendent who censored him for not being improperly dressed and not having logged into his computer. The court took the view that the superintendents reaction to the plaintiff appearing late in the station and not being appropriately dressed was unreasonable however the court did not hold that it was an example of bullying and harassment for the superintendent to take the attitude he did.8.The Witness Order of the PlaintiffHere the plaintiff alleged that he was served a witness order requiring him to attend a murder trial. The plaintiff explained that he would be on holiday on the date and applied for seven days leave but was advised he could not have it as he was required in trial. The plaintiff believed that the Sergeant in question had told station members that the plaintiff had tried to “con” the Sergeant into signing his leave form and an altercation occurred between the plaintiff and the sergeant resulting in a complaint against the plaintiff of alleged insubordination. The accused ultimately changed his plea in the trial and the plaintiff’s attendance was not required and he was able to take his annual leave. The court was of the view that this incident did not amount to bullying and harassment and noted “…the fact that the incident, which the court believes was minor, possibly could have led to more serious disciplinary affairs indicates the tense state of personal relations at the time in the station”.9. The Missing Statements in the Rape CaseThis complaint concerned original statements in respect of a rape allegation which were locked in the plaintiff’s cabinet together with an exhibit. When the plaintiff opened his locker the items were missing. The plaintiff reported this to his superiors and the fact that he believed the statements were deliberately taken from his locker. The plaintiff made a complaint that this was part of the campaign of bullying against him. It was decided not to conduct any criminal investigation into the matter and the plaintiff complained about this. The plaintiff was the subject of a complaint by the victim of the crime as to the missing evidence which investigation exonerated the plaintiff. The court took the view that it was not unreasonable of the plaintiff’s superiors to take a decision not to make a criminal investigation of the theft of the evidence however the court was also of the view that “the actual stealing of these documents from the plaintiff’s locker, which the court accepts occurred, is evidence of a campaign by members of An Garda Siochana against the plaintiff in order to discredit him in the eyes of his superiors”. The court noted that there was no suggestion of any “break in” at the station. Although the court could not determine who was responsible for the incident it noted “the stealing of these items was clearly aimed at undermining and demonising the plaintiff in the eyes of his superiors and was an example of bullying against him”. The court also noted the key element of foreseeability in that this action would have undermined the plaintiff’s dignity and caused him distress and injury in his career as a garda.10. The Removal of the Plaintiff’s FirearmHere the plaintiff alleged that he was rostered in a manner which the plaintiff considered to be excessive and unfair. The court accepted that the plaintiff genuinely believed that the rostering was part of his superior’s campaign against him and that the plaintiff in going sick was as a result of genuine stress and anxiety. While the plaintiff was out sick it was agreed to remove his firearm as he was suffering from stress and anxiety. After examination by the Chief Medical Officer and an independent psychiatrist it was found that the plaintiff was fit for duty and to carry a firearm. It was also accepted that the plaintiff had been suffering from anxiety due to work related difficulties. Despite the above, it was decided not to return the plaintiff’s firearm. The court stated that it did “not accept that the issue of the plaintiff potentially abusing his firearm as a result of his past stress was in the circumstances a valid evidence based medical reason as the decision makers ignored and had not read the medical reports which the management had secured”. The court noted that all of the matters which were taken into consideration at the meeting in 2005 were disciplinary matters and that the continuation of the refusal to allow the plaintiff have a firearm was not a fair decision.11. The Poster Campaign in Kilmainham Garda StationThe plaintiff alleged that various posters were placed around Kilmainham Garda station which were indicative of bullying and harassment including slogans such as “Free Willy” and “D Garda Willy Browne is an innocent man”. The court accepted that the posters could be regarded as degrading but the posters “represented a misconceived attempt at humour or “ragging” rather than bullying or harassment”. The court noted that whilst “ragging” can amount to an example of bullying and harassment, in this case the plaintiff did not make anything about the posters.12. The Failure of the Defendants to Carry Out an InquiryThe plaintiff alleged that the defendants failed to investigate his legitimate complaints of bullying and harassment. The court accepted that the plaintiff’s concerns were treated in a manner that indicated that the defendants did not really take his complaints of bullying and harassment seriously. The court referred to the definition of bullying adopted by Fennelly J in the Quigley case (noted below) and the actions “could reasonably be regarded as undermining the individual’s right to dignity at work”.Bullying and HarassmentThe court emphasised the cases of Kelly v Bon Secours Health System Limited [2012] IEHC 21 and Nyhan v Commissioner of An Garda Siochana & Anor [2012] IEHC 329 that there is no separate or distinct tort of bullying and harassment. The court also noted that the defendant owes a duty of care not to expose a worker to injury. The court noted that “where the bullying emanates from fellow workers, issues such as foreseeability and the knowledge of employers are always relevant” and “clearly if the bullying is found to have emanated from management then no issue of vicarious liability would apply”. The court referred specifically to the case of Quigley v Complex Tooling and Moulding Limited [2009] I.R. 349 where Fennelly J adopted the definition of workplace bullying set out in 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 obligations. Fennelly J in that case also stated that bullying must be “repeated, inappropriate and undermining the dignity of the employee at work”. The court noted that if the plaintiff here proved a campaign by management against him that he did not have to establish that the activities complained of were well-known by the first or second named defendant as he was alleged that senior management was deliberately orchestrating and organising the bullying. Justice Cross also looked at referred to the Kelly and Nyhan case where he stated that the best summary of the questions to be addressed were set out in Maher v Jabil Services Limited [2005] 16 ELR 233 as“(a) had the plaintiff suffered an injury to their health as opposed to ordinary occupational stress;(b) if so, was the injury attributable to the workplace and;(c) if so, was the harm suffered to the particular employee reasonably foreseeable in all the circumstances”.The court noted that a plaintiff must establish an actionable wrong in the form of negligence, breach of duty, breach of contract or conspiracy. Interestingly the court also acknowledged “…..for somebody who is sensitive and who believes themselves to have been bullied, actions that an ordinary robust employee would be regarded as a matter of nothing may further undermine confidence and may in fact be bullying by either fellow employees or management”The court then had to consider whether as a result of the complaints set out by the plaintiff, he had suffered an injury to health as opposed to ordinary occupational stress attributable to the workplace which was reasonably foreseeable. The court was of the view that the actions of senior management and more junior gardai was reasonably foreseeable to undermine and cause injury to the plaintiff.Decision of the CourtThe court awarded the plaintiff €5,000 in respect of loss of earnings as it noted on the balance of probabilities that he had not made a proper case for his claim of extensive loss of earnings.In looking at general damages the court noted that the plaintiff had suffered a significant stress reaction and accepted on expert witness evidence that the plaintiff suffered a significant though moderate psychiatric injury. The court believed that the appropriate sum for damages for personal injury due to stress and depression as €55,000 being damages to the present and representing a small sum in the future.The court also held that there was defamation and libel of the plaintiff and awarded him €25,000.
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