Justice Kearns delivered his recent judgement in Glynn v Minister for Justice Equality and Law Reform [2014 IEHC 133] on 21st March 2014. Although the claimant was unsuccessful in her claim, the case is interesting in so far as the High Court explores the tests required to prove bullying in the workplace.
The plaintiff was employed as a civil servant by the defendants since 1979 performing clerical duties at Gort Garda Station in County Galway. She claimed damages arising from events which occurred May 2005 when she was required to complete the monthly accounts for Gort Garda Station. The plaintiff contended that over a period of four days she suffered significant stress as a result of being hounded and harassed in relation to the need to complete the task quickly and in relation to an issue of an individual cheque which her superintendent had drawn in relation to his expenses.
During 1996 a number of renovations were taking place in the Garda Station which necessitated the plaintiff performing her clerical duties in a portacabin beside the main building. She was working with Garda Callaghy with whom she did not get on and felt he was constantly checking on her.The plaintiff subsequently took sick leave from the 6th November, 1996, which continued until the 1st May, 1997 and resumed duty on a three-day week basis in May, 1997.
In December, 1996 the plaintiff met with Supt. Mockler in Glynn’s Hotel in Gort to discuss her workplace issues. According to the plaintiff, Supt. Mockler told her she “had had it good and from now on it would get tougher”. Thereafter, in January, 1997 Supt. Mockler rang her home on three occasions in one day and the plaintiff felt intimidated and fearful by reason of these multiple calls.
Following her return to work, the plaintiff gave evidence that her desk had been moved to the store in the garda station and had to insist on its being returned to her office.Upon her return from maternity leave in March, 1998, she was no longer working with Garda Callaghy and her workplace difficulties and stress ceased. In 2004 she applied for a promotion to the position of Finance Officer and was successful. However she was advised she could not actually take up the position until either Garda Callaghy retired or left.
On 9th May, 2005 the plaintiff was instructed to commence the duties of finance officer in circumstances where Garda Callaghy was out of the station. The plaintiff maintained that she worked on the accounts over a period of four days in circumstances of considerable stress and difficulty. While completing those accounts in the week commencing the 9th May, 2005, her attention was drawn to a cheque for expenses drawn by Supt. Mockler in his own favour which had been inserted in the records on a day prior to the date upon which the station cheque was sent to Killarney for reimbursement. The plaintiff took up the matter with the accountant in Garda Headquarters to seek guidance on what she should do with the cheque. The plaintiff claimed that she was told by Supt. Mockler that if she didn’t do what he said, he would take her position from her.
After six months absence from work on sick leave, the plaintiff was put on half pay and was taken off the payroll altogether with effect from the 1st April, 2006. However, the plaintiff returned to work in July, 2006 at a time when Supt. Mockler had retired from Gort Garda Station.
Prior Medical History
In cross-examination, the plaintiff conceded she was having some difficulties with depression for which she was prescribed medication in advance of the matters complained of. She also accepted that in 1996 she had not filed any complaint of bullying and had contacted the Employment Assistance Services of The Department of Justice in 1996. She accepted she had not complained of being bullied and also failed to attend a meeting arranged with Ms Holland in Gort in 1997.
In relation to the events of May, 2005 it was put to her that Garda Callaghy had in fact given her his password for the computer and that all of the work for the April accounts had been done and that there was no rule or regulation that the cheque to the accountant’s office in Killarney had to be the first cheque of the month.
Dr. Lynch gave evidence that various tests indicated that the plaintiff lacked self esteem and self confidence and was showing mild signs of depression. Dr. Raymond Piggott confirmed that his reports for the purpose of the court case did not include any reference to the plaintiff’s prior medications for depression. He accepted this was an error on his part due to the transfer of his records in the practice from paper to computer in or around that time.
Dr. Deirdre O’Donnell gave evidence of evaluating the plaintiff in early 1997 and recalled her as being extremely distressed and anxious. Her symptoms were in line with the kind of complaints typical of bullying and harassment. Dr. McInerney believed the plaintiff had suffered an upset in 1996/1997 but the symptoms in 2005 were more severe and more intense. She believed she was suffering from an adjustment disorder, rather than post traumatic stress syndrome.
THE DEFENCE CASE
The defence case commenced with the evidence of Garda Callaghy. He believed the plaintiff had issues about the fact that he was on a higher rate as a garda because she was a civilian. He accepted that working conditions in the portacabin in 1996 were uncomfortable. In relation to accounts he explained that all the plaintiff had to do to complete the accounts was to copy the material onto a disc and explained to her how to do it. The matter of Supt. Mockler’s expenses cheque was a minor issue and no problem really. Supt. Mockler found the plaintiff to be an excellent employee. He was certainly unaware that the plaintiff had any issues with him or of any suggestion of bullying. His subsequent telephone calls to her home were part of a process of ensuring that staff were properly supported and helped.
In so far as the cheque incident was concerned, he felt this implied some wrongdoing on his part and told her to call the accountant’s office in Killarney. He simply gave the cheque back to her. However, he accepted that the plaintiff made it clear that she was unhappy completing the accounts upstairs. Mr. Gerry Guidon, Financial Accountant, in the Department of Justice, gave evidence that there was no rule or regulation that the first cheque of the month should be the accountant’s cheque, but it was the normal practice.
Pamela Holland who was employed in the Employment Assistance Service gave evidence of a number of calls with the plaintiff
In 1997 she rang the plaintiff to say she would come down to Gort to meet her confidentially. She drove down from Dublin, went to the café and waited for two hours but the plaintiff did not show up.
Professor Patricia Casey, Consultant Psychiatrist, had one interview with the plaintiff in May, 2012. The plaintiff had no symptoms of post traumatic stress disorder. She agreed that the plaintiff had what she described as an “adjustment disorder”, a self limiting condition which occurs in close proximity to a single event, and when the stressor is removed, the symptoms improve.
The High Court observed that “…..bullying, workplace stress and occupational stress are all things which, conceptually at least, are quite different from each other, though on occasion they can overlap and coincide. Occupational stress is not actionable given that occupational stress is something which every employed person may experience at some stage of his or her working life and can occur for reasons quite distinct from and unrelated to bullying.….”
The court further observed that workplace stress may be actionable if certain legal criteria are met. It lacks however that degree of deliberateness which is the hallmark of bullying.
Questions to be asked
The court observed that the following question should be asked in respect of bullying “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”
It also referred to the legal definition of bullying as recommended by the Report by the Task Force on the Prevention of Workplace Bullying as set out in the Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 (S.I. No. 17 of 2002) as:-
“[R]epeated 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, it is not considered to be bullying.”
The court further observed that the wording must be taken as requiring an objective test to determine if bullying has occurred. T
In Quigley v. Complex Tooling and Moulding Ltd.  1 I.R. 349, the Supreme Court, when defining bullying or harassment at work, did not feel any need to go further than the statutory definition. As Fennelly J. stated at p. 372:-
“Since the definition of workplace bullying taken from the code of practice laid down in the statutory instrument has been accepted by the defendant as an accurate statement of the common law duty of care, it is not appropriate to refer to other authority.”
The court observed that while the plaintiff also complained of workplace stress, the genesis of that particular aspect of the case lies in events which transpired in 1996 and 1997 which were not the subject matter of the present claim for compensation. The present claim is one in which in the plaintiff’s pleadings it is alleged that “the plaintiff was repeatedly hounded and harassed” by the said superintendent over a four day period in May, 2005 in relation to the preparation of monthly accounts and “the need to complete the task quickly and in relation to the issue of the irregular payment to him”.
The court also considered arguments by counsel in respect Herbert J. in Sweeney v. The Board of Management of Ballinteer Community School  IEHC 131 (Unreported, High Court, Herbert J., 24th March, 2011) to argue that the legal test for bullying was a two-pronged test, the second part of which is to inquire whether the activities complained of were such as to meet a test of reasonable foreseeability that the particular claimant would suffer harm or damage. However, Herbert J. in that case found there had been continuous bullying and harassment of the plaintiff so that this further requirement does not seem appropriate in the context of a bullying allegation.
The court observed that the relevant legal principles were laid down in Berber v. Dunnes Stores  E.L.R. 61, a decision which adopted the ‘practical propositions’ derived by Hale L.J. from case law and set out by her in Hatton v. Sutherland  2 All E.R. 1 as follows:-
“1. The ordinary principles of employer’s liability apply.
2. The threshold question is whether the kind of harm to the particular employee was reasonably foreseeable: this has two components (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors).
3. Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large. An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability.
4. The employer is generally entitled to take what he is told by his employee (including what he is told by the employee’s medical adviser) at face value unless there is good reason to think to the contrary.
5. The indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it.
6. The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the cost and practicability of preventing it, and the justifications for running the risk.
7. An employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this.
8. If the only reasonable and effective steps would have been to dismiss or demote the employee the employer will not be in breach of duty in allowing a willing employee to continue in the job.
9. In all cases it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care.
10. The claimant must show that the breach of duty caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm.”
The court stated that it believed there were two issues which greatly exercised the plaintiff in this case, namely, her sense of injustice that she, as a civilian employee, was not being paid the same rate for the same work as her garda colleague and secondly the working conditions in which both were obliged to work in 1996. The court found the facts fell far short of substantiating an allegation of bullying by Garda Callaghy or anyone else.
In evaluating the different witnesses in this case, the court felt considerable concerns about certain aspects of the plaintiff’s evidence. In particular, the Court felt there was no acceptable explanation for the plaintiff’s failure to disclose her prior history of depression to either her own medical experts or by way of reply to particulars. Effectively, the plaintiff subverted the value of evidence tendered both by herself and by her own medical experts to a very significant degree given that the latter were left in the dark about this prior history.
The Court was left with a clear impression of a person who was somewhat perfectionist and was a person who took offence easily. The court found the plaintiff’s lack of co-operation with Ms. Pamela Holland to be quite extraordinary, given that Ms. Holland on one occasion travelled a long distance to meet her and address her concerns.
In contrast, the court found the evidence of Supt. Mockler to be both credible and reliable and was satisfied that he was unaware of difficulties between the plaintiff and Garda Callaghy until the meeting in the hotel in Gort in December, 1996. The plaintiff portrayed this meeting as though it was one where she was virtually held captive for five hours and denied food or refreshments. The court observed that Supt. Mockler’s subsequent agreement to allow the plaintiff work a shorter week “is not the hallmark of a bully“.
The court also rejected any suggestion that the telephone calls constituted harassment or bullying of any kind and that there was no bullying or harassment of the plaintiff in 1996/1997.
In so far as the events of May, 2005 are concerned, Supt. Mockler was out of the office for one of the four days during which the plaintiff was dealing with the accounts. He was quite within his entitlement to ask the plaintiff to complete the accounts for Killarney in the context of Garda Callaghy’s absence. The matter of the Superintendent’s cheque was, in the view of this Court, ‘a thing of nothing’, which certainly could, and should have been, sorted out between the two of them in the garda station, as one would expect normal working colleagues to do.
In summary, Justice Kearns stated that he could not see that anything in the behaviour of either Garda Callaghy or Supt. Mockler constituted bullying or harassment. Furthermore “the events upon which the plaintiff relies to mount her claim turn on the events of a few short days in May, 2005 a time span more identifiable with a once-off or single incident rather than the kind of ‘repetitive’ and ‘inappropriate’ conduct which constitutes the wrong of workplace bullying or harassment“.
The court also observed that not a single other member of Gort Garda Station had offered evidence to suggest that there was any culture of workplace bullying or harassment in Gort Garda Station, nor was there a single witness to corroborate the plaintiff’s complaints in any way. The court concluded that the plaintiff’s problems all stemmed from what she saw as unreasonable working conditions in 1996 and what she saw as an unreasonable request directed to her by Supt. Mockler in 2005.
The court concluded that the plaintiff had not made a case for bullying or workplace stress causing or contributing to foreseeable injury or damage. She had no complaints of workplace stress for the eight years between 1997 and 2005.
Justice Kearns concluded “Even if mistaken on these issues I would also be of the view that the plaintiff failed to demonstrate that her stress was attributable to the matters she complained of in this case. She had a prior history of stress and depression which was not disclosed until it was uncovered through the discovery process. I believe any subsequent stresses suffered by the plaintiff were attributable both to life events (including the tragic death of her nephew and the death of her father) and, in 2005, to occupational stress only“.