A former meat plant operative and keen ballroom dancer, who was photographed chopping wood allegedly during a period he claimed he could not work, has withdrawn his High Court claim for loss of earnings against his former employer.
Frank Burgess (45), of Hillview Drive, Thurles, Co Tipperary, sued Callan Bacon Company Ltd over a back injury allegedly sustained when he was lifting pork at work on November 24th, 2016.
The married father-of-three claimed he was unable to work between December 2016 and May 2019, during which time he received illness and injury benefits from the State. He was seeking €25,000 for alleged loss of earnings, which did not include losses covered by social welfare payments.
Mr Burgess, a five-time national ballroom dancing champion, also claimed his dancing abilities have been hampered due to his injuries.
Callan Bacon denied all of the claims.
Mr Burgess underwent about two hours of cross-examination by defence barrister Elaine Morgan SC, with Conor Roberts BL, during which time he was shown CCTV footage of him operating a digger and photographs of him appearing to cut and throw wood.
She said the images were taken on dates in 2017 and 2018. Mr Burgess confirmed it was him, but he said the images were not taken on the dates suggested.
After a brief break in the proceedings on Wednesday evening, Mr Burgess’s counsel, David Kennedy SC, said the case had been resolved and could be struck out with no orders.
He told Mr Justice Tony O’Connor his client was withdrawing the claim for loss of earnings. Ms Morgan’s client consented to an order striking out the action.
Earlier, Mr Kennedy said his client experienced “acute pain” in his back when he was carrying out a repetitive twisting action while lifting pieces of 12kg meat onto a conveyor belt. It was their case that the table he was working on was about three inches lower than the conveyor belt, meaning the operative had to lift the meat onto the belt about 200 times per hour.
This was a “classic situation” of manual handling where there was a foreseeable risk of a back injury occurring, he said. It was alleged the employer had been negligent by not providing a table level with the belt so as to ensure the work was as safe and healthy as possible, in accordance with manual handling regulations.
While Mr Burgess tried to carry on working he had to leave because of the pain, it was claimed. His back was also too painful to continue his work when he returned on December 10th, the court heard.
He was referred for an MRI which showed he had a tear in one of his spinal disks, Mr Kennedy added. Mr Burgess told the court he had two spinal injections, in 2018 and in 2019, the second of which was “pretty effective”. He returned to light work with his brother’s plant hire firm in May 2019, he said.
Under cross-examination, Mr Burgess said he drove his brother’s van, for payment, about seven times during the period he was out of work. He said he believes Callon Bacon did not want him back.
Ms Morgan said minutes from human resources meetings with Mr Burgess showed the company presented various options for lighter jobs he could do there, including operating a forklift on the factory floor. He denied the firm gave “all sorts of options”, adding that they did not take him up on some of his suggestions.
It was put to him that he contended in a HR meeting he could not operate a forklift because there was no suspension in the vehicle, and he could injure himself if it went over a bump. He said he remembered something to that effect.
The court was shown footage, taken by an investigator, which Ms Morgan said showed him operating a digger in Clonmel, on August 12th, 2017. Mr Burgess accepted he was in the video but he said he did not remember the occasion. Ms Morgan said he was observed working at the site for more than four hours that day and on several other days that month.
Mr Burgess responded: “That job was not done at that time and I insist on that.”
The court was also shown photos which the defence claimed were taken in February 2018. Mr Burgess said it looked like he was chopping timber in the photographs but he doesn’t generally cut timber, except for a couple of months ago.
Ms Morgan said the defence would claim Mr Burgess was observed in February 2018 cutting wood with a chainsaw and intermittently throwing logs out of the way. Mr Burgess denied the date alleged was correct.
He said he did “not a whole lot” at the Clonmel site, but the defence’s pictures were “trying to say a different story, so they are”.
It was the defence’s job to make a case against him, he said, adding: “I have told the truth. I have not lied”.
After a short adjournment, Mr Justice O’Connor was told he could strike out the case with the consent of both parties.
The defendant denied all of the claims.
