THE SUPREME Court has overturned a High Court finding that Dunnes Stores unlawfully breached the contract of employment of a former store manager, meaning the man will now lose the bulk of some €72,000 awarded to him.
The three-judge Supreme Court yesterday granted the Dunnes appeal against the High Court award to Adam Berber, ruling he was not wrongfully dismissed by the company and is entitled to just €9,079, for bonuses due, plus Courts Act interest, out of the total damages awarded.
Mr Berber, who has Crohn’s disease, began work with Dunnes as a trainee manager in 1980 and later became men’s ready-mades buyer.
In February 2000, his performance was generally rated at the level of “effective contribution” but it was also noted he was colour blind.
From March 2000, the attitude of senior managers of Dunnes changed towards him, Mr Berber claimed. He alleged he subsequently reached an agreement with Margaret Heffernan of Dunnes to go back into store management at the firm’s flagship store in Blanchardstown, Dublin.
He claimed that agreement was later varied and his solicitors wrote on December 7th, 2000, informing Dunnes he would only go to Blanchardstown on terms agreed with Ms Heffernan and alleging the company’s “quite extraordinary conduct” and the stress generated by that conduct had resulted in his becoming ill.
Mr Berber was cleared by his doctor to work from December 28th, 2000, in Blanchardstown but a number of incidents followed, including criticisms of his dress code and his being categorised a “new trainee” on a circular.
Mr Berber claimed his treatment at Blanchardstown exacerbated his ill health and represented a continuous course of treatment from February 2000 designed to sideline him out of management and out of employment.
He left Dunnes in January 2002 after obtaining a position as a buyer with another retail group.
Mr Justice Joseph Finnegan, with whom Ms Justice Susan Denham and Mr Justice Adrian Hardiman agreed, yesterday ruled Dunnes had acted in good faith and within its rights in deciding to move Mr Berber from buying to store management at Blanchardstown. Mr Berber’s refusal to co- operate with the move until he could meet Ms Heffernan was “unreasonable”. Dunnes had made reasonable efforts to accommodate Mr Berber’s concerns.
The various complaints by Mr Berber did not amount to a breach by Dunnes of his contract of employment, Mr Justice Finnegan ruled.
