Friday 2 December 2016

Worker sacked by Dunnes told to repay €20k of appealed award

Tim Healy

Published 04/05/2016 | 14:39

Dunnes Stores
Dunnes Stores

A hard-working loyal employee dismissed by Dunnes Stores after it won its appeal against a €67,500 damages award to her has been given a year to repay Dunnes a €20,000 sum already paid to her out of that award.

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Geraldine Martin (64), who worked for Dunnes for some 26 years before being dismissed, used the €20,000 to pay off a credit union loan and is now dependent on social welfare with little prospect of getting another job, the Court of Appeal heard.

Ms Martin had been left "impecunious" and Dunnes' conduct was "disgraceful", her counsel said. She should be given a year to repay the €20,000 "because where is she to get the money from?".

The three judge appeal court refused an application by Hugh Mohan SC, for Dunnes, to order Ms Martin repay the €20,000 within six months, rather than the year sought, and also refused to award costs to Dunnes against Ms Martin.

Ms Justice Mary Finlay Geoghegan, with whom Ms Justice Mary Irvine and Mr Justcie Gerard Hogan agreed, said Ms Martin acknowledged she owed the €20,000 to Dunnes and the court considered a year to repay was reasonable.

Dunnes could apply to the court if necessary after the year expires, she said.

While not commenting on the validity of Dunnes' decision to dismiss Ms Martin after the appeal verdict, that left Ms Martin, at age 64, unlikely to get another job which meant she had no other means of income or means to repay costs, the judge said.

The court considered Ms Martin's changed circumstances amounted to the necessary "special circumstances" not to award Dunnes its legal costs.

The matter was back before the court following its decision last March overturning the award to Ms Martin over an arm injury suffered in Dunnes' Dundalk branch on August 10th 2011.

When a customer arrived at Ms Martin's checkout with a torn 10kg bag of potatoes, Ms Martin went to get a replacement pack from a pallet. She sued Dunnes Stores (Dundalk) after suffering a tear in the bicep muscle in her right arm when "yanking" out a 10kg pack wedged between two other bags of potatoes.

The appeal court quashed the High Court findings Dunnes failed to provide Ms Martin with a safe system of work or adequate training.

While stressing it was "impossible" not to feel sympathy for Ms Martin, an "undisputed hard-working loyal employee and credible witness trying to help a customer", the court said it must allow the appeal.

Dunnes had a system, including a tannoy system, where checkout staff could get other staff to assist them and staff were also regularly trained in, and tested about,  manual handling techniques, it found.

Ms Martin's injuries could not be ascribed to any negligence or breach of duty of Dunnes which took all reasonable precautions and implemented all reasonable practices to protect her against injury in such circumstances, it held.

While the court could well understand Ms Martin's desire to help the customer, she did not follow the assistance system designed to best protect her interests, it found. It was "obvious from the very start" the pack of potatoes could not easily be moved and, given her training, Ms Martin should have assessed the lift to be unsafe.

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