Richard Grogan on employment law: Exemplary costs – maybe not just for Personal Injury Claims



Richard Grogan
Richard Grogan

Employment law solicitor Richard Grogan of Richard Grogan & Associates Solicitors writes about the potential impact of a recent court decision on exemplary costs in an employment law case.

The case of Darius Savickis and Governor of Castlerea Prison and Others being a Court of Appeal decision IECA310 is one where there is an interesting twist which may possibly have an implication for employment cases.

In this case, Mr Justice Hogan delivered a judgement on 27th October. The Court considered whether the Plaintiff was entitled to exemplary damages for breach of a constitutional right in respect of an assault. It was pointed out that the leading case on this is the case of the Supreme Court in Conway v Irish National Teachers Organisation 2 IR 305.

That was a case which arose out of an industrial action taken by the Defendant’s trade union in a particular area of West Cork which had the effect of depriving certain primary school students of schooling for the best part of six months.

In that case Mr Justice Finlay as Chief Justice set out the test to be applied namely;

“..This is an appropriate case in which the Court should feel obliged to mark its disapproval of the conduct of the defendant to the extent of awarding exemplary damaged against them for the following reasons;

  1. The right which was breached on this occasion was one which was expressly vested in a child by the constitution;
  2. The right which was breached was one which, having regard to the education and training of a child was of supreme and fundamental importance;
  3. It must be presumed that the defendants were aware of that importance;
  4. The breach of the constitutional right involved was an intended, as distinct from an inadvertent consequence of the defendant’s conduct”.

The Court in this case pointed out that the trial had lasted for six days and that the prison officers who were called to give evidence on behalf of the State repeatedly denied that the plaintiff had been punched even when the relevant CCTV evidence was shown to them. The Court pointed out that this is conduct which should not be tolerated for an instant. The Court pointed out that the damages were to mark not only the grievous breach of the plaintiffs constitutional rights but also to mark the strong disapproval by the Court of an endeavour by agents of the State to hide their complicity in this wrongful conduct in the face of overwhelming evidence to the contrary.

Mr. Justice Hogan went on to point out that such damages are normally awarded at 50 per cent of the sum awarded as compensation.

At first sight this may not appear to be a case which may have an employment law element. But it may well have.

Take a case of an individual who brings a claim that they have not received their proper annual leave.

Let us assume that the employer contends that they have and that an Adjudicator in the WRC or The Labour Court holds that the employee did not receive their entitlements. Let us look at the four issues:

  1. The right to annual leave is expressly vested in an employee by way of the Working Time Directive which is a fundamental social right which will be equivalent to a constitutional right;
  2. The right which is breached will be one which is of supreme and fundamental importance as it is a fundamental social right and is there for health and safety purposes;
  3. The employer will be assumed that they were aware of the importance of an employee getting the appropriate entitlements; and
  4. It cannot be an inadvertent consequence if it has been claimed that the employee received their entitlements.

There are many cases currently going before the WRC and the Labour Court where employers simply come in and deny everything or seek to justify a breach on grounds that have no legal validity.

It will be interesting to see to what extent this case may be quoted before the Labour Court or Adjudicators for the purposes of seeking exemplary damages.

  • Richard Grogan is the principal solicitor at Richard Grogan & Associates Solicitors. You can subscribe to the firm’s monthly newsletter at grogansolicitors.ie.