A former meat factory operator and avid ballroom dancer, who was seen in photographs chopping wood during a period he claimed he could not work, has withdrawn his High Court claim for failure to pay win against his former employer.
Frank Burgess, 45, of Hillview Drive, Thurles, Co Tipperary, sued Callan Bacon Company Ltd for a back injury he allegedly suffered while lifting pigs at work on November 24, 2016.
The married father of three claimed he was unable to work between December 2016 and May 2019, during which time he received state sickness and accident benefits. He claimed €25,000 for alleged loss of earnings, less what was covered by social benefits.
Five-time national ballroom dancing champion Mr Burgess also claimed his dancing abilities had been hampered due to his injuries.
Callan Bacon has denied all the allegations.
Mr Burgess underwent around two hours of cross-examination by defending Elaine Morgan with Conor Roberts, during which he was shown CCTV footage of him operating a backhoe 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 suggested dates.
After a brief hiatus on Wednesday night, Mr Burgess’ lawyer, David Kennedy, said the case had been resolved and could be struck out without an order.
He told Judge Tony O’Connor that his client was withdrawing his loss of earnings claim. Ms. Morgan’s client consented to an order to strike out the action.
Earlier, Mr Kennedy said his client had experienced ‘sharp pain’ in his back when performing a repetitive twisting action while lifting 12kg pieces of meat on a treadmill. According to them, the table he was working on was about three inches lower than the conveyor belt, which meant that the operator had to lift the meat on the belt about 200 times per hour.
This was a “classic situation” of manual handling where there was a foreseeable risk of back injury, he said. It was alleged that the employer had been negligent in not providing a table at waist level to ensure that the work was as safe and healthy as possible in accordance with manual handling regulations.
While Mr Burgess tried to continue working but had to leave due to pain, it has been claimed. His back was also too sore to continue his work when he returned on December 10, the court heard.
He was referred for an MRI which showed he had a tear in one of his spinal discs, Mr Kennedy added. Mr Burgess told the court he had had two spinal injections, in 2018 and 2019, the second of which was “fairly effective”. He resumed light work with his brother’s factory hire business in May 2019, he said.
On cross-examination, Mr Burgess testified that he drove his brother’s van, for payment, approximately seven times during the period he was out of work. He said he believed Callon Bacon didn’t want him back.
Ms Morgan said minutes of human resources meetings with Mr Burgess showed the company presented various options for lighter work he could do there, including the use of a forklift in the factory. He denied that the company had offered “any kind of options”, adding that they had not ruled him out on some of his suggestions.
He was told that he argued in an HR meeting that he couldn’t drive a forklift because there was no suspension and that he could be injured if he went over a bump. He said he remembered something to that effect.
Ms Morgan said the complainant told a doctor in April 2018 that he was then unable to walk short distances and that this was an improvement in his condition.
The court saw footage, taken by an investigator, which Ms Morgan said showed him operating a backhoe in Clonmel on August 12, 2017. Mr Burgess acknowledged 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 several other days that month.
Mr Burgess replied: ‘That work was not done at the time and I insist on that.’ The court also saw photos that the defense said were taken in February 2018. Mr Burgess said it looked like he was chopping wood in the photos, but he doesn’t usually chop wood, except a few months ago.
Ms Morgan said the defense would claim Mr Burgess was observed in February 2018 chopping wood with a chainsaw and intermittently throwing logs out of the way. Mr Burgess denied that the alleged date was correct.
He said he had ‘not done much’ on the Clonmel site, but the defense photos were ‘trying to tell a different story, so they are’.
It was the defense’s job to build a case against him, he said, adding, “I told the truth. I did not lie “.
After a brief adjournment, Judge O’Connor was told he could strike out the case with the consent of both parties.
The defendant denied all claims.