FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : AREVA T & D UK LIMITED (REPRESENTED BY NIGHTINGALES SOLICITORS) - AND - A WORKER DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Mr Nash |
1. Appeal against Rights Commissioner's Recommendation IR18660/04/MR (Double Appeal).
BACKGROUND:
2. The Company is mainly involved in the supply and distribution of electricity. It is an English registered Company. Areva has a contract with the ESB to carry out woodpole overhead lines transmission work in Ireland. Prior to January, 2004, the Company was known as Alstom T & D Limited. The worker was employed in September, 2003, and was involved with the woodpole overhead lines work. He claims that he was hit by a JCB bucket on the 4th of November, 2003, and badly damaged his back. He attended a doctor on the 6th of November, and then worked from the 7th of November to the 14th of January, 2004. He again attended a doctor and received a medical certificate for 42 days during which time he returned to his native South Africa. The worker claims that during all this time he was in severe pain with his back. According to the Company his services were terminated on the 1st of March, 2004, as he was medically unfit.
The Company claims that the worker was not an employee of Areva. His services were supplied by an English labour supply agency known as Euronational and Technical Limited. He had a contract of employment with Beaver (5800) Limited, a subsidiary company of Euronational. The worker, however, believes that his contract was with Areva.
The worker referred his case for unfair dismissal to a Rights Commissioner and his recommendation was as follows:-
"In the circumstances, I now recommend that Areva T & D UK Ltd should agree to pay the worker a once-off lump sum of €5,000 in recognition of their part in his unfair dismissal and that the worker should accept this payment in full and final settlement of his claims against this Company".
Both parties appealed the recommendation to the Labour Court - the worker on the 30th of December, 2004, and the Company on the 26th of January, 2005, - in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 1st of June, 2005.
UNION'S ARGUMENTS:
3. 1. The worker was very badly treated by the Company. He was badly hurt in the incident of the 4th of November but the Company did not seem to believe him. He was obliged to continue working despite being in pain.
2.The worker was unfairly dismissed on the 1st of March, 2004, leaving him in severe financial difficulties. This also caused hardship for his family in South Africa. He worked up to 70 hours per week but received no overtime.
3. The worker believes that he was employed by Areva. All of his dealings were with Alstom / Areva.
COMPANY'S ARGUMENTS:
4. 1. Euronational invoiced Areva for the worker's services and Areva paid Euronational on receipt of these. Areva did not make any direct payments to the worker as he was not an employee. He signed standard terms and conditions of employment with Euronational on the 5th of September, 2003.
2. The worker's services were terminated because he could no longer supply these services. It is not fair that the Company should have to pay for an unfair dismissal in the circumstances.
DECISION:
The Court, having considered the various and complex issues raised by the parties in their submissions, is of the view that the Rights Commissioner's Recommendation was fair in regard to the matters considered under the Industrial Relations Act, 1969.
Accordingly, the Court upholds the Rights Commissioner's Recommendation and dismisses both appeals.
Signed on behalf of the Labour Court
Raymond McGee
14th June, 2005______________________
CON/MB.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.