FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9); INDUSTRIAL RELATIONS ACT; 1969 PARTIES : SOUTH EAST FORMWORK LTD (REPRESENTED BY CONSTRUCTION INDUSTRY FEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation IR18708/04/TB.
BACKGROUND:
2. The case before the Court concerns a dispute regarding a dismissal following a refusal on the part of a worker to continue working in adverse weather conditions.The worker was ordered to resume work in heavy rain or to leave the site. The Union are claiming that the worker was unfairly dismissed
The Company reject the claim on the basis that the worker left the site of his own accord rather than being dismissed.
The matter was referred to a Rights Commissioner for investigation and recommendation. His recommendation issued on the 14th December, 2004, as follows:
"The Claimantwas employed from the 17th of September, 2003. His employment ceased on the 16th of February, 2004 due to a refusal to work in inclement weather. SIPTU submit that he was dismissed and that the dismissal was unfair. CIF on behalf of the respondent disputes this and submit that the claimant left the employment of his own free will."
Recommendation IR18708/04/TB
Based on the evidence I do not consider this to have been an unfair dismissal. The complaint fails.
The worker was named in the Rights Commissioner's Recommendation. On the 11th of January, 2005, the Union appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 13th of April, 2005.
UNION'S ARGUMENTS:
3. 1. The worker in question was unable to work due to inclement weather. He was subsequently provided with protective clothing and told to resume work or leave the site. As it was raining heavily, the worker felt unable to resume work, so he left the site as instructed by his employer.
2. The Registered Emplyment Agreement for the Construction Industry states that work will only be carried out in inclement weather when absolutely necessary. It is unacceptable that the employer put the Health and Safety of the workforce at risk by insisting on working in adverse weather conditions.
3. The worker had previously been forced to work in heavy rain without adequate protective clothing.
EMPLOYER'S ARGUMENTS:
4. 1.The worker was warned that his refusal to work may end in dismissal. The worker then left the site of his own accord.
2.The employer provided protective clothing for the worker and requested that he return to work. The Registered Employment Agreement provides that decisions as to when work is resumed shall be made by the employer. As a result of the workers refusal to resume work, additional costs and delays were incurred by the company.
DECISION:
Having considered the oral and written presentations made by both parties, the Court is of the view that the circumstances, which arose on 16th February 2004, constituted a dismissal of the appellant by the employer when he refused to carry out the instructions of his employer.
The Court takes the view that there were other options (besides dismissal) open to the employer in this case which were not availed of. In the circumstances, dismissal without recourse to normal disciplinary procedures was not an appropriate response. Consequently, the Court finds that dismissal in these circumstances was unfair.
However, the Court is of the view that no effort was made either by the appellant or his trade union to mitigate that dismissal. It appears to the Court that had representation on his behalf been made to the employer, the claimant may have had the opportunity to return to work.
Therefore, in these circumstances the Court decides to award compensation of €2000 in full and final settlement of his claim.
The Rights Commissioner’s recommendation is overturned, the appeal succeeds.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
20th May, 2005______________________
AH/MB.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.