FULL RECOMMENDATION
SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : COALPORT BUILDING COMPANY LIMITED - AND - VYGANDAS URBONAVICIUS (REPRESENTED BY P.C. MOORE & CO SOLICITORS) DIVISION : Chairman: Mr McGee Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal against Rights Commissioner’s Decision R-048301-HS-06/MMG.
BACKGROUND:
2. The worker, who is a Lithuanian national, commenced employment with the Company on the 11th of January, 2006, and was dismissed on the 20th October, 2006. The worker's case is that the Company committed various breaches under the Health and Safety Act, 2005, (details supplied to the Court) in that it failed to provide a safe environment for the worker. The worker (who has limited English) cited as examples:- being given documentation in a language he could not fully understand and not being made aware of risks on various construction sites or being given proper training. The Company rejects the worker's claims and maintains that all appropriate safety measures were in place.
The case was referred to a Rights Commissioner and his decision was as follows:
"Having carefully considered the evidence as presented to the hearing by the claimant I have formed the opinion that the claimant has not presented a valid complaint."
The worker appealed the decision to the Labour Court on the 31st July, 2007, in accordance with Section 29(1) of the Health and Safety Act, 2005. A hearing took place on the 15th of November, 2007.
WORKER'S ARGUMENTS:
3. 1. The worker has a valid complaint in that the Company's failure to comply with the legislation (by not providing him with a safe working environment) amounts to penalisation.
COMPANY'S ARGUMENTS:
4. 1. The site foreman was of the opinion that the worker had reasonable English and understood the tasks assigned to him. The Company has employed several foreign nationals who would act as translators during site safety inductions and tool box talks.
2. All systems of work were signed off in accordance with current health and safety legislation by appropriately qualified supervisors.
DETERMINATION:
The appeal was brought on the basis that the Claimant had been penalised within the meaning of Section 27(1) of the Act, which says that:-
- "penalisation" includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment"
- - lack of safety systems
- non-provision of training
- lack of risk assessment
- non-provision of forms/information in language clearly understandable to the Claimant ( A Lithuanian National)
- not giving the Claimant information as to who was Safety Officer/Safety Representative and who was on the Safety Committee.
The Company denied that there were any omissions in the area of safety or safety information. It had a multinational workforce and safety instructors, Fetac certification, safe pass, toolbox talks, Health and Safety plans and site meetings had been provided to and for all workers. Instructions were provided in English and Polish and, in the case of the Claimant, (a) his English was quite good and (b) there was another Lithuanian worker with very good English who could and did translate all relevant information for the Claimant.
The Claimant had progressed to the important job of Banksman ( where he needed to, and did, communicate with others) and to work with power tools, all with full instructions and understanding of safety procedures.
The Company denied that there had been omissions, whether accidental or deliberate. It had been successfully audited 6 times in 2½ years by the Health and Safety Authority.
Having reviewed the submissions made by both parties, the Court has not managed to find any evidence that the worker has been penalised in accordance with Section 27 of the Act. It appears to the Court that the Company has met its Health and Safety obligations to the Claimant. As the claim of penalisation is grounded on the Company's failure to meet its obligations under the Act, and no such breach has been found, the complainant's case must fail. It is unnecessary at this time, therefore, to decide whether a breach of obligation under the Act can amount to penalisation.
The Court, therefore, dismisses the appeal.
Signed on behalf of the Labour Court
Raymond McGee
12th December, 2007.______________________
CON.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.