FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : FERGAL BRODIGAN T/A FB GROUNDWORKS (REPRESENTED BY NIAMH DOYLE & CO SOLICITORS) - AND - JURIS DUBINA (REPRESENTED BY P.C MOORE & CO SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal Of Rights Commissioner's Decision R-061397-H&S-08/EH
BACKGROUND:
2. The Employer appealed the Rights Commissioner's Decision to the Labour Court on 4th June 2008, and a Labour Court hearing took place on 10th October 2008.
DETERMINATION:
This is an appeal by Fergal Brodigan trading as FB Groundworks against the Decision of a Rights Commissioner in a claim brought by Juris Dubina in which he claimed to have been penalised in contravention of Section 27 of the Safety Health & Welfare of Work Act 2005. In this Determination the parties are referred to as they were at first instance. Accordingly, Mr Dubina is referred to as the Complainant and Mr Brodigan as the Respondent.
Other Claims:
The hearing of this appeal was conducted in conjunction with another appeal involving the same parties in a claim under the Organisation of Working Time Act, 1997, and with an appeal by Mr Andis Slupskis against the Decision of a Rights Commissioner in a claim under the Organisation of Working Time Act, 1997. There was considerable overlap in the evidence as it relates to all three appeals.
Complainant’s Case:
The Complainant commenced employment with the Respondent on the 10th September 2007 as a General Operative. While employed by the Respondent he was engaged in road maintenance repairs in the Dun Laoghaire-Rathdown County Council area. The Respondent was at all material times providing groundwork services to Dun Laoghaire–Rathdown County Council on contract. In December 2007 the Complainant instructed his Solicitor to initiate proceedings pursuant,inter alia,to the Safety Health & Welfare of Work Act 2005. The Complainant told the Court in evidence that he ceased work on 21st December 2007 for the Christmas Break. He was told by the Respondent to contact him after the break regarding further work. He said that he contacted the Respondent on or about 7th January 2008 regarding future employment. He told the Court in evidence the Respondent took issue with him for having initiated the proceedings referred to and told him he was dismissed. The Complainant alleges that he was dismissed for having initiated the proceedings referred to. The Complainant denied having received a P45 on 21st December 2007.
Respondent’s Case:
The Respondent told the Court in evidence that all staff were given protective notice in December 2007 because it was considered probable that the works in which they were engaged would have to cease so as prevent disruption over the busy Christmas period. In the event this did not occur. There was, however, a need to reduce the workforce and the Complainant and a colleague were selected for redundancy on the basis that they were the “last in”. The Complainant was dismissed by reason of redundancy on the 21st December 2007 and was given his P45 on that date. A copy of the P45 was entered in evidence. This document showed the date of termination as being 21st December 2007. The Respondent told the Court in evidence that he was not aware of the proceedings, which the Complainant had initiated, until the 4th January 2008. The Respondent denied having any further contact or conversation with the Complainant after he was dismissed in December 2007.
Mr Joe Williamson gave evidence before the Court. He is General Manager for the Respondent. He is responsible for co-ordinating sales and invoicing and he is also responsible for payment of wages to the staff. He said staff were paid each Friday in cash. Their pay is placed in a sealed envelope together with their payslip and handed to them. This was always the case with the Complainant. He recalled the occasion of the Complainant’s dismissal. Mr Brodigan had told him that the Complainant was being dismissed and was told to arrange for his P45 to be placed in his pay packed. This was on the 21st December 2007. The witness told the Court that he obtained the Complainant’s P.45 from the person who provided bookkeeping services to the Respondent on that date and that he placed the document in the Complainant's wage packet together with his pay and sealed the envelope. He then handed this to the Complainant.
The Law Applicable
The relevant statutory provision in this case is s 27 of the Safety Health and Welfare at Work Act 2005 (the Act). This provides as follows: -
- 27.—(1) In this section “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.
(2) Without prejudice to the generality of subsection (1), penalisation
includes—
(b) demotion or loss of opportunity for promotion,
(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,
(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and
(e) coercion or intimidation.
- (3) An employer shall not penalise or threaten penalisation against an employee for—
(b) performing any duty or exercising any right under the relevant statutory provisions,
(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,
(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,
(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or
(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.
Burden of Proof
In Department of Justice Equality and Law Reform (Determination HSD082) this Court considered how the probative burden should be allocated in cases under the Act. The Court held as follows: -
- It is clear, however, that in the absence of any contrary statutory provision, the legal burden of proof lies on the person who asserts that a particular fact in issue is true (seeJoseph Constantine Steamship Line v Imperial Sheltering Corporation[1942] A.C.154 where this rule of evidence was described by Maugham V.-C. as “an ancient rule founded on considerations of good sense and it should not be departed from without strong reasons”)
In the instant case a central fact in issue is the motive or reason for the Complainant’s dismissal. It would be palpably unfair to require the Complainant to prove that the Respondent was influenced by the issuance of the proceedings under the Act in deciding to terminate his employment. Conversely, it is eminently reasonable to require decision maker to explain the reason for his decision and to show the absence of an unlawful motive. However, the fact of dismissal and the date of the dismissal are not within the peculiar knowledge of the Respondent and it is thus for the Complainant to prove, on the balance of probabilities, that the dismissal occurred on the date which he alleges.
Conclusions of the Court:
The central question for consideration by the Court is whether or not the Respondent knew that the Complainant had initiated proceedings under the Act at the time he decided on the dismissal. If he did it would be for the Respondent to satisfy the Court that the dismissal was unrelated to those proceedings. If, however, the Complainant fails to satisfy the Court that the dismissal occurred before the Respondent became aware of the proposed proceedings his claim cannot succeed.
Having considered all of the evidence in this case the Court has come to the view that, as a matter of probability, the Complainant was dismissed on the 21st December 2007. The Court has come to that conclusion having considered the evidence of the Complainant and the witness who gave evidence for the Respondent and having observed their demeanour in giving evidence. The Respondent was not aware that the Complainant had initiated proceedings under the Safety, Health & Welfare at Work Act, 2005, until 4th January 2008. Consequently, the dismissal could not have been motivated or caused by the initiation of those proceedings. Accordingly, the Court is satisfied that the Complainant was not penalised contrary to Section 27 of the Safety Health & Welfare at Work Act, 2005, and the Respondent is entitled to succeed in his appeal.
Determination:
The Court is satisfied that the complaint herein is not well-founded and the Respondent’s appeal is allowed and the Rights Commissioner’s Decision is set aside.
Signed on behalf of the Labour Court
Kevin Duffy
10th December, 2008______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.