FULL RECOMMENDATION
SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : PATRICK KELLY T/A WESTERN INSULATION - AND - ALGIRDAS GIRDZIUS (REPRESENTED BY P.C. MOORE & CO SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Decision R-047129-HSC/06.
BACKGROUND:
2. The Worker a Lithuanian National with limited knowledge of the English language commenced employment as a Construction Worker with the Company in May 2005 and was dismissed on the 29th September, 2006. It is alleged by the Claimant that the Company breached Section 27 of the Safety, Health and Welfare at Work Act, 2005 (the Act).
The issue was referred to a Rights Commissioner for investigation and recommendation. On the 12th September, 2007 the Rights Commissioner issued his recommendation as follows:
"The function of the Rights Commissioner under the Safety, Health and Welfare at Work Act, 2005 is to determine whether or not an employer has contravened the provisions of Section 27 of the Act, which provide protection for employees against dismissal, penalisation or threatened penalisation by employers where the employee is acting in good faith in the interests of health and safety. Penalisationis defined at Section27(1) and (2)the specific protected actions are listed at Section 27 (3) (a) to (f).
I was not presented with evidence that the claimant was penalised for taking any of the actions listed in Section 27(3) and accordingly declare that the complaint is not well founded".
On the 3rd October, 2007 the Solicitors for the Worker appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 29(1) of the Safety, Health and Welfare at Work Act, 2005. A Labour Court hearing took place on the 12th December, 2007.
The Company was informed of the venue, time and date of the Court hearing but was not represented.
WORKER'S ARGUMENTS:
3. 1. The Worker did not receive any proper health and safety training in an appropriate language which he could understand, thus causing him to be penalised under the meaning of Section 27 of the Health, Safety and Welfare at Work Act 2005.
2. The Worker was not informed of any Health and Safety Statement or preventative measures necessary while working on various building sites.
3. The Worker suffered two broken arms and needed a number of stitches when he fell off a ladder which was not properly secured.
DETERMINATION:
This is a complaint by Aigirdas Girdzus (the Claimant) alleging that his former employer, Patrick Kelly trading as Western Insulation (the Respondent) penalised him in contravention of S27 of the Safety Health and Welfare at Work Act 2005 (the Act).
The complaint was investigated by a Rights Commissioner who found that it was
not well founded. The Claimant appealed to this Court. For ease of reference the
parties are now given the same designation as they had at first instance. Hence the
parties are respectively described as the Claimant and the Respondent.
This substance of the claim is that the Respondent omitted to comply with certain
statutory duties imposed by the Act and that such failure in and of itself constituted
penalisation within the meaning of S27 of the Act. Submissions were made by
the Solicitor for the Claimant, to the effect that the Respondent’s alleged
failure to comply with its obligations constituted omissions which operated to
the detriment of the Claimant with respect to his terms and conditions of
employment. The complaint is grounded on S27 of 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.
- includes—
- includes—
- (a) acting in compliance with the relevant statutory provisions,(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.- It is clear from a plain reading of subsection (3) of this section that penalisation is rendered unlawful under the Act when it is perpetrated on an employeeforhaving performed or committed one or more of the acts referred to in the succeeding paragraphs of that subsection. Thus it is perfectly plain that in order to succeed in a cause of action grounded on the Section a Claimant must establish not only that he/she suffered a detriment of a type referred to at subsection (1) but that the detriment was imposed because of, or was in retaliation for, the employee having acted in a manner referred to at subsection (2).
In the instant case the Court makes no finding in relation to the alleged contraventions of the Act referred to by the representative of the Claimant. If there were any such contraventions the remedy is provided elsewhere in the Act and does not come within the jurisdiction of this Court. There is, however, no evidence of any kind to establish any causal connection between the alleged omissions relied upon and any act on the part of the Claimant of a type referred to at subsection (3). Indeed the import of the submissions made on behalf of the Claimant was that it was unnecessary to establish such a connection. That submission ignores the plain meaning of S27 when read as a whole.
- It is clear from a plain reading of subsection (3) of this section that penalisation is rendered unlawful under the Act when it is perpetrated on an employeeforhaving performed or committed one or more of the acts referred to in the succeeding paragraphs of that subsection. Thus it is perfectly plain that in order to succeed in a cause of action grounded on the Section a Claimant must establish not only that he/she suffered a detriment of a type referred to at subsection (1) but that the detriment was imposed because of, or was in retaliation for, the employee having acted in a manner referred to at subsection (2).
Signed on behalf of the Labour Court
Kevin Duffy
8th. January, 2008.______________________
JF.Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.