FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : ARANBEL CONSTRUCTION LTD REPRESENTED BY MICHAEL MCNAMEE B.L. (INSTRUCTED BY DAS GROUP) - AND - MR DANIEL BRANEY AND MR KEVIN LACEY REPRESENTED BY JOHN MCGUIGAN B.L. (INSTRUCTED BY PADRAIG O'DONOVAN SOLICITORS) DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeals by the Respondent against Rights Commissioner’s Decision No. R051832-HS-07/JT and by one complainant (Mr Kevin Lacey) against Rights Commissioner’s Decision No. R054506-HS-07/EH.
The parties are, for ease of reference, referred to as they were at the time of the Rights Commissioners hearing, with Messrs Braney and Lacey being referred to as the complainants and the Company as the respondent. It was agreed that, as all material facts around the case applied identically in the cases of the two complainants, the Court would hear both appeals simultaneously.
BACKGROUND:
2. The complainants were employed as craneman (Mr Braney) and banksman (Mr. Lacey) by the Respondent on a site in Tallaght, Dublin 24. On 19th February 2007 conditions were windy and large perforated panels were being lifted by the crane. The craneman (Mr Braney) expressed the view that it was too windy to lift and work was stopped by agreement on that day.
Later that morning, the respondent informed the complainants that as the site was coming to an end, the crane was going to be taken down and they were being let go.
The complainants obtained work with another Company, but on observing the crane still operating the following week, Mr Braney enquired of the respondent what was happening?
The respondent explained that the crane could not be dismantled for a month, so it might as well be used. The crane was being crewed by agency workers.
The complainants took the view that they had been penalised for expressing concerns within the meaning of Section 27 of the Act and took cases before the Rights Commissioner Service.
In the case of Mr Braney, a Rights Commissioner found that his case was well founded, in a decision dated 27th March 2008 and awarded him compensation of €10,000. This was appealed by the respondent on 6th May 2008.
In the case of Mr Lacey, a Rights Commissioner found, in a decision dated 4th March 2008, his complaint not to be well founded and dismissed the case.
Mr Lacey appealed this decision on 2nd April 2008.
A Labour Court hearing into the appeals was held on 19th June 2008 and completed on 26th June 2008.
Complainants’ Case:
1.Mr Braneygave evidence to the effect that at approximately 8am on the 19th February 2007, he was working for the complainants as a crane driver. It is accepted practice within the Construction industry that a crane driver has sole authority when deciding whether or not to operate his crane in windy conditions. On this particular morning, Mr Braney decided it was too windy to lift large
panels a height of five floors and so informed the Company, through Mr Lacey his banksman. This was normal procedure. The foreman (Mr Bohan) said he would let the M.D. (Mr Mounsey) know.
2. At around 10am or thereabouts, the foreman reverted to the complainants and informed them that use of the tower crane in question was being terminated and the job was finishing shortly. Accordingly they were both let go and worked for some part, but not all, of their week’s notice.
3. Both complainants subsequently obtained work on another site with a different employer.
4. Mr Braney stated that he was passing the Tallaght site on the following Monday, 26th February, when he saw that the crane was still operating. He protested to the Respondents about this. Some days later, after the complainants had got legal advice, Mr Braney was offered part-time work by the Company, which explained that the crane could not be dismantled for a further month. Mr Braney was by then committed to a different employer for full time work and he could not have taken up this offer. Mr Lacey was not offered part-time work.
Mr Braney gave evidence during the hearing before the Rights Commissioner, that the respondents stated that the crane had not operated after the complainants had left. He stated that the Company’s explanations about dismantling the crane were invented in order to cover up the true situation. He alleged that the Respondents had told untruths and produced questionable documents regarding Health and Safety matters. As an example he cited the weekly safety inspection of the tower crane. This report was allegedly prepared every week from September 2006 until the crane was taken off the site on 29th March 2007. He was the person with responsibility for signing this. However he pointed out to the Court that a signature purporting to be his was attached to the report for 5 successive weeks after he had in fact left the Company’s employment. He said that the Respondent had also told the Rights Commissioner that the crane had not operated after he had left.This was clearly untrue as the Company itself now accepts that agency workers were used after the complainants were let go. He stated that matters such as these cast severe doubt on the Company’s entire credibility in this matter. He stated that it was clear that the complainants were let go for expressing safety concerns, contrary to Section 27 of the Act.
5.Mr Laceycorroborated Mr Braney’s evidence. Both complainants are of the view that the respondent Company was under pressure to complete the job and if the complainants were not going to lift panels when the weather was questionable, the Company decided to let them go and bring in agency workers who would be less likely to object and would be cheaper.
Respondent’s Evidences:
1.Mr David Bohan, the former site manager gave evidence on behalf of the Respondent. He stated that by the second week of February 2007, the job at Tallaght/Citywest was nearing completion. He stated that they were working “full tilt” to complete the site, but that the craneman’s call on dangerous conditions was always respected and adhered to. This was normal. It had been a job beset by high winds, particularly in the preceding autumn.
By February 2007, there were no bricklayers left and, although the job was proceeding apace, the crane was only operating at about 70% of capacity, lifting panels and other large items. At a meeting over the weekend prior to 19th February, the M.D. and other participants decided that the tower crane should come down and that a mobile crane could be hired as necessary to finish off the job. On the following Monday, the craneman decided that it was too windy to lift panels and this decision was respected as usual by the Company, which has an excellent safety record.
- The decision to cease the crane hire was communicated to the complainants as soon as they stopped for weather on the Monday. He wanted to tell them both face to face and did not want to tell Mr Braney on the phone while he was up in the crane.
2. The Respondents gave permission for them to visit another Company’s site where there was likely to be work for them.
3. The Company did offer the complainants part-time work later that week, but they had already lined up another job, so they did not take up the offer.
It was then necessary to hire in agency workers to operate the crane. This was, in fact, a more expensive option.
4. Mr Bohan stated that the Company has fully complied with all safety and health regulations, was regularly inspected by the HSA and was indeed, the subject of an inspection that very week (Friday 23rd February) where there was no adverse mention of the crane situation, even though it was mentioned to the HSA inspector by one of the complainants. The Company strenuously denies any breach of Section 27 of the Act.
Mr Liam Mounsey, the Managing Director of the Company, also gave evidence. He stated that the decision to take the crane down was taken at the weekend before the 19th February 2007. When he contacted RGA plant hire, they were not in a position to take the crane down. They still had need of a crane on a part time basis for a few weeks, and so accepted the offer of the crane at a part-time rate for a few weeks. He told the site manager (Mr Behan) that it would have to stay up for now and to offer the claimants part-time work in the interim.
With a view to this, the Company contacted Mr Braney on Friday 23rd February, but
the complainant was not in a position to accept the offer, so agency workers had to be brought in at a higher total cost.The witness accepted that Mr Braney had come to complain but said that Mr Braney already knew why agency workers had to be brought in.
Mr Mousney was questioned about the validity and provenance of documents from RGA plant hire (this was cleared up subsequent to the hearing) and the safety record allegedly signed by Mr Braney on a weekly basisafterhe had left. He put forward the view that Mr Braney had simply signed the wrong dates on the documents.
The Applicable Law:
Under Section 27 (1) of the Act, “penalisation” is defined as follows:
- “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”
- “suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Act 1977 to 2001), or the threat of suspension, lay-off or dismissal”
Section 27(3)(b) states (inter alia) that an employer shall not penalise or threaten penalisation against an employee for: -
- “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”
- “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.”
- “for the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.
There is no dispute between the parties as to the essential facts of this case. The Complainants arrived on site at 8.00 A.M. and Mr Braney decided that it was too windy to operate his crane. He was perfectly within his rights to do this under the normal Health and Safety procedures carried out on site. The Respondents accepted this decision. Some two hours later they informed Mr. Braney and Mr. Lacey that their services were no longer required. If the rationale behind this decision was the fact that Mr Braney and Mr Lacey refused to operate the crane that morning, then there would be no doubt that the Respondents were in breach of Section 27(3) (b) and Section 27 (3) (f) of the Act.
The Court has carefully listened to the evidence given by the Plaintiffs and the Respondent. It finds the Respondent's version of events to be less credible. It is sustained in this view by the fact that no independent evidence from the crane hire company was forthcoming, that the Complainants were not offered part-time work until they found out that the crane was still on site even though it was accepted that there was an immediate necessity for part-time work in the site, and finally that Mr Braney allegedly signed Heath and Safety reports for a five week period after he had in fact left the company.
DETERMINATION:
It is the view of the Court that the complainants were penalised in terms of Section 27(1) of the Act for making representations to their employer under Section 27(3)(c) of the Act and for leaving a dangerous work situation as set out in Section 27(3)(f) of the Act.
The Court accordingly dismisses the appeal of the respondent in the case of Mr Braney, upholds the appeal of Mr Lacey and determines to award the sum of € 6,000 to each claimant for the breach of the Act, noting that only a minimal loss of earnings occurred in each case.
Signed on behalf of the Labour Court
Raymond McGee
5th September 2008______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.