FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : MCDONALD INTERNATIONAL LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - DAVID FLEMING (REPRESENTED BY SMYTH STAPLETON & COMPANY SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of a Rights Commissioner's Decision r-066211-hs-08
BACKGROUND:
2. The Worker was employed as a craftsman since 1999 by McDonald International Ltd. On 7th January 2008 the Worker sustained an injury to his hand which resulted in the amputation of part of a finger at St. James's Hospital. The Worker remained on certified sick leave until he returned to work on 21st April 2009 when he was immediately informed by Management that due to the fact that he was taking a civil claim for damages against the Company there was no longer any work for him and he left the premises.
The issue involves a claim by the Worker. The matter was referred to a Rights Commissioner for investigation and decision. On the 6th January, 2009, the Rights Commissioner issued his Decision as follows:
" I have no doubt that penalisation within the meaning of Section 27 of the Act has occurred in this case and accordingly I find that the complaint is well founded....I hereby require the respondent to pay the claimant €10,000 (say ten thousand euro) in compensation, which sum I consider to be just and equitable in all the circumstances of this case."
On the 16th February, 2009 the Company appealed the Rights Commissioner's Decision to the Labour Court in accordance with Section 29(1) of the Health, Safety and Welfare at Work Act 2005. A Labour Court hearing took place on the 26th March 2009.
DETERMINATION:
This is a complaint by Mr. David Fleming (the Complainant) alleging that his former employer, McDonald International Limited (the Respondent/Appellant), penalised him in contravention of Section 27 of the Safety, Health and Welfare at Work Act 2005 (the Act).
The complaint was investigated by a Rights Commissioner who found that the complaint was well-founded and awarded €10,000 compensation.
The Respondent has appealed that Decision to the Court. For ease of reference Mr. Fleming is referred to in this Determination as “the Complainant” and McDonald International Limited is referred to as “the Respondent”.
The substance of the Complainant’s claim is that he was dismissed directly as a result of his Solicitor serving a letter of claim on the Respondent dated 17th April 2008, regarding an industrial injury he incurred at his place of work in January 2008. On 17th April 2008, while still out on sick leave, his Solicitor served a claim on the Company for damages for personal injuries, loss and damage in respect of his accident.
On 18th April 2008 the Respondent telephoned the Complainant to ascertain if he was going ahead with the claim and when he replied that he was the Respondent notified him that there would be no employment for him if he pursued the claim. The Complainant reported for work on 21st April 2008 and was informed that there was no work for him because he was taking a legal action against the Company. On reflection, the Respondent took immediate steps to rectify the situation by requesting him to return to work immediately.
The Complainant was subsequently made redundant in January 2009 which matter forms no part of this case.
Summary of the Respondent’s Case
Ms. Scolard, of IBEC on behalf of the Respondent, denied that the Complainant was penalised. At the outset she raised a preliminary point holding that the Court had no jurisdiction to hear the claim.
Ms. Scolard accepted that the Complainant was dismissed on foot of his instigation of legal action and she accepted that such actions were inappropriate, hence he was immediately reinstated, with no monetary loss. However, she contended that there was no penalisation within the meaning of Section 27 of the Act.
Ms. Scolard contended that the Complainant had not exercised his rights under the Act and therefore cannot be deemed to be penalised for so doing. Accordingly, she submitted that his case is outside the remit of Section 27 of the Act and consequently the Court has no jurisdiction to hear the claim.
Summary of the Complainant’s case
Mr. John Curran, B.L., for the Complainant, contended that the Respondent’s dismissal of the Complainant in the circumstances amounted to penalisation under the Act. He held the view that the dismissal arose directly as a result of the representation made claiming damages in regard to a personal injury at work.
Arising from this action, the Complainant’s legal Counsel sought his immediate reinstatement on foot of a threat of a High Court ex parte injunction application. Along with a letter to the Respondent, Counsel for the Complainant drafted the appropriate Court documents including a Plenary Summons, Motion and Affidavit.
In a letter to the Respondent, the Solicitor for the Complainant pointed out his surprise at the dismissal of his client“because of his application for compensation in relation to his accident”and called for his immediate reinstatement. In reply the Respondent simply stated that the Complainant was not dismissed and on foot of this reply he returned to work.
Mr. Curran contended that the Act provides a mantle of protection for the Complainant when he is raising an issue relating to safety and health at work. He held that the Act places a duty of care on employers in regard to safety issues which are broadly defined and submitted that in the circumstances of this case the Complainant was penalised within the meaning of Section 27 of the Act.
The Law Applicable
The complaint is grounded on Section 27 of the Act, which 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—
(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.
- (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.
- “existing enactments and this Act and any instrument made under this Act for the time being in force”
- “(a) the enactments specified in Part 1 of Schedule 2 and any instruments made under those enactments for the time being in force, and
(b) the regulations made under the European Communities Act 1972 for the time being in force specified in Part 2 of Schedule 2”
Findings of the Court
The Court must first examine the preliminary point raised by the Respondent.
Section 27 provides that where an employee does something of the type referred to at Subsection (3) and then is subjected to unfavourable treatment by his employer on that account, that unfavourable treatment is penalisation. The Complainant’s Solicitor submitted a claim for damages due to the personal injury he suffered as a result of an industrial accident at work.
To substantiate its position, the Respondent citedPatrick Kelly T/A Western Insulation v Algirdas Girdzius, Determination No: HSD081, where the Labour Court held:
- “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 [(3)].”
Hamilton CJ and Keane J (as he then was) inTelecom Eireann v O'Grady [1998] IR 432, held the proposition that if there is nothing to modify, alter or qualify the language which a statute contains, it must be construed in the ordinary and natural meaning of the words and sentences used.
Therefore the Court does not accept the proposition that the notification of common law proceedings against the Respondent must be considered as coming within the meaning of Subsection (3). Furthermore, as the Unfair Dismissals Acts, 1977- 2007, provide special statutory protection against dismissal resulting wholly or mainly from the proposed civil proceedings, an alternative remedy was available to the Complainant and the Safety Health and Welfare Act 2005 does not need to be viewed in such broad terms as contended by the Complainant’s Counsel.
Section 6 (2) (c) of the Unfair Dismissals Act, 1977, provides that
- "…the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from…civil proceedings whether actual, threatened or proposed against the employer to which the employee is or will be a party or in which the employee was or is likely to be a witness.”
The Court, accordingly, dismisses the appeal on the preliminary point. It does not have jurisdiction to find on the substantive case. The Decision of the Rights Commissioner is overturned.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
22nd April, 2009______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.