FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : FLYNN CONCRETE PRODUCTS LTD (REPRESENTED BY KEVIN P KILRANE & CO SOLICITORS) - AND - TIMMA GUNDARS (REPRESENTED BY PC MOORE & CO SOLICITORS) DIVISION : Chairman: Mr McGee Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appeal against the Decision of a Rights Commissioner R-058022-HS-07/JW.
BACKGROUND:
2. The Employee appealed a Decision of the Rights Commissioner to the Labour Court on 23rd June 2008 in accordance with Section 29(1) of the Safety, Health and Welfare at Work Act, 2005. A Labour Court hearing took place on the 31st March, 2009. The following is the Determination of the Labour Court:-
DETERMINATION:
The Court has considered fully the submissions put to it by the parties.
The Claimant was employed by the respondent at all relevant times.
On the 2nd November the Claimant in this case posted a complaint under this Act to the Company.
The Claimant was dismissed on November 6th 2007.
It is alleged by the Claimant that his dismissal came about as a direct result of his making a complaint under the Act which, he alleges, constituted penalisation within the terms of Section 27(3)(c) of the Act.
The Respondent states that the dismissal of the Claimant on 6th November 2007 was for the following stated reasons.
- Failure on (the Claimant's ) part to co-operate fully with an internal investigation of a complaint made (by the Claimant) against his supervisor.
- Failure to make a full use of the "chain of command" to have the complaint investigated and addressed internally.
- (His) misguided efforts to organise a Company-wide campaign against his supervisor.
- (His) attitude towards the Company and his work prior to the termination of his employment which could at best be described as unco-operative and which was leading to irreparable damage to the relationship between Employer and Employee.
The Company insisted that there was no connection between the complaint and the dismissal. There was no evidence that the letter had arrived in the Company before the dismissal of the Complainant.
The Claimant's legal representative insisted that he had posted the complaint on November 2nd , a Friday, and that it would have arrived in the Company either on the Monday (5th) of Tuesday (6th) at the latest.
The Company told the Court that it did not habitually date-stamp incoming post, so no causal connection could be established.
Given the facts that there was a complaint, followed by a dismissal, the onus is on the Company to demonstrate that there is no causal connection.
In the view of the Court, the Company has not succeeded in so demonstrating. The Court, on the balance of probabilities, prefers the evidence put on behalf of the Claimant and finds that he was indeed penalised under Section 27(1) of the Act and within the terms of Section 27(3)(c) of the Act .
The Court is of the view that an award of compensation is appropriate and measures the level of this compensation at €10,000. The Court so determines and overturns the Decision of the Rights Commissioner.
Signed on behalf of the Labour Court
Raymond McGee
20th July, 2009______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.