FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : ALLIED FOODS LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - KARL STERIO (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr McGee Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appealing Against A Rights Commissioner's Decision R-067840-Hs-08/Jc
BACKGROUND:
2. The worker was employed as a General Operative by the Company. In May 2008 he discovered his forklift license was out of date and he alerted the Company. Following clarification from the Health and Safety Authority the worker was moved to alternative duties. The company set up a refresher training course for workers with expired licences. It is the worker's claim that he was overlooked for this training initially and that he was impeded in returning to the contract he was working on. The Company argues that the worker was put on the training course and recieved his Certificate of Competence a little over a month since the licence expiry had been brought to the Company's attention. As a General Operative, the worker can be moved to numerous areas, subject to training.
The worker referred his case to the Rights Commissioner under Section 27 of the Health, Safety and Welfare at Work Act, 2005. The Rights Commissioner issued her Decision on the 12th January, 2009 as follows:
"In all circumstances I declare that the complaint is well founded. I require the respondent to relocate the claimant back to the duties he was performing immediately before the 22nd May, 2008 and to pay him compensation in the amount of €5,000 which I believe is just and equitable having regard to all the circumstances of this case"
The Company appealed the Rights Commissioner's Decision on the 19th February, 2009 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 29th May, 2009.
DETERMINATION:
Having considered the submissions and other material submitted by the parties, the claimant had a right to make the enquiry, which he did of the HSA concerning forklift licences. In the view of the Court, what occurred subsequent to this complaint i.e, not putting the claimant on the refresher course, and his subsequent loss of earnings, constituted penalisation as defined in S.27(1) and S.27(2) of the Act following a complaint made within the terms of S.27(3)(c) of the Act.
Taking the circumstances of the case into account, and being mindful of the principles laid down by the ECJ in the case of "Van Colson & Kamann v Land Nordhein - Westfalen" [1984] ECR 1891, where an individual right is infringed, the judicial redress provided should not only compensate for the claimant's economic loss but must provide a real deterrent against future infractions, the Court varies the Rights Commissioner's determination to provide for total compensation of €6,000 and so determines
Signed on behalf of the Labour Court
Raymond McGee
29th July, 2009______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.