FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : ROBERT RAMSEY TRADING AS INDUSTRIAL ROOFING & CLADDING (REPRESENTED BY AHERN O'SHEA, SOLICITORS) - AND - JOHN COLLINS (REPRESENTED BY JOHN MCGUIGGAN B.L. AS INSTRUCTED BY ALLEN & ASSOCIATES, SOLICITORS) DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appealing against Rights Commissioner's Decision R-057377-Hs-07/DI
BACKGROUND:
2. The Company is a sole-trader roofing contractor who works mainly as a sub-contractor for H&E Costello Limited. The worker concerned was employed from October, 2002, to the 24th August, 2007. On the 16th August, 2007, he was given one week's notice that his employment would be terminated due to a sudden downturn in work. The worker believes that he was penalised by being dismissed as a result of making a personal injuries claim following an accident at work in April, 2007, something the employer denies. The worker had commenced proceedings against his employer, H&E Costello Limited and others alleging negligence causing his injuries.
The worker referred his case to a Rights Commissioner whose decision was as follows:-
"Section 27 (2) of the 2005 Act defines penalisation as including dismissal. Section 27(3) of the Act provides that an"employer shall not penalise or threaten an employee for-
- (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".
The fact that the Claimant had brought a claim for personal injuries may or may not have been a factor in the contractor's decision to change the method of paying the Respondent from "price for job" to "flat rate" and to reduce the level of work given to the Respondent. However, it is the Respondent that is the Claimant's employer and it is the Respondent who the complaint regarding a breach of Section 27 has been brought against.
Having carefully considered the submissions made by the parties, I find that the Respondent did not penalise the Claimant as a result of him taking a personal injuries claim. I find that the Claimant's job was made redundant due to a downturn in business and unsustainable wage costs. The complaint regarding the Respondent being in breach of Section 27 is, therefore, found to be not well founded".
The worker appealed the decision to the Labour Court on the 18th December, 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 11th March, 2009.
WORKER'S ARGUMENTS:
3. 1. The worker believes that he was dismissed because of the claim he brought regarding his accident on site. He received a phone call from H&E Costello Limited on the 10th August, 2007, to the effect that there was a problem on site and that he might have to leave the site. The employer also received a phone call from H&E Costello on the 13th August, 2007. He told the worker that he would have to leave the site and that it was because of the accident. Three days later the worker was dismissed.
COMPANY'S ARGUMENTS:
4. 1. The worker had to be let go because the employer could no longer afford to keep him on. The phone call from H&E Costello Limited on the 13th August, 2007, was to inform the employer of a change in the manner in which he would be paid (details supplied to the Court). The result was that it was not financially viable to retain the worker. The dismissal was not as a result of the claim being brought by the worker.
DETERMINATION:
The allegation before the Court is that the dismissal of the Claimant arose due to his having taken proceedings against his employer (a sub-contractor on site) and other parties over an industrial accident, and that this constituted penalisation of the Claimant by the Respondent employer within the terms of Section 27 of the Act.
It was further put to the Court that when the Personnel Injuries Assessment Board (PIAB) informed the employer and the main contractor on the site of the claim, the Claimant was contacted by the main contractor and told "there may be a problem and you may have to come off the site". Subsequent to this, the respondent employer asked the Claimant to take his name and that of the main contractor off the list of claim as neither has caused the accident, the Claimant said that it was not within his ability to do this and the employer would have to talk to the Claimant's solicitor. The Claimant had been told that he would have to stay away from work and off the site until the matter was resolved, but the day after he was asked to withdraw the names, he was let go on the basis of a downturn in work.
It was argued that the common law case for damages taken by the Claimant cited, inter alia "breach of statutory duty" and that, therefore, the respondent employer was in breach of Section 27 of the Act, in particular subsections (c) and (d).
The Court notes also that a case has also been taken under the Unfair Dismissals Acts, 1977-2001 and that a Claimant may not, under Section 27(5) of the Act, obtain relief under both of these statutes.
The Court does not agree that penalisation, as defined in Section 27(1) of the Act, took place under any of the individual provisions set out in Section 27(3) of the Act. The Court, accordingly, dismisses the appeal and confirms the Decision of the Rights Commissioner.
The Court determines accordingly.
Signed on behalf of the Labour Court
Raymond McGee
30th March, 2009.______________________
CON.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.