FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : GERNORD LTD T/A GERFLOR (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr McGee Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Appeal of Recommendation of Rights Commissioner r-064391-ir-08/SR
BACKGROUND:
2. This case concerns an appeal by the worker of Rights Commissioner's Recommendation r-064391-ir-08/SR.
The issue concerns a worker who was absent on sick leave and learned on his return to work that an asbestos spill had occurred from the ceiling in the area he was assigned to.
It is alleged that he raised concerns in relation to the safety of continuing to work in the area and was subsequently penalised through suspension.
Management contend that it did all it could to alleviate the workers' fears by engaging a specialist consultant on the relevant issues and by holding information meetings with workers, shop stewards and the workers' trade union official. Subsequent agreement between the parties resulted in a return to work. It is further alleged that the worker in question was offered a meeting with the consultant to alleviate any fears he may have had.
The matter was referred to a Rights Commissioner for investigation. His Decision issued on 18th February, 2009 and found that the worker had been suspended for two days in line with the "In House" Agreement for failing to obey a legitimate management instruction and that the employer had acted reasonably and in line with its own procedures and best practice.
On 25th February, 2009 the worker appealed the Decision of the Rights Commissioner in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 7th May, 2009.
WORKER'S ARGUMENTS:
3 1 On resumption of work, the worker was assigned to an area which he felt was unsafe. He raised his concerns with management and felt he could not work in that area. He was subsequently suspended, which amounts to penalisation for raising issues relating to Health and Safety.
COMPANY'S ARGUMENTS:
4 1 Management did everything in its power to alleviate the worker's concerns. On his return to work, management explained what had occurred, the meetings that had taken place and its plan of action in relation to the containment of the asbestos. The worker was also offered an individual meeting with the specialist consultant to discuss any further concerns.
2 Other workers had returned to work after an agreement was concluded between management, the workers and their trade union representative. The claimant in this case was one of only two workers who refused to return to work.
3 On the basis of all efforts made by management, the return to work of other staff members and the refusal of the worker to resume work, he was suspended for failing to follow a legitimate management instruction.
DECISION:
In all of the circumstances, taking consideration of the submissions made to it by the parties, the Court confirms the Recommendation of the Rights Commissioner and so decides.
Signed on behalf of the Labour Court
Raymond McGee
14th May 2009______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.