FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 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. Appealing against a Rights Commissioner's Decision r-064394-hs-08/SR.
BACKGROUND:
2. This case concerns an appeal by the worker ofRights Commissioner's Decision r-064394-hs-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 instruction but was not penalised in contravention of the Act.
On 25th February, 2009 the worker appealed the Decision of the Rights Commissioner in accordance with Section 29(1) of the Safety, Health and Welfare at Work Act, 2005. 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 of 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 and was not penalised for raising his health and safety concerns.
DETERMINATION:
The claimant has alleged that he was penalised in terms of Section 27(2)(a) of the Act (in that he was suspended from work) and in breach of Section 27(3)(c) and (f) of the Act.
Section 27 (3)(c) of the Act states that an employer shall not penalise or threaten penalisation against an employee for
"making a complaint or representation to his or her safety representative or employer or the Authority (HSA) as regards any matter relating to safety, health or welfare at work".
Subsection 3(f) of the same section prevents penalisation or threatened penalisation for "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" - this to be "in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably be expected to avert".
The Company contends that the claimant was disciplined for failing to obey a legitimate instruction where all reasonable steps had been taken to ensure the safety of all workers and where an agreement had been entered into by the employer with the claimant's Trade Union to effecting a resumption of work.
The background is not essentially an issue. Following discovery of areas where asbestos was present in ceilings and where a fall of this material had occurred, the Company engaged a specialist safety company with qualifications in this field in order to contain the problem and secure the workplace, ensuring the safety of workers. The situation was explained to shift leaders, shop stewards and a full-time Trade Union Official. An agreement was received where the Company's plans to secure the area were accepted
and the employees returned to work.
The claimant was absent from work. He expressed misgivings about working in the affected area when assigned there on his return to work. He met individually with the safety specialist engaged by the Company, but was not convinced of his safety, especially in the context of having a registered disability.
The Company again requested that he return to work in the affected area, which had now been declared safe, and to do as his fellow-employees had following the clean-up and the advice of the safety consultant. He refused to do so and was suspended for two days in accordance with the terms of the Company/Union Agreement. He claimed that this constituted penalisation within the terms of Section 27 of the Act.
The Court has fully reviewed the submissions of the parties and is satisfied that the Company took all reasonable precautions and actions to present a safe workplace to its employees. It agreed to provide the claimant with an individual interview with the safety consultants in order to allay his fears.
In this context, and in the context of Section 8(2)(e) and (g) of the Act which say that the employer's duty extends to-
(e) "providing systems of work that are planned, organised, performed, maintained and revised as appropriate so as to be, so far as is reasonably practicable, safe and without risk to health".
(g) "providing the information, instruction, training and supervision necessary to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees".
The Court is of the view that the claimant should reasonably have acted under the legitimate instruction of his employer and returned to work.
The Court, therefore, finds that the claimant was suspended for failing to obey a legitimate instruction and was not penalised under the terms of Section 27(3) of the Act.
The Court so determines.
Signed on behalf of the Labour Court
Raymond McGee
14th May 2009______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.