FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 55M(11), HEALTH ACT, 2004 PARTIES : TMF MANAGEMENT (IRELAND) LIMITED - AND - VADYM KALININ DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appealing against a Rights Commissioner’s Decision r-074649-ha-09/MMG
BACKGROUND:
2. The Worker referred the case to the Labour Court in accordance with Section 55M(11) of the Health Act 2004 (as amended by Health Act 2007). The Labour Court hearing took place on 26th March 2010, the following is the Court's Determination:-
DETERMINATION:
This matter came before the Court by way of an appeal by the Complainant against a Decision of a Rights Commissioner who found that as neither the Complainant nor a representative on his behalf attended the hearing his claim fell for want of prosecution.As a preliminary point the Company submitted that the Court did not have jurisdiction to embark upon an investigation of the complaint as neither the Complainant nor the Respondent are covered by the Act. Therefore, it submitted that the Complainant lackedlocus standito maintain the proceedings.
Accordingly, the Court proceeded to consider the preliminary issue.
The appeal before the Court was brought under Section 55M of the Health Act 2004 (as amended by Health Act 2007) and provides:
Protection of Employees from penalisation for having made a protected disclosure.
55M.—(1) An Employer shall not penalise an Employee for making a protected disclosure.
Interpretation of ‘penalise’.
- 55Q.—(1) In this Part, ‘penalise’ includes any act or omission by an Employer or a person acting on behalf of an Employer that affects an Employee to his or her detriment with respect to any term or condition of his or her employment and which is consequent upon a protected disclosure by the Employee.
It was accepted by the Complainant has he does not fall within the definition of ‘Employee’ contained within the Act. The Respondent similarly stated that it did not fall within the definition of ‘Employer’ as it was a management and accounting outsourcing firm and had no connection with the HSE.
It was observed that the Complainant had inadvertently submitted a claim under the Health Act 2007, instead of under the Safety, Health & Welfare at Work Act, 2005.
For the reasons set out above, the Court is satisfied that no basis exists upon which it could hear the case under the 2007 Act.
Determination.
For all of these reasons, the Court is satisfied that the Complainant in this case does not havelocus standito bring the within proceeding and that, accordingly, the Court has no jurisdiction to hear or determine this appeal.
Accordingly, the Decision of the Rights Commissioner is varied and the appeal is disallowed.
Signed on behalf of the Labour Court
Caroline Jenkinson
19th April, 2010______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.