FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : STOBART IRELAND LTD (REPRESENTED BY PURDY FITZGERALD SOLICITORS) - AND - NOEL RATTIGAN (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appealing against a Rights Commissioner's Decision R-093936-HS-10/EH
BACKGROUND:
2. The case before the Court concerns a claim by the Union on behalf of its member in relation to an incident that resulted in the dismissal of the Claimant. The Claimant was employed by the Company as a truck driver delivering goods to retail outlets nationwide and in addition he carried out shunting duties at the Company's distribution centre based in County Dublin.
The alleged incident took place when the Claimant reported for shunting duties and commenced his shift by acknowledging and accepting the required procedures involved in shunting. The most important procedure was to ensure that a trailer under no circumstances was to be moved from a loading bay unless it was secured by a green light. It was crucial that a trailer was not moved from the loading bay under a red light. The Claimant was directed to move three trailers in this instance. On moving the second trailer, the Claimant noticed that the green light changed to red after he had moved the trailer from the bay. The Claimant immediately stopped the vehicle and reported the incident. The Claimant contends that the lighting system was defective and that the light changed colour after he had moved the vehicle. He was subsequently suspended with pay pending the outcome of an investigation. The Claimant was called for a disciplinary hearing and afterwards was notified in writing of his dismissal. The Claimant appealed the outcome. However the Company upheld the decision to dismiss the Claimant. The Company contend that the Claimant was fairly dismissed for gross misconduct for failing to carry out his duties in line with Company procedures.
The Claimant referred his case to the Rights Commissioner under Section 27 of the Health, Safety and Welfare at Work Act, 2005. The Rights Commissioner issued his Decision on the 15th November, 2010 as follows:
"I find that no evidence was produced to demonstrate that a complaint had been made by the Claimant concerning a faulty light system and that on foot of that alleged complaint the employer had penalised him by dismissing him for making the complaint.
As per Sec 28 (3) (a) I declare that the complaint is not well founded and that it fails".
The Claimant appealed the Rights Commissioner's decision to the Labour Court on the 1st December 2010, in accordance with Section 29(1) of the Safety, Health and Welfare at Work Act, 2005. A Labour Court hearing took place on the 24th March, 2011. The following is the Determination of the Court:
DETERMINATION:
This case is before the Court pursuant to s.29 of the Safety, Health and Welfare at Work Act, 2005 alleging penalisation of the Claimant within the meaning of s.27 of that Act.
It seems to the Court, as a matter of probability, that the Respondent may not have become aware of the facts giving rise to the Claimant's dismissal had he not reported the incident in issue. In that sense it could be said that his dismissal resulted from his decision to report the incident. But the dismissal wasforhaving moved his vehicle while a red light was showing and not for having made the complaint.
The question of whether the incident could constitute substantial grounds justifying dismissal in all the circumstances of the case, or whether the sanction of dismissal was a proportionate sanction is not one for the Court and could only be considered in another forum and under different statutory provisions.
On the facts of this case the Court must conclude that the dismissal of the Claimant could not be construed as penalisation within the statutory meaning of that term for the purposes of the Act under which it is brought.
The decision of the Rights Commissioner is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
12th April 2011______________________
SCChairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.