FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : BOYLAN PRINT LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - IVETA OZOLINA (REPRESENTED BY LAURA RAFFERTY, B.L. INSTRUCTED BY RICHARD GROGAN & ASSOCIATES, SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appealing against a Rights Commissioner's Decision r-091140-hs-10/JW
BACKGROUND:
2. The Employee appealed a Rights Commissioner's Decision to the Labour Court on the 27th July 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 4th March, 2011.
The following is the Determination of the Court:-
DETERMINATION:
This is an appeal by Iveta Ozolina (the Complainant) against the Decision of a Rights Commissioner in her claim of penalisation under the Safety Health and Welfare at Work Act 2005 (the Act), against her Employer, Boylan Print Limited (the Respondent). The Rights Commissioner found that the complaint was not well-founded.
The essence of the Complainant's case is that she made certain complaints to the Health and Safety Authority (HSA) and to a Rights Commissioner concerning alleged breaches of the Act. It is uncertain when the complaint was made to the HSA but the complaint to the Rights Commissioner was made in or about November 2009. Concurrent with that claim the Complainant also brought claims against the Respondent under other employment rights legislation, including a claim under the Terms of Employment (Information) Act 1994. The latter claim related to the Respondent's failure to provide her with written particulars of her conditions of employment.
In or about February 2010 the Respondent furnished the Complainant with a written contract of employment. In a covering note the Respondent appeared to indicate that the contract was for a fixed-term although it was clear from the terms of the contract itself that it was one of indefinite duration.
The Complainant contends that the Respondent altered her conditions of employment by purporting to place her on a fixed-term contract rather than one of indefinite duration. She claims that this constituted a detriment within the meaning of Section 27(1) of the Act. She further contends that this detriment was imposed because she had raised matters concerning alleged breaches of the Act with both the HSA and a Rights Commissioner.
The Respondent denies that the Complainant's conditions of employment were altered. They say that the Complainant was employed as a casual worker and this was reflected in a covering note to the contract. They say that the contract was issued in response to the claim made under the 1994 Act and was in no way related to the claim under the Act of 2005.
Conclusions of the Court
There is no evidence whatsoever to establish any casual connection between the complaints made under the Act and the issuance of the impugned contract. Moreover, it is clear from the terms of the contract itself that it was not for a fixed-term and could not have been construed as such. The contract did not in fact come to an end and the Complainant remains in the employment of the Respondent.
In these circumstances the Court cannot see any basis upon which it could be held that the Complainant suffered a detriment or that she was penalised within the statutory meaning of that term.
Determination
Accordingly, the Court upholds the Decision of the Rights Commissioner and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
11th March, 2011______________________
JFChairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.