FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : HEATONS (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - CHRISTOPHER CAREY (REPRESENTED BY KEVIN P KILRANE & CO SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner’s Decision r-082667-hs-09/HS
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on 14th June 2010, and a Labour Court hearing took place on 21st March 2012
DETERMINATION:
This is an appeal by Christopher Carey against the decision of a Rights Commissioner in his complaint of penalisation contrary to s.27(3) of the Safety Health and Welfare at Work Act 2005 made against his former Employer Heatons. In this Determination Mr Carey is referred to as the Claimant and Heatons is referred to as the Respondent.
The Claimant contends that he was dismissed from his employment as Footware Supervisor for having made complaints concerning certain safety issues in the Respondent's store. The Respondent denies that the Claimant made any such complaints. It contends that the Claimant was dismissed during his probationary period for consistent under performance and because the store was experiencing. a fall off in trading.
The relevant statutory provision is as follows: -
- 27.—(1) In this section“penalisation”includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.
(2) Without prejudice to the generality of subsection (1), penalisation includes—- a.suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,
- b.demotion or loss of opportunity for promotion,
- c.transfer of duties, change of location of place of work, reduction in wages or change in working hours,
- d.imposition of any discipline, reprimand or other penalty (including a financial penalty), and
- e.coercion or intimidation.
(3) An employer shall not penalise or threaten penalisation against an employee for—- (a) acting in compliance with the relevant statutory provisions,
(b) performing any duty or exercising any right under the relevant statutory provisions,
(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,
(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,
(e) being a safety representative or an employee designated undersection 11or appointed undersection 18to perform functions under this Act, or
(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, 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.
- (4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to insubsection (2)(a).
(5)[not relevant]
(6) [not relevant]
(7) [not relevant]
- (4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to insubsection (2)(a).
It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the determent of which he or she complains was imposed“for”having committed one of the acts protected by subsection 3. Thus the determent giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the determent complained of the commission of a protected act must be an operative cause in the sense that“but for”the Claimant having committed the protected act he or she would not have suffered the determent. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.
The Court heard evidence from the Claimant and from the Store Manager who took the decision to terminate the Claimant’s employment. There was considerable controversy around whether or not the Claimant had in fact made complaints relating to health and safety issues. However, having reviewed the evidence tendered the Court is satisfied that the Claimant had received negative reviews throughout the period of his employment. He was nearing the end of his probation and the Court accepts the Respondent’s evidence that it was decided to terminate the Claimants employment because of his under performance. The Court accepts that there were good and sufficient reasons justifying the Respondent's decision in that regard.
In these circumstances, regardless of whether or not the Claimant had made complaints concerning health and safety issues his negative reviews and the Respondent’s general dissatisfaction with his work performance was the operative reason for the dismissal.
Determination
The Court is satisfied that the Clamant was not penalised within the statutory meaning of that term. The decision of the Rights Commissioner is affirmed and the within appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
11th April, 2012______________________
JMCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.