UD804/2012, RP635/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIMS OF:                                                                                                 CASE NO.

EMPLOYEE,                                                                                                             UD804/2012

-claimant                                                                                                         RP635/2012

against

EMPLOYER

                                        -respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Mr. C.  Corcoran B.L.

Members:        Mr. M.  Noone

                        Mr. F.  Keoghan

heard this claim at Dublin on 30th August 2013

Representation:

Claimant:

Respondent:  In persons

Background:

The claim under the Redundancy Payments Acts 1967 to 2007 was withdrawn from the outset.

This case is before the Tribunal by way of an employee claiming constructive dismissal.  The claimant’s representative contends that there was a unilateral reduction in wages and that the claimant had a number of concerns with health and safety matters. 

Claimant’s case:

The Tribunal heard evidence from the claimant.  He was a line operator with the respondent company.  He worked on a machine that transported and dipped aluminium in acidic liquids for electroplating.  His hours were 6.00 am to 3.00 pm and his hours changed to 8.00 am to 5.00 pm circa 2010.  He was the only line operator however when he went for his lunch other workers would do his work. 

His hourly rate of pay was €15.70 due to a raise in June 2010 and this continued for circa 18 months until one week before he left it was reduced to €12.70.  This was one week after he had phoned the Health and Safety Authority (HSA). 

He had contacted the HSA because in May 2010 he suffered sulphuric splashes on his upper arms and face.  He had personal protective equipment (PPE) such as goggles and apron but his upper arms and areas of his face were not covered.  The splashes happened because he had to manually lift buckets and chemicals exploded into his face.

The other reason was because of fumes in the workplace.  In August 2011 they got a new nickel plating / steel and/ or brightening aluminium steel system.  There were no fans in place to dispel fumes and he could not see the other end of the room because of the fumes.  He got stomach cramps because of the fumes and was sick for three days.  He knew it was because of the fumes because another worker suffered the same pains.  They told the owner (PG) and the owner’s son (NG).  NG did not revert to him and PG said he would put fans in place.  The fans were not installed and he had to ask PG three or four times.  Because he got no response he phoned the HSA.   The HSA arrived and they told the respondent to install fans.

After that his wages were reduced to €12.70.  They cut his wages down because they knew he could not work for that amount and that he would have to leave.   He asked for his form p45 because he was leaving and he was leaving because of the conditions, that is, because of the reduction in wages and the fumes.  To get his p45, NG told him that he would have to sign a letter to say that he was resigning and he sign the letter. 

The claimant explained that if the fans had been installed and his wages not reduced he would still be in the job today.

Respondent’s case:

The Tribunal heard evidence from the financial controller.  He explained that the respondent is a caring employer and values their workers.  He did not know that the claimant phoned the HSA.  Regarding the claimant’s wages he had a conversation with the claimant on or about 23^rd June 2010.  The claimant told him that he would have to leave the employment because he was unable to meet his financial commitments.  He said he would be better off on social welfare payments.  He had asked the claimant what amount that he would be better off by and the claimant told him it would be €90.00 net.  He went to NG and he did some calculations to see what they could do for the claimant.  They agreed to increase his wage by €90.00 net for a period of time.  They increased his wage for a period of time to circa October 2011.  They met in October 2011 and extended the period of time however he told the claimant that it was their intention to revert back to his previous wages. 

Regarding the claimant’ resignation the claimant told him that he was going to work for his brother in law and the claimant signed his resignation letter. 

Regarding the fans they are in place and have been for more than one year.

The Tribunal heard evidence from SG who is the owner’s daughter and sister of NG.  She highly disputes the claimant’s assertion regarding the splashes of acid.  They issued personal protective equipment to the employees and gave training to the employees.   Regarding the convulsions/ stomach pains the claimant did not submit medical certs for those and there is no record of an incident/ accident.  As regards the HSA they are entitled to call anytime they wish to. There are fans and extraction system in place. 

In clarification to the Tribunal the witness explained that if the fumes were as bad a made out the area would have to be evacuated.

Determination:

The Tribunal having heard the evidence adduced are of the view that a constructive dismissal case occurred.   The Tribunal awards the claimant the sum of €20,000.00, as compensation, under the Unfair Dismissals Acts, 1977 To 2007.

The claim under the Redundancy Payments Acts 1967 to 2007 was withdrawn.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)