DWT14102

FULL RECOMMENDATION

WTC/14/109

DETERMINATIONNO.DWT14102

(R-130284-WT-13/D1 & R-130294-WT-13/DI)

SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997

PARTIES :

TEMPSIDE LIMITED

- AND -

JELENA GOLUBOVA
(REPRESENTED BY RICHARD GROGAN & ASSOCIATES)

DIVISION :

Chairman: Mr Hayes
Employer Member: Mr Murphy
Worker Member: Ms Tanham

SUBJECT:
1. Appeal against Rights Commissioner's Decision R-130284-wt-13/DI, r-130294-wt-13/Di, r-127564-wt-12/DI, r-127565-wt-12/DI.

BACKGROUND:

2. The Employee appealed two Rights Commissioner’s Decisions to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 22nd August, 2014. The Court heard both appeals on the 8th October, 2014.

DETERMINATION:

This is an appeal by Jelena Golubova against a Decision of the Rights Commissioner number r-12951 made under Section 27(1) of the Organisation of Working Time Act 1997 in which he decided that a complaint that Tempside Limited (the Respondent) infringed Section 26(1) of the Act was not well-founded. The Decision was issued on 25th July 2014. The appeal was filed with this Court on 25th August 2014 and came on for hearing on 8th October 2014.

Section 26 of the Act states

(1) An employer shall not penalise an employee for having in good faith opposed by lawful means an act which is unlawful under this Act [or the Activities of Doctors in Training Regulations ].
(2) If a penalisation of an employee, in contravention of Subsection (1) , constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to [2007] , relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts .

In this case the Complainant worked for the Respondent as a shop assistant. The Complainant was certified unfit for work from 19th November 2012 and subsequently. By certificate dated 15th January 2013 the Complainant was certified fit to return to work with effect from 2nd January 2013. The Certificate of fitness was not unconditional. It stated that the Complainant should not undertake heavy lifting as part of her duties. The Respondent received that certificate on 6th February 2014. On the same day the Respondent wrote to the Complainant bringing the normal range of duties she was expected to perform to her attention and requesting that she confer with her doctor to determine the type of work she was certified to perform. She did not respond to that correspondence.

The Complainant argues that the decision not to allow her return to work amounts to penalisation within the meaning of the Act. She argues that she had had a conversation with a member of Management on 3rd November 2012 in which he threatened her for taking proceedings against the Company under various pieces of employment legislation. She argues that when those alleged threats are taken together with the decision not to assign her work after she submitted the medical certificate on 6^thFebruary 2013 the Court must find that she was penalised within the meaning of Section 26 of the Act.

The Respondent argues that the Complainant did not provide a certificate of fitness to return to her normal duties. It argues that when asked to identify the duties she could not perform she failed to respond. It argues that in the absence of a certificate of fitness to undertake her duties it was reasonable to refuse to assign her work until the precise limits of her medical capacity were established in the interests of protecting her safety and health at work. It argues that this cannot amount to penalisation under the Act.

Having considered the evidence submitted by both parties the Court finds that the Complainant was not penalised within the meaning of Section 26 of the Act. She was not assigned work because she did not provide a certificate of fitness to undertake the duties of her post. Neither did she, when requested to do so, have her doctor particularise the type of duties she could undertake. In those circumstances it was reasonable for the Respondent to delay allowing her return to work until her medical capacity was clarified. The Court finds that the alleged incident that took place on 3rd November 2012 was not a material factor in this consideration.

Determination

The Court determines that the Complaint is not well-founded. The Decision of the Rights Commissioner is affirmed. The appeal is not allowed.

The Court so determines.

Signed on behalf of the Labour Court

Brendan Hayes
16th October, 2014______________________
JFDeputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.