HSD145

FULL RECOMMENDATION

HSC/14/13

DETERMINATIONNO.HSD145

(R-116072-HS-11/DI)

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005

PARTIES :

STOBART IRELAND DRIVER SERVICES LTD
(REPRESENTED BY PURDY FITZGERALD SOLICITORS)

- AND -

KEITH CARROLL
(REPRESENTED BY MATTHEW JOLLEY B.L., INSTRUCTED BY BOWLER GERAGHTY & COMPANY SOLICITORS)

DIVISION :

Chairman: Ms Jenkinson
Employer Member: Ms Cryan
Worker Member: Mr Shanahan

SUBJECT:
1. Hearing arising from HSD131.

BACKGROUND:

2. This dispute concerns the Worker's claim that he was unfairly dismissed after making a health and safety complaint to the Company, in contravention of Section 27 of the Safety, Health & Welfare Act, 2005. This dispute was referred to a Rights Commissioner for investigation and recommendation. On the 29th August, 2012 the Rights Commissioner issued the following Recommendation:-

- "I find the [Worker's] complaint to be well-founded. I require the [Company] to reinstate the [Worker] with effect from 20th October, 2011 ... on his previous terms and conditions of employment ... [and] to compensate the [Worker] in full for his loss of wages from 20th October, 2011 to the date this decision is implemented. His loss of wages is to be calculated using the average weekly wage earned from 1st January to 12th October, 2011"
The Employer appealed the Rights Commissioner's Decision to the Labour Court on 3rd September, 2011, and a Labour Court hearing took place on 12th December, 2012.The Labour Court issued its Determination on 17th January, 2013. The Employer appealed the Labour Court's Determination on to the High Court, the High Court upheld the Labour Court's Determination and referred the case back to the Labour Court, to issue a Determination on the Claimant's loss of income.

DETERMINATION:

The issue before the Court concerns the referral to the Labour Court by the President of the High Court following an appeal by Stobart Ireland Driver Service Limited of Labour Court Determination HSD131, wherein Justice Kearns upheld the Determination of the Labour Court.

For ease of reference the parties are given the same designation as they had at first instance. Hence Stobart Ireland Driver Services Limited will be referred to as “the Respondent” and Mr. Keith Carroll will be referred to as “the Complainant”.

In its Determination which was adjudicated upon in a complaint made pursuant to Section 27 of the Safety Health and Welfare at Work Act 2005, the Labour Court determined as follows:-

Determination

For the reasons set out above the Court finds the Complainant’s claim to be well-founded. The Rights Commissioner required the Respondent to reinstate the Complainant with effect from 20^thOctober 2011, on his previous terms and conditions of employment, including where those terms and conditions were changed in the interim by a collective agreement. The Court upholds this part of the Rights Commissioner’s Decision and concurs with the direction of the Rights Commissioner to the Respondent as outlined above. Therefore, the Court directs the Respondent to reinstate the Complainant with immediate effect.

Furthermore, the Court directs the Respondent to compensate the Complainant for loss of earnings incurred from 20^thOctober 2011 up to the date of his reinstatement. His loss of earnings should be calculated based on the Complainant’s average weekly earnings between 1^stJanuary 2011 and 13^thOctober 2011. In this respect the Court varies this part of the Rights Commissioner’s Decision accordingly.

Therefore, the Respondent’s appeal is disallowed.

As the issue of loss of income arising from the Complainant’s termination of employment could not be resolved between the parties, it was referred back to the High Court who in turn remitted it back to the Labour Court with guidance that a payment of €9,447.00 is off set against payments for loss of income.

The original Determination of the Court states that the loss of earnings should be calculated on the Complainant's average weekly earnings between 1^stJanuary 2011 and 13^thOctober 2011. That is a period of 41 weeks. Based on figures supplied the average weekly earnings were €602.38. This figure is multiplied by 118 weeks i.e. from 20^thOctober 2011 up to 26^thJanuary 2014, the date of his reinstatement, therefore it was identified that the gross loss of wages for this period was €71,080.84. This figure must be offset by €9,447.00, therefore the loss sustained by the Complainant amounts to €61,633.84.

The Respondent submitted that in addition to the offset amount determined by the High Court, this amount should also be offset by any monies he earned within that period.

Having taken account of the High Court’s directions and having heard the submission of both parties the Court in the particular circumstances of this case does not accept the Respondent’s contention that its liability should be reduced by the Complainant’s efforts to support his family financially while awaiting the outcome of the Respondent’s appeal to the High Court.

Accordingly, the Court hereby determines that the Respondent should pay the sum of €61,633.84 to the Complainant within six weeks of this Determination.

The Court so Determines.

Signed on behalf of the Labour Court

Caroline Jenkinson
5th November, 2014______________________
JMcCDeputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.