LCR21218

FULL RECOMMENDATION CD/15/358 DECISIONNO.LCR21218 r-151250-ir-14/EH INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : KEEGAN PRECAST LTD (REPRESENTED BY MS DO�REANN N� MHUIRCHEARTAIGH B.L., INSTRUCTED BY MALONE & MARTIN SOLICITORS) - AND - A WORKER (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Haugh Employer Member: Ms Cryan Worker Member: Mr McCarthy

SUBJECT:
1. An appeal of a Rights Commissioner's Decision no r-151250-ir-14/EH.


BACKGROUND:

2. This case concerns a claim that the Worker was assaulted while at work and given a
verbal warning as a result. The Worker also claims he was not given a copy of the
Company Safety Statement.

The Employer said the Worker was seen climbing to the top of an inline conveyor, several
meters above the ground and walking with both hands in his pockets. The Employer,
concerned for the safety of the Worker and to stop this continuing behaviour took hold of his
clothing until he took his hands out of his pockets and held onto the safety rail. He was given
the verbal warning for breaching safety policy.

The Worker said the Decision of the Rights Commissioner was fair and reasonable.

This matter was referred to an Adjudication Officer for investigation and Recommendation.
On the 11th November 2015 the Adjudication Officer issued the following
Recommendation:-

Based on the uncontested evidence before the hearing I find as follows:-

• 1)Assault
  I recommend that the employer undertakes not to assault this employee again.
  
  2)Sanction of Verbal warning
  I recommend that this sanction is withdrawn.
  • 3)Safety Statement
    I recommend that the employer prepares and issues safety statement in the native language of the employees.
    
    I recommend the employer pays €750 in compensation for the unfair treatment.

The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on the 11th November 2015 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

A Labour Court hearing took place on the 11th April 2016.

UNION’S ARGUMENTS:

3. 1. The Safety Statement is not in the Workers native language.

2. There are no procedures in place for the Worker to follow.

3. There was no investigation meeting before the warning was given.


EMPLOYER’S ARGUMENTS:

4. 1. The Worker was in breach of health and safety procedures while walking on the inline conveyor with his hands in his pockets.

2. The Worker breached safety policy and was given a verbal warning.

3. The Safety Statement is located on site in the manager’s office.

DECISION:

This is an appeal by Keegan Precast Limited against the Recommendation of the Rights Commissioner in a claim by the Worker under section 13 of the Industrial Relations Act 1969 (‘the 1969 Act’). In this Recommendation Keegan Precast Limited is referred to as the Respondent.

This appeal was conjoined with a number of other appeals involving the same parties under:

• 
  • the Organisation of Working Time Act 1997, which appeal was withdrawn by the Respondent before the hearing date;

  • the Unfair Dismissals Act 1977 in which the Court issued Determination UDD168;

  • the Payment of Wages Act 1991 in which the Court issued Determination PWD1610;

  • Terms of Employment (Information) Act 1994 in which the Court issued Determination TED1612.

The Rights Commissioner issued his decision under the 1969 Act in favour of the Worker on 30 September 2015. The Respondent’s appeal therefrom was received by the Court on 11 November 2015.

It is common case that the Worker commenced employment with the Respondent as a General Operative on 4 July 2005 and his employment terminated in July 2014.

The Dispute

The dispute between the parties that arises for consideration in this appeal relates primarily to an incident that occurred on 20 June 2014. At approximately 10.00 a.m. on that date, the Worker was observed by the Respondent’s Managing Director climbing on top of the Inline Conveyor at the company’s block plant. The Worker was allegedly walking several meters above ground level with his hands in his pockets while ascending the conveyor. The Worker’s actions were perceived by the Managing Director to be dangerous and in breach of health and safety good practice. It is not disputed that the Managing Director intervened and sought to prevent the Worker from continuing with the behaviour described.

The Respondent submits that the Managing Director took the minimum action needed to minimise the risk of injury or accident to the Worker: the Managing Director took hold of the Worker’s clothing and maintained his grasp of it until the Worker took his hands out of his pockets and held onto the safety rails. The Respondent submits further that this action was not intended to harm the Worker and did not do so in any way.

The Worker, on the other hand, denies that he had been walking on the conveyor in an unsafe manner as alleged by the Respondent. He submits that the Managing Director grabbed him by his shirt and thereby assaulted him.

In any event the Worker was issued with a written warning by the Managing Director following the events of 20 June 2014. No investigation or other disciplinary procedure took place prior to the warning issuing. The Worker lodged a formal appeal against the written warning. However, his appeal was never considered by the Respondent.

The Parties’ Positions

It is submitted on the Worker’s behalf:

• 
  • The incident of 20 June 2014 and its aftermath are encompassed within the meaning of ‘trade dispute’ for the purposes of the 1969 Act and were properly before the Rights Commissioner under section 13 of that Act;

  • The written warning which was issued to the Worker following the events of 20 June 2014 was not preceded by any procedure and therefore the warning should be formally withdrawn by the Respondent;

  • As Russian is the Worker’s native language (and that of 14 of the 25 or so of the workers currently employed by the Respondent), he should have received a safety statement from the Respondent in Russian.

The Respondent submits:

• 
  • The incident of 20 June 2014 is not a trade dispute for the purposes of the 1969 Act;

  • The warning given on foot of the incident of 20 June 2014 was appropriate, proportionate and necessary for the safety and wellbeing of the Worker and his colleagues;

  • The Worker has no absolute right to a safety statement in his native language; in the 9 or so years he had worked for the Respondent, the Worker never expressed any difficulty about communication in English with the Respondent; neither had he sought a safety statement in his native language.

Discussion

The meaning of “trade dispute” for the purposes of the Industrial Relations Acts 1946 to 2015 is to be found in section 3 of the Industrial Relations Act 1946:

• • ‘the expression “trade dispute” means any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment, of any person and includes any such dispute or difference between employers and workers where the employment has ceased’

Subsections (2) and (3) of section 13 of the 1969 Act provide:

• • ‘(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

    (3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

    • • (i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and
    (ii) notify the Court of the recommendation.’

Each of the matters complained of by the Worker in this case incontrovertibly and self-evidently comes within the meaning of ‘trade dispute’ for the purposes of the Industrial Relations Acts 1946-2015.

The Court takes no view as to whether the Managing Director’s intervention on the 20 June 2014 amounts to an assault of the Worker. However, it is clearly an affront to natural justice for a manager (i) to engage in disciplinary action against a worker in relation to a matter with which that manager had a direct involvement (as admitted in this case); (ii) to issue a written or any warning to a Worker without first causing a fair and impartial disciplinary investigation to take place; and (iii) to fail to ensure that any appeal from a disciplinary warning initiated by the Worker is processed.

The issue of whether a Worker has been presented with a safety statement in a language that is comprehensible to him or her is also a matter that comes within the meaning of ‘trade dispute’. However, this matter is moot in so far as the Worker in the instant case is concerned.

Recommendation

In all the circumstances, the Court is of the view that the Respondent should pay the Worker €1,500.00 compensation in recompense for its failure to comply with its own disciplinary procedures and with the principles of natural justice in its handling of the incident that occurred on 20 June 2014.

Signed on behalf of the Labour Court



Alan Haugh
CR______________________
3rd May, 2016.Deputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.