ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00034821
Parties:
| Complainant | Respondent |
Parties | Shane Finnegan | Darland Enterprises Limited |
Representatives | Hugh O’Donnell, BL | Stafford Management Consultancy Services |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00045891-001 | 31/08/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00045891-002 | 31/08/2021 |
Date of Adjudication Hearing: 23/05/2022
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
In accordance with section 41 of the Workplace Relations Act 2015, these complaints were assigned to me by the Director General. I conducted a hearing on May 23rd 2022, at which I made enquiries and gave the parties an opportunity to present evidence in relation to the complaints. An associated complaint under the Unfair Dismissals Act has been adjudicated on and a decision has been issued under reference number ADJ-00033439.
The complainant, Mr Shane Finnegan, was represented by Mr Hugh O’Donnell, BL, instructed by Ms Catherine Fee of Catherine Fee & Company, Solicitors. Mr Finnegan was the only witness for his case. The respondent, Darland Enterprises Limited, was represented by Mr Ken Stafford, of Stafford Management Consultancy Services. The company’s managing director, Mr Noel Ryan and the transport manager, Mr Eoghan Whelan, attended the hearing and gave evidence. Before giving evidence, the witnesses swore an oath or made a solemn declaration to tell the truth.
While the parties are named in this document, from here on, I will refer to Mr Finnegan as “the complainant” and to Darland Enterprises Limited as “the respondent.”
Background:
The respondent is engaged in the transport of chemicals using heavy goods vehicles. The complainant is a welder and he joined the company in March 2006 to do container repairs. During his employment over 15 years, he also worked at repairing chemical tanks. By March 2021, he was earning €670 per week. He was dismissed when he was found to have entered a tank to carry out a repair without using a gas meter to test that the air in the tank was safe. Apart from his complaint that he was dismissed unfairly, which has already been adjudicated on, the complainant claims that he did not receive his entitlement to statutory notice of his dismissal and that he was penalised for making a complaint about health and safety. |
Summary of Complainant’s Case:
CA-00045891-001: Complaint under the Minimum Notice Act 1973 As he has complained that his dismissal was unfair, the complainant also claims that he should have received his statutory entitlement to eight weeks’ notice of the termination of his employment. CA-00045891-002: Complaint under the Safety, Health and Welfare at Work Act 2005 The complainant’s case is that his dismissal arose because he made complaints to his employer regarding health and safety issues. The complainant was involved in an accident in December 2019, when he was sprayed with acid in his eyes and face. This resulted in him being absent from work for three weeks. He subsequently initiated a personal injury claim against the respondent. He claims that this had a detrimental effect on his relationship with his employer and led to his dismissal. |
Summary of Respondent’s Case:
CA-00045891-001: Complaint under the Minimum Notice Act 1973 The respondent’s case is that the complainant was dismissed for gross misconduct and that, for this reason, he was not entitled to notice or pay in lieu of notice. CA-00045891-002: Complaint under the Safety, Health and Welfare at Work Act 2005 Following the hearing on May 23rd 2022, Mr Stafford wrote to me to ask me to take account of section 27(5) of the Safety, Health and Welfare Act 2005 which states as follows: (5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts. |
Findings and Conclusions:
CA-00045891-001: Complaint under the Minimum Notice Act 1973 In the decision, ADJ-00033439, I have concluded that the dismissal of the complainant was unfair. Based on this conclusion, I must find that he was entitled to notice. As he was in the employment of the respondent for just over 15 years, he was entitled to eight weeks’ notice. CA-00045891-002: Complaint under the Safety, Health and Welfare at Work Act 2005 The complainant produced no evidence that he made a complaint to his employer regarding a health and safety matter, and, for this reason, he cannot successfully argue that he was penalised for so doing. Apart from this finding, the complainant has made a complaint that he was unfairly dismissed and redress has been awarded to him under the Unfair Dismissals Act. He is therefore prevented from seeking redress under the Safety, Health and Welfare at Work Act. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00045891-001: Complaint under the Minimum Notice Act 1973 I decide that this complaint is well founded and I direct the respondent to pay the complainant compensation of €5,360, equivalent to eight weeks’ pay. As this is compensation for breach of a statutory right, it is not subject to deductions for tax, PRSI or USC. CA-00045891-002: Complaint under the Safety, Health and Welfare at Work Act 2005 I decide that this complaint is not well founded. |
Dated: 27-02-2023
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Pay in lieu of statutory notice, penalisation, redress under the Unfair Dismissals Act |