FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005 PARTIES : BURNSIDE AUTOCYL (TULLOW) (REPRESENTED BY MANAGEMENT SUPPORT SERVICES) - AND - GARRY KEOGH (REPRESENTED BY SEAN ORMONDE & CO. SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision R-117654-HS-11/DI.
BACKGROUND:
2. The case before the Court concerns the Worker's appeal of Rights Commissioner's Decision No: R-117654-HS-11/DI, submitted to the Labour Court in accordance with Section 29(1) of the Safety, Health and Welfare at Work Act, 2005. A Labour Court hearing took place on the 13th February, 2013. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Burnside Autocyl (Tullow) Limited against the decision of a Rights Commissioner in a claim of penalisation by Mr Garry Keogh made pursuant to s.27 of the Safety Health and Welfare at Work Act 2005. In this determination the parties are referred to as they were at first instance. Hence, Mr Keogh is referred to as the Claimant and Burnside Autocy (Tullow) Limited is referred to as the Respondent. The Rights Commissioner found that the Claimant had been penalised in being dismissed for having refused to undertake work which he regarded as unsafe.
The Dispute
The Claimant was employed by the Respondent on 7thMarch 2011. He was dismissed on 26thAugust 2011. The motive or reason for the dismissal is at the centre of this dispute. The Claimant contends that he was asked to undertake work which he regarded as dangerous. The Respondent contends that the Claimant was dismissed for refusing to carry out a legitimate instruction and that his refusal in that regard was aggravated by his aggressive attitude towards his managers.
The Respondent produces hydraulic cylinders. The Claimant was employed in the operation of a robotic welding machine. On 24thAugust 2011 the Claimant was instructed by his shift supervisor, Mr Smith, to operate two machines simultaneously. The Claimant refused to follow that instruction. The supervisor reported the matter to the Human Resources Manager, Ms Byrne. Ms Byrne arranged to meet with the Claimant on 26thAugust 2011 in relation to that matter. This meeting was also attended by Mr Smith and Mr Murphy who was the Claimant’s manager. The Claimant was then on probation and Ms Byrne dismissed him summarily.
Position of the Parties
The Court heard oral evidence from the Claimant, Mr Smith, Ms Byrne, Mr Alan Mullins (who was involved in the Claimant’s initial training) and Mr Murphy.
The Claimant’s evidence was to the effect that he considered the practice of operating two welding machines simultaneously to be dangerous. He said that he had been told this during his initial training and on a previous occasion on which he did so the machine went on fire. According to the Claimant he told Mr Smith that he would not follow the instruction to operate the second machine for reasons of safety and that he gave the same explanation to Ms Byrne at the meeting of 26thAugust 2011.
Mr Smith, Mr Mullins and Mr Murphy testified that operating two welding machines simultaneously was common practice and there was nothing unsafe in that practice. They also denied that a machine had gone on fire on a previous occasion. Mr Smith told the Court that on a previous occasion a machine had fused but it had not gone on fire. The machine had closed down automatically when this occurred. According to Mr Smith this incident was unrelated to the fact that two machines were running simultaneously. According to Mr Smith the Claimant had never referred to safety issues in refusing to operate the second machine. In her evidence Ms Byrne said that at the meeting of 26thAugust 2011 the Claimant never mentioned safety consideration as an explanation for his refusal to follow Mr Smith’s instruction. Ms Byrne’s version of that meeting was supported by the testimony of Mr Smith and Mr Murphy.
In his evidence Mr Mullins denied ever having told the Claimant that operating two machines together was dangerous. He said that it was common practice within the employment.
Conclusion
Having evaluated the evidence tendered the Court has come to the conclusion that the version of events given by the witnesses who gave evidence on behalf of the Respondent is to be preferred over that given by the Claimant. Accordingly, the Court accepts that the Claimant did not raise any safety issues as an explanation for his refusal to follow Mr Smith’s instruction to operate the second machine. The Court is further satisfied that there were no legitimate grounds upon which the Claimant could have considered the operation of two machined to be unsafe. In that regard the Court does not accept the Claimant’s evidence that a machine had gone on fire on a previous occasion on which he had operated two machines together.
The Court is satisfied that the Claimant was dismissed for reasons of insubordination and not for having raised issues of health and safety. According the decision of the Rights Commissioner cannot stand.
Determination
The appeal is allowed and the decision of the Rights Commissioner is set aside.
Signed on behalf of the Labour Court
Kevin Duffy
6th March 2013______________________
SCChairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.