The Gazette 1978

GAZETTE

MAY 1978

Buckley v. National Employers

Mutual

General

Insurance

Association

Ltd..

Federated

Employers Insurance Association

and the Norwich Union Fire

Insurance Society Limited

—

Supreme Court (per O'Higgins, C. J.

with Kenny and Parke, J. J.) —

unreported - 6 October, 1977.

LABOUR LAW

A decision of the Redundancy

Appeals Tribunal granting compen-

sation to an employee whose dis-

missal was not in accordance with

the provisions of the Minimum

Notiece and Terms of Employment

Act, 1972, cannot be upset because

the question as to whether the refusal

to obey an order is a ground for

summary dismissal — such as to dis-

entitle an employee to the notice for

which the Act provides — is a

question of fact to be determined con-

clusively by the Tribunal.

In July, 1976, the first-name

respondent was dismissed by the

Appellant without notice but sub-

sequently he received one week's

compensation for the failure of the

appellant to give him the prescribed

notice as required by section 4 of the

Minimum Notice and Terms of

Employment Act, 1973, which in his

ease, having regard to the period of

his employment by the appellant,

amounted to eight weeks.

Section 8 of the Act provides that

"Nothing in this Act shall affect the

right of any employer or employee to

terminate a contract of employment

without notice because of mis-

conduct by the other party." The

appellant claimed that the first-named

respondent disentitled himself to the

presscribed notice by virtue of his

failure to comply with a lawful and

reasonable order of the appellant.

The Re d u n d a n cy Appe a ls

Tribunal decided that the first-named

respondent was entitled to com-

pensation and held that the refusal to

carry out the order "fell short of mis-

conduct as envisaged by the Act".

The decision of the Tribunal, by

section 11 (2), is final and con-

clusive, and a right of appeal to the

High Court only exists in respect of

questions of -Jaw. The appellant

appealed against the decision on the

ground that the Tribunal misdirected

itself in law in holding that the refusal

to obey the order fell short of mis-

conduct as envisated by the Act.

Held (per Hamilton J.): the

question as to whether the order

given by the appellant to the first-

named respondent was, having

regard to the terms of his employ-

ment, a lawful and reasonable order

is a quéstion of fact to be determined

by the Tribunal and that this deter-

mination is final and conclusive if

there is evidence to justify it.

Hamilton J., having satisfied himself

that there was such evidence, dis-

missed the appeal.

Anne Moen Brewster v. Thomas

Burke and the Minister of Labour —

The High Court (Hamilton J.) —

unreported — 8 February, 1978.

NEGLIGENCE

Employers Liability. Where

risk or

danger in system of work becomes

manifest and simple means of

avoiding it is known to the Employer,

the Employer is negligent if he

permitted the risk of or danger to

continue.

This was an Appeal to the

Supreme Court from an Order of Mr.

Justice McMahon in the High Court

withdrawing the case from the Jury

on the basis - that there was no

evidence of negligence.

The Plaintiff claimed damages in

respect of personal injuries suffered

by him when he fell from a lorry

while assisting in the loading of same

at the Defendant's premises in Cork.

The Plaintiff had been employed by

the Defendant since 1951 as a lorry

driver until seven months prior to his

accident And in the Mill up to the

time of his accident. There was

evidence that lorries were loaded with

bags of meal by parking same under

a chute at the Mill. It was normal

practice to load the lorries from the

front to the rear; further that those

engaged in such loading found it

desirable to have a strip of timber

nailed across the rear of the lorry.

This strip of timber was intended to

act as a footguide to the loader. The

reason for this appeared to be that

the loader generally would be looking

up towards the chute while placing or

about to place a bag on his shoulder

and as he came to the end of the

platform his foot might go over the

edge bccausc he would not be looking

down.

The Plaintiff's evidence was to the

effcct that on the day of the accidcnt

he was asked to assist in completing

the loading of a lorry already

partially loaded by its driver. To do

so he moved the lorry into a position

in which the rear of the lorry was

under the chute and he then

proceeded to start loading. There

were three or four bags in the chute

held in position by a piece of timber

at the end of the chute. The Plaintiff

did not look at the end of the lorry to

see whether there was a strip or not.

He was accustomed to having a strip.

He started to take the first bag and

then proceeded to place his feet in

position and suddenly went over the

edge and fell. There was no lorry in

question.

Held: (per O'Higgins (J.) that

1. The Defendants, as the Plaintiffs

employers, were under a duty so

to carry out their operations as

not to expose him and other

employees to unnecessary risks.

2. While an employer cannot be

liable when injuiy or damage is

suffered from one of the in-built

risks of the employment in the

absence of negligence, when a risk

or danger becomes manifest and a

simple means of avoiding or

overcoming it is to hand and is

known to the employer, then it

would be negligence on the

employer's part if the permitted

the risk of danger to continue.

3. In this case, the risk of a loader on

the platform missing the end of

the platform of a lorry by looking

p towards the chute and bracing

himself to receive the weight of a

bag or sack was known for many

years to all those engaged in this

form of loading. To minimise this

risk these wooden strips at the end

of the lorries were asked for by

the workers and provided by the

D e f e n d a n t s .

s u ch

circumstances, for the employers

to allow a lorry without a strip to

be used by a loader accustomed

to having one might well be

r e g a r d ed as c o n s t i t u t i ng

negligence.

4. On the evidence a Jury could find

that the employers ought to have

provided a strip and could

accordingly be regarded as having

been at fault.

The Appeal was allowed and the

Action sent back for Re-trial.

Thomas Fortune v. P. E.

Jacob &

Co. Ltd.—Supreme Court (per

O'Higgins, J. with Kenny, J. and

Parke, J. J.—unreported-22 June

1977.