The Gazette 1978

1 MAY 1978

GAZETTE

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 a 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

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.

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 . In 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.

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

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. 11