ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00023945

Parties:

	Complainant	Respondent
Anonymised Parties	A Worker	A Cleaning Company

Representatives

The claimant represented himself

Company Director

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005	CA-00030560-001	29/08/2019

Date of Adjudication Hearing: 20.01.2020 & 10/03/2020

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Summary of Complainant’s Case:

The claimant was employed as a general operative with a contract cleaning company from the 18.11.2017 to the 1st.July 2019 and submitted that his hours were progressively reduced to zero over a six week period for bringing “ some very serious health and Safety issues to the attention of the management at a Hospital where he was working as a cleaner and to his own employer in May 2019”.The claimant submitted that the respondent was in breach of the Act for penalising him for having made these complaints. The claimant initially worked part time up to Dec. 2017 and worked an average 39 hour week for the remainder of his employment. He submitted that many health & safety rules were ignored resulting in a high staff turnover. The claimant asserted that he brought these matters to the attention of 3 of his supervisors and complained of lack of training , garda vetting , vaccinations , equipment and unconventional working conditions “ for the sake of saving time and money”.The claimant stated that he communicated his concerns to the hospital managers on the 20th.May 2019 – these concerns included needle stick injury training , lack of training in infection control, no health & safety representative, no training on chemicals, no Hep C vaccinations, no training on blood and faecal waste, inadequate checking of toilets , in adequate time to perform cleaning duties .The claimant asserted that he made numerous complaints to his direct line manager Ms.X about these hygiene and health and safety shortcomings without getting any satisfaction and because of the inaction by his employer he raised the matter directly with the hospital managers when he met with them on the 20th.May 2019.The claimant said that the respondent was contacted directly by the hospital that day but failed to present himself.

The claimant disputed the assertion made by the respondent at the first hearing to the effect that the claimant had gone AWOL for a period of 6 weeks in 2018.The claimant insisted that he only missed 4 working days.

He complained that only one cleaner was engaged for four hours to cover the hospital at weekends and Bank Holidays . He also referenced to “filthy wet vacuum and contaminated scrubbing pads”.The claimant asserted that when he arrived for work – the day after he lodged his complaint (20.05.2019)- he was removed from the hospital site and was given a 2.5 hr. assignment at an alternative location.The claimant asserted that he only worked 2o hours that week and 26.25 hours the last week of May.In early June the claimant was limited to a 17.5 hour week and worked zero hours the week of the 10th.June.The claimant asserted that he received a text from the respondent on the 26th.May saying he needed to meet the claimant but making no reference to a date , time or venue.The claimant wrote to the respondent on the 19th.June and to the Hospital outlining his Health & Safety concerns.The claimant said the respondent ignored his letter. Despite getting less than 18 hours notice the claimant agreed to return to work on the 1st.July 2019 following several texts from his Supervisor Ms.XThe claimant stated that he was given the opportunity to take the day off and took it.The following day the claimant met his Social Welfare Officer and said that he was severing communications with the respondent.The claimant stated that he received a final text from the respondent on the 11th.July seeking a meeting with the claimant and the respondent’s wife to have a chat about any issues the claimant may have.

The claimant alleged that the respondent failed to respond to his letters of the 21st.June 2019 and the 5th.July 2019 and withheld his P45.

The claimant submitted that after 18months working full time hours , his hours were reduced by half after he made his complaint on the 20th.May 2019.

The claimant submitted time sheets for his last 3 weeks in employment – on the week commencing the 4.06.2019 the claimant worked 16hours and 55mins , plus a bank holiday.The week commencing the 27.05.2019 , the claimant worked 26hrs. and 15 minutes.The week commencing the 20th.May 2019 , the claimant worked 19hrs. and 55mins.The claimant said he did not respond to the respondent’s request for a meeting as he never specified a date , time or venue.

The claimant’s witness gave evidence of having worked for the respondent at the hospital from 2015 -2018.She stated that Health & Safety was a big issue , that staff were not trained properly and that supervisors “didn’t have a clue”.She recounted an incident where she was assigned to a room where the patient had HIV and she had not been told or equipped with appropriate PPE.She asserted that she was expected to clean the room without PPE and without being advised that the patient was suffering from HIV.The witness said she observed staff working long hours , that she was badly treated and that the respondent laughed when she sought her P45.

The claimant submitted that his absence from work the previous year was based on advice at the time from his doctor who recommended that he did not return to work.He asserted that the first text he received from the respondent was on the 26th.May 2019 after he had been removed from the site – he received it on a Sunday evening at 4.45 and it read “Need to meet you Monday a.m.”.The next text he received was on Wed.5th.June and it read “Need to meet you Monday a.m.”.

On Tuesday 11th.June the respondent texted the claimant “Are you free to meet tmw a.m.” – received at 10.47 – the claimant submitted that at this point he was down to zero hours work per week. On the 11th.July the respondent texted “ are you free to meet tmw a.m. at 11.00- Ms.Y (the respondent’s wife ) would like to have a conversation about ongoing issues you have”.

The claimant asserted that the respondent’s criticism of his work was unfounded and that he was referring to a day where he was expected to clean 20-30 rooms in under 4 hours.The claimant submitted that he had never been taken to task over performance issues.The claimant reiterated that he had received no training , no training on manual handling and stated that the workers had no Safety Representative.The claimant said that when he returned to work at the hospital , after he had lodged his complaint , he was told he was not working there today “you are not on the plan”.He set out an itinerary of the hours he was assigned over the coming days and stated that he incurred a significant reduction in his hours as a result of making the complaint.He described the events of his last day at work – he asked his supervisor was she picking him up and she said no.When he arrived at work , he found there were no mops , cloths or refuse bags.The claimant said he was treated like a toe rag.The claimant reiterated that without a time and venue it was impossible to attend a meeting with the respondent.According to the claimant there were no uninvited visits ti his residence by the respondent or his supervisor Ms.X.He stated that the respondent “ tried to drag things along till I simply couldn’t take any more”.The claimant highlighted that the respondent had accepted at the second hearing that he and the hospital management had jointly taken the decision to remove the claimant from the hospital site after dismissing his complaint.

Summary of Respondent’s Case:

The respondent denied the claimant’s allegations and took issue with the Health & Safety complaints raised by the claimant.He stated that prior to his recruitment the claimant had been unemployed for a prolonged period and had never previously cleaned in a hospital. He stated that he took a chance in recruiting the claimant on the basis of his lack of experience.No working time records or documentation was furnished by the respondent.The respondent suggested that he could compromise his clients data protection by furnishing documentation

The respondent confirmed that the hospital contacted him about the claimant after he made his complaints relating to health & safety and working conditions on the 20.05.2019.The respondent did not dispute the claimant’s allegation that arising from same , the claimant’s hours were reduced as the client company no longer wanted the claimant working on their site. The respondent stated that he and the hospital managers considered the claimant’s complaint and decided he was wrong in his assertions regarding health and safety matters .

The respondent submitted that the claimant’s witnesses had not worked for the company for over a year. He stated that clients can ask to have a worker removed from site if they have any issues. The respondent asserted that he attempted to make contact with the claimant after he made his complaint but the claimant refused to engage. He stated that hospital management had deemed that the claimant was unsuitable – he stated that the claimant appeared to be acting irrationally and had displayed similar behaviour a year previously .He asserted that there was a paper trail between him and the client company on the matter , which he could not disclose because of confidentiality. The respondent described the claimant as being well respected and well liked. The respondent said the claimant had said he was going to refer his complaints to HIQA. He asserted that the claimant agreed that he would not be located at the hospital.He confirmed that the claimant’s hours were reduced on the 21st.May the day after the claimant made the initial complaints.

The respondent apologised to the witness about the P45 incident and said he was not present in the hospital when the HIV incident occurred.

At the second hearing the respondent said that clients had a right to decide to move the claimant off site.He said the reduction in hours incurred by the claimant was not a punishment.He said the claimant refused to engage with him. The respondent said the claimant gave his list of issues to hospital management on the 20th.May. The respondent texted the claimant on the 26th.May – having decided to “ let him recover for a week”. The respondent said he was preparing for the claimant to resume full time employment.

When the claimant would not communicate with him , the respondent thought the claimant would engage with his wife – Ms.Y.He reiterated that the reduction in hours was not a punishment but was based on what happened the year before - he sated the claimant was “ a strange individual”. He said that hygiene standards were regularly checked and that the hospital had been subject to a hygiene audit on the 18th.May.2019.The respondent asserted that arising from the audit , the claimant knew he was in trouble as it was evident he was not doing the work he should have been doing.The respondent suggested this may have been part of the reason why the claimant had made his complaint on the 20th.May. The respondent said that the fact that the claimant was not responding to his texts proved that the claimant was behaving irrationally. The respondent stated that the claimant’s hours went down because the claimant refused to engage .

The respondent said all staff train during working time and there was no requirement to train outside of working hours.

In a written post hearing submission to the WRC the respondent asserted that the claimant was changing the facts to suit his narrative.He reasserted that the claimant’s refusal to engage with him made the situation extremely difficult to sort out.He asserted that the complaints made by the claimant to the client company were dismissed by them , that they had no effect on the respondent’s relationship with the client and that therefore the respondent had no reason to punish the claimant by reducing his hours.He asserted that he believed the claimant was suffering “some emotional issues” and that he would be ok again shortly.He asserted that by refusing to engage the claimant had to bear “some of the responsibility”.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 27 of the Act defines penalisation as follows:

27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

	(2) Without prejudice to the generality of subsection (1), penalisation includes—
	(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,
	(b) demotion or loss of opportunity for promotion,
	(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,
	(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and
	(e) coercion or intimidation.
	(3) An employer shall not penalise or threaten penalisation against an employee for—
	(a) acting in compliance with the relevant statutory provisions,
	(b) performing any duty or exercising any right under the relevant statutory provisions,
	(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,
	(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,
	(e) being a safety representative or an employee designated under section 11or appointed under section 18to perform functions under this Act, or
	(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.
	(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).
	(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.
	(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.
	(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.

The Labour Court have considered in detail the matter of a causative link being established for having made a health & safety complaint and any resulting detriment . In Paul O’Neill v Toni and Guy Blackrock Limited (HSD095) the Court stated:

It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.

This point was also addressed in Labour Court Determination in St Johns NS v Akduman (HSD102) which stated:

“It is therefore clear that a cause of action can only accrue to an employee under Section 27 of the Act if conduct or omissions, which come within the statutory meaning of the term penalisation, arise because of an act protected by Subsection (3) and but for the protected act the employee would not have suffered the detriment complained of” and the respondent’s treatment of the claimant .

In the instant case , the claimant has complained of a significant reduction in working hours arising from having made his complaint both to his employer, his direct line supervisors and the employers client a hospital.The respondent has not denied that the claimant was removed from the hospital site after making his complaint and following consultation between the respondent and the hospital.While the respondent argues that the claimant was the author of his own misfortune by failing to engage with him , it is noteworthy that 6 days elapsed after the claimant was removed from the hospital site before the respondent sent a vague text to him without any specifications regarding a time or venue for a meeting.It is also noteworthy that at the first hearing , the respondent made no references to performance deficits regarding the claimant’s quality of work – these concerns were only raised at the second hearing.The respondent was unable to furnish any documentation to the WRC between the hospital and the respondent company regarding the removal of the claimant from the hospital site because of confidentiality. The respondent argued that their clients were entitled to have a worker removed from site at the clients discretion.

I found the evidence of the claimant and his witness about their working environment and the inadequacy of health & safety training to be credible and consistent.The respondent has not disputed that the claimant was removed from the site as a result of his complaints – many of which had health & safety matters at their core.I found the evidence of the respondent to be inconsistent and lacking in credibility and note his failure to submit the “case law “ he was relying upon in support of his position and as well as his failure to submit any working time records

In all of the circumstances , I am satisfied that the claimant has established a causal link between having made his complaints known to the respondent and the hospital and his removal from the site and the ensuing reduction in working hours.Section 27 specifically identifies “ (c) transfer of duties, change of location of place of work, reduction in wages or change in working hours” as penalisation.

Accordingly I am upholding the complaint and require the respondent to pay the claimant €7,500 compensation.

Dated: 11th September 2020

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Key Words:

Penalisation under Safety , Health & Welfare at Work Act , 2005