Complainant

Respondent

Parties

Olivia  Quinn

 Grosvenor Cleaning Services Limited

Representatives

John Connellan Carley and Connellan

 Brian Solan Head of HR

Act

Complaint 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-00043129-001

18/03/2021

The complainant works as a supervisor for the respondent cleaning contract services provider. Based on a request from the client; the supervisor was moved to another site. That right to request such a move is contained in the contract services agreement. The complainant states that she raised a grievance with her employer about being bothered by  an employee of the client  who had operational responsibility for the contract. Arising from that complaint an internal investigation was completed and it found that there was no basis to the grievance. The request to move the supervisor occurred soon after. The respondent stated that it is a clause in the contract that a client can request that a staff member be transferred. That is what has occurred in this case. No penalisation has occurred or detriment from the transfer. The respondent employer had been successful to win the contract arising from a tender and the supervisor under TUPE transferred over to the respondent employer. The supervisor had worked on that site for nearly 18 years.

The complainant states that she raised concerns about how her staff were being treated, who were essential workers during the pandemic, and arising from making that complaint to her employer, she was transferred, even though she had worked at the site for 18 years.

The client insisted that the supervisor should be moved and that was their right as detailed in the client contract services agreement.

On the 21st of May 2020, at the height of the pandemic, the complainant referred a complaint to her company and the details are recorded in a company email:

I’ve just been on the phone to Olivia Quinn, she’s having issues with the new boss (Orla’s replacement I believe).

She said today that he called her into one of the offices and asked if the table was polished, and if the floor was hoovered. She said you could see they were as the room was spotless, and he didn’t disagree with this. He then pointed out a small piece of paper on the floor and asked why that paper was on the floor since 9am this morning, she said how do you know it’s there since 9am, and he told her he had put it there. This was around 12:45 today, the cleaner had cleaned it the previous day, and was due in again at 1:30pm, so the cleaning staff hadn’t been in the room between him putting the paper down and picking it up.

Can you please contact the guy to get his side (redacted I believe his name is)?

Olivia is very unhappy with it and says he’s been bothering the cleaning staff also with little things

In turn this complaint is forwarded to the client and who confirm on the 26th of May 2020 that it will be investigated.

On the 25th of June 2020 the client reverts as follows:

I apologise for the delay in responding but a lot of staff are working remotely at present and this delayed the investigation of the complaint.

I have been advised that the officer against whom the complaint was made strongly disputes the allegation and also robustly disputes Olivia’s recollection of the conversation on the day. However, he does not dispute putting paper on the ground to see if the room had actually been cleaned that day as we had requested.

Unfortunately, as Grosvenor will be aware, there has been a high level of frustration on our part with ongoing issues with the level of cleaning and operatives attendances in this building as well as with the onsite supervisor since the end of last year, all of which preceded this incident. More recently we have had to request that the Grosvenor supervisor (redacted) would attend on site on a weekly basis to meet with the site supervisor to get the building up to the same standard as our other buildings. This has paid off and the building cleanliness has finally improved although it should be noted that only a handful of Department staff were on site daily during this period. The officer against whom the complaint was made is responsible for ensuring cleaning onsite is undertaken to the appropriate standard and will also be progressing retendering the cleaning contact with the Office of Government Procurement.

It’s clear from Olivia’s complaint that the prospect of any working relationship has clearly broken down so we would suggest that Olivia is redeployed to a non-redacted site as soon as possible and an appropriate replacement appointed without delay.

On the 2nd of July 2020 the complainant is informed by her manager that following the investigation she was being moved and that they would attempt to find her suitable replacement hours on another site.

The author of the email who works for the client; was requested to attend at a hearing and gave evidence that it was never the intention of the client to penalise the supervisor. On reflection the wording of the email was clumsy. It was meant to convey that the client wished to exercise its right for the supervisor to move to another site and that this would improve the working relationship between the client and the services company.

During the hearing of the complaint; the employer did accept that the email did give rise to their supervisor being moved. However, that was caused by the client exercising their contractual right to do  so under the terms of the services agreement.

The complainant also suffered financial loss arising form the move as the site that she was moved to was closed due to lockdown public health regulations.

The complainant relies upon section 8(b) of the of the Safety, Health & Welfare at Work Act, 2005 (the Act) as follows:

8.—(1) Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.

(2) Without prejudice to the generality of subsection (1), the employer's duty extends, in particular, to the following:

( a) managing and conducting work activities in such a way as to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees;

( b) managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health or welfare at work of his or her employees at risk;

At section 2.6 of the Act reasonably practical is defined as follows:

(6) For the purposes of the relevant statutory provisions, “reasonably practicable”, in relation to the duties of an employer, means that an employer has exercised all due care by putting in place the necessary protective and preventive measures, having identified the hazards and assessed the risks to safety and health likely to result in accidents or injury to health at the place of work concerned and where the putting in place of any further measures is grossly disproportionate having regard to the unusual, unforeseeable and exceptional nature of any circumstance or occurrence that may result in an accident at work or injury to health at that place of work.

The complainant states that the nature of her complaint related to her welfare and that of others.

The complainant’s employer states, in this case it had no choice but to move her; as it was being insisted upon by the client based on  a contractual clause in the service agreement that provided for this to occur.

At section 27 of the Act penalisation is defined as:

(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,

Penalisation in case law has been described to have occurred where there is a direct causal link between making a complaint and a detriment that followed because of that complaint [Murphy and Regan Employment Law 2nd edition  Bloomsbury 2017]:

[5.54]

The Labour Court has made it clear that there is a distinction between a detriment suffered by an employee because of an employer’s failure to fulfil a duty under the 2005 Act, and a detriment amounting to penalisation under the 2005 Act, as set out above. In the case of Patrick Kelly t/a Western Insulation v Girdsius 107 the employee’s claim for penalisation failed as he was unable to show that the detriment that he suffered was a result of, or was in retaliation for, his having made a complaint under the 2005 Act. He was a Lithuanian employee who was injured when he fell off a ladder at work that was not properly secured. He claimed that he had limited English and that he did not receive any health and safety training at work in a language that he could understand. He took a penalisation claim against his employer on the basis that this failure operated to his detriment. The Labour Court dismissed his claim due to the complete absence of a causal connection between the alleged shortcoming on the part of the employer and any act on the part of the employee. Similarly, the Labour Court, in the case of Margaret Bailey t/a Finesse Beauty Salon v Farrell, 108 found that the circumstances in which liability will be imposed are ‘very limited and circumscribed’ and that the 2005 Act ‘only applies where an employer penalises or threatens penalisation against an employee for making a complaint or representation to their employer as regards any matter relating to safety, health and welfare at work. Penalisation of an employee for other reasons does not come within the scope of the [Act]’.

[5.55]

In contrast, in the Labour Court case of Toni & Guy Blackrock Ltd v Paul O’Neill, 109 the claimant successfully appealed a previous decision that he had not been unfairly dismissed by reason of penalisation under s 27 of the 2005 Act. Mr O’Neill alleged that he had made complaints about the poor quality gloves that had been provided by his employer for use when handling colouring agents and that his complaints were ignored. He also brought the matter to the attention of the HSA, and informed his employer that he had done so. He ultimately purchased his own gloves for use at work. He claimed that his employer’s attitude towards him changed after these complaints had been made. He was then dismissed for alleged poor time keeping and theft. The Labour Court found in his favour, referencing the causal link between his complaints under the 2005 Act and the treatment that he was then subjected to, which was absent in the two cases cited above. He was awarded €20,000 by way of compensation.

On the facts it is clear that the complainant has suffered a detriment and was penalised. She raised a grievance during at the height of the pandemic, that an official of the client was allegedly  being oppressive in his interactions with staff by laying traps so to speak and attempting to  catch them out. That according to the supervisor was not appropriate behaviour and caused upset to her crew who had to work under that regime. At this time the offices in the main were empty as staff were working from home. The cleaning staff were essential workers in the fight against Covid and the supervisor believed that the treatment being visited on them was entirely inappropriate.

In Paul O’Neill v Tony & Guy Blackrock Limited [2010] ELR 21, the Labour Court made the following comments in relation to the “but for” test:

“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 suggests 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 the consideration of the motive, or reasons, which influenced the decision maker in imposing the impugned detriment.”

According to the respondent the motive in this case was not to punish her; rather it had limited choice but to move her based on the insistence of the client.

I am minded that the employer potentially was forced and pressed into taking this course of action to move the supervisor. However, it is important to carefully examine what gave rise to the transfer and that is captured in the email from the client. There can be no doubt that the transfer solely arose because of the complaint that the supervisor made and additional pressure was being brought on the employer to transfer her with reference to the future tendering process.

The supervisor had gone to her management to complain about how her crew was being treated; that in turn directly caused her removal from the site that she had worked in for 18 years. That is a very significant act of penalisation.

The employer may say they had no choice but to implement an unlawful act as do anything else would only damage their prospect of renewing the contract. The transfer only occurred because the supervisor raised a grievance about how her staff were being treated and her concerns for their welfare. While it may be argued that her employer was one step removed from the factor that caused her transfer; the chain of events clearly shows that raising the complaint about how her staff were being treated to her own management led to her being transferred by her own management. On the facts the request made by the client as detailed in  the email should have been challenged by her employer and not acceded to as it clearly demonstrates that she is being moved for making the complaint and it also further pressurises the contract cleaning company to transfer her by referencing the upcoming tender.  On the facts I determine that the employee was penalised for making a complaint concerning alleged prohibited conduct concerning the treatment of essential workers during the height of the pandemic and that the detriment she suffered arose solely from making that complaint. I determine that the complaint is well founded.

While it may be argued that her employer was one step removed from the factor that caused her transfer; the chain of events clearly shows that raising the complaint about how her staff were being treated to her own management led to her being transferred by her own management. On the facts the request made by the client as detailed in  the email should have been challenged by her employer and not acceded to as it clearly demonstrates that she is being moved for making the complaint and it also further pressurises the contract cleaning company to transfer her by referencing the upcoming tender.  On the facts I determine that the employee was penalised for making a complaint concerning alleged prohibited conduct concerning the treatment of essential workers during the height of the pandemic and that the detriment she suffered arose solely from making that complaint. I determine that the complaint is well founded.

Section 28 states:

28. A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 27 shall do one or more of the following, namely —

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to take a specified course of action, or

(c) require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances.

I declare that the complaint is well founded and award the complainant €21,000 being an amount that I consider to be just and equitable having regard to all the circumstances of this case.

Penalisation