Complainant

Respondent

Parties

Leanne Murphy

Maybin Support Services (Ireland) Limited

Representatives

Niamh Ní Leathlobhair BL

Dermot O’Loughlin, Alpha Employment Representation Services

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-00047406-002

30/11/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00047406-003

30/11/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00047406-004

08/04/2024

The respondent is a building maintenance and cleaning contractor and the complainant started working for them on July 21st 2021.  She was assigned to work as a cleaner in St James’ Hospital in Dublin.  On September 22nd 2021, as she was emptying a waste bin on a ward, she suffered a needle-stick injury.  She was treated by the hospital’s occupational injury department and, following blood tests, no infection was detected.

The complainant was out sick for three days after the needle-stick injury.  When she returned to work, she claims that the environment was hostile and that her supervisor asked her to demonstrate the correct way to empty a bin.  On October 6th, she went out sick again due to stress from the needle-stick injury and its aftermath in the workplace.  The following day, she sent a letter of complaint to the site manager, Mr Woods.  Mr Woods asked the complainant to attend a meeting on Monday, October 11th to discuss her concerns, but she was out sick.  She remained out sick and could not attend a re-scheduled meeting on Wednesday, October 13th.  She did not respond to a request to attend a meeting on Thursday, October 14th; however, on that day, Mr Woods phoned the complainant and terminated her employment.

It is the complainant’s case that, in breach of s.27 of the Safety, Health and Welfare at Work Act 2005, she was penalised for making a complaint about health and safety.  She also claims that she was not given a statement of her terms and conditions of employment and that her fortnightly payslips show different amounts of pay for the same hours of work.

Evidence of the Complainant

In her direct evidence, the complainant said that she worked on a mixed medical ward in St James’ Hospital which had about 32 beds.  She said that around nine of the beds were occupied by drug users.  On September 22nd 2021, when she was lifting a waste bag from a bin, a needle pricked her hand.  The complainant said that she didn’t expect there to be a hazard in the bag, but she had been trained on how to tie the bag and to keep as much air as possible inside, so that needles wouldn’t stick out.  The complainant told a nurse about her injury, and the nurse instructed her to tell her supervisor.  She went to her supervisor in the “cleaning hut” and she told her that there shouldn’t be needles in the standard refuse bins.  She said that her supervisor had an argument with a colleague about who was responsible for filling out an incident report form.  The form was filled out and a copy was produced in evidence by the respondent.  It is signed by the complainant and a supervisor and then by the site manager.

The complainant was directed to the emergency department and then to the hospital’s occupational injury centre for blood tests.  In her evidence, she said that she was called back for further blood tests after six weeks and she got the “all clear” 12 weeks later. 

The complainant said that she was upset, sick and worried when she got the needle-stick injury.  She said that with the number of drug addicts on the ward, she was afraid that she had contracted HIV.  She was off work for a few days and when she returned, her supervisor told her that her cleaning audits were not up to standard.  She said that she had never had a problem with her audits previously.  She said that her supervisor was constantly checking on her and speaking to her about standards.  She was asked to show how she emptied a bin, but her supervisor didn’t show her how to empty the bin. 

The complainant said that her access to the ward was by biometric face recognition, but, after her absence, she had to key in a code.  She didn’t ask anyone why the method of accessing the building changed.  She said that she felt that she went back to a different environment.

On October 7th, the complainant said that she sent a complaint to the site manager, Mr Woods.  She complained about broken equipment, which she said, referred to the hoover she had to use which had tape keeping it together, and a floor washer that was blocked.  She complained that needles were “not put in the right boxes” and that nurses and drug users were responsible.  She complained that, although she paid for a uniform, one wasn’t provided.  Finally, she claimed that foreign supervisors were sending text messages to each other in their own language in which they abused the Irish staff.  She said that she felt that she had been penalised for making a complaint and she asked Mr Woods to do something about it.

The complainant agreed that Mr Woods invited her to attend a meeting on Monday, October 11th.  She said that she was sick at the time and that she couldn’t attend.  She remained out sick when another meeting was scheduled for Wednesday, October 13th.  On Thursday, October 14th, the complainant said that Mr Woods phoned her and told her she was being dismissed.  In response to Ní Leathlobhair’s question regarding why she thought she was dismissed, the complainant said “probably because I complained.”

Finishing her direct evidence, the complainant said that she looked for a new job before she was dismissed.  She said the reason for this was that she was thinking of leaving and she was concerned that she might be dismissed.  She started a new job in the Children’s Hospital in November and on December 9th, she started in a nursing home.  She worked at the two jobs for four months, before she gave up the job in the Children’s Hospital. 

Cross-examination of the Complainant by Mr O’Loughlin

Mr O’Loughlin asked the complainant about the training she received when she started in her job in St James’.  She said that she “shadowed” another girl.  Mr O’Loughlin referred to a document signed by the complainant, confirming that she completed training on July 20th 2021. This shows that she completed training on the “Isolation / Covid-19 Cleaning Process” and on putting on and taking off personal protective equipment. 

Mr O’Loughlin referred to the incident report form that the complainant signed on September 22nd 2021.  She said she remembers signing it and she remembers the supervisors arguing about it.  Asked why she didn’t make a complaint on September 22nd, the complainant said that when she was back at work, she was being criticised. 

Re-direction by Ms Ní Leathlobhair

Referring to the phone call from Mr Woods on October 14th 2021, the complainant said that Mr Woods told her that she “didn’t fit the job category.”  She said that she was genuinely sick when she submitted her complaint on October 7th. 

Closing Submission of Ms Ní Leathlobhair

Ms Ní Leathlobhair said that the complainant first made a complaint about health and safety when she informed her supervisor that there was a needle in the waste bag which caused her an injury on September 22nd 2021.  Ms Ní Leathlobhair said that this complaint was not passed on to Mr Woods and there is no evidence of the complaint on the incident report form.

When she returned to work, the complainant said that she was in a hostile environment.  She was asked to demonstrate how she emptied bins, her supervisor was checking up on her and complained about her standard of cleaning.  Because of the hostile working environment, the complainant went out sick on October 6th.  She claims that she was penalised for making a complaint on September 22nd.

Ms Ní Leathlobhair argued that the complainant was penalised a second time when she submitted a complaint to Mr Woods on October 7th.  Arising from this, she was penalised when she was dismissed.  Mr Woods said that he dismissed the complainant because of her absenteeism.  Ms Ní Leathlobhair said that the complainant’s sick leave was a result of working in a hostile environment.

Evidence of the Site Manager, Mr Paul Woods

Mr Woods said that he started as the site manager in St James’ Hospital in August 2021, after the complainant commenced working there.  He said that he never had a meeting with her, and he knew her only from reports from supervisors that she had been occasionally absent.  Mr Woods could not explain why the complainant wasn’t issued with a uniform, and he said that there may have been a supply issue during Covid-19, because they are imported from China.  However, he then said that he didn’t recall a supply issue with uniforms.

Mr O’Loughlin asked Mr Woods about the procedure when an employee gets a needle-stick injury.  Mr Woods replied that they should report the injury to a supervisor who normally brings the employee to the emergency department.  The employee is then required to attend the occupational health department in the hospital.  Mr Woods said that needle-stick injuries are not uncommon, with about one employee being injured every month by a needle.  He received the report of the complainant’s needle-stick injury on September 22nd and he signed it and sent it to their health and safety officer.  He said that the respondent received confirmation from the hospital that they are indemnified regarding any legal claim concerning such an injury.

Mr Woods said that, when he received the complainant’s email of Thursday, October 7th, he arranged to meet her the following Monday, October 11th.  However, he said that the meeting never happened and on Thursday, October 14th, he phoned the complainant and told her that her contract had expired and that it wouldn’t be extended.  He said that she was emotional and hung up.  He said that he approved an additional week’s pay for her in lieu of notice.

Cross-examining of Mr Woods by Ms Ní Leathlobhair

In response to questions from Ms Ní Leathlobhair, Mr Woods said that the procedure when an incident occurs is that, within 24 hours, a report must be submitted to the respondent’s health and safety officer and to the hospital.  Ms Ní Leathlobhair suggested to Mr Woods that it’s useful for the respondent to have an indemnity against any claims, because they don’t have to worry about injuries.  Mr Woods disagreed and said that the respondent does as much as possible, in the line of training and re-education, to ensure that injuries do not occur.

Ms Ní Leathlobhair asked Mr Woods if he spoke to the complainant about the incident and he replied that he didn’t.  He said that he tried to arrange to meet her, but she was out sick.  He said that he knew about the incident, but he didn’t know that the complainant made a complaint about health and safety until he received the email of October 7th.

Ms Ní Leathlobhair asked Mr Woods about the complainant’s contention that, after she returned to work, her supervisor was checking her work.  Mr Woods replied that this sounds normal.

Ms Ní Leathlobhair suggested that the complainant was dismissed because she made a complaint about health and safety.  Mr Woods replied that he takes complaints seriously, and that there was nothing personal about his decision to dismiss the complainant.  Ms Ní Leathlobhair said that the complainant had no issues at work until after the needle-stick injury on September 22nd 2021.  Mr Woods said that he thinks there may have been an issue with her supervisor when she missed days.  He also recalled a complaint about her not wearing her face mask properly.

At the conclusion of his evidence, I asked Mr Woods why he dismissed the complainant.  He said that her absences were a factor, and her failure to come to a meeting that was arranged three times.  He said that it was clear to him that the complainant “wasn’t too happy with us.”  He said that he could deal with the complaint about health and safety and that his concern was about absenteeism.

Closing Submission of Mr O’Loughlin

Mr O’Loughlin referred to the email the complainant sent to Mr Woods on October 7th.  In her email, she gave no indication that she was out sick.  It appears from the complainant’s email that she was well informed about the process for dealing with needle disposal and the process for dealing with complaints.  Mr O’Loughlin said that the complainant was employed on a fixed-term contract from July 19th until October 18th 2021.  He said that a lot of fixed-term contracts were issued during the Covid-19 pandemic.  In her evidence, the complainant said that she started looking for a job before she was dismissed.  From this, it seems that she knew that her contract was coming to an end.  Mr O’Loughlin said that there is no evidence that the motivation for her dismissal was to penalise her for making a complaint about health and safety.

The Relevant Law

Section 27(1) of the Safety, Health and Welfare at Work Act 2005 (“the 2005 Act”) refers to “penalisation” as,

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.

Subsection (2) provides examples of the conduct of an employer encompassed by the definition of penalisation:

(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.

The complainant argues that she made a protected act which is encompassed by the definition at s.27(3)(c) of the 2005 Act:

(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[.]

The complainant’s case is that, having complained to her supervisor about a needle-stick injury on September 22nd 2021, on her return to work after sick leave, she was subjected to criticism and unnecessary supervision, resulting in what she referred to as a hostile work environment.  She claims then that she was dismissed when she was penalised, having submitted a written complaint to the site manager, Mr Woods on October 7th 2021. 

The Burden of Proof

In a submission received in advance of the hearing, the complainant’s solicitor referred to the decision of the Labour Court in Toni & Guy Blackrock Limited and Paul O’Neill[1] which established that the burden of proof is on a complainant to show that they carried out a protected act and that, considering the circumstances of what then occurred, it is reasonable to assume that, “but for” having committed the protected act, no detriment would have been imposed.  In considering this matter, I have decided, in the first instance, to examine the evidence of the complainant, to determine if she suffered a detriment. 

Was the Complainant Penalised by her Employer?

In her evidence, the complainant said that the response to her making a complaint about needles discarded in the general waste bag was that she was subjected to criticism and excessive supervision.  Penalisation is defined in s.21(1) as any act that affects an employee to his or her detriment, regarding his or her terms and conditions of employment.  The complainant submitted no evidence that there was any change to a term or condition of her employment after she complained about the needle-stick injury.  I have reviewed the list of penalties at s.27(2) (a) to (e) above, and there is no reference to excessive supervision, criticism or the imposition of a hostile working environment.  Mr Woods gave evidence that it is normal after an incident that causes an injury for a supervisor to pay attention to how an employee carries out their duties and it makes sense that, for the safety of the employee, a greater degree of supervision may be necessary following a workplace injury.   

The complainant went on to assert that she was dismissed because she wrote to the site manager on October 7th, to complain “about poor health and safety standards in my work.”  In her email, she complained about broken equipment, drug addicts “leaving their gear around” and needles not placed in the correct disposal boxes.  She also complained that she was wearing a borrowed uniform.  She said that supervisors sent text messages to each other in which they made abusive comments about cleaning staff.  Finally, she claimed that she was dismissed for complaining about the needle-stick injury she endured two weeks previously, on September 22nd.

Arising from her email on October 7th, the site manager arranged two meetings with the complainant, which she couldn’t attend due to illness.  He then arranged to meet her on Thursday, October 14th.  The complainant didn’t reply, but remained absent.  She was dismissed that day.  The definition of penalisation at s.27(2)(a) includes dismissal and, on this basis, I must proceed to examine the evidence of the respondent to determine, if, in line with the test established in Toni and Guy, she was dismissed for making a complaint about health and safety.

Was the Complainant Dismissed for Making a Complaint about Health and Safety?

When he received the email from the complainant on October 7th, the site manager, Mr Woods wrote to the complainant the following day and asked her to meet him on Monday, October 11th.  He advised her that she could bring a union representative or a colleague to the meeting and he said that he would have a note-taker present present.  It is clear from this that Mr Woods took the complainant’s email seriously, and that he intended to investigate her concerns.  The complainant replied at 8.03 on Monday and said that she was out sick and would be back on Wednesday or Thursday.  Mr Woods re-arranged the meeting for Wednesday at 4.00pm.  The complainant replied, “Yes perfect.”  However, at 12.03 on Wednesday, she wrote again saying that she was “still too sick” to attend a meeting.  Mr Woods replied and asked her to meet him the next day, but she did not reply.

In his evidence, Mr Woods said that he decided to terminate the complainant’s contract because she seemed to be “not happy with us,” or words to that effect.  He said that the complainant was employed on a fixed-term contract for three months from July 19th until October 18th 2021.  The reason for the short-term contract was to provide additional staff during Covid-19.  Mr Woods referred to the fact that the complainant was absent from work on a few occasions.  The respondent’s evidence shows that, before the needle-stick injury, she had been absent for three separate days over a period of five weeks between August 13th and September 17th 2021.  On one of these days, her absence is recorded as a “no show.”  She was then absent for six days after the needle stick injury.

On October 7th 2021, the complainant was on a day off and she wrote to the site manager, Mr Woods, about issues such as broken equipment, her uniform and supervisors texting each other.  These are issues which the complainant could have raised with her line manager and which could have been resolved before making a formal complaint.  It is my view that the only significant issue raised in the complainant’s email of October 7th is her concern about the disposal of used needles.  Mr Woods treated her complaint with the seriousness it deserved and arranged a meeting.  Although she hadn’t submitted a medical certificate, the complainant said that she was too sick to attend on Monday or Wednesday October 11th and 13th and she did not reply to a request to attend on Thursday the 14th.

It is my view that the respondent had adequate cause to dismiss the complainant on October 14th.  She was employed on a fixed-term contract that was due to end on October 18th.  She had been absent on three occasions in a short period of time.  The needle stick injury resulted in a further six days of absence.  She provided no medical evidence that she was sick and she showed no interest in having her complaint investigated.

Conclusion

There is no doubt that a needle stick injury is a serious matter and I think that any reasonable person would be concerned if they suffered such an injury.  The incident report form that was completed after the complainant was injured shows that, after she was injured, the needle that caused her injury was properly disposed of in a sharps box.  Despite the availability of such boxes, the respondent’s evidence is that needle stick injuries are not uncommon and the complainant said that she was shown how to manage the risk of such injuries by letting air into the bags before tying them so that the needles didn’t stick out.  She explained the procedure that she followed after she was injured, when she filled in an incident report form.  She attended the occupational health doctor and she had blood tests.  When she returned to work, her supervisor checked to make sure that she used the correct procedure to lift bags of waste from bins.  While the complainant appeared to find this insulting, I find that this was a practical and reasonable way to ensure that the complainant was sure of the method for managing waste to avoid a similar injury in the future. 

The complainant’s case is that she was dismissed because she made a complaint about “poor health and safety standards in my work.”  Her complaints about the hoover, her unform and staff texting each other are operational matters and, in my view are “padding” to give the impression that the workplace was haphazard.  The fact that Mr Woods made an effort to meet the complainant on three separate occasions to discuss her complaint is not consistent with her argument that she was dismissed for making a complaint.  It is my view that Mr Woods treated her complaint with the seriousness it deserved by arranging a meeting to find out what happened and to listen to her concerns.  I can see no basis, and, in my view, there is no substance to the complainant’s contention that, but for making a complaint about the needle stick injury (and other operational issues) she would not have been dismissed. 

I am not satisfied that the complainant has shown that, but for making a complaint about health and safety, she would not have been dismissed.  I decide therefore, that her complaint of penalisation is not well founded.

The complainant said that she didn’t receive a copy of her contract.  Referring to the copy of her contract presented in evidence by the Mr O’Loughlin, the complainant said that, if she had received the contract, she would have kept it in a safe place.  She said that she understood that she was employed on a permanent contract.

In the book of documents submitted by the respondent at the hearing, there is a copy of a contract of employment signed by the complainant on July 20th 2021.  On the signature page, she included her address, her date of birth and her PPS number.  On page 1, the contract is clearly stated to be a fixed-term contract and the start and end dates are also clearly indicated.

I am satisfied that the complainant was issued with a detailed contract of employment which she signed on July 20th 2021.  Based on the fact that she signed this contract, and on her own evidence that she started looking for a new job before her contract expired, I am satisfied that she knew that she was employed on a fixed-term basis from July 19th until October 18th 2021.

I have concluded that the complainant was issued with a written statement of her terms and conditions of employment and I decide that this complaint is not well founded.

In her evidence, the complainant said that she got paid different amounts when her hours of work didn’t change.  She did not claim that she was not paid for hours that she worked.  She said that she didn’t take any holidays when she was employed by the respondent and she didn’t take any unpaid leave.  She said that she didn’t understand her payslips, although she did not say that she asked anyone in the respondent’s company to explain what it was that she didn’t understand.

In accordance with the Employment Regulation Order for the contract cleaning industry, Mr O’Loughlin said that the complainant was paid €11.20 per hour for all the hours she worked when she was employed by the respondent.  The hourly rate for Sundays was €14.40 and the public holiday rate was €22.40.  The complainant’s wages varied depending on whether she worked on a Sunday or a public holidays and also depending on the number of days she was at work in any week. 

I have examined the payslips submitted by the complainant and I find no evidence that wages properly payable to her were not paid.  She was paid fortnightly and it is apparent that she was paid €11.20 per hour for working standard hours from Monday to Saturday and that she was paid €14.40 for working on Sundays.  She was paid double time for working on the public holiday that fell on August 3rd 2021.  This is the reason that she received different amounts each fortnight, apart from the fact that she was not paid when she was absent.

The complainant’s last day at work was October 6th 2021 and, on October 21st, she was paid for 18.5 hours’ accrued holidays.

Based on my examination of the complainant’s payslips, and her failure to identify any specific shortfall in the wages due to her, I am satisfied that she was paid all the wages that were properly payable to her.

Based on the conclusions set out above, I decide that this complaint is not well founded.

Penalisation, statement of terms and conditions of employment, wages properly payable