The case of A Worker v A Cleaning Company ADJ-00023945 concerned a complaint made by an employee who argued that his hours of work were reduced and his work location was changed due to raising health and safety concerns at work.
The claimant employee in this case was employed as a general operative with a cleaning company and he stated 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. He argued that the respondent was in breach of the Act for penalising him for having made these complaints. Amongst the complaints made were 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 . He stated on the day he made the complaint, he arrived at work and he was removed from the hospital site and was given a 2.5 hour assignment at an alternative location. He said he wrote to the hospital outlining his Health & Safety concerns and that the letter was ignored along with several other letters. The claimant alleged he was penalised for making a health and safety complaint.
The respondent/employer denied the claimant’s allegations and took issue with the Health & Safety complaints raised by him and that his hours were reduced as the client company no longer wanted the claimant working on their site. The hospital 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 Adjudicator looked at Section 27 of the Safety Health and Welfare at Work Act 2005 (as amended) which deals with penalisation and outlines what is meant by it including for example, suspension, lay off, dismissal (or threat of), demotion or loss of opportunity for promotion, transfer of duties, change of location or reduction in wages or change in working hours. In essence Section 27 deals with issues where an employee suffers a detriment or loss for raising health and safety concerns.
In addition the Adjudicator made reference to a case before the Labour Court which 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.
The Adjudicator noted that the claimant had complained of a significant reduction in working hours arising from having made complaints both to his employer, his direct line supervisors and the employers client. She also observed that the company did not deny that the claimant was removed from the hospital site after making the complaint and following consultation between the company and the hospital. The company in this case had argued that the employee was the author of his own misfortune but the Adjudicator observed that it was six days after the claimant employee was removed before his employer sent a vague text to him without any specifications regarding a time or venue for a meeting. The company also argued that their clients were entitled to have a worker removed from the site at the clients discretion.
The Adjudicator commented:
“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”.
She concluded “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”
The claimant was awarded €7,500 compensation.
Employment Law Case Tip
Employers need to be very careful where an employee raises any concerns or complaints under the Safety Health and Welfare at Work Act 2005. Penalisation is defined broadly under Section 27 as outlined in this case and hence if an employee raises a complaint, they should not suffer any loss as a result of doing this including reduction in pay, working hours or a threat of dismissal.
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