Worker dismissed for making lack of bathroom complaint

A retail worker was dismissed by a Dublin based franchise operator of fashion retailer YaYa after making a complaint to the Health and Safety Authority (HSA) concerning the lack of washroom facilities in the workplace.

At the Workplace Relations Commission, Adjudicator Penelope McGrath has ordered GB Agencies Galway Limited, trading as YaYa, to pay compensation of €7,500 to Fiona Bird for being penalised under Section 28 of the Safety, Health and Welfare at Work Act 2005.

In her ruling, Ms McGrath states that she is “absolutely satisfied that the abrupt termination of the complainant’s employment was an act of penalisation which has had a detrimental effect on the complainant”.

In total, Ms McGrath has ordered GB Agencies Galway Ltd to pay €9,390 to Ms Bird for being penalised for making the HSA complaint and for other workplace legislation breaches.

The employer claimed that Ms Bird was dismissed for poor performance where her sales were not as good as her other five colleagues.

However, Ms McGrath dismissed this as a reason for Mr Bird’s dismissal.

Ms McGrath stated that she did not accept the employer’s explanation for the termination “which I perceive to be an attempt to shore up a highly problematic dismissal after the event”.

Ms Bird had worked for Pamela Scott for up to 10 years in an outlet in Stillorgan before being asked to work for a new YaYa ladies’ boutique in Dun Laoghaire.

One of the directors of GB Agencies Galway Ltd explained that he had gone into partnership with Dutch lifestyle brand YaYa.

Ms Bird stated that were the inevitable start-up problems that needed to be ironed out and the biggest issue was the lack of a staff bathroom on site, which also meant that there was no on-site hand washing facility.

A director of the firm, Gerard Burke gave evidence that he had concentrated on the shop and that the back area was still unfinished when they opened up the shop just before Christmas.

The employer had made an arrangement with the coffee shop next door so that his staff could use the public bathroom available to the café’s customers as and when required.

Mr Bird said that this was not always convenient or satisfactory and Ms McGrath stated that she accepted “that this was not a particularly dignified solution to the lack of onsite facilities”.

“It seems to me that the installation of a staff bathroom should have happened as part of the shop re-fit and not seen as an added extra to be dealt with down the line,” Ms McGrath said.

“The issue was not given any priority. The Complainant says that for personal and/or health reasons she needed access to a bathroom and was not happy to have to go next door and queue for the facility. This went on for about five months,” she said.

Ms McGrath said that Ms Bird confirmed that she had eventually raised the issue with the HSA to determine if she was within her rights to be upset about this issue.

She stated that the HSA took it upon themselves to follow up on this issue and a notice was sent in early 2023 to the Company Director Gerard Burke who was not happy about it. This happened in early May 2023.

Ms Bird stated that she recalled Mr Burke coming into the premises and saying to her line manager that he had never had such a thing happen to him as he showed the notice.

He had said he was not happy with this. Within a few weeks, at the direction of Mr Burke the work had been carried out, and a staff bathroom was installed.

Mr Burke gave evidence that the work was about to be carried out anyway and that he had not been particularly vexed by the Health and Safety notice.

He also stated that at that time he had not been aware that it was Ms Bird who had raised the issue with the Authority.

On the May 15, 2023, Mr Burke arrived into the stop and took Ms Bird aside and told her that the employment relationship between them was not working out and that she could get her things and leave.

Ms Bird said that she was shocked as there was no suggestion that her manager or the owners or customers were unhappy with her work. Ms Bird did leave that day.

In evidence, Mr Burke says he only found out about Ms Bird’s role in the HSA issue when she issued her workplace relations complaint form.

Mr Burke was adamant that Ms Bird was let go for performance and not for bringing the HSA into his affairs.

In response, Ms Bird stated that she had been penalised in the most grievous way for having raised the said issue with the HSA.

Ms McGrath said that she was satisfied that Ms Bird had no knowledge that her performance was considered sub-par.

Ms McGrath stated that she was not communicated with and she was not given extra training and she was not provided with a performance improvement plan or any other structure to help improve her seemingly imperfect performance.

She stated that on balance she is persuaded that the employer was well aware that Ms Bird had made a complaint to the HSA about her working conditions.

She said that she is persuaded that rather than acknowledging that the complainant had raised a legitimate concern, Mr Burke was greatly put out by Ms Bird’s actions.

Ms McGrath stated that she was satisfied that Ms Bird’s performance was never an issue until such time as the HSA came into the frame.

Reporting by Gordon Deegan