FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TRIM CASTLE HOTEL LIMITED - AND - A WORKER (REPRESENTED BY DOYLES SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner’s Recommendation R-050401-Ir-07/JT
BACKGROUND:
2. The worker is from New Zealand and works as a Sous Chef. In 2006 he and his girlfriend decided to seek work in the UK and Ireland. As a result he came into contact with RT Training Research and Consulting Limited (RT Limited), an employment company. RT Limited advised him of a vacancy in Trim Castle Hotel Limited (the Hotel) in July, 2006. The Hotel at this stage was only setting up in business. The worker claims that he received an e.mail from RT Limited informing him the he had got a job as a Senior Sous Chef with the Hotel and that the Hotel was also "working on" getting a job for his girlfriend, who works as a hairdresser. He also claims that he was assured of accommodation for both of them. They presented themselves at the Hotel on the 17th July, 2006, for work. However, there was no job for the worker's girlfriend and no accommodation for either of them in the Hotel but they were put up in a local Bed and Breakfast. The same arrangements were made for them the next day. On the 19th of July they were told that there was no accommodation available in the Hotel and that they would have to sort it out for themselves. When they went back to the Bed and Breakfast there was room for them there and the worker felt that he had no option but to resign his position at the Hotel. Some time afterwards he obtained work in Wexford and later in Wales.
The Hotel claims that it had made no commitment to a job for the worker's girlfriend and, while it did ask her to fill out a job application form, it found that she was unsuitable for a job as a receptionist. The Hotel denies that it ever offered to provide accommodation for the worker. He left the job without giving any notice and did not contact the Hotel again.
The worker referred his case to a Rights Commissioner and his recommendation was as follows:
"I have considered the submissions and arguments put forward by both parties. It is indeed a most unfortunate situation. From submissions made at the hearing it is clear to me that RT Consultants are responsible for creating the fiasco. However it must be said that the claimant did not seek a written contract of employment prior to his arrival especially travelling such a long distance. respectively I have to decide in relation to two innocent parties, the party who has most to answer for, RT Consultant objected to the matter being heard under the Act. However I have considered the matter and cannot find Trim Castle Hotel guilty of any breach of contract therefore do not find the claim well founded therefore it falls."
The worker appealed the Rights Commissioner's recommendation to the Labour Court on the 25th September, 2007, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 11th January, 2008.
WORKER'S ARGUMENTS:
3. 1. The Hotel acted in breach of its contract in failing to provide the worker with accommodation and was also guilty of a misrepresentation in that regard.
2. RT Limited was acting as the agent for the Hotel. This has never been denied and, as a matter of law, it fixes the Hotel with the responsibility for the commitments entered into on its behalf by RT Limited.
3. The worker suffered considerable financial loss as a result of the events detailed above.
HOTEL'S ARGUMENTS:
4. 1. It is clear from correspondence that the worker had already intended coming to the UK, and subsequently Ireland, prior to receiving any offer of employment from the Hotel.
2. The Hotel does not offer accommodation to any of its staff and it made no such offer to the worker. It made every offer to help the worker find accommodation locally including giving him time off to seek same.
3. The worker's starting salary was €40,000, well in excess of industry standard and was in excess of the worker's own expectations. On no account could he have presumed that he would also get free accommodation.
4. There was no constructive dismissal. The worker left of his own choice and, as a result, left the Hotel in some difficulty as it was due to open in two weeks.
DECISION:
The claim before the Court concerns an appeal of a Rights Commissioner’s recommendation which found against the Worker’s claim that he was constructively dismissed.
The Worker told the Court that he was left with no alternative but to leave his position as Senior Sous Chef with the Hotel, as accommodation was not provided with the job and his girlfriend was unfairly dismissed (the latter is the subject of a separate claim).
When account is taken of the fact that he told the Court that when he was informed of the level of salary for the position he assumed it was a “combined package”, i.e. inclusive of an element for the cost of accommodation, it is difficult to understand his dilemma.
Based on the oral and written submissions, the Court is of the view that the Worker decided of his own accord to relinquish his employment without just cause. It was open to him to bring his concerns to the attention of Management and to pursue the matter further through either their internal or external procedures. He gave Management no opportunity to deal with his difficulties. In the Court's view Management acted reasonably in making every attempt to secure accommodation for him (and his girlfriend) on their arrival into the Country and on commencing employment. Management informed the Court that without warning “he vanished”.
Having considered the submissions from both sides, the Court is satisfied that at no point did Management ever indicate to RT Training Research & Consulting Limited or to the Worker that he would be provided with accommodation as part of his remuneration package. Furthermore, the Court is satisfied that Management did not in any way act unfairly to the Worker.
In conclusion, the Court is not satisfied that the Worker has made out a case of constructive dismissal and does not accept that he had no option but to resign.
Therefore, the Court concurs with the Rights Commissioner’s decision that Trim Castle Hotel did not breach any contract and, therefore, upholds his decision in that regard. Consequently, the Worker’s appeal fails.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
7th February, 2008______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.