EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Julija Lozko UD1448/2013
-claimant
against
Emardress Limited
-respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. J. Lucey
Members: Mr. P. Casey
Mr. P. Trehy
heard this claim at Killarney on 1st August 2014
Representation:
Claimant: Mr. Martin Corbett, Siptu, Connolly Hall
Lapps Quay, SIPTU, Cork, Co. Cork
Respondent: Ms Clodagh Brick BL, instructed by Mr. Adrian Hegarty Solicitor,
Malone Hegarty Solicitors, Muckross road, Killarney Co. Kerry
Respondent’s case:
The Tribunal heard evidence from the respondent HR manageress (aka OM). The respondent is a hotel which is one of a number of hotels in a hotel chain. The witness told the Tribunal that during the peak season the respondent has 400 employees and 150 to 120 employees otherwise.
In April 2006 the claimant commenced employment as an accommodation assistant in a full time “seasonal” position. She worked between 30 to 40 hours per week and a minimum of 30 hours. She worked in the laundry room or cleaning bedrooms or cleaning the public areas. There are 180 bedrooms in the hotel. In 2009 the claimant worked in laundry and she was moved back to accommodation duties (Acc). There were some performance issues with the claimant.
In March 2010 the claimant expressed concerns regarding her family financial circumstances; she wanted to work four days rather that five because this would actually be more beneficial to her because of family welfare and revenue situation. She asked the claimant to put her request in writing. The respondent had concerns that if one Acc assistant was allowed to go on a four day week that all of them might want to go on a four day week. It was put to the witness that the claimant wished to work fewer hours to obtain more social welfare or to work more hours and receive more pay and the witness agreed.
The claimant did not seem happy with the situation and “her performance seemed to dip”. The claimant was on maternity leave up to early 2013. When she returned in April 2013, the work practices had been changed. In particular the practice of cleaning rooms had changed. The rooms had been allocated 30 minutes to be cleaned. But this was changed to 15 minutes for “stay over room” and to 30 min for a “stop over room”. The changes were explained to the claimant by the accommodation manageress (NW).
The claimant had difficulty with the work changes and on many occasions the other staff members had to help the claimant to finish her rooms. The other staff were not happy that they worked the agreed changes and that the claimant did not work to the changes. She and the general manager met with the claimant and tried to deal with her concerns but the claimant would not engage properly, “she just shrugged her shoulders”.
The accommodation manageress and supervisors spoke to the claimant every day about the situation. The witness was asked if the claimant was aware that management was unhappy with the situation and she replied “yes”.
The accommodation manageress met the claimant and the claimant refused “point blank” to work more than 12 rooms. The witness explained that because of gross misconduct in that the claimant refused to carry out a reasonable instruction from the company they dismissed her. The company honoured her terms of employment and the claimant breached her terms of contract.
Letter dated 17th May 2013 to claimant:
“You returned to work with the hotel on 17/04/13. Since you have returned to work you have failed to adhere to the work practices in place in your department and have consistently refused to work to the agreed targets within your department. You were met by the General Manager and I on 1st May to discuss this matter and you were provided with an opportunity to discuss any concerns that you may have.
Please be advised that should you continue to refuse to work to the targets (i.e. 30 minutes cleaning time for departures and 15 minutes for stay-over's rooms) the company will have no alternative but invoke the disciplinary procedure.
You are expected henceforth to work to the targets of the department.
If you require any further clarification please do not hesitate to contact me.”
Letter dated 22nd May 2013 to the claimant:
“Further to our meeting on 17.05.13 it is disappointing to note that that you have consistently failed to adhere to company work practices in the accommodation department by refusing to work to the targets specific to your job, role.
Your continued refusal to work to the targets amounts to:
* A serious breach of company rules and policies and procedure.
* A refusal to carry out a reasonable Instruction of management.
Taking the above factors into consideration the company has no alternative but to deem your actions as Gross Misconduct.
In view of the seriousness of your conduct, the company has decided there was no alternative but to dismiss you with immediate effect.
You will be paid for any accrued but untaken holiday leave up to the termination date. This payment is subject to legally required deductions including tax etc.
Your p-45 will be forwarded to you in due course.”
The witness agreed in cross exam that there was an increase in workload. The witness was asked why the grievance procedure was not invoked and she replied that the staff were unhappy to help the claimant every day, and the claimant was “going slow and only did 12 rooms”. The witness disagreed that the respondent changed the terms and conditions of employment. When put to the witness that the company imposed terms and conditions the witness answered “It had changed a year earlier”.
The Tribunal heard evidence from the accommodation manageress (NW). The witness gave extensive evidence to the Tribunal. She told the Tribunal that the claimant refused to do more than 12 rooms; “on a daily basis she refused to do more than 12 rooms, point blank refused”. Other staff had to finish rooms that the claimant had not done. They did try to help the claimant every day.
In cross-examination the witness that she did not give the claimant a verbal or written warning but that would be a matter for personnel.
Claimant’s case:
The Tribunal heard evidence from the claimant. She commenced working in the hotel from April 2006 and worked in housekeeping. In 2009 she was placed in the laundry. The claimant told the Tribunal that she did not have a problem with management. The hotel closed for winter time and she called to the hotel on 22nd March 2013 and the manager told her that there was no work. She did return to work but her hours were reduced from 35 hours to 30 hours. Also her working duties were increased from 12 rooms to 24 rooms. She did not have any difficulty with work.
She was called to a meeting on 17th May 2013. She was asked why she did not complete the work in a room or rooms in 15 minutes. She explained to management that it was hard for her to do. She also explained that she was working hard.
Prior to her dismissal she never received verbal or written warning. She did not get a notification that she could appeal her dismissal.
In clarification to the Tribunal the claimant stated that she did not refuse to carry out work.
Determination:
The Tribunal having heard the evidence adduced in this case determines that the company procedures were not adequate. The company had no appeal procedures. The Tribunal determines that the claimant was unfairly dismissed. The Tribunal determines that compensation be the most appropriate remedy an awards the claimant the sum of €11,500.00, under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)