FULL RECOMMENDATION
SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2012 PARTIES : FOUR SEASONS HOTEL LTD (MS DOROTHY DONOVAN B.L INSTRUCTED BY MALLON SOLICITORS) - AND - IRYNA BULYCHOVA DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. Appeal of Adjudication Officer Decision No. ADJ-00005707.
BACKGROUND:
2. The Employee appealed the Decision of the Adjudication Officer to the Labour Court on the 15 June 2017 in accordance with Section 8(1) of the Terms of Employment (Information) Act, 1994 to 2001. A Labour Court hearing took place on the 1 August 2017. The following is the Decision of the Court.
DETERMINATION:
This is an appeal by Mrs Iryna Bulychova against the Decision of an Adjudication Officer ADJ-00005707, CA-00007912-001 under Terms of Employment Information Acts, 1994 to 2015 (the Act). The Adjudication Officer found that her claim was not-well founded. He proceeded to address other matters which were not the subject of a claim under the Act.
In this Determination the parties are referred to as they were at first instance. Hence Mrs Iryna Bulychova is referred to as the Complainant and Four Seasons Hotel Limited is referred to as the Respondent.
The Complainant referred her complaint to the Workplace Relations Commission under the Act on 1stNovember 2016.
The Complainant had been employed by the Respondent since 24thJanuary 2002. Initially she was employed on wash-up duties and after some time she was moved to other duties, including Housekeeping/Accommodation.
The Complainant lodged her complaint under the Act submitting that she was not notified of a change in her terms of employment.
The Court was requested to provide a Russian Interpreter for the appeal hearing, such was provided by the Court to assist the hearing of the case. The Interpreter confirmed for the Court that he was an accredited Russian Interpreter. The Interpreter translated the Respondent’s submission for the benefit of the Complainant and assisted in the proceedings of the Court. The Complainant indicated that with the assistance of the Interpreter she understood the proceedings.
Summary of the Complainant’s Case
With the assistance of the Interpreter, the Complainant told the Court that she had worked in the Hotel for 15 years. On 18thSeptember 2016 her duty finished at 4.00pm, however, as she had no keys to her home she had to wait for her husband to pick her up. He was away at the time so she was not picked up until 10.30pm. During this time she waited in the Hotel and carried out some unfinished work. The next day she received a phone call from her supervisor asking her to come to a meeting. At the meeting she was questioned as to why she did not leave the premises after her work the previous day and what she was doing in the Hotel. She then went on sick leave.
One month later she was called to another meeting and was informed by management that she was not going to be allowed to return to her normal duties in Housekeeping, instead she was being assigned to the Kitchen to do wash up duties. She said that she could not do this work due to her Osteoarthritis. She remains on sick leave.
The Complainant alleged that she was not notified in writing of a change in her terms of employment, in breach of section 5 of the Act.
Summary of the Respondent’s Position
Ms Dorothy Donovan, B.L, instructed by Mallon Solicitors on behalf of the Respondent denied that there had been a breach of section 5 of the Act. She submitted that the Complainant’s contract of employment issued to her stated that her duties included “Wash-up”.
Ms Donovan explained that the Complainant has failed to provide any explanation or information regarding the incident on 18thSeptember 2016. She stated that such details were only revealed on the day of the appeal hearing before the Court.
Following the incident in September 2016, the Complainant has remained on sick leave. At a meeting on 17thOctober 2016 when no assurances were given to the Respondent, it discussed a move to her original role in Wash-up. As the Complainant has been on sick leave since that date, she has not taken up the duties in Wash-up.
The Respondent stated to the Court that in the event that the Complainant is deemed fit to return to her duties she will be permitted to return to her previous duties in Housekeeping/Accommodation.
The Law
Section 5 of the Act states:-
Notification of changes
- 5.— (1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer undersection 3,4or6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—
(a) 1 month after the change takes effect, or
(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.
Having considered the submissions made by both parties and with the assistance of an Interpreter, the Court understands that there has been no change to the Complainant’s conditions of employment; no change to the title of her job or to the nature of the work carried out by her. The Court notes that the Respondent’s intention to move her from Housekeeping/Accommodation to Wash-up following the incident on 18thSeptember 2016 never actually took place. The Complainant did not dispute this. In any event the Court notes that her contract of employment (copy supplied to the Court) states that her job title is “Wash-up”.
In all the circumstance of this case the Court finds that there was no breach of section 5 of the Act and accordingly upholds the Adjudication Officer’s Decision. The Complainant’s appeal fails.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
LS______________________
4 August 2017Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.