Complainant

Respondent

Anonymised Parties

An Accommodation Manager

A Provider of Short-term Accommodation

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00010187-001

13/03/2017

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00010187-002

13/03/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00010187-003

13/03/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00010187-004

13/03/2017

In June 2016, the respondent acquired the hotel where the complainant worked and her employment subsequently transferred to the respondent. The complainant asserts that the respondent breached the TUPE Regulations and that she was constructively dismissed. The respondent denies the claims.

The complainant commenced working at the hotel in 2007 and was self-employed until 2010. She did not have a contract but worked full-time. The complainant outlined that the meeting regarding the transfer took place on the 25th February 2016, attended by representatives of the transferor and the transferee. She was assured at the meeting that her work and hours would not change. The respondent did not say that titles would change. Staff were informed that they would work at the same location. This transfer of undertaking took place on the 14th June 2016.

The complainant asserted that she was constructively dismissed following the transfer of undertaking. Negative things began to happen the following day. The transfer led to her immediate demotion; an increase in her workload; the deliberate withholding of her Sunday premium; an ultimatum to “sign or resign” in respect of a new, less favourable contract; her freezing out and removal from a Whatsapp group as well as the overall conduct of the respondent.

The complainant stated that immediately after the transfer, she no longer did orders or compiled rosters. Staff no longer put their requests for annual leave to her. She no longer had authority. The roster was put on a Whatsapp group by two named managers.

The complainant put up the roster on one occasion when the Group Accommodation Manager was home in Romania.

The complainant outlined that she met the Group Accommodation Manager on the 1st July 2016. She told the complainant that she was the manager. She said that the complainant was not the manager but a supervisor. The complainant then emailed the General Manager on the 5th July 2016. She was never shown how to use the purchasing system apart from how to order linen. She was also taken off the linen order for some time as the General Manager was doing the orders via a company.

On the 7th July 2016, the complainant was provided with a contract stating that her title was “housekeeping manager”, a demotion. She would no longer be paid a Sunday premium and never received the alternative 25c per hour pay increase, promised by the respondent. It was not clear how Sunday premium was paid, for example in the pay slips.

The complainant outlined that she did the stock take every week and handed notes to the Manager. They used the same suppliers for some time. She never gave the General Manager an order as she was doing everything. She also got people to ask her for approval of their annual leave and not to go through the complainant. After the email of 25th July 2016, the complainant met with the HR Generalist and a Manager and they discussed her role. The complainant was reassured that everything would go back to normal but she was not happy with the hours and how the housekeepers were managed. The manager ensured that the cleaners took their breaks while the Group Manager did not.

The complainant outlined that the respondent changed her start time from 8am to 7.30am. Due to public transport, the earliest she could arrive to work was 7.40am. On her return to work from annual leave in August 2016, she was listed for training in duties that she was already familiar with.

The complainant outlined that she was assigned to work at a different location. On the 5th September 2016, she attended to clean an apartment and was subjected to verbal abuse by the caretaker. This placed the complainant’s health and safety at risk, in breach of the 2005 Act.

The complainant outlined that she explored working part-time with the respondent because she was fed up. When she was told that this was not possible, the respondent asked for her letter of resignation. It was a named manager who brought up making her redundant; she did not raise the issue of redundancy. She had not previously seen the minutes exhibited by the respondent at the adjudication. She was offered her a new contract with no continuity of service and on minimum wage. She was informed that if she did not accept this, she would have to resign. The new contract did not allow her to take a taxi to and from work when work start or finish times fell outside public transport hours. The contract proposed a one-year restraint of trade. On the 22nd October 2016, the complainant was informed that her working hours would change again, to 9am to 5pm.

The respondent asked for her resignation on several occasions. At the last meeting, they offered her the part-time supervisor role, which she had to accept within 24 hours. She replied that she needed more time to consider this.

She did not think she received a response to this email.

Her demotion caused her to seek medical help and counselling. On the 1st November 2016, she went on certified sick leave for work-related stress. She sought to meet the respondent but this was not responded to. She was removed from the respondent Whatsapp group and from the roster. She was then on sick leave and upset. She said that this was the last thing she needed.

The complainant said that she resigned as she was blanked and received no communication. She submitted that the date of the dismissal is the date on which the last sick certificate expired, i.e. the 14th April 2017. This same month, she obtained new employment as an Assistant Manager in a hotel. She now worked 8am to 4.30pm and was paid a little bit more. She outlined that the last pay and pay slip she received from the respondent was in August 2017 for the August public holiday. She asked the respondent why she was paid this and they could not say.

In respect of the Organisation of Working Time claim, the complainant outlined that this was for Sunday pay. She was owed redress for the period of the 15th June 2016 to the 14th April 2017. This is owed at 10% extra per hour for 8 hours worked per Sunday. In respect of the Terms of Employment (Information) Act claim, the complainant outlined that she had not been notified of changes to her terms of employment.

In closing comments, the complainant submitted that time only started in November as there were negotiations in being since June. There were direct talks and complainant was asked to hold off on proceedings while an offer was made. The complainant submitted that there was a substantial change in her working conditions, in breach of the TUPE Regulations. It was appropriate to award redress for this. The complainant was left with no option but to seek employment elsewhere, where she obtained better conditions. The complainant considered herself to have been dismissed. She was not supplied with minutes of meetings. It was submitted that all the complainant was trying to do was her day’s work.

In submissions, the respondent refuted the four complaints made by the complainant. It submitted that the complainant remains an employee of the respondent and has continued to be paid by it. It submits that she retained her terms and conditions of employment following the transfer of undertaking. Her title changed from Accommodation Manager to Housekeeping Manager, in line with its structure. She exercised managerial functions and would no longer clean rooms. It submitted that the respondent approved rosters drafted by managers and there was an automated billing system. The complainant was paid the appropriate Sunday premium. The complainant failed to refer a grievance.

The respondent denied that there was a breach of the TUPE Regulations and any claim was out of time, given that the complaint was lodged in March 2017 and the transfer took place in June 2016. In respect of the Terms of Employment (Information) Act claim, the respondent submitted that a statement was provided to the complainant.

It outlined that it addressed the complainant’s complaint regarding the behaviour of a building caretaker, who would no longer have contact with respondent staff. The respondent outlined that they dealt with complaints and it was not aware of aggression.

In evidence, the witnesses for the respondent addressed the conflicts in evidence apparent from the parties’ respective submissions. In respect of whether the Manager told the complainant to “sign or resign”, he outlined that the complainant had said her husband had a new job and she now wanted to work part-time. They met and the exhibited minutes were taken of the meeting. The respondent stated that the role was full-time, but they offered the complainant the role of part-time supervisor on the same pay. They proposed a new contract of employment, which the complainant refused to sign. He said that as the complainant refused to sign, she would continue in old role, i.e. the full-time 5/7 Accommodation Manager. The Manager said that he did not specify 24 hours to sign the contract but they needed to get this “sorted” as it was ongoing. The manager thought that he had responded to her email and did so on the 14th October 2016.

The manager said that this meeting took place on the 5th October 2016. The complainant was then doing the rosters and giving them to him. They agreed to a change in the complainant’s working hours so that she started at 9am. The manager took over the rosters when complainant was on sick leave. He removed the complainant’s name at some stage but this was from the excel spreadsheet given to staff and not the one on the cloud. He removed the complainant from the Whatsapp group as there were 50 or 60 messages per day and it was busy, at a time when the complainant was out on work-related stress. He did not intend to exclude the complainant.

The respondent outlined that the General Accommodation Managerstepped back after an initial period of integrating the hotel into the respondent network. The Manager said that the ordering changed as they had a different uniform supplier and their ordering system required approval. He commented that supervisors did a weekly stock take and approached the managers. He had pushed this responsibility back on the complainant when he was in the role.

The respondent outlined that the complainant was paid for public holidays in 2017. It submitted that the complainant accrued 20 days of annual leave since going on sick leave. It submitted that on the 6th October 2016, the complainant was paid for the 49.75 hours of Sunday hours owed to her.

In closing comments, the respondent submitted that the issue of pay slips is a matter for the Payment of Wages Act and not within the ambit of the Organisation of Working Time Act. There was a five-month period where the complainant did not raise a grievance and she was well used to taking grievances from staff. In respect of the TUPE claim, there was a conflict regarding the rosters and the stock. It commented that the complainant had changed her evidence in relation to her role and the stock. It submitted that the hotel was transferring into a group so there were going to be changes. After the transfer, the respondent used up the stock it had built up. The ordering system was modernized and put online. The respondent said that the complaint pursuant to the TUPE Regulations was submitted out of time. The complainant had legal representation when making the complaint to the WRC.

The respondent submitted that there was no resignation or dismissal, so no redress could be awarded. The complainant remains a valued employee and an offer had been made of an alternative position. The respondent was growing and there was scope to progress.

CA-00010187-001 Organisation of Working Time Act.

This complaint is not well founded as on the 6th October 2016 the complainant was paid the outstanding Sunday hours due to her.

CA-00010187-002 Transfer of Undertakings.

This is a complaint made pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations. The complainant asserts that the respondent did not preserve her terms and conditions of employment following the transfer; the respondent denies the claim and asserts that it is out of time.

The relevant part of Regulation 4 provides:

“4. (1) The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.  (2) Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.”

Regulation 10 of the Regulations state:

 “(5) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a provision (other than Regulation 4(4)(a)) of these Regulations shall do one or more of the following, namely: (a) declare that the complaint is or, as the case may be, is not well founded, (b) require the employer to comply with these Regulations and, for that purpose, to take a specified course of action; or (c) require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable in the circumstances, but - (i) in the case of a contravention of Regulation 8, not exceeding 4 weeks remuneration and, (ii) in the case of a contravention of any other Regulation, not exceeding 2 years remuneration, in respect of the employee's employment calculated in accordance with Regulations made under section 17 of the Unfair Dismissals Act 1977.”

Subsections 6 and 8 of Section 41 of the Act of 2015 state:

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

…

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The complainant has not been able to show reasonable cause to extend the above time limit. The fact that there was an exchange of correspondence between the parties did not prevent the complainant from referring this complaint. There was no misrepresentation on the respondent’s part.

Regulation 10 requires complaints to be referred to the WRC within six months of the date of contravention. A contravention of Regulation 4 could arise on the date of transfer or on some later date. The six-month limitation period begins from the date the alleged contravention takes place (and not the date of the transfer) and this could occur sometime after the transfer.

The complainant raises various incidents where she says that her terms and conditions were not respected. The instances that fall within the scope of this adjudication are those that occurred in the six months prior to the referral of the complaint, i.e. the period between the 13th September 2016 and the 13th March 2017. Other instances can be of evidential value in determining whether a breach occurred within the limitation period.

Having considered the evidence of the parties, it is clear that it was the complainant who raised her moving to part-time hours (as set out in her note of the 30th September 2016). I am satisfied that this took place in the context of an altered and demoted role. I note that it was not clear to the complainant what her role would be following the transfer. The evidence points to substantial changes to the complainant’s role, resulting in her mounting dissatisfaction. I find that the complaint is well founded. Taking account of the extent of the breach, I award redress of €2,500.

CA-00010187-003 Unfair Dismissals Act.

The complaint was referred to the Workplace Relations Commission on the 13th March 2017. The complainant submits that her employment ended on the 14th April 2017. Notwithstanding the fact this falls after the complaint was lodged with the WRC, the respondent continued to pay the complainant for public holidays, including the August 2017 public holiday (in line with Schedule 3 of the Organisation of Working Time Act). This signals that she remained an employee of the respondent and there can be no finding of dismissal, unfair or otherwise. The complaint of unfair dismissal is not well founded.

CA-00010187-004 Terms of Employment (Information) Act.

Having considered the evidence and submissions of the parties, this claim is well founded to the extent of a changed location of work. I note that the complainant worked for many years at one location and was asked to work elsewhere. This led to her difficult and threatening interaction with the building caretaker. The complainant was not notified of her changed location of work, in breach of section 5 of the Terms of Employment (Information) Act. I award redress equivalent to two weeks’ wages, i.e. €700.

CA-00010187-001

I find that the complaint made pursuant to the Organisation of Working Time Act is not well founded.

CA-00010187-002

I find that the complaint made pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations is well founded and the respondent shall pay to the complainant redress of €2,500.

CA-00010187-003

For the reasons set out above, I find that the complaint made pursuant to the Unfair Dismissals Act is not well founded.

CA-00010187-004

I find that the complaint made pursuant to the Terms of Employment (Information) Act is well founded and the respondent shall pay to the complainant redress of €700.

Transfer of Undertaking Regulations

Regulation 4 / Limitation periods

Terms and conditions of employment