Complainant

Respondent

Anonymised Parties

Housekeeper

Hotel

Representatives

Frank Drumm B.L.                         instructed by Alec Gabbett Leahy & Partners Solicitors

Alan Kavanagh

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00019080-001

11/05/2018

The Complainant contends that she was unfairly dismissed for refusing to sign a revised contract of employment which she contends demoted her and reduced her pay.

The Respondent denies that the Complainant was dismissed. It is contended that after many months of protracted issues between the parties, the employer asked the Complainant to sign her new contract for continual employment and advised her both orally at a meeting on 13th March 2018 and also in writing a number of times that failure to return the signed contract would result in the employer’s conclusion that she was no longer interested in remaining in the employment. By letter dated 4th April 2018, the Respondent advised the Complainant that

“the Company have concluded, following a meeting of the Directors, that by your action in not returning the 2018 Employment Contract signed as per request, that you no longer wish to work at (the employment) and have therefore from yesterday 3rd April accepted your voluntary resignation and have removed you from the list of staff employees with effect from today 4th April 2018.”

The fact is, that when the contract of employment was offered, the Complainant was in the position of Housekeeper having been demoted from the post of Head of Housekeeping. This position reflected this, as she had been notified of this in advance of the contract being offered. While there are several attributing issues as to why the Complainant was demoted the fact remains that she was offered a contract of continual employment as Housekeeper and having declined to accept and return the signed contract, was deemed to have voluntarily left her employment.

There was an issue which arose between the Complainant and the Respondent in or around June 2017 at the heart of which was a claim for Sunday premium payment.   A WRC Inspector made a recommendation to resolve the issue, which the Complainant refused to accept.   She fell into a pattern of disagreeing with any proposals to resolve the issue and this went on from June 2017 up to the time when she went on sick leave in January 2018.

In January 2018, it was necessary to issue the Complainant with a final written warning after she created a scene in the main hall of the hotel.

However, the issue of demotion arose when the Complainant was out on unexplained sick leave for over two months, giving no reason what her illness was and giving no indication of a return to work date. The Respondent operates a business which relies heavily on the direct involvement of the employees to deliver the service to guests. The Complainant placed herself in a position where she was no longer capable of running the Housekeeping department for which she had responsibility.

The Company believes it has acted fairly and reasonably in all its dealings with the Complainant since June 2017 to the present date and that as she refused a contract of continual employment, she was not dismissed but resigned her position as a consequence.

Summary of Complainant’s Case:

Having considered the evidence in this case, I find as follows:

The Complainant had over 14 years’ service with the Respondent. Although her employment appears to have not been problematic up until June 2017, the various industrial relations type problems appear to have led to a break in cordial relations between the parties. The Respondent’s frustration at the lack of co-operation from the Complainant is understandable up to a certain point. However, she was demoted without due process when the Respondent found it was unacceptable for her to be out sick without nature of illness entered on the medical certificates. She had been issued with a final written warning prior to this, for another matter, in January 2018, again without due process.   Statutory instrument S.I. 146/2000 provides a code of practice for the application of grievance and disciplinary procedures in the workplace, including rights for employees to have an opportunity to respond to and appeal against disciplinary measures. In the case of the final written warning, I find that no formal procedure was invoked by which the Complainant could have her opportunity to respond or appeal.   Likewise in the case of the demotion of the Complainant.

In relation to the assertion of the Respondent, that the Complainant effectively resigned her employment by failing to return the signed contract, the definition of dismissal in the act is :

“dismissal, in relation to an employee, means –

(a)    The termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee”.

I find that the Respondent terminated the Complainant’s employment and that she did not voluntarily resign her employment. For the reasons above, I find that the Complainant was unfairly dismissed. I find that the appropriate remedy is compensation.   As the employment relationship has irretrievably broken down, re-instatement or re-engagement are not appropriate remedies.

I require the Respondent to pay to the Complainant the sum of €9,000 compensation.