Complainant

Respondent

Anonymised Parties

An Employee

An Hotel

Representatives

SIPTU

Solicitors (Leahy & Partners)

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00011465-001

22/05/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00011465-002

22/05/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00011465-003

22/05/2017

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

CA-00011465-004

22/05/2017

The Complainant had been employed By the Respondent since 1 March 2016, when they acquired the previous entity as a result of a Transfer of Undertaking on that date. The Complainant had been employed in the previous entity since December 2006.

CA – 00011465-001:

The Complainant claims that while she had been in receipt of full-time hours prior to the Transfer of Undertaking, her hours of work have been progressively reduced since then. The Complainant claims that this is in breach of the terms and conditions of employment. The Complainant is claiming that this amounts to a breach of the Payment of Wages Act and seeks accommodation accordingly.

The Complainant began her employment in 2006 and, after three months, was assigned to the kitchen. In 2008 the Complainant was paid €9.50, which represented an increase on her previous rate due to additional responsibilities. The Complainant claims that the rate of pay remained the same for the duration of her employment. The Complainant stated that she worked on average 40 hours per week but this sometimes increased during busy periods.

On 13 January 2016, the Complainant received a letter from a firm of accountants, regarding the fact that her then employers were in receivership. The Complainant received a further letter on 29 February 2016 informing her that her employment would transfer to the Respondents. This letter also informed her that her existing terms and conditions with not be impacted. However, on 21 April 2016 the Complainant received a Contract of Employment which described her position as a “Catering Assistant”. This letter also stated that her working hours were to be on a casual basis.

The Complainant refused to sign this contract and asserted her existing conditions of employment. This led to some dispute between the Complainant and local management. However, there was no change to the Complainant’s pay or hours of work at that point in time.

The Complainant went on leave from 17 to 30 May 2016.The Complainant states that on her return from leave her hours of work were dramatically reduced. The Complainant claims she was rostered to work approximately 8/12 hours per week for the month of June 2016. The Complainant stated that she was rostered to work between 20 and 25 hours per week, in the period between July and October 2016.

After October 2016, the Complainant was not provided with any hours of work and, as a result, forced to register with Social Welfare. The Complainant stated that she challenged this alteration to her conditions of employment but was unable to receive a satisfactory explanation from the Respondent. The Complainant then instructed her Trade Union to write to the company on her behalf. However, the Complainant states that no satisfactory response was received.

CA – 00011465-002:

The Complainant complaint is set out under this complaint reference is identical to that set out above under reference CA – 00011465-001.

CA – 00011465-003:

The Complainant’s claim under this complaint reference is that she did not receive any redundancy payment. The Complainant stated that she raised the reduction in her working hours, as set out above, by way of a grievance. According to the Complaint, this grievance was not properly investigated, so on 29 March 2017 she wrote to the Respondent stating her belief that a redundancy existed.

The Complainant stated that she did not receive a satisfactory response from the Respondent nor did they agree to make her redundant.

CA – 00011465-004:

Under this complaint reference The Complainant is claiming Constructive Dismissal on the basis that the conduct of the Respondent left her with no option but to leave her job.

Background:

It was stated on behalf of the Respondent that the hotel in which the Complainant worked came under new ownership and management on 1 March 2016.It was stated that prior to this the receivers had issued all employees with forms to update employee records before the takeover. It was stated that the Respondent understood that the Complainant was a part-time worker as she had filled out her employee details, indicating that she was a part-time employee.

It was stated on behalf of the respondent that, during the first few weeks under new management, they were changes made to the food operation. Up to that point, buffet breakfast was offered in the restaurant. Following the change of management, breakfast was cooked to order. It was stated that this decision was made to improve the quality of the food offered to guests as breakfast was one of the biggest source of complaints when the Respondent took over the hotel. The Respondent stated that, as they are a corporate hotel, it was extremely important for the business that these changes were made.

It was stated on behalf of the Respondent that the Complainant used to maintain the breakfast buffet 2/3 days a week. However, with the changeover to cooked breakfast, the Complainant was not qualified or able to take on this role, as she was not a qualified chef.

It was further stated that the Complainant also worked in the pastry section. According to the Respondent, at that time, all deserts were brought from external suppliers into the hotel and the Complainant would merely organise them for service stop it was stated that with the restructuring the new Head Chef made all the deserts in-house and therefore the same amount of time was not required in the section.

It was stated on behalf of the Respondent that the Complainant continued to be offered part-time hours and worked to her schedule. However, the Respondent stated that from the beginning of August 2016, the Complainant started refusing to attend for rostered hours. It was further stated that on the week beginning 29 August 2016, the Complainant was rostered for three days. However, the Complainant refused to work that week and provided no reason for this other than that she was unavailable for work. It was stated on behalf of the Respondent that the Head Chef was left very tight from a staffing perspective on those days, as he had completed the Rota based on the Complainant being available for three days that week.

The Respondent stated that, once the season was over and, as a result of the restructuring that had taken place earlier that year, a number of staff, including kitchen accommodation and bar staff, were placed on temporary layoff. The Respondent claims that the Complainant was informed of this at the time and they continued to sign her social welfare forms on a weekly basis.

In response to the specific complaints made by the Complainant, the Respondent stated as follows:

CA – 00011465-001/2:

In response to the Complainant’s claim in relation to breaches of Payment of Wages Act, the respondent stated that she had been paid all wages that were due and owing to her.

CA – 00011465-003:

The Respondent denied the Complainant’s claim for redundancy on the basis that her job still exists. Consequently, the Respondent stated that the Complainant is not entitled to any redundancy payment.

CA – 00011465-004:

In response to the Complainant’s claim of Constructive Dismissal, the Respondent stated that, it is not clear whether or not she had resigned her employment. The Respondent stated that the Complainant simply did not return to work. The Respondent stated that this was despite their repeated efforts to provide the Complainant with alternative employment.

In addition, the Respondent stated that the Complainant never raised a grievance properly under the procedure of the company and never demonstrated how her position had become untenable to the extent that it qualified her to claim constructive dismissal.

Having carefully considered all the evidence adduced, I am satisfied that the Complainant became an employee of the Respondent, by way of Transfer of Undertaking, on 1 March 2016. Based on the evidence presented, the Complainant was working, on average, 40 hours per week.

From the evidence presented on the Complainant’s behalf, I am satisfied that she continued to work this level of hours up to the end of June 2016. While no detailed evidence was presented in this regard, it was stated that between June and October 2016 the Complainant worked an average of 20/25 hours per week.

The evidence presented suggests that the Complainant did not work any hours for the Respondent October 2016. However, the evidence presented Indicates that, by this time changes taking place in the hotel resulted in there no longer being a position for the Complainant in the restaurant.

While the transfer of undertaking would have protected the Complainant’s terms and condition of employment, I do not consider it unreasonable that, by October 2016, the Respondent was discussing changes to working arrangements with the staff it acquired as part of the takeover. However, I am satisfied that the Complainant was entitled to her previous terms and conditions of employment, including hours of work, up to that point.

Based on the evidence presented on the Complainant’s behalf, no changes occurred in her hours of work up to the end of June 2016. It was further stated that between June and October 2016 the Complainant would have worked on average 20/25 hours per week.

Consequently, taking all the above into consideration, I find that the Complainant is entitled to have this difference in her hours of work redressed for the period between June and October 2016. Based on a median of 22.5 hours per week, over a period of 14 weeks (27/6/2016 to 30/9/216), I calculated this represents shortfall in wages of €2,992.50 for the period in question.

It is clear from the evidence presented, that, in the period August/September 2016, some issues arose in relation to the Complainant’s attendance at work and the nature of work she was being offered at that stage. The evidence suggests that the Complainant was offered alternative employment in the accommodation section.

Taking all the circumstances into consideration, I find that the Complainant’s objection to working in the accommodation section to be unreasonable. I am satisfied that, based on the business changes implemented by the Respondent, there was no longer a position for the Complainant in the restaurant. In that event, I am satisfied that the Respondents offer of a position in the accommodation section represented reasonable alternative employment.

Consequently, in a situation where the Respondent has continued to offer the Complainant reasonable alternative employment I cannot find that redundancy situation exists.

Finally, in relation to the Complainant’s complaint of constructive dismissal, I am satisfied from the evidence presented, that the Complainant was provided with reasonable alternative employment. Consequently, I am satisfied that it was unreasonable for the Complainant to assert that her position had become untenable or that she was left with no option but to resign. The finding in this regard is further confirmed by the Complainant’s evidence in relation to her experiences in gaining alternative employment and the nature/stability of that employment.

CA-00011465-001/002:

Based on the evidence presented and in line with the findings/conclusions are set out in the previous section, I find that the Complainant was paid in full for the hours she worked. However, notwithstanding this, I am satisfied that, in the period immediately following the Transfer of Undertaking, the Complainant was provided with less hours than in the period up to June 2016.

Consequently, based on the calculations set out in the previous section, I find in the Complainant’s favour in the amount of €2,992.50, representing the shortfall in wages for the period June to October 2016. This amount is subjected to the normal statutory deductions that apply to wages.

Note: for the record, CA – 00011465-001 and CA – 00011465-002 were initially submitted under Adjudication Reference ADJ00007602 (CA-00010227-001). A hearing under that reference took place on 4 July 2017 but was adjourned at the request of the Complainant’s representative and in the absence of any representation from the Respondent. When these complaints came before me again at the hearing on 6 September 2017 there were included under the Adjudication Reference ADJ 00009662 and the decisions in relation to those specific complaints are made here under the latter reference.

CA-00011465-003:

Based on the evidence presented and in line with the findings/conclusion set out in the previous section, I find that a redundancy situation did not exist and, consequently, do not uphold the Complainant’s complaint in this regard.

CA-00011465-004:

Based on the evidence presented and in line with the findings/conclusion set out in the previous section, I find that there was no basis to the Complainant’s complaint of constructive dismissal and a complaint in this regard is not upheld.