Complainant

Respondent

Anonymised Parties

Kitchen porter / office administrator

Hotel

Representatives

SIPTU

ESA Consultants ESA Consultants

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-00013137-001

15/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00013137-002

15/08/2017

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

CA-00013137-003

15/08/2017

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

CA-00013137-004

15/08/2017

The complainant commenced employment with the respondent in June 1999. She worked 39 hours a week and earned a weekly, gross salary of €700.

She had to leave her job due to the conduct of her employer or others at work. Her employment ended on 5/3/2017.

She did not receive her statutory minimum period of notice on the termination of her employment or payment in lieu thereof.

She submitted 4 complaints on 15/8/2017.

CA-00013137-003

The complaint that she did not receive her paid holiday/annual leave entitlement was withdrawn at the hearing.

CA-00013137-004.

The complaint that she did not receive the appropriate payment in lieu of notice of termination of her employment was withdrawn at the hearing.

CA-00013137-001.

The complainant commence employment in 1999 as a kitchen porter. The employer acknowledges her diligence.

The hotel changed ownership in 2013. The Hotel outsourced the HR function to a firm of consultants and the partnership approach to determining conditions of employment and work practices was replaced with a style of management characterised by unilateral changes.

Throughout 2015 and 2016, the complainant raised issues with the hotel management. They were as follows;

Work overload.

On occasions, the respondent reduced the complement of kitchen porters from 2 to 1 leaving her to function on her own in a hotel which had 8 conference rooms, 40 boardrooms, a ballroom and 270 bedrooms. The complainant submitted images of kitchens and bins overflowing with unwashed dishes and rubbish. In February 2015, the complainant sought a meeting with management to discuss her concerns and to be accompanied by her shop steward. This did not happen.

In August 2016 the manager continually asked her to fill trollies. She went home. She went to a doctor who diagnosed workplace related stress and was certified unfit to work for several weeks. In September 2016, she returned to work out of what she says was economic necessity. But she was still left to work on her own as a kitchen porter instead of with the previous complement of 2.

A request for a move to a different department.

Upon making this request, the HR consultant proposed that he would shadow her in her work to understand the extent of her workload. She agreed to this. She heard nothing further.

The complainant advised that she asked to be moved to Accommodation but that no offer was made. She denied she was offered it.

The complainant advised that the shop steward informed the respondent’s HR consultant, tasked with dealing with staff issues, that a hall porter’s position would be unsuitable as she would have to carry luggage.

In or around March 2016 management asked her to collect trolleys full of crockery from the restaurant, bring them to the kitchen, empty the bins and return them to the restaurant. These tasks were in addition to the excessive amount of duties attendant on her function as a kitchen porter and already notified to management. She asked for a transfer to another department. Three months later they responded refusing the request and advising that the head chef needed all staff in the kitchen.

She met the respondent’s HR consultant service provider in October 2016. She advised him that job changes had been put in place on her day off without prior notice and that this added to her already excessive workload and how she was continually left on her own instead of having a colleague to assist. She asked to be moved. At the same October meeting the respondents’ representative, the HR consultant said that he would talk to front of house staff about a move to that department.

It is accepted that she sought redundancy as there were widespread redundancies afoot at that time.

Contrary to the respondent’s statements, the complainant denies that she was offered alternative work. Minutes of two of the alleged meetings to address her concerns are undated; one is dated as having taken place on the 12/5/17 but the complainant had left her employment  2 months previously. The complainant’s representative points to the offer of a “gratuity” by the respondent as evidence that the employer knew that the complainant had serious concerns.

The complainant’s representative cites the Paris Bakery and Pastry Ltd v Mrzljak, DWT 68/2014 determinationin which the unreasonableness of the employer’s conduct could lead an employee to resign. It is authority for the circumstances which the complainant faced; she had 18 years’ service with the respondent, tried to address her concerns with the management and was ignored. There was no grievance procedure in place. The workload was untenable and unmanageable. She made exhaustive efforts to remedy the situation to no avail. The alternative job which she was offered in Functions was unsuitable as it entailed moving a lot of heavy furniture. She was not offered a front of house or office position. The shop steward could not get a meeting with hotel management to address her concerns.

The complainant submitted her resignation on 19 February 2017 and gave 2 two weeks’ notice.

The complainant asks that her complaint be upheld. The remedy sought is compensation.

She secured alternative employment on11/5/17, earning €22,000

CA-00013137-002.

She submitted her resignation on 9 February, giving 2 weeks’ notice.

Complainant was paid up to 9 March which was the salary for the previous week.

CA-00013137-003

Complainant’s rep withdrew this complaint.

CA-00013137-004

Complainant’s rep withdrew this complaint.

CA-00013137-001.

The complainant was employed as a kitchen porter.

The hotel changed ownership in 2013. The complainant was retained.

The respondent’s representative advised that the complainant resigned. Her job is still available. The complainant’s history with the respondent is that she was held in very high regard and this was conveyed to her repeatedly.

In December 2014 the complainant indicated that she was not happy and wanted a redundancy. On 25 February 2015 the complainant withdrew from the company’s Death in Service policy.

The respondent knew she was unhappy, wished to retain her as she was invaluable and she was offered alternative positions. She was offered the option of retraining as a chef but declined. She was offered a position in Accommodation. She did not follow up with the manager on this option. The respondent states that she never reverted to him on offers made. He never shadowed any employee.

There is a grievance procedure in place for employees. The respondent undertook to send a copy of the grievance procedure to the WRC within a few days. It is contained in the 2014 Staff handbook

The complainant requested redundancy In and around October 2016. She stated as well that she wished to move to another department stating that she had a third level degree in hotel management and that she had worked in the kitchen for over 16 years. Several meetings took place with the complainant to dissuade her from leaving and offering to move her to work in other areas. She was offered a move to Hotel Functions- the preferred area identified by the complainant. The then manager planned for her transfer but the complainant changed her mind, failed to turn up and did not convey her agreement to take up this option.

She again requested a transfer a few months later, the respondent met her. She wished to have more time to consider possibilities She requested a redundancy. The respondent refused as she was needed in the kitchen. The complainant stated that her brother had sued the hotel previously, had secured a payment, that she wanted redundancy and in her view, was entitled to same.

It is correct that the respondent offered her a gratuity as an incentive to remain if she was unhappy but certainly not redundancy. The complainant rejected the gratuity and continued to work.

She declined a front of house offer and an office position.

In January 2017, the respondent enquired from her as to why she was refusing to take cutlery off trolleys. She replied that her union had advised her that this was optional.   At this meeting there was a discussion as to why she was unhappy. She stated that it was because she had a degree and had worked in the kitchen for 16 years. It appeared to the respondent that she wanted redundancy. The respondent reminded her of the offer of alternative roles and that as there was not a genuine redundancy she could either take one of the alternative roles or continue to work in the kitchen.

The complainant appeared to have settled down and continued to perform her duties. The complainant sought out the head chef on 19 February and presented him with a letter of resignation effective the 5 March. She advised the respondent that she was going to work with her brother.

The respondent’s representative advised that the complainant had submitted 2 letters of resignation, one dated the 18 October 2016 and one 19 February.

The notes of the meetings, undated, and submitted in evidence by the respondent’s representative were meetings which he states were conducted over a 4- 5-week period from November to December.

The shop steward never sought a meeting with the respondent before her resignation. The note of the meeting of 12/5/17 was a meeting held with the complainant’s shop steward to consider a range of matters. It was his comment that the complainant wanted redundancy.

CA-00013137-002

The respondent stated that the claim for statutory redundancy is not well founded as she was paid for the 2 weeks of notice during which she worked.

The Law.

Constructive dismissal is defined in s 1. of the Unfair Dismissals Act, as

“The termination by the employee of his contract of employment with his employer whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee is or would have been entitled, or it was or would have been reasonable for the employee to terminate the contract without giving prior notice of the termination to the employer”.

The dismissal is in dispute. The burden of proof rests with the complainant in a complaint of constructive dismissal. The tests for constructive dismissal were set out by Lord denning, MR in Western Excavating (ECC) v Sharp (1978) and repeatedly set out in subsequent complaints of constructive dismissal and described thus:

“conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract then the employee is entitled to treat himself discharged from any further performance”.

The reasonable test was expressed as

“an employer who conducts himself or his affairs so unreasonably that the employee cannot be fairly be expected to put up with it any longer, the employee is justified in leaving”

The proofs which the complainant must advance to prove her case are that the behaviour of the respondent and of which she complains correspond with the requirements laid out in one or both of the two tests and was behaviour which left her with no option other than resignation.

Did the respondent’s behaviour meet the threshold of behaviour so intolerable as to conclude that resignation was the only option?

The complainant advanced a number of reasons to substantiate her complaint of constructive dismissal.

What is not in dispute is that the complainant wanted redundancy, that the respondent was on notice of her concerns about the increasing workload, that the complainant sought a move out of the kitchen, that alternative options were considered and that her job remained open. The fact that she sought redundancy does not rule out the possibility that the employer may have behaved in an intolerable fashion.

There is no evidence that the shop steward sought a meeting with the respondent to address the complainant’s concerns. He was not present to confirm same and it was denied by the respondent. The minutes of the meeting the 12 May 2017 recording the shop stewards request for the redundancy for the complainant was not disputed.

The respondent did not submit a copy of the grievance procedure as suggested.

It is accepted that at the very least alternative positions were considered. How far these alternative positions were examined, pursued or offered is what is at issue. The evidence is that the respondent made three offers of alternative employment. The evidence does not indicate that the complainant pursued these options sufficiently. She allowed the offers to rest. Even if they were merely proposals which did not develop into offers - which is her evidence, the seriousness of her intent to assume an alternative role is called into question by the absence of pursuit of these options on her part. She was content to state at the hearing that the respondent never got back to her.

The complainant’s attempts to resolve the workload issue were concentrated on flash points- being asked to clear trolleys or fill them. Even if I were to accept that there was no grievance procedure, she was obliged to give the respondent an opportunity to rectify the matter. The complainant’s response was to seek redundancy or an alternative position. The respondent refused redundancy as there was not a genuine redundancy. The complainant’s evidence is not sufficient to disprove that the respondent failed to address her concerns. I find that the respondent did make attempts to provide her with alternatives to her role as a kitchen porter.

I do not find that the complainant meets the heavy burden of demonstrating that the respondent’s behaviour was so intolerable as to leave her with no choice but to resign.

CA-00013137-002.

The complainant worked and was paid for the 2 weeks of notice which she provided to the respondent and which ran from 19 February to 5 March. She is claiming an entitlement to the 8 weeks allowable based on her 18 years of service. As I find that it was a resignation, the question of an entitlement to payment for the weeks beyond what she worked does not arise.

CA-00013137-001.

I do not find the complaint of a breach of Section 1(b) the Unfair Dismissals Act, 1977 to be well founded.

CA-00013137-002.

I do not find the complaint under the Minimum Notice & Terms of Employment Act, 1973 to be well founded.

Constructive dismissal; adequacy of employer’s efforts to address problem; statutory notice when complainant resigns.