ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00022595

Parties:

	Complainant	Respondent
Anonymised Parties	Housekeeping Supervisor	Hotel

Representatives

Jason Murray BL,

Mark McCartan Solr.

McCartan Burke Solrs.

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00029517-001	08/07/2019

Date of Adjudication Hearing: 03/10/2019

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 13 of the Industrial Relations Act of 1969 (as amended by the Workplace Relations Act 2015 so as to include Adjudication Officers) and where a trade dispute (not specifically precluded by Sect. 13) has been identified and has been referred to the Director General of the Workplace Relations Commission who in turn refers such a dispute to an Adjudication Officer, so appointed, for the purpose of having the said dispute heard in similar manner as has been set out in Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Act which allows the Adjudication Officer to Investigate a matter raised. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.

Having confirmed that the Complainant herein is a Worker within the meaning of the Acts and Having conducted the Investigation as described in Section 13, I, as the so appointed Adjudication Officer, am bound to make a recommendation which will set forth my opinion on the merits of the within dispute.

Under Section 36(1) of the Industrial Relations Act 1990, any party may object to an investigation by an Adjudication Officer of the dispute raised in the complaint form. The Respondent employer must indicate any such objection in writing within 21 days of the notification of the dispute raised in the workplace relations complaint form. In the event that the Employer does not indicate an unwillingness to have this matter dealt with by way of Adjudicator investigation, the Employer will be regarded as having given consent.

If an objection is not received within the required timeframe and in the required format but at a later date it will not be considered valid for the purpose of this Act, and a hearing in relation to the dispute will be assigned.

Background:

The Complainant is disputing her Employer’s entitlement to demote her on her return to the workplace after her maternity leave. The Complainant is brought by way of Workplace Relations Complaint Form dated the 8th of July 2019.

Findings and Conclusions:

I have carefully listened to and considered the positions of each of the parties. The Complainant has worked with the Respondent hotel for over 15 years. There are no disciplinary issues and the Complainant has always been a good employee. At a date unspecified the Complainant was promoted to Housekeeping Supervisor which meant that she had up to twelve housekeeping staff under her charge and she was responsible for the turn around and cleanliness standards of the bedrooms being occupied in this busy hotel. I understand that this promotion might have come with a probationary period which was successfully achieved.

The Complainant has (it is common case) worked up to 18 months in the Supervisors role before going out on a Maternity Leave in March of 2018. I accept that before the Maternity Leave the Complainant was working up to 45 hours per week which was 7 hours over the 38 hours per week she was contracted to work. This had been a regular feature of her employment and I accept the Complainant had come to rely on the salary these hours achieved at a rate of circa €10.80 per hour.

On her return form Maternity Leave in April 2019 the Complainant’s work rate or performance came into focus to the extent that the Hotel owner/Manager was highly critical of her work and pushed her to return to Housekeeping. The said Manager wrote three letters in a short period culminating in a letter of the 8th of July which simply demoted the Complainant back to Housekeeping duties without allowing the Complainant any opportunity to defend her position. This action was quite simply wrong and to the credit of the Respondent team before me, they have proposed the Complainant’s immediate re-instatement into the position of Supervising Housekeeping. In addition, the Employer has offered to expunge the Complainant’s Disciplinary file.

The more important issue from the Complainant’s point of view was the reduced hours which she had worked in the period of time when she was demoted. The payslips tended to demonstrate that for that 12 week period the Complainant was only scheduled to work for about 37 or 38 hours a week which resulted in a weekly loss of salary in the amount of circa €75.00 (excepting where holidays and or illness meant there was a shortfall in hours worked).

The Respondent put it to me that had the Employer followed proper procedures and lawfully demoted the Complainant for demonstrable non-performance then the natural consequence would have been the reduction of hours. This may well be the case, but I cannot make decisions based on hypothetical situations and must address the facts that are presented and uncontested. In the circumstances I am minded to recommend that the Employer pay a one off lump sum by way of compensation.

Understandably, the Complainant wants her hours re-instated into the future. I have listened to the solid evidence of Ms. OL who is the Hotel Manager and she has advised that moving forward there will be scope to give extra hours as the Hotel is completing a renovations and expansion programme which will see Employees given greater opportunity to work longer hours. I trust M OL and I believe she will try and facilitate that the Complainant’s work hours, where practicable, will be re-instated so that salary she has come to rely on can be made up once again.

Decision:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00029517-001

Having listened to both parties I recommend that the Employer acknowledges the Complainant’s entitlement to be recognised as a Housekeeping Supervisor and that she be accorded all the seniority this role commands. I further recommend that the Complainant’s Disciplinary record be wiped clean as if she had never been disciplined.

I would further recommend that the Employer familiarise himself with the proper procedures to be adopted when assessing performance and exercising any disciplinary options.

I recommend that the Employer pay to the Complainant a once off figure of €650.00 to acknowledge the careless treatment of such a long standing and loyal employee. This sum of money should be paid within four weeks of the issuing of this decision.

I recommend that all practical efforts be made to ensure and schedule the Complainant to work for 45 hours a week.

Dated: 4th December 2019

Workplace Relations Commission Adjudication Officer: Penelope McGrath