ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | Employee | Hotel |
Representatives | Emma Carton Richard Nolan |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00020506-001 | ||
CA-00020506-002 | ||
CA-00020506-003 | ||
CA-00020506-004 | ||
CA-00020506-005 | ||
CA-00020506-006 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015,Section 8 of the UnfairDismissals Acts, 1977 - 2015, and Section 27 of the Organisation of Working Time Act 1997, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant submitted 4 complaints under the Organisation of Working Time Act concerning lack of breaks, non notification of working hours non notification of additional hours and daily rest periods. This latter complaint was withdrawn at the hearing. The Complainant also contends she was constructively dismissed from her position when she felt it no longer tenable to continue working there. |
Summary of Complainant’s Case:
The Complainant worked in the hotel under previous ownership for twenty years. She received redundancy and was re-employed under the new management. She claims she was constructively dismissed on 15th May 2018 as a result of the unfair treatment she was subjected to following the appointment of the new manager Mr N in or around January 2018. There were a number of grievances from various staff and some meetings were held to air those grievances on 10th March, April and May 2018. The Complainant contends that due to being vocal and outspoken in the meetings Mr N ignored and belittled her, intimidated her and reduced her working hours and scheduled her for unsocial hours. She suffered much upset and anxiety when she was scheduled to work on the day of her granddaughter’s communion day, which had been scheduled as a day off for her. In addition, a false allegation had been made against the Complainant by a new employee Ms D and this was left unaddressed for over a month. On 14th May 2018 the Complainant informed the Respondent that she was forced to hand in her notice and she set out the grounds of her grievance. The Respondent replied by requesting she undergo a trial period working with Mr N. The Complainant indicated that she could no longer work with Mr N and could not return on such terms. It is contended that the conduct of the Respondent was so unreasonable that the Complainant could not be expected to continue in such an environment. It is argued that the Complainant was never provided with an Employee Handbook or Grievance and Disciplinary Policy. It was also stated that the Complainant did not get proper breaks while on duty and her hours were constantly changing without notice. One day she was told to go home – a 30 mile round trip – because she was not needed. |
Summary of Respondent’s Case:
The Respondent outlined the sequence of events from 14th May 2018 when the email was received from the Complainant outlining her grievances and resignation. The HR Manager made contact with the Complainant by email and phone regarding her issues. The Complainant stated that no one liked the Manager Mr N and she wanted him gone. She said she was seeking her solicitor’s advice and that she wanted a payment or else she would take a claim. The HR Manager told the Complainant that all issues would be notified to the General Manager and Owner and would be reviewed. On 13th June 2018 the Complainant was told by HR that there had been an investigation into her complaints and that there was no grounding or evidence to support her contention of unfair treatment regarding hours, breaks or late shifts. All staff are advised to highlight concerns regarding hours to the General Manager / Supervisor on duty to ensure they receive breaks. Rosters are placed in the communal staff area behind the bar in advance of the previous week. |
Findings and Conclusions:
CA-00020506-001 Organisation of Working Time Act 1997 |
This complaint, concerning rest periods was withdrawn at hearing. CA-00020506-002 Organisation of Working Time Act 1997 Breaks |
The Complainant contends that she did not receive proper breaks during working hours. |
Section 12 of the Act provides:
“12 – (1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.
(2) an employer shall not require an employee to work for a period of more than 6 hours without allowing him a break of at least 30 minutes; such a break may include the break referred to in subsection (1)”.
The Act also provides that where an employer does not provide records the burden of proof that the Act has been complied with lies with the employer.
I accept the Complainant’s evidence that breaks were dependent on whether another employee was working with her. I find that this does not comply with the Act and I find her complaint to be well founded. I require the Respondent to pay to the Complainant the sum of €500 compensation.
CA-00020506-003 Organisation of Working Time Act 1997 Non-notification of hours
Section 17 (1), (2) and (5) of the Act provides for information on working hours. I note the evidence of the Respondent that rosters are available in the staff communal area. This complies with 17 (5). I do not find the complaint to be well founded.
CA-00020506- 004 Organisation of Working Time Act 1997 Notification of additional working hours
Section 17 (2) provides for notification to an employee in respect of “additional working hours”. The main complaint the Complainant appears to have regarding the case reference numbers CA-00020506-003 and 004 is that she was sent home one day (on an unspecified date) due to not being needed for that shift. While this is undoubtedly bad practice on the part of management, I find it does not transgress this section of the Act which caters for additional hours. I do not find the complaint to be well founded.
CA-00020506-005 and CA-00020506 Unfair Dismissal
The Complainant clearly had a number of grievances during the last 4 months of her employment. I accept her evidence that she spoke up at meetings and that there was unsatisfactory treatment particularly regarding the Respondent’s handling of her grievance with the other staff member. There is enough evidence submitted to demonstrate that an investigation should have been conducted before the Complainant resigned and not after the fact. The situation came to a head on 14th May 2018 when the dispute with the other employee was deemed by management to have been resolved. However, I accept the Complainant’s evidence that the Manager showed bias to the other staff member and left the Complainant feeling isolated. If the Respondent had acted positively either post the 10th March meeting, or by offering an independent mediation at the time of resignation, the outcome may have been better for both parties. In the circumstances, I find that the Complainant had no option other than to let her resignation stand. I uphold her complaint that she was unfairly dismissed by constructive dismissal. I find compensation to be the appropriate remedy. I note the Complainant secured work some six months following her termination of the employment. I require the Respondent to pay to the Complainant the sum of €5,730 compensation.
Decision:
CA-00020506-002 Organisation of Working Time Act 1997 Breaks
I find the complaint to be well founded. I require the Respondent to pay to the Complainant the sum of €500 compensation.
CA-00020506-003 Organisation of Working Time Act 1997 Non-notification of hours
I do not find the complaint to be well founded.
CA-00020506-004 Organisation of Working Time Act 1997 Notification of additional working hours
I do not find the complaint to be well founded.
CA-00020506-005 and CA-00020506 Unfair Dismissal
I find the complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €5,730 compensation.
Dated: 4th June 2019
Workplace Relations Commission Adjudication Officer: