Complainant

Respondent

Anonymised Parties

A Laundry Assistant

An Hotel

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-00022152-001

25/09/2018

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

CA-00022476-001

08/10/2018

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

CA-00022476-002

08/10/2018

The Complainant commenced employment with the Respondent, an hotel, on 26th October 2005 in the role of Laundry Assistant.   The Complainant earned a gross weekly salary of €434.40. A number of complaints were lodged with the WRC. Complaints CA- 00022152-001 and CA-00022476-002 were withdrawn by the Complainant at the outset of the hearing.

The remaining complaint, Complaint CA-00022476-001, was lodged with the WRC on 8th October 2018.

The fact of dismissal was in dispute in this case.

The Complainant provided a detailed written submission.

Complainant submits that she was employed as a Laundry Assistant and her day-to-day duties were consisted of putting dirty towels, bed and table linen into three washing machines and four tumble dryers in the Laundry room. She then fed the clean sheets through an industrial/pressing machine and folded and organised them for the housekeeping staff to collect them.

On 14th November 2017 the Complainant was asked to a meeting along with other members of the laundry staff where they were informed by the HR Manager, that the laundry function of the hotel had been outsourced. They were told it was the Respondent’s intention to retain and redeploy the laundry staff to other areas of the hotel. On the same day the Complainant wrote to the Respondent requesting that she be made redundant.

The HR Manager replied to the Complainant stating that consultation was on-going, and that the laundry staff would start in their new roles on Monday 1ST December 2017.

The Complainant submits that she had a meeting with the HR Manager on 29th December 2017 at which he informed her that she was going to be made a Public Areas and Accommodation House Assistant and outlined the tasks of the role. The Complainant told the HR Manager that she had a very bad back and that it was not possible for her to carry out the duties outlined in the new role. The Complainant asked that she be made redundant.   The HR Manager refused this request and informed the Complainant that she was to be re-deployed within the hotel as a general cleaner.

The Complainant wrote to the HR Manager by email asking for a new role description. He replied that he was revising the job descriptions and that the Complainant should attend for work the next day. The Complainant replied to the HR Manager stating that she was being forced into a role and that she was confused and stressed about the situation. She told him that she was not coming in on Thursday until she got a proper job description in writing.

On 4th January 2018 the HR Manager wrote back to the Complainant attaching a job description entitled “Public Cleaning”.

The Complainant submits that she was on medically certified sick leave due to the stress of the situation from the 9th January to 23rd January 2018.  

On the 18th January 2018, the Complainant’s solicitor wrote to the Respondent stating that the proposed change to the Complainant’s role constituted a fundamental change to her terms of employment; that there was no similarity between her old role and the proposed role and therefore it did not constitute suitable alternative employment due to the more physical and onerous nature of the tasks involved and taking the Complainant’s age into account. The letter stated that the Complainant did not accept her re-deployment on the grounds of unsuitability to her. The letter also brought attention to the Redundancy Payments Acts.

The Respondent acknowledged the letter on 29th January, stating that they were passing the letter onto their legal advisors who would be in contact in due course.

Nothing was heard by the Complainant by the 22nd February, so her solicitor again wrote to the Respondent asking whether they intended to offer the Complainant a suitable alternative role or redundancy. A reply was requested within 10 days.

On the 9th March 2018 the Respondent wrote to the Complainant’s solicitor providing the Complainant’s personnel file as had been requested but did not deal with the substantial matter in any way.

The Complainant submits that on the 2nd July 2018, when still nothing had been heard from the Respondent, her solicitor wrote to the Respondent enclosing a certificate from the Complainant’s medical practitioner confirming that the Complainant was not medically fit for the role of cleaner and that the alternative role proposed to the Complainant was unsuitable. The letter asked the Respondent to confirm whether they intended to offer the Complainant a suitable alternative role or a redundancy package. The letter called upon the Respondent to determine the Complainant’s employment status within a period of 10 days failing which it would be necessary for the Complainant to proceed to the WRC.

No reply to this letter was received. The Complainant therefore considered herself dismissed on 12th July 2018.

Regarding constructive dismissal, the Complainant submits that her case satisfies both the “entitlement” and the “reasonableness” tests. The Complainant had made repeated attempts to explain her inability to do the proposed new role due to her medical condition once her own Laundry Assistant role had been outsourced and then made repeated attempts of asking the Respondent for a suitable alternative role or make her redundant and pay her her statutory redundancy lump sum.

In direct evidence the Complainant stated that she would have found it impossible to carry out the cleaning role proposed because of her back injury. She stated that she told the HR Manager of her difficulties and that in fact everyone knew about her back problems.

The Complainant submits that the Respondent failed to engage with the Respondent in any way from January 2018, and after 12 years of exemplary service stopped providing her with hours or paying her wages. Where the Respondent fundamentally breached their contract with the Complainant, she was both entitled, and it was reasonable for her to consider herself dismissed.

The Complainant started a new job on 30th October on a rate similar to that which she enjoyed with the Respondent.

The Respondent put forward that the proposed change in the Complainant’s role was not a major change in physicality.

The new role offered was a suitable alternative and it was not reasonable for the Complainant to turn down the offer.

It was the Complainant who had absented herself from the briefing meetings held to explain the role.

The Respondent also notes that the first time it is indicated that there were medical reasons she could not do the job was July.

The Respondent was reticent of bombarding the Complainant with correspondence when she was out sick.

In a constructive dismissal claim the burden of proof shifts to the person making the claim. They also have to demonstrate that they were justified in their decision and it was reasonable for them to resign. The Complainant needs to demonstrate that they had no option but to resign. In addition, there must have to be something wrong with the employer’s conduct.

Between February and July 2018, the Complainant heard nothing from the Respondent regarding the issue of redundancy or alternative role. The Complainant tried to clarify her position with her employer several times, but despite several emails and letters, attempts to elicit a response from the Respondent were unsuccessful.

The Complainant’s medical certificate of 30th May 2018 makes it clear that the Complainant was not physically capable of carrying out the proposed role. The Respondent was made aware of this certificate by way of a letter dated 2nd July 2018. Even at that late stage the Respondent could have rescued the situation in some manner or means.   However, the matter was ignored. Whether this was deliberate or an oversight, is irrelevant, it is just not acceptable that an employee should be left in such an invidious situation for so long by an employer.

In the circumstances, I find that it was not unreasonable that the Complainant believe her job no longer existed and she was entitled to terminate her contract of employment with the Respondent.

Having considered the case carefully, I am satisfied this was an unfair dismissal and the Complainant is entitled to an award. In deciding the quantum of that award, I take into account the Complainant’s 12 years’ service and the fact that she found full-time work in October at a rate close to that of her rate when working with the Respondent.

The complaint is founded, and I award the Complainant €13,888.

Constructive dismissal, entitled and reasonable.