Complainant

Respondent

Anonymised Parties

Chef

Hotel Operator

Representatives

Lars Asmusson, B.L., instructed by Kenny Sullivan Solicitors

Adrian Shanagher, Director

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-00027388-001

29/03/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00027388-002

29/03/2019

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

CA-00027388-003

29/03/2019

The complainant commenced employment as a chef in a hotel in February 2002. In September 2017 the complainant’s employment transferred under TUPE regulations to the present employer, the respondent. The complaints arise from various issues that occurred subsequent to this transfer. The complainant resigned with effect from 8 March 2019.

The complainant suffered bullying and harassment from management.

The complainant’s hours of work were significantly reduced without agreement.

A warning was issued to the complainant in breach of proper procedures.

The complainant brought her complaints to the attention of senior management and sought an investigation of same.

No formal investigation of these complaints took place and no response was received to a repeated request for an investigation.

Because of the behaviour of the respondent the complainant was left with no option but to resign her position after 17 years’ service.

At the time of the Transfer of Undertaking the complainant’s employment status was listed as casual.

On 4 December 2018 the premises ceased trading as a hotel and commenced operations as an Emergency Reception Centre for the Department of Justice.

There was discussion and agreement with the complainant about her resultant role, working hours and duties.

The respondent received a letter from the complainant’s solicitor alleging a sustained campaign of bullying, harassment and victimisation against the complainant.

Management carried out a review of these issues and responded to the allegations stating that they could see no basis for the complainant’s claims.

The complainant resigned from her position with the company.

The complainant commenced employment in the hotel as a chef on 2 February 2002. There are a number of contracts on file in relation to her employment over the years. The initial contract which was actually signed by the complainant in November 2001 stated that her hours of work were 40 hours per week. The complainant at that time required a work permit before taking up employment, hence the delay until February. The complainant’s country of origin has since become a member of the EU.

The next contract on file is dated October 2008 and states that the complainant’s hours of work “will be 78 hours per fortnight”. There then is a contract dated June 2014 which states that “your normal working hours will be up to 48 hours Monday to Sunday when averaged over a 4 month period.” This contract is unsigned.There are two contracts relating to March 2017. The first one is signed by the complainant and dated 20 March 2017 and uses the same wording as regards working hours as the 2014 document. The other contract is dated 22 March 2017, has the same working hours but is unsigned.

On 20 September 2017 the complainant’s employment transferred to the respondent. The respondent in their submission accepts that the transfer of business was done under TUPE, i.e. that it is covered by the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003 (S.I. No. 131 of 2003).  A letter was furnished to all staff members on 29 September 2017 which stated that “effective from 20 September 2017, your employment transferred to the Transferee (Name). As has been verbally advised to you, the transfer of your employment is on your existing terms and conditions of employment and with full continuity of service / holiday entitlements preserved.” This is also specifically stated in a contract drawn up by the respondent and dated 20 December 2017. This contract was signed by the complainant on 19 February 2018. The hours of work in this contract are stated as – “your normal working hours will be up to 39 hours per week Monday to Sunday.”

Initially the new entity continued to operate as a normal hotel. On 4 December 2018 this business ceased trading and the hotel became an Emergency Reception Centre under contract to the Department of Justice.   The respondent stated that this change was driven by an economic rationale as the company could not afford to continue to accrue the losses it was suffering as a hotel venture.

The complainant in evidence stated that a new General Manager was appointed after the transfer of the business to the respondent. The new Manager’ approach was in her opinion confrontational.   There were incidents of abusive language and a loud voice being used. In July 2018 an issue arose about a breakfast order. When the complainant attempted to ascertain what the issue was the Manager ordered her back to the kitchen. The following day the Manager called her to his office without notice and verbally attacked her saying that her food and presentation were terrible. He used inappropriate language in this regard. The complainant was so upset by this action that she had to leave work early. The complainant then received a letter from the Manager dated 8 July 2018 informing her that she was being issued with a verbal warning in relation to the standard of food cooked for breakfast on the morning in question. The letter went on to state that “as you quite clearly stated in this meeting going forward your performance will be monitored on a weekly basis and you want your probation on a weekly basis also.” The letter also said that the warning would remain on file for 6 months. There was no mention of a right to appeal this warning.

In December 2018 when the hotel closed to the public there was a significant change in the complainant’s kitchen duties. The complainant stated that there was a significant increase in her workload as although the menu was smaller and more restricted there was a greater volume of food. The complainant stated that there had been no consultation in this regard. The complainant’s hours were reduced to 24 hours per week. This combination of events resulted in a greater workload for the complainant.   The complainant said that she had complained but to no effect. The complainant stated that she went to her doctor in February 2019 as she was suffering from stress as a result of these factors.

The complainant also sought legal advice and on 25 February her solicitor wrote to the respondent setting out her grievances. That letter, which was sent by email, stated in part:

“We are advised by our client that over the period, she has been subjected to a sustained campaign of discrimination, bullying, harassment and victimisation by the General Manager of the Hotel, (name).   The effect of this horrendous treatment has left (the complainant) suffering from severe anxiety and stress, to the extent that on the advice of her doctor she is not to present for work.”

The letter then goes on to list the issues. These include the complainant being subjected to verbal abuse / use of foul and insulting language, unreasonable level of scrutiny and fault finding, an increase in her workload and duties and a drastic reduction in her working hours from full-time to 24 hours per week. Reference is also made to the verbal warning being issued without regard to natural justice or fair procedures. The letter further states that the Manager is on notice that the complainant’s illness is a direct consequence of his outrageous behaviour.   The letter ends by stating that this is a formal grievance and requests that the matter be investigated and resolved without delay.

A Director of the respondent replied by letter dated the same day. In that letter the Director refuted the allegations of bullying, harassment, discrimination and victimisation. The Director further stated that these allegations were also denied by the General Manager and the Head Chef. The Director claimed that there had been discussion with the complainant following the change of role from hotel to Direct Provision Centre and that the complainant had agreed to the less demanding role of taking charge of the breakfast shift. The letter also stated that the complainant’s contract indicated that she was employed on the basis of working casual hours as required and was part-time and that her actual hours fluctuated on a seasonal basis. The Director concluded the letter by advising that he had spoken to both the General Manager and the Head Chef and, taking into consideration his own involvement in the business, he had decided that there was no basis for the complainant’s claims. On 26 February 2019 the complainant’s solicitor responded in writing stating that there had not been a thorough and fair investigation of the complaints and requesting an assurance that such an investigation would take place. The letter also stated that failing such an investigation taking place the complainant would have no option but to consider her future with the company.  On 8 March 2019 the complainant’s solicitor again wrote to the Director noting that there had been no further response and no proper investigation of the complaints. The complainant had no trust or confidence that she would be treated fairly and accordingly had no alternative but to tender her resignation from her employment forthwith. The complainant lodged her complaints with the WRC on 29 March 2019.

Complaint No. CA-00027388-001:

This is a complaint under the Unfair Dismissal Act, 1977, to the effect that the complainant was constructively dismissed due to the conduct of the respondent.

Section 1 of the Act defines constructive dismissal thus:

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 o the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer…”

The onus of proof therefore rests with the employee who alleges that he / she was constructively dismissed. This issue was considered by the Employment Appeal Tribunal in McCormack v Dunnes Stores (UD1421/2008) as follows:

“In advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of her employment other than to terminate his or her employment.” The EAT further went on to say:

“The notion places a high burden of proof on an employee to demonstrate that he or she had acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievances with his / her employer. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

There are two tests contained in the statutory definition of constructive dismissal. The first is the “contract test” which is to the effect that the employer breached the employee’s contractual rights or entitlements such as to entitle the employee to treat her contract of employment as discharged. The second is the “reasonableness test” which entails that it was reasonable for the employee to resign because the misconduct was sufficiently grave so as to justify such action. The employee must also demonstrate that it was the employer’s conduct and not any extraneous factor that caused the employee to terminate his / her employment.  This was considered by Lord Denning in Western Excavating ECC Limited v Sharp as follows:

“If an employer is guilty of 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 themselves as discharged from any further performance.”

The case before me has therefore got to be considered in the light of these two tests. In applying the “contract test” I must consider if the there was a breach of the complainant’s contract and, if there was, was it a significant breach going to the root of the contract. As noted above there appear to have been a number of contracts issued to the complainant during her years of service with the hotel. The latest of these is the contract dated December 2017 and signed by the complainant on 19 February 2018. This contract states that the complainant’s normal working hours will be “up to 39 hours per week”. Interpreted on its face value this means that the complainant’s hours can fluctuate up to a maximum of 39 hours per week. In addition, the respondent claimed that advice had been received from the previous employer, the transferor, to the effect that the complainant’s employment status was classed as “Casual – on and as required” and produced documentation to that effect. Clearly the complainant was not a casual worker but had been employed on a permanent basis since 2002. The evidence of the complainant at the hearing was that prior to the transfer she worked from 38 – 46 hours per week. I have also examined the records provided for the complainant’s working hours from May 2018 until February 2019. Most of those weeks are in the 37 – 40-hour range until the change of operations in December 2018 when the hours worked reduced to an average of approx. 27 hours per week. There is a difference of evidence in respect of this reduction.   The respondent’s evidence is that following the change there was consultation with the kitchen staff about the reduction in working hours and that the only issue raised by the complainant was a requirement to know her hours in advance as she had other employment.   The complainant stated that there had not been any consultation before her hours were reduced and that it was this reduction in hours that led her to consider other employment. She further stated that she had complained verbally but to no effect. I note that the complainant is in fact not in alternative employment. Furthermore no evidence was put forward by the respondent’s witnesses as to the type or nature of this employment. I therefore accept the complainant’s version of events and find that her hours were reduced in December 2018 without her agreement.

With regard to the verbal warning issued in July 2018 from the evidence before me it is clear that proper procedures were not utilised by management in this regard. The complainant was not given notice of a disciplinary hearing, was not advised of the complaints that she had to answer, was not told of her right of representation and was not given the opportunity to appeal the warning. The process was therefore procedurally deficient and in breach of the principles of natural justice.

The complainant also stated in evidence that she was at times subjected to foul or abusive language and being spoken to in a loud or angry manner by management. Both the Head Chef and General Manager strongly rejected these allegations.

The complainant went on sick leave on 6 February 2019. The medical certificates do not provide a specific reason and do not mention stress.   On 25 February 2019 the complainant lodged a formal grievance as outlined above through her solicitor and advised of her availability to partake in an investigation. The Director to whom the grievance was addressed spoke to the Head Chef and General Manager and responded later that day rejecting the complaints. An investigation that excludes the person making the complaints is flawed from the beginning. The length of time given to the process was minimal. The purported findings are therefore seriously compromised. I do not accept that a proper investigation was carried out in this instance.

The respondent’s solicitor again requested a proper and fair investigation failing which the complainant would have to consider her position. When no answer was received the complainant resigned. The respondent was thus on notice of the complainant’s dissatisfaction with the process and of how seriously she felt in this regard. The respondent chose not to engage in the matter.

Returning to the two tests therefore I find that the decision to reduce the complainant’s hours from those which by custom and practice had been worked by her over a period of many years was an action which went to the root of the contract.   Furthermore, I find that respondent’s disregard for proper procedures regarding disciplinary and grievance issues was unreasonable behaviour such as to constitute a breach of trust and confidence in the employment relationship. I therefore find that the complainant was justified in terminating her contract of employment and that consequently she was constructively dismissed due to the conduct of the respondent. The complainant was therefore unfairly dismissed under the provisions of the Act.

Complaint No. CA-00027388-002:

This is a complaint under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003 to the effect that the transferee did not observe the terms and conditions of the complainant’s employment.

Regulation 4(1) of the Regulations states:

The transferor’s rights and obligations arising from a contract of employment existing on the day of transfer shall, by reason of such a transfer, be transferred to the transferee.

The Labour Court considered this matter in Melcorpo Commercial Properties Unlimited Company v Egan (TUD191)as follows: “The question before the Court is whether or not that the complainant was retained on no less favourable terms and conditions of employment than those she held while in the employment of the previous owner.”

The evidence presented by the respondent’s own witnesses was that following the change in the operational status of the hotel there was discussion with the kitchen staff regarding the consequent reduction in working hours. The result for the complainant was that her hours were reduced.   This is confirmed not only by looking at the record of the complainant’s working hours but also by the Director’s letter of 25 February 2019 which stated that the complainant had been allocated to the breakfast shift. I have already set out my reasons for accepting the complainant’s assertion that this was done without her agreement. The respondent also argued that the fact that the complainant had another job which altered her relationship with the respondent.   Again, I find that there is no evidence to support this contention and accept the complainant’s evidence in this regard. I therefore find that the complainant was placed on less favourable terms and conditions than those she held while in the employment of the previous owner and that the complaint is well founded.

Complaint No. CA-00027388-003:

This is a complaint under the Payment of Wages Act, 1991, to the effect that the reduction in the complainant’s working hours amounts to an unlawful deduction of wages and is a breach of the provisions of this Act.

Section 5(6) of the Act states:

Where –

(a)    the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b)    none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error in computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

In her submission the complainant states that the alleged breach occurred from 1 November 2018 until 8 March 2019, a period of 18 weeks. The claim is based on a loss of 15 hours per week and the total loss claimed is €2,781.00. The respondent rejects the complaint on the basis that the reduction in hours was agreed by the complainant. As noted above I have already found that the complainant did not agree to this reduction in hours. It follows therefore that I find this complaint to be well founded. The date of commencement of the reduction in hours is 4 December 2018. From the evidence regarding actual working hours which has been provided to me (and which is incomplete) I have calculated the loss to be 10 hours per week.

Complaint No. CA-00027388-001:

For the reasons stated above I find that this complaint under the Unfair Dismissals Acts, 1977 – 2015, is well founded and that the complainant was unfairly dismissed.   With regard to attempts at mitigation, I note that the complainant has not obtained employment and has not registered with any agency in this respect. The complainant stated that she had sent her CV to a number of employers. I am not satisfied that she has fully discharged her obligations regarding this matter as reports suggest a shortage of chefs at the moment. Taking everything into consideration therefore I order the respondent to pay to the complainant the sum of €9,000.00 as compensation in this regard.

Complaint No. CA-00027388-002:

For the reasons set out above I find this complaint under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003, to be well founded and I order the respondent to pay to the complainant the sum of €1,000.00 as compensation in this regard.

Complaint No. CA-00027388-003:

For the reasons set out above I find this complaint under the Payment of Wages Act, 1991, to be well founded and I order the respondent to pay to the complainant the sum of €1,340.00 in this regard.

Constructive Dismissal       Transfer of Undertakings       Reduction of Working Hours