Complainant

Respondent

Parties

Narcis Daniel Nichita

Aragon Hospitality Limited  t/a Aspect Hotel, Park West

Complainant

Respondent

Representatives

Marius Marosan

Ciaran Tansey , Damien Tansey Solicitors

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-00040661-001

29/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00040661-002

29/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00040661-003

29/10/2020

The issues in contention concern the alleged Unfair Dismissal of the Complainant in breach of the Unfair Dismissals Act,1977 and breaches of the Protection of Employees (Fixed-Term Work) Act, 2003. The Complainant was employed as a Maintenance worker in a Hotel. He was employed from March 2019 until September 2020

The weekly hours were 40 for which €12.50 per hour was paid.

1:1        CA: 00040661-001 Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The Complainant claimed that he was dismissed on 15th September 2020 due to an alleged lack of suitable work although the Respondent Company was advertising suitable positions at the time. On the 2nd of September 2020 a Porter position was advertised but it was not offered to the Complainant. In addition, other positions as Duty Manager were not made available even though the Complainant had undertaken Company approved Management training.

1:2        CA:00040661-002    Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

The Complainant was not informed of job openings that were suitable to him.

1:3        CA:00040661-003    Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

The Complaint was treated less favourably than other colleagues in that he was kept on lay off when other staff were brought back to work.

Witness; the Complainant Mr. Nichita gave extensive Oral evidence in support of his arguments.

2:1        CA: 00040661-001 Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The Complainant was dismissed as a result of a legitimate Redundancy arisng from the loss of business due to the Covid 19 pandemic. Other positions were advertised and brought to the Complainant’s attention. He declined to apply. The Complainant was the only Maintenance Assistant in the Hotel concerned and with the loss of business there was no maintenance work available. The Complainant refused work on lesser hours due to the rate of pay being less than the PUP payment he was receiving.

2:2        CA: 00040661-002 Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

The claim has no basis in fact. In September 2020 some 18 employees were terminated. 10 had permanent part time contracts and 8 fixed term contracts. The Complainant was one of the fixed term contracts. He was treated no differently to any of his colleagues. The claim has no basis.

 2:3        CA:00040661-003    Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

The Complainant was treated no less favourably than other colleagues in that he was kept on lay off when some other staff were brought back to work. The Employer was a major Hotel struggling to survive in the midst of the Covid 19 pandemic. The requirement for the maintenance service was significantly reduced and there was no work for the Complainant.

Witnesses: Extensive Oral evidence was given in support of the above arguments by the Hotel General Manager, Ms. W and the Administration Officer, Ms. B

3:1        CA: 00040661-001 Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

3:1:1       The Legal Position /Applicable Law

Section 6 (4) of the Unfair Dismissals Act,1977 refers.

4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

( a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

( b) the conduct of the employee,

( c) the redundancy of the employee, and

( d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Redundancy is defined by the Redundancy Payments Act,1967 -Section 7(2)

2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

( a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

( b ) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

( c ) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

( d ) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

( e ) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

As set out Section 6 (4) of the UD Act,1977 allows for a Dismissal on grounds of Redundancy.

However, all cases rest on their own facts and circumstances and these will be considered below.

3:1:2          Consideration of Evidence presented and Cross Examined.

3:1:3         The Unfair Dismissal case – CA-00040661-001 

Oral evidence was central to this case. The Hotel General Manager, Ms W, described the very challenging business situation faced by the Hotel following the March 2020 general Covid shutdown.  Additional supporting evidence was given by Ms. B, the Administrator.  Their evidence, given under sworn oath, was competent and professional. It was found to be persuasive.

 This evidence was subject to a full cross examination by the Complainant’s Legal Advisor.

The vast majority of staff were laid off due to Covid. A skeleton operation, largely staffed by a few Managers, was maintained for “Essential workers” and some Social Protection tenants.

A very partial general re opening of the Hotel took place in June of 2020 with occupancy rates as low as 15%. Leisure business had effectively disappeared. Staff were called back to work on a strictly necessity only basis.

The Complainant was effectively a Maintenance Operative (his job description was furnished in support of this evidence). Wear and tear of the Premises was minimal and the need for a dedicated Maintenance person was simply not there. Accordingly, the Complainant was not called back to work on a full-time basis. He was offered some part time hours in July, but he declined as the renumeration would have been well short of the then PUP payment of €350 per week. Various other possible positions arose and were advertised on the internal Intranet Website. The Complainant made some inquiries about these positions but never actually applied. He clearly indicated that he did not want unsocial hours or a heavy weekend requirement. He had an external commitment as a Church Pastor and family responsibilities.

In September the General Manager undertook a budget planning exercise to cover the likely business position in 2021. It was a situation of considerable business uncertainty and the decision was made to reduce headcount by some 18 staff. As the Maintenance requirement was considerably reduced the position of the Complainant was untenable and he was, as a consequence, made redundant.

 In cross examination the Complainant’s Representative queried why the Complainant had not been “Kept on the books” as the various Social Welfare/Covid support schemes were still available. The Respondent answered that as the future business was so uncertain it was better to make a “clean break” as had been the case with the 17 other colleagues. If the business picked up to a pre Covid level, he and his colleagues could be offered their positions again. It was a time of absolute uncertainty for all Hotels in Ireland and indeed internationally. It would be unfair to staff to have them in an uncertain, effectively laid off without any end date, employment relationship. Using common public knowledge of the Hotel /Hospitality sector this argument was persuasive.

Again, in cross examination the other positions that had been advertised were discussed – the Complainant was lacking in experience for most of the positions (Senior Receptionist or Duty Manager with Food and Beverage experience vacancies) and or had indicated that they did not suit him from his external commitment issues and or the rates of pay on offer.  The Porter vacancy was discussed but never applied for.

In addition, a good number of the vacancies, for example, were in other parts of Ireland. It was hard to see the Complainant with his extensive outside interests moving location. It was pertinent to note, (from the e mail evidence and documentary evidence which was opened to the hearing) that he had not applied for any of these advertised positions.

As regards the assertion that the Complainant had received “Management Training” it was acknowledged that he had participated in an on line Covid employee psychological support programme. However, this could never be described as Management Training.

He had been offered, some months previously, an opportunity to do extra work to gain Food and Beverage experience which would be necessary for any Hotel management positions. He had declined as the offered hours did not suit his commitments.

The Oral evidence of the Complainant was emotional but tended to be unclear on key points especially the alleged other vacancies that he felt he had been denied the opportunity to work in. He was also somewhat unclear as to his weekend commitments and his economic appraisal of his situation regarding working in the Hotel as against the PUP payments.

In final summary it was clear from the cross-examined evidence, both Oral and Written, that the qualifications of Section 7 (2) of the Redundancy Payments Act, 1967 had been satisfied. A genuine Redundancy situation had arisen. No Unfair Dismissal had taken place.

3:2          CA-00040661-002 and CA-00040661-003 – Complaints under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003.

Oral evidence was again central to these complaints. The Complainant’s main allegation was that he had been treated differently to other colleagues principally in not being brought back to full time work when the Hotel partially fully reopened in June 2020. The evidence was that the Hotel was in a very difficult business situation and that no differentiations were made among staff as regards their basic contract situation. Some 18 staff were let go in September.  Ten (10) were on Permanent contracts and 8 (including the Complainant) on Fixed Term contracts. There was no evidence either oral or written that suggested that these staff had been selected for end of contract based solely on their Employment status.

As regards other positions that the Complainant alleged had been denied to him the Oral and written evidence either pointed to the fact that he either not applied or was obviously not qualified.

As regards the timing of being called back to work it was acknowledged that he called unannounced to the Hotel in late July. The business situation was explained to him at that stage and a few hours were offered but declined. His situation was exactly the same as all other staff irrespective on what Employment Contracts they were on.

In summary the evidence, both oral and Written, was not sufficient to support the Complaints under the Protection of Employees (Fixed-Term Work) Act, 2003.

Redundancy, Part Time Work, Unfair Dismissal