Complainant

Respondent

Anonymised Parties

Chef

Hotel

Representatives

Antoinette Lacy

Mairead Crosby, Susan O’Riordan Ibec,  Caroline Feighery, Ciaran Cunningham

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-00039909-001

18/09/2020

The Employee has been employed as a Chef since 11th March 2018. He is paid €882.69 per week. He has claimed that he was not allowed to return to work during the pandemic. He has sought that his contract is fulfilled and he is paid the outstanding wages owing for the period when he was not allowed to return to work. The Employer has rejected this claim.

The Employee stated that he advised his Employer of Covid symptoms in April and he quarantined for two weeks.  The Employer then told him that as he had stents fitted he was in danger and in a high-risk category. He submitted a medical certificate showing that he was fit for work. He was then informed by his Employer that he was being placed on temporary lay-off. Yet the Hotel where he worked, was up and running with non-contracted staff there on a daily basis. He tried to resolve this locally without success. His Employer is in breach of his contract. His contract forbids him from working anywhere else.  On 30th July he was spoken to about the possibility of work in another hotel in the Group. He raised issues regarding travel and he was awaiting their response. He had not heard back by 20th August, so he lost trust in them. He never refused to work in another hotel, he was waiting for responses to his queries. He stated that where he lives has a very poor phone and internet signal and so he was unable to contact his Employer or they contact him. He is seeking that the Employer honours his contract. He was available to work but they would not let him work. He has no income. He is seeking the difference between his salary of €882.69 and €350 received = €532.00 per week for the period of his lock-out.

The Employer stated that in April 2020 the property where the Employee worked was transformed into a HSE self- isolation facility due to Covid. All staff were put on notice of the closure of the hotel on 17th March 202. In April 2020 he told his employer that he displayed symptoms of Covid and despite a negative test result he was advised by his GP to isolate for two weeks. They were unable to get in touch with him until 11th May 2020 which he blamed on poor internet and ‘phone signals. He advised the Employer that his GP advised him not to return to work for a further 6-8 weeks due to health risk as he had heart surgery in January 2020. He requested a return to work for 18th May 2020. On 12th May the HR Manager requested a detailed report from his GP specifically requesting if he was fit to return to a facility that exclusively deals with Covid patients. They received a report placing him in a high-risk category. Prior to this report all staff were asked to confirm of they were in a high-risk health category, he had failed to do so. On 21st May the Employer advised him that based on medical advice it was not deemed appropriate for him to return to work.   He was advised that he was being placed on temporary lay-off along with 256 other staff. On 26th May 2020 he complained about having no income and that Covid affected everyone the same, so he should be considered for work. That day the HR Manager pointed out that the HSE advice was that as he was deemed a vulnerable person it was not appropriate that he should be at work. Their decision was based on medical advice and was in the best interests of himself. This was reiterated by the Employer on 3rd June 2020. On 7th July 2020 he sent a “fitness to work” certificate to the Employer who acknowledged it and advised that they would consider the matter. On 5th August he was offered work as a Chef in an alternative venue, a sister hotel, with the same rate of pay and accommodation provided as there was a significant distance to travel. The Employer had made several attempts to contact him without success. On 19th August the Employee declined the offer. He then advised the Employer that he was consulting a legal adviser and later a union adviser. He asked about the grievance procedure and he was advised where to access it. On 22nd September he was referred to Occupational Health.  The report issued on 16th October. He enquired why he was not offered work as he was deemed fit to work. The Employer advised him that the hotel had had the contract renewed by the HSE and he was remaining on lay-off as were many other staff. A number of senior management were made redundant. He again enquired why he was not in employment. On 17th November 2020 he was advised that he had not signed the amended contract which all staff were issued with on 28th March 2020. On 10th December 2020 all Chefs were informed that there was work available at the alternative venue for Christmas. He declined the offer.

It is the Employer’s position that the Employee was placed on lay-off due to HSE advice and guidelines. He was in a vulnerable state as he had cardiac surgery in the Spring that year. It is their position that he was not unfit for work, rather he was in a high-risk category and based on HSE guidelines it was not appropriate to be at work.   The Employer was very conscious of the demands and strains that this lock-down has caused to their employees and they reminded them of their Employment Assistance Programme, which was available to all staff. All normal job descriptions were suspended during the Covid lock-down. Significant changes were made to the hotel to protect their employees. Throughout the entire lock-down the Employer sought the advice and assistance from Health & Safety Consultants and HSE guidelines. While he enquired about raising a grievance he never did and so did not exhaust the local machinery available to resolve internal disputes. All their decisions were based on public health guidelines and medical advice. The Employer acted fairly and reasonably at all times. This claim is rejected.

I note that the place of work was contracted out to the HSE as a self- isolation facility due to Covid.

I note that staff there were placed on lay-off. Staff were asked to inform the Employer if they were in the high-risk category.

I note that based on medical advice and HSE guidelines the Employee was deemed high-risk as he had cardiac surgery in January 2020.  Also, he had quarantined for two weeks as he had shown symptoms of Covid.

I note that his GP certified him unfit for work on 18th May 2020.

I note that when he was deemed fit to return to work the lay-off continued.

I note that the Employer made several attempts to contact him during this time, without success.

I note that the Employee advised that where he lives, there is a very poor phone and internet signal. Despite this I find that the onus was on the Employee to make contact with his Employer and he failed to do so.

I note that the Employer offered the Employee alternative work in a sister hotel on the same rate of pay and provided accommodation because of the travel involved.

I find that the Employee failed to properly engage with the Employer and subsequently declined the work.

I note that the Employer then offered him and other chefs alternative work in the sister hotel at Christmas, but the Employee did not undertake that work there.

I note that the Employer offered all employees access to their Employee Assistance Programme.

I find that there are two critical issues to be determined

1)Has the Employee raised and exhausted the internal grievance procedure before submitting a claim to the Workplace Relations Commission

I find that the Employee failed to raise a formal grievance and to exhaust that grievance before he submitted a claim to the Workplace Relations Commission. This was despite advising the hearing that he consulted a legal adviser and a union adviser.

2)Has the Employer acted fairly and reasonably

Based on the above findings, I have concluded that the Employer acted fairly and reasonably at all times throughout this process.

I find that the Employer did not breach the contract of employment.

I find no basis upon which this claim can succeed.

For the above stated reasons, I recommend that this claim is not well founded and that it fails.

Alleged breach of contract by placing employee on lay-off during Covid lock-down.