Complainant

Respondent

Parties

Orapin  Kongtun

The River Lee Hotel

Representatives

Benjamin Peres

Niamh Daly , IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00041100-001

17/11/2020

This matter was heard by way of remote hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

On 17 November 2020, the Complainant submitted a claim for Constructive Dismissal relating to her termination of employment on 13 November 2020, at the Respondent Hotel. The Complainant filed an outline submission on 19 December 2020.

The Respondent operates a Hotel Business and has rejected the claim.  The Respondent Representative came on notice on 15 December 2020. A written submission was received on the day before the hearing on 7 July 2021.

Both parties were canvassed for their views on the application of the Supreme Court case of Zaleski v Adjudication Officer to the running of the case. Both parties confirmed that they were happy to proceed with the case.

The Complainant submitted her written complaint and outlined that due to the circumstances surrounding Covid 19, she had no choice but to resign her position as a Food and Beverage Assistant on 13 November 2020.

The Complainant commenced work on 11 October 2016, working varied hours and had developed a good reputation. Any absence was covered by a sick note.

The Complainant experienced an “at Risk “pregnancy early in 2019. She was placed on rest for the duration of the pregnancy until the commencement of maternity leave on 4 November 2019. she was due to return to work on 4 August 2020, following a period of unpaid maternity leave.

The Complainant was placed on Temporary Lay Off due to covid 19 on August 4, 2020.

On September 10, 2020, the complainant, in an email discussion on annual leave, sought clarification on her proposed 20 hr working week and access to a “fixed schedule “i.e., Monday and Tuesdays to facilitate creche.

She was informed that the Hotel could not meet her request for “set hours “she was also informed that all staff had signed a contract variation to March 2021, which incorporated a temporary change to terms and conditions.

The Complainant submitted those difficulties arose in relation to her terms of employment on a proposed return to work on 20 hours, in October ,2020, she contended that there was insufficient flexibility in this proposed arrangement. The Complainant outlined that she had approached Human Resources when she was reluctant to sign a proposed contract of variation. She maintained that she asked what would occur if she did not sign the contract of variation? She stated that she was informed that if she decided not to accept a return to work and the terms of the temporary contract, she may be considered absent without leave.

The Complainant was granted annual leave and requested to return to work on November 16, 2020.

The Complainant outlined that she was dissatisfied with the respondent response, on not granting her flexible hours, which she regarded as a discriminatory action. She recorded this dissatisfaction with the company and resigned, with 4   weeks’ notice non-13 October 2020.The Complainant maintained that other staff were facilitated with weekends off to care for children.

·         Requested to work an unreasonable schedule

·         Reaffirmation of a request for a set schedule

The Complainant submitted that she felt that she had two choices

“To accept the contract of variation or to resign to avoid any disciplinary action against me. “

The Complainant felt strongly that she was forced out of employment, from a job she really liked and referred to other colleagues who had similar experiences. Her representative argued that she ought to have been made redundant.

She had since found new work on 15 February 2021, albeit at a lesser rate of €10.20 per hour. The Complainant sought the remedy of compensation.

Evidence of the Complainant:

The Complainant gave evidence on the discreet circumstances surrounding her pregnancy in early 2019. She was due to return to work in September 2020, however, access to childcare proved difficult.

She felt pressurised to return and was given a deadline by the respondent. The complainant sought access to fixed days but was told that was not possible.

The complainant was presented with a request to agree to a contract variation and was unwilling to agree to these changes. She was faced with a stark choice, to return on the revised terms or resign.

She resigned her position and found new work as a full-time kitchen Assistant, on less money.

During cross examination, the complainant accepted that she had a casual contract without set hours. She understood there was a mobility clause within the contract where she could be sent to another Department.

The Complainant confirmed that she did not drive and did not want night work. She had not suggested alternatives.

The Complainant had not activated a grievance or lodged an appeal to the General Manager.

The Complainant had expressed some doubt on the financial limitations to managing the cost of childcare on 20-hour week.

As the Respondent Legal submissions had arrived so close to hearing, I afforded the complainant and her representative some additional time to furnish a written response.

The Complainants representative outlined that she had not been offered use of the grievance procedure. He compared this practice with that of his own workplace, where employees are habitually offered the opportunity of activating this Policy in the face of disagreements. Details of mitigation were attached.

The Respondent accepted the complainants stated tenure of employment in the case.  The Representative outlined the background to the family Hotel Business. The Hotel in this case employs 130 employees.

The Respondent submitted that the complainant had not been constructively dismissed, but rather had resigned, on foot of 4 weeks’ notice on a voluntary basis. The Hotel had been severely impacted by Covid 19 Pandemic. It was regrettable that the complainant left this way.

The Representative outlined that the complainant had been employed as a Food and Beverage Assistant on a casual contract of employment. The Respondent drew attention to the contractual clause on varied hours of work on this contract signed by the complainant on 11 October 2016.

“As a casual member of staff, your hours of work will be communicated to you by your Team Leader /Manager one week prior to the commencement of the week in which the hours fall or at least 24 hrs in advance …… “

The Complainant was on certified sick leave from March 2019 until the commencement of maternity leave in November 2019. This leave ended on 4 August 2020.

The Complainant was placed on Temporary Lay Off due to Covid 19 on 5 August 2020 due to diminished business levels. The Complainant had cancelled additional maternity leave due to conclude on August 23, 2020.

The Business needed to shape the workforce to the changed trading circumstances and proposed a contractual variation, which was agreed by all staff at all levels who returned to work in that period.

Business improved from August 23 onwards, from when the respondent planned an engagement with the complainant to secure her return to work. The Respondent shared the communique which had been drafted by the General Manager and shared with all the staff.

On September 15, 2020. The Respondent wrote to the complainant, inviting her back to work. They expanded on what a return to work would look like in her case

There would be:

·         A temporary reduction in Sunday premium pay to 10%

·         The complainant would have to sign off PUP payment

·         The return would be fully flexible

·         A return to contracted hours would not be possible

·         The Complainant would be expected to comply

The Complainant was requested to sign her acceptance of these terms.

 The Complainant was provided with revised terms, which had not varied the flexibility clause.

The Complainant told the respondent that she had travel plans which would have incorporated a period of self-isolation on her return during October and November 2020. She also made an annual leave request for later in the year.

The Complainant requested her weekly pattern of hours which were to accompany her return. She also requested that this constitutes a fixed weekly pattern. The Complainant did not have fixed hours prior to her leave.

The Respondent made a post hearing submission as requested on a log of the complainant’s hours worked in 2018. This amounted to 1700.20 hours, averaging 32.6 hours per week.

The Respondent continued to appraise the complainant of the revised working arrangements at the Hotel due to the pandemic. 80 staff had made it back and all returners had signed a contract addendum regarding flexibility and temporary changes of contract to March 2021.The Complainant was requested to follow suit.

The Complainant was requested to elect whether she was accepting a return to work on October 5 or November 16, 2020. The Complainant inquired as to what would follow in the case where she would not accept the temporary contract variation and the flexibility requested of all staff?

The Respondent sought to engage with the complainant and offered to meet her at the Hotel on 21 September ,2020. The Complainant sought the engagement by Video conference but did not attend.

Email communication continued until the Respondent placed a final position before the complainant in early October, where they sought her return to work on the agreed date of November 16, a refusal of which would invoke an active management of the company absence management procedure /disciplinary procedure.

The Complainant responded and confirmed that she was still seeking childcare. She also enquired whether her resignation would result in payment of annual leave owed?

The Respondent reaffirmed the depth of multi-tasking going on at the Hotel to keep the business viable and to avoid further layoffs. The Complainant was advised that her presiding contractual terms did not host set shifts or set days and her return to work was guided by this original contract. The Complainant was provided with these extracts.

The Respondent denied any assertion by the complainant, that she was being forced out of work.

The Complainant resigned on 13 October 2020, giving 4 weeks’ notice, without returning to work.

Evidence of Ms A, Human Resource Manager:

Ms A commenced in role March 2019. She recalled the massive impact of Covid 19 on the business. In July 2020, the Hotel launched a plan to re-open the business with a reduced team of 80 out of 200.

The business proposed a contractual variation which applied to management and staff. This incorporated a reduction in Sunday premium, a flexibility clause and weekly roster. This was to last for 7 months and has since continued. Everybody worked across the business, and everybody accepted the temporary contractual variation.

The Complainant was invited back from temporary layoff. Ms A began to engage with her around August 2020. She gave the complainant some lea way on annual leave of 4 consecutive weeks rather than the standard two weeks.

The Complainant had never held set hours in her casual contract.

Ms A detailed an in-depth engagement with the complainant. She did not have reservations on her comprehension as the complainant’s husband was available to her and she had spoken with him on several occasions.

The Complainant did not make an application for part time working, nor did she accept an invitation to meet via video conferencing.

The Hotel offered to look at 20 hours over a 2/3-day week, with provision for swops, but was unable to grant access to set days in the business climate which prevailed at that time.

The Complainant was provided with the employee handbook, incorporating the grievance procedure on Sept 15.

Ms A stated that it was regrettable that matters had come to hearing stage.

During cross examination, Ms A denied threatening invocation of the disciplinary procedure, if the complainant did not accept the proposed changes on her return to work. She said that “it was difficult to know if it would be actioned “

She had not approached the complainants line manager regarding her request for set days. She recalled everything was in chaos and she supported the Line Manger in this new blended work approach.

She confirmed that she understood that requests for family friendly working happened on a case-by-case basis. She was aware that lots of team members had different family status.

Ms A confirmed that the complainant had not raised a grievance during her email communication. She did not want to lose a well-trained member of staff, but she had no scope to agree to the complainant’s request for access to set days.

Representative for the Respondent argued that the complainant was not forced from her employment. In applying Conway v Ulster Bank, she submitted that the presiding contract had not been breached, neither had the respondent indicated that it was not intent on being bound by the contract.

The Complainant had sought to change her contractual terms by having set shifts and set days as a precursor for her return to work. The Respondent had offered 20 hrs over 2 consecutive or individual days, as the best on offer during the challenging trading period of the pandemic.

The Respondent relied on Mc Cormack v Dunnes Stores UD 1421/2008, when they outlined the reasonableness test to be applied:

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

The Respondent asked to assess on the reasonableness of their approach with the complainant. She was granted an extended period of leave from 24 November to 16 November. She was refused the second request as it coincided with the Christmas period, peak trading time.

The Complainant was provided with the staff handbook during the company’s first invitation for her to return to work in September. This contained the company grievance procedure which was not utilised by the complainant. Conway.

The Complainant had not formalised her grievance within the hotel.

In conclusion, the respondent representative concluded that the complainant had not reached the burden of proof necessary in the case. There had no fundamental breach in the contract and the respondent had been reasonable in seeking to manage the complainants return to work through an extended start date and by permitting the complainant an extended holiday.

The representative concluded that the complainant had voluntarily resigned her position and she had not made out a case for involuntary resignation, citing Fitzsimmons v Mount Carmel Hospital UD 855/2007, where the EAT had recognised the circumstances which generated a constructive dismissal as being grounded on an inordinate delay by the respondent in addressing staff relations issues. No such delay occurred in the facts of this case.

The Respondent undertook to forward details of the complainant’s cumulative hours worked. I have incorporated that information above.

I have been requested to inquire into the circumstances of this claim for Constructive Dismissal, which has been   rejected by the respondent.

In reaching my decision, I have considered all written and oral submissions in addition to evidence adduced.

I have also had regard for the complainant’s response to legal submissions, her details of mitigation of loss and the respondent document on the complainants recorded hours of work during 2018. I thank the parties for these documents, all received post hearing.

In this case, the burden of proof rests with the complainant to demonstrate that her resignation was involuntary in nature.  It is a high but not insurmountable burden.

The legislative framework for reaching a decision in this case is found in section 1 of the Unfair Dismissal Act, 1977

(b) 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 of 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,

In reaching my decision, I have applied the law to the facts gleaned during the case.

The determinant tests regarding a constructive dismissal are:

1.       Contract Test

2.       Reasonable test.

It is important that the correct context and background is reflected in my decision. The Complainant had enjoyed working at the respondent business. I found that the respondent acknowledged her high level of training and seemed genuinely sorry to lose her.

This case was set against an extraordinary period in Irish Business, that of the Covid 19 Pandemic which has challenged the hospitality business from March 2020 onwards.  I accept that this formed a clear and present business challenge for the respondent from that date.

The Complainant gave birth to her first baby in November 2019 following an extended period of pregnancy related sick leave. I accept that this was a very special and discreet time in her and her partners lives. No issues were raised around the respondent support during her pregnancy. The issues arose on her planned return to work in the aftermath of an early conclusion of the unpaid maternity leave (protective leave), some three weeks earlier than intended. The complainant had notified of her intention to resume work during the first week of August 2020.

This complied with the protections incorporated in Section 26-28 of the Maternity Protection Act, 1994 and allowed for the complainant to return to work for the same employer, to the job held immediately before the start of the protective leave and under the contract of employment under which the employee was employed immediately before the start of that period, where job means:

The nature of the work which she is employed to do in accordance with her contract of employment and the capacity and place in which she is so employed

Section 27 provides for a protective clause, if this work is not available.

The Complainant was placed on temporary lay off and received the PUP payment. Some 5 weeks later, she was invited back to work and advised of proposals for a revised interim contractual term of a reduction in Sunday premium pay to 10%, with knock on for pension, a cessation of PUP payment, operational guidelines for working at the hotel and a stated plan for variation of contracted hours. She was requested to resume work on a 20-hour pattern.

Both parties accepted that the complainant had worked varied hours prior to her protected leave by means of her casual hours contract. I can see that her hours averaged 32.6 per week in the calendar year of 2018. She did not have a predetermined roster or a predetermined weekly schedule at that time. I appreciate that she may not have needed at that time.

The Complainant has asked me to consider that she believed that she was forced out of employment by being expected to agree to a contractual amendment and by not being permitted set days of work for work life balance on her proposed return from temporary layoff and annual leave in November 2020. Her resignation was dated 13 October 2020, some 4 weeks prior to her expected return date.

The Respondent has asked that I consider the genuine efforts made to accommodate the complainants return set against a challenging trading environment and that their incapacity to accede to all her requests for annual leave and set days, at that time could not equate with the circumstance of a constructive dismissal.

I can understand that the complainant wished to negotiate a family friendly roster as she prepared to return to work post maternity leave. She had not made an application under Parental Leave Legislation.  I could not establish that the complainant had sought access to “banded hours “in accordance with section 18 of the Organisation of Working Time act, 1997. The Respondent acknowledged that they operated a facility for part time working at the business and this avenue had not been initiated by the complainant.

Instead, the complainant, with the assistance of her partner sought to tie down a set working pattern to assist in the care of her new baby. The Respondent was not providing set days at that time as the hotel was adopting a multi-tasking /flexible rostering platform. They provided an extended lead in period to facilitate the complainant in securing childcare and to take annual leave to visit family.

Firstly, I will examine the facts through the contract test summarised by Lord Denning in Western Excavating (ECC) ltd v Sharp [1978] IRLR 332

This addresses whether an employee is entitled to resign without notice. I appreciate that the complainant resigned on 4 weeks’ notice in this case.

If the 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 himself as discharged from any further performance

The Complainant has argued that the respondent was bound to consider her revised family status on return from protective leave. She argued that there was provision within the contract to allow her set days on individual grounds or failing that she ought to have been made redundant.

The ~Respondent argued that the complainant did not have this precise detail within her contract of employment, and she had never worked set days. The Company was not making redundancies at time.

Given the reliance by both parties on their respective perception of contractual terms/conditions of service in this case, I found my attention was drawn to the earlier case of D S OCearbhaill and ors V Bord Telecom Eireann [1994] ELR 54

This was a case concerning an expectation of promotion held by a group of Technical   Officer workers on an Engineering Superintendent panel prior to this grade being abolished via a collective agreement. The Question for the Court at that time, was whether the prospect of promotion was a condition of service?

It seems to me that conditions of service are conditions which one would expect to find in a contract of employment between employer and employee. Any terms which it would be normal to include in such a contract would be entitled to be so described and in considering what these terms might be, what must be borne in mind is the nature of the contract of employment—it is a contract between an employer and a single employee. Each employee has an individual contract, so the conditions of service would have to be appropriate to such a contract.

Would a term dealing with an employee’s prospects of promotion come into this category? In my opinion it would not. It does not concern the immediate relationship between the employer and employee as would, for example, the rate of pay, hours of work, length of holidays, sick leave, pension rights, etc. It relates rather to the general way the employer’s business is structured and managed. If an employer were to make it the subject of the contract of employment of individual employees, he would be unable to change it without the consent of each of them. No employer would be prepared to restrict his freedom that way. For this reason, it seems to me that it would be wholly inappropriate to include a prospect of promotion in a contract of employment and so it could not be considered as being a condition of service. It is simply an incident of a person’s employment depending entirely on how the employer’s business is structured and subject to change since the employer is under no obligation not to alter the structure of the business.”

The Court held that the prospect of promotion could not be recognised as a condition of service.

In considering the facts of this case, the complainants contract presented at hearing was framed around Section 17 of the Organisation of Working Time Act, 1997, with requisite notice periods around working. This contract did not provide for access to part time working as provided for in the Code of Practice on access to Part time Working.

I note that the complainant had historically worked Sundays and she was now seeking to work on Mondays and Tuesdays within the revised 20-hour week. She asked the respondent what would occur if she refused to sign the proposed contractual amendment, which was not as in Overhill, a collective agreement? The question of the proposed reduction in Sunday premia was not uppermost in the complainant’s mind.

The Respondent told her that she may be considered as absent with a loose reference to a potential activation of the disciplinary procedure. These were all actions hinted at but not executed at the time the complainant made her decision to resign her position on October 13. I found considerable efforts made by the parties to resolve the question of accessing set hours. However, I found that the complainant did not appreciate the business challenges faced by the respondent in response to covid 19.

In Barry O’Connell v Sovereign Security ltd [2011] 22 ELR 281, The EAT recognised a constructive dismissal when the Employer sought to compulsorily reduce a contract to fixed term status after 6 years of continuity of service.

I have not identified a contractual breach in the complainant’s contract in this case to justify her resignation. I found an invitation to agree a revision of minor terms followed by an allocation of extended annual leave. There was a further bank of annual leave which was then paid as cesser pay.

I must now progress to consider whether the actions of the respondent were so unreasonable as to permit the complainant to consider herself as dismissed. In this, I must consider the actions of both the employer and employee. Berber v Dunnes Stores [2009] ELR 61

The Respondent has referred to Conway in submissions. This was a case where the EAT considered the resignation unreasonable without first “having substantially utilised the grievance procedure to attempt to remedy her complaint “The facts of this case covered a unilateral transfer of work location.

In this case, I have considered the inter party correspondence exchanged from September 15 onwards. I am satisfied that this constitutes the commencement of a grievance procedure, without seeing the word referred to by either party. The Respondent has a comprehensive grievance procedure that allows for a full internal consideration of the grievance prior to external referral to a third party. I note that some updates on bodies names are needed in that quadrant.

I have established that the Complainant did not see the grievance procedure through when she posed the question to Ms A regarding what course would follow a refusal to agree to contractual changes? She also expressed a reservation regarding a return to work without securing her requested set days.

The Complainant was well regarded at the business, and she had no stated reason for fearing to advance the entire grievance procedure.

In Porter v Atlantic Homecare [2008] ELR 95, the EAT found the complainant had been constructively dismissed when she was afraid to use the grievance procedure.

In Murray v Rockabill Shellfish ltd [2012] 23 ELR 331, the EAT found that the work environment was oppressive, and the respondent would not engage in the grievance procedure.

I have found that the complainant was supported by her partner in her request for access to set working days and I did not observe hostility in their interface with the respondent. Instead, I found that the complainant was completely focussed on set working days and was not keen to negotiate any further when these were not immediately available.

 I note that she went on to find new work with that detail in the grocery business.

I have found some fault in the respondent position surrounding a lack of a clear pathway for employees returning to work in terms of family friendly schemes. I appreciate that this is not a case taken under employment equality, however, I am satisfied that the complainant was unaware of her opportunity to apply through this scheme. On balance, the timing of the complainants return to work collided with an emergency trading period in the respondent business. It would have constituted best practice if the respondent had provided the complainant with details of this scheme. It is not delineated in the contract of employment.

I have not identified that the employer’s attitude or actions to the complainant justified her dismissal. I note that she did not avail of the offer to tease out her issues on a video link. I found this to be unreasonable.

However, overall, the claim is unsuccessful on the reasonable test due to the incomplete engagement with the grievance procedure.

While, I have enormous empathy with the situation where the complainant found herself in seeking a return to work which would balance childcare in November 2020. I find that she cannot consider herself constructively dismissed in November 2020 for the purposes of this Act.

The Complainant was not unfairly dismissed.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found that the Complainant has not attained the necessary burden of proof to prove Constructive Dismissal in this case.  I have found that her resignation was voluntary and occurred in advance of an exhaustion of internal disputes resolution procedures.

The Complainant was not unfairly dismissed.

Constructive Dismissal