Complainant

Respondent

Parties

Irina  Kuczabinski

Sackville Leisure Investment Limited Moxy Dublin City

Representatives

IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 18A of the Organisation of Working Time Act, 1997

CA-00045239-001

16/07/2021

The complainant had been employed as Accommodation Manager at The Moxy Hotel since its

 opening in 2019. Following lay off during the pandemic a dispute arose about her return to full-time

 work.

The complainant had been laid off due to the Covid-19 pandemic. On May 6th, 2021 she was advised that the Hotel had been sold and her contract of employment had been transferred to the new company. Later on, she got a phone call from the hotel manager asking her about her return to work, which she did on May 19th.  

She was requested to clean the hotel bedrooms, but she could not do so on account of her age and health problems. She was taken off the roster and asked to provide a letter from her doctor to confirm her medical problem. She provided the letter on May 31st, via email.

The respondent replied telling her that she would work only two  days per week starting with the next roster, on June 10th and 11th and she only worked two days per week since then, with the exception of the first week in July when she worked three days.

She should have work full three as per her contract of employment. she should have also given notice about these changes in her contract of employment which did not happen.

She complained about her working hours and that she felt discriminated based on her age and health issues as she was the only manager in the hotel placed on short working hours and was no effort made to find suitable duties for her.

As result of her complaint she had a meeting the hotel manager, accompanied by HR.

They insisted that they did nothave more work for her, even though she expressed a wish to work in Reception or other areas which did not involve physical work. This was followed by a letter stating that there was no option but to keep her on two daysaweekuntilbusinesslevelreturnedtonormal.

A specific date was not given. The hotel reopened on July 14th and she remained on two days per week. Her assistant who is working full time since she returned, applied to go on holiday in August. Even then she was not rostered for more than two days, and on July 16th she resigned.

In her complaint form to the WRC, the Complainant alleges a breach of Section 18A of the Organisation of Working Time Act which pertains to banded hours:

‘’Where an employee’s contract of employment or statement of terms of employment does not reflect the number of hours worked per week by an employee over a reference period, the employee shall be entitled to be placed in a band of weekly working hours specified in the Table to this section’’.

The respondent disputes this claim in its entirety and says that the alleged contraventions did not occur. Furthermore, the relevant legislative provisions were complied with in relation to the complainant, and this Act was not  contravened in the manner alleged.

On March 14th 2020, the respondent  had to temporarily cease operations following Government pandemic restrictions, and, in line with their policies had to temporarily lay-off staff and review their financial viability for the future. Onsite staffing levels dropped from 50 (estimated) to less than five.

The complainant commenced employment on August 26th 2019, in the position of a Housekeeping Manager. She worked 40 hours per week and was employed on a full-time contract of employment, reporting to the Hotel Manager and was paid a gross salary of €45,000 per annum.

Her contract of employment provided a clause on Short-Time Working and Lay- Off (submitted in evidence):

The contract also provided a flexibility clause as follows:

‘’The Company may amend your duties from time to time, and, in addition to your normal duties you may from time to time be required to undertake additional or other duties as necessary to meet the needs of the business. You will be given as much notice of any such change of place of work as is reasonably practicable’’.

In May 2021, following a period of lockdown, the respondent contacted employees to determine who was willing to return to work. The Complainant agreed to return to work but noted that she would not be in a position to clean rooms due to an issue with her back and she was asked to get a note from her GP to provide guidance on this matter.

On May 31st 2021, she submitted a medical certificate which outlined that the she would be unable to do physical work due to chronic back pain, and that she would be able to do administrative work only.

The Hotel reopened on June 2nd  2021. Capacity was low, due to Government guidelines and on June 16th, the complainant requested a reference letter from the HR Business Partner) and explained that she had obtained a new role in a different company. This letter was provided, and the complainant was asked to inform her manager of her resignation in due course.

On June  22nd  2021, the complainant wrote to the Hotel Manager, setting out her  dissatisfaction about the short time hours and she was met on June 29th .

During this meeting, the complainant questioned why she was not receiving morehours of work. She also questioned why she was not considered foralternativeroles and the respondent explained thatavailabilityofwork wasconstantly under reviewbut,duetotheCovid-19pandemictherewaslimitedworkavailable.

The respondent explained why the complainant was not assigned other  roles.

The complainant queried why she was not getting the work of her colleague and alleged she was being discriminated against on the basis of her illness  because she was getting fewer hours than her colleague.

The respondent explained that her colleague was required to do physical duties. Due to the complainant’s medical condition, she is restricted in doing administrative duties only. Therefore, the company had only two weekly days of administrative work available. However, the respondent was willing to accommodate the complainant to  the best of is ability.

The respondent subsequently requested an additional medical certificate to ensure the Complainant is fit to carry out alternative roles.

On June 30th the complainant was provided with a short-time letter confirming the company's situation and the necessity to place the Complainant on short time of two days a week effective from 10 June.

On July 16th , the complainant resigned from her position as Accommodation Manager effective from July 21st. The Complainant provided five days’ notice of her resignation which was in breach of her contract of employment which stipulates two months' notice must be provided.

The respondent says that the complaint is misconceived due to the fact that she  was placed on lay-off and short-time. This is unrelated to Section 18A of the Organisation of Working Time Act 1997, pertaining to banded hours.

The Respondent  relies on A Bar Worker v A Licensed Premises ADJ3795 in which the Adjudication Officer stated:

“For reasons that will be obvious, an Adjudicator can only decide a matter on the basis of the legislation under which the complaint is referred, and the complainants will be well advised to ensure that they have selected the legislation most appropriate to their complaint at the time of submitting it”.

Equally, Section 18A (1) of the Organisation of Working Time Act 1997 relates to situations where:

‘’employee’s contract of employment or statement of terms of employment does not reflect the number of hours worked per week by an employee over a reference period, the employee shall be entitled to be placed in a band of weekly working hours’’.

However, the complainant’s contract of employment specifically outlines that ‘’the normal hours of work will be 40 hours per week’’. The Complainant worked 40 weekly hours prior to the Covid-19 pandemic and the reason for the lesser hours relates to the respondent  exercising a lay-off and short-time clause as set out in the complainants contract of employment.

Notwithstanding that the complainant being placed on lay-off and short-time is unconnected to zero hours contracts, the respondent would draw on Section 18A (13) which states;

 ‘’Nothing in this section requires an employer to offer hours of work…… in a week where the employer’s regular occupation, profession or trade is not being carried out’.

Similarly, Section 18A 5 (b) outlines that ‘’where there has been significant adverse changes to the business, profession or occupation carried on by the employer during or after the reference period’’

It is indisputable that the Respondent  suffered adverse changes to the business as a result of Covid-19 pandemic.

Referring to the WRC complaint form, the complainant is alleging she ‘’should work full time  as per [her] contract of employment’’.

However, it is the respondent ’s position that the terms of her contract of employment were complied with throughout. She received her contract of employment on September 27th  2019 via email. That contract provided a clause on Short-Time Working and Lay-Off (submitted).

The complainant was first placed on lay-off effective from March 2020 andlaterreturnedtoworkonashort-termbasiseffectivefromJune 10th2021.Duetothe Covid-19Pandemic,issuesofwork  availabilityposedsignificantdifficultiesforthehospitalityindustry.

For that reason, placing the complainant on lay-off and short-term was an alternative to redundancy in which the  hotel wished to avoid at all costs. It provided as much notice as ‘’reasonably possible prior to such lay-off and short-time’’ as set out in the contract of employment.

The respondent relies on William P Keeling & Sons P Keeling & Sons Unlimited Co v Beata Slowinska ADJ-00014873 whereby the Court held ‘’the potential for lay-off is provided for in the Complainant’s contract… therefore, the complaint must fail’’.

The respondent notes that the complainant provided a medical certificate datedMay  26th 202. which outlined her inability to do physical work due toher chronic back pain and that she was available for administrative work only.

The respondent had a duty of care to ensure the health and safety of its employee and its first obligation was ensuring the complainant’s duties were administrative in line with medical advice. This restricted the respondent’s ability to provide her with work for more than two days per week.

The respondent believes that it acted reasonably throughout. Once the complainant voiced her dissatisfaction, it organised to meet her to discuss the issues informally. Although the company is bound by financial constraints as a result of the global pandemic, it was willing to accommodate her to the best of its ability.

The complainant acted in a hasty manner by resigning from her position without exhausting internal procedures. She received the company’s grievance procedure on August 26th  2019 and was fully aware of the formal procedures and the procedure for appealing decisions. She failed provide a medical certificate confirming her fitness to carry out roles outside of administration or giving the respondent reasonable time to resolve the matter.

The respondent relies on the Conway v Ulster Bank UD474/1981 case. Although this case relates to constructive dismissal, the principle remains relevant. The Complainant in this case did not act reasonably in resigning her employment as she had not previously ‘’substantially utilised the grievance procedure to attempt to remedy her complaints”.

The respondent  respectfully requests that the Adjudication Officer finds that this claim is without merit and should fail, and indeed that it is not within jurisdiction.

The facts related to the complaint are clearly set out above and, in respect of the chronology of events they are at one.

The respondent ’s business, a hotel had been closed as a result of the public health measures during the pandemic and the complainant had been laid off and was in receipt of the Pandemic Unemployment Payment.

The difficulty arose when she returned to work and was asked to undertake work for which she was not physically fit, and while it was within her general range of duties, she would normally be asked to perform those specific duties only infrequently.

In summary, the respondent could not find alternative work for her that was compatible with the medical limitations certified by her doctor and she remained on a two-day week.

Matters came to a head on July 16th, a few days after the hotel re-opened and when she was asked to approve her assistant’s annual leave. She assumed that this absence would open up the possibility of extra work for her, but it did not do so. The respondent says this was because it would have involved work proscribed by the medical opinion she submitted.

Clearly irked by this, it would appear, that same say she resigned her position and referred the matter to the WRC. Commendable efforts made subsequently by the respondent to resolve the matter were not successful.

So much for the narrative of events.

The complainant made her complaint under Section 18A (1) of the Organisation of Working Time Act 1997 relates to situations where:

‘’employee’s contract of employment or statement of terms of employment does not reflect the number of hours worked per week by an employee over a reference period, the employee shall be entitled to be placed in a band of weekly working hours’’.

This is the ‘banded hours’ provision that applies in zero hours contracts and the complainant obviously made an error in identifying the relevant provision. She told the hearing that she had not taken any advice and the narrative above indicates that she acted very hastily indeed.

The complaint was submitted just after 4pm on the day she became aware of her assistant’s annual leave application and that this would not result in additional work for her. This suggests that she acted while she was upset about that.

However, an error such as this in relation to the complaint form is not always fatal, provided it is otherwise obvious what the general nature of the complaint is and a respondent is fully facilitated in entering a response, even if this requires an adjournment.

The problem for the complainant is that it is far from clear whether any other statutory complaint arises. I can see no cause of action in respect of the lay-off period.

The issue related to her remaining on short time in circumstances where the hotel was slowly returning to normal business and this was complicated by the physical limitations on what she could do.

The respondent submitted to the hearing that a role on reception duties, for example was a live possibility, but that it already had reception staff and that it would have taken time to work through how the complainant would fit in with this.

Bear in mind again that the hotel had only opened again fully a couple of days before the complainant’s resignation.

The complainant’s peremptory resignation put an end to any possibility of bringing this conversation to a successful conclusion.

She had open to her the possibility of free advice from the Citizens Information Service, for example, or a trade union to say nothing of processing the matter as a grievance within her workplace.

Accordingly, not only is the complaint as submitted, admittedly erroneously, not well-founded, but there is no discernible complaint of any sort under any other statute.

Accordingly, I find that the complaint is not well founded.

For the reasons set out above I find that complaint CA-00045239-001 is not well founded.

Pandemic return to work