Complainant

Respondent

Parties

Simona  Kalinakite

King Thomond Hotel (technical amendment)

Representatives

  Appeared in Person

Kenneth Buchholtz , Campbell International Human Resource Consultants

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00047133-001

12/11/2021

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 November 12, 2021, the Complainant, a Lithuanian National submitted two complaints under the Terms of Employment (Information) Act 1994 to the WRC

The second complaint, CA-00047133-002 was withdrawn at hearing as it was a duplicate of the first complaint.

The Complainant presented as a Lay Litigant and presented her case with the support of an Interpreter.

The Respondent was represented by Kenneth Buchholz, who lodged a denial of the claim by means of a written submission prehearing.

He also raised a Preliminary Issue regarding the incorrect Legal entity named by the Complainant on the complaint form.

The Complainant was a late arrival at hearing and her attendance was facilitated by the WRC Concierge. She explained that her phone had battery issues and during the hearing, she clarified that it registered 2%. As closing statements were requested, the Complainant dropped from the hearing and all efforts made to secure her participation at hearing once more were unsuccessful.

Both parties were afforded an opportunity to make closing remarks by means of written submission. This invitation was taken up by the Respondent and not by the Complainant.

Both witnesses to hearing elected to take the affirmation to accompany their evidence.

The Respondent closing statement was received on 28 June 2022.

The Complainant was employed as a Housekeeper in a Hotel setting from 9 August 2021 to February 2022.

The Complaint lodged on 12 November 2021 centred on a complaint under Terms of Employment (Information) Act, 1994.

The Complainant submitted that she had not been notified in writing of a change to her terms of employment.

She outlined that she was contracted for 40 hours per week and her hours of work ceased without her permission on 8 November 2021 when she was laid off. The Complainant did not accept the Respondent reasoning which accompanied this development and she contended that it was a retaliatory discriminatory action arising from a complaint she made of sexual and physical abuse the previous day.

Preliminary Issue:

The Complainant submitted that she was shocked at having to address the legal entity of the respondent at hearing as everybody referred to the hotel as Whites. She did not address the arguments made by the Respondent on the contract or the pay slips.

The Complainant submitted that she did not have prior knowledge of the title now relied on by the Respondent. She sought to make a new complaint.

I explained that that course of action was not open to her at hearing.

Substantive Case:

The Complainant gave evidence that she had attended a staff outing on 3 November 2021. She was later informed by Megan White, listed as an owner of the business that next week’s roster “was empty “

The Complainant was due to go on annual leave on 13 November and did not understand what was happening.

When asked to clarify the nature of the change in the terms of her employment, she indicated that she had experienced an uncomfortable incident during the staff outing.

She had not returned to work as she needed to take sick leave.

The Complainant submitted that she received €208 in sick pay and received 1 week’s salary when she resigned on 7 February.

She contended that she had been bullied and took her case to WRC to seek an outcome “to stop those responsible for the uncomfortable incident to “do this again “

During cross examination,

The complainant acknowledged the short duration of her contract. she said her hours were unaltered before the Party.

She confirmed that she had made an informal complaint regarding the incident of the staff party. She had engaged with the Respondent on one occasion before resignation.

This was November 10, when she met Mr A and the Owners daughter who asked her to show the site of alleged injury.

The Complainant had no concept of the RP 9 on Temporary Lay Off.

During clarifications, the Complainant confirmed that she had not attended an investigation into her complaint, nor had she returned to work. she had lived on €208 paid in illness benefit.

She was unable to particularise the change in her terms and conditions. She could not articulate the circumstances in which she had received the Rp 9 form, which formed the basis of her complaint.

She clarified that she had not raised a grievance internally prior to referral to the WRC.

The Respondent operates a Hotel and has denied all claims.

Preliminary Issue:

The Respondent submitted that the Complainant had incorrectly named the Respondent on her complaint form and consent to amend was not forthcoming.

He submitted that the Complainant had never been employed by White Hotels and he cited the Respondent correct title as:

James White and Co unlimited T/ A King Thomond Hotel

Mr Buchholz submitted that the Complainant had not paid due attention to the WRC advice, which states

“The complaint form should be carefully filled out, giving the correct legal name and address of the respondent … It is vital to check the correct legal name “

The Respondent representative outlined that the complainant was on notice of the correct legal entity through her contract of employment and pay slips.

He argued that the WRC did not have jurisdiction to advance the hearing of this claim.

He relied on UD36/2011, an Employee v an Employer, where the EAT found that the correct employer was identifiable “to the complainant and his representatives “and the case fell.

At hearing, the Respondent Representative restated that the Complainant had never been employed at Whites, which in fact existed as a separate entity but was a competitor in business.

The Respondent was not minded consenting to an amendment to alter the legal entity of the Respondent.

He submitted that the Respondent would have accepted King Thomond Hotel but not Whites. He relied on ADJ 29590 Julie O Brien and Alan Keating v Carton Fixings ltd

Substantive Case:

The Complainant was placed on short time on 4 November 2021, in accordance with the terms of her contract, which indicated that her hours may vary.

During the course of the staff outing, the complainant informed the Managing Director, not present at hearing, that she had been physically and sexually abused the previous week. This was investigated informally by the Respondent on consent.

On 10 November 2021, one of the complainants’ colleagues made a complaint regarding her behaviour on the staff trip.

On 11 November 2021 the HR Administrator, Mr A conducted interviews with staff on the bus and they placed the complainant as having made remarks regarding her colleagues.

The Complainant was invited to an Investigation outcome meeting on 29 November but was too ill to attend. She was invited again for 13 December but did not attend due to illness. This was supported by completed sick certs.

The Complainant resigned on 7 February 2022.

The Respondent submitted that the Complainant had no claim under section 7 of the Act as the contract provided for lay off/short time.

The changes were made on November 4, 2021, which predated the staff outing

Evidence of Mr A. Human Resource Administrator

Mr A confirmed that the complainant would have known the likelihood of her having less hours over winter.

The staff party took place across two venues on 5 November. The Complainants behaviour was remarked on by staff and an investigation ensued.

He met with the Complainant on November 10, which was minuted. This was followed by an amalgamation of statements from other staff.

During the informal complaint, the complainant did not mention the WRC.

The Complainant did not avail of the opportunity to cross examine the witness. she said she was shocked.

During clarification, Mr A clarified that Whites Tours cited on a document was in fact the parent company of the respondent. He said that he had not composed the time sheet.

He said that the RP9 raised at the 10 November meeting was market driven.

The Investigation outcome was not shared with the complainant as she had not presented at the workplace.

By way of closing remarks, the Respondent re stated the reliance on ADJ 29590. The jurisdictional point was repeated on the legal entity. The Responded repeated that the complainant had not made a complaint under the organisations bullying and harassment policy and the matter was not before the WRC.

I have been requested to make a decision in a claim taken under the Terms of Employment (Information) Act, 1994.

In reaching my decision, I have reflected on the evidence adduced at hearing. I have also had regard for the written submission from the respondent and the complainant form completed by the Complainant.

I have found that both parties had the scope to engage on this issue in accordance with the local grievance procedure.

The key Section of the Act here is Section 5 of the Act.

Notification of changes.

5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.

The Complainant has not made a complaint under the Employment Equality Acts before the WRC, neither has she sought to vary the context of complaint lodged on 12 November 2021.

The Complaint stands for decision in accordance with Section 7 of the Terms of Employment (Information) Act, 1994

Firstly, I must address the submissions made on the legal title of the Respondent.

Preliminary Issue:

It is clear from the complaint form lodged on 12 November 2021 that the complainant named the Respondent details as Whites Hotel and added King Thomond Hotel as the business name.

The Respondent has been strident in arguing that this is wholly inaccurate and serves as a jurisdictional bar for progression of the case. In support of this argument, the respondent set out pay slips, a contract of employment and a written statement from Slattery and Partners Chartered Accountants which confirmed the CRO registered company name as “King Thomond Hotel “

A Certificate of Incorporation indicated a recategorization to a Private Unlimited Company on 20 October 2021 as James White and Company Unlimited Company

I cross matched that reference and confirmed the same legal title with the Companies Registration Office.

I have frequently encountered issues surrounding the correct name of the respondent in the course of a case. It has been my experience, in the main that the parties have been pragmatic on this point and more often than not, the respondent agrees to amend the legal title on consent.

The Respondent did not consent to amend on this occasion.

From listening very carefully to both parties in this case, I thought the position adopted by the Respondent was unduly harsh on this occasion.

I suspect that the Respondent had formed an opinion that the WRC was about to broaden the inquiry into the events surrounding the staff outing.

However, I am satisfied that this not properly before me and my scope of inquiry is in accordance with the claim made under the Terms of Employment (Information) Act, 1994.

In reaching a decision on this issue, I must be certain of the correct legal name of the respondent. This is vital in doing justice to the parties in the case and in terms of any potential appellate pathway, or enforcement pathway.

The Complainant has not made application to institute fresh proceedings in accordance with Section 39(4) of the Organisation of Working Time Act, 1997.This distinguishes the facts of this case from UD36/2011, an Employee v an Employer.

During the course of the hearing, the Complainant sought to make a fresh complaint, but did not link it to Section 39(4) of the Act.

I fully respected the complainants right to present her own case, but as an impartial Adjudicator I was unable to introduce her to the provisions of Section 39(4).

I have reflected on the complainant’s own evidence, where she freely admitted that everyone referred to the Hotel as “Whites Hotel” Indeed, on Mr A’s exhibited roster, I noted that

Whites Tours and Hotel headlined an email dated November 4, 2021

It stated Whites Tours and Hotels [from Mon, 8 November 2021 -Sun, 14 Nov 2021]

This document was presented as a template of what a notification of roster looked like.

1 Contract of Employment cited King Thomond Hotel as the Employer

2 Pay slip cited King Thomond Hotel as the Employer

3 RP9 cited King Thomond Hotel as the Employer. This is referred to on the complaint form.

4 Declaration of short time working form presented by the complainant on 15 November 2021 was stamped with King Thomond Hotel as the employer’s official stamp on 15 December 2021.

5 The Bullying Policy exhibited refers to White and Associates Hotel Ltd

6 The roster exhibited raises an ambiguity.

There are a number of ambiguities at play here.

In addition, I must take account of the Complainants clear difficulties with the English language and short tenure with the respondent i.e., August to November 2021

The Respondent has relied on an EAT case 36/2011, where the EAT by majority refused an application in accordance with Section 39(4) of the Organisation of Working Time Act. In addition, the complainant in that case was represented, and received assistance in compiling the complaint form.  A similar set of circumstances prevailed in the EAT deliberations in Jeevanhan Al Tambraga v Orna Morrisey and Killarney Avenue Hotel [2013] 24 ELR 275, when the EAT did not identify “inadvertence “in the course of an error identifying the correct legal entity

I have also considered ADJ 29590 but am not bound by that authority.

I asked the Respondent on whether he accepted the application of Auto Depot ltd and Vasile Mateiu DWT 1922 at the Labour Court?

He did not accept the application.

I am faced with a complainant who is seeking a decision in a case where the Respondent has opposed an amendment to the legal title.

I have found a pathway forward in Auto Depot ltd. This involves a case with internal mobility in work location, where the respondent disputed the legal entity relied on by the complainant. A distinguishing feature in the rested in contracts and payslips not being a feature of that employment.

However, in a very comprehensive consideration of “… whether or not it is legally permissible for the Court to accede to the Complainants application to substitute in the correct respondent in this case? “

In a significant departure from Travelodge Management ltd v Sylvia Wach EDA 1511,with proximity to Sandy Lane Hotel ltd v Times Newspapers ltd [2011] 2IRLM , the Court was influenced by the High Court case of Capital Food Emporium (Holdings ) ltd v Walsh and ors [2016] IEHC 725, which captured the  complainant in the case, Ms Stewart ,  as an ordinary person , acting with trade  union assistance  and not “ a sophisticated commercial group acting with the benefit of blue chip legal and tax advice.

This was a case which had as its centre a late in the day attempt by the Respondent to distance themselves from being a mark in the case.

In the instant case, the respondent accepted carriage of the notification of the complaint in November 2021 and was silent on the argument of the correct legal entity until two weeks prior to hearing.

I found the complainant to be very vulnerable during the hearing as she struggled to respond to the respondent points, particularly in the case of the contract and pay slips.

As, stated. I have found a number of inconsistencies and ambiguities on the correct legal entity.

By the time, this case came for hearing, the complainant had resigned by email in February 2022, the point of the correct legal entity was not discussed between the parties at that time.

The Complainant is a litigant in person and without representation.

I accept that she was provided with a contract and pay slips which reflected the correct employer. however, it was clear she was provided with rosters and a bullying policy which reflected Whites hotel.

I am satisfied that the correct employer is King Thomond hotel, the title the complainant recorded as the business address.

I am satisfied on application of Auto depot ltd, that the respondent present at hearing is the correct employer in the case.

I am satisfied that having been heard, the respondent will suffer no prejudice or injustice when I amend the legal title of this case to King Thomond Hotel

Akin to the Labour Court, I wish to draw on Justice Hogans, then at the High court in remarks in O’Higgins v UCD and another [2013] 21

“Even if the wrong party was, in fact so named, no prejudice whatever was caused by reason of that error (if indeed, error, it be … In these circumstances, for this court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the Courts “

In light of the unique circumstances of this case, I have given some consideration to submissions that the complainant ought to have been more focussed on naming the correct employer from the outset.

However, the error amounts to a technical error and I am applying Auto Depot Ltd, to my reasoning when I say that

1 The Complainant is a Lay Litigant, where English is not her first language.

2 The Complainant recorded the correct legal title in the address section of the complaint form

3 The Respondent was silent on the error until two weeks prior to hearing and is not prejudiced by the error as their case has been fully ventilated and considered

4 The Complainant ought to have been more responsive to her contract and pay slips. However, she was faced with some ambiguity on the legal title in terms of the weekly roster sheets which featured Whites Hotel alongside her organisational awareness of “everyone referred to the Hotel as Whites “

5 The Complainant was on sick leave when she made the complaint and was vulnerable.

6 I found the respondent refusal to consent to amend the complaint form on consent to be overly harsh.

I find that the erroneous inclusion of Whites Hotel on the WRC complaint form to be no more than a technical error and the name can be simply amended as King Thomond Hotel without prejudice to the Respondent.

I find for the Complainant on the preliminary issue.

I will now consider the substantive case

Substantive Case

I have considered the evidence adduced in this case. My objective is to identify whether Section 5 of the Act, as outlined above has been contravened as alleged?.

I am satisfied that the Complainant was notified of Lay off, not short time on 4 November 2021, prior to the staff outing. she was the only person placed on short time (Lay off) as one of three Housekeepers

It is note that the Respondent did not exhibit the roster as applied to the complainant and chose to exhibit Mr As roster week of November 8, 2021.

I find that she was presented with the RP 9 by her own admission on 10 November 2021, the timing of which got muddled up between the active complaint made the day previously.

The complaint centred on sexual and verbal abuse, not before me and the notification of reduction in hours.

It is unusual that in the course of a notified investigation in a complaint of sexual abuse on November 9 that a complainant would be given an RP 9, which in effect signalled the complainants lay off and not short time. I appreciate that this was provided for in the contract, but the timing uneven. The Complainant ought to have been presented with the RP9 consistent with the earlier discussion with Ms White on 4 November. I did not have the benefit of meeting the Proprietor.

I also found it unusual that Mr A would refer to his continuing to investigate, when the complaint had just landed. Mr A told me that he was a team member on the bus. The matter would have been better addressed externally.

 I note that the complaint attributed to the Deputy Manager post dated this on November 10 and later commentary at 2.15 pm on November 11, 2021.

I have considered the facts as submitted. I am satisfied that the RP 9 satisfies the notification requirements under the Act, however ill timed it was.

5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect

I find that the complainant was notified of Lay off on 4 November 2021 with a written record of the nature and date of that change within a month. The Parties ought to have addressed the matter locally prior to referral to the WRC.

While I have serious misgivings around the circumstances of the staff outing and remedial measures applied raised at hearing. These matters are not properly before me, but have required comment .

 I have not established that the Respondent contravened Section 5 of the Act.

I find the complaint Is not well founded.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 7 of the Terms of Employment, (Information) Act, 1994 requires that I make a decision in relation to the complaint in accordance with Section 5 of   that Act.

I find the complaint Is not well founded.

Correct name of Employer, Terms of Employment