ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00027068
Parties:
| Complainant | Respondent |
Parties | Edita Kurensky | Edward Lynch trading as Fairhill House Hotel |
Representatives | Stephen Andrew Kurensky Husband | Thomas Ryan Peninsula |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00034626-001 | 12/02/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00034626-002 | 12/02/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00034626-003 | 12/02/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00034626-004 | 12/02/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00034626-005 | 12/02/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00034626-006 | 12/02/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00034626-007 | 12/02/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00034626-008 | 12/02/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00034626-009 | 12/02/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00034626-010 | 12/02/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00034626-011 | 12/02/2020 |
Date of Adjudication Hearing: 24/11/2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint made. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will consider any and all documentary or other evidence which may be tendered in the course of the hearing.
The Complainant’s complaint is that she was Constructively Dismissed which means that the onus is on the Complainant to demonstrate that her Employer’s conduct or behaviour was such that she had no reasonable alternative other than to tender her resignation. The burden of proof shifts to the Complainant in a situation of Constructive Dismissal. The Complainant must demonstrate that she was forced to terminate her Contract of Employment in circumstances which, because of the conduct of the Employer, the Employee was entitled to terminate his employment or it was reasonable for the Employee to terminate his employment (as defined in Section1 of the Unfair Dismissals Act 1997).
It is well established that there are two tests for constructive Dismissal in the Statutory definition provided. Either one of these tests can be invoked by the Employee.
The first is the Contract Test where an employee will argue an entitlement to terminate the Contract of Employment because of a fundamental breach of the of Contract on the part of the Employer. The breach must be a significant breach going to the root of the Contract.
Secondly, the employee may allege that she satisfies the 1977 Act’s “reasonableness” test. That is that the conduct of the Employer was such that it was reasonable for her to resign. That the employer has conducted it’s affairs so unreasonably that the employee cannot be expected to put up with it any longer and is justified in leaving.
In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form her place of employment (by reason of Constructive Dismissal) wherein she had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 12th of February 2020) issued within six months of her dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter
In a case of Constructive Dismissal, there is a generally accepted proposition that the Employee should engage and exhaust internal mechanisms which might be available in a given workplace before tendering a resignation. I would have regard for the seminal Employment Appeals Tribunal case UD 474/1981 Margot Conway -v- Ulster Bank Limited Wherein the Tribunal stated:
“The Tribunal considers that the Appelant did not act reasonably in resigning without first having substantially utilized the grievance procedure to attempt to remedy her complaints. An elaborate grievance procedure existed but the Appelant did not use it. It is not for the Tribunal to say whether using this procedure would have produced a decision more favourable to her but it is possible.”
Lastly, where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the loss.
In addition to the above and in accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention - by an employer - of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 (or such other Act as might be referred to in the 2015 Act), made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing.
The Complainant herein has referred a matter for adjudication as provided for under Section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and where the said Employee employed by an Employer is entitled to have been provided (within two months of the commencement of the employee’s employment with the employer) with a Statement of certain Terms of the employment. The said terms are specified in Section 3 of the 1994 Act and include items such as names, addresses and place of work. There should also be a job title and a description of the nature of the work. The start date and the nature/duration of the Contract should be included in the statement as well as the terms of the remuneration. This statement should be dated and signed with copies retained by both parties.
The Complainant herein has also referred eight complaints of contraventions of the The Organisation of Working Time Act 1997.
Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:
- (i) Declare the complaint was or was not well founded;
- (ii) Require the Employer to comply with the relevant provision;
- (iii) Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.
Background:
This is primarily a case concerning an Unfair Dismissal there are some ancillary complaints under the Organisation of Working Time Act 1997 as well as the Terms of Employment (Information) Act, 1994. This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way. In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.
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Summary of Complainant’s Case:
The Complainant issued a workplace relations complaint form on the 12th of February 2020. There are eleven separate complaints. Eight are brought with reference to the Organisation of Working Time Act of 1997. There is a complaint of Unfair Dismissal and a separate one of Discrimination under the Employment Equality Acts. Lastly a complaint made under the Terms of Employment (Information) Act of 1994. The Complainant gave evidence on her own behalf and was represented and accompanied by her Husband. The Employment herein terminated on the 26th of October 2019 at which time the Complainant resigned her position in circumstances, she says, amounted to a Constructive Dismissal. It is noted that the Burden of Proof rests with the Complainant in each of the Complaint’s set out. It is further noted that in bringing complaints concerning the contravention of Employment Statutes the Complainant (in general terms) is limited to the six month period directly preceding the issuing of the workplace complaint form. It is noted that the Complainant submitted payslips for 19 different pay periods after the hearing. These were provided to the Respondent. The payslips provided tend to show that the Complainant was working on average, a sixty-hour week. |
Summary of Respondent’s Case:
The Respondent is the owner and Manager of a Hotel situate in Clonbur Co. Galway wherein the Complainant had been employed since October 2017. The Respondent gave evidence on his behalf and the Respondent was represented. I have been provided with a submission concerning the law and the facts although evidence was largely provided orally by the Respondent witness. |
Findings and Conclusions:
I have carefully considered the evidence adduced in the course of this hearing. The Complainant commenced her employment in October of 2017. It appears that the Complainant was engaged as a receptionist and was to work in the Bar but that very quickly she was performing a great many of the functions associated with the smooth running of this 20-room hotel. She demonstrated great flexibility. The Complainant was doing the housekeeping, turning down rooms, working the breakfasts, on bar duty and operating behind the reception desk and generally being a competent, somewhat overstretched member of staff. I understand that the Complainant was paid a flat rate of €10.00 per hour no matter how many hours she worked in a given week. This was slightly above the Minimum wage in place in 2019. I also understand that the Complainant worked long hours that suited the Hotel and not the Complainant who is the mother of four young children. For example, split shifts operated in this workplace. It seems that the Complainant was not provided with a Contract of Employment at the start of her employment and nor was she provided with a Statement of certain Terms of the employment as is required to be given within two months of commencement of employment under the Terms of Employment (Information) Act, 1994. I am also satisfied that the Complainant was not provided with a Staff Handbook to include information on Grievance and Disciplinary procedures at the commencement of this employment. These it seems were provide a short time before the relationship herein came to an end. The Complainant worked hard and put long hours into the Hotel. I note that the Respondent had cause to take the Complainant aside in late December 2018 (some fourteen months into the employment) to address specific tasks that needed doing. The Complainant was upset at this perceived criticism, but the parties moved on from that and I have had sight of the text exchanges between the Employer and the Husband at this time and nothing particularly turns on this. I fully accept that the Complainant found working the long hours very hard and that she must have felt the pressure of being a key worker in the hotel. The Complainant indicated that she sought medical help for anxiety from time to time. There is however no evidence to suggest that the Respondent would have been aware of this fact. In considering the evidence I have heard I find that there is very little evidence of any particular and/or ongoing dialogue between the parties which would suggest a deterioration in the relationship. In fact, all the evidence of deterioration points to the single interaction which happened over two days on the 20th of October 2019 and the 26th of October 2019 at which time the Employer presented the Employee with a printed document purporting to be a Statement of the Terms and Conditions of the Employment. This document had recently been prepared by a thirs party HR advisory company. The document was presented with a view to being immediately signed by the Complainant and returned to the Employer to allow him to get his files in order. I accept that the complainant could have had no idea that this was part of a bigger effort on the part of the Employer to get his affairs in order and to ensure Statutory Compliance. I therefore find that the Complainant was completely taken by surprise, and I find that her request to take the proposed Contract home and consider it overnight or over a few nights was not unreasonable. I further find as a matter of fact that the Employer refused this reasonable request and thereby triggered the chain of events that brought about the resignation. I do not understand why the Respondent applied the urgency that he did. This document was already late by two years, another few days would have made little difference. He (the Respondent) knew or should have known that the Complainant needed time to peruse this document and that the Complainant was absolutely correct in asserting that she should not sign her name to something to which she was being given no time to consider. It is not unreasonable that the Complainant would want her Husband to look at the proposed Contract or that she might take it to Citizens Information. She was clearly uncomfortable to sign and return it then and there. Of concern to her was the fact that a flat rate of pay was applied and no reference to what should apply for overtime and Sunday pay etc. As the Complainant had already worked there for two years with no increase in pay (from €10.00 per hour) I can understand that she might like to see a mechanism for increased rates or special rates of pay to be included. The Respondent was dismissive of the Complainant saying it was not rocket science and everyone else had signed up. He was dismissive of her desire to involve Citizens Advice. In his evidence the Respondent said that there had been no “trickery” intended and that she was getting “herself into a state”. It is interesting to me that he made that observation at the time and did nothing to ameliorate the situation. Such was the level of discomfort experienced by the Complainant at this time in her place of work, that she called her Husband to come and collect her and take her home. She therefore left work early that day in a very distressed state. She gave evidence that she had felt she was being bullied. This was to be her last day in the workplace. As it happens, the Complainant was on Annual Leave for the next two weeks, so her actual end date was the middle of November and I note that the Complainant was paid that Annual Leave as appropriate. Correspondence was exchanged between the parties, but the Complainant never returned to the workplace. The Respondent should have used this time as an opportunity to get the relationship back on track. He chose not to do so, and his letter of the 26th of October simply doubles down. The Respondent denies excessive pressure and says he cannot understand how and why she reacted in the way she did. She simply disappeared leaving the reception unattended he says. Having reflected on her employment after the termination of the employment, the Complainant felt aggrieved that her Employer had never sought to abide by the obligations imposed under the Organisation of Working Time Act1997 and has asserted that there were ongoing contraventions of the Act. It is noted that there was no formal Grievance mechanism in this workplace until about two weeks before the end of the employment. It’s introduction at this point (early October 2019) is seen by me as evidence of the Respondent’s overall efforts to try and regularise the Employment status and situation of the Employees. However, I do not see any evidence that the Employer asked the Complainant to utilize this Grievance process before going to the Workplace Relations Commission (that opportunity arising in the immediate aftermath of her departure) and I accept that the Complainant need not necessarily have known that such an option was open to her. I asked the Complainant to explain the narrative around her Employment Equality claim. She highlighted a number of situations wherein she perceived that other Employees were not working as hard or as long as her. That they (she says) were getting preferential treatment. I am satisfied, however, that this general sense of disgruntlement did not amount to a discrimination on any of the acknowledged grounds. In mitigation the Complainant has confirmed that she obtained alternative employment a month after the termination of the employment. The Respondent has given evidence that the Complainant was always encouraged to take breaks and rests as appropriate. The Respondent’s view was that the Complainant as an adult needed to use her judgement and take breaks and rests during the lull periods in the workplace. The Respondent says that the Complainant knew or ought to have known that the flat rate of pay over and above minimum wage was intended to take into account overtime and Sunday pay. The Respondent gave evidence that the Complainant actively sought to work as many hours as were available and that this is the reason why she very often went over the Contractual hours of circa 40 per week.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 – Compensation for working on a Sunday CA-00034626-001 – In circumstances where there was no Contract of Employment there is no evidence that the employer ever took working on a Sunday into account. The Complaint herein is well founded and I require the Employer to pay to the Employee the sum of €150.00
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 – Compensation for not getting daily rest periods CA-00034626-002 – Neither party adduced evidence concerning daily rest periods.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 – Compensation for not getting breaks CA-00034626-003 - The Complaint herein is well founded as there is no evidence that the Employer required that breaks be taken and I award €150.00
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 – Compensation for not getting weekly rest periods CA-00034626-004 – Neither party adduced evidence concerning weekly resat periods
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 – Compensation for working more than maximum number of hours
CA-00034626-005 – This complaint is well founded. Of the payslips seen by me the Complainant worked 12 hours over the statutory limit. I require the Respondent to pay to the Complainant the sum of €150.00
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 – Compensation for not getting paid annual leave CA-00034626-006 – The complainant confirmed this had been paid so this complaint is withdrawn.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 – Compensation for not receiving public holidays CA-00034626-007 - The complainant confirmed this had been paid so this complaint is withdrawn.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 – Compensation for not receiving starting and finishing times in advance CA-00034626-008 – This complaint is not well founded. Time were allocated on a published roster which came out every Friday.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00034626-009 – The Respondent has conceded that the Complainant did not get her Statement of Terms within the time allowed under this Act. This complaint is well founded and I require the Respondent to pay to the Complainant the sum of €500.00.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00034626-010 – I accept that the Complainant was Unfairly Dismissed by reason of a Constructive Dismissal. The Respondent placed undue and unacceptable pressure on the Complainant forcing her to resign her employment. The Complainant did not have any other clear option. It is noted that the Complainant obtained alternative employment relatively quickly and I award the Complainant €1,500.00
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00034626-011 – The Complainant has not made out a Prima Facie case of discrimination in the course of the Employment.
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Dated: 04th May 2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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