Complainant

Respondent

Parties

Patricia  Strogen

Mount Falcon Hotel Company Limited

Representatives

  In person

Caoimhe Ruigrok B.L. instructed by Bourke Carrigg & Loftus Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00050485-001

04/05/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00050485-002

04/05/2022

The complainant was employed by the respondent from October 2013 until her resignation on 18th April 2022. The complaints relate to alleged constructive unfair dismissal and alleged breaches of the Organisation of Working Time Act, 1997 in respect of the non-payment of Sunday premium.

The complainant resigned from her employment with effect from 18th April 2022. Her complaint relates to alleged constructive unfair dismissal. The complainant outlined many incidences where she felt undermined, humiliated and victimised by members of management at the hotel, in advance of, as well as after she returned to work following covid closures in June 2021.

Mitigation of Loss

In respect of seeking to mitigate her losses, the complainant stated that she had not looked for work for approximately two months following her resignation. In the six months that followed, the complainant stated that she applied for approximately six jobs – three to shops and three to hotels. The complainant confirmed that she has since commenced a better paid job and remains employed to date.

Evidence and Cross examination

The complainant gave evidence by affirmation. The complainant stated that she had been very happy and proud to work at the Hotel but that in recent years her health had suffered as a result of how she had been treated which ultimately led to her resignation. As well as describing previous difficulties with her treatment by the general manager and his inappropriate attitude towards her, the complainant submitted a grievance on 23rd June 2021 in relation to three issues; her health diagnosis, an issue that arose relating to the cleaning of a bedroom carpet and the way that the leisure centre manager was appointed as housekeeping manager and his subsequent treatment of the complainant. The complainant stated that a meeting was arranged on 16th July 2021 to discuss the grievances and the complainant stated that she was told there may not be a job for her as she was experiencing health problems and her return to manual labour had exacerbated her difficulties. The complainant stated that she had been responsible for the running of the housekeeping department during her managers maternity leave absences and yet despite holding the title of housekeeping supervisor, she was in fact the housekeeping manager which was the role she said she carried out over many years.

The complainant described how hard she had worked while employed at the hotel and how she was treated poorly by management in relation to the appointment of the new housekeeping manager and how she had been told by the general manager that she was “just” a supervisor. The complainant stated that when the leisure manager returned to his original role, she expected to be returned to the role of housekeeping manager, yet this role was subsequently advertised, and a new employee was placed in the position. The complainant stated that she had total responsibility for the housekeeping department in circumstances where the leisure centre manager was not sufficiently experienced and was also uninterested in the role, yet she was not informed of the new person being hired for the role.

It was put to the complainant in cross examination that the employer had previously addressed verbal grievances that she had raised as well as the issues raised by her in her grievance email of 23rd June 2021.

Counsel for the respondent put it to the complainant that an occupational medical assessmentwas required in circumstances where the GP’s letter had been vague and where the employer needed further clarification on the complainant’s health so it could assist the complainant in her continued employment. Counsel further stated that notifying the complainant about the carpet cleaning issue was not a threat of disciplinary action but rather a reminder of the importance of maintaining cleaning standards. In respect of the note stating the complainant was not to be contacted in relation to returning to work, counsel re-iterated the point that, out of courtesy to the complainant, the general manager wanted to inform her of the temporary assignment of the leisure manager to housekeeping and that the role would subsequently be advertised, and the complainant would also be in a position to apply for same. Counsel also put it to the complainant that the general manager’s comment in relation to the complainant’s health care was merely informing her of the health services available in other countries and nothing more.

In respect of the complainant’s efforts to mitigate her losses, counsel for the respondent contended that the complainant did not meet the standard in seeking to mitigate her losses following her resignation in April 2022.

The respondent contends that the appointment of the leisure centre manager to housekeeping during the covid restrictions was necessary and appropriate as the leisure centre was closed at the time and the housekeeping/accommodation manger was no longer in the employment of the organisation. Due to the complainant’s health difficulties, the manager in question undertook the cleaning duties that the complainant struggled with. The respondent accepts that some issues arose from time to time in the employment but that grievance procedures were not utilised in respect of those issues. While the complainant may have had interpersonal issues with the general manager and the leisure manager, resigning as a result does not satisfy the appropriate legal tests in cases of constructive unfair dismissal. The respondent contends that it is for the complainant to prove that, due to the conduct of the employer, she was left with no option but to resign from her employment. The respondent contends that the complainant cannot meet that test and accordingly, her complaint should fail.

The respondent cited the cases of Allen v Independent Newspapers (Ireland) Limited 2002 ELR 84, Reid v Oracle EMA Limited UD1350/2014, Donegan v County Limerick VEC UD-828/2011 and McCormack v Dunnes Stores Ltd UD1421/2008 in support of its position that the complaint should fail.

Evidence and Cross examination

Mr A Maloney - Owner

The owner of the Hotel gave sworn evidence at the adjudication hearing. The witness stated that he had no recollection of previous incidents where the general manager supposedly “yelled and screamed” and “loomed over” the complainant in an aggressive manner.

In respect of the issues in June 2021, the witness stated that he received the complaint and asked the general manager to arrange a meeting and revert to him. The witness stated that it was the complainant’s medical issues that concerned him the most and that he was aware of his responsibilities to adjust the complainant’s role so that she could continue in employment. The witness stated that he also wanted to try and improve the relationships between the staff following the grievance meeting held on 16th July 2021.

The witness stated that in respect of the management of the housekeeping department, the complainant had been “coping” but had not managed the department on her own as she had claimed. In the context of covid and the additional responsibilities arising, the witness stated that the leisure centre manager was assigned temporarily to housekeeping.

The witness stated that he felt that, following the meeting of 16th July 2021, all issues were resolved.

In cross examination, the complainant put it to the witness that it was her opinion that the general manager should not have been involved in addressing her complaint of 23rd June 2021, as the complaint in parts was about him. The complainant also stated that the last number of years had been very difficult for her and that there had been no further adjustments to her role following the grievance meeting of 16th July 2021.

Mr M Arnaout – General Manager

The general manager of the hotel also gave sworn evidence at the adjudication hearing. The witness stated that he is employed at the hotel as general manager since 2019. In respect of the complainant’s grievance of 23rd June 2021, the witness stated that he needed clarification on the medical issues that the complainant was experiencing, and, on that basis, an occupational health assessment was required.

In respect of the carpet cleaning issue, the email from the temporary housekeeping manager was not a disciplinary warning or a threat of a planned disciplinary process but rather a reminder to be careful on issues such as this in future as it was not appropriate to leave carpets as they had been left on this occasion. The witness also clarified that his comment to the complainant in relation to going abroad for treatment was in the context of the available medical care in other countries and was not intended to offend the complainant. The witness also stated that he wanted to tell the complainant face to face that the leisure centre manager was being temporarily assigned to the housekeeping department and it was for that reason that hehad placed a note on file that the complainant not be contacted in relation to a return to work at that time. The witness confirmed that after the meeting of 16th July 2021 it was clarified that the complainant did not need to do any physical work, that she would mostly be involved in rostering, that she would remain as a supervisor and a reduction in the complainant’s hours was to be accommodated going forward. The complainant, for her part, was to keep the general manager notified of her personal circumstances regarding her health so that she could be supported in her employment.

In the within complaint, it is not disputed that the complainant was a hardworking and committed employee while employed at the hotel. In order for the complainant to succeed in a complaint of constructive unfair dismissal, the complainant must prove on the balance of probabilities that due to the conduct of the employer, she had no other option but to resign from her employment.

The Applicable Law

Constructive Dismissal is defined under Section 1 of the Unfair Dismissals Act, 1977 as follows:

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.

The burden of proof rests with the Complainant in this case.

There are two tests in relation to proving that a Constructive Dismissal has occurred. These are the “Contract Test” and the “Reasonableness Test.” Both relate to the behaviour of the employer.

In Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 the “contract test” is summarised as follows:

 “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 other performance.”

Addressing the “reasonableness test” the decision summarises the conduct of the employer as follows:

 “whether the employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

Conclusions

I have considered the submissions and evidence of the parties to this complaint.

In my view the complainant gave honest and credible evidence at the adjudication hearing. It is clear that for many years the complainant worked hard for the employer. The owner’s evidence was also clear that he was mostly concerned with looking after the complainant and making sure that her health difficulties were taken into account and that she was supported in her continued employment. The owner had also hoped to improve relationships as a result of the meeting of 16th July 2021. The General Manager also gave his evidence in relation to his role and his well-intentioned and supportive interactions with the complainant; however, it is also clear that the relationship between the complainant and the general manager was strained and in the complainant’s mind she had been repeatedly treated unfairly and had been disrespected on numerous occasions by him.

The manner in which the leisure centre manager was appointed to the role of housekeeping manager/covid ambassador was obviously upsetting to the complainant due to the responsibilities that she previously undertaken in her role as housekeeping supervisor and the de facto managerial role that she said she had undertaken for a significant period of time. This reassignment, albeit temporary may well have occurred out of necessity at the time but was handled insensitively in my view. This was further compounded by a note that the complainant found written by the general manager which stated she was not to be contacted in relation to a return to work following the covid closure. This was explained by the general manager that he wanted to explain about the temporary assignment of the leisure manager to housekeeping before the complainant returned to work.

Further comments made to the complainant by the general manager in respect of her “just” being a supervisor and that it wasn’t necessary to keep her informed of staffing developments in respect of the housekeeping department post covid were offensive to her and would have further added to her feelings of frustration and upset. The complainant had obvious pride in her work and in the housekeeping service in general and additional comments made to the complainant by the general manager in respect of her nationality and the available treatment options abroad for her health difficulties obviously upset the complainant however well-intentioned the comments may have been. The complainant’s evidence of her treatment by the general manager previously in addition to issues surrounding her return to work in June 2021 obviously contributed to her continued unhappiness and her eventual decision that she could no longer remain in her employment.

In relation to the complainant’s interactions with the leisure centre manager, the complainant stated that when the temporary assignment was made during the covid closure of leisure facilities in 2021, she found herself being treated badly by the new housekeeping manager. The complainant said he was condescending to her and would not allow her to offer any advice. The complainant stated that despite not having carried out the cleaning element of her role for almost four years, she was now expected to return to cleaning lodges and hotel rooms which was difficult for her given her health difficulties. The complainant stated that she was also threatened with disciplinary action after a carpet had not been cleaned properly despite leaving a note informing the manager of the situation in circumstances where she had genuinely forgotten to complete that task. When the leisure centre reopened in January 2022, the leisure centre/ housekeeping manager had apparently returned his focus to the leisure centre role leaving the housekeeping staff in a situation where they had to complain about him and the situation in housekeeping to the owner of the hotel.

It was the complainant’s understanding following discussions with the owner that she would be reinstated to her managerial role in housekeeping but instead was shown a job advertisement for the role which she found very upsetting especially after she had, in her mind, been doing that role for a long time. The complainant subsequently met the new housekeeping manager who then decided not to take the job. At this point the complainant had submitted her resignation and had decided that, for health reasons including her mental health, she could not remain employed at the hotel. The complainant left her employment in April 2022.

I note that the complainant submitted grievances in relation to issues that she was dissatisfied with during her employment, and while some level of effort was made to address the complainant’s concerns outlined in June 2021, in the complainant’s mind matters did not improve and continually worsened until she felt she had no option but to resign from her employment. Having considered the matter in totality, I find on balance that it was reasonable of the complainant to form this view.

Mitigation of Loss

The complainant’s evidence was that in the eight months that followed her resignation she applied for approximately six jobs and at the date of the adjudication hearing was re-employed elsewhere and was in receipt of a higher rate of pay. While unemployed, the complainant, by submitting only six job applications in eight months, did not adequately seek to mitigate her losses following her resignation. Accordingly, I find that the maximum compensation payable to the complainant is four weeks’ pay.

Having considered the submissions and evidence of the parties, I find that the complaint of constructive unfair dismissal is well founded. The respondent is directed to pay the complainant four week’s gross pay (€1,344) in compensation.

The complainant stated that she did not receive Sunday Premium payments since 2015 in contravention of Section 14 of the Organisation of Working Time Act, 1997. The complainant contends that between April 2015 until January 2022, she worked 189 Sundays without any premium being paid to her. The complainant stated that she raised the issue at the time but was told that if she pursued the matter, her hours of work would be reduced.

The complainant cited an RTE news headline in respect of a case before the WRC where a worker was compensated in the amount of €16,692 in respect of having not been paid a Sunday premium for 13.5 years. (ADJ-00037816 Cender v Onsite Facilities Management Ltd) refers. The complainant believes that this is a similar situation to her own and that significant compensation should be paid to her also.

The respondent states that the complaint is without merit as it applied service charge to the complainant’s pay which at the time was permissible in respect of the payment of Sunday premium. On that basis the respondent contends it has complied with the provisions of the legislation.

The complaint was submitted to the Workplace Relations Commission on 4th May 2022. Nothwithstanding an adjudication decision citied by the complainant in respect of Sunday premium payments, I am satisfied that the reckonable period of the complaint in respect of the monetary value of unpaid Sunday premium is the 6 months prior to the complaint being submitted (5th November 2021 – 4th May 2022). The non-payment of Sunday premium payments prior to that period is, in my view, outside the scope of this complaint.

At the adjudication hearing, it was suggested to the parties that the issue of Sunday premium within the cognisable period of the complaint be addressed by the respondent by reviewing the relevant documentation. If matters were addressed to the complainant’s satisfaction, the issue may well have been resolved between the parties. It transpired that approximately five weeks of Sunday premium payments had not been paid to the complainant between November 2021 and her resignation in April 2022. A payment was subsequently made to the complainant to rectify this although the complainant was dissatisfied with the amount paid and the taxation of same.

Having considered the totality of the issue, I find that the complainant’s employment rights were infringed by the non-payment of Sunday premium to her on several occasions. In respect of the premium payments in question, the respondent has discharged the monetary value of the payments within the cognisable period of the complaint, however, I find that the complainant should receive an additional sum of €750 in compensation for the infringement of her employment rights in relation to this issue.

The complaint is well founded, the respondent is directed to pay the complainant €750.00 in compensation for the non-payment of Sunday premium payments to her.

Non-payment of Sunday premium