Complainant

Respondent

Parties

Gillian  Dunne

Teroboc Operations Limited t/a Kinnitty Castle Hotel

Representatives

  Self

Company Director

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-00052757-001

08/09/2022

The Complainant commenced working for the Respondent in October 2007. She was initially working in the kitchen. She requested a move to housekeeping as she had a back/shoulder injury. 

She worked 15 hours per week.

The Complainant set out that she had to leave her position due to the Respondent giving her reduced hours or no hours.

The Complainant's case was that she had worked successfully in the kitchen of the Respondent for 14 years as a kitchen porter.

In September 2021 she asked to be moved to the housekeeping department due to her difficulty to do the physical work involved in the kitchen.  She explained that she incurred a shoulder injury in the Respondents workplace many years ago. Since the fall, she had ongoing problems with her shoulder.

Her request to be moved to the housekeeping department was successful and she was in receipt of 5 shifts per week until Christmas 2021. 

She obliged her duty manager to work a shift in the kitchen on the 22/23 January 2022. She was conscious that due to her shoulder injury she couldn't do the intensive work involved in the kitchen any longer.

She met with management on the 24 January 2022. She was in agony and pain at the time and informed them of her medical complaints and difficulty in working in the kitchen.

Before she transferred to the housekeeping department, she received 3-to-5-day shifts per week depending on the season.

After a meeting with management on 24 January 2022 the Complainant noticed her shifts reduced to 1 shift per week or ½ shift per week. She submitted that part-time employees who were college students were given priority to available work shifts during the summer and other academic breaks.

The Complainant had other employment outside of the Respondent and this was used by the Respondent as an explanation for her reduced shifts.

The Respondent requested they Complainant to provide a medical report from her GP in relation to her shoulder injury. Her GP noted that she was not out of work and advised her that the Respondent should send the Complainant to its Occupational Health Consultant.

In February 2022 the Complainant raised a written grievance regarding her reduced work hours with the Respondent and in April 2022 she raised a formal grievance with the General Manager.

The Complainant was forced to apply for social welfare, and she found this embarrassing.  She was not happy with the way that the Respondent dealt with her social welfare form.

She resigned due to the lack of improvement of her shift allocation on 24 August 2022.

After she resigned, she noted an advertisement on an employment recruitment website looking for two full-time accommodation assistants. She found this very unfair as she had been available to work full-time but not given any full-time shifts.

The Complainant confirmed that after her employment ended with the Respondent she took up a role working in a nursing home. She took up this position two days after she resigned from the Respondent's employment. She was in receipt of similar pay and was employed for five days per week. It involved an additional 12 minutes travelling from her home than she had to travel to the Respondents hotel.

The Respondents case was that it tried to accommodate the Complainant with all her requests in recent years given her limited availability and her preference of what Department she wished to work in.

It was aware that she had a part-time flexible job at a school until August 2021. In that role, she was able to swap shifts to suit her schedule with the Respondent. In August 2021 the Complainant told the Company director/manager that she had taken up a full-time job Monday to Friday and she could no longer do the afternoon shifts in the kitchen with the Respondent. She told the manager she was tired of working evenings. She said she would prefer to work in a department that gave her daytime hours. She also requested weekends off as she was working and Monday to Friday in the school.

The manager advised she would do her best to accommodate the Complainant, but she could not guarantee she could arrange the requested shifts. She indicated she would only be able to give two or three shifts a week in housekeeping.

The Respondent had two full-time staff and numerous part-time staff already in the housekeeping department. She advised that there would be minimal weekly shifts available in housekeeping department.

The manager thought that the Complainant accepted this, on the basis that she had a full-time position elsewhere.

The manager was surprised when the Complainant informed her of her shoulder injury which had taken place 12 years previously. The manager had been working in the hotel for three years before the Complainant told her of the injury. The manager queried how the injury was aggravated when in the role of a kitchen porter but not when doing the role of housekeeping.  She asked the Complainant to provide her with a medical report.

The Respondents position is that the Complainant felt she should get more work shifts than other employees due to her tenure in the hotel. The Respondent explained that there were limited work hours for allocation in housekeeping and it had two full-time senior staff and four part-time staff working in the housekeeping department before the Complainant transferred to it.

The Manager explained that she gave the Complainant shifts mainly midweek (as per her request) and that she received the same hours as everyone else and sometimes even more.

The Manager explained that no additional full-time staff were hired in the housekeeping department and had no knowledge of the advertisement.

The Complainant resigned by letter 24 August 2022. In the letter she set out "I wish to conclude my work at the earliest possible opportunity. I also wish Kinnitty Castle Hotel every success in the future." 

The Manager explained that they were sad to see the Complainant depart from the hotel after her very long service there. It accepted her letter of resignation.

The Complainant resigned by letter 24 August 2022.

Section 1 of the Unfair Dismissal Act defines constructive dismissal 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

Section 6(1) of the Act states

Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where the employer’s conduct was of such a nature as to entitle the employee to terminate his employment; in essence that the conduct of the employer amounted to a repudiatory breach of the contract of employment such that the employee would be entitled to regard himself or herself as having been dismissed. This is often referred to as the “contract test”.

In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 it was held that to meet the “contract test” an employer must be “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”.

Secondly, the Act at Section 1 addresses the issue of reasonableness. It is settled law that in considering a complaint of constructive dismissal, I must consider this issue either as an alternative to the contract test or in combination with that test. The reasonableness test asks whether the employer conducted its affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer and, if so, she is justified in leaving.

In the within matter the Complainant submitted that the reduction in her provided shifts was unfair and breach of her contract of employment.

I note that the Complainant raised a grievance regarding the number of shifts she was being provided with and her grievance was answered in writing by the Manager on the 3 March 2022.  The Complainant raised a formal grievance on 11 April 2022 Wednesday with the hotel manager. I was not provided with the reply to this, but the Complainant gave evidence that she had spoken with the Hotel Manager regarding the medical report request.

Having considered the evidence of the two witnesses and the description of the number of hotel rooms, the occupancy of same and the number of hotel and housekeeping staff, together with the information on the Complainant's request to change from the kitchen department to the housekeeping department, I cannot conclude that the conduct of the Respondent was inadequate or unfair to the degree that the shifts provided undermined the root of the employment contract. 

I accept that the Respondent didn’t handle the notification of the Complainant’s injury in accordance with best HR practice. However, there is a duty on the employee to take reasonable care for her own safety and to engage with the Respondent in its enquiries regarding her injury. 

Overall, I accept that the Complainant's hours of work were reduced and this was linked to her request to move from the kitchen department to the housekeeping department together with her unavailability to work in the afternoons or at the weekends.

In reaching my conclusion I have carefully evaluated the written submissions made by the parties during the hearing and taken full account of the oral submissions made by the parties.

In constructive dismissal cases I am required to examine the conduct of both parties.

Overall, in all the circumstances, I cannot find that the Respondent’s conduct was unreasonable to the degree that the Complainant could be justified as a result in terminating her employment by way of constructive dismissal nor was the Respondent’s conduct such as to show that the Respondent no longer intended to be bound by one or more of the essential terms of the Complainant’s contract of employment.

This complaint is not well founded.

Constructive dismissal.  Reduction on work hours.