Complainant

Respondent

Parties

Claire  Hopkins

Pat Mulhern Civil  Engineering(Ireland) Ltd T/A The Dolphin Hotel

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

  Self

 Kevin M Bourke Sol

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-00052278-001

17/08/2022

This case is concerned with a complaint of alleged unfair dismissal where the duration of the employment and the manner in which the employment ended are all disputed. The complainant was employed part-time in the hotel mainly as a bar worker for many years. The rate of pay was €265 gross at the time of termination.

At the hearing, the Respondent representative contended there were three defences in this case as follows:

(a)    That the Complainant did not have 12 months service with the Respondent. A Mr O’Malley was the previous operator of the establishment as a tenant to Mr Mulhern and Mr O’Malley became a tenant. TUPE does not apply as there was no purchase or sale and no undertaking. Mr Mulhern commenced operating the establishment on 17th September 2021 and became the employer of the Complainant on that date. As the employment had ended on or around 21st or 22nd July 2022 the Complainant does not have 12 months service for the purposes of making a complaint under the Unfair Dismissals Act section 2(1)(a).

In their subsequent written submission further details of the various transactions involving changes in the ownership and operator/s of the premises were provided including details of leases.

In the submission it was stated that the Complainant worked with a Mr M O ‘Malley at the Dolphin Hotel Crossmolina. A contract for sale to Mr Mulhern was agreed in July 2018 and the sale was completed in January 2019. At the time of the purchase Mr M O’Malley had a ten-year lease of the hotel. That lease was surrendered at the time of the purchase. A short-term lease to Mr M O’Malley then came into operation on 10 January 2019. It was verbally agreed that a five-year lease would be granted to Mr M O’Malley once renovations at the hotel were complete. However, the lessee ceased trading in January 2020 owing substantial arrears of rent at that stage and giving only three weeks’ notice to Mr Mulhern who then engaged a manager from the UK to ensure that bookings and vouchers were honoured.

The Complainant was not re-employed for the entire period when a Mr S managed the hotel for Mr Mulhern.

In June 2021 the Complainant approached the then manager(and witness) Mr McArdle saying that she was previously employed at the hotel. She was offered employment but was not free to commence until 14th September 2021 and she worked until January 6th, 2022. At the request of the Complainant a PUP letter was issued to her in January 2022 and she remained out of work, returning on April 8th, 2022. The submission gave as her termination date her resignation or voluntarily leaving the employment effective from 31 July 2023.

On behalf of the Respondent, it was submitted that the terms of s.1.131/2003 did not apply. There was no transfer of an undertaking, there was no merger, there was no sale of a business. Accepting that the Complainant was employed for a short period after Pat Mulhern C.E. (Ireland) Ltd became the owner of the property, this does not make in itself make the  Complainants employment subject to the regulations. In summary the Complainant does not have the requisite service to ground a claim under the Unfair Dismissals Act, 1977.

(b)   Between January and April 2022, the Complainant left the employment in order to be paid PUP, not returning until 21st or 22nd of July 2022. Reference was made to an email from the Complainant on 15th December 2021 saying that the Employer had enough young ones to cover over Christmas and New Year.

(c)    Without prejudice to the contention that the Complainant does not have the requisite service to ground a claim under Section 8 of the UD Act 1977,an email on 10th August 2022 was vital to the defence by the Respondent. That email invited the Complainant to call in at her convenience to discuss rosters and also noted that the Complainant had refused to work shifts over the weekend and refused to work on a seven over seven-day roster like all other staff. It was the position of the Respondent that the Complainant wanted a pay rise for working in the kitchen. When this was refused, she  left the work of her own volition and did not organise to meet with the manager in response to his invitation to do. It is the Respondent position that at a meeting on Thursday 17 July the Complainant instructed the manager not to place her on the roster at all when he refused her demand for a pay rise. A text dated 22 July, where she said she would work in the bar for the usual rate of 11 50 represented a change of heart on her part but at the same time she made no effort to meet the manager when he asked her to do so.

Witness for the Respondent, James McArdle

Mr McArdle gave evidence that he became manager of the Dolphin Hotel in Crossmolina employed by Pat Mulhern in June 2021. The hotel was only after reopening and the previous management were leaving. He was told that he was going in with a blank canvas and he was to get the hotel operational. He was there for about two weeks when he first met the Complainant. At that stage they were due to open the week after with a new chef to come in. At the end of June 2021 when he met the Complainant, he asked was she interested in going back and she told him that at that stage she was on PUP. The PUP stopped at the end of August and so she began working at the hotel. The Complainant was adamant that she would only work Monday to Thursday 9 to 4 and no weekends or public holidays. In December 2021 the Complainant wanted to go back on  PUP and  said that he could get students. He gave her a letter in January 2022 to say that he had no work for her (which allowed her to claim PUP). In April 2022 the Complainant returned to work. After three to four weeks the Complainant came in and spoke about personal issues she was having and that she did not want to be in the public eye every day and so they agreed that she would do work in the kitchen. Shortly after that she approached the witness saying that she could get €14 or €15 per hour, that she needed more money. Asked about the meeting on the 21st of July he said that wages had come up. It was around 11am and the Complainant was in the kitchen and she said that she wanted a pay rise of a euro per hour. When she finished that day, she told him not to put her on the roster. He asked her was she sure and she replied, no,  you’re not going to give me extra money. At that point he took it that she was leaving the employment as she did not want to be put on the roster.  Asked did he write a letter to the Complainant inviting her back for a conversation he said, yes, but she did not reply.

In cross-examination the Complainant queried the witness regarding the assertion that the Complainant had asked to work in the kitchen for personal reasons as the dates he was suggesting did not match the dates of the events he was referring to. He agreed that she had spoken to him over that weekend on his phone on the 22nd of July, but his position was that she had changed her mind from the discussion where she said she did not want to be put on the roster at all.

Asked when he gave a direction to inform the Revenue that the employment was terminated the witness stated that he believed it was Wednesday the 27th of July. Asked why he gave the direction at that time the witness said that she would not come in to meet him. He added that he  had received a phone call from a business seeking a reference for the Complainant and at that point he said that he concluded that she had left the employment of the Dolphin. In cross examination he gave the name of the other hotel.

On the matter of his having given the Complainant a written contract it was his evidence that she would not sign it. He agreed he did not have a copy of the contract he says  issued to her with him at the hearing. [Such a document was not received in the Respondents post hearing submission].

Respondent’s Closing Remarks

The Complainant did not have twelve months service with the Respondent. In any event, this was not a dismissal. The Respondent issued an open invitation to the Complainant on the 10th of August 2022 to reconsider her position to work on the same terms as all other staff. The Respondent had stretched out the hand to the Complainant on the 10th of August, but on the 17th of August the Complainant lodged a complaint. The opportunity was there to discuss matters but there were no further communications from the Complainant.

The Complainant gave evidence that she commenced working with another employer in Crossmolina approximately ten years previously. In January 2020 that employer told her he was finishing up, that Pat Mulhern was taking over the business and that it would be the same business and that she would be kept on in employment. A few were kept on; others had a dispute over wages and some left but she stayed on. The hotel was closed for a couple of weeks for renovations in or around February 2020. She was called back to work in March 2020 to clean up to get ready for the re- opening. Then everything was placed on hold because of Covid when the hotel had been due to open at that Patrick’s weekend. Pat Mulhern had given her a letter and told her to sign on for February. There was a letter from a Susan Sweeney that she was to be employed by Pat Mulhern. [Note neither of the two documents referenced here were provided with the Complainants post hearing submission].

At one stage during Covid they were open to 8.00pm and a few went back to work. She was on in the pub and James McArdle was the manager. She was employed as a bar/waitress two or three days per week, and she gave as her gross pay €265 weekly for 23 hours worked. Except occasionally her rostered days throughout her employment were Monday to Friday. After a while she was told that they were stuck in the kitchen for a chef and to cover his day off  she started doing breakfast and was placed on the roster for the kitchen instead of the bar. She asked for a rise in pay to reflect the work she was doing but was told that she was not going to get it. On the 21st of July she said that she wanted to go back to the bar if they were not going to give her a pay rise of a euro per hour from 11.50 per hour to 12.50 per hour. The manager did not put her on the roster on the Sunday(22nd) and she provided copies of messages with the manager in which she asked did she not have a job in the bar like she was originally employed for. He told her to call on the Thursday for a chat to which she replied she was not around on the Thursday and again asked if she did or did not have a job anymore employed in the bar. She tried to ring the manager and left messages but was told he was busy and he did not reply to her message about whether she had a job. Then she learned from Revenue that she had been terminated by the Respondent with effect from the 31st of July 2022 but had heard nothing from the Respondent informing her of that termination. It is her evidence that she never asked not to be rostered at all but did say she was not to be rostered in the kitchen unless she was paid more for that work. She denied that it was she who sought the work in the kitchen for personal reasons as contended by the Respondent witness as she continued to do work in the public area during her roster.

Asked why she did not respond to the offer to meet with her, the Complainant stated that she met Mr Mulhern after she learned that Revenue were informed of the termination of her employment and the way in which he spoke to her and described her meant that she felt she could not return to work for them again.

On the mitigation of losses through efforts to find alternative employment, the Complainant gave the name of a café where she sought work and apart from that she was unwell from October 2022. She did complete a one-day course on home help work but was unable to take up any work due to being unwell and also personal circumstances which arose which were referenced at the hearing. There were no circumstances in which she sought a return to the work with the Respondent given what had happened but in particular the manner in which Mr Mulhern spoke to her when approached him after the 31st of July 2022.

Complainant’s Closing Remarks

The Complainant said that the Revenue were informed of the termination of her employment before telling her. She left phone messages for the manager but there was no response. The offer of a discussion and re-employment on the 10th of August came only after she informed Pat Mulhern that she was going to take the matter further and refer it to the WRC. She was employed in the bar. She never received a contract of employment from the employer. It was a clear understanding that she would work in the kitchen when they were stuck but when she said she was not willing to do kitchen work without a pay increase her employment was terminated.

In her response to the Respondents written submission where it was said that she did not have twelve months service with the Respondent, the Complainant provided a copy of a tax credit document showing Pat Mulhern CE as her employer with proof of the start and finish date provided by Revenue. Her start date with Pat Mulhern CE was 12/02/2020.

The evidence of the hotel manager(witness) that he had received an inquiry from another hotel a week after she last worked was not true-that an email she supplied showed that she did not apply for that position until September 21st. Throughout the period of the PUP payment Pat Mulhern  was her employer or she would not have received the payment.

There are two issues to be determined in this case. Firstly, whether the Complainant has the necessary  service which qualifies her to be heard under Section 8 of the Unfair Dismissals(UD) Act 1977 and secondly, if it is found that the Complainant does qualify to be heard under Section 8 of the UD Act, did she leave her job voluntarily or was she dismissed.

Service for the purposes of Section 8 of the Unfair Dismissals Act.

The submission of the Respondent relies on the terms of the TUPE Regulations and what he seems to suggest were breaks in service between February 2020  and April 2022.  Given the documents issued and records of the Revenue Commissioners showing the dates of employment of the Complainant by Pat Mulhern as 12.02.2020 to 31.07.22 which, it is reasonable to presume were based on information provided by the Respondent, it is difficult to see how the argument against continuous employment during this period  can be sustained by the Respondent. There may be some confusion between  periods of lay off and working in the employment, but the employment remains continuous in each circumstance. The fact that the Complainant was in receipt of PUP does not break her service, even when that claim was clearly a contrivance between her and the Respondent through the letter provided by the manager effective from January 2022. It follows therefore that even if there was no transfer of undertakings, the Complainant was in the employment of Pat Mulhern for a period in excess of twelve months. I find that the  complaint by Claire Hopkins against Pat Mulhern qualifies for hearing under the terms of Section 8 of the  Unfair Dismissals Act. Following on from this Finding, I do not consider it necessary to address the arguments for or against a TUPE.

Dismissal or voluntary termination

Dates provided at the hearing regarding discussions between the Complainant and the manager are not regarded as entirely reliable. For example, in a text on 24.07.22,the manager refers to a discussion the previous ‘Thursday’ where the Complainant is quoted as saying she did not want to be put on the roster. Thursday was July 18th. In his letter of August 10th, the manger refers to the same discussion occurring on July 21st, which was the Sunday(the day he did the rosters but a day when the Complainant did not work). In her text of Wed 17th July, the Complainant confirmed her availability for three days the following week, including ‘ ive told Chris to put me down in kitchen for mon and wed thanks.’ Therefore it follows that somewhere between Wednesday and Sunday the Complainant made her working in the kitchen conditional on receiving a pay rise for that work. I am satisfied that the Complainant did use the term ‘take me off the roster’ in their discussion as the more likely scenario. That was a reversal of her text to the manager on July 17th where she had committed to working in the kitchen.  On the basis of their discussion the manager did not roster the Complainant the following week. On balance I do not find the actions of the manager as unreasonable in response to the Complainants position which was unreasonable. She wanted to work in the kitchen and then refused to do so unless she was paid extra-a case of upping the ante. She effectively made herself unavailable to work at least two of her three rostered shifts the following week, a decision for which there was an immediate consequence. The question is whether that conversation regarding that roster can be justifiably taken as a resignation from her employment. In considering this question I took account of two written communications. The first of these is the text of July 22nd from the Complainant in which she made it expressly clear that she would work in the bar for the usual rate of pay €11.50 per hour. This was one day into the working week and one day after he posted the roster for that week. While the manager has described this text as a change of heart by the Complainant, she made it clear that she was prepared her agreed contract. This is important, as the Complainant had never worked in the kitchen as part of her roster until 2022 and moreover, she had not worked weekends as part of that roster. From the letter of 10 August it is clear this was an issue for the manager.  Five days later(July 27th) he gave a direction to inform Revenue that the Complainants employment would terminate on July 31st apparently in past at least because she had not attended a meeting or arranged a meeting with him as he had suggested in his text of July 24th. That request by the manager is important in terms of the contribution of the Complainant to the decision of the Respondent.

The second communication which merits noting is the contents of the letter from the manager to the Complainant of 10 August 2022. Accepting the Complainants uncontested evidence that the letter was sent to her only after she informed Pat Mulhern that she would take a case to the WRC, the contents are significant. The significance is contained in the references to the refusal of the Complainant to work over a seven-day roster and the requirement that she would return to work under the same terms as other staff i.e., working  over a seven day roster. There is no doubting her evidence that in all her years at the hotel, including when working for the Respondent, that the Complainant worked only on weekdays unless she made an exception for one reason or another and this was a concern at least to the Respondents manager. The Complainant has been criticised for not taking up that offer to meet but it was not an offer of the same job she had worked in for years but a position on different conditions, one which it can be reasonably inferred would not have been acceptable to her. What that communication does show however, when combined with the refusal of the Respondent to confirm that she still had her position in the bar in response to her texts of 24.07.22, the unsupported assertion that she was previously  issued with a written contract requiring her to work over seven days which she refused to sign, the refusal to grant her a pay rise and the uncontested negative remarks she attributed to Mr Mulhern when she spoke to him, the haste to inform Revenue of the end of her employment while not communicating with her at all in relation to that decision - is that the Respondent was unhappy with the Complainants lack of flexibility and demand for a pay rise and was no longer committed to maintaining her in the employment on her own terms. ‘More trouble than she is worth’ is an expression which comes to mind. When these other factors are taken into account, the Respondents claim that this was a voluntary resignation from her entire employment relationship  by the employee  based solely on one conversation about taking her off the roster in one week lacks credibility. In conclusion I find the Complainant was dismissed without notice  on 31 July for a variety of reasons related to her working arrangements and perceived lack  of flexibility and co-operation. The statement by the manager that he was asked for a reference in the final week in July and this contributed to his conclusion that she had left their employment, is not supported by the evidence and cannot be considered a factor in supporting the Respondents ‘conclusion’ that the Complainant had resigned her employment.   These conclusions do not condone the actions of the Complainant in refusing to work the roster which it must be emphasised she actually specified the previous week in her own text of July 17th. She made a significant contribution to the decisions and actions of the Respondent, including making no effort whatsoever to meet with the hotel manager in the week after he suggested they meet in a text on July 24th. Instead, she sought to bypass him by going directly to the Pat Mulhern, a strategy which did not pay off as she might have expected.

In terms of redress, the parties are agreed that compensation would be the only feasible remedy, and I agree with that view.

The Complainant has not worked since she was dismissed. At first, she seemed to make some efforts but thereafter was either unwilling or not in a position to pursue gainful employment. This represents insufficient effort to mitigate her losses. In assessing compensation appropriate to the circumstances of the case, account is taken of the Complainants largely ongoing unavailability for work; her contribution to the decision of the employer to terminate her employment while noting that she received no notice  of the termination of her employment nor pay in lieu of same. Ten weeks pay is deemed to be an appropriate amount of compensation in the circumstances.

CA-00052278-001 The complaint of unfair dismissal by the Complainant Claire Hopkins against the Respondent  Pat Mulhern Civil Engineering(Oreland) Ltd is well founded. The Respondent is to pay theComplainant €2650 compensation.

Dismissal-continuous service for the purposes of section 8/resignation or dismissal.