Complainant

Respondent

Parties

Eduard Biryukov

Niche Hotels UC

Representatives

Self-represented

MacSweeney & Company, Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00053647-001

07/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00053647-002

07/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00053647-003

07/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00053647-004

Duplicate of CA-00053647-003

07/11/2022

The complainant started working as a kitchen porter in the respondent’s g Hotel on May 5th 2015.  He generally worked 32 hours a week at an hourly rate of €10.90, equivalent to €348.80 per week.  He was laid off on March 16th 2020 when hotels were closed at the onset of the Covid-19 pandemic.  He was entitled to claim the pandemic unemployment payment or “PUP” of €350 per week.  The hotel re-opened with restricted service in June 2020 and the complainant returned to work for two days on July 18th and 19th, but he was then absent due to illness.  The HR manager wrote to him on July 26th, asking him for an explanation for his absence and, in reply, he sent a medical certificate indicating that he was suffering from stress-related headaches and that he would be absent until August 10th.  He sent two more certs related to an ankle injury stating that he would be absent until September 25th.

A level 5 lockdown was re-imposed in October 2020 and, although hotels opened again in December, they closed on Christmas eve when another level 5 lockdown was imposed.  The g Hotel re-opened gradually from May 2021 and, in his submission, Mr MacSweeney said that the HR team struggled to get employees to return to work.  Many had returned to their home countries or had moved to other parts of Ireland.  Some were afraid of contracting Covid-19 and all were concerned about the impact of losing their entitlement to the PUP. 

On September 13th 2021, the HR officer, Ms Arrowsmith, wrote to the complainant and to others who remained officially employed but were not communicating with their employer and were considered to have abandoned their jobs.  The subject matter of her email was “Termination of Employment.”  She asked the complainant to confirm that he had left his job in the hotel; however, he didn’t reply.  At the hearing, he said that, in September 2021, he was diagnosed with high frequency neural bilateral severe to profound hearing loss and he applied to the Department of Social Protection for disability benefit.  He said that he didn’t reply to the email of September 13th because he was waiting for a decision about his disability claim.  If his claim had been successful, he would have been paid a benefit of €379 per week.  Another member of the HR team wrote to the complainant in December 2021, this time, inviting him to a disciplinary meeting to discuss his absence, but again, he didn’t reply.

On January 4th 2022, a HR officer wrote to the complainant asking him to attend a meeting to discuss his “lack of communication with management in relation to your employment at The g Hotel.”  The complainant replied and said that he had “a decrease in my health” and that he was waiting for a decision from the Department of Social Protection about his claim for disability benefit.  He still did not indicate that he had a hearing problem.  Ms Arrowsmith replied as follows:

“Your email is now being considered as your resignation letter and we may remove you from the system.  Due to this, you do not need to attend the proposed meeting below.”

The complainant didn’t reply to this email, and he didn’t contact Ms Arrowsmith to challenge her conclusion that he had resigned.  On January 10th, he received a final payslip, and pay of €127.65 for a public holiday and outstanding annual leave.  More than six months later, on July 24th 2022, he wrote to the HR team and said that he would like to find out about his employment status with the hotel.  He said that, in response, he got an out of office reply, and then no further reply.  In his evidence at the hearing, he said that his claim for disability benefit was refused and that he started a new job on July 28th 2022.

It is the complainant’s case that he was discriminated against on the ground of his hearing loss.  He also claims that he was unfairly dismissed and that he got no notice of his dismissal. 

The complainant submitted these complaints to the WRC on November 7th 2022, outside the time limit of six months for submitting complaints which is set out at section 41(6) of the Workplace Relations Act 2015.  In accordance with section 41(8), he requested an extension of the time limit to 12 months.  Explaining the reason for the delay, he said that he got no official notice that his employment was terminated, and for a few months, he was not aware of his employment status.  He claims that his email of July 24th 2022 and the respondent’s failure to reply, should be considered as the most recent date of discrimination.  He said that, on that date, he checked his employment status on the website of the Revenue Commissioners and discovered that his employment was terminated on January 4th.  He said that he then started thinking about making a complaint to the WRC.  He said that he had a problem downloading a complaint form from the WRC website and, due to his hearing loss, it was difficult to communicate with staff on the phone. 

As these complaints have been submitted outside the six-month statutory time limit, as a preliminary matter, I must address the complainant’s request for an extension of the time limit. 

Section 41(6) of the Workplace Relations Act 2015 sets out the timeframe within which complaints may be submitted for adjudication:

“…an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

From the documents submitted by both sides at the hearing, it is apparent that, on September 13th 2021, the complainant was on notice of his employer’s intention to remove him from their system and to consider him as a leaver.  He did nothing to prevent this occurrence.  When he was contacted by email again in December 2021 with a letter asking him to attend a disciplinary meeting to discuss his absence, again, he didn’t reply.  He received a third email and a second letter on January 4th, and, he was again asked to attend a disciplinary meeting to discuss his absence.  On this occasion, he replied and said that he had “applied for disability and currently I am waiting for a decision in my case.”  When the HR officer replied and informed him that “your email is considered as your resignation letter…” he did not demur and did not reply.

If his application for disability benefit had been successful, the complainant would not have returned to work, and it was not unreasonable for the HR officer to conclude that his preferred course of action was not to return.  She therefore decided to treat him as having resigned; I am satisfied that he intended to resign and to rely on social welfare.  Leaving this assumption aside, I am satisfied that, on January 4th 2022, the complainant was dismissed, and that he was on notice of the respondent’s intention to dismiss him from the previous September.  I am further satisfied that, rather than attend the disciplinary meeting to discuss his absence, the complainant knowingly took no action about his dismissal, because his priority was not to return to work, but to stop working and to claim a disability benefit.

As he was dismissed on January 4th, to meet the time limit at section 41(6) of the Workplace Relations Act 2015, he should have submitted his complaints to the WRC no later than July 3rd 2022.  He didn’t send in his complaints until November 7th, a delay of four months after the statutory time limit of six months.  Section 41(8) of the Act deals with extensions of the time limit:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

It is clear from this section that, “for reasonable cause,” an extension of the time limit from six months to 12 months for submitting a complaint may be permitted. 

In his submission, Mr MacSweeney referred to the Labour Court case of Cementation Skanska (formerly Kvaerner Cementation) v Carroll[1]in which the test for reasonable cause for extending the time limit to 12 months was set out:

“It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay.  The explanation must be reasonable, that is to say, it must make sense, be agreeable to reason and not be irrational or absurd.  In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time.  The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon.  Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present, he would have initiated the claim in time.”

The complainant was dismissed by email on January 4th 2022.  I do not accept his evidence that he did not realise he was dismissed until July 24th 2022.  He seems to be to be an astute man, a good communicator and he is aware of his entitlements.  If it his case that his dismissal was unfair, it was unfair on January 4th and not only unfair when the Department of Social Protection refused his claim for disability benefit.

Even if I accept the complainant’s evidence that he discovered he was dismissed on July 24th 2022, the delay of a further three months to submit a complaint to the WRC is not explained by his excuse that he found the complaint form difficult to download.  Guidance on how to submit a form is available on the website of the WRC, and it is apparent from his correspondence that he only started looking for assistance on October 4th, more than two months after he claims he discovered he was dismissed.  He then delayed another four weeks before he submitted his complaint form.  Many individuals who are not as capable as the complainant and with less proficiency in English have successfully managed to submit forms on time.

Regarding his complaint of discrimination on the disability ground, the complainant produced no evidence to show that, when he was employed, he informed his employer that he had a hearing loss.  For this reason, he cannot show that he was discriminated against because of his hearing loss and this complaint cannot succeed.

Conclusion

It is my view that the complainant’s assertion that realised he was dismissed on July 24th 2022 is not plausible, because the email from the HR officer on January 4th was clear and most reasonable people in the same circumstances would have realised that that communication ended their employment.  It is clear to me that the complainant decided not to act on his dismissal until his claim for disability benefit was refused.  The submission of these complaints more than three months after July 24th 2022, on the basis that the complainant found it difficult to download the WRC complaint form is also not credible and does not meet the reasonable cause test set out in the Cementation case referred to above.

I have decided not to grant an extension of the time limit for submitting these complaints and, for this reason, I have no jurisdiction to adjudicate further.

Complaints submitted outside the time limit