Complainant

Respondent

Parties

Liudmila  Mocan

Kilmore Ventures Limited

Representatives

Vadim Karpenko, First National Consulting and Legal Services

ESA Consultants

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-00053791-001

21/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00053791-002

21/11/2022

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

CA-00053791-003

21/11/2022

The complainant has submitted three complaints; she contends that she was unfairly dismissed, was denied redundancy payments, and did not receive her paid statutory notice.

The complainant commenced employment with the respondent on 4/5/2017 and remained there until her dismissal on 14/11/2022.

She submitted her complaint to the WRC on 21/11/2022.

Her gross weekly salary was €400.

CA-00053791-001 Complaint under Section 8 of the Unfair Dismissals Act, 1977.

The dismissal is contested and therefore the onus rests with the complainant to prove that she was unfairly dismissed.

The complainant contends that she was unfairly dismissed on 14/11/2022.

The employer did not want her to work for the company.

Evidence of complainant given under affirmation.

 She was employed on housekeeping duties in the hotel, preparing rooms for new guests.

She was asked to take on duties of porters in 2020. Her duties were changed in October 2022 and she was asked to clean rooms.

The respondent acquired new mattresses which were heavier to lift than the previous ones. Lifting them aggravated a back ailment which the complainant believed to be arthrititis.

On 12/11/22 the respondent asked her to acquire medical evidence concerning her arthritis in  her back. She asked if she should go to work the following day. The Hotel Accommodation Manager told her that she was not on the roster for the 13/11/22 and advised that she would receive information on her email about her work roster but she never did. The Hotel Accommodation Manager told her that she was not to work with her anymore, because of her difficulty in lifting heavy mattresses but she would give her other work in the hotel.

She submitted medical reports, translated from Romania and Russian, dated 2019, attesting to back pain and limited movement but recommending no adjustments to her work. The complainant states that this made turning the new beds, heavier than previous beds in the hotel, very difficult, and aggravated her back ailment.

In her last day of work in the hotel on 14/11/22, the respondent Accommodation Manager told her that she might have a few days more work for her. She told the Hotel Accommodation Manager that the rooms were very dirty. And that mattresses were so heavy that lifting then was aggravating her arthritis. The respondent did not send her for any medical check. The Hotel Accommodation Manger told her that she had to have rooms ready within a 30-minute period. The Hotel Accommodation Manager asked her to prove that the rooms were dirty.

She advised in reply to a question that she had never had a medical assessment for arthritis. 

The complainant in reply to a question stated that the job of housekeeper had ceased to exist.

Mitigation.

She secured an alternative position in Offaly on 29/1/23, having moved there. She earned €11.50 an hour.

CA-00053791-002. CA-00053791-002 Complaint under Section 39 of the Redundancy Payments Act, 1967.

She believes that the job of housekeeper no longer exists. The proof of that was that the respondent was unable to offer her work or confirm her roster in November 2022.

 The complainant does not know if she was replaced.

Concerning the offer of job in the kitchen of the hotel, that was a different job and was not suitable. Nobody telephoned her as to when she might start that job.

CA-00053791-003. Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

Her last pay cheque issued to her on 14/11/22.

The complainant withdrew this complaint in light of the employer’s offer to pay her statutory notice.

CA-00053791-001 Complaint under Section 8 of the Unfair Dismissals Act, 1977.

The respondent refutes the complaint’s claim that she was unfairly dismissed.

The complainant worked on housekeeping duties. Her rate of pay is €12.50 an hour.

The respondent remained open to her return. A letter of 2/2/23, submitted in evidence and uncontested, sets out the chain of events including the advice given on that date and previously to the complainant that they still consider her an employee and are willing to accommodate her desire for a change of duties if that is her preference. 

The complainant along with other hotel staff was assigned housekeeping duties which involved turning mattresses. These new mattresses are lighter than previous ones.

On 11/11/22 the Accommodation Manager faced with complaints from the complainant that she suffered a back ailment and that mattress turning aggravated it, advised her to go home and get a medical statement as to the exact problem, the required treatment and the duties which she could do. She offered the complainant alternative employment in the laundry, but the complainant advised that she had problems with chemical agents.

Evidence of Accommodation Manager given under affirmation.

The witness stated that her assistant had told her that the complainant did not wish to work the duties assigned to her. The witness went to her and told her to come back with a medical certificate confirming that she was medically unable to do the housekeeping duties- lift mattresses. But she received no current medical certificates from the complainant.

The respondent emailed her on 30/11/22 asking her to get medical evidence as to what she could do. They again emailed her on 20/1/2023 asking her to indicate her availability and ability to work in either the kitchen, laundry or in housekeeping duties. They received no response or to the letter of February 2023.

She never came back to the respondent to tell then what she could do.

CA-00053791-002 Complaint under Section 39 of the Redundancy Payments Act, 1967.

The respondent states that the complainant has failed to make out a case for redundancy.

The respondent refers to the complainant’s email to the respondent dated 11/4/2023 seeking redundancy from them but which was devoid of any justification.

 A redundancy situation did not arise in November 2022. There have been no redundancies since 2021. There were no redundancies in the housekeeping department. In fact, the housekeeping staff has grown from 19 in November 2022 to 40 currently.

The complainant was replaced.

She commenced employment in 2017, not 2016.

CA-00053791-003 Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

The respondent advised that they were willing to pay her statutory notice of 4 weeks salary.

CA-00053791-001 Complaint under Section 8 of the Unfair Dismissals Act, 1977.

The definition of a dismissal is found in section 1 of the Act as amended.

It states

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) 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”.

There is no evidence to support the contention that the employer dismissed the complainant. There is no letter of termination nor statement that the complainant’s employment had ended. On the contrary, the evidence indicates that the employer left the door open for the employee to return once clarification had been received on her medical capability to do the job to which she had been appointed or until she indicated a willingness to look at alternative duties.

The complainant identifies the date of dismissal as the 14/11/22, the date of her last salary payment. At that stage the complainant had not terminated her contract of employment nor was that case made out. She had merely walked off with a sense of grievance that the employer would not adapt her duties to her preferred, imprecise specifications and there the matter remained in limbo. She instigated no procedure. She suspended contact and failed to reply to the respondent’s efforts to engage with her.

She took up a new job on 29/1/2023.

It appears that the complainant in attempting to retrieve redress under the statute is pitching at what she thinks is the right route in a muddled situation.

I find this complaint to be misconceived.

CA-00053791-002 Complaint under Section 39 of the Redundancy Payments Act, 1967.

Section 7 of the Act of 1967, as amended, provides for a redundancy payment where a redundancy which meets the definition set out in section 7(2) (c) has arisen.

 I am obliged to establish the complainant’s entitlement to same.

Relevant Law.

Section 7(2) of the Redundancy Payments Act 1967 provides that

“an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or             

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or           

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or     

(d) N/A.

(e) N/A. “

None of the above provisions apply in the circumstances of the instant case.

I have found that the complaint was not dismissed, a prerequisite to the existence of a redundancy situation.

The uncontested evidence is that the complainant was replaced and no redundancies had occurred since 2021. The fact that the complaint saw this as an avenue to end her employment with funds in hand does not validate this claim for redundancy payments.

Having considered the evidence, I find this complaint to be baseless and misconceived.

I do not find this complaint to be well founded.

CA-00053791-003 Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

This complaint was withdrawn on the basis that the respondent undertook to pay the complainant’s statutory notice.

CA-00053791-003 Complaint under Section 8 of the Unfair Dismissals Act, 1977.

I do not find this complaint to be well founded.

CA-00053791-002 Complaint under Section 39 of the Redundancy Payments Act, 1967.

I do not find this complaint to be well founded.

CA-00053791-003 Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

This complaint was withdrawn.

Unfair Dismissal; Redundancy; misconceived complaints.