Complainant

Respondent

Parties

Anna Maria  Chrzanowska

Windsor Surprise Ltd                                 ( amended on consent)

Representatives

  Appeared in person

Pat Mullins , Solicitor

Act

Complaint Reference No.

Date of Receipt

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

CA-00055613-001

20/03/2023

On 20 March 2023, the Complainant, a Lay Litigant submitted a complaint of unfair dismissal against the Respondent Hotel business.

The WRC promptly requested clarification of employment dates, which on 5 April 2023, were clarified by the complainant as 11 October 2004 to 3 October 2022.

The Respondent Solicitor came on notice in the claim on 12 April 2023. The Respondent has disputed the claim.

The case came for hearing on 31 August 2023 on the remote platform in accordance with the provisions of the Civil and Criminal Law (Miscellaneous Provisions) Act, 2020, as amended.

The Complainant was accompanied by her partner for support and gave evidence under oath. The Respondent presented two witnesses to hearing, who both gave evidence by affirmation.

On August 17, 2023, the Respondent filed their online submission in defence of the claim.

On 23 August 2023, I wrote to the complainant seeking her outline submission. I also clarified that a Polish Interpreter would be provided as requested at hearing.

The Complainant submission was received on 30 August 2023.

The Interpreter affirmed that he would translate Polish to English language at hearing.

The Complainant worked as a Housekeeper at the Respondent hotel for almost 18 years. She earned €384.00 per week.

The Complainant introduced her case on her complaint form as having been unfairly dismissed on 3 October 2022. She sought the remedy of compensation and confirmed that she had not found work since her dismissal. She stated that she had engaged in training since the termination of her employment.

The complainant submitted extensive dossiers written in the English language which sought to set the historical operational background to working in the bar and other areas of the hotel. Witnesses were not put forward in support of this document. However, I have read the document and considered the narrative included. It is largely the statement of a tired and disillusioned hospitality worker who declared a growing distance with her employer over time.

I can accept that this narrative serves as a context to the work climate the complainant referred to in her evidence, however, it cannot amount to evidence, which I have detailed below.

At the outset of the hearing, I asked the complainant to clarify her claim.

“I was told by supervisor that if I won’t do the job, I can go home.”

The Complainant clarified that she had resigned from her position as she had been given additional work to undertake on her return from sick leave in October 2022. This caused her to feel under enormous pressure. She had worked in accordance with tasks listed for her and now the composition of work was being changed, which was tantamount to her taking on more work. She could not undertake an expansion of her workload.

On 7 November 2022, the Complainant sought to reason with the Respondent, to no avail.

The Complainants loss stood at 48 weeks.

Evidence of the Complainant:

The complainant submitted that she had returned to work after sick leave June to September 2022 and was faced with a casual conversation at the toilet door. She learned that the list of duties had been changed by Ms A.

The complainant recalled the earlier conversation of 17 May 2022.

She contacted her Manager, Ms A and went with her to the ground floor and asked for clarification on what she was expected to do?

The complainant made a mental calculation of being asked to cover the whole bar in addition to the red carpet alone, where this had previously been completed by two people. She estimated a two-hour period would be necessary to do this work.

She informed Ms A that the proposed tasks would be impossible to complete by 9 am and suggested human resource involvement.

The Complainant proceeded with her work and sometime later enquired what time the meeting was arranged with human resources?

Ms A responded by saying she did not know and that “everyone was working like this “

The Complainant completed her usual tasks before Ms A approached her to as her “are you not going to mop the bar? “

The Complainant confirmed that she was not going to complete the task and tried to explain. She was met with Ms as response that she if she was not going to mop the bar, she should go home. The time was 8.45 am.

She went home.

At 4pm, Ms A rang and asked her to come to a meeting the next day on her own. She was not required to work at 7 am.

The meeting occurred at 11 am and Human Resource Manager asked what happened?

Both Ms A and the Complainant presented their versions of what had occurred the previous day. Ms A began to shout and was requested to leave. The Complainant was reverting with her thoughts.

The Complainant followed up with some text messages to Human Resources.

She returned to meet the Human Resource Manger on 7 November 2022, with her daughter and no progress was made.

The Hotel had indicated that employees were happy with the new list, some of whom no longer worked there.

The Complainant acknowledged that as no Agreement was reached, she felt compelled to resign.

The complainant gave evidence of seeking work and on completion of a training course in older care.

During cross examination, the complainant acknowledged that she had some absences from work through sick leave 2019 to 2022.

She confirmed that she was well on 3 October 2022, the day she returned to work.

In a look back to the meeting and recorded minutes of this meeting, the complainant acknowledge that proposed changes were raised by the respondent e.g., the red carpet but she had the right to refuse.

This proposal had not changed in the intervening period May 2022 to October 2022. Lists 1 and 2 were joined.

The Complainant disputed that she got angry at being met with the changes flagged on October 3, 2022, she denied that she was either angry or had resistance on her mind. It was simply the scale of the request, that she was being expected to cover the whole bar area, alone.

The Complainant accepted that she refused to expand her duties on 3 October 2022. She was not prepared to work the new list as it meant an extra 2 hr commitment to an unsustainable 10 hrs.

The Complainant expressed her dissatisfaction at being sent home on 3 October and would have preferred to have had a meeting where she could have decided the outcome of either resignation or continuation. She had a view that it was unfair to add to her duties during sick leave and the night manager could have been approached to hoover the red carpet.

The complainant availed of annual leave during October 2022.

The complainant acknowledged that by 7 November meeting, human resources had asked her to reach a compromise resolution.

The Complainant disputed the work was unchanged and acknowledged that she was not willing to try the new list.

She acknowledged that a potential to transfer to the Restaurant was proposed, but she had reservations regarding her level of English.

The Complainant acknowledged that her Union was in the background, but she had not sought their advice prior to her resignation.

The Complainant confirmed that she had asked for help. She had worked with Ms A from 2021  

She was unsure if any offer had been made for her to trial the changes proposed.

When requested to clarify what had influenced her decision to resign? She replied that she had expected some flexibility in getting her back to work from 3 October 2022 to 24 November 2022. She said that she was open to change but had not been offered any extra payment for extra work.

The Complainant had not actioned a grievance or escalated the matter to the General Manager. She acknowledged that she had utilised the grievance procedure in 2015 with the General Manager. She did not have any leaving ceremony.

When asked to clarify the conduct of the respondent she viewed as unreasonable? The complainant remarked that she did not think it was up to her to evaluate the respondent and was unsure what to say.

As I explored the loss and mitigation aspect of the claim with the complainant, the complainant acknowledged that she could not bear working in hotels anymore. She had informed the Department of Social Protection on October 24, 2022, that her job was gone and applied for job seekers benefit.

She gave limited evidence on loss and mitigation. She confirmed that her loss to date stood at

€20, 158.50 nett and she had not worked since she resigned.

In closing I requested the complainant address the PRSI records presented at hearing as the award of job seekers benefit was linked to a commencement date of 25 October 2022.

The Complainant said that she was unaware of those dates.

In closing the complainant contended that attention should be given to considering the variation in both lists. There was a clear difference in the scope of the tasks.

The Hotel had not disclosed that quite a number of staff had left the workplace and the staff acquiescence with the changes was in fact a misrepresentation.

It was the complainant case that she had no choice outside resignation as the tasks proposed could not be done in the time allowed.

The Respondent, through Solicitor, Pat Mullins, has disputed the claim for unfair dismissal.

It was common case that the complainant commenced work on 11 October 2004. It was denied that the complainant’s employment was terminated on 3 October 2022.

The Respondent outlined that the Complainant was on sick leave during 2019 and 2020. The Hotel was closed in response to the Covid 19 pandemic 20 March to 28 June 2020

Periods of absence

10 December 2020 to 30 April 2021

The complainant returned to work on a rehabilitative arrangement 3-day week 22 November 2021 to 9 January 2022.

A four-day week followed to June 2022, when she resumed sick leave to 2 October 2022.

In or around 17 May 2022, the Accommodation Manager addressed the complainant on “changes underway in relation to the public area cleaning list “

These changes were rejected by the complainant.

On her return to work on 3 October 2022, the Respondent Accommodation Manager, Ms A met with the complainant to run through the changes on the list of tasks, now operational at the business for a 3-week period.

The Complainant was not accepting of the changes and refused to mop the bar area and other requests for cleaning.

The Accommodation Manager directed the complainant to the Human Resource Manager, who was not on duty.

The Accommodation Manager directed the complainant to go home, and she went. This was not a disciplinary action or a dismissal but a” cooling off period “prior to an engagement with human resources.

A number of weeks later, the complainant sought reasons for her dismissal.

The Human Resource Manager arranged a meeting with the complainant on 7 November 2022.

The outcome of which indicated a preparedness by the complainant to return to work.

This changed on 11 November 2022 when the complainant emailed the Human Resource Manager and contended that she had been fired on 3 October 2022.

The Complainant resigned on 24 November 2022 and signalled 21 January 2023 as her leaving date, which was then brought forward to 4 December 2022.

The reason for dismissal was linked “to the amount of work imposed on her by her employer “which places the claim in the Constructive Dismissal sphere.

The Complainant had been furnished with a grievance procedure in the context of her employment documentation. She had actioned previous grievances regarding a deficiency in wages in 2015 and was aware of her rights.

Mr Mullins submitted that the Complainant had not activated the grievance procedure. The Respondent had been denied a real opportunity to resolve the matter with the complainant.

The decision to resign was “rash and premature “The impasse between the complainant and her manger was capable of internal resolution.

Neither the Contract nor the Reasonableness Tests have been met. The Complainant had not demonstrated mitigation of her stated loss through proof of letters of job application.

Evidence of Ms Dalce Bolce, Accommodation Manager, Ms A

Ms A has been Accommodation Manager since 2021. She submitted that a change list in duties had been discussed with the staff in May 2022.

On 3 October 2022, on the complainants return to work, she met with the complainant to go through the changed list of duties. The Complainant refused to undertake some of the tasks, and she was sent home.

The Complainant asked her “how can you take from one person and add to another? “

Ms A denied being angry with her but observed that the complainant was angry.

Ms A confirmed that she contacted the complainant the next day, but no agreement was reached on how to proceed. The Complainant proceeded on annual leave.

By November 7, 2022, the complainant had not agreed to try out the work on trail and expressed her wish to continue to work according to the old list.

Alternative options on redeployment were tabled on a suggested move to the conference centre with reception cover in mornings, but this was not acceptable to the complainant.

Ms A told the hearing that the complainant had submitted an internal complaint within the workplace previously and had been represented by her union. She was unaware of the dateline for this.

During cross examination, Ms A clarified that the tasking with which the complainant expressed a profound difficulty were hoovering and mopping.

She could not offer a response to the complainant’s question on whether the past grievances attributed to her were signed.

Evidence of Ms Denise Lane, Human Resource Manager, Ms B

Ms B had worked at the hotel since 1997 and worked in human resources from 2001. She submitted that she was aware that the complainant had raised grievances perps twice or three times in 8 years. She was supported by the Union on one of those occasions.

Ms B was aware of the impasse between the complainant and Ms A as Accommodation Manager and discussed this with the Union.

Ms B understood that the proposed new duties centred on the bar area. She was aware of the complainant personal issues and following an extensive meeting on October 4, agreed to revisit the issue after the complainant’s annual leave.

The Complainant was conversant in English.

Reflecting on the meeting of November 7, 2022, the proposed work schedule was discussed again, and the complainant responded that this was additional work and requested that the new jobs be removed. The complainant had been rostered to return to work after her leave.

The Hotel position centred on the new tasks had been absorbed and undertaken by other staff, but the complainant was unwilling to try the new schedule.

Some time was given to exploring other options and the party’s discussed waitressing in the breakfast/ lunch area, an area thought to be commensurate with the complainants’ skills, but the complainant was not interested.

The complainant decided to leave and first gave notice but was mistaken in that regard.

December 4 was to be the date of the final wage.

Ms B acknowledged the longevity of the employment relationship and confirmed that efforts had been made to find a resolution, but the complainant did not engage outside of refusing to take on the additional tasks.

Ms B confirmed that in her opinion, the complainant was aware of the grievance procedure pathway from historical use, but she did not formalise her dissatisfaction into a grievance.

The complainant declined the opportunity to cross examine Ms Lane.

In clarifications, Ms B confirmed that the Department of Social Protection had not made contact with the Hotel to validate that the employment had ended.

There was a lack of clarity on the sequencing of the final pay date.

In closing for the Respondent, Mr Mullins submitted that the complainant had not reached the burden of proof in the case. she had not demonstrated that her contract had been repudiated or that the behaviour of the respondent was so unreasonable as to amount to her being compelled to leave.

At the heart of his argument, he contended that the complainant, by not trialling the proposed change she acted unreasonably.

He opened case law and authorities in support of his arguments.

Western Excavating (ECC) ltd v Sharp [1978] ICR 121 on the contract test

Byrne V RHM Foods (Irl) ltd UD /69/1979

Allen v Independent Newspapers [2002] ELR 84

Berber v Dunnes Stores [2009] IESC 10    on conduct of the Employer

Kaydee Cosmetics v Blake UD /18/40

Ryan, Cannon, and Kirk Accounting Services ltd v Violeta Kneite UDD 1910   on procedural pathway with approval of Conway v Ulster Bank ltd UD 1474/1981

The Complainant did not work towards a mutually agreeable resolution across the meetings which followed the impasse of October 3, 2022.

The Respondent recognised SIPTU, who were available to the complainant, but she did not submit a grievance.

The resignation was regrettable, coming as it did after 19 years of a good working relationship.

Mr Mullins rejected the complainant’s evidence of mitigation as falling far short of optimal set in an economy of full employment. He did not accept that she could not find new work.

Mr Mullins observed that the DSP payment had predated the termination of employment.

In all of the circumstances, the Respondent argued that he claims for constructive dismissal should not succeed.

I have been requested to make a decision on what has been clarified by the complainant as a claim for unfair dismissal, that of constructive dismissal on 3 December 2022.

The claim has been refuted by the Respondent.

In reaching my decision, I have considered the written and oral submissions of the parties. I have also reflected on the evidence of all three witnesses.

My jurisdiction in this matter rests firmly within section 1 of the Unfair Dismissals Act 1977 where a Constructive dismissal is described as:

 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,

It is important for me to reflect that the complainant approached this case with a continuous employment record from October 2024. However, in recent years, she had sustained a considerable sick leave record.

More importantly, in both her narrative and in her evidence, she revealed a tiredness and growing distance between her and her employer, which I had cause to probe further during the hearing.

In a claim for constructive dismissal, I am to examine the facts to ascertain whether in the circumstances revealed, on the balance of probabilities, the complainant had no option in the circumstances but to terminate her employment? In   Mc Cormack v Dunnes Stores [2009] 7 JIEC 0701, the complainant had 32 years’ service and on return from carers leave sought flexi time. When a flexi contract was offered over 7 days, inclusive of Sunday, the complainant contended that this did not suit and resigned, making an inquiry about redundancy which was not available.

In that case, the EAT explored the requisite threshold of whether the complainant had acted reasonably and had exhausted all internal procedures prior to her resignation. The complainant did not secure the burden of proof required.

In Berber v Dunnes Stores ltd [2009] 20 ELR 61 at the Supreme Court, in a claim for wrongful dismissal, the Court set out a guideline to examine facts for constructive dismissal when they held:

The test is objective.

The test requires that the conduct of both the employer and employee be considered.

The conduct of the parties as a whole and the cumulative effect must be looked at.

The conduct of the employer complained of must be unreasonable and without proper cause and its effects on the employee must be judged objectively, reasonably, and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.

I would like to balance the above cases with a reference to Michael Murray v Rockabill Shellfish Ltd UD 1832/2010 at the EAT, where in pursuing a claim for unfair dismissal, the complainant gave evidence of certain practices which he was forced to participate during the course of his employment such as:

1 a bleaching agent to be available when samples were tested.

2 pack damaged goods

3 repackage returns.

4 illegally dump contaminated products.

5 to dip shellfish to extend shelf life.

The complainant suffered demotion and was refused engagement with his employer.

The EAT found for the Complainant.

In a case mentioned by Mr Mullins and with some overlapping background, I now refer to the 1982 case of Margot Conway and Ulster Bank ltd at the EAT.

The circumstances of this case centre on the complainant, a then bank official at the Sligo branch announcing her oncoming marriage to an account holder, which in line with bank policy habitually triggered a transfer. Ms Conway was transferred to Ballina against her wishes.

The EAT, by majority held.

“The appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints. An elaborate grievance procedure existed but the appellant did not use it. It is not for the Tribunal top say whether using this procedure would have produced a decision more favourable to her, but it is possible ….”

The Complainant in that case had been requested to put her case in writing but she did not do so. A resignation followed.

The facts of this case are very interesting, while much turned on the events of 3 October 2022 for both parties, the genesis of the complainant’s level of dissatisfaction with her employment had been a slow burner for a number of years. This was borne out in her submitted narrative and in her evidence.

She had recorded many protracted absences through sick leave, and she had endured the death of her mother and the birth of her grandchild immediately before October 2022.

For the respondent’s part, this business was described as being particularly busy during 2022 and this prompted the suggested changes in the work pattern.

I accept the respondent evidence that the work redesign was accepted by staff, long serving and new arrivals. I also accept that it was a reasonable request, open to negotiation.

Both parties accept that the proposed changes were first put forward by Ms A on May 2022 and were met with an immediate objection by the complainant.

A protracted period of sick leave followed and once the complainant notified the respondent of her imminent return to work in September 2022, the changes live and implemented for other staff were once more raised by Ms A.

I acknowledge that Ms A was supportive of the complainant’s sick leave and offered a condolence on the death of the complainant’s mother.

I am satisfied that on the complainants return to work on October 3, 2022, she was fully aware that the matter of the proposed changes remained unresolved and would need to be resolved.

Prior to the complainants return, the respondent had expressed some concern at the shortfall in sending medical certificates to cover absence.

The contract of employment carried a 3-stage grievance procedure and permission for union representation.

A careful analysis of the engagement of the parties on the changed list of tasks was necessary.

On 3 October 2022, the changes were outlined, and the complainant considered the changes and refused. Unfortunately, this resulted in an ultimatum by Ms A that completion of the tasks was necessary and failing that she should go home.

The Complainant contended that her signature of consent to the tasks of list one should save her from taking on the amended list two. She did not establish the presence of any contractual term to protect this. She did not advance a Union Management Agreement in support.

I understand that the complainant was unable to contemplate completion of the tasks on that day. True, she had just returned from an extended sick leave and had a bereavement. I found Ms A to be overly harsh towards her on October 3. However, this was saved somewhat by the kindness of Ms A, October 4- November 28, 2022.

The Complainant was not offered the grievance procedure on that day.

She returned in good faith the next day, met with Ms A and B and no alteration of the parties’ positions occurred. In fact, I can see that the complainant polarised her position at that point.

The respondent supported the complainant in availing of annual leave during October in aide her in recovery in her bereavement.

The November 7 meeting ought to have provided the perfect platform and pitch on which to resume discussions on how an employee of 18 years standing could resolve her workplace difficulty.

A careful reading of these minutes, where the complaints daughter attended with her articulated.

“The complainant does not think that it will work and does not want to try. She feels that her years of experience does not warrant her changing routine now. She wants to keep doing the work in what she calls the old routine and is not willing to make any changes or compromise “

The discussion then moved to exploring alternative options within the hotel.

The respondent followed up on November 10 by email and requested return to work the following week and enquired what number of days the complainant wished to work?

The complainant replied and contended that she had been terminated on 3 October 2022.

The respondent followed up again on November 18 and included a validation of the changes by the senior management team at the hotel.

For me, this provided a perfect opportunity to contest this through the grievance procedure.

However, the complainant tendered her notification of leaving employment with notice on 21 January 2023, “because of the amount of work imposed by the employer “

On 28 November 2022, the Respondent wrote to the complainant and acknowledged the resignation but excused her from the notice period of 8 weeks. The employment concluded on December 4, 2022.

Both parties were vague on the complainants last pay date and the amount of that payment.

By December 7, 2022, the Department of Social Protection had confirmed payment of job seekers benefit to the complainant from 25 October 2022. This coincided with the last day of leave.

I asked the respondent if the complainant was rostered for week of November 7, 2022? and was informed that she was.

It appears to me that the complainant applied for job seekers benefit on foot of being sent home from work on 3 October 2022, but was paid by the respondent during her annual leave.

This for me demonstrated that the complainant was actively pursuing a claim for social welfare while the topic of her return to work was being actively canvassed by the respondent. This goes to the root of her demeanour at this time. The Complainant had not been placed on temporary lay off which may have warranted a claim for JSB.

In my opinion, what was happening here was a long goodbye on the complainant’s side.

I appreciate that she had no direct income from work, but I would have preferred to have seen a more focussed effort on saving the job.

I have had cause to reflect on this aspect of the case and I have listened very carefully when the complainant told me that she simply did not have the energy to fight the respondent on their stated declaration to change her listed tasks historically consented to.

She said that she did not want to work in hotels anymore.

I accept this as a truthful account of how she was feeling at that point. I can see that the complainant was visibly burnt out and overwhelmed in her job and that caused her to wave the sword of defiance when changes were flagged in her work routine. She was protecting what she felt she could cope with.

I have every sympathy with the complainant in the distance she felt between her and her employment on 3 October 2022. Burn out by its nature is a self-limiting phenomenon which carries strong feelings of depersonalisation, lethargy, and isolation.

There is a very expansive account of burn out in a book detailing Brian Corcoran’s, the GAA dual star Journey “to burn out and back” in Hurling in a book by Kieran Shannon

 in

Every Single Ball

I am satisfied that the Respondent acted kindly towards the complainant in seeking her co operation with the revised working. She was offered a reduced hours pattern, she was offered an alternative posting but really as she told me in her evidence, she did not want to work in hotels anymore. she had been struggling for some time.

This causes me to interpret her letter of resignation dated 24 November 2022 as a voluntary rather than involuntary action.

She had pulled down the shutters on her job and left the workplace.

The Complainant told me that such was her level of disenchantment with the hotel, that it left her with no energy to fight back.

I cannot place the responsibility for this at the respondent feet.

While, I understand the complainant stated position, I must state that the law requires much more from an employee faced with an unpalatable request at work.

The law as outlined in Berber is instructive in that regard.

I find that the complainant did not share her level of burn out with the respondent. Had she shared this, it may have followed that the respondent may have sought input from their Company Doctor. I appreciate as did the Tribunal in Conway, that I will never know the likelihood of that outcome.

I have found that the complainant jumped the gun and was premature in her resignation dated 24 November 2022.

She left many stones unturned in the form of a grievance, a further exploration of time off or indeed a con joint exploration of options on relocation.

I must also find that the Respondent did not identify the “burn out” within the span of the working relationship. I found this “burn out “to stand out in the complainant’s evidence. She had reached a wall regarding hotel work and did not wish to return.

It is worth a mention that the Hotel did seem to have undergone change, however, the changes requested of the complainant in October 2022 were previously completed by her on odd occasions prior to her sick leave in May 2022. She just found that she could not countenance further change within her role.

The Respondent may wish to reflect on this observation in due course and consider a risk assessment or some such measurement to guide any future occurrence.

While, I have a high level of sympathy for the complainants stated obstacle to successful conflict resolution, I find that she has not satisfied the burden of proof that she was forced to leave the employment through either a repudiation of contract or such a high level of Respondent unreasonableness, causing her no other option but to leave .

I have found that the complainant resigned her position as a voluntary action, and this was not a constructive dismissal.

The Complainant was not unfairly dismissed.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found that the complainant has not satisfied the burden of proof for a constructive dismissal on this occasion.

The Complainant was not unfairly dismissed.

Claim for Constructive Dismissal