Complainant

Respondent

Parties

Maura  Burke

Dewan Hotel Ltd., Dewan Hotel Ltd.,

Complainant

Respondent

Anonymised Parties

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Representatives

Frank McDonagh

Frank McDonagh & Co

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-00057067-001

11/06/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and two witnesses for the respondent gave their evidence under affirmation. Both parties were permitted to cross examine the witnesses.

The complainant was employed from May 2022 until she resigned on 8 June 2023. Therefore, she has the requisite service to seek the protection of the Unfair Dismissals Act.

The parties agreed that the complainant worked at least 40 hours a week at €15 per hour and the parties arrived at an agreed average salary of €600 per week.

The complainants admitted that she was employed as a manager at the respondent’s restaurant premises.

She submitted that she was out sick for several weeks and prior to being out sick had been employed on at least 40 hours per week but normally a lot more on an ongoing basis.  The complainant stated that upon her return from sick leave she worked normally for a short period but then found that she was not being rostered. She asked the owner what her position was and he was replied that he didn't know what hours he would have for her. She stated that she was provided with her hours in her contract and her position under the contract was as a manager. She stated that he laughed at her and said that he didn't give her the contract, so he was not going to be bound by it. The manager said that she could finish up early that day and that he would let her know in due course if he had any hours for her.  When she finished up for the day, she subsequently sought legal advice.  The advice given to her was to resign as there was no indication that matters would be rectified anytime soon.

The complainant stated that she needed a job, so she needed to get back to work following her period of sick leave and when she was not given hours she resigned on 8 June 2023 by way of e-mail.  Her email cited her advice and that the respondent did not consider her to be a manager.  She stated that she was looking for work immediately and started work shortly afterwards.  She confirmed that she was out of work for four weeks.  The complainant referred to the documentary evidence of her contract of employment which indicated that she was employed as manager and also provided a number of written statements from former colleagues who indicated that she was their manager.

The complainant disagreed with the respondent’s contention that that her contract did not list any hours and indicated that she was employed for at least 40 hours every week and sometimes far in excess of that. The complainant noted that although the owner said to her that they had no work to be done she noted that he took on extra people after she left. This was not contested by the respondent.

The respondent submitted that the complainant left of her own volition. The owner of the company stated that she was not working as a manager and that there were many types of managers.

The respondent submitted that the complainant’s contract did not indicate any guaranteed hours and that she was not guaranteed any hours whatsoever. 

Having regards to the written and oral evidence presented in relation to this matter, I am satisfied that the complainant has established that she was an employee of the respondent, that she had a contract of employment which indicated that she was a manager and that her average hours of work per week amounted to at least 40 hours per week. The complainant indicated that she felt when she was not being given hours and when the owner did not support her contention that she was employed as a manager she was left with no alternative but to resign. The respondent noted that the complainant was told that they might have hours at the weekend for her, but it was noted that she was not a manager. This is contrary to what is stated in the contract of employment which was given to the complainant at the outset.

Having regard to all the written and oral submissions presented in relation to this case I am satisfied that the complainant was left with no option but to resign and seek employment elsewhere. The respondent appears to have repudiated the contract of employment that it had in place with the complainant and accordingly I find that the complainant was constructively unfairly dismissed.

The complainant outlined that her loss of earnings amounted to four weeks wages.  The respondent submitted that the complainant’s contract did not indicate any guaranteed hours and that she was not guaranteed any hours whatsoever.  However, I note that the parties agreed that the complainant was employed for an average of 40 hours per week at €15 per hour.

Having regards to all the written and oral submissions made in relation to this complaint, my decision is that the complainant was unfairly dismissed hot. Arising from this decision I'm satisfied that the complainant’s loss of earnings amounts to four weeks wages, i.e., 4 times €600 per week, amounting to €2400 in total.  I hereby direct the respondent to pay the complainant compensation of €2400 which I consider to be just and equitable in the circumstances of the case.

Unfair Dismissal – constructive dismissal -  repudiation of contract.