ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00033589

Parties:

Complaints:

Date of Adjudication Hearing:  12/05/2022, 16/12/2022 & 29/01/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015   following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant contends that he was unfairly dismissed from his employment effective from 4th December 2020 when he was not called back to return to work when the hospitality industry re-opened following the Pandemic closures.   During the hearings on 16/12/2022 and 29/01/2024, the Complainant’s Representative confirmed that the following complaints are withdrawn:

CA-00044687-001

CA-00044801-001

CA-00045110-001

CA-00045110-002

Summary of Complainant’s Case:

The Complainant was employed as a Restaurant Manager and was laid off during Covid.  He submits that due to the fact that the Respondent did not re-instate him in his position, and he had observed the restaurant and bar open in December 2020, he had no option but to consider himself dismissed, and seek alternative employment.  The claim is the Complainant was constructively dismissed.

The history and background

On March 17 2020 the complainant wrote to the employer anticipating the close of the hotel due to the Coronavirus and put himself forward for security detail during the closure. There was communication in March around the closure and ultimately in or around 28 March 2020 the complainant was emailed by Ms C, HR and Payroll Administrator to notify him that he was to be placed on leave as of Wednesday 25th March 2020.

He was placed on the pandemic payment of €350 per week at this time.

In or around 20 May 2020 the complainant emailed Ms C to indicate that staff members were doing security cover in the hotel and seeking the criteria applied as he had a security licence. No reply was received until 10 June 2020 and it was a generic reply and did not deal with the request to perform security work.

In or around 19 June 2020 the staff, including the complainant, received a letter to inform that they would be reopening the hotel on 29 June 2020 but it would be necessary to reduce rosters and overall employee numbers.

In or around Saturday 20 June 2020 the complainant emailed Ms C to ask when he would be returning to work as the hotel had reopened. He received a reply setting out that she had no clear answers for him returning to work at present.

In or around 27 June 2020 the complainant emailed Ms C to enquire about any updates on returning to work and was informed that there was no update and they did not know for sure when they would re-open the hotel restaurant.

In or around Friday 25 July 2020 the complainant emailed Ms C to enquire where he stood as the lobby/ coffee dock were open which fell under his department and that a number of restaurant supervisors were working since the 29 June 2020. By reply it was expressed on 29 July 2020 that occupancy numbers were down and that both the bar and the restaurant currently remained closed.

In or around 31 August 2020 the complaint received a letter to update him that he still remained an employee.

Bar reopening December 2020.

The hotel bar and restaurant reopened in December 2020 and the complainant was not invited back to work and no communication issued to him. He visited the premises and observed that the bar and restaurant were open and operational.

A solicitors letter was sent in January 2021 to confirm the position but it appears this was not received by the respondent. The letter was resent by registered post on 25 May 2021.

Meeting May 2021

The complainant was invited to an informal meeting with Ms C and Mr D, deputy general manager.

He received an email subsequently on 9 June 2021 with notes of an informal meeting.

It is of note that no return to work is offered, no dates are set and the thrust of this correspondence appears to be an attempt to indicate that the complainant had “issues” he wanted resolved before he returned to work.

The complainant had a tangible concern that the reason he was not contacted was because the Hotel was trying to effectively excise the senior members of staff. Other senior members of staff similarly treated were members with long periods of service who were not communicated with and not invited back to work when the bar and restaurant reopened.

Fair Procedures in Relation to Selection for Layoff.

It is argued that careful consideration should be given to selecting employees for short time and lay-off. Fair procedures require that objective selection criteria should be applied and care must be taken not to discriminate against employees on any of the nine grounds contained.

There are no set legal criteria in employment legislation for the selection of employees and an employer must set its own criteria, depending on the requirements of its business.

There should be a selection matrix that can demonstrate a reasonable and fair approach identifying the on-going needs of the business to illustrate the specific departments which must continue to operate and the skills and experience necessary.

The complainant was not supplied with any objective criteria for selection as to what staff were selected to return to work or the logic for this. It is submitted as the senior manager with the longest period of service he ought to have been selected back first.

It is submitted that the complainant did, what his treatment was designed to do- seek alternative employment. That alternative employment was secured in January 2021 on was on significantly less salary with significantly less job security and a probation period of 9 months. The complainant has to travel a further 12 km to work daily each way for inferior conditions and inferior seniority. Even if the respondent had engaged properly in May 2022 the complainant could have returned to his role.

It is noteworthy that no engagement at all occurred until the receipt of solicitors letter in May 2021 and that engagement was highly disingenuous.

Unfair Dismissal/ Constructive Dismissal.

The law is well settled on this point.

Section 1 of the Unfair Dismissals Act, 1977 defines a dismissal which is commonly termed constructive dismissal in the following manner “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 6 reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”

Section 6(1) of the Act states “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

A preliminary point that must be considered by the adjudicator is whether the noncommunication and ostracising of the complainant amounted to conduction on behalf 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 submitted that it must be taken as a dismissal as

The employer did not engage with any of the communications from the employee where he asked them to clarify his status absent the last communication from his solicitors at which point they held a meeting and produced minutes to say that he was the barrier to re-employment.

The employer did not communicate at all with the complainant when the restaurant reopened and as a senior member of staff overseeing that department it is submitted he ought to have been made aware at all times and been an active manager of the decision as to what staff to return.

That the treatment of other senior staff by the respondent employer is similar of a concerted strategy on behalf of the respondent employer to remove these staff with the longest period of service.

Prior to taking up alternative employment a solicitor’s letter was sent to confirm his status which appears was not received by the respondent.

On the resending of the solicitors letter in May 2021 a meeting was called ostensibly to engage with the complainant but really to manufacture a narrative that it was the complainant who was placing barriers in respect of his return to work.

Where the fact of the dismissal is in dispute has been canvassed by the WRC in recent decisions;

ADJ-00028911 An Apprentice Carpenter -v- Joinery Manufacturing Company. An Apprentice who was put on lay off refused to accept the temporary subsidy and was removed from the work WhatsApp group. The respondent employer indicated that they had intended to reemploy the complainant after the pandemic. On the facts it was held that he was entitled to treat himself as dismissed.

ADJ-00031644 Stephen Cullen -v- Designer Group Engineering Contractors.

The facts of this case is that an employee was placed on long term leave due to the Pandemic and was not invited back to work. At this point the employer indicated an internal restricting was being undertaken and his qualifications were no longer suitable for the role. This case is distinguished by the fact there was a redundancy which was appealed internally. On the facts a claim of unfair dismissal was upheld.

Mitigation of Losses

It is submitted the complaint should have been invited back to work in June 2020 when the restaurant reopened.

The complaint was on a salary of €39,000 which is €3,250 per month or €812.5 per week.

It is submitted that his losses are €462.5 per week from 29 June 2020 to 25 January 2020 when he secured alternative employment. This is 30 weeks loss of earnings at €462.5 per week which equates to €13,875.

The complainant was entitled by the behaviour of the respondent to treat himself as dismissed and secured alternative employment to provide for himself and his family in January 2021. His new employment as a security guard began on 25th January 2021.

He is employed on a 36 hours €12.30 per hour contract with a night allowance €16.80 per shift and Sunday allowance €3.44 per hour no meal on duty. He has been on the night shift roster since March 2021 working from 19:00-7:00.

His average weekly hours are around 42 hours + average allowance €60 weekly.

His annual salary is €29,952 compared to in his previous role of €39,000.

It is submitted he is entitled, on the finding of constructive/ unfair dismissal to be paid the difference from the date of 25 January 2020 to the date of the hearing 12 May 2022 being 1 years loss of earnings €9,084 for 12 months and one quarter of the year of three months being €3,028.

€13,875 in respect of the differential in salary between PUP and weekly salary

€9,084 for the difference in his previous and new salary for one year 2021

€3,028 in respect of the difference in previous salary and new salary 2022

 Total €25,987.

The Adjudicator is requested in the circumstances to make any such further award as appears just and equitable in all the circumstances in accordance with section 7 of the Unfair Dismissals Act given the length of period of service of the complainant and his continuing losses in his new role.

Sworn evidence was given by the Complainant and he was cross examined on his evidence. 

He stated that he had 13 years’ service with the hotel.  He started as a Waiter, then became Head Waiter and finally Manager of the Restaurant.  He was called in by the Operations Manager in March 2020 regarding the need for the hotel to close due to the Pandemic.  The Complainant said that he offered to do Security duties but this was not accepted.  There were emails in May, June and July all stating there was no work.  In July 2020 he discovered that the Coffee Dock and Lobby were open, all these were under his supervision and yet he was not called in to work.  He was responsible for sock, staffing and yet he was surprised at not being involved.  In September 2020 he had been having a drink in a pub nearby the hotel and was told it was open.  He called in and saw that the Bar and Restaurant were open.   He noticed a good few new staff were on duty.  He saw that the hotel was open in December 2020 and when he called in the Operations Manager said to him that he hoped to have good news for him within the following week.  As Revenue had informed him that he had no employment status (when he went on PUP) and he felt he was being ignored by his employer and he had no work, he felt he had to lodge an unfair dismissal claim.

Summary of Respondent’s Case:

The Complainant commenced employment in or around 1st October 2008.  As a result of Covid-19 he was placed on temporary layoff in or around 25th March 2020.  At that time, there were 110 employees, 80 of which were laid off, including managers.  Advance protective notice of temporary layoff was given to employees including the Complainant on 16th March 2020 and 26th March 2020.

The procedure regarding layoff is contained in the Company Handbook.      It is submitted, that despite the provision in the handbook, by virtue of the Government imposed lockdown, affecting thousands of business around the country, an implied term inserted in the employee contract of employment at that time made such layoffs permissible.             

By emails dated 19th June 2020 and 26th June 2020 the Respondent kept the Complainant updated.   On 24th July 2020 the Complainant made enquiries and he was advised that hotel occupancy had reduced and was now only 7%.  On 31st August 2020 the Complainant moved from TWSS to PUP, but there was no change in his employment status.  The Complainant and the Respondent were in further communication in October and November 2020 and updates were provided to him.    During this time, the Complainant advised that he wanted to seek alternative temporary employment and he sought his P45.  However the Respondent told him he remained in employment.  The Respondent confirmed this to be the case as of 4th May 2022. 

On 16th December 2020 the Complainant sought a further update on his potential return to work date and he enquired if there was a reference being sought for him.

On 14th January 2021 the Respondent received a questionnaire from a potential Employer and responded saying the Complainant was still in their employment and was on temporary layoff.

On 12th May 2021 the Complainant sought his holiday pay and he was asked by the Respondent when he would return to work.  He was again asked by the Respondent on 24th May 2021 if he would return. On 25th May 2021, a letter from his solicitor was received referring to a previous letter dated 25th January 2021 which the Respondent had not received as it was sent to the wrong email address.  In late May/early June 2021, the Complainant gave an indication that he would return to work, but he did not provide the information as he had lodged his claim to the WRC.     It is argued that this complaint should be dismissed in circumstances where it is clear the Complainant was not dismissed and he refused to return to work in May 2021.

Sworn evidence was given by the former Operations Manager and he was cross examined on his evidence.  He stated that he had been in the position of Deputy General Manager from 2011 to 2022.  In March 2020 there was a National lockdown due to Covid-19.  The hotel closed and 80 staff were laid off.  A letter was sent to staff on 16th March 2020 giving them protective notice of layoff and promising to keep in touch with them.  On 14th February 2020 he had given the Complainant the Handbook, so he knew about layoff, seasonal layoffs and he had himself had to lay off an employee.   He agreed that a letter to the Complainant on 26th March 2020 from the General Manager undertook to find alternative work for the employee.  However, the type of alternative work was not suitable for the Complainant.  Thousands of phone calls had to be made to cancel bookings and staff were needed to answer phones.  The Complainant was not suitable for that role.  There was some restricted opening in June 2020 but massive restrictions were in place, social distancing, and very limited capacity.  He stated that the restaurant, a 200 seater was closed.  The Coffee Dock which was a much smaller place was open on a restricted basis. The Respondent acted on advice from the IHF and kept the staff updated and provided them with numbers for a well being programme.  They also acted on advice regarding employees moving from the TWSS to PUP payments.  There was nothing underhand or dishonest about this.  He confirmed that he did not see the solicitors letter dated 25th January 2021 as it was sent to the wrong email address.  He confirmed that he attended a meeting with the Complainant and HR on 27th May 2021.  They were to meet later to discuss the Complainant’s complaints of unfair treatment but that meeting was postponed.  They wished to engage with the Complainant about a return to work, however he then lodged his claim to the WRC.  As far as he knew the Complainant was still ‘on the books’, having neither resigned or been dismissed.

In cross examination, he agreed that not all Department Heads were laid off.  They were on reduced hours.  Some were essential to keep in work, such as Housekeeping and Maintenance.  Also the Chef as staff had to be fed.  He quoted the statistics regarding occupancy and the drastic reductions during the period.  He stated that the Complainant was not kept on reduced hours as his skill set was not required. He stated that the Hotel did not re-open as the Complainant asserted on 4th December 2020.  There were severe restrictions.  When he was asked why not roster the Complainant in December 2020 or anytime after then, the Manager stated that he had to talk to each member of staff concerning their return to work date.

The current Human Resources Manager gave unsworn evidence to confirm that he had taken up the position in January 2022.  He confirmed that the Complainant was still employed as demonstrated by the Respondent’s records.

Findings and Conclusions:

CA-00044450-001            Unfair Dismissals Act 1977  

The essence of this complaint is that the Complainant who was laid off during the Pandemic, was not given an opportunity to return to his employment at certain points when he saw that the hotel, in which he was employed had opened up even in restricted circumstances.  He was the Restaurant Manager.  He felt aggrieved that he was not given the opportunity, when others were, to work even on reduced hours.  

The definition of constructive dismissal as provided for in the Unfair Dismissals Act 1977 (as amended) is:

“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”.

In a claim of constructive dismissal, the onus of proof rests with the Complainant to prove that the conduct of the employer was so unreasonable that that the employee cannot fairly be expected to put up with it any longer, and the employee is justified in leaving.

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the complainant’s resignation, and something that represents a repudiation of the contract of employment.  In effect the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour.

In deciding if the employer’s behaviour in this case represented a repudiation of the Complainant’s contract, I take into consideration that in the contract, the employer agrees to provide work for the employee and the employee agrees to perform that work.  It is a fact that the situation was not the norm during the Covid-19 Pandemic.  The hospitality industry obviously suffered and were subject to lockdowns much as the rest of the country was at the time.   

In this case, I note the hotel bar and restaurant reopened in December 2020 and the complainant was not invited back to work and no communication issued to him. He visited the premises and observed that the bar and restaurant were open and operational.  I note that in June 2020 the Coffee Dock and kitchen were open.  No offer was made to bring the Complainant back to work even on a reduced hours basis.  While evidence was given of layoffs, and statistics were provided about occupancy, no evidence was adduced regarding any fair method of selecting who would be called in or who would not be called in to work.  In the circumstances, the Complainant felt somewhat isolated and rejected by the Respondent and for understandable economic reasons had to seek work.  There were a number of matters which gave rise to the Complainant feeling uncertain as to his employment status.  For example, wages were paid to the Complainant by way of the Temporary Wage Subsidy Scheme (TWSS), a scheme subsidised by Government to enable employers to keep people in employment.   This changed in August/September 2020 when the Complainant was put on the Pandemic Unemployment Payment (PUP).  Although the Respondent emphasised a number of times that the Complainant was still in their employment up to and including May 2022, there is a disingenuous element to their assertions.  Especially noted is that the Respondent never actually rostered or gave the Complainant a re-start date to return to work.  The Complainant, having made many enquiries as to his possible return to work, was forced out of economic necessity to seek work elsewhere.   The Respondent’s vague answers to his questions, and the refusal to consider any alternatives were not very respectful in a context where the Complainant had over 12 years’ service with them.  For these reasons I find the Complainant was unfairly dismissed by way of constructive dismissal.  I consider the appropriate remedy to be compensation.  I have taken into account his procurement at an early stage of alternative employment.  I note this was at a lower wage and he was at a loss of earnings for a considerable period.  

I uphold the claim of unfair dismissal and I award the Complainant the sum of €9,000 compensation.          

CA-00044452-001 – Unfair Dismissals Act 1977

This is a duplicate of CA-00044450-001 and I make no further findings on the matter.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00044687-001            Complaint withdrawn

CA-00044801-001            Complaint withdrawn

CA-00045110-001            Complaint withdrawn

CA-00045110-002            Complaint withdrawn

CA-00044450-001            Unfair Dismissals Act 1977 

I uphold the claim of unfair dismissal and I award the Complainant the sum of €9,000 compensation.         

CA-00044452-001 – Unfair Dismissals Act 1977

This is a duplicate of CA-00044450-001.

Dated:  20th of March 2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: