Complainant

Respondent

Parties

Emilia  Duda

Cape Wrath Hotel Ltd Citywest Hotel

Complainant

Respondent

Parties

Emilia Duda

Cape Wrath Hotel Ltd Citywest Hotel

Representatives

Cara O' Neill SITPU

 Lorne Dooley HR Manager

Act

Complaint Reference No.

Date of Receipt

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

CA-00054322-001

31/12/2022

The Complainant worked as a Cleaning Supervisor with the Hotel. Her employment commenced on the 18th of January 2018. She alleges that she was placed on lay off and that after a lengthy period she applied for redundancy which was refused. She also alleges that arising from the Hotel changing to an accommodation centre and no longer operating as a hotel, her role as Supervisor was fundamentally changed.

Her employer denies this account. The Complainant in fact sought to go on a reduced working week and was facilitated to work 2 days rather than the standard normal working week. At all times the hotel has had supervisory cleaning work for her. The Hotel operated throughout Covid as it was contracted to provide services to the HSE. No worker contracted Covid during that period arising from the strict protocols applied to reduce the risk of infection. The Hotel was an essential service, and most workers continued in their roles.

When Covid restrictions ended, the Hotel re-opened as normal. The Complainant for personal reasons didn’t return to her full time Supervisory role. Subsequently the Hotel became a designated accommodation centre for refugees.  However, the Employer alleges prior to that change in business the Complainant had applied for redundancy. The fact is the Complainant can return to her Supervisory role. Her job has not been eliminated and is substantially the same as when it operated as hotel.

The Complainant alleges that she was placed on lay-off and that her lay-off became permanent.

In her complaint submission it states:

This lady was employed as housekeeper and was placed on lay-off for much of the pandemic. On her return to work, she was offered an alternative role as 'accommodation supervisor' which differs significantly from her original role, involves numerous additional responsibilities and some physical work which she is unable to carry out due to a back problem - which is verified by occupational health reports. She has never been given an explanation for the change of role. Ms. Duda applied for redundancy when management refused to engage regarding the issues outlined above but has been unsuccessful in securing any redundancy payment or recognition of her eligibility for same despite other staff members having received redundancy in similar circumstances. We believe that she is eligible for redundancy payment

The Respondent denies that the Complainant was placed on lay-off. The Hotel in fact operated as an essential service during the Covid. It was a place designated for patients to be discharged to or for isolation to take place There were strict protocols put in place under the direction of the HSE to ensure that staff were not put at risk. There was not report of Covid concerning a staff member during the crisis.

The Finance Accountant attended at the hearing and stated that Complainant was always obligated to carry out some manual work. The Accountant stated that the representations being made by the Complainant are not factual and are opportunistic. The Hotel may have changed from providing guest accommodation to visitors to guest accommodation as a service to the HSE. However, the nature of the Complainant’s role continued. Her supervisory role was still required and along with all staff flexibility is required on occasions to assist with manual and cleaning duties. That was also the case pre-covid.

The Complainant did request to work a reduced working week for 2 days a week. It was not possible to hold the Supervisory role and work 2 days a week.

During Covid the Hotel was looking for staff. The role temporarily changed, as many roles did across the Country. However, the essential nature of the Supervisory continued.  The Hotel opened as normal from February 2022 and the Complainant stated she could only work 2 days a week. On the 29th of June 2022 the HR Manager emailed the Complainant to advise the Complainant that her Accommodation Supervisory role was still required. The Hotel had resumed normal operations on or about February 2022 and then arising from the crisis in Ukraine entered into a contract with the state to provide emergency accommodation.

There is no evidence that supports the Complainant that she was placed on lay-off. The Hotel operated throughout the Covid emergency period, resumed normal opening in February 2022 and then in June 2022 arising from the crisis in Ukraine provided emergency accommodation.

It is argued by the Complainant that her role was fundamentally different and no Supervisory role as she was used to existed. That meant her role was extinguished and in turn that meant she was entitled to redundancy

I prefer the evidence provided by the Employer that the Hotel continued to have a Supervisory role for the Complainant and that role changed reasonably based on circumstances that while exceptional, did not fundamentally change the essence of her Supervisory role. As her role continued and she was not placed on lay-off I must determine that the claim is misconceived.

An employee is entitled to redundancy where:

General right to redundancy payment.

7.—(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

This right in this case cannot apply as no lay-off occurred, no short time was put in place by the Employer and the employee was not dismissed.

There is case law that would support the Complainant’s position if her job had changed or her location by some distance then an alternative role would not negate the right to statutory redundancy.

In this case there is no change in location. The role is the same; what changes are the guests; the duties are the same and the rooms are required to be cleaned. It is also the case that when the Hotel revert to normal Hotel operations in February 2022 the Complainant still didn’t return to her Supervisory role. Having regard to all the circumstances of this case I cannot find that her role changed and what she was offered was an unsuitable alternative. There was no restructure.

The appeal fails. The complaint is not well founded.

While the role changed to a degree arising from Covid, the nature of the Supervisory role remained intact. Their role pre Covid and during Covid was substantially alike. A key consideration also is that the Hotel re-opened for normal trading during February 2022 and the Complainant still failed to return to work. 

An employee is entitled to redundancy where:

General right to redundancy payment.

7.—(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

This right in this case cannot apply as no lay-off occurred, no short time was put in place by the Employer and the employee was not dismissed. Also, her role did not change so that it would be reasonable to refuse to carry out such a role. The Supervisory role continued essentially the same and subject to reasonable  change that would apply in any role.

Lay-off-Role Change