Complainant

Respondent

Parties

Zaklina  Cucak

Neville Hotels Limited Hospitality

Representatives

Barry O’Mahony BL instructed by Ryan McAllister ARAG Legal Protection

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-00061129-001

22/01/2024

The Complainant worked for the Respondent hotel as an accommodation assistant alongside her daughter from the 26th of May 2022 until December 2023 when she resigned shortly after her daughter’s dismissal.

She then submitted this complaint alleging constructive dismissal.

The Complainant gave evidence under oath with the assistance of a translator. She worked at the Respondent hotel for 18 months and was exposed to all sorts of harassment.

She alleges her daughter and her were “mobbed” by supervisors and that they were presented in a bad light to other staff by these supervisors. The rooms they were assigned to clean were larger and their workload was harder. Her daughter was shouted at by their supervisor. They eventually reported the supervisor who was cautioned.  This all occurred in August 2022.

She says the “mobbing” continued. A different supervisor continued to attack them. They did not report to the supervisor. It was in the background all the time.

She was then forced to quit because of situation with her daughter who was dismissed.

She simply didn’t feel safe continuing to work in that hotel. She would have been exposed to all sorts of stress which she was already experiencing.

She alleges that when her daughter was fired, she was told they should purchase tickets to go home to Croatia. She was evicted from their accommodation when her daughter was fired.  

The Complainant was cross examined by Barry O’Mahony BL

The Complainant acknowledged she had received a contract when she joined the company, and she denies receiving the Respondent’s handbook but accepts that her signature is on the document acknowledging receipt of the handbook. 

She had lodged a grievance in March 2023 concerning her supervisor. She confirms she was offered and chose not to attend mediation on the issues she was raising.  Her daughter attended but not her. Her supervisor was moved after this process in March 2023.

She confirmed she was invited to disciplinary hearing in May 2023 after an issue with a guest. She says she doesn’t feel guilty at all. It was overhyped. The guest had no complaint against her.

In October 2023 she and her daughter spoke to the Deputy HR Manager and sought an office-based role but was not successful. The moment she gave up was then. She gave up trying to change the job.

On the 17th of October she had said she was too tired to come to work and went shopping in Dundrum. This was just for basic supplies in Tesco.

She was then out for a couple of weeks sick and returned on the 5th of November. She accepts she got into a dispute with a supervisor over being asked to return to a room and clean it further. She denies screaming but was angry about being asked to go back to the room when she knew she did a good job.

She thinks the supervisor was coming up with stuff to bully her. She did not raise a complaint because she does not know how to.  

On the 7th of December her daughter was dismissed for gross misconduct. She was upset and believes that her daughter didn’t deserve that. She accepts that they had different contracts and relationships with the hotel.  

She resigned at this point. She accepts that management told her employment with the hotel was not impacted by her daughter’s dismissal.

She was told before she resigned that she had to leave accommodation. After her daughter was fired HR told her she had 4 days to move from the Respondent’s accommodation and that they would not extend this. Her reasoning for this was that the appeal window was four days on her daughter’s letter of dismissal.

She did not resign on the 7th of December and did not write the email in the Respondent booklet. Though her complaint form also states the 7th of December this is just a mistake.

She left the accommodation on the 3rd of January 2024 after she secured an alternative with the assistance of the county council. She agreed that the Respondent extended the deadline for her to leave. She was not told her daughters dismissal had no impact on her accommodation status.

She was told she would have to leave the accommodation 11th of December.

The Complainant’s daughter Dsenija Bakiz gave evidence under oath.

She was harassed in her job the entire time she worked there. She was falsely accused all the time. No other person was treated like this.

The Respondent provided detailed written submissions and a number of witnesses were prepared to give evidence.

Unfortunately the time allotted for this case was exhausted and the matter was going to need to be adjourned for another day. Mr O’Mahony made an application that the Complainant’s evidence was unclear, unreliable and that she contradicted both herself and the complaint form she submitted.

Mr O’Mahony requested that rather than call the parties back for another day the Adjudication Officer should first consider, on the basis of the Complainant’s evidence alone, whether the case  could succeed? If the answer to this question was yes then the Respondent needed to be afforded an opportunity to respond. If it the answer is no then the Adjudication Officer should just issue a decision reflecting that.

The Unfair Dismissals Act provides that a dismissal can occur where an employee resigns.

Thiis is outlined in section 1 of the act which defines dismissal as to include:

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,

The burden of proof is on the Complainant to establish that their resignation was actually a dismissal by virtue of the above definition. As such I was willing to agree with the course of action proposed by Mr O’Mahony and consider whether the Complainant had, on her own evidence established this before calling the parties back for another day.

The Complainant raised a number of issues which she says caused her dismissal such as general unfair treatment by the Respondent and her daughters dismissal. Mr O’Mahony is entirely correct that the dismissal of Ms Bakiz is a separate matter entirely from the Complainant’s employment. Her evidence on these other issues was simply too unspecific to support a case for constructive dismissal.

The Complainant also alleged that she was told she was being evicted from the accommodation provided by the Respondent with four days notice and that this happened before her resignation. This is denied by the Respondent.  

As outlined by UK Court of Appeal in the seminal case of Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 there are grounds under which a person can claim constructive dismissal. The “contract ground” and the “reasonableness” ground.

 Lord Denning, in that Judgment, summarises the position regarding the “contract ground” as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract then the employee is entitled to treat himself as discharged from any further performance. If he does so, he then terminates the contract by reason of the employer’s conduct. He is constructively dismissed”

Where there is provision of accommodation by the employer I am satisfied that this could be considered a key term in the contract of employment, particularly in the context of the housing crisis which persists in Dublin.

The Respondent provided what they purported to be the Complainant’s letter of resignation sent by email from the Complainant’s email address on the 7th of December 2023 at 21.27. This email states: Hello, I would like to resign from my work. I’m displeased with the working conditions and the whole situations that was happening around my daughter.

The Complainant denies sending that email and states that she didn’t resign on the 7th and resigned later after they told her she was being evicted from accommodation with four days notice. She was not clear when this occurred. She did not know why her complaint form states she resigned on the 7th of December.

She contradicted herself in evidence on a number of issues, including knowledge of how to raise internal complaints and whether the Respondent was willing to extend the date they would be put out of the accommodation. She was generally unclear of when and why she resigned.

In the circumstances and on the Complainant’s evidence alone, I am not satisfied she was told she was being evicted from her accommodation.

I find that the complaint is not well founded.