Complainant

Respondent

Parties

Oana Florina  Ratiu

Mayrange Limited  t/a Trinity Townhouse

Complainant

Respondent

Representatives

Marius Marosan

Peter Dunlea of Peninsula Business Services

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-00065818-001

06/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00065818-002

06/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00065818-003

06/09/2024

The issues in contention concern the alleged Constructive Unfair Dismissal of the Complainant, a Hotel Supervisor by a Dublin City Centre Hotel. Associated complaints are Penalisation under the Safety, Health & welfare at Work Act,2005 and a Working Time complaint under the Organisation of Working Time Act,1997.

The employment began on the 19th October 2014 and ended on the 4th July 2024.

The rate of pay was stated to have been €769 for a claimed 47.5 Hour week.

The Complainant was represented by Mr Marosan. Full oral testimony was given supported by a detailed Written Submission.

1:1        CA -00065818-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The Employment had begun in October 2014 and had progressed very satisfactorily. The Complainant had been promoted twice and finally in December 2017 becoming Housekeeping and Breakfast Supervisor. References from former Superiors were presented in support.

The Restaurant and Hotel accommodation very largely suspend operation during the period of the pandemic from 2020 to 2022. In late 2022 the Complainant was called back to the Hotel and worked predominantly in the Kitchens.

In 2023 a Mr Marco is appointed Breakfast Supervisor and the Complainant now has to work under his direction. A Ms Daniela, (Ms D) is also appointed around this time as Housekeeper/ Duty Manager.

Relationships do not go well and on or about the 20 June 2022 the Complainant has to inform the General Manager, Mr K, regarding incidents with Ms D. The Complainant stated that Mr K, the General Manager had been dismissive in his replies and had effectively done nothing to address what was, in the eyes of the Complainant, a serious issue of bullying and harassment.

In late 2023 a Ms R, is hired. Her role is described as “housekeeping support”, but she soon assumes, nominally, most of the Complainant’s work duties. It was alleged that Ms R was a close friend of Mr K. Ms R is appointed as Duty Manager on the 11th April 2024. Relationships with Complainant deteriorate and allegations of Bullying and Harassment arise. On the 12th May 2024 a serious verbal exchange arises between Ms R and the Complainant. The Complainant wished to raise the issue with Mr K, the GM, but felt that it would be to no avail as Ms R was Mr K’s “protégé”. Felling very stressed and unwell the Complainant leave early and goes on stress related Sick Leave.

In e mails on the 15h May the Complainant requests details of the Respondent Grievance procedures and is informed that Ms R has also lodged a Counter Grievance complaint.

The Complainant remains on Sick leave until the end of June 2024. On her proposed return to work on or about the 2nd July 2024 Mr K arranged a meeting with the Complainant. In this meeting he proposed a very reduced work schedule and a “phasing” in of return to full time work. The Complainant is shocked as she has a full GP return to Work Certificate. She requests time to consider the Return proposals but as Mr K is departing on Annual leave that evening, he asks for a quick reply.

The Complainant is shocked and upset at the Return-to-Work proposals as they will, apart from any status issues, result in a reduced income. After careful consideration she writes on the 4th July 2024 a detailed Resignation e mail. In this E mail/letter she stated that Mr K had created a “Toxic Work environment” , had denied her details of Ms R’s  Grievance made against her, had not properly investigated the previous Grievance against Ms D and had completely undermined any faith or trust that she had in Management in general and him in particular. Resignation was the only option left to her. It was noteworthy, Mr Marosan commented, that the Complainant’s resignation had been accepted with undue haste. There had been no realistic effort to engage her in dialogue to even attempt to understand her reasoning despite a very detailed Resignation letter.

Mr Marosan cited extensive case law including Berber v Dunnes Stores , Irish Supreme Court,  Lewis v Motor World Garages Ltd [1986] ICR and Omilaju V Waltham Forest LBC [2005] 1 All.ER to support his case that the Complainant had been treated  “Unreasonably” in not having her Grievances ( especially the 2022 Grieavcne against Ms D) properly investigated . She had been denied all details, despite requests for the full facts of Ms M’s complaint against her in May 2024. In addition, she had had been seriously bullied by her Managers.

1:2         CA-00065818-002 - Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

The Complainant via Mr Marosan, argued that she had raised serious complaints against Ms D in mid-2022. This lady was another “protegee” of General Manager Mr K and in clear retaliation her work duties had been assigned to other staff members. Her genuine attempts to Return to Work had been stymied by Ms K with his “phased” return proposals. It was a clear breach of Section 27(2) of the S, H&W Act,2005 where Penalisation is defined comprehensively and includes Dismissal.

1:3        CA-00065818-003 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

It was alleged that there were some inconsistencies in the calculation of Annual leave due to the complaint on her resignation. It was accepted that these were being positively discussed with the Respondent.

The Respondent was represented by Mr Dunlea of Peninsula Business Services supported by witnesses Mr K, General Manager and Ms G, Duty Manager. A detailed written submission was also relied upon.

2:1        CA -00065818-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

Considerable Oral testimony was given by Mr K in relation to the “Return to Work” meeting of the 2nd July 2024. This meeting was felt to have been crucial as it had prompted the resignation letter of the 4th July. Mr K made it clear that he had genuine concerns regarding the welfare of the Complainant and her return to work. She had indicated that she felt pressurised by her domestic situation to return. He acknowledged a Return-to-Work certificate had been supplied but he was proposing a Company Medical examination as reassurance. The phased return to work was a safeguard to the Respondent and also to the Complainant. She had requested time to consider his proposals. He had told her he was going on Annual Leave the following day and would appreciate a quick reply. In relation to the Complainant’s queries regarding income he had suggested that she could use some of her accrued Annual Leave to help out. It was very important to note, he reiterated, that the 2nd July 2024 meeting was intended to be genuinely helpful and was not an underhand way to pressurise the Complainant.

The issue of the Grievances against the Complainant by Ms R and the Complainant’s parallel grievance had not been investigated, following good HR practice, while the Complainant was on Sick leave.

He knew that the Complainant was a very good worker and was not in any way anxious to lose her. However, he knew that her health had been giving her some issues in previous years and he was according anxious to phase in her return to full time work.

Mr K was fully cross examine by Mr Marosan for the Complainant.

The Complainant had never been demoted and the allegation that she had been “replaced” was a misreading of the appointment of a Temporary Worker to cover the Complainant’s duties while on sick leave. Regarding the reduced hours/phased in return Mr K confirmed to Mr Marosan that if the Complainant had gotten in touch with him prior to his going on leave, extra hours could have been allocated to her. The Phased Return was an agreement that would only be arrived at in full consultation.

Extensive case law was cited by Mr Dunlea to support the arguments that Constructive Dismissal must meet the now well-established Legal tests of Fundamental Breach of Contract, Unreasonable Behaviours and latterly Use/non-Use of employment procedures. Redmond on Dismissal Law [third edition] Para 19.14 was the headline reference.

2:2         CA-00065818-002 - Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

The Respondent via Mr Dunlea completely refuted that any “Penalisation” as set out in Section 27 (2) or (3) of the S, H & W Act,2005 has taken place. It was acknowledged that she had raised a Grievance against Ms R, in 2022. However, Mr K, the GM felt that his had been very adequately resolved at that time. Ms R had long since left, for Career reasons, the Employment.

Mr Dunlea argued that the Labour Court and Higher Courts had always cautioned against categorising a Grievance Between Employees as a Disclosure to merit Section 27(2) of the Act.  In addition, Mr Dunlea cited, among other cases, the Toni and Guy Blackrock Ltd v O’Neill case [2010] ELR and the incorporated legal “But for Test”.

In this referred case this Test demonstrated that the Constructive Dismissal decision was not possibly linked and that any H &S issues that might be suggested by the Complainant had no “predominant” effect to cause / justify a Constructive Resignation

2:3        CA-00065818-003 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

It was understood that any issues here regarding calculations etc were being addressed between the parties.

3:1   CA -00065818-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

3:1:1        The Relevant Law.

The Unfair Dismissal Act,1977, the Constructive Dismissals “Tests”, the issue of the use of Procedures prior to a Resignation and the body of Legal precedents.

In relation to Constructive Dismissal the Adjudicator in A Maintenance Supervisor v A Charity ADJ 00002881 set out a comprehensive review which is worth quoting.

 For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides:

 “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,…”

 As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ 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 other performance.”

 The reasonableness test assesses the conduct of the employer and whether it

“…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

According to the Irish Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61:

 “The conduct of the employer complained of must be unreasonable and without proper cause and its effect 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.”

Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

Furthermore, in the case of use/non-use of Employment Procedures the oft quoted text is from the case of Harrold v St Michael’s House, [2008] E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

However, a certain degree of Legal caution is required here.

In the case of Allen Independent Newspapers, IR [2002] E.L.R. 84 v the claimant, resigned her position. She alleged that she had been constructively dismissed in that the conduct of her employer and the treatment of her and attitude towards her left no choice but to terminate her employment.

The Employment Appeals Tribunal, however, was satisfied that at various stages throughout her employment and more particularly in September 2000, the claimant brought her complaints to senior management level within the Respondent newspaper. Overall, the Tribunal considered that it was reasonable for the claimant to take into consideration the manner in which her various complaints were dealt with during 1999 and 2000 in arriving at her conclusion that she had essentially lost faith in what was being offered by way of investigation by the Respondent in September 2000.

 She was entitled to do so because the EAT accepted that she had cause for complaint after June 2000. The tribunal therefore accepted the claimant’s assertion that she could have no confidence in the Respondent to address her grievances either properly or effectively and that such was a reasonable conclusion in all the circumstances. Furthermore, the claimant did not act unreasonably in taking into consideration the likely effect on her health and wellbeing were she to remain in the work environment. She had communicated her concerns about her health to her employer. The tribunal, however, considered that this was a constructive dismissal and stated that

 “the Respondent company acted unreasonably in its dealings with the claimant, and she became frustrated, leaving her with no option but to resign”.

In summary therefore, a failure to use internal Procedures prior to a Resignation has to be considered carefully by an Adjudicator in any consideration of a constructive Dismissal.

It follows therefore that the “Tests” outlined above can be used to consider the Constructive Dismissal case here.

The “Tests” to be used are (1) Breach of Contract (2) Unreasonable Behaviours) (3) Use of Procedures.

 3:1:2         First Test for Constructive Dismissal – Fundamental Breach of Contract

In the Legal precedents quoted above the Brach of Contract has to be fundamental – “going to the root of the contract”. In this case there did not appear to be any issues with the fundamental contract of employment. Salary was paid and Holidays allowed. Health and Safety issues were not grievously undermined. The area where the Complainant focused her arguments was the allegation that Job had been fundamentally altered essentially from a Supervisory positon to a lesser Hierarchical role -essentially a House Keeping/Kitchen assistant.

This was vigorously denied by the Respondents and there had been no attempts to cut wage levels or other diminishment of benefits. The “phased” Return to Work following the 2nd July 2024 meeting was cited. However, the defence of the Respondents was that this was only being done with Complainant agreement and was a proposal to cover the first two weeks only. Mr K the General Manager was definite in his recollections that there was plenty of work for the Complainant and could easily have been discussed don his return from Annual Leave. A proposed meeting had been scheduled for on or about the 16th July on his return.

A related argument could be made that the Respondent employer was under a Contractual Duty to safeguard the Health and Safety of the Complainant and that it had failed to do so particularly in relation to the Grievance of the Summer of 2022 in relation to Ms D. This was denied by Mr K.  In an employment Law context this type of Contractual argument is hard to support unless backed by very significant evidence. This is not really present here. Additionally, the Complaint has a parallel complaint under the S, H & W Act,2005 – Section 27 and it is best addressed under that heading.

From an Adjudication point of view and bearing in mind the need to establish a clear pattern of evidence to support any conclusion the view has to be, having carefully considered the Oral and Written testimony that there is insufficient evidence to sustain an allegation of a Fundamental Breach of Contract.

As a Test it does not favour the Complainant.

3:1:3         Second Test for Constructive Dismissal – Unreasonable Behaviours by either side.

The Legal precedents, quoted above, indicate that “Unreasonable Behaviours” have to be exact that – Unreasonable so fundamentally bad, egregious is often the word used, as to make it impossible for any worker to accept it and leaving the job is the only “reasonable” option. Legal texts often quote the hypothetical example of a senior employee being handed a small brush and told to sweep the outside yard.

In this case the key issues were the meeting of the 2nd July 2024 and the Complainant’s Resignation letter of the 4th July. Strong Oral Evidence was given by Mr K, the General Manager and likewise from the Complainant assisted by Mr Marosan.

The Complainant had asked, the previous day, for a Translator to be present on July 2nd but this had proved impossible at such short notice. Google Translate was suggested as an alternative.

The Complainant had major issues with the Phased Return proposals of Mr K, the GM. His view was that he was being perfectly reasonable and in fact acting almost from a duty of care. It would not be uncommon for an Employer to propose a Phased Return from Sick leave and possibly the intent was lost in language difficulties.

Accepting the “Band of Reasonableness” Employment Law approach the actions of Mr K were not out of keeping with normal employer behaviours in similar situations.

The second point of issue for the Complainant was the alleged replacement of her duties by other people while she was absent. She felt that there had been a lack of proper communications of any changes. The Respondent argued that any changes had taken place to simply cover her absence while of long-term sick leave and were temporary. This did not seem unreasonable. The Complainant allegation that she was being isolated by Mr K in favour of what she called “His protégés” was emotional for the witness but was not really supported by strong evidence. Witness Ms G, Assistant Manager, while not addressing this issue directly did not give any indication of a “protégés” policy.

The third point was the alleged failure to properly address the Grievance against Ms D in the Summer of 2022. There was little direct evidence of this situation as Ms D was no longer an employee and not available as a witness. All told it was a year before the Resignation and could not be really used as a supporting Constructive dismissal argument.

The final point was the “Creation of the toxic environment” - unsafe and hostile for the Complainant. Weighing up the evidence and being aware of the very obvious different personality style of Mr K and the Complainant it was hard to see a “hostile environment being created”. The Respondent Manager, Mr K had scheduled a further meriting on Mr K’s return from leave where many issues could have been addressed. The Complainant had pre-empted this by resigning on the 4th July 2024. The suggestion that Mr K was overly hasty in accepting the Resignation was put by Mr Marosan but having read the exchange of emails it was probably not unreasonable on Mr K’s part.

All told and having considered the full range of Oral and Written evidence it was hard to see “Unreasonable Behaviours” of such a very bad nature as to justify a Constructive Dismissal. The Test cannot be seen as in the Complainant’s favour.

3:1:4          Third Test for Constructive Dismissal –Use of Employment Procedures prior to a resignation.

This test is more open to interpretation- as in the Allen Independent Newspapers, IR [2002] E.L.R. 84 cited above a Complainant loss of faith in the good will of an employer, a belief that nothing constructive could come from using Employment procedures can be cited. The Complainant is this case was still very aggrieved regarding the Grievance outcome from the Summer of 2022 Ms D case and the failure to inform her of the May 2024 Grievance allegations against her by Ms R.

The May 2024 Grievance a put-on hold by Mr K, the GM as the complaint was on Sick leave, a reasonable HR approach and the arranging of a meeting for the 16th July on his return was also reasonable. These points seem to have escaped the Complainant.

In summary the Adjudication view has to be that the Complainant had a number of long running Grievances against the Hotel and had a perception of being side lined by the staff choices of Mr K.

By resigning before the Grievance of May 2024 was investigated and the suggested meeting of the 16th July took place was premature before the procedures were exhausted.

This Third test cannot be in the Complainants’ favour.

3:1:5          Adjudication summary in Unfair Dismissal case

Having Carefully considered all the evidence both written and extensive oral testimony the conclusion has to be that a case for Unfair Constructive dismissal has not been made out. The complaint fails.

3:2         CA-00065818-002 - Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

3:2:1       The applicable Law

The applicable law is found in Sections 8, 27 and 28

General duties of employer.

8.—(1) Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.

(2) Without prejudice to the generality of subsection (1), the employer's duty extends, in particular, to the following:

(a) managing and conducting work activities in such a way as to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees;

(b) managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health or welfare at work of his or her employees at risk;

Protection against dismissal and penalisation.

27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

The issue of Penalisation via Unfair Dismissal was extensively considered by the Labour Court in the Toni and Guy Blackrock Ltd v O’Neill case [2010] ELR and the incorporated legal “But for Test”.

In this case the Labour Court effectively stated that a Penalisation such as a Dismissal had to be seen as the “overwhelmingly and predominant” direct consequence of an employee making a Health and Safety complaint to the employer.

Mr Dunlea, for the Respondent, also raised the issue that a Grievance cannot be confused with a Health and Safety complaint to an employer.

As in all cases the evidence has to be considered especially in this case the Oral testimony of the Parties.

3:2:2         Consideration of Evidence both Oral and Written

There were two key witnesses, Mr K, the GM for the Respondent and the Complainant herself.

Mr K presented as a very capable professional Hotel Manager who gave clear evidence under Oath/Affirmation.

The Complainant, although aided by Mr Marosan, was very sincere but nervous. English was not her first language. Mr Marosan, her Representative, who is fluent in the Complainant’s native language assisted her.

The case she made out in her Oral testimony was that things had gone well for a few years but following the arrival of Ms D in 2022 relationships had deteriorated badly. She felt that Ms D was bullying and harassing her. She had raised a Grievance to Mr K. She felt that she was being largely ignored and belittled by Management. The clear suggestion was that she, as an older “more traditional worker” was not part of Mk’s “Protégées”. This feeling was, in er eyes, reinforced by eh appointment of Mr M to a Kitchen Supervisory role that was never clarified and later by the arrival of Ms R as “Duty Manager”.  The Complainant felt that her duties were being eroded and the exact functions of Mr M as regards the Kitchen and Breakfast was never fully clarified. Mr K was intentionally vague she felt.

Mr Marosan argued that the Grievance lodged against Ms D in early 2022 and later against Ms R in May 2024 were clearly H & S “declarations”.

The other issue was the requirements of Mr K, the GM, for a “Phased return” after a lengthy period of Sick leave. The Complainant argued that she had a clearance note from her GP and no restrictions were warranted.

The Oral Testimony from Mr K was that the Grieavcne against Ms D in the Summer of 2022 had been, in his view, satisfactorily resolved and that the May 2024 Grieavcne process against Ms R had not commenced as the Complainant was on Sick leave until July 2024. He absolutely denied that any suggested work reorganizations around the Breakfast Service and the Housekeeping duties of the Complainant were as a result of the Summer of 2022 Grievances against Ms. D.

Ms D was no longer an employee and as her geographic whereabouts were largely unknow she could not be called as a witness by either side.

The key Adjudication issue was whether or not the Grievances of 2022 & 2024 and the various issue with Housekeeping & Kitchen Breakfast duties were, following the Toni and Guy Labour Court “Test” of “But For” were fundamental to the decision to resign the employment.

It was clear that there were major differences in “Style”, possibly generational, between Mr K and the Complainant. However this is a normal HR issue in a major Hotel and Mr K was, it appeared, thoroughly professional at all times.

To the Adjudicator, having listened to the Oral testimony and the demeanour of the Parties as witnesses, allied to the Written Submissions is that, on a pure Legal basis, the link is not strong enough or so fundamental as to warrant the Constructive Dismissal/Penalisation case.

3:2:3       Adjudication Summary

The “What For” & “But if” Tests (Toni and Guy Blackrock Ltd v O’Neill case [2010] ELR) do not really allow a link to be made to the Constructive Dismissal as a Penalisation.

Regrettably for the Complainant, the case has to fail.

3:3           CA-00065818-003 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

This was a disagreement over the correct calculations of Holiday Pay on the termination of the employment. It was understood from the Parties that this was largely an accounting reconciliation issue, and it did not require an Adjudication decision. The Respondent was clear that they would sort out any issues the Complainant had in this area.

On this basis the finding from Adjudication will be a direction to the Parties, under Section 27 of the Act, to resolve any Holiday payment discrepancies.

Unfair Constructive Dismissal, S, H & W Act,2005 Penalisation, Working Time -Annual leave issues.