INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY BARRY, TURNBULL AND COMPANY)
Chairman: Ms Owens
Employer Member: Mr Keogh
Worker Member: Ms Ni Mhurchu
1. Alleged constructive dismissal.
2. The dispute concerns one worker who commenced his employment in the Hotel, as a waiter, in 1981 and who worked in the Hotel's Fastnet Restaurant until September, 1991, at which time he resigned his position in order to attend to pressing family matters.
He claims that, at the time he terminated his employment, he was assured by management that his post would be held open for him until such time as he was in a position to resume his duties. However, when he returned to the Hotel in early 1992, he claims that he was advised that there were insufficient customers to warrant his resuming his duties. Subsequently, he was given odd-jobs about the Hotel, which he states he found so unbearable that he, ultimately, left the employment of the Hotel in November, 1992. He alleges that he was constructively dismissed by the hotel.
The Hotel has rejected the worker's claim. The worker, subsequently, sought to have the matter investigated by a Rights Commissioner but the Hotel objected to such an investigation. The worker referred the dispute to the Labour Court, on the 10th of April, 1997, in accordance with Section 20(1) of the Industrial Relations Act, 1969. The Court carried out its investigation, in Cork, on the 5th of November, 1997.
3. 1. The worker was very efficient at his work and was popular with management, staff and customers. However, from the onset of his domestic difficulties, the attitude of the Head Waiter towards him changed for the worse (details supplied to the Court). When the worker returned to the Hotel to resume in his former position, he was informed that there were insufficient customers to warrant his return. This was clearly not the case. The Head Waiter did not wish the worker to return, for his own personal reasons, e.g., he believed that, due to the worker's popularity, his own position was being undermined.
2. By writing his letter of resignation , the worker intended not to resign, as such, but to take long-term leave of absence.
3. When the worker returned to the Hotel, he was prepared to work on a casual basis because he needed as much work as possible. However, due to the circumstances in which he was placed, he could not bear to continue and, accordingly, was forced to leave his employment with the Hotel.
4. When he sought, subsequently, to return to his position in the Fastnet Restaurant by contacting the Hotel's general manger, he was advised that there was no chance of his returning to the Restaurant because the Head Waiter did not want him there.
5. In September, 1991, on his last night in the Hotel, the worker actually served the Hotel manager who informed him that he was sympathetic to his position and that there would be a job there for him when he returned.
6. The worker was treated very shabbily by the Hotel and was constructively dismissed. He should be compensated and should receive an apology for the hurt and upset caused to him, having regard to the loyal service rendered by him to the Hotel.
4. 1. The worker last worked for the Hotel five years ago. His former employment with the Hotel was terminated when he resigned from his position at that time. The worker actually accepts that he did, in fact, resign from his position.
2. The worker made no claims whatever at any time during the past four years that he had been dismissed from his former employment with the Hotel. Now, in 1997, he claims that he was constructively dismissed. His claim is not credible having regard to the length of time involved. The worker is long since statute-barred from taking such a claim under comparable protective labour legislation
3. The Hotel facilitated the worker to allow him to attend to his personal affairs and he was given a number of periods of leave of absence. When he returned to the Hotel, there was only casual work available which he took on until his resignation. In mid-1995, when the worker approached the Hotel seeking employment, he indicated, during interview, that he was not prepared to work in the Fastnet Restaurant as long as a particular other person was working there. The Hotel arranged for a meeting of the personnel involved but the worker declined to attend and stated that he was not prepared to work in the Hotel as long as that other person was still working there.
Having considered the submissions from the parties, the Court finds that the claim for constructive dismissal is not sustained and, accordingly, fails.
The Court notes that the Hotel has not expressed an unwillingness to re-employ the claimant should a suitable vacancy arise.
Signed on behalf of the Labour Court
18th of November, 1997______________________
Enquiries concerning this Recommendation should be addressed to Michael Keegan, Court Secretary.