EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD310/2015
CLAIM OF:
Nicola Lowry
- Claimant
against
CI Hotels Limited t/a Maldron Hotel Portlaoise
- Respondent
CI Hotels Limited t/a Maldron Hotel Midway
- Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr N. Russell
Members: Mr M. Noone
Mr A. Butler
heard this claim at Portlaoise on 31st March and 14th June 2016
Representation:
Claimant : Ms Aoife Farrelly B L instructed by Tom O'Grady Solicitors, Market Square, Mountrath, County Laois
Respondent : Mr Michael McGrath, IBEC, 84/86 Lower Baggot Street, Dublin 2
At the outset of this hearing the respondent raised two preliminary matters, namely a personal injuries claim and a time issue. The first matter was dealt with and agreed on by all parties but the second issue required sworn evidence. The respondent contended that the claimant’s application was received by the Workplace Relations Customer Service outside the normal time limits i.e. six months applied by statute.
Preliminary Issue
The respondent is a hotel. The general manager of this hotel told the Tribunal that the claimant approached him on 9 September 2014 with a request that she finish her employment that day. He agreed to that request. The witness described the meeting as informal and jolly. No notes were taken of it and he subsequently texted the human resource section informing the manager there of this development. A P45 issued to the claimant giving her date of cessation as 05 September 2014.
This witness had no recollection of receiving a phone call from the claimant on 15 September and never received an unsigned and undated note from her stating her resignation was on 17 September 2014.
The human resource manager acknowledged receiving that note and was unable to explain the date of cessation on the claimant’s P45. However, she did get a text message from the general manager on 9 September but made no note or did not record the claimant’s departure nor contact the claimant during this period and process.
A hotel time sheet for week ending 14 September 2014 and signed by the claimant showed she had not worked in the hotel from the previous Wednesday of that week.
On 14 September 2014 the claimant applied for a post leaving certificate course. On receiving confirmation that she was accepted on that course which had started earlier that month, she then phoned the general manager of that development and indicated her intent to resign from her job. Acting on instructions from that manager she then wrote a note to the effect that she was leaving her employment on 17 September 2014 - the day she was commencing that course.
This witness was certain she did not meet the general manager on 9 September 2014 and that up to the 15 September 2014 she had no reason to resign until her situation changed that day.
The Tribunal considered the matter. The Tribunal is satisfied that the claimant tendered her resignation in writing on 17th September 2014. The contract of employment provides that all resignations be put in writing. The Tribunal is satisfied that it has jurisdiction to hear the case.
The determination of the Tribunal was as follows:
Claimant’s Case:
The claimant commenced employment on 15th July 2011 in the role of Accommodation Assistant. She was furnished with a contract of employment and an employee handbook and told to read these documents at her own convenience. She attended an induction course. She reported to LG who was HR Manager during her tenure. Each accommodation assistant is given 15 to 20 bedrooms to be cleaned on a daily basis. The claimant found 15 to 20 bedrooms to be too much and physically draining on any person. She initially worked 5 days a week. After some time she requested to work on a part time basis. From then on she worked a three day week. She had suffered from back pain for quite some time.
After one and half years in employment she took on a supervisory role. She then supervised a number of employees.
From 11 March 2014 until 7 July 2014 she was absent from work due to back surgery. On 7 July 2014 BG, the General Manager together with the HR Manager LG met her and completed a sickness interview return to work form. It was agreed that she would only perform light duties such as office based work and supervising staff and checking rooms and public areas.
On occasions from then on LG told the claimant she would have to clean bedrooms due to lack of staff. Another supervisor gave her a list of bedrooms to be cleaned on instruction from LG.
The claimant continued to encounter difficulties at work. Bedrooms were being left uncleaned and she reported this to S, front of house manager. LG called the claimant to discuss this matter and told her that ‘she knew where the door was’ and that the claimant should have stepped in and cleaned the rooms. If the workload was excessive the claimant had to approach S or LR with a view to acquiring another employee to help out. The claimant was told to clean the rooms herself.
The claimant said that the hotel did not have linen porters and that staff had to drag the linen upstairs to the rooms.
During the summer months staff only had about a 10 mins lunch hour. She confided in staff members her concerns about the excessive workload.
Every time the claimant lodged her complaints with LR her response was ‘leave it with me, I’ll get back to you’. Her complaints continued to remain unresolved.
The grievance process was never pointed out to her and nobody went through the employee handbook with her.
Staff usually took turns to work weekends. She did not mind working weekends. After the claimant’s holidays she was rostered to work weekends on a continual basis. She never requested weekend work. This did not suit her. She spoke to LR about the matter. LR told her there was nothing she could do about it. During this time she was allotted other duties such as helping out in the kitchen and serving meals in the restaurant. BG asked her to clean windows both inside and outside. She cleaned the lower windows and the maintenance man cleaned the top windows.
She felt she was being pushed out and that the respondent did not want her working in the hotel as she was not cleaning bedrooms. She found it to be a very stressful time for her. Nobody cared about her. She felt she should not be expected to work under those conditions. She had nobody to guide her and nobody was listening to her complaints. She had no intention of leaving the hotel but her work became untenable. She applied for and was successful in obtaining a place on a Child Care Course. She rang BG on 16th September 2014 and handed in her notice. BG wished her luck. She tendered her resignation on 17th September 2014. She applied for numerous positions and was unsuccessful. She returned to college to up her skills. She secured employment in June 2016 to cover maternity leave and also employment for the period September 2016 to January 2017.
Respondent’s Case:
CC was General Manager of the hotel. The hotel has 90 bedrooms. Accommodation Supervisors meet their team each morning. They carry out ad hoc duties. They are given full control in the hotel. The hotel has an open door policy. CC had a good working relationship with the claimant. BG took over the General Manager role in early January 2013 when CC assumed a new role.
Employees attend an induction course shortly after commencement of their employment. The hotel’s induction course covers an overview of the hotel, fire safety, manual handling and food hygiene.
LG was HR Manager during the claimant’s tenure. She was based in the restaurant. She is now Operations Manager.
She met the claimant in the hotel on a daily basis and spoke to her once or twice a day.
Following the claimant’s return to work following back surgery in early July 2014 she together with BG had a return to work meeting with the claimant on 7th July 2014. It was agreed that the claimant would only perform light duties which included office work such as rosters and ordering, supervising the Accommodation Assistants and checking bedrooms only. There was agreement also that the claimant would clean public areas but not to do low down cleaning. The claimant was happy with this arrangement.
The witness explained about bedroom cleaning. A departure from a bedroom requires a full clean which can be up to 30 mins. Stay overs require about 15 mins cleaning. Five to six employees work a shift. Fifteen bedrooms could include departures and stay overs. The supervisor records the number of rooms cleaned in a diary. Supervisors have discretion to call a staff member in if the workload is excessive. Assistance was always available to the claimant. Working hours are recorded on time sheets which are completed on a Sunday evening and this information is forwarded to the payroll section.
The claimant had been placed on light duties in March 2013 following her absence from work for a short period. The claimant never made any complaint about her workload.
Following the claimant’s return to work on 7 July 2014 following back surgery both the witness and BG believed the best option for the claimant was to remain on light duties. At the conclusion of that meeting the witness asked to the claimant to come back to her if she had any issues.
No member of staff had ever been asked to clean windows. Hotel Linen is dropped off on each floor.
The claimant never raised any issues with LG prior to her resignation. The claimant had asked to be accommodated to work at weekends.
BG informed the witness of the claimant’s resignation.
BG assumed the role of General Manager in early 2013. He had a lot of interaction with the claimant and spoke to her on a daily basis. He walked the floor every day and met clients and staff. The claimant never raised any concerns with him.
During the meeting with the claimant on 7th June 2014 which took place in his office, he wanted to ensure that the claimant was looked after following her surgery and enquire if there was anything else he could do for her.
It was his belief that it was 9th September 2014 the claimant informed him that she was leaving and that she was accepted on a child care course. He was happy for her. He asked the claimant if she wanted to remain on the payroll and perhaps work during the summer months. The claimant declined that offer.
The claimant never raised any issues with him during her tenure.
Determination:
The Tribunal was faced with significant conflicts in the evidence given by the Parties and found there to be an absence of agreement and fundamental as to the actual date of termination and on other substantive issues between the Parties.
On the preliminary issue as to the effective date of resignation the Tribunal had two pieces of documentary evidence:-
- P45 which states 5th Sept., but is accepted by all as incorrect.
- Undated letter of resignation which references 17th September, 2014 and was received by the Employer.
There is then a complete conflict of evidence around the verbal communication of the resignation.
The principal witness for the Employer states that it was verbally communicated to him at a Meeting on the 9th September, 2014 when the Claimant advised that she had just got a course (Montessori). The indications, however, are that the Claimant wasn’t at work on the 9th September but on the 10th September.
The Claimant disputes any such meeting and references a call (Tel.) on 15th September, 2014. She was erroneous, however, in stating that she was so sure of the date because she booked the Course on Sunday 14th September after returning from a very difficult day at work. The Rota/Payslip evidenced that she did not work on the 14th September, 2104. A phone record, however, did indicate, a call to the workplace on him 15th September, 2014.
The Employer’s T2 and correspondence references 17th September, 2014 throughout.
As the Employer resiled from its initial position of accepting the 17th September as the termination date and alleged something different at the Tribunal, the question might arise as to where the onus then lies.
However, the Tribunal does not need to go there. The Contract of Employment is clear in providing that Notice of Termination must be given in writing to the Department Manager or General Manager. “All notices must be given in writing to the Department Manager or General Manager”.
On balance, the Tribunal believes that the Notice (though undated) was posted on 15th September 2014 giving the 17th September 2014 as the termination date reflecting an agreed waiver of the Notice Period by the Employer.
The Letter (Notice) of Registration was tendered referencing the 17th September 2014 as the termination date and this was accepted as a valid resignation by the Claimant. Accordingly, the Termination Date is 17th September 2014.
The evidential conflict continued around the substantive issue as to whether it was the Employer’s alleged failure to address issues around the Claimant’s physical injury to her back that led to her resignation. If so, the question for the Tribunal would be whether the decision to resign was a reasonable one.
As the Claim was one of Constructive Dismissal, the onus was on the Claimant to satisfy the Tribunal on the issue. It is the view of the Tribunal that the Claimant did not meet this onus. The Tribunal is satisfied that the Employer sought to accommodate the challenges faced by the Claimant from March 2013 onwards by confining her activities, in the main, to light duties and more so after she returned to the workplace in July, 2014 after a significant back operation. While the Employer might have monitored the position better than it did, the Tribunal is satisfied that it did not seek to disregard the best interests of the Claimant.
The Tribunal is satisfied on balance that the Claimant did not complain about the workload or the nature of the work she was undertaking to her Employer. It is significant that she did not cite either as grounds for tendering her resignation at the time. It is inconceivable to the Tribunal that she would have resigned without taking the opportunity of clarifying that she was doing so because her concerns were not being addressed if this were the case. Prior to her resignation she never formally complained nor availed of the Grievance Procedure.
The Tribunal is satisfied that the proximate and principal reason for the Claimant’s resignation was that she had the opportunity to pursue an alternative career and the Tribunal can find no basis for the suggestion that her Employer knew she was resigning for other reasons and specifically due to the alleged failure of her Employer to have due regard for her physical wellbeing.
The Tribunal dismisses the claim under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)