ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00005644
A member of the banqueting team
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 15/11/2017
Workplace Relations Commission Adjudication Officer: Kevin Baneham
On the 28th October 2016, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Unfair Dismissals Act. The complainant was scheduled for adjudication on the 15th November 2017. The complainant attended the adjudication, accompanied by a family member. The General Manager attended for the respondent, which was represented by Peninsula Business Services. The report also refers to the Manager and Supervisor, who play a significant role in the evidence.
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The complainant started working for the respondent in a part-time role on the 7th April 2007. She asserts that between 2014 and 2016, follow her return from maternity leave, she was offered very few hours of work. She resigned and claims unfair dismissal. The respondent denies the claim.
Summary of Complainant’s Case:
The complainant started employment with the respondent in April 2007 and continued until the birth of her daughter on the 2nd January 2014. Her role had been as supervisor in banqueting, where she managed the staff in the function room. She ensured that they understood their roles on the night of a function or wedding. She worked between the restaurant and banqueting and did the room preparation from 12 noon until 10pm.
When the complainant returned from maternity leave, her old manager had left and she received a text from the new manager, giving her hours. The text related to hours for one day of work. She had written to the respondent to say she was returning from maternity leave. She received another message from the manager to give her another shift. The complainant said that her role had changed. Normally she would have written out the board to assign staff duties and tables. That did not happen and she was told by the new manager to do as she was told.
The complainant said that she did not receive any other texts from respondent. The practice had been to text available hours, for employees to agree or to turn down. There were no messages from the new manager after the 27th July 2014. She thought that there were no functions in the hotel. She rang after a couple of weeks and spoke to reception. They said she was not down on the roster. She had a meeting with the General Manager as she was a single parent and needed the money. This meeting did not go well and the General Manager said she needed to bring a written grievance. She was not given hours after the meeting. A senior person in banqueting texted her to say that everything had been sorted and to give her hours. She replied that she had to put a written grievance. This senior colleague never offered her specific hours.
The complainant said that she rang the respondent to see if she was on rosters. The General Manager said that she had been rostered but that she had failed to turn up for shifts. The complainant said that she would always turn up for work if she had been given hours. She was not texted with these hours. No one had contacted her with hours. The complainant said that she was a hard worker and needed the money. She was told that she had been rostered but had not attended work. The complainant found this hurtful. She said that she was not subject to any disciplinary process for not attending work. She was not told which days she had failed to attend for work.
The complainant said she emailed the General Manager to ask if she could meet him to air her grievance. At this meeting, the respondent took minutes, which were not supplied to her. She referred to other roles, for example accommodation assistant and receptionist. She had previous experience in both areas following work experience in the hotel. The General Manager said that she would have to interview for the accommodation role and that she did not have enough experience for the reception role. The complainant asked for her old role, i.e. the supervisor role, including organising staff. The General Manager told her that she was a waitress and nothing more. He said that he would speak with his accommodation manager regarding her application and would also speak with other managers. The complainant said that she heard nothing after three weeks. At this stage, she had telephoned the respondent many times for her rosters and had attended two meetings. The complainant asked for her P45 and said that she was no longer begging for her job. She said that she had done everything she was asked and now had to find alternative work.
The complainant said that the date of dismissal was the 11th October 2016. She found work in a supermarket in a part-time role, working between 20 – 25 hours per week. Her rate of pay is €10.35 and the role started in October 2016.
The complainant said that she was paid annual leave and public holiday pay during her maternity leave and had to ask for this. She had not been paid annual leave or public holiday pay since then. She could work for the respondent between 10 to 16 or 17 hours per week, depending if she was assigned to set up a function. As supervisor, she was more likely to be allocated set-up hours.
The complainant said that she had tried everything to get back into work. She should have been able to continue with her hours. She loved working in the hotel and had a good group of friends there. She knew the customers, especially from their attending functions. The complainant said that she was a loyal worker who worked during her maternity leave. She had to beg for hours and it was not acceptable that she be treated in this way after her return. She had to raise issues with the General Manager and he never got back to her.
In cross-examination, the complainant said that she had a letter on her phone which stated that her role was supervisor. It was put to the complainant that she had not been a supervisor but was a member of the waiting staff; she replied that she had three pieces of headed paper to say that she was a supervisor. The complainant said that she had never failed to respond to text messages. It was put to the complainant that she had been texted about coming to work on a function following a funeral; she replied that this was too short notice as she had a young baby. It was put to the complainant that some of the work is at short notice; she replied that this was rare. She said that it had always been her role to draw up duties for staff. She said that it was not true that she did this at the instruction of management. She said that three members of staff had met her in the supermarket to say she had not showed up for work. She said that it was the respondent’s duty to give her hours and not for the complainant to chase the respondent. The complainant did not call the respondent between July 2014 and April 2015 as the General Manager had told her to get out. She did not feel wanted. It was put to the complainant that there was an obligation on the employee to check the roster; she said that she had gone to the manager about the rosters. She did not know why she did not present rosters to the General Manager showing that she had no hours.
The complainant was asked whether she accepted that teams changed over time; she agreed and said that the team had changed during her maternity leave. She further said that there had been the same good team until 2011. She did not like the way the General Manager treated people. She said that she did not want to be supervised by 16-year old staff members and she had followed the instructions of a 17-year old even though this person had not understood her duties. The complainant accepted that April 2015 was the date of the first meeting. It was put to the complainant that she first made a complaint in April 2015; she replied that at the time she did not feel that there were grievances and went to speak with the General Manager, who told her to formally raise a grievance. She should have been given her hours. The complainant said that she had a lot going on but the respondent did not text her with hours. The respondent had not followed up with her to say that she had missed a shift. The complainant was asked whether getting her hours for work was a priority; she agreed that it was a priority. The complainant was referred to shifts on a spreadsheet that she was absent; she replied that no one had said to her at any time that she had missed shifts.
The complainant said that she did not submit a written grievance and aired them in person. She attended the meeting where minutes were taken. The complainant was asked why she had not done anything between the two meetings; she replied that she had a lot going on. She kept ringing the respondent and the hours were not texted to her. The complainant was asked why she had not checked in with reception; she replied that two colleagues texted them their hours and the rosters were not kept behind reception. The new manager was now the manager of the department and the complainant had also contacted the General Manager many times. The complainant agreed that she had been in touch with the senior colleague regarding her availability and said that she did not follow up with her. She then contacted the General Manager and rang up the respondent afterwards, but she was not given hours. At the second meeting, the complainant was offered more hours and waited for the accommodation manager came back to her. She was not offered specific hours or rosters. The manager had said he would give her a roster in advance for a month, but this did not happen. She accepted that she had not forwarded to the General Manager the letters which showed that she had a supervisory role. She also accepted that the General Manager told her not to resign. She said that she started in new job on the 7th October 2016 and was paid €10.35 per hour.
The complainant said that she was very upset that she was being accused of not showing up for work. If one person did not attend for work, this would put everyone else under pressure. If she was ever sick, she would phone the respondent in advance.
In reply to the respondent, the complainant said that she should have been given a disciplinary warning if she had not attended work. She should have been approached if she had not shown up on three or four occasions. It was wrong that the onus was being placed on her to check up with the respondent regarding her hours. Staff had been texted in the past with their hours and there was nothing to say that these procedures had changed. She had contacted the General Manager regarding her hours and did everything she could to raise this issue. She could not wait forever and had to find alternative employment. In respect of losses she incurred, the complainant referred to a loss of income between 2015 and 2016. There may have been a gap up to April 2015 but this was not all down to her.
Summary of Respondent’s Case:
The respondent submitted that as this is a claim of constructive dismissal, the complainant bears the onus of proving her claim. Referring to Conway v Ulster Bank Ltd (UD 474/1981), the complainant had to substantially utilise the grievance procedure and in this case, she was asked to submit a written grievance. It is submitted that the complainant’s role remained open and she was encouraged to deal with her grievances. The respondent had acted reasonably, while the conduct of the complainant was not reasonable. The complainant had not attended for shifts and was asked to re-consider decision to resign. The respondent also submits that the complainant has not incurred financial loss arising from the dismissal.
The General Manager outlined that he started in the role in April 2013. The complainant worked for the respondent and later went on maternity leave. She returned to work in July 2014 and her job was available on her return. The complainant’s role was that of waitress in banqueting. There was nothing on file to show that she was a supervisor and such a supervisor would not be a part-time worker on 10 to 15 hours per week. The General Manager commented that he had been a waiter and worked his way up through the system. He would not, therefore, refer to waiting staff in a derogatory way. There had been hours available and offered to the complainant. Hours had been texted to staff in advance. He required costed rosters so they had to be given in advance. The General Manager also required rosters to be posted in the front office, for health and safety reasons. Rosters were posted on a notice board and available for all to see in advance. Staff would communicate amongst themselves and it was not the case that a manager would text to offer hours. The complainant was formally advised of this. The manager had told him that all staff were made aware of this and this was also communicated to the complainant.
The General Manager said that complainant worked twice in July 2014 and did not take up other hours. The supervisor had commented that the complainant was unreliable. The General Manager stated that he never instigated disciplinary action against the complainant, having received this report. He said that he was surprised by the number of absences.
The General Manager did not recall the complainant specifically saying what the meeting of the April 2015 was about. At the meeting, she raised her hours and her unhappiness at how she was being treated by him and the manager. When it started to sound like a grievance, the General Manager said that the complainant should put this in writing. The General Manager said that he wanted this to be witnessed and minuted. His immediate instruction to the supervisor was to give the complainant hours. The supervisor then contacted the complainant and told her there were hours available. He emailed the complainant with the respondent grievance procedure and never received her written grievance.
In respect of the grievance meeting of the 22nd September 2016, the General Manager said that the complainant had contacted the respondent to say she wanted her p45. He had not known that she was not getting hours and the respondent had nothing on file regarding her airing her grievance. He asked the complainant for a written grievance. At the meeting, he met and listened to the complainant. She referred to being managed by a 17-year old, but he said that this staff member was 21 and had customer care skills. The complainant asked about a receptionist role but this required experience in particular software and answering customer calls. It was also a highly stressful role. In respect of the accommodation role, the General Manager said that the accommodation manager was then on sick leave and this is why the complainant was not interviewed. The respondent replaced this manager by promoting from within. The respondent was moving to a quieter time of year so did not need to immediately replace the manager. The complainant had also said that she did not want to start at the bottom again. The General Manager said that he felt this was an opportunity for the complainant as there was a team who worked well together. He thought that following the meeting the complainant was aware that there were hours available in banqueting and that she would meet the accommodation manager on the manager’s return from sick leave. The General Manager told the complainant at the meeting that there were hours available for her.
The General Manager said that the complainant’s request for the P45 was made when she found another role. The respondent had not wanted her to leave and asked her to stay on. He asked her to stay on and that she would be rostered on the next wedding. He understood that she now had another job.
In cross-examination, it was put to the General Manager that he had said that hours were available for the complainant, but no rosters had been supplied to her; he replied that the complainant had understood that there were hours available and she should have liaised with her line manager. It was put to the General Manager that the complainant was not offered any hours; he replied that it was his feeling that the complainant did not want to work for the respondent. It was put to the General Manager that the complainant was happy enough to go back to banqueting; he replied that he understood that it would be easier for the complainant to be back in the building doing another role and to also do additional banqueting hours. He had not instructed that she be given additional hours in this three-week period as he was waiting for his accommodation manager.
It was put to the General Manager that the manager had not told the complainant that the manner of communicating hours had changed, but had texted her with hours in July 2014; he replied that she had phoned reception for hours and they were posted at reception. It was put to the General Manager that the manager had texted her for two days of hours.
In closing comments, the respondent maintained that the complainant was asked to submit a grievance and she did not do so. The complainant failed to check rosters regarding her hours. She had not attended shifts assigned to her. She had not fully utilised the grievance procedure and instead resigned. She engaged in a grievance process in September 2016 and asked to reconsider her resignation. Her date of dismissal was the 11th October 2016 and found new employment. She was now on more pay and worked more hours. Even if this amounted to a constructive dismissal, the complainant did not suffer financial loss and the maximum she could recover is four weeks.
Findings and Conclusions:
The first issue to address is the date of dismissal. The complaint form states this as the 29th July 2016, the date the complainant first emailed the respondent looking for her P45. At the adjudication, the complainant asserted that the 11th October 2016 was the date of dismissal. This is the date the complainant sent another email to the respondent looking for her P45.
In the context of a discriminatory dismissal claim, the Labour Court in Millett v Shinkwin  E.L.R. 319 held:
“A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation. Where adequate notice is given, the contract is generally terminated in accordance with its terms and since there is no repudiation the acceptance of the resignation by the employer is not required in order to determine the contract.
There is, however, a significant body of authority for the proposition that there are exceptions to this general rule and that there are occasions in which an apparently unconditional and unambiguous resignation may be vitiated by the circumstances in which it is proffered.”
In this case, the complainant indicated her intention to resign in July 2016 and then participated in a grievance process in circumstances where the respondent had undertaken to assign her hours. The complainant’s participation in grievance process and her wish to obtain hours and an alternative role indicate that she did not then intend to end the employment relationship. It is clear from the email of the 11th October 2016 that she then wished to definitively end the employment relationship.
There were several significant conflicts in evidence between the parties. The first is whether the complainant failed to attend for rostered shifts. A second is whether the respondent altered how it allocated shifts to banqueting staff and whether the complainant was informed of this change. There was also conflict whether the manager had made unanswered phone calls to the complainant.
During the adjudication, I asked the witness for the respondent for the dates of the shifts the complainant had been absent for following the end of her maternity leave. He referred to dates set out in the clocking report and assigned a specific code. There were 13 occasions which post-date the complainant’s maternity leave. According to the respondent’s explanation, these were the occasions the complainant failed to attend work when rostered to do so. I note that apart from the email of the 2nd August 2016 and the evidence at the adjudication, there was no other evidence to corroborate the respondent’s position. In her reply of the 11th August 2016, the complainant asks for evidence of phone calls or texts telling her of rostered hours. I note that the respondent did not reply to this question and offered no such evidence.
From reviewing this documentation, there were 56 further occasions between the 16th September 2012 and the 17th July 2015 where complainant is assigned this code. The documentation also shows that the complainant worked 66 shifts in this time. It seems extraordinary that an employee would not show up for rostered work almost as often as she attended work. It is striking that the complainant was not subject to any adverse comment from the respondent, nor subject to any disciplinary proceeding for absences over the course of three years.
I further note that two of the coded dates immediately preceded the end of the complainant’s maternity leave (30th June and 1st July 2014). The complainant only worked two shifts for the respondent after the end of her maternity leave. These hours were communicated to the complainant in texts from the manager. It is striking that there is no reference in these messages to the complainant not showing up for work in the recent past. Instead, these are casual, friendly messages exchanged between the 11th and 21st July 2014.
In respect of the second conflict, I note that the only hours the complainant worked were offered to her by text. There was no evidence of how and when staff, including the complainant, were informed of any change in process. There was no direct evidence from the manager regarding his efforts to contact the complainant.
Taking these findings together, I resolve the conflicts in evidence in the complainant’s favour. I find that the respondent is not correct in its submission that the complainant failed to attend work when informed of rostered hours. I find that the complainant was not informed of any change in the process of offering hours. I find that the manager did not make telephone calls to the complainant to offer her hours. I find that the complainant was only offered a small number of hours, as stated in her evidence.
It is well established that an employee is entitled to assert that they were constructively dismissed where they can show that the employer has repudiated the contract of employment to such an extent that they no longer intend to be bound by it. An employee can also succeed on the second, reasonableness ground, where they can show that an employee could not be expected to continue in the employment relationship.
At the centre of the employment relationship is the work-wage bargain that encompasses mutuality of obligation. The respondent’s contractual obligation was to offer the complainant, a part-time waitress, hours of up to 39 hours per week. After the return from maternity leave, the complainant repeatedly asked for hours and three shifts were offered to her. The respondent referred to making additional hours available to the complainant and I have found as fact that this did not take place. The failure of the respondent to offer the complainant hours of work amounts to repudiation of her contract of employment and indicates that the respondent did not intend to be bound by it.
The respondent places weight on the failure of the complainant to provide a written grievance and to follow the formal process in line with their procedures (per the email of the 20th August 2016). This stance is not in keeping with the respondent’s grievance policy, which sets out that grievances can be raised both formally and informally, and it is the employee who may “wish” to formally record their grievance. The policy also envisages that grievances may be raised verbally or in writing. In any event, the complainant was clear in her emails and her meetings with the respondent what her issues were. This is a case where the employee very substantially utilised the grievance procedure.
It follows from these findings that the complaint of unfair dismissal is well founded. In assessing redress, I note that the complainant secured alternative employment in a named retailer. This is a part-time role where she works 20 to 25 hours a week. In assessing loss, I note that the complainant could have continued working functions in the respondent hotel while working part-time for the retailer. This is particularly the case given the complainant’s great experience in banqueting, having started with the respondent in 2007. Taking these factors together, I award the complainant redress of €2,500.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I find that the complaint made pursuant to the Unfair Dismissals Act is well founded and for the reasons set out in this Decision, I award redress of €2,500, to be paid by the respondent to the complainant.
Dated: 26th April 2018
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Unfair Dismissals Act
Return from maternity leave
Date of dismissal
Mutuality of obligation / work-wage bargain