Complainant

Respondent

Parties

Manuela  Todosi

Charlemont Leisure Investments Limited Hilton Hotel

Complainant

Respondent

Anonymised Parties

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Representatives

Marius Marosan Marius Marosan

Peter Gilfedder IBEC

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-00048778-001

23/02/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00048778-002

23/02/2022

The complainant worked at Hilton Hotel from 25th of September 2017 until her dismissal on 27th of August 2021.

The  complainant submits that she was unfairly dismissed after she refused to wear a facemask when returning to work after the COVID lockdown and period of lay off.    The respondent submits that the dismissal was fair citing the complainant’s refusal to follow company guidelines in respect of COVID guidelines  as gross misconduct.

The complainant submits that she was unfairly dismissed from her employment after she refused to wear a facemask on her return to work as  a Housekeeping Assistant following the COVID lockdown and temporary layoff period.

The complainant submits that she was referred for medical assessment to Medmark and that the outcome was that there was no physical or mental reason preventing her from wearing a face mask to work.

The complainant disputes the Medmark  doctor’s conclusions submitting that the assessment was carried out based on a 50-minute interaction and not while she was carrying out her work and over an 8-hour period.

The complainant questioned whether the wearing of a  facemasks/visor was approved  for her specific work situation and asked whether the respondent’s insurers could guarantee her safety and well-being after a prolonged use of face mask.

The complainant questioned the medical science  behind the obligation to wear a facemask and its ability to prevent the spread of COVID.

The complainant submits that she is uncomfortable wearing a mask and that it causes her to feel dizzy and experience a pain across her nose.

The complainant raised an issue regarding who would be liable in the case of sickness/disease('s) that could (manifest) be caused by her wearing a face cover/mask/visor and what the hotels insurance policy was in that regard.

The Complainant commenced employment in the position of a Housekeeping Assistant in the Housekeeping Department on 25 September 2017

The respondent submits that in March 2021 the Complainant was placed on temporary layoff due to COVID-19.

In June 2021 the complainant was contacted about  returning to work with the requirement to wear a face mask per company  guidelines and HSE recommendations. The  Complainant refused to wear a mask, citing ‘personal reasons’ and was referred by the respondent  for Medical assessment to ascertain whether there were any physical or mental health reasons to preclude her from wearing a mask.

On 30th  of June the complainant was assessed by Dr. W (MedMark) who concluded that the complainant had no medical reason preventing mask use as there was no physical/mental health diagnosis that would preclude her from wearing one,  Dr. W added that the refusal to wear a mask posed risk a to others.

The Medmark report stated that the Complainant wore a mask during the 50-minute appointment without difficulty and that she had admitted to wearing masks for shopping or for entry to premises.

On 4th of August 4, 2021, the complainant was Invited back to work on the condition that she must wear a mask and  complete the return-to-work form.

The Complainant in response requested the insurance details of Medmark and the respondent and referred to liability for any potential repercussions she might encounter  due to mask wearing and stated that she would not work under these conditions.

The Respondent reiterated the requirements for returning to work, but the complainant insisted that she would not wear a mask.   The Respondent instructed her not to attend without a mask for safety reasons.    The complainant did not return to work and on 8th of August was invited to investigation meeting (held August 12).

On 16th of August the  Investigation outcome upheld the allegations and the  matter moved to disciplinary stage.

 A disciplinary meeting was held on 26th of August with the  outcome on 27th of  August.   The outcome was  a decision to dismiss.   The Complainant appealed and the appeal hearing was scheduled for 9th of September, but the complainant  did not attend.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00048778-001

23/02/2022

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

4)     Without prejudice to the generality of subsection (1) of this section the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a)   the capability, competence or qualification of the employee for performing work of the kind which he was employed by the employer to do,

(b)   the conduct of the employee,

(c)    the redundancy of the employee, and

(d)   the employee being unable to work or continue to work in the position he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Section 6(6) of the Act states as follows:

In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.

Section 7 of the Act, in relevant part, makes provision as follows:

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismi7ssal, regard may be had….

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal

The combined effect of the above sections of the Act requires me to consider if the Respondent’s decision to dismiss the Complainant was reasonable in the circumstances and if it was both substantively and procedurally fair. 

In terms of the substantive aspect, it is well established case law that it is the role of the Adjudication Officer to consider the reasonableness of the Respondent’s decision in the circumstances and not to establish the guilt or innocence of the Complainant in relation to the allegations presented. This is helpfully set out by the Employment Appeals Tribunal (EAT) in the case of Looney and Co Ltd v Looney UD 843/1984:

“It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer.  Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged.”

The function of the Adjudication Officer is therefore to assess what a reasonable employer in the Respondent’s position and circumstances might have done and this is the standard by which the Respondent’s actions must be judged against. 

The respondent advised the hearing that the complainant was dismissed from her employment on the grounds of serious/gross misconduct because of her refusal to wear a face mask when returning to work following the COVID national lockdown period, during the covid pandemic.  

The respondent advised the hearing that the complainant had been on temporary layoff from work from March 2020 during the COVID pandemic national lockdown period.

The respondent advised the hearing that the complainant was asked to return to work on 29th of June 2021 and was advised of the requirement to wear a mask in accordance with the company guidelines and HSE recommendations. 

The respondent stated that the complainant replied raising a number of questions in respect of face masks and the requirement to wear one.

The respondent advised the hearing that the complainant was then referred by then for a medical assessment in order to ascertain whether there was a genuine medical reason for her refusal to wear a mask.     The medical assessment took place on  30 July 2021 with Dr W of MedMark.

Following the complainants assessment  Dr W issued a report which stated the following - that the Complainant had worn a face mask for the 50 minute appointment and did not experience any difficulty • The Complainant had admitted to wearing facemasks for shopping etc • There was no medical reason why the Complainant could not wear a facemask at work • The Complainants refusal to wear a facemask would leave colleagues and guests at risk of contracting Covid-19.  

The respondent advised the hearing that on 4 August 2021, HR manager Ms G again invited the Complainant to return to work.   In her email Ms. G  noted that the Medmark report had stated that “there were no disclosures of physical conditions which would preclude mask-wearing or of any history of mental health diagnoses or medical input required for the latter over Ms Todosi’s lifetime”.

 The respondent stated that the Complainant was advised that she would be expected to return to work on 7 August and that she  must wear a face mask while at work and complete the return-to-work form which was mandatory for returning to work after lockdown.

 The respondent advised the hearing that the Complainant responded to this requesting the contact details for both the Respondents insurance company and Medmark’ s insurance company asking who was liable for any sickness or disease she might incur due to the wearing of a facemask/visor, the complainant stated  “Until I have written confirmation from the insurance provider that they accept the liability I won’t be able to work on this conditions” .

The respondent advised the hearing that they replied to the complainant on  5 August 2021, stating that she would need to contact Medmark herself about their insurance cover as this was an external source and reminding the Complainant about the process for returning to work the following Saturday and the requirement to wear a mask given that she did not have any medical reason for not wearing one.

 The respondent advised the hearing that the Complainant replied that she would be coming into work without a face mask to which  Ms G replied stating “As you have decided that you are not going to be wearing a mask on Saturday and are not following company guidelines set out, we would ask you not to arrive to the hotel for the safety of your colleagues and guests”.

 The Complainant responded to this and stated that this was discrimination, and she would be submitting a claim to the WRC .

The respondent advised the hearing that following her refusal to comply with the company’s instructions to complete the return to work form and  wear a mask on her return to work  the respondent initiated disciplinary proceedings against the complainant and she was  invited to attend an investigation meeting on 8th of August 2021.     The allegations were as follows: • Refusal to engage in following Public Health Guidelines and Hotel Policy and wear a face mask for work  • Making yourself unavailable for work due to failure to follow Covid PPE policies on Saturday 7 August 2021.   Attached to the invite were all relevant policies and procedures, along with the terms of reference.

The respondent advised the hearing that the  investigation meeting was held on 12 August 2021 and chaired by Mr. M (Group Finance Manager) with  Ms. D (Group HR) attending as note taker.

The respondent advised the hearing that an investigation report and an outcome letter were issued on 18th of August upholding the allegation and a disciplinary meeting was held on   26th of August via Microsoft Teams .     On 27 August 2021, the disciplinary chair Ms K issued an outcome letter which stated  that the Complainant had been dismissed.   The letter advised the Complainant of her right to appeal the decision.    Ms. K advised the hearing that she had asked the complainant if she was aware of the policy and guidelines regarding the wearing of face masks to which the complainant had replied ‘Yes’.  Ms. K stated that she had then asked the complainant why she had difficulty wearing a mask and that the complainant responded saying that she gets distressed.   Ms. K stated that the complainant then disputed whether the policy was a policy of the hotel Group or the Hotel in which the complainant worked.   Ms. K stated that she then clarified that the hotel was owned by the MHL group.  Ms. K advised the hearing that it was not just staff who were required to wear masks in the hotel for the safety of staff and guests but that guests were also required to wear masks.   Ms. K stated that the complainant refused to wear a mask.    The complainant’s rep asked Ms. K whether she took account of the complainant’s submission that wearing a mask at home had made her feel dizzy.  Ms. K replied that the complainant had been referred to a doctor who had advised the respondent that there was no medical reason relating to the complainants physical or mental health which would preclude her from wearing a mask at work.   Ms. K added that it was not for her to second guess the opinion provided by the Medmark doctor.     Ms. K added that the complainant had refused to wear a mask due to her personal beliefs. 

The complainant appealed the outcome, and an  appeal hearing was scheduled for 7 September 2021.

The Complainant responded to the appeal invite citing concerns about representation and informed Mr S that she would be recording the meeting.   Mr S responded and informed the Complainant that she could not record the meeting, but that he could reschedule the meeting to a time which suited the Complainant and where she could arrange to be accompanied by a colleague.  

The Complainant responded stating that she would have no issue participating in the meeting and reconfirmed that she would record the meeting.

 Later that same day, Mr S sent a new teams invite for the appeal hearing. This was scheduled for 9 September 2021.    The Complainant did not show for the appeal hearing.

The respondent advised the hearing that the complainant was dismissed for failure to follow company guidelines in respect of wearing a face mask at work.  In making the decision to dismiss the respondent advised the hearing that it took into account medical evidence in the form of  the report from Dr. W of Medmark who concluded after a 50 minute assessment of the complainant that there was no physical or mental health reason to preclude her from wearing a mask. 

The complainant at the hearing argued that it would be detrimental to her health to have to wear a mask while at work.   In advancing her argument she stated that the Medmark doctor in her assessment chatted with her for about 50 minutes before concluding that it would not be detrimental to the complainant’s health to wear a face covering for 8 hours per day 5 days per week.

The complainant stated that the doctor did not  take her pulse  or listen to her  lungs and yet concluded that the complainant would have no repercussions from the mask wearing.

The complainant stated that the doctor told her that  masks are safe and approved and are proven to protect from infecting or transmission of COVID.  The complainant disputed this and questioned the scientific basis for mask wearing as a preventative measure in the spread of COVID.

The complainant advised the hearing that the Medmark doctor recommended that she wear a mask  at home gradually doing some work so as to become accustomed  to mask wearing while working.  The complainant state that she tried this, but it was uncomfortable and caused her to feel dizzy and caused a pain in her nose.

The complainant also advised the hearing that the Medmark doctor had asked her if she intended to get vaccinated to which the complainant replied to No.  The complainant at the hearing stated that she failed to see the relevance of this question.

The complainant advised the hearing that she had asked for the hotel's and the doctors s insurance providers details stating that she required these details in order to give them notice of liability regarding this as she submits that it would have caused her harm to have to wear a mask every day to work.

The complainant in this correspondence with the respondent added that until she had  written confirmation from the insurance provider that they accepted the liability for any illness disease suffered by her as a consequence of wearing a mask she would not be able to work on this condition.

In considering this matter I note that the  complainant also questioned the effectiveness of masks in preventing the transmission of COVID and questioned whether the masks provided by the respondent were appropriate and medically approved.

I note that the complainant in  correspondence sent to the respondent  submitted that there was no proof that masks or social distancing works and also that there was ‘no proof that virus exists’.   The complainant in her correspondence also submitted that ‘PPE is useless and may be dangerous to health’ . 

I also note that the complainant at the hearing stated that she could have worn a visor instead of a facemask but acknowledged that she may not have indicated this to the respondent at the time of the investigation or disciplinary meeting. 

In considering this point I am mindful that the complainant in her communications with the respondent requested the insurer details of the respondent and those of Medmark referring to the possibility of sickness/disease('s) that could (manifest) be caused by wearing a face cover/mask/visor and she asked the respondent ‘what or who  is liable and what are the hotels insurance policy terms on that’.  

I note that the complainant in raising this issue includes visors as a potential cause of sickness to her as well as face masks which calls into question the complainant’s statement at the hearing that she would have been willing to wear a visor instead of a mask.  I also note that the respondent had replied to the complainant stating that it was following all advice from the HSE and government bodies with regards to wearing a face covering and how to do so and adding that ‘during this global pandemic, masks are being worn not only in Ireland but worldwide’.

I note also that the complainant queried whether any risk assessment had been done by any medical professionals to assess the risks associated with wearing face masks and asked whether the ‘(face cover/mask/visor) were approved for her specific situation and whether the was  any approved body that could guarantee her safe and well-being for and after a prolonged use.

The respondent in this case at the outset referred the complainant for a medical assessment the outcome of which reported that there was no physical or mental impairment which would prevent the complainant from wearing a face mask.    I note that the  complainant in this case did not attend the appeal hearing to appeal her dismissal.

While I note that the complainant initially stated that her reason for not wearing a mask was due to health concerns it is clear from the evidence adduced that the complainant does not fall into the category of an individual whom due to a diagnosed disability cannot wear a mask but that her concerns stem from a view taken by the complainant that wearing a mask could potentially cause her harm as well as other views she  expressed regarding the effectiveness of or need for masks.

I also note that after assessing the complainant, Dr W described the ramifications of not wearing a mask stating:

“Since Ms Todosi  has such strong views against wearing a mask and would be working alone in hotel guest-rooms when undertaking strenuous physical activities which would increase the rate of her breathing and its depth, this would increase the risk of transmission within the room should she ever, unfortunately, be incubating COVID 19 at the time and have decided to remove her mask. She is adamant in her views, describing them as based on international medical evidence.”

I note that the respondent in its defence states that that the Complainant’s intransigence and her unwillingness to attend work while wearing a mask, presented a scenario that the Respondent could not countenance adding that they had a responsibility to ensure the health and safety of staff, guests, and suppliers alike and it would have been irresponsible of them to allow the complainant to attend work without wearing a face mask.

In considering this matter I have given some weighting to the crisis of the covid 19 pandemic in my consideration of the facts and circumstances of this case. 

From the evidence given at the hearing it is clear that the respondent acted in accordance with the prevailing medical advice regarding the wearing of facemasks in the context of the COVID epidemic. 

I note that the  Respondent adhered to HSE guidelines and its own health and safety policies regarding the prevention and spread of COVID and to reduce and mitigate risk arising from it.

I note that the complainant in the investigation meeting expressed concerns about the possibility of fainting at work due to wearing a mask and that the respondent in response offered to provide her with a panic button for work in case she encountered any difficulties.  I also note that the respondent asked if the complainant would be willing to consider trying to wear a mask for a couple of hours while at work to which she replied that she could consider it but then in later communications she refused to wear a mask while working stating that she had tried it at home.   Ms. K at the hearing stated that no one liked wearing a mask but that it had to be done and added that other employees and guests wore masks as it was required.

I also note that prior to the appeal hearing the complainant stated that she would be recording the meeting and despite being told by the respondent that recording of the meeting was not permitted the complainant again replied stating that she would record the meeting.   The complainant when asked why she did not attend the appeal hearing stated that she had hoped to get a legal representative to attend the appeal hearing with her but that she received an email the day before stating that no legal rep was available to go with her.  The complainant agreed that she was aware that she could be accompanied to the appeal hearing.

Having heard and considered the evidence adduced and having regard to all of the circumstances including the prevailing  threat of COVID which existed at the time, I am satisfied that the complainant’s dismissal was reasonable and substantively fair.

In considering this matter, I must also examine whether the dismissal was procedurally fair and in considering this I note firstly that the Complainant was referred for a medical assessment in order to ascertain whether there was a genuine physical or mental impairment which would preclude her from wearing a mask while working.  I note that following the doctor’s conclusion that here was no impairment which would prevent her wearing a mask the complainant was afforded an opportunity to reconsider and return to work but again she refused to wear a face mask and so the disciplinary process was invoked.   I note that the process involved an investigation of the allegations made against her and  that she was given the opportunity to respond to the findings of the investigation during the disciplinary hearing, and that she was given a right to appeal the dismissal.

I am satisfied form the evidence adduced and having taken into account all of the circumstances which existed at the time, that the dismissal was reasonable and that it was both substantively and procedurally fair.    Accordingly, I find that the Complainant was not unfairly dismissed, and I declare this claim to be not well founded.

I find that the Complainant was not unfairly dismissed for the reasons set out above and I declare this claim to be not well founded.

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00048778-002

23/02/2022

The Complainant submits that she was not provided with any notice nor with any payment in lieu of notice in accordance with her statutory rights under the Minimum Notice and Terms of Employment Act 1973.     Section 4 of the Act sets out the relevant minimum statutory notice.

Section 8 sets out that: “Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.”

The Respondent contends that this instance was one of serious misconduct and therefore, the Complainant was not entitled to minimum notice or payment in lieu thereof.

I note that precedence from the WRC and Labour Court have consistently found that a Complainant will not be entitled to minimum notice should they be dismissed for gross misconduct and the dismissal is deemed as a not unfair dismissal.

As I have found that the dismissal of the Complainant for gross misconduct in the circumstances was not unfair I am satisfied that  the Respondent was entitled to rely on Section 8 of the Minimum Notice and Terms of Employment Act 1973-2005 and terminate the contract of employment without notice.

Accordingly, I declare this claim to be not well founded.

I declare this claim to be not well founded.