Complainant

Respondent

Parties

Iulia  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-00048779-001

23/02/2022

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

CA-00048779-002

23/02/2022

The complainant worked at Hilton Hotel from 9th of October 2017 until her dismissal on  1st of October 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 received an email on 22 June telling her that eh hotel was reopening and stating that it  hoped to bring staff back to work.

 The complainant submits that the respondent emailed her on 29th of June asking her to return to work on 5th of July. 

The complainant submits that she emailed the respondent stating that was attending a wedding in her home country on 10th of July 2021 and so would be there until 22nd of July .  The complainant in this email indicated that she would be unavailable for work until after this time.

The complainant submits that she received another email on 10th of August asking if she was back in Ireland.   The complainant submits that she could not return due to family problems.

The complainant submits that she received another email on a later date asking her to come back on the 30th of August and attaching a link to covid training and mask requirements.

The complainant submits that she replied stating that she cannot wear a mask but if she has to wear one the hotel takes responsibility if she gets any illness given that she has been paid to wear a mask.

The complainant submits that she cannot wear a mask as she is claustrophobic but has not been diagnosed.

The complainant submits that the respondent failed to refer her for a medical assessment.

The complainant submits that she was invited to  investigation and disciplinary hearings but did not attend and was dismissed on 1st of October 2021

The Complainant commenced employment in the position of a Housekeeping Assistant in the Housekeeping Department on 9th of October 2017.

The respondent submits that in March 2020 the Complainant was placed on temporary layoff due to COVID-19.

The respondent submits that on 2nd of  June 2021 the complainant was contacted about  returning to work.

The complainant did not reply to this correspondence.  The respondent attempted to contact the complainant by phone and emailed her again on 29th of June 2021 advising that they had been trying to contact her by phone but were unable to get a response and asking her to return to work on 5th of July.

The complainant replied stating that was attending a wedding in her home country on 10th of July 2021 and so would be there until 22nd of July .  The complainant in this email indicated that she would be unavailable for work until after this time.

The respondent again contacted the complainant on the 8th of August asking her to return to work as soon as possible and providing the link to mandatory online  COVID training.

The complainant had replied to the respondent on 9th of August raising concerns in respect of the obligation to wear a mask on her return to work and stating that she would need  a health  assessment risk evaluation If a mask was to be a mandatory requirement.   The complainant added that she had not worn a mask and was concerned about wearing one for 8 hours a day.

The respondent submits that by this time the complainant’s sister Manuela had also been asked to return to work and had objected to wearing a mask on her return for personal reasons.

The respondent replied on 9th August and proposed the 16th of August as the complainants return to work date and advised the complainant of the requirement to wear a suitable face covering in the workplace save in circumstances where an individual falls into any of the categories of exceptions set out by the HSE, the link to this document was included. 

The respondent in correspondence of the 9th of August stated that as the complainant had confirmed that she was not a high risk individual there was no requirement to refer her for assessment.    The respondent in this correspondence advised the complainant that failure to return to work or failure to wear a mask on her return would result in disciplinary action.

The complainant wrote to the respondent on 11th of August stating that she could not return on the 16th due to a family emergency.  The respondent replied with apologies for the news of the family emergency and asked when the complainant  would be returning to work.   The respondent wrote again on 16th of August asking for a return to work date.

The complainant replied on 17th of August saying that she will probably be able to return to work in two weeks.     The respondent replied on the same date  confirming the new start date as the 30th of August and stating that no further extensions would be granted.

The complainant replied to this on the 24th of August raising a number of issues stating that she feels really bad wearing a face mask and cannot wear one and further stating that she will not wear a facemask as she feels in distress.  

This matter was also raised by the complainant’s sister in her communications with the respondent.

The complainant did not return to work and the respondent invoked the disciplinary procedure.   The complainant was invited to an investigation meeting but did not attend.  The complainant was invited to two disciplinary hearings but did not attend.  The outcome of the disciplinary process was dismissal. The complainant was dismissed on 1st of October 2021. The complainant was offered the opportunity to appeal but she did not appeal.

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

CA-00048779-001

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 contacted about returning to work initially on 2nd of June  2021, but the complainant did not reply to this correspondence. 

The respondent stated that they had then attempted to contact the complainant by phone and emailed her again on 29th of June 2021 advising that they had been trying to contact her by phone but were unable to get a response and asking her to return to work on 5th of July.

The respondent advised the hearing that the Comp replied stating that was attending a wedding in her country on 10th of July 2021 and would be there until 22nd of July and indicated that she would be unavailable for work until after this time.

The respondent again contacted the complainant on the 8th of August asking her to return to work as soon as possible and providing the link to mandatory online  COVID training.

The respondent advised the hearing that by this time the complainants sister Manuela had also been asked to return to work, and she had indicated her objection to wearing a mask on her return to work which she stated was for personal reasons.    The respondent advised the hearing that the complainant’s sister had been referred to Medmark for Medical evaluation on 30th of July i.e. a few days prior to the complainant being invited back to work.   The respondent state that the complainant’s sister was assessed by Dr. W (MedMark) who concluded that she  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 respondent advised the hearing that the complainant had replied to their correspondence  on 9th of August raising concerns in respect of the obligation to wear a mask on her return to work and stating that she would need  a health  assessment risk evaluation If wearing a mask was to be a mandatory requirement.   The complainant in this correspondence  added that she had not worn a mask and was concerned about wearing one for 8 hours a day. The respondent in correspondence of the 9th of August stated that as the complainant had confirmed that she was not a high-risk individual there was no requirement to refer her for assessment.   

The respondent advised the hearing that they replied to the complainant advising her of the requirement to wear a suitable face covering in the workplace save in circumstances where an individual falls into any of the categories of exceptions set out by the HSE.   The respondent stated that the link to this document was included, and this correspondence also asked the complainant if she fell into any of the exceptions listed.  This email proposed the 16th of August as the complainant’s new return to work date.

 The respondent advised that the complainant did not specify that she fell into any of the mask exemptions listed in the HSE document which they sent to her.  The complainant at the hearing stated that she was claustrophobic but stated that it was never diagnosed and she could not provide any documentation or evidence in this regard.  The complainant when asked whether she had requested a letter from her GP in this regard stated that she did not have a GP.

The respondent emailed the complainant on 9th of August stating that it was mandatory to wear a mask in line with government guidelines and advising the complainant that failure to return to work or failure to wear a mask on her return would result in disciplinary action.

The respondent advised the hearing that the complainant wrote to the respondent on 11th of August stating that she could not return on the 16th due to a family emergency.  The respondent replied with apologies for the news of the family emergency and asked when the complainant  would be returning to work.   The respondent wrote again on 16th of August asking for a return-to-work date.

The complainant replied to this on 17th of August saying that she will probably be able to return to work in two weeks.  

The respondent advised the hearing that they replied on the same date  confirming the new start date as the 30th of August and stating that no further extensions would be granted.

The complainant replied to this on the 24th of August raising a number of issues stating that she feels really bad wearing a face mask and cannot wear one and further stating that she will not wear a facemask as she feels in distress.  

The respondent advised that this correspondence from the complainant also questions whether the hotel will accept   liability for potential accidents or illnesses caused to her by wearing a mask while working. 

This matter of liability for same was also raised by the complainant’s sister in her communications with the respondent.

The Respondent advised the hearing that following the communications of 24th of August 2021 in which the complainant indicated that she would not be wearing a face mask the respondent involved the disciplinary procedure and wrote to the complainant on 28th of August inviting her to an investigation meeting and advising her of the allegations against her and of the right to bring representation.

 The respondent outlined the allegations 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.   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 1st of September by Mr. M, but the complainant did not attend and did not provide any explanation for her non-attendance.    On 6th of September an invite issued to a rescheduled investigation meeting for the 7th of September.   Following this on 8th of September Mr. M issued his investigation report and outcome letter upholding the allegations against the complainant.   

On 14th of September the complainant was invited to a disciplinary meeting scheduled for the 20th of September and chaired by Mr. W (Executive Steward and Laundry manager).   The complainant did not attend, and no explanation was provided for her non-attendance. 

On 22 September the complainant was invited to a rescheduled disciplinary meeting scheduled for the 28th of September and chaired by Mr. W.   The outcome of this process was dismissal.   On 1 October Mr W  issued the disciplinary outcome letter noting that the complainant failed do attend the disciplinary meeting for the second time and so the meeting took place in her absence. 

The complainant was offered the opportunity to appeal but did not avail of the appeal process. 

The complainant at the hearing when asked why she did not attend the investigation or disciplinary meeting stated that she had seen what had happened to her sister and how she had been treated so there was no point.   The complainant at the hearing stated that her reasons for refusing to wear a mask was due to claustrophobia but that this has never been diagnosed.  The complainant did not offer or provide any medical evidence of same.

 In considering this matter I note that the respondent in this case had been corresponding with the complainant requesting her to return to work since June 2021.   I note that the complainant had submitted various reasons which prevented her from returning to work including attending a wedding in her own country which she stated would make her unavailable to return to work for most of the month of July.  I note that she was then invited back in mid-August but due to a family emergency was unable to return to work and so she herself proposed to return  at the end of August and once a date was agreed she was unable to do so due to her concerns about having to wear a mask while working.   I note also that the complainant had no medical diagnosis upon which she was relying to support her claim that she was unable to wear a mask.

 I note that the complainant was invited to an investigation and disciplinary meeting which she did not attend and her reason for doing so at the hearing was due to how her sister had been treated.   The complainant was thus given an opportunity to put forward any mitigating circumstances in these meetings and could at that stage have requested a medical assessment or could have provided a medical certificate advising of whatever the condition was which prevented her from wearing a mask.

I note the complainant in her evidence to the hearing stated that she was claustrophobic but that it has never been diagnosed.  When asked if she got a cert from her GP stating this the complainant stated that she does not have a GP.

I note that the complainant at the hearing stated that her reason for refusing to wear a mask was related to her own peace of mind.

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.

Witness for the respondent Ms. K at the hearing stated that no one liked wearing a mask but that it had to be done for the safety of others and added that other employees and guests wore masks as it was required.

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.

I note that the respondent in this case had been corresponding with the complainant requesting her to return to work since June 2021.   I note that the complainant had submitted various reasons which prevented her from returning to work including attending a wedding in her own country which she stated would make her unavailable to return to work for most of the month of July.  I note that she was then invited back in mid-August but due to a family emergency was unable to return to work and so she herself proposed to return  at the end of August and once a date was agreed she was unable to do so due to her concerns about having to wear a mask while working.   I note also that the complainant had no medical diagnosis upon which she was relying to support her claim that she was unable to wear a mask.

I note that the  complainant submits that the respondent should  have referred her for a medical assessment and pointed to the fact that her sister had been referred for a medical assessment by the respondent but she herself had not been so referred.  The complainant submitted that this was a flaw in the respondent procedures. 

While I note that the respondent in this case did not refer the complainant for medical assessment in order to ascertain whether there were any medical physical or mental reasons for her to be excluded from mask wearing.   While I note that this is a flaw in the respondent procedures I am satisfied that it is not a flaw which is fatal to the respondent’s defence of this claim bearing in mind all of the circumstances of the case.

I note that the complainant was invited to investigation and disciplinary meetings and that the meetings which she did not attend and provided no reason for her not attendance.  When asked at the hearing oof this matter why she did not attend she stated that her reason for not attending was due to how her sister had been treated.   The complainant was thus given an opportunity to put forward any mitigating circumstances at these meetings and could at that stage have requested a medical assessment or could have provided a medical certificate outlining a diagnosis or reason which prevented her from wearing a mask while working.

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 from 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-00048779-002

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.