Complainant

Respondent

Parties

Zofia  Baldowska

Sligo City Hotel Limited

Representatives

Mr. Jacek Krawczyk

Mr. Declan Thomas, IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00054142-001

14/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00054142-002

14/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00054142-003

14/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00054142-004

14/12/2022

The Complainant commenced employment with the Respondent on 26th March 2009. The Complainant was a permanent, full-time member of staff, in receipt of an average weekly payment of €420.00. At all relevant times, the Complainant’s role was described as that of “accommodation assistant”. The Complainant’s employment terminated towards the end of 2022, with the nature and date of termination being in dispute between the parties.

On 14th December 2022, the Complainant referred the present set of complaints to the Commission. Herein, she alleged that she was due a redundancy payment on foot of the Respondent’s continual failure to provide work in accordance with the terms of her contract. In the alternative, and without prejudice to the foregoing, the Complainant submitted that given the unreasonable behavior of the Respondent, she was obliged to terminate her contract and consider herself to be constructively dismissed. The Complainant further alleged that the Respondent failed to discharge the statutory sums owed to her on the termination of her employment and that they had illegally deducted wages in the course of her employment. In denying these allegations, the Respondent submitted that the Complainant remained on long-term lay-off due to the restrictions arising from the Covid-19 pandemic, and the commercial difficulties experienced by the Respondent in the aftermath. They denied that the Complainant was entitled to a statutory redundancy payment and denied that the Complainant had been constructively dismissed. Finally, they submitted that the Complainant had received all wages due and owning to her during her employment.

Following a series of adjournments, a hearing in relation to this matter was convened for, and finalised on, 16th July 2024. This hearing was held in person at the Commission’s Sligo offices.

Both parties issued extensive submissions in advance of the hearing. These submissions were expanded upon and contested in the course of the hearing. The Complainant and her son gave evidence in support of her complaints, while a director of the Respondent and a HR Manager gave evidence in defense.

At the outset of the hearing, the representative for the Complainant confirmed that the first matter to be considered was the complaint under the Redundancy Payments Acts. In the event that this complaint was to be unsuccessful, he submitted that the termination of the employment could be considered as a constructive dismissal. A preliminary issue as to jurisdiction was raised in relation to the complaint under the Payment of Wages Act. Given the nature of the same, this will be considered following a summary of the substantive evidence.

By submission, the Complainant stated that she commenced employment with the Respondent in 2009. She stated that she worked for the Respondent for a period of over 14 years in various cleaning and housekeeping positions.

On foot of the restrictions arising from the Covid-19 pandemic, the Complainant was played on lay-off in March 2020. In August 2020, the Complainant declined to return to work in circumstances whereby she was concerned regarding her health. In any event, the Respondent shortly entered a renewed period of lock-down. Thereafter, the Respondent remained closed for a number of years, with the Complainant remaining out of work.

In October 2021, the Complainant sought clarity as to her employment and status, and given the period of time that had elapsed since her being laid off, whether she as entitled to a statutory redundancy payment. On foot of an enquiry in this regard, the Respondent issued correspondence dated 13th October 2021 stating that the Complainant remained in their employment and that they intended to re-open the hotel in early 2022. As matters transpired, the Respondent did not resume business in early 2022 or at all.

In or around May 2022, the Complainant’s son called the Respondent on her behalf. The purpose of this call was to again seek clarity on the Complainant’s employment status and determine when, if ever, the Respondent was to re-open. By response, a director of the Respondent promised that the business would re-open on 6th June 2022. Again, this date came and went without the business re-opening and without any form of explanation on the part of the Respondent.

Given that the Complainant was now becoming anxious in relation to her employment status, and that she had been without work for two and a half years, the Complainant’s son again spoke with the Respondent in November 2022. During this call, the Complainant’s son outlined his mother’s concerns and the Respondent’s repeated and evidently false claims that the business was soon to reopen. By response, the Director of the Respondent again stated that the hotel was shortly to re-open, in this respect he stated that the business was being sold and that the Complainant would shortly transfer to a new owner.

On foot of the conversation described above, the Complainant expected to return to work in December 2022, yet again there was no further communication from the Respondent in this respect. In order to prompt the Respondent to come to a final and definitive position, the Complainant issued correspondence stating that the Complainant viewed herself as being redundant and asking the Respondent, one final time, to clarify their position in this regard. By response, the Respondent again issued a blanket statement to the effect that the Complainant remained their employee and that the business would shortly re-open. At this point, and in direct evidence, the Complainant stated that she had lost all trust in the Respondent and viewed their repeated promises regarding the re-opening of the premises as being dishonest and without integrity. Given that the Complainant had been without work for a period of over 500 days, that she had not received a wage for that time and that she had been repeatedly misled as to her employment status, the Complainant stated that she believed her contract to have terminated on the grounds of redundancy. In support of this submission, the Complainant referenced another employee she believed to have been made redundant during this time.

Without prejudice to the above, the Complainant stated that she had been constructively dismissed by the Respondent. In this regard, she stated that the Respondent, by their actions, had acted in a manner that served to irrevocably breach the trust and confidence between the parties. In this regard, the Complainant stated that these concerns were brought to the Respondent’s attention on at least three occasions. On each occasion, her concerns were dismissed, and she was actively misled as to the position of the hotel regarding reopening.

By submission, the Complainant further stated that she was entitled to a payment of wages while out of work with the Respondent. She further submitted that she accrued annual lave during this period and was entitled to a payment in relation to the same on termination. In this respect, the Complainant submitted that the Respondent failed to place her on statutory lay-off within the meaning of the Redundancy Payments Acts.

By submission, the Respondent stated that their business, like all such businesses, was obliged to temporarily cease trading as a consequence of the restrictions arising from the Covid-19 pandemic. In August 2020, the Respondent believed that it would it be in a position to re-commence trading and requested that the Complainant return to work. By response, the Complainant stated that she did not wish to return to work as she had concerns regarding her health and the then prevalence of the Covid-19 virus.

As matters transpired, the Respondent remained closed for the remainder of 2020 and all of 2021. In October 2021, the Respondent issued correspondence to the Complainant advising that she remained on lay-off, but that it was their sincere belief that the hotel would re-open in 2022 Unfortunately, this did not transpire, and the hotel remined closed thereafter for a significant period of time.

In May 2022, a Director of the Respondent called the Complainant to update her on the status of her employment and the Respondent generally. During this conversation, the Director stated that the hotel may be changing ownership and that the Complainant may well return to work on 8th June 2022, following a transfer of undertakings. In evidence, the Director stated that this this sale did not occur, due to a variety of commercial reasons, and neither the purported transfer nor the Complainant’s return to work took effect at this time.

Towards the end of 2022, the Respondent again commenced negotiations to sell the hotel. As these negotiations had reached an advance stage, the Director again spoke with the Complainant’s son (as per her previous request) to explain that the Respondent should be re-opening soon.

On 2nd December 2022, the Complainant, via her representative, issued correspondence to the Respondent. This correspondence alleged that the Respondent forced the Complainant to take unpaid leave, that they refused her permission to return to work and that they failed to recognise the redundancy of the Complainant. This correspondence sought a notice of termination within seven days. The correspondence also gave notice that should the Complainant fail to receive her statutory redundancy payment, she would consider herself to be constructively dismissed from 10th December.  

On 9th December 2022, the Respondent issued a response. Herein, they denied that the Complainant had been refused to return to work, but stated that the Complainant remained out of workplace of her own volition. They further outlined their belief that the hotel would reopen in early 2023, and that the Complainant’s role would be available for her should she wish to return to the same. Regarding the grievances raised by the Complainant, the Respondent suggested a formal meeting in relation to the same on 20th December 2022.

By response dated 19th December 2022, the Respondent sought to adjourn the proposed grievance meeting, as the person elected to chair the meeting had contracted Covid-19. On that same date, the Complainant stated that as the Respondent had failed to recognise her entitlement to a payment of statutory redundancy, she considered herself to be constructively dismissed from 10th December 2022, and that the present set of proceedings had been referred. Nonetheless, the Complainant stated that she was willing to meet with the Respondent to discuss the settlement of her complaint.

By response dated 3rd January 2023, the Respondent stated that the forthcoming meeting was to be considered a grievance meeting and that the settlement of any complaints would not be considered at the same. During the meeting of 5th January 2023, the Director of the Respondent confirmed that the Complainant’s employment was not terminated by the Respondent and again confirmed that the hotel was shortly to reopen and that her role was available. By response, the Complainant, via her representative, stated that the position remained as outlined in previous correspondence, and that the Complainant considered herself to be constructively dismissed from 10th January 2022.

By submission, the Respondent denied that the Complainant was entitled to a statutory redundancy payment. In this regard, they denied that the correspondence of 2nd December served to issue notice under Section 12 of the Redundancy Payment Act. Notwithstanding the same, the Respondent submitted that they made a valid counteroffer in accordance with the Act, effectively disentitling the Complainant to a statutory notice payment. Regarding the allegation of constructive dismissal, the Respondent denied any form of unreasonable behaviour in the manner in which they interacted with the Complainant. In addition to he same, they submitted that the Complainant resigned her employment prior to engaging with the internal grievance procedure, and on this basis alone, the complaint should fail. Finally, the Respondent submitted that all annual leave entitlements were discharged on termination. They denied that they make an illegal deduction from the Complainant’s wages at any time. They further submitted that this particular complaint is statute barred for the purposes of the Act.

CA-00054142-002 – Complaint under the Redundancy Payments Act

Regarding this particular complaint, the Complainant has alleged that she is entitled to a statutory redundancy payment following a significant period out of work. In this regard, the Complainant has alleged that she was not placed on lay-off within the meaning of the Act and that the non-provision of work over an extended period of time served to trigger her redundancy in accordance with Section 9. In the alternative, and without prejudice to the same, the Complainant submitted that following notification on her part, the Respondent failed to provide a reasonable counter proposal within the timeframe outlined in the Act. By response, the Respondent submitted that the Complainant had been placed on lay-off in accordance with Section 11, denied that the Complainant gave sufficient notice of the same under Section 12 of the Act, and stated that a reasonable counter proposal was issued at the relevant time.

In this regard, Section 7(1) of the Act provides that,

“An employee, if he is dismissed by his employer by reason of redundancy or is laid off…shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment…”

Thereafter, Section 11 provides that “lay-off” occurs where,

“…an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and (a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and (b) the employer gives notice to that effect to the employee prior to the cessation….”

Regarding the present case, the Complainant’s representative has submitted that the Respondent did not comply with the second requirement outlined above. In this regard, they stated that while correspondence was issued to the Complainant, and that her contract contained an express clause to this effect, the correspondence in question did not expressly state that the cessation of work was to be on the grounds of lay-off as outlined above. While it may the case that the correspondence question does not contain the word “lay-off”, it does outline the rationale for the cessation of work, being the restrictions arising from the Covid-19 pandemic, and state that the same is to be temporary. In addition to the same, the evidence of the witnesses for the Respondent was that the Complainant was informed verbally that the cessation of employment was to be temporary while the restrictions were in place. In such circumstances, I find that the Complainant was placed on lay-off as defined by Section 11 from March 2020.

Without prejudice to the foregoing, the Complainant has submitted that while the Complainant may have been placed on lay-off initially, the circumstances responsible for the imposition of the lay-off, being the Covid-19 restrictions, were lifted, at which point the failure to provide work ceased being lay-off as defined by Section 11. In this regard, the evidence of the Respondent was that they were seeking to sell the premises and anticipated that the Complainant would enter into a transfer of undertakings. In this respect, the evidence of the Respondent was that such a sale almost completed on two occasions but failed due to various commercial reasons. They further outlined that the sale in question completed in the weeks following the Complainant’s resignation and the Complainant would have been provided with work at that time.

In this regard, employees are commonly placed on lay-off due to an unavailability of work due to commercial reasons. It is clear from the evidence of the Respondent that they were seeking to either sell or reopen the hotel throughout the relevant period for the purposes of the present complaint. In these circumstances, I find that the Complainant was placed on lay-off in accordance with Section 11 in March 2020 and remained on lay-off until such a time as her employment terminated.

Thereafter, Section 12(1) provides that,

“An employee shall not be entitled to redundancy payment by reason of having been laid off…unless (a) he has been laid off…for four or more consecutive weeks…and (b) after the expiry of the relevant period of lay-off…mentioned in paragraph (a)…gives to his employer notice…writing of his intention to claim redundancy payment in respect of lay-off or short-time.”

Section 12A(1) of the Act (as amended), provides that,

“Section 12 shall not have effect during the emergency period in respect of an employee who has been laid off or kept on short-time due to the effects of measures required to be taken by his or her employer in order to comply with, or as a consequence of, Government policy to prevent, limit, minimise or slow the spread of infection of Covid-19.”

In this respect, the “emergency period” as envisioned by the provision above, expired on 30th September 2021, at which point the Complainant was entitled to issue notice under the Section.

By submission, the Complainant stated that the correspondence issued by her on 2nd December 2022 constituted such a notice. While this correspondence was described as a “statutory grievance”, the third page of the same requests that the Respondent confirm that the Complainant was made redundant within seven days of the date of correspondence. By response, the Respondent submitted that this correspondence did not comply with the requirements of Section 12. In this regard, they submitted that the correspondence provided notice of an internal grievance, with the request regarding the redundancy set out as a possible resolution to the same. They further submitted that the Complainant did not issue notice of redundancy by way of Form RP9, the correct document to be issued in these circumstances.

In this regard, it is noted that the correspondence of 2nd December states that the Complainant was made redundant by virtue of Section 9(1)C of the Act, as discussed below, and not by virtue of an ongoing period of lay-off. This being the case, the Complainant cannot be said to have complied with the requirements of Section 12, in that notification must expressly be given in respect of an intention to claim redundancy in respect of lay-off as defined by Section 11. In such circumstances, I find that she has not triggered redundancy in accordance with Section 12 of the Act. In these circumstances, the Respondent’s position regarding the counter notice as provided for by Section 13 of the Act are moot.

In the correspondence of 2nd December, the position adopted by the Complainant was that she was made redundant by virtue of the Respondent’s failure to allow her to return to work on 2nd June 2021. The Complainant submitted that on this date, or shortly thereafter, her employment should have been made redundant by operation of Section 9 of the Act.

In this regard, Section 9(1) of the Act provides that,

“…an employee shall, subject to this Part, be taken to be dismissed by his employer if but only if, (c) the employee terminates the contract under which he is employed by the employer…such that he is entitled so to terminate it by reason of the employer ‘s conduct.”

Having regard to the foregoing, it is apparent that in order to avail of Section 9(1), the Complainant must have terminated her employment. This clearly was not the case in June 2021 and was not the case in December 2022. Notwithstanding the same, it is apparent that the Complainant did terminate her employment on 10th December 2021. On foot of the same, the relevant question is whether the Complainant was entitled to do so by reason of the Respondent’s conduct, as outlined in the provision quoted above.

In this regard, it is noted that the Respondent initially closed as a consequence of the restrictions arising from the Covid-19 pandemic. While this is not of itself unusual, in this instance, the Respondent remained closed for a significant period thereafter. The evidence of the Respondent was that the hotel ceased trading as it was in the process of being sold. While the transaction in relation to the same came close to completion on a number of occasions, unfortunately the same did not finalise. Notwithstanding the same, on receipt of the relevant correspondence from the Complainant, the Respondent informed her that the transaction was once again close to completion. While the Complainant was understandably sceptical in relation to the same, it is apparent that the business reopened in March 2023, some two months following the final meeting between the parties. In this regard, the conduct of the Respondent was not so unreasonable so as to allow the Complainant to consider herself dismissed. In this regard, it is noted that the Respondent kept the Complainant updated at various intervals in relation to the status of the business. It is further noted that if the Complainant believed that she was entitled to a redundancy payment, it was open to her to give notice in accordance with Section 12 at any point from 30th September 2021.

In evidence, the Complainant further referenced a former colleague that was made redundant during this period. By response, the Respondent stated that this particular employee would not be required by the business given the nature of his role. In this regard, it is noted that the Complainant’s position is that of accommodation assistant. Such a role would always be required by a hotel, and is not one that would be made redundant if the hotel was open and operating as normal. In these circumstances I find that the issuing of a notice of redundancy to one of the Complainant’s colleagues does not automatically create a redundancy situation in respect of her role.

Having regard to the accumulation of the foregoing points, I find that the dismissal of the Complainant did not arise by way of redundancy, and consequently she is not entitled to a statutory redundancy payment.

CA-00054142-001 – Complaint under the Unfair Dismissals Acts

In the alternative to the complaint listed above, the Complainant has submitted that her dismissal was unfair for the purposes of the impleaded Act. In this respect, she submitted that the conduct of her former employer, in failing to provide work for an extended period of time, constitutes a fundamental breach of contract. In such circumstances, the Complainant submitted that she was entitled to resign her employment and consider herself unfairly dismissed in accordance with Section 1 of the Act. By response, the Respondent denied that they had breached the Complainant’s contract, or had acted in a manner that might otherwise serve to give rise to a complaint of constructive dismissal. In addition to the foregoing, the Respondent submitted that the Complainant resigned her employment without raising an internal grievance in accordance with her contract of employment and that on this ground alone, the complaint should fail.

In this regard, Section 1 of the Unfair Dismissals Act, 1977, defines constructive dismissal in the following terms,

“…the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”

In Berber v Dunnes Stores [2009] 20 ELR, the Supreme Court held that,

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee.”

In Western Excavating (ECC) Ltd v Sharp (1978) IRL 332 the Court stated that,

‘If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct.”

In the matter of A Former Employee -v- A Building Supply Company ADJ-00022607, the test to be applied was summarised as follows,

“…the correct approach to be taken by an Adjudicator in considering whether there has been a constructive dismissal is: whether there has been a repudiatory breach by the employer, or, if there has not been a repudiatory breach whether the employer engaged in conduct which made it reasonable for the employee to terminate his contract.”

Regarding the present case, the Complainant has submitted that the Respondent’s failure to provide her with work for a significant period of time constituted a fundamental breach of a core term of her contract of employment. In addition to the same, she submitted that the conduct of the Respondent, in failing to provide her with work, was unreasonable to the extent that it served to breach the implied term of trust necessary in an employment relationship.

In this regard, it is noted that the Complainant’s contact of employment, under the heading “hours of work” states that,

“Where due to circumstances outside of the control of the employer, there is insufficient work, the Employer reserves the right to place staff on Lay Off or Short Time Working.”

Given that the contract expressly provides for the non-provision of work in certain circumstances, the allegations of the Complainant cannot form a fundamental breach of the same, so long as there is insufficient work due to circumstances beyond the Respondent’s control. While the Complainant has submitted that this provision is not operative in her case, as she was not provided with advance notice of the same, this is a matter of evidence that would have to be determined by way of internal procedures.

To succeed in a complaint of constructive dismissal, it is incumbent on a Complainant to demonstrate their engagement with the Respondent’s internal procedures. In the matter of Beatty v Bayside Supermarkets UD 142/1987, the Employment Appeals Tribunal held that,

“…it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited UD 474/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

In the matter of Travers v MBNA Ireland Limited, (UD720/2006), the Complainant’s role was changed by the employer in a manner which was “not in keeping with the contract of employment”. While the Complainant in this matter initiated the company’s internal grievance procedures, he resigned without lodging a final appeal. In this instance the Tribunal found that,

“…the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case”

And,

“…in constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

Regarding the present case, by correspondence dated 2nd December 2022, the Complainant raised a grievance regarding the Respondent’s ongoing and, in her view, unreasonable failure to provide her with work over an extended period of time. By response, her employer set out the reason for her ongoing lay-off and the efforts they had undertaken to re-open a premises. The Respondent further suggested a grievance meeting between the parties, to be convened in the coming weeks. Prior to this meeting taking place, the Complainant confirmed that she had terminated her employment, and that she considered herself to be made redundant by the Respondent.

Having regard to the foregoing sequence of events, it is apparent that the Complainant did not engage in the Respondent internal procedures in any meaningful way prior to the termination of her employment. Having regard to the foregoing, and in contemplation of the authorities listed above, I find that the Complainant has not discharged the burden of proof imposed on her by virtue of Section 1 of the Act. In these circumstances, I find that the Complainant has not been unfairly dismissed and her complaint is duly deemed to be not well-founded.

CA-00054142-003 – Complaint under the Organisation of Working Time Act

In this complaint, the Complainant has alleged that the Respondent failed to discharge her annual leave entitlement of the termination of her employment. In this regard, they submitted that the Complainant was not on lay-off as defined by the Redundancy Payments Acts and, accordingly, should have accrued annual leave throughout the period whereby the Respondent failed to provide her with work.

In circumstances whereby it was determined that the Complainant was placed on lay-off as defined by Section 11, and it is accepted that an employee does not accrue annual leave during such a period, I find that this complaint is not well-founded.

CA-00054142-004 – Complaint under the Payment of Wages Act

Regarding this complaint, the Complainant submitted that as she was not on a period of lay-off, she was entitled to the payment of her wages. As set out above, it had been found that a lay-off situation existed in relation to this employment as defined by the Redundancy Payments Acts. While the Complainant has alleged that there is no custom and practice of the non-payment of wages, in the matter of William Keeling & Sons Unlimited Co -v- Barbara Ciszeqska PWD2010, the Labour Court held that in circumstances whereby a contract contains an express clause as to lay-off, wages not deemed to be “properly payable” in such a situation.

Having regard to the foregoing, I find that the complaint is not well-founded.

CA-00054142-002 – Complaint under the Redundancy Payments Act

I find that the complaint is not well-founded and the Complainant’s appeal fails.

CA-00054142-001 – Complaint under the Unfair Dismissals Acts

I find that the Complainant was not unfairly dismissed, and the complaint is deemed not well-founded.

CA-00054142-003 – Complaint under the Organisation of Working Time Act

I find that the complaint is not well-founded.

CA-00054142-004 – Complaint under the Payment of Wages Act

I find that the complaint is not well-founded.

Lay-Off, Notice, Verbal Notice, Wages, Provision of Work, Annual Leave