Complainant

Respondent

Parties

Luis  Gervasio

Wasur Ltd

Representatives

Colin McGlynn

CMG Consultants

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00073374-002

11/07/2025

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was however not open to the public to attend as there was an Industrial Relations issue also to be dealt with.

I informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and where there is potential for a serious and/or direct conflict in the evidence between the parties to a complaint, then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Affirmation as appropriate and in order that matters might progress. It is noted that the giving of false statement or evidence is an offence.

The specific details of the complaint are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 11th of July 2025. In general terms, I will therefore be looking at issues that have arisen in the six-month period directly preceding this date.

The Complainant was not represented and made his own case. When it came time to hear the Complainant’s evidence, the Complainant agreed to make an Affirmation to tell the truth. In his complaint form, the Complainant set out his complaint as follows: -

I was employed as a porter at a hostel operated by the McEnaney Group. Initially, I worked day shifts in a different property that accommodated refugees and people experiencing homelessness, including individuals with active substance use and criminal backgrounds. While I always treated residents with empathy and professionalism, the environment was highly demanding and emotionally intense.

Later, I was offered a transfer to another unit for night shifts. I accepted it because I was told the unit was a family-based refugee hostel, and that the environment would be calmer and more manageable. I was also told I would receive more working hours.

However, once transferred, I was instructed to carry out heavy cleaning tasks every night, including:

Deep-cleaning kitchens and bathrooms;

Scrubbing rubbish bins with detergent;

Cleaning fridges, ovens, corridors, staircases, handrails, staff toilets, and laundry areas;

Mopping and sweeping all floors;

Preparing breakfast.

These duties were formally listed on a night porter checklist given to me — duties clearly associated with a cleaning role, not a porter.

When I raised this with my line manager, she openly stated that I couldn’t spend the 12-hour night shift “just sitting in the office.” She acknowledged that it was quiet during the night and said that, for that reason, they expected me to spend at least 4 hours of my shift doing cleaning duties — that is, 16 hours per week. For comparison, the hostel’s actual cleaner only worked 20 hours per week, and her duties were limited to cleaning residents’ rooms. I was essentially complementing her job, doing the entire rest of the building — without being hired, paid, or trained for that role.

On 22 May 2025, I brought this concern directly to my manager. I printed the checklist, highlighted inappropriate tasks, and explained that I had not applied for a cleaner position. I had previously worked in another unit as a porter with no such responsibilities. I did not refuse to work — I simply questioned the breach of contract.

Instead of receiving understanding or a solution, I was increasingly targeted. My name began appearing in handwritten logbook reminders, making informal public demands for me to complete cleaning duties. This created an atmosphere of intimidation.

On 23 May 2025, I informed my manager via WhatsApp that I would not be fit to work the Sunday night shift (25 May). I complied with the company’s own 48-hour notice policy. I explained that I had a medical appointment scheduled for Monday — the first possible date due to my night shifts. Instead of showing concern, she immediately denied my request and wrote that if I failed to attend on Sunday, I would be in breach of contract and summoned to a disciplinary meeting the following week. This was a threat, made before I had a chance to present any medical certificate, and without asking about my health.

Later that day, I submitted a valid medical certificate covering 24–25 May, issued by my doctor. It was rejected without justification. The company responded that they would no longer accept certificates from my GP, citing vague concerns about credibility. However, they offered no occupational health referral or alternative solution — which they are legally required to do.

The environment I was in — working 12-hour night shifts alone in a building housing dozens of vulnerable people, while also being pressured to act as a cleaner — severely impacted my mental health. I had already been in treatment for depression for over a year, and this situation caused a relapse with acute anxiety symptoms directly related to work.

I was advised by my doctor and the Citizens Information Centre not to attend any disciplinary proceedings while medically unfit. I provided additional medical certificates, followed all procedures, and maintained respectful communication throughout.

Nonetheless, the company continued to pursue disciplinary action. They rescheduled the meeting multiple times, and ultimately proceeded with the final meeting on 24 June, despite knowing I was still on medical leave and had explained I could not attend. I later received meeting notes in which none of my health concerns, medical certificates, or the background of my situation were acknowledged.

It is important to state: I could have chosen to leave the job voluntarily due to dissatisfaction. But I didn’t. I was medically unfit to continue and was trapped in a toxic situation where I was being pushed beyond my role, punished for seeking help, and dismissed without fairness.

The company’s actions amount to:

Unfair Dismissal: I was let go during medically certified leave, without proper justification.

Breach of Contract: I was expected to perform a different job without written notice or agreement.

Discrimination based on medical condition: My mental health status was dismissed, and my doctor was discredited.

Constructive Dismissal: The environment became so hostile that my withdrawal was inevitable.

I am now unemployed and recovering. I respectfully request that the WRC consider the emotional, professional, and procedural violations involved in my case. I will submit supporting documentation by post, including:

WhatsApp messages from my line manager;

The cleaning checklist and duty logbook photos;

Medical certificates;

Emails regarding disciplinary meetings;

Final meeting notes that ignore my health status.

Thank you for your time and attention.

The Complainant sent in additional documentation at the time that he issued his workplace relations complaint form. A further and lengthier submission with documents attached was delivered on or about the 27th of March 2026.

None of the of the materials relied upon by the Complainant in making his case was objected to by the Respondent. The oral evidence adduced by the Complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges specifically that he was not notified in writing of a change to his terms of employment.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance. The Complainant must establish facts which tend to disclose that there is a reasonable cause of action or that there appears to have been a contravention of a Statute or Statutes.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent had full legal representation at this hearing. To assist in explaining how this workplace operated a number of witnesses gave evidence. This evidence was given on affirmation. This included the Complainant’s line Manager JE and the HR Officer – GH. The Respondent provided me with a comprehensive written submissions dated March 2026. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. The Respondent witnesses were questioned by the Complainant.

The Respondent rejects that there has been a breach of any Statutory rights.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered the evidence adduced over two days of evidence. I was not satisfied at the end of the first day of evidence that the Respondent had provided me with enough information and it was agreed that the Respondent would re-submit some paperwork, bring in a porter/Manager to outline the duties and provide me with duty checklists for the purpose of allowing me to draw comparisons.

The Complainant gave his evidence on affirmation, and it seems that he was engaged as a Porter for minimum wage by the McEnaney Group. As I understand it, the McEnaney Group owns and operates a number of premises in the State wherein emergency accommodation is provided. The State seemingly subsidises the housing of asylum seekers, Ukrainian Refugees as well as other people needing somewhere to live or stay by reason of unforeseen circumstances. The different centres for the provision of these services are owned and operated by the McEnaney group, albeit that each centre seemingly operates under a different company name. I do not need to understand or look behind the corporate set up other than to say that I am finding that the Complainant has had one Employer for the purpose of service, and that the company Wasur Limited was his Employer at the end of his employment.

The Employment started in early February of 2025, and the first employment was in a housing premises in South Frederick Street where the Complainant was doing day shifts which he enjoyed.

The Contract of Employment states that the Complainant was engaged as a Porter and it is fair to say that the Contract of Employment is absolutely silent on what a Porter is and what the porter duties are in the context of this type of building/facility. Ultimately it seems the Employer and the Employee had very different interpretations. I have no idea what was advertised, and what would be considered normal for a Porter job. Also, no attempt has been made by the parties to determine if there is a distinction to be drawn between the duties of a day porter and those of a night porter – and if any distinction was made known to Employees.

It seems to me that a porter in an accommodation centre (such as a hostel, hotel, residential centre, or reception/accommodation centre) typically carries out a mix of practical, support, and safety-related duties to help the centre run smoothly. Ultimately, the exact tasks can vary by setting and bespoke arrangements made to fit in with the local requirements.

The Complainant commenced his employment as a day Porter which he enjoyed and was relaxed with. He said he could even study a bit. He was a student. However, ultimately, he wasn’t getting enough hours, and he said he asked whether he could have more shifts or hours at which time he was offered to work as a night Porter.

The Complainant says he was persuaded to take on this night porter employment and made out that this was some form of enticement. He was told that the work available was at a different premises. The Complainant commenced this employment at the new premises on the 22nd of April 2025. The Complainant was advised that he would be working twelve-hour shifts – 8pm to 8am.

He was surprised that when he moved premises that his Employer seemingly changed his Employer title (giving a new company name) albeit without notification and without being told there was a change in Employer. To my mind the Complainant transferred seamlessly between two operations owned and run by the same group and his service was therefore on a continuum. For the purpose of a complaint under the Terms of Employment (Information) Act 1994 I am of the view that the Employer herein made a change in the details of the Complainant’s Employer name without alerting the Complainant to this arrangement and without affording the Complainant an opportunity to assess whether such a change might be a good thing or a bad thing.

At the hearing the Respondent attempted to make the case that there was no employment continuum and therefore the Complainant’s employment lasted only from the commencement date of the 22nd of April and not the earlier February date. I rejected this.

The Act also provides that an employer must notify the Employee of any changes in the particulars already detailed in the Statement of Terms. This is set out in Section 5 of the Terms of Employment (Information) Act 1994 which puts the onus on an employer to notify the employee in writing of the nature and date of change in any of the particulars. I am finding that the Employer did not do this.

The Complainant says that he only had a few hours training when he commenced his employment on the second site on Dorset Street. I am advised that the new place of work is described as a family hub meaning that there are different family units on the premises and that the set up is, of necessity, quite different to the one at the previous premises wherein the Complainant worked where the accommodation was given on an individual basis.

I accept the evidence from the Employer that the family hub aims to provide, as far as is practicable, some element of family life. In this instance a large kitchen/living area is provided so that families might be able to cook and eat together. This seems a reasonable accommodation to give families in a time of difficulty.

However, the knock on from this is that the Porters are expected to oversee the day-to-day clean-up of the premises as part of their duties. The way the Dorset Street property is run, all tenants have to be out of the kitchen by 11pm at which point whichever night Porter is on duty must go in and clean up the kitchen and desterilise the kitchen in preparation for breakfast the next day. In addition to this task the night Porter is also expected to conduct a general clean, wash and sweep of the communal areas of hall, stairs and landings. The Complainant was not used to this level of cleaning work being attached to the job of being a Porter.  I accept that the Complainant undoubtedly felt he was getting too much additional work including deep cleaning tasks, heavy duty tasks and unsavoury tasks such as cleaning toilets.

The Complainant did carry out this work for a period of about one month though he was clearly unhappy doing it and was called out (through a staff notebook) several times by his line Manager for not getting tasks done.

He was very unhappy and he felt this was a fundamental change in the nature of his employment which was not notified to him. The Respondent maintains that the Complainant knew or ought to have known that these tasks were duties which befell all their nighttime Porters across the group. I am, on balance, not satisfied that the extent of it was explained to the Complainant on the training day provided.

However, there is, as previously noted no description of the job in the Contract of Employment and therefore I must find that there is no cause of action under this particular piece of legislation on this issue.

On balance I am satisfied that the Complainant has established that the Employer failed to notify  the Employee of a material change in the particulars already detailed in the Statement of Terms when it purported to change the name of the Employer without consultation or written notification. This amounts to a contravention of Section 5 of the Terms of Employment (Information) Act 1994 which puts the onus on an employer to notify the employee in writing of the nature and date of change in any of the particulars of the statement as provided by the Employer.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00073374-002 - The complaint herein is well founded and I award €900.00 compensation