The initial period of COVID-19 pandemic saw workers across Ireland working reduced hours or being laid off. Those situations resulted in a spate of claims to the Workplace Relations Commission. Here, our Adrian Twomey looks at one of those claims; the curious case of Kuczabinski v Sackville Leisure Investment Limited t/a Moxy Dublin City, Case ADJ-00034236.
The Complainant, Ms Irina Kuczabinski, commenced full-time employment as a Housekeeping Manager at the Moxy Dublin City Hotel on 26 August 2019. She was paid a salary of €45,000. Her employment contract provided for the possibilities of lay-offs and short-time working.
The hotel temporarily ceased operations on 14 March 2020 after the introduction of Government restrictions relating to the COVID-19 pandemic. Most staff, including Ms Kuczabinski, were temporarily laid off.
The hotel contacted staff in May 2021, following a period of lockdown, asking if they were willing to return to work. The Complainant agreed to do so but stated that she had a problem with her back and would not be able to clean rooms. She submitted a medical certificate at the end of May. The certificate stated that she was suffering from chronic back pain and could not undertake physical work.
The hotel reopened on 2 June 2021. Two weeks later, the Complainant requested a reference, stating that she had found another job elsewhere. She was asked to notify her manager of her resignation in due course. The employee was required to work only two to three days per week over the following few weeks.
The week after requesting a reference, Ms Kuczabinski wrote to the Hotel Manager complaining that she was being discriminated against because of her age and health issues in only being permitted to work reduced hours. She queried why she was not getting more hours of work and why the hotel did not seem to have considered her for other roles.
The hotel responded, noting that the Complainant's colleagues had more hours because they were undertaking physical work for which she was not fit. It explained that it did not have more administrative work for her. She submitted her letter of resignation on 16 July 2021 giving just five days prior notice rather than the two months required under her contract.
One might have expected the Complainant, if she sued, to bring claims of constructive dismissal under the Unfair Dismissals Acts or constructive discriminatory dismissal under the Employment Equality Acts. She did not do so, being unrepresented and apparently not having taken any professional advice. Instead, she submitted a complaint regarding banded hours and her actual working hours. The WRC Adjudication Officer concluded that her complaint was not well founded. In doing so, he noted that:
he could see no cause of action in respect of the lay-off period;
her hasty resignation had put an end to the possibility of her discussions with the hotel regarding working hours being successfully concluded;
she had failed to process a grievance under internal procedures;
the complaint that was submitted was erroneous; and
there was no discernible complaint of any sort under any other statute.
Leaving aside the other issues arising in the case, the outcome highlights the importance of employees seeking appropriate advice regarding claims before submitting them to the WRC. Employees requiring advice in relation to work-related matters can contact our Adrian Twomey for guidance.