EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD196/2013
CLAIM(S) OF:
Ania Obst - claimant
Against
Bodyblast Fitness Limited T/A Women's Fitness Plus - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr K. Buckley
Members: Mr D. Hegarty
Mr D. McEvoy
heard this claim at Cork on 24 September 2014 and 12 March 2015
Representation:
Claimant(s) :
Mr David O’Dwyer B.L. instructed by Mr. Richael O'Driscoll, Fachtna O'Driscoll, Solicitors, 9 South Mall, Cork
Respondent(s) :
Mr David Gaffney, Gaffney Solicitors, 4B Father Mathew Street, Cork
The determination of the Tribunal was as follows:-
Summary of Evidence
The respondent company a gym and fitness facility for women which run various fitness classes and programmes for clients employed the claimant in May 2011 as an instructor. The claimant had other jobs working as a fitness instructor at other facilities in the Cork area which was known to the respondent.
The respondent submitted that in October 2012 the claimant began to miss classes and cancel classes at short notice. She had taken up an instructor role at the premises of a competitor without getting prior approval from the respondent. The respondent’s case is that when confronted at a meeting on the 19 October 2012 she resigned her position.
The claimant submits that she was forced to resign in circumstances whereby three options were put to her
Continue working with a competitor which would lead to dismissal,
Continue working for respondent with less and less hours
Write and sign a letter of resignation
As the dismissal was in dispute the Tribunal heard the claimant’s evidence first. The claimant taught a range of classes including palates, Zumba and personal training. At the time she secured employment with the respondent in May 2011 she was also employed at the college of commerce in Cork for two classes per week (two hours). The part time role in the respondent company allowed her to continue these classes which were only during the academic year. She worked between twenty four to twenty eight hours per week with the respondent. Over the course of her employment the business was taken over and after a year in employment she received a contract of employment. She did not sign the contract as it made reference to not working at other premises which was never part of her original conditions of employment. She was being rostered for early mornings and late evening classes and her body was not able to continue this pattern. In September 2012 other staff were hired and her hours began to reduce. Changes to rostering would happen at the last minute an issue she raised with management on the 17 October. Due to the reduction in hours she took up an instructor role at another gym. She denied ever cancelling classes at the respondent’s gym or phoning in sick at the last minute. She accepts that she did not seek approval from the respondent before taking up the other instructor role. At no time was her performance raised as an issue by the respondent.
The claimant was called to a meeting on the 19 October with no prior notification of the purpose of the meeting. MM a director of the respondent company and another employee whom the claimant believed was the receptionist attended the meeting. It was put to her that they were aware of her classes at another gym without permission. The three options were put to her as well as a threat of reporting her other work to the revenue taxation office.
She wrote a letter indicating her reluctance to resign her position at that meeting. The following day MM gave her a typed letter to sign which differed from her hand written letter of the previous day. The handwritten letter was not made available to the claimant or her representatives prior to or during the hearing despite a request under the Data Protection Act.
After the 19 October the claimant sent a number of texts and emails which were opened to the Tribunal requesting the documentation. Her solicitor wrote on her behalf to the respondent on the 5 November 2012 as she had not received her P45.
During the claimant’s cross examination emphasis was put on her activities in seeking alternative employment following the dismissal.
The respondent director MM gave evidence of opening the business in 2010. He employed the claimant in 2011 and described her as a popular and well qualified instructor with good experience teaching classes. In October 2012 after the claimant had at short notice notified him that she was unable to work two Thursday shifts resulting in him having to cancel a palates class and letting clients down he arranged a meeting for the 19 October. The purpose of the meeting was to discuss rosters to avoid further cancelations of palates classes.
It came to his attention that the claimant was working for a competitor and teaching classes at the same time as she was rostered to take a palates class with the respondent. The class timetable of the competitor company was opened to the Tribunal. The claimant had indicated that she would not be available for the third Thursday and MM had sourced another palates instructor to cover for the claimant.
At the meeting on the 19 October the claimant requested she reduce her Tuesday and Thursday hours. Not having the claimant available for the Tuesday and Thursday evening classes would have had a huge impact on the business. The witness stated that the claimant’s hours would be reduced significantly if she reduced those two shifts. His evidence was that although the meeting was amicable she was putting an ultimatum to him about the shift changes to suit her work with another employer. The claimant made the point that he had previously no issue with her working at other facilities. It was accepted that the claimant worked teaching other classes with other competitors from the time she had commenced her employment with the respondent company however she had made no attempt to inform him or seek his approval in advance of taking up this additional work.
The claimant was rostered for Thursday classes and she choose to resign providing him with a handwritten letter of her resignation. He denied suggesting she should resign. The letter was illegible and he typed up a resignation letter which he got the claimant to sign the following day. At the meeting he pleaded with her not to take any of the respondent’s clients or employees and offered an extra payment of two to three weeks pay on condition she complied with this request.
Some time after he learned that the claimant had attempted to poach clients and an employee and he took the decision not to pay the extra amount offered. The witness accepted that there were no previous disciplinary matters relating to the claimant.
The claimant was recalled. Her evidence to the Tribunal was that she had asked to change her shift and work Wednesday evening instead of Thursday evenings which the respondent had agreed. Although he had made the agreed change to her roster on learning that she was taking classes at another gym he changed his mind. She had not wanted to resign from the respondent company and often sought full time hours. She was forced to write her resignation letter and was told she could get a copy the following day however a typed version of the letter was produced the day after the meeting which she was asked to sign. The claimant denied poaching clients as they had contracts and it was pointless.
Determination
The Tribunal carefully considered all of the evidence adduced at the hearing. The Tribunal accepted that the respondent did not have an issue with the claimant working for a competitor provided that it did not impact on the roster that he had created around the claimant’s availability. It was clear however that this arrangement had become unworkable.
The Tribunal is satisfied that the claimant took up employment at a competitor gym without informing the respondent at a time when she was rostered for work at the respondent’s gym.
The Tribunal is of the view that the claimant did not want to give up her classes at the competitor gym as the rates of pay were considerably better there.
The Respondent could not be reasonably expected to book classes for clients and have them cancelled at the last minute because of the unavailability of the Claimant who was working elsewhere at the same time.
The Tribunal preferred the evidence of the Respondent and is satisfied that there was not an unfair dismissal in the circumstances.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)