EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1590/2013
CLAIM(S) OF:
Gary Raleigh
- claimant
Against
Aura Sport & Leisure Management Limited
T/A Aura Sport and Leisure
– respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr R. Maguire, B.L.
Members: Mr P. Pierson
Mr F. Keoghan
heard this claim at Tullamore on 3rd December 2014 and 30th March 2015
Representation:
Claimant(s) :
Mr Conor O'Toole, Conor O'Toole, Solicitors, Moorefield Business Centre, Moorefield Road, Newbridge, Co Kildare
Respondent(s) :
Mr Stephen Hanapy B.L. instructed by Ms Laura Duffy, Holohan Solicitors, Suite 319, The Capel Building, Dublin 7
The determination of the Tribunal was as follows:
Summary of Evidence
The operations manager (HT) gave evidence. The claimant was employed as a life guard and swimming instructor. HT considered him to be a good swim teacher as parents asked for him to teach their children. She described the claimant as a good communicator who worked well with his colleagues.
The day after the incident which led to the claimant’s dismissal the duty manager reported to her that the claimant had left the pool deck during an aqua aerobics class when there was up to thirty people in the pool contrary to safety policy. When the claimant arrived at work on the 25 April 2013 the witness suspended him with pay pending an investigation. She also handed him a letter of suspension. HT accepted that the suspension letter did not give details of the allegation against the claimant and made no reference to the pool ratios.
The operations manager from the Dundalk site (JP) gave evidence of conducting the investigation / disciplinary meeting. The HR manager informed her that the claimant left the pool deck during an aqua aerobics class when there were up to thirty people in the pool. The aqua aerobics instructor was a qualified life guard but because there were more than thirty people in the pool a second life guard was required to ensure the safety of the pool users. JP was of the opinion that the claimant should not have left the pool deck however it was important to ascertain why he had left. The HR manager had carried out an investigation and had met with the claimant. The claimant seemed to be oblivious to the ratios saying he had never been informed of them and as a result his training records were checked.
Statements taken from witnesses by the HR manager were provided to JP as part of the process. JP met with the claimant. The HR manager and the witnesses did not attend the meeting. The investigation established that the claimant was absent from the pool deck for about twenty three minutes. At the meeting the claimant informed her that he had gone to the changing village before going to watch TV in the gym. In fact he spent time in the membership advisor’s office and accessed the computer. JP had checked CCTV footage to count the number of people in the pool during the claimant’s absence. Still pictures which were of poor quality but she was satisfied indicated more than thirty five people were in the pool. No head count was carried out by the claimant before leaving the area.
The claimant gave a sworn account of what happened on the night of the 24 April 2013 which led to his dismissal. He helped and instructor prepare for an aqua aerobics class at the pool. The instructor was not in the water and was a trained lifeguard. Having consulted with the instructor he gave him his radio walkie-talkie and went to get some air in the gym area which was much cooler than the pool area. He had worked for the respondent for over five years and applied common sense when it came to safety at work. Day to day he would risk assess and if he or any lifeguard was of the opinion there was a risk he could call for a second lifeguard. He left the pool deck for a period of time estimated at between 8.15pm and 8.35pm. During the period of time away he went to an office area to check pool related details on the centre’s database which he was authorised to check. He cleaned a floor area, went to the canteen to get water and then proceeded to the gym area and checked the football scores on the TV. He was called back through the intercom system.
His line manager handed him a letter inviting him to an investigation meeting the following day. He had to this point never received the employee handbook or disciplinary procedure. He attended the investigation meeting which was conducted by an independent person. The claimant submitted that his action on the evening in question was common practice at the pool. Over the course of his employment pool ratios was never mentioned and was not referenced in his competency training document prepared by the employer. Two documents which referenced pool ratios were opened to the Tribunal. One document from 2011 referred to a ratio of 30:1 and the second document which was prepared by the employer in April 2012 referenced 40:1 the pool ratio during an aqua aerobics class. The claimant was confused by the conflicting information.
Under cross examination the claimant denied he breached the ratio guidelines as ratios were never enforced at the leisure centre. He further denied breaching any guideline as the aqua aerobics class was a closed class with an instructor who was a trained life guard present.
Determination
The Tribunal finds that in all of the circumstances the dismissal of the claimant was unfair.
In reaching this conclusion, the Tribunal has had particular regard to the fact that, while the claimant left the pool deck while he was on duty, the various documents provided by the respondent as to the staffing level required on the pool deck when a class was going on are confusing at best and do not explicitly state that where a class instructor who is also a qualified lifeguard is taking a class with the number of people in the water on the day in question, there necessarily must be another lifeguard on the pool deck at all times.
The claimant left the pool deck but remained on the premises. The claimant had been employed by the respondent for five years and was used to assessing risk on an ongoing basis. There was no evidence that the claimant had any history of misconduct or failure to follow guidelines. The Tribunal accepts that the claimant was genuinely confused in relation to recommended guidelines provided by the respondent on pool ratios.
Aside from the procedural irregularities in the conduct of the matter by the respondent, and in particular the failure to refer to the basis of the suspension of the claimant at the time and the failure to provide the disciplinary procedure and staff handbook to the claimant at any stage in advance of his suspension, it is not clear in the circumstances that the claimant was guilty of any misconduct, let alone gross misconduct. The Tribunal notes that the claimant left his post for a period but it was not shown that he had any reason to believe that he was breaching the ratio recommendations.
In the circumstances, the dismissal by the respondent was outside the band of reasonable sanctions that an employer could impose on the claimant.
The Tribunal find the claimant was unfairly dismissed and awards him the sum of €27,500.00 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)