ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000061

Complaints and Dispute for Resolution:

Date of Adjudication Hearing: 25/02/2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 6^th October 2015, the complainant referred complaints to the Workplace Relations Commission, pursuant to the Terms of Employment (Information) Act and the Organisation of Working Time Act, as well as a dispute made pursuant to the Industrial Relations Acts. The complaints and dispute were scheduled for adjudication on the 26^th February 2016.

The complainant attended the adjudication in person and the general manager and leisure centre manager attended for the respondent.

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and the Industrial Relations Acts, following the referral of the complaints and dispute to me by the Director General, I inquired into both the complaints and dispute and gave the parties an opportunity to be heard by me and to present to me any relevant evidence.

Complainant’s Submission and Presentation:

The complainant outlined that she had worked in the gym attached to the respondent hotel and had acted as a gym instructor and as a swimming teacher. She commenced working in the gym on the 4^th April 2014 and her employment came to an end on the 3^rd October 2015. She was usually on her own when on duty in the gym. Her working hours were 3 - 10 Monday, Wednesday and Friday and 7 - 3 Thursday and would work 8 - 6 on alternate weekends (an average 42 hour week and an average wage per week of €378).

Addressing the issues of breaks, the complainant said the practice had been to ask a duty hotel manager to cover her when she went on break, but she had found that they were reluctant to assume this role. The practice was altered in June 2015 when the new owners became more involved in managing the hotel. At this time, the complainant said that the leisure centre manager approached her to say that she would now have to take her breaks at her desk and could not leave the gym. He said that she would not be happy with this change. The complainant outlined that the staff room was across the way in the hotel and that she had to leave the gym and walk to the other side of the hotel to check out.

In respect of the claim made pursuant to the Terms of Employment (Information) Act, the complainant said that she had never been provided with a contract of employment. She had approached a named member of the HR department on many occasions to obtain a contract, but was never supplied with one.

In relation to the trade dispute, the complainant said that she had been subjected to sexual harassment by a named individual, who she identified as a friend of the owner and as an investor in the refurbishment of the gym. She outlined that this behaviour commenced in June 2015 and related to comments made by this person and inappropriate contact. She reported this many times to the HR person, but no action was taken.

The complainant said that she came into work on the 1^st October 2015 as a favour for the respondent, coming in a short notice. A named manager had asked her to work between 3 and 6pm as cover for a split shift. She returned home collect her work clothes after a meeting in order to go to work. During the afternoon, the complainant said that she had been giving a class and had not been able to work through a typical day's chores. The owner's ex-wife, involved in the hotel, then remonstrated with her about tasks that had not been done. She sought to explain that she had been called in at short notice and had been engaged in a class. She said that the owner's ex-wife had treated her as if she was stupid. On the following day, the complainant said that she decided not to return to work and acknowledged that she later missed a telephone call from the general manager.

The complainant said that she was owed €83.03 and €81.89 in unpaid wages. The respondent had told her that she would be getting double-time for giving Pilates classes. She had given five sessions of Pilates, including one on the 2^nd October 2015. The complainant said that the swimming classes ceased, partly as a result of a complaint.

In response to the evidence of the respondent, the complainant said that she was aware that the respondent had CCTV footage of the incident referred to at the meeting of the 1^st October 2015, so knew that she had nothing to fear from the customer complaint. In reply to the contention that she had been an agency worker, the complainant said that she had never been employed in this capacity. As far as she was aware, she had been employed by the hotel, which had changed names following its acquisition. The complainant said that she had never seen the letter of the 9^th April 2014, which the respondent said was her contract of employment.

Respondent’s Submission and Presentation:

The general manager outlined that the respondent is a four star hotel and had been acquired by new owners in January 2014. He outlined that the complainant had been engaged as an agency worker, before transferring her employment to the respondent on the 1^st February 2015. He described the complainant as an exemplary member of staff and that she had been employed as a gym instructor and swimming teacher. He said that she had been supplied with a contract of employment and provided a document dated the 9^th April 2014.

In respect of breaks, the respondent outlined that the complainant and other staff were automatically deducted payment for their breaks. The general manager outlined that the complainant was able to take her breaks and that they had not been recorded on the time sheet, for example for the week 21 – 26 September 2015. He said that in late August 2015, there was a need to have a qualified lifeguard on duty, changing how staff took their breaks. Commenting on the layout of the gym, the respondent outlined that there was a reception area where staff would normally be based if not doing a class. The respondent denied agreeing to double-time for classes and said that the classes were part of the complainant’s normal duties. The swimming classes stopped at the end of September 2015.

The general manager outlined that an incident had occurred on the 25^th August 2015, where a parent had complained when her child apparently went into difficulty during a swimming lesson. The respondent carried out an investigation into the complaint and the complainant became upset during the investigatory meeting. The meeting lasted ten minutes and never got past taking statements. On the 3^rd October 2015, the complainant’s sister rang the respondent to say that she would not be coming into work. The respondent outlined that it did not doubt the complainant’s evidence regarding the incident and that the parent had pushed for the investigation. It had seen the CCTV footage and it showed that the class continued, and the parent in question remained in the pool after the incident in question.

In respect of the allegation of sexual harassment, the general manager said that the first he knew of this was in the complaint form submitted by the complainant. There was no official record of any previous complaint and the person complained of did not have any current involvement in the respondent.

Findings and reasoning:

The first claim to address is the complainant’s assertion that she did not receive a statement or contract of employment and that this was a breach of the Terms of Employment (Information) Act. It was her evidence that she repeatedly sought such a document. The respondent outlines that it provided the complainant with a document entitled “terms and conditions of employment” and dated the 9^th April 2014. The respondent provided at the adjudication an unsigned copy of this document, addressed to the complainant. It identifies the employer as a predecessor of the respondent. Also provided is a letter from the respondent, addressed “Dear employee” that outlines that the employer has changed identity as of the 2^nd February 2015. It informs the recipient that they had three previous employers, agencies, and that the P45 for each employment is attached. Having considered the evidence of the parties, I resolve the conflict in evidence in favour of the complainant. The contract provided by the respondent is not signed and there is no evidence to corroborate the respondent’s stance that the contract had been provided to her. I find that the complainant is entitled to an award of compensation pursuant to the breach by the employer of the Terms of Employment (Information) Act. I find that the complainant is entitled to compensation equivalent to four weeks’ pay in relation to this breach. This amounts to €1,512.

The second claim is in relation to breaks at work. She outlined that she was not able to take breaks as other staff were reluctant to stand in for her and that she was later asked to take breaks at the reception area of the gym. The respondent denies that the complainant was unable to take breaks. It submits time sheets from the 24^th November 2014 to the 1^st October 2015. The records disclose the times the complainant clocked on and off work, including for breaks. On some days, they indicate that the complainant clocked out to take breaks during her working time. Each record discloses the amount of break the complainant was entitled to, according to the length of time she was at work. The records disclose of the days in which she was entitled to a break, she is recorded as taking a break in 40 of 150 days. No break is recorded on 110 occasions. I find that the complainant gave a concise account of not being able to take breaks during her time at work and this evidence was corroborated by the records maintained by the respondent. I further have regard to the precedent of the Labour Court where it held:

“The Company is under a duty to ensure that the employee receives his equivalent rest period and breaks. Merely stating that the employee could take rest breaks if they wished and not putting in place proper procedures to ensure that the employee receives these breaks, thus protecting his health and safety, does not discharge that duty.” (The Tribune Printing and Publishing Group v GPMU [2004] E.L.R. 222.)

It follows that the respondent cannot show that the complainant was able to take breaks during her working day and that the claim pursuant to the Organisation of Working Time succeeds. I find that the complainant is entitled to compensation for this ongoing breach of her entitlement to breaks during her daily work. Given that no breaks were recorded for 110 days, an award of €990 is merited for rest breaks the complainant could not avail of.

The complainant raises very serious issues regarding sexual harassment she received at the hands of an associate of the owner of the respondent hotel. She also raises complaints about how the ex-wife of the owner treated her on the 1^st October 2015. These complaints are presented to this adjudication as a dispute made pursuant to the Industrial Relations Act and I am obliged to address them as such. I find the complainant’s evidence in relation to the two issues to be concise and persuasive. The respondent did not adduce evidence to contradict the evidence of the complainant. I, therefore, find as fact that the complainant was subject to the sexual harassment, including comments made to her and inappropriate contact. I find as fact that the complainant reported this to a named HR manager, but this issue was not adequately addressed. This is a finding of a serious nature that merits an award of compensation. I also find as fact that the complainant was subjected to aggressive hectoring by a person associated with the respondent on the 1^st October 2015. This is also a finding that merits an award of compensation. I recommend an award of €800 for the sexual harassment and an award of €200 in relation to the incident of the 1^st October 2015.

In respect of the claim for double-time, I find that the complainant is entitled to recover the amounts of €83.03 and €81.89 in additional payments due for conducting specific classes. This is because of the concise evidence she gave of the undertaking to pay this supplement. The total amount owed to the complainant is €164.92. This award is made pursuant to the claim referred under the Industrial Relations Acts.

The complainant referred complaints pursuant to employment law statutes, i.e. the Terms of Employment (Information) Act and the Organisation of Working Time Act. I make awards of €1,512 and €990 in respect of both statutes, totaling an amount owed by the respondent to the complainant of €2,402. Furthermore and pursuant to the Industrial Relations Acts, I award €1,164.92 for the incidents involving the complainant and two associates of the respondent as well as for the unpaid wages due for the classes undertaken by the complainant.

Decision:

Section 41(4) of the Workplace Relations Act 2015 and the Industrial Relations Act require that I make a decision in relation to the complaints and dispute in accordance with the relevant redress provisions under Schedule 6 of the Act of 2015 and the Industrial Relations Act.

In accordance with the complaints and the dispute referred by the complainant to the Workplace Relations Commission and the findings I have reached above, I make the following awards:

• €1,512 for the breach of the Terms of Employment (Information) Act;
• €990 for the breaches of the Organisation of Working Time Act in respect of rest breaks.

I make the following awards pursuant to the dispute lodged by the complainant pursuant to the Industrial Relations Acts:

• €164.92 for the double-time pay due to the complainant;
• €800 in respect of the complaint of sexual harassment made in relation to comments and contact from a named individual, an associate of the respondent;
• €200 in respect of the hectoring behaviour incurred by the complainant on the 1^st October 2015 by a named person, an associate of the respondent.

The total of the above awards is €3,666.92

Dated:  16/06/2016