EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD977/2015
CLAIM(S) OF:
Sinead Ring
against
Planet Leisure Limited T/A The Planet Entertainment Centre
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. J. Lucey
Members: Mr. J. Goulding
Mr. D. McEvoy
heard this claim in Cork on 6 September 2016
Representation:
_______________
Claimant(s):
Mr. William Harvey, Martin A Harvey & Co. Solicitors, 9 Georges Quay, Cork City
Respondent(s):
Mr. David Gaffney, Solicitor, 4b Father Mathew Street, Cork
The determination of the Tribunal was as follows:-
Giving sworn testimony, DL said that he was the general manager of a Cork fitness club for the respondent. The claimant worked there from 2012 taking classes as a fitness instructor. Her work involved “wet duties” as there was a swimming pool where there were classes such as aqua-aerobics. There had been a fatality in the past.
The respondent operated a small pool which was 1.5m deep. Aqua-aerobics was taught from a standing position. DL heard from a third person that the claimant could not swim. This came to light when refresher training was being organised. The claimant had cited previous experience at a hotel which had a swimming-pool. It had been assumed that she could swim. Nothing adverse happened but there was potential for misfortune.
When questioned in May 2015, the claimant made a full admission and was immediately removed from all wet duties such as teaching aqua-aerobics and life-guarding the pool. The claimant was to be offered alternative hours to make up her shortfall. She was to undertake swimming lessons but there was no indication that she had gone beyond initiating these. She was issued with a final written warning in July 2015. She did not appeal this.
It next came to light that the claimant had availed of the respondent’s sunbed treatment and had left by way of a fire-escape without paying. When questioned, the claimant admitted this. DL saw this as dishonesty. The claimant was dismissed but did not appeal the penalty even though entitled to do so.
Under cross-examination, DL confirmed that the claimant had been dismissed for her sunbed use rather than her non-swimming. He was not comfortable with someone slipping out the side-door.
When it was put to DL that reference had not been made to right of appeal in dismissal correspondence he replied that the claimant had been informed about the respondent’s appeal process through PA (a previous manager). He apologised “if (his) letter was not good enough”. There was nothing in the employee contract about the use of facilities but he did cite the fact that he himself would pay in the bar for drinks and would expect staff to do this throughout.. DL said that there was “no culture of free use”. He had interviewed staff about this. They were unaware of any free use.
It was put to DL that he had not taken time before dismissing the claimant. He said that he “did consider it further”.
When DL was asked if the respondent had failed to investigate the claimant’s swimming capability at recruitment interview stage, he accepted that the respondent had hired someone it had thought swimming-compliant and said that the respondent was “not blameless” in this context.
DL denied being a bully and said that it had been his preference that the claimant have someone with her when meeting with the respondent.
When it was put to DL that the claimant was not told by letter that a meeting would be disciplinary and that this had been his obligation he replied that the respondent had made the claimant aware and that “she knew”.
It was put to DL that the claimant had gone to bother to get swimming classes but that she had just got a warning. He replied that the respondent was addressing the swimming issues but that the sun-bed issue had come “out of left field”.
In re-examination DL said that the claimant never appealed nor said that anything was not in writing nor told him that she had free sun-bed use. There were tokens for sun-bed use.
Giving sworn testimony, EC said she had been with the respondent for nine years and that she had paid for any use of she had made of a sun-bed. There was no culture of free use.
Under cross-examination, it was put to EC that two people present would testify about free sun-bed use. EC replied that she would not have been there when the claimant was there.
Giving sworn testimony, NM said he had been over nine years with the respondent, that there was no culture of free use of facilities and that he would pay at the desk for facilities e.g. a sunbed.
Under cross-examination, NM said that he never saw free use of sunbeds.
Giving sworn testimony, the claimant said that she started with the respondent in (late) 2011. There were no problems. In May 2015 she was brought in. Asked at the Tribunal hearing if she had given DL assurances, she replied that she had said sorry for not being a swimmer. She booked for six lessons. She did two.
The claimant said that she was just called in to meetings and that there was nothing in writing. Asked at the Tribunal hearing about the right to have a colleague (attend), she said that she was not told apart from with reference to one meeting.
On 7 July (2015) the claimant was brought in by DL. It was put to her that (ability in) swimming would be good for moving on. She was getting lessons. He said that it would be a good skill if she moved on (to another employer). She felt that the respondent was trying to get rid of her.
DL said that he could not have the claimant in wet areas. She was put on cleaning.
The claimant was brought in again in (August) 2015. The claimant thought it was common knowledge about the use of sunbeds (for free). On the 13th the claimant was brought in again and told that the sunbeds was the last straw. The claimant accepted that she should have a proper qualification for swimming. PA (the previous manager) had interviewed her. She was never told that she had to pay for sunbeds. She used sunbeds without paying. So did XC (a colleague) and the previous manager. Sometimes people would leave by that (fire escape) door for convenience for car parking.
The claimant told the Tribunal that she was not clear whether she had been dismissed for the swimming or sunbed issue.
She concluded her direct evidence by clarifying her earnings from the respondent, her length of time before gaining new work and her earnings in that new work.
Under cross-examination, the claimant said that she had known that she could appeal. It was put to her that she had said that she was never told of any warning and a final written warning letter was shown to the claimant mentioning someone accompanying her. The claimant replied that she had been told she could bring someone and had done so. She said that she had got a 7 July letter saying that she could bring someone and said that she had always known that she could bring someone. It was put to her that she had made a choice not to bring someone. She did not disagree.
It was put to the claimant that she had supervised though she knew that she could not swim. The claimant replied that she should have brought it up, that the respondent was trying to help her out and that the respondent could have dismissed her there and then. She accepted that the respondent had given her other hours but said that she had felt that the respondent had wanted to get rid of her. She accepted that the respondent had had a right to meet with her. The claimant added that she had accepted being given a final written warning and had not appealed. She had known she could appeal her dismissal. She said that she she did not know why she was dismissed.
Asked if she had any documents to show that she had been seeking post-dismissal work before she found it, the claimant said that she had not thought to bring it to the Tribunal hearing.
Questioned by the Tribunal, the claimant said that she had done no more than two swimming lessons after it came to light that she could not swim.
Giving sworn testimony, CC said that she had worked for the respondent from March/April 2011 to April 2013. She was a receptionist. She said she had sunbed treatment without paying and that CP (her superior) and his girlfriend had used sunbeds. He would allow it.
Asked about the (fire escape) door, she said that there was no sign on it then. It was a matter of convenience (for car parking).
Under cross-examination, CC agreed that the claimant had been a witness in a civil action for CC. Asked how she had left, CC replied that there had been restructuring. She said that she had left in April 2013 because of bullying by DL.
Determination:
The claimant did not exhaust all avenues open to her and did not appeal her dismissal. The evidence in chief given by the claimant and the case being made on her behalf did not bear cross-examination inasmuch as the claimant readily agreed and contradicted her direct evidence in key areas.
Having considered all evidence carefully, the Tribunal division preferred the evidence of the respondent.
Whilst not relevant to this determination, the division was disturbed to learn that the respondent recruited a non-swimmer and sought no credentials from a future employee in a pool area.
The Tribunal division is satisfied that the unauthorised taking of tokens for sunbed use is gross misconduct. The claimant agreed that she had taken tokens on a number of occasions for sunbed use and the Tribunal division was unanimous that the case under the Unfair Dismissals Acts, 1977 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)