Complainant

Respondent

Anonymised Parties

A fitness instructor

A gym

Representatives

Nil

Aisling McGowan Peninsula Group Limited

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016985-001

23/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016985-002

23/01/2018

The complainant commenced his employment with the respondent as a Leisure Attendant in April 2016. The complainant ceased working for the respondent on 1 February. The complainant lodged a Complaint Form with the WRC on 23 January 2018. The form included two complaints both under the Organisation of Working Time. Both complaints turn on the same set of facts and are dealt with together.

The respondent gave some background to the matter. The complainant commenced employment with the respondent in April 2016 on an hourly rate determined by the nature of the work being carried out. In April 2017, the complainant was promoted to Operations Supervisor where he continued on an hourly rate of pay until August 2017, when he moved onto an annual salary of €27,000 for a 39-hour week.

While employed by the respondent the complainant also engaged in Personal Training Sessions (PTS) as an independent contractor and signed an agreement in July 2016 to that effect.

It is submitted by the respondent that these PTS did not form part of the complainant's contract of employment with the respondent, nor did they form part of the working week.   The PTS were not regular and did not form part of the complainant's duties with the respondent. Taking PTS was an option for staff who wanted to supplement their income.

The respondent submits that the complainant was fully aware of his status as an independent contractor and had confirmed this and his desire to retain the status quo when asked by the respondent whether he would prefer to have the hours included in his normal working week, therefore giving him the right to accrue annual leave and compensation for public holidays. A witness for the respondent gave evidence to support this contention.

The respondent also puts forward that the complainant was entitled to terminate the agreement on notice and was also free to cancel and re-arrange sessions without the consent of the respondent. The respondent was not obliged to provide the complainant with clients for PTS nor was the complainant obliged to conduct such sessions.

In summary, it is the respondent's case that the complainant was engaged in business for himself when conducting personal training sessions as he was earning additional income, separate to his salary. He was not entitled to accrue any benefits normally accrued by employees under a contract of employment during these sessions such as pension contributions, sick pay, etc.

In direct evidence, the respondent stated that when the complainant was engaged in the Personal Training Sessions he was working for his own financial gain, it was done outside his normal hours, he advertised himself for these sessions, and the clients for these sessions were not limited to clients of the respondent.

The only money taken by the respondent relating to these personal sessions was to pay for the necessary insurance and the only reason they looked after the tax element was to make it easy for their staff.   The complainant was paid by a voucher system; at the end of a session the client would give the complainant a voucher from a book of vouchers they had purchased previously which the complainant in turn handed into the respondent's administration office for processing.

The respondent stated that for every book of vouchers sold they received €100.00

The complainant continued to run his sessions when he was on annual leave from the respondent.   He made his own arrangements with his personal clients.

In concluding, the respondent pointed out that it is a not for profit organisation and that many others in the leisure industry allow the same flexibility to their employees also.

The complainant submits that he was employed on both a part-time hourly rate and on a full-time salary basis by the respondent. In addition to the hours he worked for the respondent he also undertook personal training sessions for the respondent at a rate of €30 per hour. These personal training sessions caused the complainant to exceed a typical 40-hour work week.

The complainant submits that these personal training sessions are paid separately by the respondent but were not factored into his holiday pay or Public Holiday entitlements, resulting in the respondent underpaying him for both holiday pay and Public Holidays for the duration of his employment.

At the hearing the complainant stated that he had a contract with the respondent to work a 39-hour week and that the personal training was contracted. He also stated that the money gained from the personal training was subject to tax before he was paid it by the respondent; if he was not looked upon as an employee for these sessions why did the respondent take the tax off his pay; surely he should have looked after his own tax affairs.

The complainant had no recollection of agreeing to keep the status quo as per his colleague’s testimony referred to above. Also, the complainant was told he could not do any of his own work within a 6-km radius of the respondent's gym.

In concluding, the complainant stated that it was revealing that he did not have to invoice his employer for payment for these PTS nor did he have to get special insurance to do the sessions.

The question to be answered in this case is whether the complainant was working for himself or for the respondent when he was doing Personal Training Sessions.

In this case, the facts which support the complainants case are; these sessions took place in the respondent's premises (gym), the respondent looked after tax matters related to the Personal Training Sessions; the complainant did not have to invoice the respondent; the complainant did not have to take out personal insurance to cover the sessions.; he was told he could not carry out other similar work within a 6km radius of his employer's gym;   the respondent retained €100 per book of vouchers sold.

Facts which support the respondent's case are; staff do not have to do the Personal Training Sessions, it is entirely up to themselves; the complainant did not have to submit any reports to the respondent regarding the sessions; if the complainant could not fulfil a Personal Training Session appointment he would contact the client himself; the complainant ran his own social media ads for clients; clients for personal training did not have to be clients of the respondent; while on annual leave from the respondent he continued to do personal training.

The financial aspects of this arrangement need to be looked at carefully.   At the hearing the respondent stated that for every book of vouchers sold they received €100 and although which seems more than enough to cover insurance/ administration costs. To me this indicates that the respondent benefitted monetarily from the Personal Training Sessions. For instance, the Silver Package costs €250 for a programme of 10 by 30-minute sessions. Therefore, the cost per hour is €50. The complainant is paid €30 per hour for these sessions so the balance of €20 per session must go to the respondent.

The fact that the complainant was also barred from doing any other type of personal training within a 6 kilometre radius of the gym indicates a substantial degree of control by the respondent.

The Act defines "working time" as

"working time” means any time that the employee is—

( a) at his or her place of work or at his or her employer’s disposal, and

( b) carrying on or performing the activities or duties of his or her work,

I find that the Personal Training Sessions have many characteristics of "working time" and should be treated in the same way.

On balance, I find that the time spent by the complainant carrying out the Personal Training Sessions should count as "working time", i.e. time working for the respondent. Therefore, the complainant is entitled to have these hours included in the calculation of holiday pay and pay for Public Holidays, for the six-month period preceding the termination of his employment on 2nd February 2018.

CA 00016985 -001

The respondent is to pay the complainant the difference between what was paid to him in respect of holiday pay and what would have been paid to him for holiday pay, if the time spent doing personal training sessions had been included in calculating his holiday pay, for the period 2 August 2017 and 2 February 2018.

CA 00016985 -002

The respondent is to pay the complainant the difference between what was paid to him in respect of Public Holidays and what would have been paid to him for Public Holidays, if the time spent doing personal training sessions had been included in calculating his Public Holiday pay, for the period 2 August 2017 and 2 February 2018.

Working time, status, control.