ADJ-00008488

Complainant

Respondent

Anonymised Parties

A Gym Manager

A Gym Owner

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00010884-001

19/04/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00010884-002

19/04/2017

The Complainant commenced her employment as a gym manager with the Respondent, a gym owner, on 29th September 2014 and terminated her employment on 20th November 2016. The Complainant was paid a monthly gross salary of €3,333.33. Compensation is the preferred redress of both parties. A Complaint Form was received by the WRC on 19th April 2017. The fact of dismissal is in dispute. There were two hearings in the WRC relating to this case, the first on 29th August 2017 and the second on 1st November 2017.

The Complainant provided a detailed written submission.

The Complainant submits that she was employed as a gym manager and was responsible for six staff. The Complainant's work hours were contracted at 40 hours per week but she typically worked in excess of those hours as she was expected to be available outside her rota hours. In addition to her normal salary the Complainant received commission depending on the gym turnover exceeding a certain amount. In 2015 the Complainant achieved her target. In direct evidence the Complainant stated that her branch had been very successful and that in December 2015 it had had the highest return of any gym in the chain. The Complainant submits that she was expected to be on call 24/7 and during her employment was contacted by the Respondent or others in the management team in the evenings and at weekends. She was also expected to attend breakfast briefings every second Saturday and training days on Saturdays, for no extra pay or time off in lieu.

At the end of 2015 the Complainant was tasked with organising training for her staff for each Saturday leading up to Christmas. The Complainant says that the staff were not happy to do this and she passed this on to the Respondent. She was told by another member of staff that the Respondent was not satisfied with this response and that he was annoyed at the Complainant. The Complainant believes that this episode affected the relationship she had with the Respondent and that things became difficult thereafter.

At the beginning of 2016 the Complainant submits that her targets were increased by 33%; she believes this increase was set deliberately high so that she would not be able achieve it.

A meeting took place on 11th February 2016 between the Complainant and the Respondent at which the Complainant alleges the Respondent told her that she had personality issues which needed to be fixed. The Complainant found the conversation to be "scary" and "very controlling".   In direct evidence the Complainant stated that this meeting was "too intrusive" and "was upsetting".

On 9th March 2016, the Complainant could not stay on late to attend a talk which she alleges greatly annoyed the Respondent. In direct evidence the Complainant stated that she could not stay as she had a previous engagement. She said the Respondent became extremely annoyed with her even though she was not the host of the talk.

On 16th March 2016, the Respondent emailed a four-page letter to the Complainant's personal email address. The letter upset the Complainant due to its personal nature and the suggestion that if she was not willing to give herself totally to the role she should, "do something else".

On 22nd March 2016, the Complainant received a call from her Area Manager (hereafter Respondent B) regarding a former colleague to whom the Complainant was a friend on Facebook. The Complainant was shocked that the Respondent should have an issue with her being a friend with a former colleague.

On 22nd March 2016, at a meeting with Respondent B, the Complaint says that she broke down in tears at the way she was being treated by the Respondent.   The Complainant alleges that Respondent B apologised on the Respondent's behalf, explaining that he, the Respondent, was very stressed.

On 30th March 2016, the Complainant was in email contact with Respondent B about a marketing plan. The Complainant felt she was being micromanaged and received an excessive number of emails. A meeting was arranged to discuss the marketing plan. The Complainant submits that she was worried about what might transpire at this meeting and requested that she be accompanied by a colleague. The Complainant contends that, because she requested that someone accompany her to the marketing meeting, she received an email from Respondent B inviting her to attend a disciplinary hearing. This was the first the Complainant had heard the Respondent was considering disciplining her.

In cross examination, the Complainant agreed that there were problems with her performance but the Complainant stated that there were reasons for it which she put to the Respondent; the Respondent, according to the Complainant, did nothing to help the situation.

On 1st April 2016, the Complainant attended a disciplinary hearing.   Following the hearing, the Complainant returned to her gym where she submits the Respondent met with her and started talking about the gym losing money. The Complainant submits that the Respondent became aggressive, slamming his fist on the desk and gesturing with his hands to show that he was furious with her. In direct evidence the Complainant stated that the Respondent was furious with her at this meeting, that he was, "totally out of control", and that she had to leave the office to diffuse the situation.

On foot of the disciplinary hearing which had taken place on 1st April 2016 the Complainant was issued with a Formal Written Warning on 6th April 2016. The Complainant appealed the warning but following a hearing the warning was upheld.

On 27th April 2016, the Complainant submits that she had a meeting with Respondent B at which Respondent B became very aggressive towards her and pulled a pen from her hand. The Complainant followed up this meeting by emailing Respondent B about her erratic and unacceptable behaviour.   The Complainant stated in direct evidence that Respondent B did not want to shake her hand at this meeting and had been aggressive in pulling a pen out of her hand.

On 23rd May 2016 a staff member handed in his resignation and the Complainant recalls the Respondent saying to her that she should be socialising with staff more often.

On 30th August 2016, a recently appointed Supervisor invited the Complainant to an investigation meeting. The meeting took place on 1st September 2016 during which the Complainant detected that the Supervisor wanted her moved from her branch to another smaller branch. On the same day, the Complainant became aware that interviews were being held in her office at which candidates were being told that the position they were being interviewed for was for manager in the Complainant's own branch. The Complainant found this to be very upsetting. The Complainant is of the view that the intention of the disciplinary action being taken against her was to get her out of her branch and move her to a smaller branch.

On 5th September 2016, the Complainant was invited to attend a disciplinary hearing which took place on 7th September 2016. On 16th September 2016, the Complainant received a Final Written Warning.

On 14th September 2016, the Complainant alleges that she had been told by the Supervisor that she should never have been hired. The Complainant gave direct evidence to support this allegation.

On foot of the Final Written Warning the Complainant was told by the Supervisor that she was going to be moved from her branch to another branch and that if she didn't want to move she should just leave. In direct evidence the Complainant stated that she never agreed to the move as she knew if she moved she would be managed out as that branch was already underperforming.

The Complainant appealed her Final Written Warning and an appeal hearing took place on 23rd September which by her recollection lasted three hours.

On 26th September, the Complainant was extremely distressed and attended her GP who signed her out on stress leave.

The Complainant submits that given all of the circumstances, including breach of contract by her employer, as well as their unreasonable behaviour and treatment of her, as well as the effect it was having on her health, the Complainant felt that she had no other choice but to resign her position. As a result, the Complainant resigned her position by letter dated 20th November 2016.

In direct evidence the Complainant stated that she wanted to go back to work but felt that her employer wanted her gone.   She did not take the decision to leave lightly. In response to a question regarding why she had not formally lodged a grievance the Complainant stated that there was no way to lodge a formal grievance and that she did not trust "them". To her, the grievance procedure seemed pointless, going around in circles with the same three people.

Under cross examination the Complainant agreed that she had applied for a job with another employer in May 2016 but that the reality was she did not wish to work elsewhere.

The Complainant's GP confirmed that the Complainant was available to work from the November and she took up alternative employment in June 2017 on a monthly wage of €2,083.33.

A former colleague of the Complainant gave oral evidence in relation to her experiences of the organisation. I do not believe her testimony to be pertinent to the case in hand.

In conclusion, the Complainant believes she was entitled to terminate her contract of employment as the Respondent had significantly breached her contract of employment going to the root of the contract, in effecting a sham disciplinary procedure and as part of the disciplinary sanction, in transferring the Complainant to a different location of work without any consultation.   This, according to the Complainant, is a fundamental change to and breach of her contract. There is no provision in the Respondent's disciplinary procedure to transfer an employee as part of the sanction.

The Complainant also believes that it was reasonable for her to terminate her contract of employment in circumstances where the Respondent instigated disciplinary procedures against the Complainant in response to her raising issues with them.

The Complainant submits that at the time she terminated her contract she had completely lost trust and confidence in the Respondent and had no other choice but to resign in circumstances where she believed the Respondent eventually wanted her out of the business.

The Complainant submits that the breach of her contract by the Respondent was so fundamental that the Complainant was entitled to resign her employment and such resignation amounted to a constructive dismissal.

The Complainant cites the cases of McCarthy v O'Shea, O'Lionaird Partnership t/a Bebe Creche UD2050/2011; Murray v Rockabell Shellfish Ltd. [2012] 23 E.L.R. 331; Harkin v Guinness Storehouse UD496/2015; to support her position. 

The Respondent provided a detailed written submission.

The Respondent denies the allegations made by the Complainant. In response to the allegations made by the Complainant the Respondent submitted that in the run up to Christmas 2015, the Complainant appeared to lose interest in her role when she was advised that there would be a training session conducted on a Saturday. The Complainant instructed the Respondent that she would not be attending as it was unfair to have training in the run up to Christmas.

It is submitted that that the Respondent was conducting a seminar in March 2016 and requested that the Complainant as Manager stay for the discussion. The Complainant decided not to remain, even though the seminar was to the benefit of her clients and staff. She would have been the host of the event. It is denied that the Respondent was annoyed with the Complainant, nor did he refer to it after the event.

The Complainant has alleged that on the 15th March 2016, the Respondent blamed her for a staff member leaving their employment and she has further alleged that she was told that she did not have the staff member passionate about her role. It is submitted that when the staff member resigned, the Respondent was disappointed as this staff member was there for some time and one the top performers at the branch. It is submitted that the Respondent made enquiries into the reasons for the staff member leaving and asked was there anything they could do or could have done to prevent her leaving. It is denied that the Respondent blamed the Complainant for the loss as alleged nor did he make enquiries into the Complainant’s personal life as alleged.

It is accepted that the Respondent sent a detailed letter to the Complainant on the16th March 2016 to motivate her in her role. It is denied that this letter was unprofessional. The letter identified areas in which the Complainant needed to improve and offered her words of support and encouragement.

It is accepted that Respondent B asked if the Complainant was friends with a former employee on Facebook, because the employee had left employment in suspicious circumstances. It is denied that Respondent B ever said if you are “on their side you wouldn’t be friends with said ex-employees.”

The Complainant has further stated that she broke down in front of Respondent B with regards her alleged mistreatment by the Respondent at this time. The Complainant has alleged that Respondent B said that the Respondent was stressed and she apologised on his behalf. It is denied that this what Respondent B said to the Complainant.

The Complainant has alleged that during a meeting regarding marketing strategy on the 30th March 2016, that Respondent B was erratic and unprofessional. The Complainant further alleges that she was receiving up to 20 emails a day, micromanaging her and even received an email at 1am.   Respondent B denies she was micromanaging the Complainant but rather sending work related emails only to the Complainant’s work email address when she (Respondent B) was working. The Complainant was only expected to read and or respond during her working hours. Respondent B gave direct evidence to support this view.

The Complainant alleges that because of asking to be accompanied to a meeting, she was invited to a disciplinary hearing on the 1st April 2016. It is denied that the Complainant was invited to a disciplinary hearing for the reasons as alleged but rather she was invited to such a meeting to address issues of concern regarding her performance. The Complainant has further alleged that on the 1st April 2016 after her disciplinary hearing, the Respondent called her into the office, where he closed the door and allegedly proceeded to row with her and allegedly became aggressive in the way he was speaking to the Complainant. It is denied that the Respondent ever raised his voice to the Complainant. The Respondent gave direct evidence to support this version of events.

It is also denied that Respondent B ever spoke to the Complainant like a child or implied that she did not understand her as alleged on the 5th April 2016. It is submitted that further to the Complainant’s disciplinary hearing and appeal regarding her performance, Respondent B was required to have another discussion with the Complainant on the 27th April 2016 with regards her output of work and lack of communication to Senior Management when deadlines were not being met. It is denied that Respondent B was aggressive towards the Complainant during this meeting, and it is also denied that Respondent B grabbed a pen from the Complainant. Respondent B gave direct evidence to support her version of events. The Complainant then sent an email to Respondent B that evening outlining her unhappiness with the situation and accused Respondent B of being “extremely erratic”.

The Complainant has alleged that when another member of staff handed in their notice on the 23rd May 2016, the Respondent again somehow implied it was the Complainant’s fault. It is submitted that when the staff member left he advised the Respondent that he had not been made feel welcome. Again, the Respondent merely made enquiries into what could have been done to retain the employee and he made enquires as to what events the Complainant was organising with regards team bonding. There was absolutely no implication that the employee leaving was the Complainant’s fault.

It is denied that a Supervisor, when inviting the Complainant to an investigation meeting was rude in his manner. It is further denied that he told the Complainant that she had “personality issues” and failing in work.

It is accepted by the Respondent that interviews were held in the Complainant’s office on the 1st September 2016. It is denied however that the interviews were for the Complainant’s role but rather they were interviews for screening purposes for any position in any of the Respondent's gyms. The position was advertised for the Dublin and Kildare region and the job was advertised on a rolling basis.

It is denied that the Complainant was told by the Supervisor that she should never have been hired as she did to have the experience on the 14th September 2016 as alleged. The Supervisor gave direct evidence to support this version of events.

While it is accepted by the Respondent that the Complainant was advised that she was to be transferred to another branch in the coming weeks it is denied that the Complainant was told that if she did not want to go to that branch that she should just leave. It is further denied that the Complainant was told that she was costing the business money.

In summarising their own position the Respondent submitted that the Complainant, and in turn her branch, had not been not performing well. Attempts were made to assist the Complainant but to no avail. Due to the Complainant's poor performance she was invited to a disciplinary hearing on 1st April 2016. The outcome of this hearing was that the Complainant was issued with a written warning.

The Respondent submits that when a new area Supervisor was appointed, he went out of his way to assist the Complainant achieve her targets. However, despite the special assistance the branch figures did not improve. The Complainant was consequently invited to a meeting near the end of August, to investigate her poor performance.   Following the investigative meeting the Complainant was invited to a disciplinary meeting which took place on 7th September 2016. The outcome of this hearing was that the Complainant was issued with a Final Written Warning. The Complainant was also informed that she would be transferred to another branch because her underperformance.

The Complainant appealed the outcome and an appeal hearing took place on 23rd September 2016. At the appeal hearing the Complainant undertook to send on information to the Respondent outlining the actions she had/was taking to improve the performance of her branch; no such information was received by the Respondent. A Performance Improvement Plan (PIP) was put in place for the Complainant following the issuing of the Final Written Warning.

The Complainant went sick on 26th September, a sick cert was provided. She remained out of work until she tendered her resignation by letter on 20th November 2016.

The Respondent submits that upon receipt of the resignation letter he wrote to the Complainant asking her to reconsider her decision and asking her to meet with the Respondent to discuss the matter. The Complainant responded on 28th November 2016 by letter, confirming her resignation, stating that she had no faith in the process and that she did not believe the Respondent to be fair.

The Respondent again wrote to the Complainant on 1st December 2016 offering the Complainant the opportunity to discuss any issues she may have or the option of discussing the issues with an independent 3rd party, if she wished to do so. The complainant replied on 5th December 2016 re-iterating her resignation and saying she would not take part in any meeting with the Respondent. The Respondent accepted her resignation on 8th December 2016.

The Respondent submits that the Complainant resigned as she was the subject of a disciplinary process with regards her performance as Manager as opposed to her employers acting unreasonably in any way or breaching the terms of her contract of employment. It is submitted that the Complainant was failing in her duties and her performance needed to be addressed by the Respondent, which is not unreasonable.

The Respondent submits that while the Complainant was issued with two warnings, which included a final written warning, the Respondent adhered to the principles of fair procedures and natural justice in their dealings with the Complainant. Furthermore, the Respondent sought to assist and develop the Complainant to ensure she could meet her targets, motivate and manage her team and ensure the gym was running efficiently

The Respondent believes it of note that the Complainant failed to raise a grievance with her employer regarding her alleged issues during her employment and she further failed to raise a grievance when recommended to do so by the Respondent. It is submitted that the Complainant as a manager was fully aware of both the disciplinary and grievance / personal harassment policies and failed to utilise them.

The Respondent also offered that the Complainant’s grievances would be dealt with by an independent third party to which the Complainant replied, “It is far too late at this stage to be making any proposals to have an independent third party attend a meeting at a time after I issued my resignation over two weeks ago.”

The Respondent puts forward that real and genuine efforts were made to deal with the Complainant’s issues when they came to light. They offered the Complainant the appropriate mechanisms in which to have her grievances addressed, even offering her the benefit of an independent third party to investigate, which she ignored.

It is submitted by the Respondent that the fact the Complainant resigned without ever engaging in the grievance process proves fatal to her case. Furthermore, it is submitted that the Complainant was asked to reconsider her resignation on two separate occasions which she refused to do.

The Respondent cites the cases of Ruffley v The Board of Management

of Saint Anne’s School [2017] IESC 33; Ian Flaherty v College Freight Ltd. [2009] 6

JIEC 2901; An Employee v Employer (UD720/2006)to support their position. 

I have considered this matter carefully.

Having listened to the evidence and studied the written submissions it is plain to see that conflicts of evidence abound in this case, which makes it difficult to ascertain where the truth lies in relation to the various incidents aired.

What is clear is that the Complainant was put under increasing pressure to achieve results and some of the methods used were unorthodox, however, unorthodox methods are not necessarily unfair or illegitimate.

Relations between the parties deteriorated in late 2015 and the perceptions of many events differ between the parties from that time on. Without doubt a 33% increase to targets seems unreasonable, but this figure was decreased later.

The email of 11th March 2016 veered into areas which in general go beyond the usual employee/employer relationship, however it could be argued that the contents of that email reflect the ethos and philosophy of the organisation.

The mooted transfer of the Complainant to another branch was either (i) an illegitimate demotion or (ii) a chance for the Complainant to start afresh. Whatever the reason I do not believe this suggested transfer was such as to justify a resignation.

The fact that the Complainant was considering leaving her employment with the Respondent in May 2016 does indicate a certain state of mind and does not enhance the Complainant's constructive dismissal argument. However, I do not give much weight to the argument that this indicates that the Complainant was definitely set on leaving her employment thereafter.

What does undermine the Complainant's case is the fact that she did not utilise the grievance process at any time, even after she had gone out on sick leave.   It is particularly telling that the Complainant turned down the offer of an independent third party to becoming involved in the matter.

For the reasons fully set out above I do not uphold complaint CA-00010884-001 and it is dismissed.

Constructive dismissal, grievance procedures.