Complainant

Respondent

Anonymised Parties

A Fitness Instructor

A Gym

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-00038438-001

30/06/2020

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00038438-003

30/06/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00038438-004

30/06/2020

The Complainant was employed as a fitness instructor by the Respondent from 30 August 2019 until 21 January 2020 She was paid €600 net on a fortnightly basis for 35 hour-week.

CA-00038438-001:

The Complainant submits that she did not get a daily rest break of 11 consecutive hours in contravention of the Organisation of Work Time Act 1997.

CA-00038438-004:

 The Complainant submits that she was discriminatorily dismissed on the ground of race for an alleged conflict of interest by engaging in an external business, because other white colleagues, who were engaged similarly in an external business, were not dismissed, and this was contrary to the Employment Equality Acts 1998-2015.

CA-00038438-003 – Unfair Dismissal section 13 of the Industrial Relations Act 1969

The Complainant submits that she was dismissed without procedure or fairness and is seeking a recommendation in her favour under section 13 of the Industrial Relations Act 1969.

The Respondent denies all claims.     

CA-00038438-001 – Rest Period.

In relation to this statutory scheme, the Complainant submits that she was regularly required, obliged and instructed to work in a manner contrary to Section 11 of the Organisation of Working Time Act. 1997 where it states:

11. An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.

She submits that during the currency of her employment with the Respondent, she was regularly required to work shifts which finished at 9pm or 10pm at night. The Complainant was required to recommence work at 6.30 am the following morning, being a rest period of 8 or 9 hours (depending on when her nightshift finished) and being under the minimum required rest period pursuant to Section 11 above.

The Complainant, in evidence, said there was no clock- in scheme in existence, to the best of her knowledge. She accepted in cross examination that the denial of proper rest period did not happen every week, but that when it did happen, it occurred 3 or four times that week.

It was put to the Complainant in cross examination that she was incorrect in asserting that the contravention she alleged under the Act did not occur every week, as she had stated, but on four occasions only, which were listed as 15 August, 3 September, 5 September and 11 September 2019.  She accepted that it didn’t happen every week but, in the weeks, it did happen, it was three or four times a week. She did not accept that there was a ‘log in, log out’ smartphone app in operation but stated instead that the system, in reality, was operated on paper. 

 The Complainant seeks a declaration that the complaint is well-founded and that the complainant be awarded compensation pursuant to Section 27 of the Organisation of Working Time Act.

CA-00038438-004 – Discriminatory Dismissal

The express terms and conditions of the Complainant’s employment are set down in the written contract between the parties and dated 30 August 2019. At paragraph 2 of the contract, the Complainant’s employment was subject to a “trial period” of six months as follows:

2.1 Your employment is subject to a trial period of six months. If at the end of that time we are satisfied with the quality of your work we shall tell you your employment is permanent.

2.2 If during or at the end of your trial period we are dissatisfied with your work we may terminate your employment by one week’s notice. If you wish to terminate your employment contract during your trial period you must give us one week’s notice.

2.3 The company reserves the right to extend the trial period if thought necessary.

The Complainant was dismissed from her employment with the Respondent on 7 January 2020 being within the six-month probationary period. Specifically, it was alleged by the Respondent that the complainant mis-conducted herself and was in breach of the terms and conditions of her contract of employment in that she failed to comply with paragraph 11.3:

11.3 You may not do other work (even voluntary work) or engage in any other business outside your hours of work for us if in our reasonable opinion this could be prejudicial to your work for us. You agree that we do not have to give you reasons why we form this opinion.

The mis-conduct alleged by the Respondent was that, in breach of paragraph 11.3 quoted above, the Complainant was running online fitness coaching in her spare time which, it appears, was deemed by the Respondent to be a material breach of contract and conflict of interest and/or prejudicial to the Complainant’s work with the Respondent and the Complainant was dismissed on that basis

The Complainant submits that her dismissal during the probationary period on 7 January 2020 was discriminatory within the meaning of Section 6 (1) (a) and 6 (2) (h) of the Employment Equality Acts 1998-2015, as amended. The Complainant’s case is that she was treated less favourably than other persons in a comparable situation by virtue of the fact that she was of a different, race, colour, nationality or ethnic or national origin in comparison to those other persons. In comparison, two of the Complainant’s former work colleagues, both fitness instructors, carrying on same or like work to the complainant and who were Irish and white, were also conducting fitness classes online in their spare time. Those comparator employees were not dismissed by the Respondent.  No sanction or other reprimand was applied to these employees. On the contrary, these comparators continued to be employed with the Respondent and continued to carry on online fitness coaching in their spare time. It is the Complainant’s case that her dismissal was a flagrant act of discrimination on the part of the Respondent in that she was treated in an extremely prejudicial and in a blatantly less favourable manner in comparison to two of her former white Irish work colleagues.

 The Complainant asserts that, in a case such as this where there is an allegation of conduct contrary to the terms and conditions of the contract of employment wherein the sanction may be up to and including dismissal, as a matter of basic first principles, reasonable, acceptable and fair procedures should necessarily be in place, observed and applied when dealing with the alleged (mis)conduct of the Complainant. The Complaining submits that no such procedure was followed by the Respondent in relation to the complainant’s dismissal and no such opportunity was afforded.

In such circumstances, the claimant seeks compensation pursuant to Section 82 of the Act for the discriminatory acts complained of and as outlined above.  

Summary of the Complainants Evidence – Dismissal:

On 7 January 2020 the Complainant posted up details of online fitness classes. She was not offering a physical location for such training but instead such classes would be online, and she expected an international take-up of clients. She started work that day at 2pm but was called in to the Manager’s office. She was told she was in breach of her contract, specifically in breach of para. 11.3 in that she was engaging in an outside business, which had just been posted online. She said to the Manager that she would delete the post immediately, but the Manager said she was still dismissed regardless.

The Complainant then gave evidence in relation to comparators who she believed were involved in similar online classes, or otherwise had other jobs, but who were not dismissed:

She referred to GM whom she believed was a friend and worked in a similar capacity with the Respondent. Ms A came into the Respondent co. and the Complainant stated that Ms A told her that she also posted a business online with no difficulty. The Complainant relied on snapshots of an online site which were exhibited at the hearing.

The Complainant stated that EOR, another comparator, was employed before the Complainant and was obviously not on probation. The Complainant states that she understood from EOR that was ok to carry out spare time online work. The Complainant relied on a snapshot of EOR’s online site.

The Complainant also referred to RC whom she said did outside work and that the Respondent facilitated her in this work.

She stated that her jobseekers’ allowance now equates to €12.70 and had she remained, and not been dismissed she would have been entitled to the €350 per week pandemic payment. She submits her net loss per week is €237.00 per week equating to €12,000 per year. She is currently doing on the job training without pay.

In cross examination the Complainant accepted that she had not spoken with management at any stage about the possibility of posting her external business online. She accepted that she had a conversation with the Director on 7 October 2019 with regard to negative reviews on her choice of music for workout sessions. She denies that there were negative reviews about her lack of motivation. She also denies that there was an injury to a client to which she didn’t attend. She stated that she is trained first-aid person and would have responded had it been brought to her notice. 

She accepted that she had a conversation with the Director on 21 November 2019 about the purchase of second-hand equipment that the Respondent was replacing with new equipment. She said that she had no gym equipment at home and this potential purchase was solely for her own personal use.  She accepted also that the online snapshots were taken in June 2020 and not before 7 January 2020, the date of her dismissal. In re-examination she again re-iterated in that it was her position that the two Comparators, who were engaged in external on-line classes, were doing so before the date of her dismissal.

The Complainant’s solicitor made a short submission on the Instagram posting process where he said that posts can be easily removed. He stated that it should be noted that EOR, for example, had no posts from 12 December 2019 to 23 May 2020.  

CA-00038438-003 – Unfair Dismissal section 13 of the Industrial Relations Act 1969

The Complainant was dismissed from her employment with the Respondent during the probationary period as outlined above.

The Complainant submits  that it is established law in the WRC, the Labour Court and the Superior Courts that, even during the probationary period, an employee is entitled to have the principles of natural justice and fair procedures applied to his/her case (for example those procedures set down in the Code of Practice on Grievance and Disciplinary Procedures SI number 146 of 2000) when there is an allegation of (mis)conduct made against the employee which could or would have the consequence of leading to a dismissal. The Complainant cites Beechside Company Limited T/A Park Hotel Kenmare v A Worker, the Labour Court LCR21798.

Having considered the positions of both sides, the court is of the view that the procedures adopted in the termination of the claimant’s employment were seriously flawed. He was not afforded fair procedures in accordance with the code of practice on grievance and disciplinary procedures SI number 146 of 2000.

Where an employee is considered unsuitable for permanent employment, the court accepts that an employer has the right, during a probationary period, to decide not to retain that employee in employment. However, the court takes the view that this can only be carried out where the employer adheres strictly to fair procedures in the particular circumstances of this case, there is no reason to doubt the claimant’s assertion that his reputation was seriously damaged by the actions of the respondent. The court has consistently held the view that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.

The Complainant submits that she should have been, at the very minimum, afforded an appropriate opportunity to answer the allegations being made against her, to have appropriate representation, to have a hearing of the complaint and be given the facility to reasonably respond whether in writing, orally or otherwise to the allegation of misconduct. The Complainant asserts that no such procedure, whether in place or not, was followed by the Respondent in relation to the complainant’s dismissal and no such opportunity was afforded.

The Complainant also relies on the recent Judgement of the Court of Appeal in the case of Donal O’Donovan v Over-C Technology Ltd 2021 IECA 37 which analyses and reviews the common law position as follows:

“During a period of probation, both parties are - and must be - free to terminate the contract of employment for no reason, or simply because one party forms the view that the intended employment is, for whatever reason, not something with which they wish to continue. Neither party can hold the other to the continuation of the employment against the wishes of the other. I do not accept the court can imply a right to fair

procedures - still less to uphold a cause of action for the breach of such an alleged right - in relation to the assessment of an employee’s performance by an employer (other than for misconduct, which does not arise here) during the probationary period, as this would negate the whole purpose of a probationary period.

As per Ms Justice Costello at paragraph 49 of her Judgement in relation to the law applicable to termination of a probationary employee, on performance grounds during the probationary period, such that the court held there is no implied right to fair procedures in that specific instance.

The Complainant submits further that the court then goes on to deal with the issue of “misconduct” at common law as follows:

“This statement of the law is clear. This authority has not been questioned and has been frequently cited and followed. Two principles are relevant to the decision in this case. Firstly, confirmation that an employer can terminate employment for any reason or no reason, provided adequate notice given. This applies whether or not the dismissal occurs during the probationary period. Secondly, it is authority for the proposition that the principles of natural justice apply to cases involving dismissal for misconduct, but not termination on other grounds.”

The Complainant submits that the Respondent has singularly failed to apply any of even the most basic rules in relation to fairness of procedure in relation to the alleged misconduct and/or conduct contrary to the terms and conditions of her contract of employment, whether under the statutory scheme, or at common law. The principles set down above in the Labour Court and Court of Appeal are clear authority for the proposition that, even during the probationary period, the employer must apply the principles of fair procedures and natural justice to cases involving any alleged misconduct or conduct contrary to the terms and conditions of the contract of employment which might lead to a termination of employment/dismissal of the employee.

The Complainant submits she was unfairly dismissed and seeks a recommendation that she is entitled to compensation for her unfair dismissal pursuant to Section 13 of the Industrial Relations Act 1969.

CA-00038438-001 – Rest Period.

A Director of the Respondent company gave evidence that there was a ‘log- in, log- out’ system in operation and he exhibited an Excel spreadsheet, by screen share, which showed that the alleged contravention happened on four times only:  15 August, 3 September, 5 September and 11 September 2019 and that there was an allowance for compensatory rest on the following days. He stated that the Complainant was covering for colleagues who were on leave and that the Complainant was also accommodated in a similar fashion when it was her turn to take leave. He refuted the Complainant’s claim that the scheduling was carried out with pen and paper as this would be impractical in a company with 30 employees.

CA-00038438-003, -004:  Dismissal

A summary of the Director’s evidence is as follows:

The comparator R.C. was a psychology/nursing graduate and it was arranged from the start of her employment that she would be facilitated in a second job that she had as a care worker in the health sector. The contract of employment is the same for everybody and the reason that she was not disciplined was because it was not in conflict with the Respondents business and it was an arrangement agreed by both parties from the outset of her employment. 

The comparators EOR and GM had only posted on Instagram from June 2020, and he was not aware of any posts or external work carried out by them prior to the dismissal of the Complainant.

He met the Complainant on 7 October 2019 and she asked if she might be able to purchase the old gym equipment that was being replaced. He said to her that that you cannot work for us if you are going to set up your business in competition to us.

He met the Complainant on 21 November 2019 in relation to negative alerts online where her ratings had fallen. He said these complaints concerned allegations of a loss of motivation and a lack of response to an injury suffered by a client.

On 7 January 2020 he was made aware of an online post by the Complainant advertising online classes. The Complainant had not made the Respondent aware of this activity and he felt it was in direct conflict to the business. He ordered the immediate termination of her employment. He said that clause 11.3 on conflict of interest was in place for a particular reason because the nature of the fitness business is that fitness instructors build up relationships with clients who can easily be poached into a new business. Other employees were let go in the past by the Respondent for similar reasons.

In cross examination he accepted that he considered her actions to be a breach of contract amounting to gross misconduct.

CA-00038438-001 – Rest Period.

In accordance with Section 11 of the Organisation of Working Time Act 1997, an employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.

In this case I believe there were four infractions of the Act: on 15 August, 3 September, 5 September and 11 September 2019. I preferred the evidence of the Complainant over the Director on the issue of compensatory rest. The Complainant gave convincing evidence that on the occasions she was required to work late until 10pm, she was required to come in to work on the following morning for the 6.30 pm shift. I was not convinced by the Respondent’s evidence that she was afforded compensatory rest on those occasions.  

Taking the above into account, I conclude that the complaint is well founded.

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to a contravention under Section 11 of that Act. As I have found the Respondent to have acted   in contravention of Section 11 of the Act, I require the Respondent to pay the Compensation of €600, the equivalent of two week’s wages, as is just and equitable having regard to all of the circumstances.

CA-00038438-004 – Discriminatory Dismissal

Section 6 of the Employment Equality Acts 1998-2015 (the Act) define discrimination as follows:

(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

…(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”) …

The burden of proof is on the Complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably on the discriminatory ground cited. Section 85A of the Act states as follows:

(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Commission to the [Director General] under section 85(1), facts are established by or on behalf of the Commission from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section “discrimination” includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

In Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how the above section is to be interpreted.:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Complainant submitted that she was subject to discriminatory treatment by nature of the fact that the white workers were treated differently at work, in that she was dismissed for posting online classes whilst on probation, ostensibly in competition with the Respondent, whilst they engaged in similar activity but were not dismissed. The Complainant submitted documentary evidence in the form of snapshots of Instagram accounts for two comparators. However, and crucially, the snapshots submitted were of the comparator’s social accounts on a date in June 2021, approximately 6 months after the Complainant was dismissed.  The Respondent gave plausible evidence that this was during the Covid 19 lockdown, when staff had been laid off and were free to post such advertisements. I also note, that outside of her original submission,  the Complainant made no reference in the totality of her evidence to any racial element, either manifest or otherwise, that she experienced during the currency of her employment, nor in the termination of her employment.  The Labour Court in Arturs Valpeters   stated that facts have to be established first by the Complainant and that they be of sufficient significance to raise a presumption of discrimination.  The Complainant did establish that she was covered by the protected ground in that she was of Zimbabwean heritage, but she did not establish the primary fact on credible evidence that her comparators were engaged in similar activity, namely engaging in online fitness classes, at the time the Complainant was dismissed.

Having considered the evidence on this complaint I find the Complainant did not establish a prima facie case and therefore she did not discharge the burden of proof as referred to under section 85A of the Acts. I conclude that the Complainant was not subject to discriminatory dismissal on the grounds of race. 

CA-00038438-004 –   Unfair Dismissal under section 13 of the Industrial Relations Act.

In Beechside Company Limited T/A Park Hotel Kenmare v A Worker LCR21798, The Labour Court stated: “The Court has consistently held the view that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.”

It is clear to me in this case that the Complainant was summarily dismissed for posting an advertisement for online fitness classes, an act of alleged misconduct. It is also clear that the Respondent did not comply with S.I. 146 of 2000., The Code of practice on Grievance and Disciplinary Procedures) The Complainant was not allowed to answer the allegation being made against her, there was no appropriate investigation nor was she afforded proper representation. Furthermore, I found the manner of the dismissal to be humiliating for the Employee.

In recommending compensation, I also find that there was an element of contribution by the Complainant in that I believe she behaved rather recklessly in not first consulting with the Respondent before posting her classes online. Having considered all the elements of the case I recommend that the Respondent pay the Complainant compensation of €6000 for the unreasonable and unfair manner of her dismissal.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA- CA-00038438-001:

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the Complaint. In accordance with S27(3) of the Act, I find that the Respondent acted in contravention of Section 11 of the Act.  I direct the Respondent to pay the Complainant compensation of €600, the equivalent of two week’s wages, as is just and equitable having regard to all of the circumstances.

CA- CA-00038438-004: Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Having considered the evidence and submissions regarding this complaint I find the Complainant did not establish a prima facie case and therefore she did not discharge the burden of proof as referred to under section 85A of the Acts. I conclude that the Complainant was not subject to discriminatory dismissal on the grounds of race.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

CA- CA-00038438-003: Having considered all the elements of the case I recommend that the Respondent pay the Complainant compensation of €6000 for the unreasonable and unfair manner of her dismissal.

Employment Equality Acts 1998-2015, Race Grounds, Burden of Proof, section 13 of the Industrial Relations Act 1969, Section 11 of the Organisation of Working Time Act 1997.