Complainant

Respondent

Parties

Anna Bednarska

Vici Capital Ltd Trading as Fit4less/Energie Fitness

Representatives

Self-represented

Leáh Smith Adare Human Resource Management

Act

Complaint Reference No.

Date of Receipt

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

CA-00038964-001

30/07/2020

The complainant asserts that she was unfairly dismissed; this is rejected by the respondent.

The complainant outlined that the gym closed on the 18th March 2020. On the 6th June the staff were told of the meeting of the 8th June regarding the reopening. On the 8th June, they met the manager who said that the premises would open on the 20th July and not the 10th August. The complainant then promised to look after her partner’s mother from the 4th to the 18th July. On the 20th June, the manager invited her to attend a meeting on the 22nd June and that they would be back at work the following day, to reopen on the 29th June. The complainant emailed to say thanks for the information and that she was glad to return.

The complainant outlined that she had a caring commitment over two weeks. He replied that he would have to offer the job to somebody else and she was shocked as he was not looking for solutions. She emailed back and said that she really needed this time and she outlined that this was a difficult situation and she had committed to help. At the meeting of the 23rd June, the manager asked the group if people had issues and ignored her when she mentioned her issue. The manager later messaged to say that she had to return. It was then that the director started to email her and said that they were not in a position to allow staff take the time off. The complainant asked for flexibility for this period.

The complainant attended work on the 23rd June and met the manager. She said hello but he ignored her. The manager asked her into the office and asked her about the two weeks, The complainant asked for flexibility. The manager said ‘OK’ and the complainant returned to work. At 11.20am she met the director, who said that he did not her attitude as she was taking the two weeks off. The director said that the woman was not her direct relative. The complainant said that she would find a solution and he accused her of going on sick leave.

The director mentioned terminating her contract of employment. She took her coat to leave, and he escorted her through the gym, down the stairs. He asked her for the key, and she said that she had already given the key to the manager. She left and he locked the door behind her. She received the email 20 minutes later. She was immediately removed from the Whatsapp group and from a Fitness Challenge and her partner was cancelled as a member.

On the 27th June the complainant raised her removal from groups and her partner’s membership being cancelled. The respondent said that they would terminate her contract. She felt that she was put out from there. Their story was changing and had taken her key. She had been restored to pay roll on the 22nd June. She resigned on the 27th June.

The complainant said that she had requested time off. She was aware of the pending termination, and they had mentioned this three times. She had already spoken to the manager and then the owner. She was aware of the handbook, but everything was too quick. She had to act as they had said that her contract would be terminated. She was aware of the handbook, but they wanted her to go.

The fitness world is my life and she felt destroyed and there was no respect, and this is not a good feeling. She tried everything to help, and she was being terminated by the employer.

The respondent refutes the claim, and she resigned after the leave request was declined. it was envisaged that the 20th July would be gym reopening and this was moved forward to the 29th June. It was not possible to accommodate the leave request. The complainant walked out of the premises and CCTV is available. The complainant was alerted to the handbook and did not submit a grievance. The respondent stated that the manager’s email had emphasised the imperative to get people back to work and off social welfare payments. The respondent stated that this was only canvassed as annual leave and not as carer’s leave. It would not constitute force majeure leave.

The claimant was not being flexible to do evening shifts to accommodate and the employer employs five employees. The complainant said that the complainant had the employee handbook.

This is a complaint of unfair dismissal, where the complainant eventually resigned. The events took place during the pandemic, at the time businesses such as gyms were about to re-open. It was also a time when people had to care for family members, many of whom were cocooning.

The respondent submitted the CCTV footage. This depicts the parties speaking in the office and the complainant then leaving the building. As conveyed in the emails, the respondent was certainly unswerving that the complainant could not take leave. This is the body language in the CCTV footage, although there was nothing inappropriate about the parties’ behaviour.

The key fact in this case is that it was the respondent who put dismissal on the table. The complainant had committed to caring for a family member having been told that the gym would re-open later. The restrictions eased so the gym could open earlier. The complainant was looking for a solution, given she had committed to care for the person. There was no negotiation or solution considered by the respondent. The only things on the table were work in full and as scheduled or dismissal. The complainant was taken off pay roll and then restored.

Having considered the evidence, I find that the complainant has met out the test for constructive dismissal. There was a repudiatory breach of the term of mutual trust and confidence. The respondent should have looked at the solutions canvassed by the complainant. This was a time of flux and uncertainty. It was the respondent who raised dismissal and ending the complainant’s employment. This is what led the complainant to resign. She was entitled to consider herself to have been dismissed.

As redress, I find that €4,000 is just and equitable in the circumstances.

CA-00038964-001

For the reasons set out above, I decide that the complainant was unfairly dismissed, and the respondent shall pay compensation of €4,000.

Unfair Dismissals Act / constructive dismissal