Complainant

Respondent

Parties

Elaine Boland

Diana Daly T/A Diana's Swim Academy

Representatives

Glen Cooper, Dundon Callanan Solicitors

Ellen Walsh, Peninsula

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-00046868-001

27/10/2021

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

CA-00046868-002

27/10/2021

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

CA-00046868-003

27/10/2021

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

CA-00046868-004

27/10/2021

The Complainant commenced her employment with the Respondent on 3 March 2019 as a swim teacher/coach. She resigned her position on 22 July 2021.

On 27 October 2021, the Complainant referred to the Director General of the WRC her claims against the Respondent, which the Respondent denies.

The Complainant alleges that she had to leave her employment due to the conduct of her employer. She seeks compensation.

Mr Cooper, on behalf of the Complainant, submits as follows.

The claim by the Complainant is that she was constructively dismissed by the Respondent, who had breached her contract and treated her so unreasonably that she had no option but to resign. The Respondent was offering the Complainant only two hours of work per week and insisting that in order to receive her normal hours of work (13.5 hours per week) the Complainant would have to accept a substantial pay cut. The Complainant raised a formal grievance, but the Respondent refused to change its position.

From May 2021 (when swimming venues reopened after the pandemic) to July 2021 when she resigned, the Complainant, therefore, suffered a substantial loss of wages. She was not even fully paid for the limited work which she was offered and carried out.

Upon her resignation, the Respondent failed to pay to the Complainant her accrued holiday pay. The Respondent also failed to pay the Complainant her additional entitlement in respect of public holidays which she had worked.

FACTUAL BACKGROUND

The Respondent runs a swim school. The Complainant entered into a contract of employment with the Respondent on 5 March 2019 as a swim teacher/coach. The contract provides for payments at a rate of €30.00 per hour for baby/toddler classes and €25.00 for children's classes. There are no precise hours or roster set out in the contract. However, the pattern that developed was that the Complainant would work approximately 13.5 hours per week. She was mostly working from St. Gabriel’s hydrotherapy pool but there were also separate pools at which she worked and which she would travel to, at Raheen, Newcastle West and Annacotty.

The Complainant’s average pay (using the period 13 January 2020 to 24 February 2020 as a reference period prior to the pandemic) was €349.80 per week gross.

From spring 2020 until spring 2021 swimming lessons were stopped altogether due to the Covid-19 pandemic. The Complainant was laid off and received no payments except for the PUP benefit.

At the end of April 2021, the Complainant had discussions with Ms Diana Daly and Mr Jason Daly. Classes were opening for one-on-one lessons, but the Respondent was insisting upon a pay reduction for the Complainant to €20.00 per hour. The Complainant insisted on getting her full pay, but Ms Daly said no movement was possible and that all other instructors had agreed to take a pay cut.

On 2 June 2021, Mr Daly advised the Complainant that group classes were returning from 7 June 2021. Group classes were starting again at St. Gabriel's from 23 June 2023. However, the Complainant was only offered three hours work per week. All of her colleagues (who had accepted the pay cut) were working approximately twenty hours per week. At the same time, Ms Daly was advertising for swim instructors. (This was through her company Swim Max Limited).  Given this breach of her rights, the Complainant had her solicitor send a letter to the Respondent which was dated 22 June 2021. The Respondent made no response to that letter.

By email dated 30 June 2021, the Respondent purported to put the Complainant on short-time. The Complainant objected to this and raised a formal grievance by email dated 7 July 2021.

The Respondent responded in writing to the formal grievance by an email dated 14 July 2021, in which the Respondent tried to justify its stance by referring to "all the other venues you have worked in". There was a subsequent grievance meeting on 20 July 2021. The Complainant raised the issue that other instructors were back to their normal hours. Ms Daly said that was because other instructors had taken a pay cut and they could come to the new Swim Max venue. There was further correspondence, but the Respondent was not budging from its position and by email dated 22 July 2021 the Complainant resigned with immediate effect.

CONSTRUCTIVE DISMISSAL

The Respondent had no right to demand a change to the Complainant’s rate of pay, nor to drastically reduce her hours (when other employees, who had accepted the pay cut, were offered their normal hours). The Respondent was giving the Complainant an ultimatum — accept a pay cut and work full hours, or else your hours will be drastically reduced.

Finding herself with only two hours' work per week and hardly any income, the Complainant invoked the grievance process. The Employer failed to alter its position and insisted on its ultimatum. The Complainant was forced to resign which she did by email dated 22 July 2021. There was therefore a constructive dismissal. The conduct of the Respondent was such that the Complainant was entitled to, and it was reasonable for her to terminate the contract of employment without giving prior notice of the termination to the Respondent.

Closing remarks

The Complainant’s representative said that the Respondent relies on cases where there was genuine lay-off at the height of pandemic. This situation was different. There was a new venue, there was work there but the Respondent refused to give it to the Complainant unless she took a pay cut. It was not a lay-off situation. The Respondent could give the Complainant work. The Complainant’s contract does not differentiate between bigger/smaller groups. She was entitled to the agreed rate. It was a fundamental breach of her contract of employment, and the Complainant was entitled to resign.

It was further said that the Complainant’s contract has only a small clause regarding grievances, there was no procedure. The Respondent made a decision that was not acceptable to the Complainant. There was no appeal option. Therefore, she exhausted internal procedures and was entitled to resign.

Summary of direct evidence and cross-examination of the Complainant

The Complainant said that she worked previously for the Respondent. She left and then came back in March 2019.

The Complainant confirmed that she mainly worked in Saint Gabriel’s pool, Newcastle West (every Monday) and Daughters of Charity (2-3 times a week). She said that she never worked in the Planet in Limerick but sometimes covered sick absences in Cork. Previously she would have done some work in Radisson Blu in Limerick and in the Planet in Limerick. She said that Newcastle West and Daughters of Charity locations are not listed in her contract, but she did work there.

The Complainant said that she never worked as an Assistant Teacher, she was a “full” teacher. She said that 70% of her classes were baby/toddler classes and 30% children. Once/twice she was asked to do lifeguard as a favour and did some extra work. She said that, if someone was sick, she could have covered their hours.

The Complainant said that there was no work from March 2020 to April 2021. The Complainant said that she broke her foot around August 2020, she was not sure exactly. She said that she recovered by April 2021.

The Complainant said that she knew before the pandemic that a new venue, Swim Max, was being set up. The Respondent and staff were excited about that. Ms Daly spoke with the Complainant about how the lessons would change, how the business was going to grow.

The Complainant said that on 24 April 2021 she got a text from Mr Daly regarding a schedule for May. She spoke with Mr Daly before the text about the schedule. He mentioned a pay cut. It shocked her and she said nothing. The Complainant said that she wanted to set up a meeting with Ms Daly to get more information. They met on 27 Apil 2021. The Complainant said that she was chatting about  a new contract as she thought her previous one was up. Ms Daly said, however, that it was continuing. The Complainant told Ms Daly that she was trying to save money as she wanted to move out of home. The Complainant told Ms Daly that her bank would not accept her contract as it lacked sufficient details. Ms Daly said she would help the Complainant with the bank, she would write a letter.

The Complainant said that she voiced her concerns about the pay cut. She said that if she knew how long the pay cut would last, she would be more willing to take it. Ms Daly said that it could be a week, a month, a year. The Complainant said that she was afraid she would never go back to her previous pay. The Complainant confirmed by text that she could not accept the pay cut. The Complainant agreed that the classes in the new venue are less profitable, but she still needed to do the same job. The Complainant then received an email on 28 April 2021 that, as she refused to work due to a temporary change to her wages, the Respondent would notify the Revenue that she was no longer entitled to the Pandemic Unemployment Payment. She then contacted her solicitor.

The Complainant said that these were uncertain times. She knew what was happening in the whole world, but she wanted a bit of clarity.

The Complainant said that in the letters to the Department of Social Protection the Respondent said that she was offered work at “the standard rate of pay”, which was incorrect.

The Complainant said that she then got text about re-opening of the venues, and she was happy and willing to go back to work. She did not realise that the three hours in St. Gabriel’s were only once  a week. At the same time, the Respondent advertised for staff. All other staff used to work in different venues but now got hours in Swim Max.

The Complainant confirmed that she did not do one-to-one classes prior to the Covid-19 pandemic.

The Complainant said that she worked from 23 June 2021, three hours a week (Wednesday) for five weeks. She said that she was not paid for her three weeks’ work.

The Complainant said that she raised a grievance on 7 July 2021. The Respondent replied that it was still liaising with the venues the Complainant had worked in and the only one that has re-opened to the Respondent was St. Gabriel’s. The Complainant said that up to that letter, the Respondent did not say that the reduced pay at Swim Max was a temporary arrangement.

The Complainant said that a grievance meeting took place on 20 July 2021. She told the Respondent that she felt targeted, that the Respondent tried to force the pay cut. The Respondent wrote to the Complainant on 22 July 2022 outlining the options available to her and attached an amendment to her terms of employment. The Complainant resigned on the same evening. The Respondent wrote again to her explaining that they did not give her an ultimatum.

The Complainant said that, after her resignation she contacted 2-3 swim schools and one or two came back to her. However, the Complainant believed that her contract said that she could not work in vicinity of her former employer, or she would be in breach of her contract. She said that it threw her off. She took up gym work from 6 August 2021. She was earning similar salary of €350-380 per week but worked much longer hours (30 or more hours).The Complainants said that it was a temporary position. The Complainant said that she left this position on 10 March 2022. She said that she sent some applications, but some jobs wanted her to do training, other had evening hours, which she could not do as she had a small child. The Complainant’s father got ill, then her mother got unwell. She did not found a job. In 2023 she became self-employed. On 15 February 2023, she commenced a business course (three weeks from 10am to 4pm).  She said that it is still work in progress, she is looking for a venue and hopefully will have it up and running soon.

Cross-examination of the Complainant

The Complainant confirmed that she had a good relationship with Ms Daly and Mr Daly.

She agreed that there were no group classes at the time due to Covid-19 and when groups returned, the numbers were smaller.

The Complainant said that she worked a maximum of 13.5 hours as she had a small baby, but that would be considered a lot for a swimming instructor. She said that the reason for these hours was not necessarily the fact that she was in receipt of a lone parent allowance.

It was put to the Complainant that the Respondent told her that the work at Swim Max at a reduced rate would be a temporary arrangement. She replied that Ms Daly could not give her a date when she would return to her normal pay. She said she would not take the Respondent’s word that it was a temporary arrangement and the amendment to her contract was not clear on that. She agreed that she did not communicate to the Respondent that she would be happy to sign the amendment to her contract if it specified that the arrangement was temporary. She said she did not know what “temporary” meant but agreed that she failed to revert to seek clarification.

It was put to the Complainant that prior to Covid-19 she would have worked with a group of 10, after Covid-19, it would be 5 people. She said that she should still be paid her full rate as per her contract. It was put to the Complainant that her contract provided that she could work in a different role. She was never told that it was a pay cut, it was a move to a different role in a different venue. The Complainant said that she was never told her role changed, she was a swimming instructor.

It was put to the Complainant that she refused to come back to work, she refused reasonable management instructions because it did not suit her personal circumstances. She said that she was unwilling to accept a €10 cut.

Regarding the grievance, it was put to the Complainant that she left the meeting happy. The Complainant said that she was happy that they sat down and talked but the issues were not resolved, she was not happy. It was put to the Complainant that she abandoned her grievance.

The Complainant agreed that the Revenue Commissioners deemed that she refused to work, but she said that she was not offered her standard rate of pay.  She agreed that she was never disciplined for her refusal to return. The Complainant was asked if she was ever threatened with dismissal if she refused to return to work. She said that she could not answer that of the top of her head.

The Complainant said that things went too far, the relationship was frosty, a solicitor was involved, and she was exhausted.  She felt that she exhausted all her avenues.

The Complainant confirmed that she was paid €30 or €25 per hour for group classes, she did not do one-to-one classes prior to Covid-19. From March 2020 to April 2021, she was on the Pandemic Unemployment Payment. She said that from around May 2021 she was in receipt of one parent allowance. The Complainant said that she did not submit the short-time details to the Department of Social Protection.

Ms Walsh, on behalf of the Respondent submits as follows.

Background:

Diana Daly t/a Diana’s Swim Academy (hereafter “the Respondent”) operates as a provider of swimming classes for babies, toddlers, children, and adults. The Respondent operated out of several select swimming pools in Limerick and Cork prior to Covid-19.

Elaine Boland (hereafter “the Complainant”) was employed as a swimming teacher and swimming coach from the 3 March 2019 to the 22 July 2021.

The Complainant has taken complaints under the Payment of Wages Acts, the Unfair Dismissal Acts and the Organisation of Working Time Acts. The Respondent denies these complaints.

Factual Background:

The Complainant was employed as a swimming teacher with the Respondent from the 3 March 2019. The Complainant had been employed previously by the Respondent and had subsequently returned to their employment.

The Respondent, prior to Covid-19, operated out of third-party pools around the Limerick and Cork area. The Respondent was reliant on these third-party pool operators, who would dictate reopening times and availability.

The Complainant predominantly taught group classes out of St. Gabriel’s Hydrotherapy Pool, which allowed for baby/toddler and parent swimming lessons only. St. Gabriel's School & Centre provides services to children with disabilities and their families. The Complainant also taught at the Daughters of Charity and Newcastle West Leisure Centre.

In March of 2020, the Covid-19 pandemic struck. This caused leisure facilities such as gyms and swimming pools to close. The Respondent placed all instructors on temporary lay-off at this time, pursuant to the lay-off clauses in their contracts of employment.

The Respondent submits that governmental restrictions eased slowly. Pools were allowed to reopen on 7 June 2020. However, some of the facilities did not open back fully to the Respondent.

During the time of the pandemic, the Respondent built “Swim Max” a specified purpose pool, which was directly owned and operated by them. This was completed in October 2020, however, social distancing measures at the time meant that the Respondent could not provide group classes, and instead could only provide private hydrotherapy sessions.

The Respondent offered all staff the option to come back to teach individual private lessons and make €20 an hour doing these classes. The Respondent had ample hours for private classes only and could provide staff an excess of their normal working time.

The Respondent offered the Complainant the option to teach aqua aerobics in October 2020, however, this did not materialise due to the restrictions that were in place.

The Respondent asked the Complainant to return to work again in January 2021. The Respondent submits that at this time the Complainant could not come back to work as she had broken her leg.

On the 23 April 2021 the Respondent again wrote to the Complainant requesting that she return to work and provide private one-to-one lessons.

On the 28 April 2021, the Respondent wrote to the Complainant again. The Respondent advised the Complainant that they had gotten even busier and that there was work available to her. With the restrictions at the time, the Respondent would still only be able to hold private individual lessons instead of group classes, and St. Gabriel’s had not yet opened their pool again.

The private lessons would pay €20 per hour, as opposed to the €30 per hour that the Complainant usually received for group lessons. The Respondent could make €60 for two private sessions an hour, however, could make €320 an hour for a group rate. The Respondent was operating on a large loss of during Covid-19 due to the closure of leisure facilities. The Respondent was reliant on the Employment Wage Subsidy Scheme to remain open and allow them to take on whatever work they could. The Respondent already had staggered rates of pay for the differential types of classes taken.

The Complainants contract of employment states;

“Your wage will be €30 (gross) per hour as a lead Coach / Teacher for Baby/Toddler and Parent Classes, €25 (gross) per hour as a lead Coach / Teacher for Children Swimming Lessons and €15 (gross per hour) as an Assistant Coach / Teacher.”

The Complainant refused these hours.

The Respondent did not force the Complainant to return on these hours, however, at the time the Respondent submits that they had to inform Revenue what employees were returning to work and what work they had available as they were utilising the EWSS.

The Respondent submits say that they contacted Revenue and were informed that this would not impact the Complainant financially, just that she would be moved to the social welfare register rather than remaining on the pandemic unemployment register.

The Respondent submits that they explained the difference in role being offered to the contact in Revenue and they were informed that any work offered at all must be formally reported to them.

The Complainant wrote to the Respondent on 28 February stating that she refused the Respondent’s mandatory pay cut. The Respondent submits that this was not a mandatory pay cut, but that it had work to offer the Complainant which was on a different rate. The Complainant had previously done work on varied rates, including lifeguarding.

On 30 June 2021 the Respondent placed the Complainant on temporary short-time working, as per her contract of employment. The Respondent provided the Complainant with an RP9 form to take to her social welfare office.

The Respondent was able to take the Complainant off lay-off and put her on to temporary short-time as St. Gabriel’s had opened their pool to them for group lessons 3 hours a week.

The Complainant, on 7 July 2021, responded to the Respondent and stated that she did not accept being placed on short-time, when other staff were working their full hours. The Respondent submits that other staff were working full hours on the rate of €20 an hour doing private lessons. The Complainant in this correspondence sought to raise a formal grievance.

The Respondent wrote to the Complainant on 13 July 2021 offering her further hours for her group slots in St. Gabriel’s. The school had only allocated Tuesdays to the Respondent going forward.

On 14 July 2021 the Respondent wrote to the Complainant accepting her grievance and  seeking to explain its position to her. The Respondent reiterated that it had contacted her back in May and offered her the option to return to work in the new venue, Swim Max, on a temporary basis until the Group Child or Group Baby/Toddler returned and she chose not to take that option at the rate for the different setup. The Respondent offered the Complainant the opportunity to meet with Ms Daly to discuss her grievance on 20 July 2021.

Following this meeting, the Respondent sent the Complainant several options to seek to bring her back to work. These options were:

1.       “You can continue on your short time working until other venues begin to open back up which we are hopeful will be soon in line with the government restrictions lifting.

2.       You can take up additional work in the Swim Max venue however as discussed, the rates of pay for this venue would be paid at the following:

• Groups Children / Groups Baby and Parent (3 or more kids per class) at €25 per hour.

• Private Classes (we have 1-1 and 2-1 Private setups) and Aqua Fit classes at €20 per hour.”

The Complainant resigned her employment following this communication, alleging that the Respondent had given her an ultimatum.

The Respondent came back to the Complainant explaining that it had not given her an ultimatum and asking her to reconsider. The Complainant informed the Respondent that she would be contacting the Workplace Relations Commission.

The Respondent submits that at no time did it give the Complainant an ultimatum. The Respondent was restricted from carrying out group classes in the Complainant’s original places of work. The Respondent submits that they would have been able to put the Complainant back on her full-time hours on her full rate of pay had she not jumped the gun in resigning.

Legal Submission – Unfair Dismissal:

The Complainant has taken a complaint under the Unfair Dismissals Act 1977 for constructive unfair dismissal.

This is defined as “(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.

It goes on to set out what describes as the reasonableness test. “The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving.”

The Respondent submits that they provided the Complainant with a contract of employment which stated:

“If there is a temporary shortage of work for any reason, including any periods of adverse weather, which prevents the Company from operating normally, we will try to maintain your continuity of employment even if this necessitates placing you on a reduced working week, short time working, or alternatively, on lay off. If you are placed on a reduced working week, or short time working, your pay will be reduced according to time actually worked. If you are placed on lay off then no payments will be made to you. The Company will seek to provide you as much notice as is reasonably practicable for any temporary shortage of work.”

This contract has specified clauses setting out terms on which they could utilise, and like most of the country, did utilise during the global pandemic.

The contract sets out “Your duties may be modified from time to time to suit the needs of the business.”  It goes on to state “It is a condition of your employment that you are prepared, whenever applicable, to work from any other location that may be required. This mobility is essential to the smooth running of our business.” Additionally, it provides: “It is an express condition of employment that you are prepared, whenever necessary, to transfer to alternative departments or duties either on a temporary or permanent basis within our business. This flexibility is essential as the type and volume of work is always subject to change, and it allows us to operate efficiently and gain maximum potential from our work force.”

The Respondent submits that the Complainants contract of employment expressly provides for different rates of pay spanning across the various roles in the business. The policy states: “Your wage will be €30 (gross) per hour as a lead Coach / Teacher for Baby/Toddler and Parent Classes, €25 (gross) per hour as a lead Coach / Teacher for Children Swimming Lessons and €15 (gross per hour) as an Assistant Coach / Teacher.”

The Respondent did not seek to force the Complainant to return on a permanent basis to €20 per hour. The Respondent, where possible gave the Complainant hours on her original group rate in St. Gabriel’s. However, as the Respondent could not give the Complainant her full hours on this rate, offered her additional hours on a private lesson rate. The Respondent did not discipline the Complainant for not taking these hours or threaten her with dismissal in any way.

The Respondent relies on Western Excavation (ECC) Ltd v Sharp [1978] IRLR 332 and submits that at no time did it stray from the Complainant’s contract of employment. The Respondent did not seek to unilaterally change the terms of the agreement, merely trying to offer what work they could to the Complainant to assist her from coming off the Pandemic Unemployment Payment.

In the case of McCormack v Dunnes Stores (UD 1421/2008) the tribunal stated:

“…places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

The Respondent submits that it did not act unreasonably. The Respondent submits that it attempted to get the Complainant back to work on numerous occasions. The Complainant had worked with the Respondent previously and the relationship was good.

In the Alternative/Mitigation:

Should the Adjudication Officer find that the Complainant was constructively dismissed, which is denied, it is noted at the time of lodging her claim, the Complainant had taken up new employment on 26 August 2021.

The Complainant lodged her claim on 27 October 2021 and is obliged as per Section 7(2)(c) of the Act to mitigate her loss.

The Respondent refers to the decision of Coad v Eurobase (UD1138/2013) where the Tribunal noted, “In calculating the level of compensation the Tribunal took into consideration the efforts of the Complainant to mitigate his losses and finds that these  efforts do not meet the standard as set out by the Tribunal is Sheehan v Continental Administration Cp. Ltd. (UD858/1999) that a Complainant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to infirm agencies that you are available for work nor merely to post an application to various companies seeking work…the time that a Complainant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.”

The Respondent further relies on section 7(c)(ii) of the 1977 Act which states:

“If the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances.”

Closing remarks

It was submitted that Covid-19 had massive impact on the Respondent’s business. The Respondent could not provide the Complainant with all her hours and offered her different options. They had a good working relationship and the vision of the company going forward did involve the Complainant. The Complainant was asked to reconsider her decision.

The Respondent asserted that the caselaw referred to by the Complainant’s representative does not apply in the circumstances as it includes words “as agreed” i.e., requiring the employee’s agreement, which is not the case here.

It was submitted that there is a very high bar in constructive dismissal. Insistence that an employer give some assurance when there is global uncertainty does not satisfy the test.

Summary of direct evidence and cross-examination of Ms Daly, the Respondent

Ms Daly said that at the grievance meeting, the Complainant was initially very defensive, offensive, not very friendly. They had a chat in the office, cleared things and the Complainant said that she was happy that all was cleared. Ms Daly said that she asked the Complainant to sign the minutes. The Complainant replied that it was what she said but she would not sign anything. Ms Daly said that they talked about Covid-19, the government guidelines, business not running normally. Every day there were new updates and restriction, the Respondent needed to be flexible. Ms Daly said that the end of the meeting was very relaxed, the Complainant said that she was happy with that.

Ms Daly said that one-to-one classes started as soon as they were allowed. Once baby/toddler classes were allowed, the Respondent offered them straight away to the Complainant. Ms Daly said that Swim Max was a new location. It was never in the Complainant’s contract. The pay offered was not a pay cut, it was work at a new venue on one-to-one basis. Ms Daly said that she was trying to keep people in jobs. It was a temporary arrangement but, as the government did not know what would happen, she could not give the Complainant a date when things would return to normal.

In cross-examination, it was put to Ms Daly that maybe she got the impression that the Complainant was happy, but she was not happy about the pay cut. Ms Daly said that it was not a pay cut. She said that the Complainant smiled and was happy.  Ms Daly only realised that the Complainant was not happy with the outcome when she got her subsequent email. She offered to meet the Complainant again, but the Complainant said that there was no point.

Ms Daly said that she could not provide the Complainant with her normal work. The Respondent did everything by the guidelines. Kids groups sessions were not run at the time, only baby/toddlers with reduced numbers.

It was put to Ms Daly that she said that there was no capacity, that she put the Complainant on short-time but she put an advert looking for new staff at the same time. Ms Daly said that a new facility was planned and built before Covid-19 and new staff was needed. She needed to make sure that that there was enough staff to cover all locations. She said that there is shortage of swimming instructors worldwide, so the Respondent is constantly looking for new people. Ms Daly said that the venues were closed, and the Respondent operated on the basis of daily updates to the guidelines. There were one-to-one classes, but groups did not start until June for babies and September 2021 for children. As soon as babies returned, she contacted the Complainant. Ms Daly said that the Complainant wanted everything to be like it was prior to Covid-19.

Ms Daly said that Swim Max cannot accommodate the same numbers so the rates of pay are different there. This was a temporary offer to the Complainant dictated by the pandemic. The Complainant was told that, as soon as other venues re-opened, she would go back there. It was optional, the Complainant did not have to take it. Ms Daly said that a few hours of baby classes became available in Swim Max but another staff member who worked in Swim Max prior to Covid-19 covered them.

Ms Daly clarified that prior to Covid-19, the Complainant worked in St. Gabriel’s covering baby classes. She did the same post-Covid restrictions. 

Regarding the non-payment for the last weeks, Ms Daly said that the Complainant had a training agreement in place.

Summary of direct evidence and cross-examination of Mr Daly

Mr Daly said that the Respondent relied on third party pools. The Respondent always operated as per the government restrictions.

Mr Daly said that he told the Complainant that the Respondent is allowed to run one-to-one classes, and they would be paid at €20 per hour. He never mentioned a pay cut. All other employees were offered the same deal.

Mr Daly said that Ms Daly went to local politicians and campaigned that the swimming classes are considered as essential service. This eventually led to one-to-one classes getting the green light and all staff were offered them and were offered the amendment to their contract with the temporary arrangement. The Complainant declined the offer. She said that he was shocked. Mr Daly clarified that it was not a pay cut, it was a different lesson type. The Complainant has previously done different work at different pay.

Mr Daly said that the Respondent was informed by Revenue that, if anyone refuses any work, the Respondent needs to inform them so they would be moved to the Department of Social Protection register.

Mr Daly said that the Complainant never said she did not understand that it was a temporary arrangement, but she kept asking for a date when she would revert to the normal arrangement. The Respondent could not give her a date. There was never an ultimatum.

Mr Daly said that the Respondent never pursued the outstanding monies for the training. He said that they had an excellent relationship, it was all surprising.

In cross-examination Mr Daly said that the payroll department would have dealt with the matter of training agreement and monies due. It was put to Mr Daly that the Respondent failed to pay the Complainant 3 out of 5 weeks, and no one ever told her why. Mr Daly said that she could not answer that, he did not know. He also did not know about any annual leave payment.

It was put to Mr Daly that in the Respondent’s letter it said “temporary change in your wages”, “refusal”, “reasonable instructions”, etc. which was putting the Complainant under pressure. Mr Daly denied.

Mr Daly was asked why the Complainant was not offered babies classes in Swim Max. He said that all available work was split up between all staff. The Complainant got her 3 hours in St. Gabriel’s. someone else was offered 2 hours in Swim Max, nobody was back full-time. Only two instructors, including the Complainant did baby/toddler classes, the rest did one-to-one classes.

It was put to Mr Daly that the Complainant was offered extra hours of baby/toddler group in Swim Max but at a reduced rate of €25 per hour. Mr Daly said he did not know the answer. In re-direct, he clarified that it was additional work, not instead of St. Gabriel’s. He further explained that the rates in Swim Max were lower as due to the capacity of the venue combined with the restrictions the groups were smaller.

Section 1 of the Unfair Dismissals Act provides the following definition of “dismissal”:

“dismissal”, in relation to an employee, means—

“(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”

The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Act (as quoted above).

As the Complainant is claiming constructive dismissal, the fact of dismissal is in dispute between the parties, and in such circumstances, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating her employment.

The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp [1978] IRLR 332.  It comprises of two tests, referred to as the “contract” and the “reasonableness” tests. It summarised the “contract test” as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.” 

The “reasonableness test” assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, [if so] the employee is justified in leaving.”

In both situations, the conduct must be of sufficient gravity so as to entitle the employee to terminate the contract without notice or render it reasonable for him or her to do so. Therefore, the question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate his contract of employment.

In Berber v Dunnes Stores [2009] 20 ELR, the Supreme Court held that,

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee.”

There was no dispute  that the Complainant commenced her employment with the Respondent on 3 March 2019 as a swim teacher / instructor. The Complainant resigned her employment with immediate effect by email dated 22 July 2021. The Complainant asserted that from May 2021 (when swimming venues reopened after the pandemic) to July 2021 when she resigned, she suffered a substantial loss of wages. She further asserted that the Respondent breached her contract and treated her so unreasonably that she had no option but to resign. The Complainant alleged that the Respondent had no right to change her rate of pay nor to reduce her working hours and, therefore, that she was entitled to resign and consider herself constructively dismissed. The Respondent denies the Complainant’s allegations.

To succeed in a complaint of constructive dismissal, it is incumbent on a complainant to demonstrate their engagement with the Respondent’s internal procedures. In the matter of Beatty v Bayside Supermarkets UD 142/1987 the Employment Appeals Tribunal held that;-

“…it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited UD 474/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

In the matter of Travers v MBNA Ireland Limited, (UD720/2006), the Complainant’s role was changed by the employer in a manner which was “not in keeping with the contract of employment”. While the Complainant in this matter initiated the company’s internal grievance procedures, he resigned without lodging a final appeal. In this instance the Tribunal found that,

“…the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case”

and,

“…in constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

In essence, in a constructive dismissal claim the burden of proof rests with the employee, who must prove that their decision to resign was both justified and reasonable. In effect, the employee must demonstrate that they had no option but to resign. The notion places a very high burden of proof on an employee to demonstrate that she acted reasonably and had exhausted all internal procedures in an attempt to resolve her grievance with her employer.

Having carefully considered the submissions and evidence proffered in this case I find as follows.

I note that the Complainant’s contract stipulates as follows:

PLACE OF WORK

You will normally be required to work in either Radisson Blu Hotel (Limerick), Planet Health Leisure Club (Limerick), Planet Health (Cork) or St Gabriel’s Dooradoyle (Limerick). It is a condition of your employment that you are prepared, whenever applicable, to work from any other location that may be required. This mobility is essential to the smooth running of our business.

JOB FLEXIBILITY

It is an express condition of employment that you are prepared, whenever necessary, to transfer to alternative departments or duties either on a temporary or permanent basis within our business, this flexibility is essential as the type and volume of work is always subject to change, and it allows us to operate efficiently and gain maximum potential from our work force.

HOURS OF WORK

The Company will provide you with working hours each week, Monday to Sunday, however these hours, days, start and finish times will vary in accordance with the weekly roster. You will receive appropriate unpaid rest breaks depending on the length of your shift and in accordance with the Organisation of Working Time Act 1997. You may be required to work additional hours, above those rostered, when authorised and necessitated by the needs of the business.

You will be allocated a swimming course usually lasting 6-10 weeks per term and each course must be completed in its entirety. The Employer reserves the right to alter these working hours from time to time.

REMUNERATION

Your wage will be €30 (gross) per hour as a lead Coach/Teacher for Baby/Toddler and Parent Classes, €25 (gross) per hour as a lead Coachy / Teacher for Children Swimming Lessons and €15 (gross per hour) as an Assistant Coach/Teacher.

TEMPORARY SHORTAGE OF WORK

If there is a temporary shortage of work for any reason, including any periods of adverse weather, which prevents the Company from operating normally, we will try to maintain your continuity of employment even if this necessitates placing you on a reduced working week, short time working, or alternatively, on lay off. If you are placed on a reduced working week, or short time working, your pay will be reduced according to time actually worked. If you are placed on lay off then no payments will be made to you. The Company will seek to provide you as much notice as is reasonably practicable for any temporary shortage of work.

GRIEVANCE PROCEDURE

It is important that if you feel dissatisfied with any matter relating to your work you should have an immediate means by which such a grievance can be aired and resolved. If you feel aggrieved at any such matter during the course of your employment you should raise  the grievance with Diana Daly or Jason Daly a nominated independent person either verbally or in writing. Further information can be found in the Appendix. (it was confirmed at the hearing that no such appendix was issued to the Complainant).

The Complainant conceded that there was no work for her from March 2020 to April 2021 due to the Covid-19 pandemic. There was no dispute that in April 2021 the Respondent offered the Complainant a return to work in a new venue, on a one-to-one basis (as opposed to group classes that she had been teaching prior to the pandemic), and on a different rate of pay.

In relation to the alleged reduction of wages, at the adjudication hearing the parties confirmed that the rates of pay outlined in the Complainant’s contract of employment applied to group classes only and that the Complainant had not taught on a one-to-one basis prior to the Covid-19 pandemic. The Complainant’s contract does not provide for a rate of pay for a one-to-one class. I note that the communication between the parties refers to “temporary changes to the rates of pay” (e.g. the Respondents’ emails of 28 and 29 April 2021) and a “pay cut” (e.g. the Complainant’s email of 28 April 2021). However, it would appear that, as the group classes in St. Gabriel’s and other venues the Complainant had taught at prior to the pandemic did not recommence, due to no fault of the Respondent, the Complainant was offered an alternative arrangement, namely one-to-one classes in the new venue. The Complainant declined this offer. The rate of pay for this arrangement had not been previously agreed upon by the parties simply because the venue had not existed prior to the Covid-19 pandemic and the Complainant had not taught one-to-one classes there or, it would appear, in any other venue. It would be, in my view, unreasonable to expect that the rate of pay that had been agreed for group classes at a number of venues applied by extension to all other venues and classes/lessons setup. Therefore, I cannot accept that the Complainant’s rate of pay was reduced.

In the letter dated 6 May 2021, the Complainant’s solicitor stated that the Complainant “looks forward to returning to work upon her contractual conditions as soon as the temporary shortage of work is over. Please ensure that you keep Ms. Boland updated on when group classes will be recommencing, as Ms. Boland will then be resuming her duties at her contractual pay rate”.

On 2 June 2021, the Respondent sent a text message to the Complainant informing her that the swimming lessons could return to group set up from 7 June 2021. The Respondent further informed the Complainant that it had been in contact with all the venues it taught in to find out when could the lessons recommence, and it was awaiting responses. The Respondent told the Complainant that “once we get the go ahead from the venues, we’ll be ready to go”.

In a further communication dated 4 June 2021, the Respondent informed the Complainant that :

“As of now, we are gathering customer availability to schedule classes. We are able to carry these out from 7th June as per the easing of restrictions, and we are also dependant on availability from venues we teach in. Once we have our numbers and venues confirmed, I will notify you of your allocated classes for the following week.”

The Respondent further informed the Complainant on 15 June 2021 that:

“…got news this morning that we can return to St. Gabriels from Wed 23rd June” and “It’s a 5wk term. Hours available from 9am to 12pm. June 23rd to July 21st.

The Complainant replied: “Fantastic! All sounds great Jason, thanks for the update. Delighted to return to St Gabriels. Hours look good…”

In response to the Complainant’s text of 21 June 2021 asking for the dates she would be working at St. Gabriel’s. the Respondent sent another text (undated) confirming the hours as five weeks terms starting on Wednesday  23 June to 21 July 2021 from 9am to 12pm. Following the first lesson the Complainant emailed the Respondent saying that there was full attendance and in reply to the Respondent’s “Hope all went well”, she said “Amazing! Great to be back”.

On 22 June 2022, the Complainant’s solicitor wrote to the Respondent saying that the Complainant was “ready, willing and able to work her normal hours” and “was entitled to be paid her normal weekly wage in full”.

On 30 June 2021, the Respondent emailed the Complainant that as of 23 June 2021 she was on a short-time working arrangement and a letter and RP9 form was provided to the Complainant.

On 7 July 2021, the Complainant raised a formal grievance on 7 July 2021 by email wherein she stated:

“I do not accept that putting me on short time is valid when other staff are worming their full hours and you are actively recruiting, I wish to be put back on my full hours and paid in full for the weeks that I have been back at work but wrongfully put on reduced hours.”

The Respondent replied by email on 14 July 2021 clarifying that the Complainant was put on short-time in accordance with her contract. The Respondent reiterated that it continues to communicate with other venues that the Complainant had worked in previously and that the only venue that had reopened for the Respondent was St. Gabriel’s for the limited hours which were given to the Complainant. The Respondent noted that full hours are not available at the moment. The Respondent further highlighted that the Complainant was offered, on a temporary basis, work in the new venue at a different rate of pay and on one-to-one set up. The Respondent offered another meeting and the parties met on 20 July 2021. The Complainant was accompanied at the meeting.

On 22 July 2021, the Respondent wrote to the Complainant by email outlining the options available to her, namely:

·       To continue to work in St. Gabriels’ as before the pandemic, albeit on short-time until other venues reopen in line with the government restrictions lifting;

·       To take up additional work in the new venue at different rates of pay.

The Complainant replied by email some 4 hours later resigning her position with immediate effect. Thereafter an emails exchange ensued. I find the Respondent’s offer to “again use our grievance procedure” and put a “formal issue” in writing misleading. The Complainant had done so, met with the Respondent, and received a written outcome of the meeting. The grievance procedure referred to in her contract appears not to have been appended and, therefore,  the Complainant was not given the right to appeal the outcome. Therefore, the Complainant was entitled to believe that she exhausted the procedure.

However, I find that the Respondent made an attempt to explain to the Complainant the circumstances. The Respondent explained that there was no work in the venues the Complainant was contracted to work and/or did work prior to Covid-19. The Respondent clarified further that the new venue was outside the Complainant’s contractual terms and different rates applied there. The Respondent offered the Complainant additional hours there until the other third-party venues reopen. The Complainant was asked to reconsider her resignation.

It appears that the Complainant wished to return to her usual arrangement applicable prior to the Covid-19 pandemic. She declined the offer of an alternative work in the new venue. It was not disputed that there were no more hours available at the third-party venues that the Complainant had taught in prior to the pandemic and, as result, no more hours could have been offered to her until such time when more venues reopened.

Having considered the circumstances of this case, I have concluded that the Respondent did not breach the Complainant’s contract and the behaviour of the Respondent was not unreasonable such as to justify the Complainant terminating her employment by way of constructive dismissal.

I find that the Complainant was not constructively dismissed, and the complaint is not well founded.

Mr Cooper, on behalf of the Complainant, submits that for a period of twelve weeks from the beginning of May 2021 until her resignation on 22 July 2021, the Complainant should have been paid in full in accordance with her contract because work was available, and all her colleagues were working full hours. The total payment she should have received during that period was €4,197.60 (based on an average weekly pay of €349.80 for 12 weeks). The Complainant submits that the total pay received during that period was €135.00, which is a wrongful non-payment of wages amounting to €4,061.60.

It was further alleged that the Complainant was only paid for two weeks during this period but worked five weeks, which meant a loss of €225.

At the adjudication hearing, Mr Cooper agreed that there was an agreement regarding training in place. The Complainant also confirmed that she did shadowing / training with the Respondent.

Ms Walsh, on behalf of the Respondent, submits as follows.

The Complainant is seeking €4,062.60 for unpaid wages, from hours that she did not work.

The Respondent refers to the case of A Pre-School Educator v A Pre-School Childcare Facility ADJ-00030423 which held “There was, therefore, no contravention of the Payment of Wages Act as, in circumstances where the creche closed and the complainant laid off, what was properly payable was the subsidy available to the respondent following the overnight closure of the creche. I appreciate that the complainant will be disappointed by this outcome, but I find that the complaint is not well-founded.”

The Respondent also refers to the case of Della Keane v Rasaiocht Con Eireann/ Greyhound Racing Ireland ADJ-00031698 which stated, “Taking all of the above into consideration, I find that the Complainant cannot have a reasonable or legitimate expectation of being paid for work that was not carried out. In that context, I can only conclude that the payment claimed by the Complainant, in this regard, does not constitute “properly payable” wages and, therefore, the Respondent’s failure to make this payment in 2020 does not constitute an illegal deduction in line with Section 5 of the 1991 Act.”

The Respondent finally refers to the Labour Court decision in Barbara Ciszewska v. William P. Keeling & Company Unlimited PWD2010 which held that “There is no provision in the Payment of Wages Act that requires that wages be paid during a period of lay-off”.

The Respondent submits that the Complainant refused additional hours of work in their Swim Max location. The Complainant could have worked and earned her salary pre-Covid but refused to do so.

The Respondent submits that accommodating the Complainant’s request to only work in her original class locations on her original rates of pay should not prejudice the Respondent.

At the adjudication hearing the Respondent also relied on the Training Agreement which the Complainant signed at the commencement of her employment with the Respondent. The Respondent asserted that deductions could still be made as the agreement was based on reckonable service not on passage of time.

The Law

Section 5 of the Payment of Wages Act provides as follows:-

5. Regulation of certain deductions made and payments received by employers.

5.—(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

In Marek Balans v Tesco Ireland Limited [2020] IEHC 55 MacGrath J considered Section 5 of the Act as follows:

36. The provisions of s. 5(6) of the Act of 1991 were considered by Finnegan P. in Dunnes Stores (Cornelscourt) Limited v. Lacey [2007] 1 I.R. 478. A Rights Commissioner had found in favour of the respondents holding that the cessation of service pay amounted to an unlawful deduction, which was upheld by the EAT. It was argued that the EAT should address the question of remuneration properly payable to an employee before considering the question of a deduction or whether a deduction was unlawful. Finnegan P. concluded at p. 482:-

“I am satisfied upon careful perusal of the documents relied upon by the respondents that the same cannot represent the agreement or an acknowledgement of the agreement contended for but rather contain a clear denial of the existence of any such agreement. No other evidence of an agreement was proffered. In these circumstances I am satisfied that the Employment Appeals Tribunal erred in law in failing to address the question of the remuneration properly payable to the respondents, such a determination being essential to the making by it of a determination. Insofar as a finding is implicit in the determination of the Employment Appeals Tribunal that the appellant agreed to pay to the respondents service pay and a long service increment, then such finding was made without evidence and indeed in the face of the evidence: I am satisfied that there has been no deduction of pay from the respondents within the terms of the Act of 1991 but rather their remuneration has been unilaterally increased by the appellant making a payment which recognises their long service in excess of that which was payable prior to the 18th September, 2002. In either case there has been an error or law. Accordingly I allow the appeal.”

The High Court made it clear that, when considering a complaint under the Act, an Adjudication Officer must first establish the wages which were properly payable to the employee before considering whether a deduction had been made. If it is established that a deduction within the meaning of the Act had been made, the Adjudication Officer would then consider whether that deduction was lawful.

It is for the Complainant to make out that the wages payable to her during the period encompassed by the claim are properly payable to her under the Act.

The Labour Court in Hannigans Butchers Limited v Jerko Anders Hresik Bernak DWT 194 held as follows;-

“This Court in Melbury Developments Ltd v. Arturs Valpeters EDA0917, in a case under the Employment Equality Acts, put it clearly in stating, ‘Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn’ and that ‘The Complainant must first establish facts from which discrimination may be inferred’. While these observations of the Court reference specific requirements under the relevant legislation, the sentiments are equally applicable to the exercise of rights under other Acts covering employment law. Indeed, it is a well-established general rule of evidence to quote Palles CB in Mahony v. Waterford, Limerick and Western Railway Co., (1900)2 IR 273,that ‘…it is a general rule of law that it lies upon the plaintiff to prove affirmatively all the facts entitling him to relief…’

In the present case, there was no dispute that, as a result of the Covid-19 pandemic, the facilities the Respondent operated in closed in March 2020. There was no dispute that the Complainant and all staff were put on temporary lay-off and were in receipt of the Pandemic Unemployment Payment.

The Complainant claims that for a period of twelve weeks from the beginning of May 2021 until her resignation on 22 July 2021 work was available for her and she should have been paid in full for those weeks at the rate of €349.80 per week.

In addition, the Complainant claims that she worked for the Respondent on a three hours per week basis for 5 weeks but was paid for 2 weeks only.

In relation to the Complainant’s assertions that she should have been paid in full for the period of twelve weeks, I have outlined above the circumstances at the relevant time. There was no dispute that there was no work available at the locations the Complainant had worked at prior to the pandemic. There was also no dispute that the Complainant declined the offer of work in the new location on the new terms and conditions. As a result,  the Complainant remained on lay-off and in receipt of the Pandemic Unemployment Payment and was subsequently from 23 June 2021 put on a short-term working arrangement which was provided for in her contract of employment. The contract further stipulates that:

“If you are placed on a reduced working week, or short time working, your pay will be reduced according to time actually worked.”

The Complainant was notified of the short-time work and received a letter confirming same and the form RP9 to allow her to register for any support available from the Department of Social Protection.

The Adjudication Officer’s  jurisdiction under the Act is not to determine the reasonableness or otherwise of placing the Complainant on lay-off or short-term work arrangement in the circumstances. The matter for me to decide concerns the wages of the Complainant in the period from 1 May 2021 to 22 July 2021. In that regard, I am guided by the Labour Court determination PWD219 Health Service Executive National Ambulance Service v David O'Connor.

Having considered the matter, I find that it would be unreasonable of the Complainant to expect that she would be paid for work that she did not carry out. I find that the alleged non-payment of full wages for the period of 12 weeks claimed by the Complainant does not constitute “properly payable” wages and, therefore, the Respondent’s failure to make this payment does not constitute an unlawful deduction as per Section 5 of the 1991 Act.

With regard to the non-payment of wages for three out of five weeks the Complainant did work for the Respondent, there was no dispute that the Complainant returned to work on 23 June 2021 on a three hours per week basis. The Complainant alleges that she was paid for two weeks. Payslips dated 12 July 2021 (€60 gross) and 19 July 2021 (€75 gross) were exhibited at the adjudication hearing. The Complainant alleged that she was owed €225 for the remaining three weeks.

The Respondent did not dispute the Complainant’s contractual entitlement to be paid for the hours worked and did not contest the amount allegedly owed to the Complainant but relied on a Training Agreement that the Complainant signed on the commencement of employment which stipulates:

“In consideration of the training which you (Elaine Boland) will receive from Diana’s Swim Academy, (or any further external training decided by Diana’s Swim Academy) I agree to remain employed by Diana’s Swim Academy for a minimum period of one year after completion of the training.

This training will end on March 5th 2020 and if I leave my employment at any time, for any reason, including dismissal, before the end of March 5th 2021 I undertake to refund my employer €3,500.

100% - less than 12 months after completion of the training 75% 12 months but less than 15 months after completion of the training 50% 15 months but less than 18 months after completion of the training

25% 18 months but less than 21 months after completion of the training

In the event of my failure to pay I agree that my employer has the right as an express term of my Contract of Employment to deduct any outstanding amount due under this agreement from my salary or any other payments due to me on the termination of my employment in accordance with the legislation currently in force.”

In Ryanair Ltd v Downey PW 6/2005 (reported at [2006] E.L.R. 347), the employer relied on the fact that a clause in the employment contract provides for a deduction and therefore the deduction cannot be unlawful. The Employment Appeals Tribunal held that the fact that a clause in the employee's contract provided for a deduction did not of itself justify the deduction. For the deduction to be lawful, the employer must comply with the relevant provisions of subs.(2). The employer was in breach of section 5(2)(b)(iv) of the Act as it had not given one week's written notice of the particulars of the deduction from the employee's wages. Furthermore, the deduction was not fair and reasonable as required under section 5(2) of the Act as it had the effect of paying the employee no wages in respect of his final period of service and he had not been given any notice in writing.

In line with the above case, I find that the Respondent was in breach of the Act in the context of the decision to withhold three payments from the Complainant. The Respondent did not dispute the amount claimed to be owed to the Complainant. In the absence of any contradictory evidence in that regard, I find that the Respondent owes the Complainant €225 in respect of three weeks of employment.

I declare this complaint to be partly well founded. I direct the Respondent to pay the Complainant €225 in respect of her three weeks’ wages.

Mr Cooper, on behalf of the Complainant submits that, upon the termination of her employment, the Complainant was entitled to be paid a sum equivalent to her accrued and untaken annual leave, in accordance with section 23 of the Organisation of Working Time Act, 1997. No such payment was made. The Complainant calculates her accrued annual leave entitlement as 18 days being €1,259.28.

At the adjudication hearing it was asserted that the Complainant was entitled to 25 days of annual leave in an annual leave year. She was paid for 8 days. Therefore, she had 17 and not 18 days outstanding on cessation of her employment.

The Complainant asserted that, in line with section 23(1)(b)(i) and (ii), the Complainant is entitled to her leave in preceding year. It was further asserted that the Complainant’s contract was not active in 2020 and, therefore, year 2020 should be disregarded, as the Complainant was on lay-off.

The Complainant clarified that from March 2019 to March 2020 and accrued 20 days leave. She should have returned to work, following lay-off in May 2021 and should have accrued her leave for May, June, July of 2021 i.e. 5 days. The Complainant took 2 days leave in September 2019, 2 days in December 2019, 2 days in March 2020 and 2 days in January 2020. She has 17 days owed to her.

Ms Walsh, on behalf of the Respondent submits as follows.

The Complainant has sought €1,749 in annual leave entitlements and public holidays.

The Respondent submits that the Complainant referred her claim to the WRC on 27 October 2021. Therefore, the time period to consider any annual leave and public holidays entitlements is from 27 April to 22 July 2021, the date of the Complainant’s resignation.

The Respondent submits that the Complainant did not accrue annual leave entitlements and public holidays whilst on lay-off, as this is not considered to be reckonable service.

This is a complaint pursuant to the Organisation of Working Time Act. The complainant seeks payment in respect of her outstanding annual leave.

The Complainant commenced her employment with the Respondent on 3 March 2019. Her employment terminated on 22 July 2021. The Complainant asserts that she was owed 17 days of annual leave. The Complainant asserted that from March 2019 to March 2020 she accrued 20 days leave. She should have returned to work, following lay-off in May 2021 and should have accrued her leave for May, June, July of 2021 i.e., 5 days. The Complainant took 2 days leave in September 2019, 2 days in December 2019, 2 days in March 2020 and 2 days in January 2020.

The Complainant’s contract of employment stipulates:

“ANNUAL HOLIDAYS

Your holiday year begins on 1st January and ends on 31st December each year. If you work for at least 1365 hours during the holiday year you will receive a paid holiday entitlement of four of your working weeks during the complete holiday year. Alternatively, you will receive a paid holiday entitlement of 8% of the total hours worked in the leave year, subject to a maximum of four of your working weeks. it is our policy to encourage you to take all of your holiday entitlement in the current holiday year.

We do not permit holidays to be carried forward and no payment in lieu will be made in respect of untaken holidays other than in the event of termination of your employment. “

Thereafter, the contract describes the online system for booking holiday and the process of doing some.

Cognisable period

The cognisable period for complaints pursuant to section 27 is set out in section 41(6) of the Workplace Relations Act. It states: ‘Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.’

Section 41(8) provides that the cognisable period can be extended by a further 6 months, should the complainant establish reasonable cause in the late presentation of the complaint. There has been nothing put forward to establish reasonable cause for the delay. 

Entitlement to annual leave

Section 19 of the Organisation of Working Time sets out the entitlement to annual leave.

19. Entitlement to annual leave

(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

Section 20 provides as follows in respect of the taking of annual leave:

20. Times and pay for annual leave

(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

(a) to the employer taking into account—

(i) the need for the employee to reconcile work and any family responsibilities,

(ii) the opportunities for rest and recreation available to the employee,

(b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and

(c) to the leave being granted—

(i) within the leave year to which it relates,

(ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or

(iii) where the employee—

(I) is, due to illness, unable take all or part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and

(II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer,

within the period of 15 months after the end of that leave year.

Entitlement to cesser pay

Section 23 of the Organisation of Working Time Act sets out the employee’s entitlement to cesser pay in compensation for a balance of annual leave not taken. Section 23 provides:

23. Compensation on cesser of employment

(1)

(a) Where—

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee, shall as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or he would have received had he or she been granted that annual leave.

(b) In this subsection—

“relevant period” means—

(i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year,

(ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year—

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

(iii) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the first 12 months of the period of 15 months referred to in the said subparagraph (iii)—

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

or

(iv) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the final 3 months of the period of 15 months referred to in the said subparagraph (iii)—

(I) the current leave year, and

(II) the 2 leave years immediately preceding the current leave year.

 “Leave year”, as defined in Section 2 means a year beginning on any 1st day of April.

Cesser pay is the ‘allowance in lieu’ referred to in Article 7 of the Working Time Directive. Section 23 of the Act provides that it is payable for the ‘relevant period’. Ordinarily, the ‘relevant period’ is the current leave year (as the obligation is for annual leave to be taken within the leave year). Section 23(1)(b)(ii) addresses ‘relevant period’ where the period for leave to be taken has been extended by up to 6 months, with the employee’s consent. Section 23(1)(b)(iii) addresses ‘relevant period’ where the employee accumulates annual leave while on certified sick leave.

I note that the Complainant’s contract expressly prohibited carry over of annual leave.

“We do not permit holidays to be carried forward and no payment in lieu will be made in respect of untaken holidays other than in the event of termination of your employment. “

The Complainant resigned her employment on 22 July 2021 and referred her claim to the Director General of the WRC on 27 October 2021. In line with Section 23(1)(b)(i) of the Act, the Complainant would have been entitled to compensation on cessation of employment for the current leave year i.e., 1 April to 22 July 2021. There was no dispute that during that period the Complainant worked three hours a week for five weeks , totalling 15 hours. Consequently, she would have accrued 1.2 hour in her leave entitlement.

In the event that, despite the clause in the contract, that there was a custom and practice for annual leave to carry over and the Complainant obtained managerial assent for the carry over of annual leave, as per section 23(1)(b)(ii) of the Act, the Complainant would have been entitled to a compensation payment for the current leave year and the leave year immediately preceding the current leave year i.e. from 1 April 2020 to 31 March 2021 and from 1 April 2021 to the date of her resignation. There was no dispute that the Complainant was on lay-off from March 2020 until her return on a short-term basis in June 2021. Therefore, in the annual leave year from 1 April 2020 to 31 March 2021, the Complainant did not accrue any annual leave.

I declare this complaint to be partly well founded. I direct the Respondent to pay the Complainant €33 in respect of the outstanding annual leave. In the absence of any documentary evidence from either party regarding the Complainant’s annual leave entitlements, I decide that the 1.2 hour’s leave should be paid at the rate of €27.50 per hour. I make this decision on the basis of the evidence furnished that the Complainant was paid €30 or €25 per hour depending on the type of class she taught. Furthermore, I direct the Respondent to pay the Complainant €100 in compensation for breach of the Act.

Mr Cooper, on behalf of the Complainant, submits that the Complainant often worked on public holidays, but she never received an additional day's pay or an additional day of annual leave. The Complainant calculates her public holiday entitlement as 7 days, being €489.72.

At the adjudication hearing, Mr Cooper asserted that the Complainant did not work the required 40 hours in five weeks prior to a public holiday because of wrongful behaviour of the Respondent.

The Complainant is seeking a payment for the public holidays falling in 2019: Saint Patrick’s Day, May, June, August and October. She also seeks a payment for the May and June public holidays in 2021.

The Complainant asserted that the Respondent did not apply (a), (b), or (d) options of Section 21 of the Act. Therefore, (c) must be applied and accrued annual leave must be paid on cessation of employment.

21. Entitlement in respect of public holidays

(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day's pay

Ms Walsh, on behalf of the Respondent submits as follows.

The Complainant has sought €1,749 in annual leave entitlements and public holidays.

The Complainant took her complaint on 27 October 2021, as such, the Complainant can seek public holiday entitlements as far back as Tuesday, 27 April 2021.

The Complainant was in employment for the period between 27 April 2021 and 22 July 2021.

In this timeframe the Complainant could be entitled to public holidays on 3 May 2021 and 7 June 2021. However, at this time, the Complainant was on short time working and did not work the required 40 hours in the preceding 5 weeks to be entitled to public holiday pay.

This is a complaint pursuant to the Organisation of Working Time Act. The Complainant seeks payment in respect of her outstanding public holidays’ entitlements for public holidays falling in 2019: Saint Patrick’s Day, May, June, August and October. She also seeks a payment for the May and June public holidays in 2021.

Cognisable period

The cognisable period for complaints pursuant to section 27 is set out in section 41(6) of the Workplace Relations Act. It states: ‘Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.’

Section 41(8) provides that the cognisable period can be extended by a further 6 months, should the Complainant establish reasonable cause in the late presentation of the complaint. There has been nothing put forward to establish reasonable cause for the delay. 

The Complainant referred her complaints to the Director General of the WRC on 27 October 2021. Therefore, the cognisable period in the context of this claim is from 28 April 2021 to 27 October 2021. The Complainant resigned her position on 22 July 2021.

Section 21 of the Act provides as follows:

21. Entitlement in respect of public holidays

(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day's pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

(2) An employee may, not later than 21 days before the public holiday concerned, request his or her employer to make, as respects the employee, a determination under subsection (1) in relation to a particular public holiday and notify the employee of that determination at least 14 days before that holiday.

(3) If an employer fails to comply with a request under subsection (2), he or she shall be deemed to have determined that the entitlement of the employee concerned under subsection (1) shall be to a paid day off on the public holiday concerned or, in a case to which the proviso to subsection (1) applies, to an additional day's pay.

(4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday.

(5) Subsection (1) shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in the Third Schedule.

(6) For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is required to work.

There was no dispute that the Complainant was on lay-off from March 2020. She remained on lay-off until her return on 23 June 2021 when she was put on short-term.

Third Schedule Entitlement Under Section 21 in Respect of Public Holidays: Exceptions stipulates in the relevant part as follows:

“Each of the following are the cases mentioned in section 21(5) of absence by the employee concerned from work immediately before the relevant public holiday:

….

3.

such an absence, in excess of 13 consecutive weeks, caused by any reason not referred to in paragraph 1 or 2 but being an absence authorised by the employer, including a lay-off,”

As the Act expressly provides that Section 21 does not apply to an employee on lay-off, the Complainant was not entitled to public holiday entitlements during the period of lay-off.

With regards to the Complainant’s entitlements following her return, I note that no public holidays fell in the period from 23 June 2021 to the date of her resignation on 22 July 2021.

I declare this Complaint to be not well founded.

Constructive dismissal- annual leave- public holidays – deductions-