Complainant

Respondent

Parties

Bernie  Crawford

Bravo Fitness Ltd  

Representatives

Mr Damian Crawford

 Ms Bridget Browne, Director

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00049767-001

20/04/2022

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

CA-00049767-002

20/04/2022

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00049767-005

20/04/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00049767-006

20/04/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00049767-007

20/04/2022

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

CA-00049767-008

20/04/2022

The complainant worked with the respondent from June 2021.  She is alleging various unauthorized deductions were made from her wages, that she was unfairly dismissed, that she did not receive her holiday entitlements and that she did not receive her statutory notice.  The complainant was represented by a relative, Mr Damian Crawford.  Various issues were raised by Mr Crawford, relating to his own dealings with the respondent, which are outside of my jurisdiction and I have confined my decisions to the matters in dispute which are within my jurisdiction.

Evidence was given under oath/affirmation by Mrs Brigid Brown on behalf of the respondent and on behalf of the complainant by the complainant, Ms Bernie Crawford, and her representative, Mr Damian Crawford.  All witnesses were subject to cross examination.

Various documents were forwarded to me by both parties which were considered by me as part of my adjudication.

The complainant, Ms Crawford took up employment in June 2021 with Bravo Fitness ltd.  There was no issue in relation to wages until November 2021 when her wages were reduced by varied amounts ranging from €250 -€140 per week.   The company would not address these issues and kept bringing on new staff against the advice of their manager (Ms Crawford) on the EWSS wage scheme so the business would be staffed by free workers. This continued into early 2022 when the director proceeded to close the gym with no warning, no notice to the complainant and without payment of holiday pay and the arrears in wages for time already worked in the business from November 2021 until April 2022.  The director then dismissed the Manager by phone. When she requested that she be paid the monies she was owed the Director backtracked on the dismissal. A further request was made from a Management company in Dublin for the arrears in wages totalling nearly €6350 and holiday pay entitlements as per the contract of 28 days as no holidays were taken. The amount owed for holidays is approx. €3150. The Director, Mrs Brown refused to pay any of the staff holiday pay and paid the complainant €341 instead.  Mrs Brown refused to end the employment of all the workers until April as she told staff she wasn’t paying anyone any money as she did not have it.  Mrs Brown then proceeded to end every workers job in early April without paying out all the monies owed. The complainant was never notified that the gym was closing.  In fact she got a message on from a member of the gym to say place was closing.  She received no notice. 

Other employees were paid holiday pay even though they had only worked for the business for 10 weeks.

The complainant’s contract provided for 28 days holidays and a rate of pay of €14.50 per hour.  There was nothing in writing about reducing her hours at any stage and no request was made by the complainant to have her hours reduced.  Any hours that she carried out for another employer were over and above the contracted hours she had with the respondent.

Mr Damian Crawford  (the complainant’s representative in this case and a relative of the complainant) set up a business within the respondent’s gym.  He informed Mrs Brown that he would cover the cost of some of the complainant’s hours and agreed with Mrs Brown that she should reduce the complainant’s hours.

The complainant worked until 17 December and between then and when the gym closed she only came to the gym one day as she had to stay at home to mind a child.  Mrs Brown rang the complainant on 22 March 2022 to tell her that the gym was closing. The gym was closed for three weeks during January for holidays and all staff were paid during that time including the complainant.  Mrs Brown worked herself during January and took on the hours previously worked by the complainant. Whatever work the complainant carried out was from home.  The respondent ceased paying the complainant around 9th April 2022.  No other staff were paid after that date except for one who was owed back money which Mrs Brown continued to pay.

In relation to the complainant’s contract the respondent states that Mrs Brown did not sign a contract for €14.50 per hour as claimed by the complainant.  However, Mrs Brown acknowledges that she subsequently agreed to the higher figure.

CA-00049767-001 Payment of wages complaint

The evidence presented of various text messages between Mrs Brown and the complainant’s representative, Mr Damian Crawford clearly indicate a working relationship between the two.  There is reference to hours of some of the respondent staff being covered by Mr Crawford’s company as they would be carrying out classes for him.  However, there is no specific evidence in these communications that the complainant’s hours should be reduced and/or that she would be covered by the same arrangement. There is a difference between the parties in the evidence given in relation to deductions from pay with the complainant stating that no such agreement was in place and the respondent stating the deductions were at the request of Mr Damian Crawford in respect of work the complainant would be doing for his company during her working hours with the respondent.  The respondent must show that the deductions were fair and she has been unable to produce any written evidence in that regard.  The complainant did not produce any written evidence confirming the weekly deductions but estimated in sworn evidence the total owed as being €6350. In the absence of evidence to the contrary I accept this estimate as being accurate for the purposes of the wages owed.

CA-00049767-002 Unfair Dismissal complaint

Section 2 of the Unfair Dismissals Act, 1977 states as follows;

.—(1) This Act shall not apply in relation to any of the following persons:

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year's continuous service with the employer who dismissed him and whose dismissal does not result wholly or mainly from the matters referred to in section 6 (2) (f) of this Act,

I am satisfied that the complainant worked from 21 June 2021 until 9 April 2022.  Details following that date are confusing in part at least due to the proposal by the complainant and/or Mr Damian Crawford, that the complainant take over the running of the gym.  Based on the evidence given I am satisfied that the complainant’s contract of employment was terminated on 9th April 2022.  In these circumstances the complainant does not meet the service requirement under the Unfair Dismissals Act and therefore she was not unfairly dismissed.

CA-00049767-005European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

No evidence was presented relating to contravention of the above regulations and therefore the complaint is not well founded.

CA-00049767-006  Minimum Noticecomplaint

There is no evidence that the complainant was given formal notice.  Under the Act the complainant was entitled to one week’s notice which is €565.50

CA-00049767-007 Protection of Employees (Fixed-Term Work) Act, 2003

All of the employees of the respondent were terminated and there is no evidence that the complainant was treated differently due her being on a fixed term contract.  The complaint is therefore not well founded.

CA-00049767-008 Organisation of Working Time Act, 1997 – Holidays complaint

In relation to holidays there is an absence of detail and it is clear that some of the bank holidays were in fact paid.  I am satisfied that the complainant worked from 21 June 2021 until 9 April 2022.  Based on the evidence given I am satisfied that the complainant’s contract of employment was terminated on 9th April 2022.  I estimate the number of days holidays due to the complainant at 16.  Her daily rate of pay was €113 per day and therefore she is owed €1810 less the €341 already paid giving a nett figure owed of €1469.

CA-00049767-001   The complaint is well founded and I order the respondent to pay the complainant the sum of €6,350 in respect of wages due.

CA-00049767-002  The complainant was not unfairly dismissed

CA-00049767-005  The complaint is not well founded

CA-00049767-006  The Act has been contravened and I order the respondent to pay the complaint the sum of €565.50 in respect of one week’s statutory notice due.

CA-00049767-007 The complaint is not well founded

CA-00049767-008  The complaint is well founded and I order the respondent to pay the complainant the sum of €1469

Wage deductions, unpaid holidays, notice payment, Unfair dismissal