Worker

Employer

Anonymised Parties

A fitness instructor

A fitness centre.

Representatives

  In person.

Ms M P Guinness BL instructed by Gleeson McGrath Baldwin LLP

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00002199

08/02/2024

The complainant is employed by the respondent as a fitness instructor / duty manager. Employment commenced on 17th June 2021 and is ongoing.

This complaint was received by the Workplace Relations Commission on 8th February 2024.

The hearing of the complaint took place on 5th June 2024.

In complaints heard under s.13 of the Industrial Relations Act, 1969 the Complainant is referred to as the Worker and the Respondent is referred to as the Employer.

Report compiled by the Worker dated 20/11/2023. (sent to management).

Following on from our many meetings we have had, I’m now putting my concerns in writing and on record, regarding the issues with health and safety that both staff and some clients have also raised.

In regard to the pool: 

1.      No pool rules on display, and pool not been supervised properly, and staff not enforcing rules.

2.      Clients and children entering restricted areas which contain hazardous chemicals and electrical switchboards and pool equipment which could cause serious injury.

3.      The pool area and steam and sauna are not cleaned properly, and no deep cleaning is being maintained.

4.      Broken tiles on pool deck, where multiple children have been injured over the past few weeks.

5.      Hazardous chemicals unsealed properly “Chlorine tablets” stored in the 1st aid room, beside other chemicals like bleach. Putting children at risk when we had to attend to their injuries.

6.      On weekends payg swims are not supervised properly, unruly conduct and serve messing is not shut down.

7.      Kids been left unattended in pool with no supervision.

8.      Lifeguards not paying full attention.

9.      Arriving late for pool shifts.

10.  Working out on the pool deck when supposed to be supervising

11.  Eating lunches on pool deck also while supposed to be supervising.

Cleaning Dept:

1.      Not fulfilling proper duties.

2.      Arriving late for shifts.

3.      Taking extra breaks.

4.      Have no daily rota or lunch break rota.

Gym:

1.      Staff not doing proper duties arriving late at times and leaving early at times, due no swipe cards.

2.      Trying to locate staff when not in the area they are rostered to be in.

3.      Staff are continuously rushing set jobs which have been allocated 1 hour and completing in 10mins, then taking the remaining time for themselves, instead of reporting back to the management for more duties. Resulting in shoddy cleaning practices and results in more pressure on other staff.

4.      Not following gym protocols and safety procedures properly, e.g allowing clients to train in bare feet, allowing clients unsupervised access to the main hall.

5.      Working out while on duty.

6.      Swapping allocated roles without informing duty management.

7.      In DM offices using work on computers for personal use while rostered to be working in another area.

8.      Health and safety issues, staff not monitoring clients properly on gym floor when using equipment and inappropriate assessments been giving out.

9.      Assessment paperwork not been filed properly and been left out on display, also no lock on door to assessment room and DM room where this information is stored, resulting in a breach in GDPR, as customers are walking in and out of these restricted areas and have full access to client’s personal information. It was stated that they would be serious disciplinary action if we didn’t read and sign the GDPR email we received, but yet this information can be left unlocked and lying around.

10.  As I am not in the group chat, as it’s my personal number, which I do not share, I get overlooked as a manager, e.g., staff don’t communicate to me or through me, even when I’m the duty manager on that day. They do not respect my position as a duty manager at the time when issues are happening.

Staff safety has become an issue especially on evenings and weekends. Staff have reported been intimidated by customers, while trying to impose rules and regulations which sometimes stems from other staff not doing their job properly, by allowing customers to do what they want.

There is an absence of Senior management and security on evenings and weekends especially at payg swim times, when needed the most. All Staff would benefit from a refresher course on health and safety and the inspire fitness guidelines and protocols.

Summary of complaint submitted to the Workplace Relations Commission dated 21st January 2024.

I’m writing this letter in regard to ongoing work issues within inspire fitness centre, which I have previously brought to the attention of management both verbally and in writing. I am a duty manager and have been employed as a fully qualified fitness instructor since July 2021 and more recently as a fully qualified level 2 Irish water Safety Swimming teacher February 2023, Prior to that I have been a member of the facility since it opened.

Please find enclosed my written report on issues that I have verbally brought to management and finally in writing back in November 2023 (outlined above), so it would be on record, as I was getting no response to these serious issues. These matters have not been dealt with and more have arisen since my report, which causes concern to me which are affecting the mental health, the safety and moral of some of the staff and the health and safety of the clients.

I myself am suffering serious emotional distress and anxiety in work regarding the lack of management support, and the undermining of my position as a duty manager, due to certain staff not respecting my role as a duty manager. Due to a lack of HR department, there is nowhere else to raise these issues.

Since that report back in November, more problems have arisen, regarding GDPR and the use of WhatsApp work groups. Serious suspicions of potential illegal drugs in staff locker rooms, staff fraudulently signing out and leaving the premises, not finishing their tasks, resulting in poor hygiene and safety, while clients are still in attendance, were issues privately brought to senior management’s attention. These issues were raised publicly on the Whatsapp group by management, instead of being dealt with discreetly. I have previously stated that I do not wish to be in a Whatsapp group. There is a toxicity in relation to the way in which the Whatsapp group operates. Instead of dealing with the individual problem or person, the phrasing of some messages casts a wide shadow. For example, on 2 occasions I have been tarnished by implication by Whatsapp messages written by management. I also receive messages on my private telephone number, from management, as I am no longer in the Whatsapp group. These incidents along with another issue, which undermined my qualifications as a fully qualified Level 2 Irish Water Safety swimming instructor, which left me completely embarrassed, singled out, and without adequate explanation with regard to the risk assessment I made in relation to safety to the children in my class. This has never been the practice before, and I was never given an answer as to why my professional judgement was called into question at this time. Considering that no action has been taken in relation to the issues raised, it seems very wrong that I have been singled out, to have a member of staff, who I am over as duty manager, have to stand beside me on the pool deck, in view of all the parents, and make a further assessment on the child in question and my class, and the ability of me as a teacher. It seems very suspect and intimidating and a form of bullying, along with the implied references in the Whatsapp group. It has further added to my concern and anxiety that I was informed that new members of staff have been allowed to work without their Garda vetting being received. Since January 2023, due to a severe back injury, which occurred on the premises, I have had to put in repeated Doctors letters requesting a change of duties and hours. The management have not been supportive, as has been proven by the number of doctors letters I have had to submit. These issues have caused me physical, emotional and mental distress, as despite bringing them to the notice of management, they have not been dealt with adequately. I have no other means of dealing with these issues, other than to bring them to the attention of the HSA, WRC and the Board. I have copies of communications should they be needed. I would just like to add that I have a huge passion for my job, and the clients I deal with and the organisation I work for.

1.      By complaint form received on 8 February 2024 the Worker lodged a complaint under Section 13 of the Industrial Relations Act 1969. In the complaint form he identifies “bullying and harassment procedures”. He states that “I am being singled out by staff and management for bringing concerns to the attention of management. Some staff ignore my directions in relation to health and safety issues etc. Management do not take action on issues raised”. In the documentation provided by the Worker he includes what is identified as a “report” dated 20/11/23 to management of the Employer in which he sets out his concerns in writing and on record regarding issues he has with health and safety – he says both staff and clients have also raised these issues.

2.      It is accepted that the Worker brought areas of concern in writing to management of the Employer in 2023. Many of the matters raised had previously been raised verbally with management. It is untrue that the Employer did not act on these issues and the action taken will be outlined below in detail. Many of the historical concerns were addressed in October 2023 at an informal meeting off site which resulted in the Worker verbally withdrawing a previous notice to resign from their employment. The Worker has a history of overreacting to situations that arise and then regretting his actions. At this point in October the Worker acknowledged that he had been over-reactive and regretted handing in his notice. He was somewhat taken aback that the general manager had not attempted to ask him to stay. The general manager advised him that because the Worker had walked away several times before he was going to accept his resignation letter. However, the general manager informed him that he would not have an issue with him retracting his resignation and returning to work but that going forward he would not entertain another walkout and any future resignation would be final. The general manager shook hands with the Worker about previous dramatic situations involving the Worker. It was agreed that the Worker would come and calmly discuss matters with the general manager rather than be overreactive to situations as he had been up until then.

3.      The Worker then raised the issues with the board who organised a mediation between the Worker and the general manager. Because the notes of the mediation were not “verbatim” the Worker refused to agree them or amend them.

4.      The Worker complains that management did not act against individuals whom he had notified them of regarding performance issues. While this allegation is very vague and without names and details, the Employer always acts on allegations of underperformance. Informal meetings are held initially and this progresses to formal disciplinary hearings as required. While the Employer does not always inform the Worker the specific detail of disciplinary action or details of outcomes of meeting with staff they did not do so because they do not believe that he needs to know the full details of what actions are taken against other staff. The Worker is not entitled to know of any action or agreement on performance which is a matter between the staff member and the manager and is not discussed with the Worker. However, it is submitted that the Worker was aware that these meetings and actions were happening.

5.      In relation to the WhatsApp group the Worker states that he did not wish to be in the staff or management WhatsApp group to avoid sharing his private number with staff. This request was acknowledged and adhered to and it was confirmed that he was no longer within any official WhatsApp group. The Worker appears to have an issue that management messaged him on his private number. The Employer contacted the Worker on the number that he submitted on his starter form. This is also the number the Worker used to message the Employer giving information including videos photos and duties and concerns he had with staff and performance.

6.      Regarding the “serious suspicion of potential drugs” in the staff room it is confirmed that this was raised verbally by the Worker and another deputy manager. The accusation was that there was a strong smell of Hash in the staff room. The Employer investigated and did not find a smell of Hash on visiting the area. Action was taken to make sure that staff were aware and to notify them of how unacceptable it would be and the potential consequences of using any type of drug on the premises. No further accusations or evidence has been presented to the Employer since this action was taken.

7.      The Worker alleges that staff were fraudulently signing out and leaving the premises when not finishing their tasks. This matter was raised by the Worker and management then identified three staff members and had informal meetings with all three staff who all admitted leaving the premises. No formal disciplinary action was taken but all three gave assurances that it would not happen again and to date there is no record of any of them leaving early. In relation to tasks not being completed this has occurred again and disciplinary action was taken, and a copy of the disciplinary notice was available at the hearing.

8.      The Worker states that they have been tarnished by implications within WhatsApp messages by management. The Employer denies this.

9.      The Worker alleges that he was undermined in his position as a level 2 swim teacher. This matter refers to reassessing two children who had been booked into beginners 2 level swim lessons having successfully completed beginners’ level and passing the assessment stage with two other swim teachers. The Worker verbally told other instructors, swim teachers and colleagues that he would not be teaching the two specific children on what he deemed safety grounds based on the children being “small and nervous”. The Worker proceeded to remove the children from his class which they were booked into and bring them back to a beginner level class which was already fully subscribed and which they had already successfully passed. From a safety point of view this would put the student/teacher ratio outside the recommendation. The Worker did this without any conversation with the swim teacher teaching the lesson, the parents of the children or the club.

10.   When informed that the children would be reassessed, the Worker told several staff that he would not teach the children as he felt it was unsafe to do so. The Worker’s criteria of children being “too small and nervous” is not criteria that is used to assess children’s swim ability. Children can progress to out of their depth as they show specific competencies. Otherwise, you would never allow a child to go to the deep end of the pool as it would be unlikely any children would be within their depth in 1.85 metres of water.

11.   The Employer took action to maintain the important student/teacher ratio and allow the children to progress as they were twice deemed suitable to progress and to avoid challenging the Worker’s position on not teaching these children. The children were accommodated at the same time with another instructor. It is noteworthy that the two children have proven to be suitable to continue in the beginner 2 level lesson and have in fact both progressed to the deep end of the pool. This is not a reflection on the Worker as it should be recognised that the children have a much smaller student/teacher ratio than his class and therefore get much more individual attention. However, this should highlight the importance of not oversubscribing or moving children which would result in inferior experience and the club falling outside ratio guidelines.

12.   While the Worker appears to have taken the handling of the situation very personally, he clearly cannot see that in fact he was undermining his two colleagues who had initially taught the children at beginner 1 level and subsequently assessed the children and deemed them suitable to progress.

13.   It is untrue that management did not explain the situation to the Worker as he queried this verbally to the deputy manager. The deputy manager verbally explained the big picture in relation to class ratios, criteria for assessment, the two other instructors’ assessment of the children, parental notification and children’s feelings. The Worker did not formally notify management but did speak to several staff members making it clear his stance on the situation. Furthermore, the general manager messaged the Worker privately advising that the children had been assessed and would be reassessed in advance of notifying parents of any potential move if required and a copy of this was available at the hearing.The Employer allowed the Worker to adopt his position of not teaching the children out of his concerns for their safety. This was done so without restricting the children’s progress on grounds that are not within the criteria of assessment. There was no formal complaint about the handling of this situation prior to the Worker lodging his complaint in the WRC.

14.   The actions of management and the club were reasonable and considered all concerned. It is denied that the actions of the Employer could be viewed as intimidating, bullying or undermining. On that date the Worker attended a medical centre and got preferred times of shifts changed from 22:00 hours to 20:00 hours. A copy of a medical cert dated 18/01/24 together with a note of change of hours from the previous cert was available at the hearing.

15.   Three days later the Worker escalated things by writing to the WRC, the HSA and the board of the company.

16.   In relation to alleged concerns in regard of vetting and GDPR, both of these areas have been addressed under an internal governance review and a GDPR review both carried out by third parties and various processes implemented by an internal task force. These include specific registration of NDVSLC Limited as an affiliate of Active Ireland and with their own registration with NGVB as the previous Garda vetting process/structure was through the parent company as affiliate of the Arch Diocese of Dublin. It was required to change the structure as Garda vetting is specific to the relevant organisation performing relevant duties and is non transferrable between companies/organisations including parent to subsidiary. In relation to GDPR the company has updated all GDPR policies and notified all staff of same and has taken action to improve data controls including appointment data protection need to monitor and help manage GDPR.

17.   In relation to the Worker’s assertion that management were not supportive of his medical condition, this is not accepted. Furthermore, it is not accepted that his medical condition arose from an incident on premises. Prior to the date of the complaint of 21/01/24 the club had worked within the preferred shift times outlined in the medical certificate issued and had only given the Worker light duties. Copies of every single roster issued from the date of the medical cert will show no shift outside of 08:00 hours and 22:00 hours and samples of this are included. Furthermore, daily schedules will show that only light duties were given to the Worker. He was not asked to lift a brush, mop, hoover or teach anything other than low impact classes which he wanted to teach. He was accommodated with every possible shift and duty to ensure he was not exposed to anything which would hinder his recovery. He was upskilled to do reception and taken off all other duties which could have caused him difficulty. It is submitted that the Employer has completely supported the Worker in recovering from his injury and denies any assertion to the contrary.

18.   The Worker alleges that he has ongoing back issues because of an incident on the premises which is denied. It is, however, noteworthy that the Worker by his own admission has ongoing nerve issues due to herniated disc spurs sitting on a nerve causing him pins and needles in advance of his straining his back while training on his own time in the gym. It should also be noted that the Worker is a qualified fitness professional specifically trained on how to lift weights safely and how to instruct others how to do so.

19.   It is submitted that the Employer has acted on any issues that the Worker has raised in his role. It is unclear what remedy the Worker is seeking. As outlined above, the Worker has a history of overreacting to situations and has previously offered and retracted his resignation. The Employer acts at all times in the best interest of its employees and clients and is at a loss as to why the Worker has made this complaint.t

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

In complaints heard under section 13 of the Industrial Relations Act 1969 no Decision is issued, what is issued is a Recommendation.

It is a pre-requisite that a complainant, prior to submitting a complaint to the Workplace Relations Commission under s.13 of the Industrial Relations Act has exhausted the internal procedures within the organisation.

In the instant case the complainant, referred to as the Worker, does not appear to have fully utilised the internal procedures i.e., Grievance Procedure. The respondent, referred to as the Employer, has a comprehensive Employee Handbook. Pages 20,21 and 22 contain that procedure, it should be used.

In light of this failure to exhaust the Grievance Procedure I cannot make a recommendation in favour of the Worker. I can however make the following recommendations.

Recommendations.

1.      The Employer should update the employee handbook to ensure compliance with all employment legislation. There has been new and amended legislation that postdates the current employee handbook.

2.      Once updated, the employee handbook, should be issued to all employees.

3.      The use of ‘Whats App’ as a communication tool should cease.

4.      In relation to the Grievance Procedure a stage 4 should be introduced, this would only apply to those employees reporting directly to the General Manager. If employees at this level are not satisfied with the decision of the General Manager, they should be allowed to appeal to the Board Chairman.

s.13 Industrial Relations Act 1969.