Worker

Employer

Anonymised Parties

A Swim Instructor,  Ms. L

A Swim Academy

Representatives

Elaine Davern Wiseman B.L instructed by Martina Murphy Solicitors

Andrea Montanelli Peninsula Business Services Ireland

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act

CA-00057079-001

12/06/2023

The worker who is a Filipino National was employed by the employer as a Swim Instructor from 19th of May 2022 to 20th of February 2023.

The worker submitted a claim of Unfair Dismissal under the Industrial Relations Act on the 12th of June 2023. 

In addition, there are a number of related claims lodged by 5 other complainants against this named respondent.

Following submission of the claims, the workers retained legal representation who argued that the claim forms also referred to claims under other pieces of legislation, namely the Payment of Wages Act and the Organisation of Working time Act although the workers had not submitted individual claims under those specific pieces of legislation.  In advancing this argument it is submitted that the workers are Filipino nationals and were not legally represented at the time of lodging the claims.

The respondent at the hearing agreed that it would not object to the claims in respect of matters which were previously mentioned in the narrative of the claim form however the respondent also argued that it is entitled to know the case which it has to face.

The first matter for consideration is the preliminary issue with regard to the correct legislative provision under which the complaints  were taken.

While the within complaint/dispute was lodged under the Industrial Relations Act it is clear from the narrative in the claim form that the matters being referred also contain claims in respect of  the Payment of Wages Act and in some cases under the Organisation of Working time Act.

Having carefully considered both sides on this matter,  based on the evidence heard and the authority laid down in the County Louth VEC v The Equality Tribunal, I am satisfied that the claim form can be amended where the justice of the case requires it, and this is such a case.

The case of County Louth VEC v The Equality Tribunal is authority for the proposition that as a non-mandatory or non-statutory administrative form, a change to the form can be made, where McGovern J, albeit obiter, stated: “I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on grounds of sexual orientation) remains the same. What is in issue here is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time…”  “Of course, it is necessary that insofar as the nature of the claim is expanded, the respondent in the claim must be given a reasonable opportunity to deal with these complaints and the procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice.”

In that case, the Supreme Court made further observations; “It goes without saying, first, that the duty of the Equality Officer is both statutory and ultimately, delimited by constitutional considerations. As part of fair procedures, it is necessary that all parties be aware, in a timely way, of the case which they must meet. Consequently, it would be wrong, were a situation to evolve in this investigation, where one or other of the parties was under a misapprehension of precisely the range of legitimate enquiry. Second, it is hardly necessary to reiterate that it is not possible for any tribunal, upon which a particular jurisdiction has been conferred by statute, to extend or confine the boundaries of that jurisdiction by an erroneous determination of fact (see State (Attorney General) v. Durkan [1964] IR 279, approved in Kileen v. DPP [1998] ILRM1). There may also be circumstances in which a tribunal, although holding jurisdiction to enter upon an investigation or inquiry, may render its decision a nullity by, for example, a denial of fair procedures.”

I am satisfied that the respondent is on notice of these matters in circumstances where the matters complained of were already raised in the narrative of the claim forms.  Accordingly, I proceeded to deal with those matters outlined in the narrative of the claim forms and decisions in respect of same

are contained in a separate Adj reference.

Where evidence was adduced in respect of matters which were not previously referred to in the narrative of the claim form, I am satisfied that these matters are not properly before the commission and cannot be pursued.  

In addition, I note that this worker at the hearing referred to additional claims which she stated were detailed on pages 6 to 8 of the original claim form however it was clarified at the hearing that these pages were not submitted to the WRC with the original complaint form and accordingly those claims had not been received or processed by the Commission  and the respondent had not been notified of same and were not on notice of same.  Accordingly, I am satisfied that those matters are not properly before the Commission and cannot be pursued.

All matters were heard together over two days of hearing in September and November 2024

The hearing was conducted with the assistance of a Tagalog Interpreter.

There was extensive post hearing engagement on these related matters with final correspondence received on 14th of April 2025.

The worker who is a Filipino National was employed by the employer as a Swim Instructor from 19th of May 2022 to 20th of February 2023.

The worker submitted a claim of Unfair Dismissal under the Industrial Relations Act on the 12th of June 2023.  The narrative of the claim form states that monies were deducted from the complainant upon the termination of her employment.  It is claimed that part of these deductions was attributed by the employer to training costs incurred, which states it was entitled to recoup due to the workers’ employment terminating before the end of two years’ service a clause which the employer claims formed part of the worker’s contract.

The claims in respect of monies deducted from wages are more appropriately dealt with under the Payment of Wages Act and decisions in that respect are contained in a separate Adj reference.

As regards the dismissal the worker claims that in a meeting which took place on or about the 18th of November 2022, the Employer claimed that the claimant was not performing as required, however it is submitted that she was not given direction or assistance as to how she could amend this claim.

It is submitted on the complainants behalf that following this meeting the claimant continued to be given the burden of the responsibility of instructing young and sometimes vulnerable children, some with special needs, and she was required to do this unsupervised and unassisted on her own, despite the claim of the Employer manager claiming she was not to a standard to have completed her probationary period and so her probationary period was extended.

The employer submits that the worker who is a Filipino National was employed by the employer as a Swim Instructor from 19th of May 2022 to 20th of February 2023.

The employer submits that the workers’ employment was terminated on 20th of February 2023 during her extended probationary period

The employer submits that the probationary period was extended due to performance issues

The employer submits that they  met with the worker on a number of dates outlining the issues in question. After careful consideration the employer decided that the worker had failed to improve their performance, and they duly dismissed her.

The employer has set out the procedure used in dismissing the complainant. They informed the worker on a number of occasions as to the issues outstanding within the employment.

The employer submits that the worker as part of her contract had signed a training agreement under which the employer was entitled to recoup monies invested in the training of the worker in circumstances where the workers employment ended before the expiration of 2 years from the commencement of employment.

The worker who is a Filipino National was employed by the employer as a Swim Instructor from 19th of May 2022 to 20th of February 2023.

The worker submitted a claim of Unfair Dismissal under the Industrial Relations Act on the 12th of June 2023. 

Following submission of the claim, the worker retained legal representation who argued that the claim form also referred to claims under other pieces of legislation, namely the Payment of Wages Act and the Organisation of Working time Act although they had not submitted individual claims under those specific pieces of legislation.  In advancing this argument it is submitted that the worker is a Filipino national and was not legally represented at the time of lodging the claims. 

The employer at the hearing agreed that it would not object to the claims in respect of matters which were previously mentioned in the narrative of the claim form.

I am satisfied that the employer is on notice of these matters in circumstances where the matters complained of were already raised in the narrative of the claim forms.  Decisions in respect of these matters are contained in a separate Adj reference.

The within dispute refers to an allegation that the worker was unfairly dismissed and that the employer sought to recoup training costs of €3500 from the worker on the termination of her employment.   The employer does not dispute this stating that the recoupment of training costs was provided for in a Training Agreement signed by the worker prior to the commencement of her employment.  In addition, the employer submit that while the worker was advised that she still owed an amount of €2,924 from the training costs of €3500 this amount has not been paid by the worker or recouped by the employer.

Given that the narrative of the claim form refers to matters appropriate to Payment of Wages claims these matters are dealt with in a separate Adj reference under said legislation however a claim of unfair dismissal under the IR Act was also submitted and so is dealt with here.

Both parties agree that the workers employment lasted form 19th of May 2022 to 20th of February 2023.  The worker submits that her dismissal was unfair.

The employer submits that the worker was dismissed for performance issues during her extended probationary period.    The employer advised the hearing that the workers’ probationary period was extended due to performance issues.   The employer submits that this matter was discussed with the worker during their probation meeting on 16th of November 2022 and again in meetings on 11th of December and in January 2023.

The worker does not dispute that her probationary period was extended.

The employer states that the performance issues referred to include a failure by  the worker to submit timely reports in respect of student progress.  The employer advised the hearing that these matters were raised with the worker and that she was notified that her probationary period was being extended. 

The worker submit that she was provided with no direction or assistance as to how she could improve.  The employer submit that the worker who was already a qualified swim instructor had been provided with 3-4 weeks of training by the respondent and also had been provided with training videos which she could rewatch at any time to continue her training.

The employer stated that Worker was dismissed on the 20th of February 2023 for poor performance as she failed to demonstrate the skills and ability to perform in her role.. The Employer fully reiterates the submission as regards dismissal for performance issues, as they met with the Worker on a number of occasions outlining such issues, which were not improved and resulted in her dismissal.

The employer provided detail of these issues in respect of the workers failure to provide timely or accurate updates in respect of student progress.    The worker in her evidence to the hearing  conceded that she had been reprimanded by the employers for not providing reports on time and for being late.   She stated that she had gotten into trouble for being late with her reports.

The employer stated that they had met with the worker on a number of dates outlining the issues in question and after careful consideration the employer decided that as the worker failed to improve their performance, and they duly dismissed her

The employer has set out the procedure used in dismissing the complainant. It is submitted that they informed the worker on a number of occasions as to the issues outstanding within the employment specifically on 16th of November 2022, 11th of December 2022 and again in January 2023.

The employer submits that the worker was provided with a letter on 6th of December 2022 in respect of these performance issues which also contained a detailed report in relation to performance issues and areas for improvement (submitted in evidence).

Having considered all of the circumstances of this dispute I do not recommend in favour of the worker.

Having considered all of the circumstances of this dispute I do not recommend in favour of the worker.