Worker

Employer

Anonymised Parties

A Swim Instructor Ms. F

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-00057712-001

14/07/2023

The worker who is a Filipino National was employed by the employer as a Swim Instructor from 28th of June 2022 to 28th of June 2023.

The worker submitted a claim of Unfair Dismissal under the Industrial Relations Act on the 14th of July 2023. 

The worker later submitted a claim of Unfair Dismissal under the Unfair Dismissals Act on the 3rd of October 2023.  This is dealt with under a separate Adj reference.

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

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.  

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 is a Filipino national, she commenced her employment with the Employer on the 28th of June 2022,     The Worker completed the probationary period of 6 months, and her employment terminated on the 28th of June 2023.

The employer submits that on the 13th of March 2023 the worker wrote to the employer advising them that she would not be extending her contract past the one-year period ending on the 2nd of July 2023.

On the 14th of May 2023 the worker was advised that her hours of work would be reduced due to a downturn within the business.

Upon completion of the work contract on the 28th of June 2023 the worker left the employment.

The worker representative at the hearing of this matter clarified that the worker had not been dismissed.  Accordingly, I do not recommend in favour of the worker.

The worker representative at the hearing of this matter clarified that the worker had not been dismissed.  Accordingly, I do not recommend in favour of the worker.