Complainant

Respondent

Anonymised Parties

A Swim Instructor,  Ms. S

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 7 of the Terms of Employment (Information) Act, 1994

CA-00059201-001

03/10/2023

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

CA-00059201-002

03/10/2023

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

CA-00059201-003

03/10/2023

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

CA-00059201-004

03/10/2023

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

CA-00059201-005

03/10/2023

The complainant who is a Filipino National was employed by the respondent as a Swim Instructor from the 17th of January 2023. The Complainant is still employed by the Respondent.

The complainant submitted a claim under section 7 of the Terms of Employment (Information) Act, 1994, on the 3rd of October 2023.   The cognisable 6-month period dates form 4th of April 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 claim was originally lodged under the Terms of Employment (Information) Act, 1994 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 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.

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.  

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, the within claims arise out of those matters outlined in the narrative of the complaint form submitted on 3rd of October 2023.

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 complainant who is a Filipino National was employed by the respondent as a Swim Instructor from the 17 of January 2023. The Complainant is still employed by the Respondent.

The complainant submits that

- [the respondent did] not provide [her] with a reasoned reply to my request for employment with more predictable and secure working conditions within one month of [her] request.

She also submits that

We were given a handbook to read but that was it

She was employed on the promise of €576.00 per week and chance of a better life in Ireland but instead was forced to sign a contract reducing her wages.-

The complainant submits that Health and safety Training was not given in full to all employees.  The complainant advised the hearing that she was not seeking a decision in respect of Health and safety issues.

Hours worked does not include travel time between pools and that is not a break either.

 34 hours in the water which gave severe rashes and other issues

 The complainant submits that she was required to carry out Ad-hoc duties at their discretion for no extra pay on days off such as admin and handing out flyers on days off and after hours.

Wage deductions for sickness but also expected to do an extra shift the following week for free.

The Complainant who is a Filipino National was employed by the respondent as a Swim Instructor from the 17h of January 2023. The Complainant is still employed by the Respondent.

 The Complainant’s role was Swim Instructor, to which she received intensive training along the 4 first weeks of employment. The Respondent refutes the allegation that the role is vague and non-specific in the contract of employment, which clearly states that the Complainant was employed as a Swim Instructor

The respondent  submits that, nowhere within the narrative of the complainant’s referral form does she allege that, upon a date she requested from the respondent, that she requested more predictable hours.

 During the course of the employment, the respondent was never made aware of the complainants requesting more predictable hours. In those circumstances as mentioned above, the respondent is at a disadvantage as to how to defend themselves giving the nature of the complainant and the narrative put forward on her referral form.

The respondent disputes the allegations made under the Payment of Wages Act submitting that the reduction in wages was agreed with the complainant therefore is not an illegal deduction

The respondent submits that the complainant was not required to furnish reports on students after classes

The respondent disputes the allegations made under the Organisation of Working time Act submitting that the complainant has 2 hour breaks between shifts therefore the allegation that she had no breaks is not true.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00059201-001

03/10/2023

The complainant who is a Filipino National was employed by the respondent as a Swim Instructor from the 17th of January 2023. The Complainant is still employed by the Respondent.

The complainant in submitting this claim outlines a number of complaints appropriate to the Payment of Wages Act and the Organisation of Working time Act.

The complainant in her claim form states that

My employer has not provided me with a reasoned reply to my request for employment with more predictable and secure working conditions within one month of my request

The respondent refers to s.6F of the Terms of Employment Information Act 1994 as amended by the European Union (Transparent and Predictable Working Conditions) Regulations 2022, S.I. No. 686 of 2022, reg. 12. Wherein it states.

6F.— (1) Subject to subsection (2), an employee who has been in the continuous service of an employer for not less than 6 months and who has completed his or her probationary period, if any, may request a form of employment with more predictable and secure working conditions where available and receive a reasoned written reply from his or her employer. (2) An employee may, once in any 12-month period, request a form of employment in accordance with subsection (1). (3) An employer shall provide the reasoned written reply referred to in subsection (1) to an employee within one month of the request by the employee. (4) An employer may provide an oral reply where a subsequent similar request is submitted by the same worker where the situation of the worker remains unchanged. (5) This section shall not apply to seafarers or sea fishermen

It is the respondent’s respectful submission that the complainant failed or neglected to request such hours following their probationary period of employment.  .As a consequence, the respondent has not breached the Act as alleged.

The complainant also states that We were given a handbook to read but that was it.

The respondent in its evidence advised the hearing that the complainant was provided with a contract of employment before her employment commenced and stated that this contract was signed by te complainant in the Philippines in December 2022 before she travelled to Ireland to take up employment with the respondent.  

The complainant at the hearing agreed that she had received a contract and that she had signed the contract in the Philippines. 

The respondent also disputes that that the complainant ever  requested more predictable hours in accordance with Section 6 F set out above.

I declare this claim to be not well founded

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

CA-00059201-002

03/10/2023

The Complainant states that her breaks were mixed with having to travel between sites.

 The Respondent refutes the Complainant’s allegations and submits that she would start a shift of 2 hours from 10am to 12pm and start another shift of 2 hours from 6pm to 8pm, for example. The respondent advised the hearing that the complainant did not work between shifts, therefore, the allegation that she had no breaks is not true.

The complainant at the hearing stated that her breaks were used to travel between sites or to write up progress reports after classes.  Evidence adduced at the hearing indicated that the complainant worked 28 hours some weeks and 39 hours on other weeks during the cognisable period.  The respondent relied on rosters to show that the complainant did not always work 39 hours with some weeks showing only 28 hours rostered.  The respondent stated that the complainant had breaks of 2 hours or more in between classes.  

The complainant outlined her typical roster stating that she worked blocks of 2 or 3 hours at a time with a 2-hour breaks and then another 2 to 3 hours blocks

The respondent advised the hearing that the complainant was padi for 39 hours per week but that some of those weeks she was only rostered to work 19 or 28 hours but was still paid for 39 hours.  The complainant when asked whether the difference between the number of hours rostered and the number of hours she was being paid for comprehended the time spent travelling between locations to which she replied, ‘I think yes’.  The complainant told the hearing that she had asked why no breaks were included in the roster and stated that she was told that the 1.5 hours gap between classes was a break. .

Regarding rest breaks, the respondent advised the hearing that the Complainant would start a shift of 2 hours from 10am to 12pm, have a break and start another shift of 2 hours from 6pm to 8pm, for example.   The respondent added that the allegation that she had no breaks is far from the truth. 19.

The complainant in her evidence stated that she was  paid for 39 hours per week but also stated that she sometimes worked less than 39 hours per week. 

The respondent stated that the complainant had breaks of 2 hours or more in between classes as per the rosters .  

Having considered all of the evidence adduced in relation to this matter I declare this claim to be not well founded.

I declare this claim to be not well founded.

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

CA-00059201-003

03/10/2023

Section 5 of the Act stipulates as follows:-

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

(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.”

The complainant submit s that an amount of €100 was deducted from her wages over a period of 16 weeks.

The Complainant who is a Filipino national  commenced employment with the respondent on the 17th of January 2023. The Complainant is still employed by the Respondent.   

The complainant submitted the claim on the 3rd of October 2023.   The cognisable 6-month period dates form 4th of April 2023.

This claim arises form the following statement in her claim form

‘I was employed on the promise of 576.00 per week and chance of a better life in Ireland. this is not true. recently I was forced to sign a contract reducing my wages’

The complainant in her evidence to the hearing stated that  her salary was reduced by €100 per week after four months in employment and that this amounts to an illegal deduction from her wages.    The complainant also added that his reduction was contrary to the salary outlined in her contract for the purpose of her work permit.

The complainant in her evidence to the hearing agreed that she had

 The respondent advised the hearing that the complainant was asked to sign an agreement for the respondent to reduce her pay by €100 per week   as  the respondent at the time was encountering financial difficulties.

The respondent stated that it had asked the complainant and other staff members to take a temporary wage reduction for a period of 16 weeks.   

The respondent stated that the complainant and other staff members were asked to do this and that they accepted the proposal and signed a document to this effect accepting the reduced wages.

The complainant when questioned at the hearing agreed that she was asked to do this and that she was provided with a document outlining this and that she had signed the document.

The complainant advised the hearing that  she was not aware that she could refuse to sign the agreement and felt that she had to sign it as others in similar roles had recently had their employment terminated.    The complainant stated that she had feared that a refusal to sign the agreement would result in the termination of her employment as three other employees had been terminated at that time.

The complainant when questioned stated that the matter was not explained to her in her own language nor was she provided with an opportunity to seek legal advice in respect of the agreement which proposed a changed to her Terms or employment by reducing her salary by €100 per week for a period of 16 week from June to September 2023.

Having considered this matter and based on the evidence adduced and in consideration of the circumstances in which the complainant found herself I am satisfied that this reduction in wages amounts to an illegal deduction.   Accordingly, I declare this claim to be  well founded, and I order the respondent to pay to the complainant the sum of €1,600 in respect of the deduction.

Accordingly, I declare this claim to be  well founded, and I order the respondent to pay to the complainant the sum of €1,600 in respect of the deduction.  

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

CA-00059201-004

03/10/2023

Section 5 of the Act stipulates as follows:-

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

(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.”

This claim arises out of the narrative of the claim submitted on 3rd of October 2023  wherein the complainant alleges  ‘Ad-hoc duties at their discretion for no extra pay on days off such as admin and handing out flyers on days off and after hour ‘.

The complainant advised the hearing that the Admin referred to was in relation to a requirement to write up reports on each student after each class.   The complainant in her evidence to the hearing stated that she had not initially been told to write up these reports but that she figured it out after a few months.

The complainant when questioned also stated that she was not sure whether the time taken to prepare these reports was rostered or not.  She stated that it was sometimes provided for in the roster.

The complainant stated that she was required to do these reports on the computer in reception but prior to that the reports had to be done on her phone.

The complainant when asked to quantify this claim stated that she spent about 1 to 1.5 hours per day writing up these reports.

The complainant stated that the time spent writing up these reports was later included in  the rostered hours and so was paid.  When asked when the report time was included on the roster she stated that it was around September.  The complainant could not say when she had produced reports outside of her rostered hours.  She stated that it may have been after Easter Camp or after Summer camp when report hours appeared on the roster.

The complainant could not specify the exact amount owing to her in relation to time spent on these reports, but the evidence adduced was that she  spent on average between 1 and 1.5 hours per day preparing these reports for submission to the respondent. 

 It is submitted on behalf of the complainant that the amount owed in respect of reports is €2,115.37 outstanding in respect of monies due to the complainant for work carried out in respect of reports produced on a daily basis 5 days a week over a period of 26 weeks.  

In considering this matter I note that the complaint was submitted on 3rd of October 2023 therefore the 6-month cognisable period of the claim dates from 4th of April 2023.

The complainant evidence to the hearing was that after a while the reports were factored into the rosters.  The complainant stated that this happened either after Easter camp or after summer camp and stated that after that they were rostered 5.5 hours per week to do reports.

The complainant stated that she could not clearly remember when the respondent started rostering the time to be spent on reports but thinks it was around September 2023..

The respondent’s evidence to the hearing was that they started rostering the reports from September 2023.   I note that the time period for the complaint dates form 4th of April to 3rd of October however I also note the respondent position that reports were rostered form September onwards therefore the time period for which the complainant was required to produce reports outside of her rostered hours dates from 4th of April to September 2023 I.e a period of 5 months i.e. 20 weeks .

The respondent witness Ms. D advised the hearing that the complainant was not required to submit reports.   Ms. D stated that she had however advised the instructors to keep notes on student’s progress for their own use.  

It emerged at the hearing that the respondent is now providing for these reports in its rosters as they are rostering instructors for 5.5 hours per week computer time.

Having considered the evidence adduced I am satisfied that the complainant performed admin work outside of her rostered hours in the form of producing reports as outlined and that she was required to produce such reports and was not paid for this. 

Accordingly, I declare this claim to be well founded, and I order the respondent to pay the complainant the sum of €1,626.90 in this regard in respect of 5.5 hours per week for a period of 20 weeks.

I declare this claim to be well founded, and I order the respondent to pay the complainant the sum of €1,626.90  in this regard.

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

CA-00059201-005

03/10/2023

Section 5 of the Act stipulates as follows:-

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

(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.”

This claim arises out of the narrative of the claim submitted on 3rd of October 2023 wherein the complainant alleges ‘ Wage deductions for sickness but also expected to do an extra shift the following week for free’.

The complainant at the hearing stated that she could not recall working 6 days a week.  The complainant at the hearing did not adduce any evidence in support of this claim.     

Accordingly, I declare this claim to be not well founded.

I declare this claim to be not well founded.