Complainant

Respondent

Anonymised Parties

A Swim Instructor, Ms. R

A Swim Academy

Representatives

Elaine Davern Wiseman B.L instructed by Martina Murphy Solicitors

 Andrea Montanelli Peninsula

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-00059350-001

11/10/2023

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

CA-00059350-002

11/10/2023

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

CA-00059350-003

11/10/2023

The complainant a Filipino National was employed by the respondent as a Swim Instructor form 17th of January 2023 to 19th of May 2023.

The within claims were submitted on 11th of October 2023 and are lodged under the Payment of Wages Act and the Organisation of Working time Act.  The cognisable 6-month period of the complaints date from 12th of April 2023 to 11th of October 2023.

The within complainant has also submitted a claim under the Industrial Relations Act on the 31st of May 2023, which 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.

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 Organization 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 claims were originally 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.  The within claimant also lodged additional claims under the Payment of Wages Act and 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 forms 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.

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 forms submitted.

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 submit s that

She was not paid the amount of €576.92 in wages due to her.

The Complainant further states in the claim papers that she did not receive her contracted amount of €30,000 as her revenue, payslips and money into her bank account do not match.    

The complainant submit s that she did not get a daily rest period as her breaks were mixed with travel

The complainant submit s that she did not receive pay in lieu of notice at the end of her employment

The complainant submits that an amount was deducted from her wages in respect of training fees

The Complainant Ms. R who is a Filipino National was employed under a fixed term contract of 2 years from the date of her departure from the point of hire, Manila, Philippines, as a Swim Instructor.

The contract of employment commenced on 17th of January 2023.  The Complainant’s contract of employment was terminated within her probationary period for financial reasons on 19th of May 2023.

On the 31.05.2023, the Complainant lodged a complaint for Unfair Dismissal under Section 13 of the Industrial Relations Act, 1969.

On the 11.10.2023, the Complainant lodged the instant complaint for redress under the Payment of Wages Act, 1991 and Organisation of Working Time Act, 1997.

The complainant submits that an amount of €576.92  was deducted from her wages

The Respondent denies these allegations but submits that the Complainant was paid a gross salary of €576.92, per week which was then subject to statutory deductions.

The respondent concedes however that the complainant was not paid for hours worked in her last 3 weeks of employment.

The respondent submits that an amount was deducted from the complainant’s wages in respect of training costs incurred and that it was agreed that the respondent would recoup the  training costs of €3,000 in the event that the complainant’s employment with them terminated before the end of a two-year period.   The respondent submits that the complainant’s employment was terminated  on 19th of May 2023.  

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

CA-00059350-001

11/10/2023

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 €576 was deducted from her wages on 12th of May 2023.

The Respondent  submits that the Complainant was paid a gross salary of €576.92, per week which was then subject to statutory deductions.

The Complainant further states in the within claim papers that she did not receive €30,000 as her revenue, payslips and money into her bank account do not match.

The complainant has submitted an additional claim under the Payment of Wages Act in respect of the non-payment of wages for her last three weeks in employment.  This is dealt with under CA-00059351-003 which specifically refers to the non-payment for her final three weeks. 

The complainant has not provided any specifics in  support of  the within claim and accordingly 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 27 of the Organisation of Working Time Act, 1997

CA-00059350-002

11/10/2023

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 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 block.

The complainant advised the hearing that she had to travel to other locations in between classes.  She stated that she had to teach at another venue and that she was accompanied by another instructor Ms. F at that location.  The complainant advised the hearing that   they would have 4-6 students per class at that location and that the maximum of r1 instructor was 4 students.  The respondent in questioning the complainant asked if there were occasions where only 4 students in the class and 2 instructors present.  The respondent submits that in such circumstances only 1 instructor is needed and so the other person could take ea break.   The respondent advised the hearing that two instructors are sent in order that they can take breaks.  The respondent also stated that on some occasions there may only be one student in a class or sometimes there were classes where no students showed up. The complainant in response to this stated that she was told that she would not be paid for the class if there were no students to teach.  When asked whether her pay had been reduced after being told this the complainant confirmed that it had not.

The respondent advised the hearing that the complainant was paid for 39 hours per week but that some of those weeks she was  rostered to work fewer 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 stated that the times in between were taken up with travelling and or writing up reports.

Having regard to the evidence adduced I note that for the most part there were 2*2-hour gaps between classes and accordingly I declare this claim to be not well founded.

Evidence was adduced in respect of time spent by the within complainant writing up reports after classes for which it is alleged that the complainant was not paid.   The matter of time spent writing reports and non-payment for same is not referenced in either of the claim forms submitted by this complainant and aaccordingly, I am satisfied that those matters are not properly before the Commission and cannot be pursued.

The complainant also provided details of skin problems she had encountered which she stated was due to the level of chemicals in the water.   This matter is not referred to in either of the claim forms and submitted by this complainant and aaccordingly, I am satisfied that those matters are not properly before the Commission and cannot be pursued.    The complainant advised the hearing that she was not seeking a decision in respect of Health and Safety matters.

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-00059350-003

11/10/2023

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 alleges that she received no pay in the last three weeks of her employment as the respondent deducted a portion of the training fee of €3,500 in the final weeks of her employment The complainant submits that this clause was not part of the contract or terms and conditions of the job offer sent to the embassy for visa approval.

The Respondent submits that it highly invested on bringing the Complainant together with other employees from Philippines, paying for their work permits for VISA, flights, etc, becoming the first European company to obtain a work permit for Filipinos as swimming instructors.

The Respondent advised the hearing that upon arrival it provided the new employees, including the Complainant, with intensive training for three or four weeks, depending on the person, paying them in full for every week they were on Training.

The respondent submits that there was no income generated into the company during these weeks.

In relation to Training costs of €3,500, the Respondent submits that the costs were actually in the amount of €3,000 and the Training Agreement signed by the Complainant provides: “…if I leave my employment at any time, for any reason, including dismissal, before the end … I undertake to refund to my employer €3,000. 100%

 Less than 12 months after completion of training (…) In the event of my failure to pay I agree that my employer has the right as an express term of my Contract of Employment to deduct any outstanding amount due under this agreement from my salary or any other payments due to me on the termination of my employment in accordance with the legislation currently in force.

 I am also aware that funding can be withdrawn, and I would have to repay the full amount received for training from (the respondent) Ltd and/or any external training that would be deemed beneficial by (the respondent) Ltd (save for exceptional circumstances discussed and agreed with Management), if I: • fail to take the relevant examinations and upskilling. • discontinue the course before completion”

Therefore, the Respondent submits that the Complainant was fully aware as regards the terms of the Training Agreement which was signed on 18th of August 2022, so five months prior to the commencement of her employment on the 17th of January 2023.    The respondent stated that By signing the Training Agreement, the Complainant agreed with its terms and conditions, authorizing any deductions from her salary in relation to any outstanding amounts due to the Respondent in the termination of her employment regard training, notably considering that the Claimant has enhanced her skills due to the intensive Training provided over the first 3 or 4 weeks of employment.

 In addition, the respondent advised the hearing that the Claimant signed the Deductions from Pay Agreement on the 18th of August 2022, this was also submitted in evidence and states:

On the termination of your employment, we have the right to deduct from any termination pay due to you, any monies collected by you on our behalf and any advances of wages or any loans which we may have made to you.

This is an express written term of your contract of employment.

Therefore, the Respondent submits that any deductions in this regard were made with the Complainant’s prior consent in writing.

In light of the above, the Respondent submits that the deductions made were reasonable and appropriate in circumstances where the Training Agreement and the Deductions from Pay Agreement constitute written evidence of the Claimant’s prior consent in accordance with Section 5(1)(b) and (c) and Section 5(2)(a) (i), (ii), (iii) and (v) of the Payment of Wages Act, 1991.

 It is submitted that the deduction as carried out by the Respondent was fair and reasonable in accordance with the Payment of Wages Act, 1991.

It is further submitted that  the Complainant was previously advised that deductions in relation to the training agreement would be made from her wages.

 The complainant’s dismissal letter states

As per your training agreement and deductions of pay agreement, there is currently €1,272 outstanding from you to (the respondent).

It has been agreed between you (Ms. M ) and (the respondent) that this fee (€1272) is being waived as a goodwill gesture from the company. Your final payment on Tuesday 16th May 2023 will be your last financial dealing with (the respondent) Ltd. and that company does not owe you anything financially after this date.

The respondent submits that an amount of €1692.38 was deducted from the Complainant’s wages in 4 instalments of €641,45, €497.97, €276.48 and €276.48, which it states does not exceed the established costs to the Respondent of €3,000.

 It is further submitted that the Respondent provided the Complainant with the right to appeal within 5 days against its decision, however, the Complainant DID NOT APPEAL the decision

In considering this matter I note that it is not unusual for an employer to insert a clause in a contract requiring the recoupment of monies spent on training and upskilling a new employee at the commencement of their employment  in the event that the employee leaves their employment before a specified time period. 

Such agreements must be looked at on a case-by-case basis and having regard to all of the circumstances of the employee’s termination and the extent of the investment made.

In the present case the employee in question did not choose to leave her employment with the respondent but rather her employment was terminated during her probationary period and the reason cited by the respondent for terminating the complainant’s employment was that her contract was terminated on the 19th of May 2023 ‘for financial reasons’.   Thus, there is no suggestion that the complainant herself contributed to the termination of her employment but that the respondent terminated the employment for Financial reasons.  

I also note that the complainant in this case is a Filipino National  and was recruited by the respondent from the Philippines to come to Ireland to work for them I note also that English is not the complainants first language. 

During the course of the hearing evidence was adduced which showed the complainant was provided with the Training agreement in the English language only and that there was no interpreter present or no opportunity to obtain legal advice in relation to same.  In addition, the deduction form wages agreement was provided to the complainant in English without an interpreter and again without the opportunity to obtain legal advice in relation to same. 

I also note that the within hearing was conducted with the assistance of a Tagalog Interpreter.

Evidence was adduced in respect of the training provided.   The complainant advised the hearing that she was a fully qualified swimming instructor before coming to Ireland but that she was advised that the training was necessary to learn to instruct the (the respondent) way.   The complainant advised the hearing that the training was provided by the  respondent owner Ms. D who provided instructional videos as well as in person training to the complainant and other staff members.  It The respondent when questioned at the hearing did not provide any evidence to support the claim that the cost of this training as provided by Ms. D amounts to €3,000 per person.  The respondent in its evidence to the hearing in seeking to quantify the training costs stated that it is the costs associated with Ms. D’s experience and qualifications. 

The complainant advised the hearing that there was no certification after completion of training and no indication as to whether one had successfully completed the training or not.   

In the present case the complainant submit that the respondent on the termination of her employment  sought to  recoup training costs of €3,000.  The respondent advised the  hearing that an amount of €1692.38 was deducted from the complainant over 4 payslips to cover some of the training costs but states that the company waived the remainder of the training costs (€1272) as a goodwill gesture from the company.

The respondent at the hearing conceded that the complainant did not receive any wages in respect of her last three weeks in employment as the deductions outlined above were made in respect of training.  The respondent advised the hearing that it was conceding that the hours worked by the complainant in the last three weeks of her employment were due to her and would be paid by the respondent.

Accordingly, I declare this claim to be well founded.  For the avoidance of doubt I note that the complainant’s agreed salary was €576.92 per week and accordingly I order the respondent to pay the complainant the equivalent of three weeks salary in respect of the unpaid wages for her final three weeks.  In addition, I note that the complainant in her claim form stated that she did not receive the appropriate payment in lieu of notice on termination of her employment and that her entitlement in this regard amounts to 1 weeks’ pay.   Accordingly, I order the respondent to pay the complainant for her one weeks’ notice entitlement in addition to the three weeks salary owed to the complainant.  Thus, I direct the respondent to pay the complainant €2,307.68 (the equivalent of 4 weeks’ pay).

I declare this claim to be well founded, and I direct the respondent to pay to the complainant the amount of  €2,307.68 .