Complainant

Respondent

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 8 of the Unfair Dismissals Act, 1977

CA-00059202-001

03/10/2023

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

CA-00071137-001

14/07/2023

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

CA-00071137-002

14/07/2023

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

CA-00071137-003

14/07/2023

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

CA-00071137-004

14/07/2023

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

The complainant submitted a claim of Unfair Dismissal under the Industrial Relations Act on the on the 14th of July 2023.  This is dealt with under a separate Adj reference.

The complainant later submitted a claim of Unfair Dismissal under the Unfair Dismissals Act on the 3rd of October 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 complainants 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 complainant had not submitted individual claims under those specific pieces of legislation.  In advancing this argument it is submitted that eh complainants 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.

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.

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 on the 14th of July 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 is a Filipino national, she commenced her employment with the Respondent on the 28th of June 2022,     The Complainant completed the probationary period of 6 months, and her employment terminated on the 28th of June 2023.

The complainant submits that there were ‘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 also submits that there were ‘ Wage deductions for sickness but also expected to do an extra shift the following week for free’

The complainant further submits that in herFinal pay (the respondent) deducted training from our pay and we received nothing’

The complainant submits that  there were ‘No breaks as per employment legislation Travel time between pools’.  In this regard the complainant submits that her breaks were mixed with having to travel between sites.

The complainant submits that there were Health and Safety breaches but advised the hearing that she was not seeking a decision in this regard.

The respondent  submits that on the 13th of March 2023 the complainant wrote to the respondent  advising them that she would not be extending her contract past the one your period to the 2nd of July 2023.  This email was submitted to the Commission.

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

The respondent disputes the allegations under the Payment of Wages Act submitting  that all work was paid for and no illegal deductions were made.

The respondent disputes the allegations under the Organisation of Working time Act submitting that the complainant had 2 hour breaks between classes.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00059202-001

03/10/2023

The complainant at the hearing stated that she had left the company as she felt it wasn’t healthy for her mental health.  The complainant’s representative at the hearing of this matter clarified that the complainant  had not been dismissed.  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 6 of the Payment of Wages Act, 1991

CA-00071137-001

14/07/2023

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 14th of July 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 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 this amounts to €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 14th of July 2023 therefore the 6-month cognisable period of the claim dates from 15th of January 2023.   I note that the complainant’s employment ended on 28th of June 2023 therefore the reckonable period for this claim dates from 15th of January 2023 to 28th of June 2023 i.e. 22 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 €1,789.59 in this regard in respect of 5.5 hours per week for a period of 22 weeks.

I declare this claim to be well founded, and I order the respondent to pay the complainant the sum of €1,789.59 in this regard.

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

CA-00071137-002

14/07/2023

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 14th of July 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 did not adduce any evidence in support of this claim

The complainant at the hearing was questioned regarding the number of hours worked and for which she had been paid.  The complainant confirmed that she was paid for 39 hours but stated that she had not always worked 39 hours, 

The complainant advised the hearing that she had been sick with ear infections but was told to cover her ears with a cap as there was no one to replace her and so she could not take sick leave.

The complainant stated that she had taken sick leave and that another instructor had covered for her while she was on sick leave.  The complainant added that the following week she had to work an extra day to cover for that instructor who had covered her sick leave and so she had to work 6 days the following week.   The complainant when questioned could not provide any specifics regarding dates/incidents where she had worked more than 39 hours per week.

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 6 of the Payment of Wages Act, 1991

CA-00071137-003

14/07/2023

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 14th of July 2023 wherein the complainant alleges ‘ Final pay (the respondent) deducted training from our pay and we received nothing’

The complainant at the hearing could not quantify this claim and instead advised the hearing that  her wages had been reduced by €100 per week over a certain period via an amendment to her terms and conditions.  This was not related to Training or recoupment of Training costs by the respondent  and the complainant confirmed that no money was deducted from her final pay in respect of training costs.

I am satisfied that the narrative of this claim form did not make any reference to an agreement in respect of a  temporary reduction in salary over a stated fixed period. 

I am also satisfied that there was no deduction made in respect of training for this complainant 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-00071137-004

14/07/2023

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

The within claim arises out of the narrative of the claim submitted on 14th of July 2023 wherein the complainant alleges ‘No breaks as per employment legislation Travel time between pools’.

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

The complainant in her evidence stated that she was rostered to work shifts as follows 10-12, 2-4, 6-8 or 6-9.   She added that the first two shifts would be in the respondent location but stated that she then had to travel to another location for the last shift.  The complainant stated that it could take 1 hour to travel between the two locations if she had to take public transport for which 2 hours break was in the roster.  The complainant stated that she sometimes got a lift with another instructor or from the receptionist and did not have to take public transport.

The  complainant stated that no breaks were rostered and no travel time rostered.  The respondent in reply stated that there was a 2-hour breaks between the first and second shift and another 2 hour break again between the second and third shift.  

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 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 stated 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.

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.

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