The Complainant was employed as a fitness instructor by the Respondent from the 30th of August 2019 until the 21st of January 2020.  The Complainant brought three different allegations against the Respondent relating to failure to provide daily rest breaks; discriminatory dismissal on the grounds of race and failure to follow fair dismissal procedures.

In relation to the discriminatory dismissal, the Complainant submitted that she was dismissed on the grounds of race for an alleged conflict of interest by engaging in an external business, because other white colleagues, who were engaged similarly in an external business, were not dismissed, and this was contrary to the Employment Equality Acts 1998-2015. The Respondent denied all claims.

The Complainant submitted that during the currency of her employment with the Respondent, she was regularly required to work shifts which finished at 9pm or 10pm at night and was then required to recommence work at 6.30 am the following morning, meaning she did not get a daily rest period of 11 hours - though she accepted that she was not required to work excessive hours every week.

The Respondent alleged that the Complainant was guilty of misconduct in running online fitness coaching in her spare time which was deemed by the Respondent to be a material breach of contract, and conflict of interest and/or prejudicial to the Complainant’s work with the Respondent and therefore the Complainant was dismissed on that basis.  The Complainant submitted that she was treated less favourably than other persons in a comparable situation by virtue of the fact that she was of a different, race, colour, nationality or ethnic or national origin in comparison to those other persons. In comparison, two of the Complainant’s former work colleagues, both fitness instructors, engaged in the same or like work to the complainant and who were Irish and white, were also conducting fitness classes online in their spare time. Those comparator employees were not dismissed by the Respondent.  No sanction or other reprimand was applied to these employees. On the contrary, these comparators continued to be employed with the Respondent and continued to carry on online fitness coaching in their spare time.

The Complainant submitted that no fair procedure was followed by the Respondent in relation to the Complainant’s dismissal and no such opportunity to respond to the charges was afforded. The Complainant submitted that she should have been, at the very minimum, afforded an appropriate opportunity to answer the allegations being made against her, to have appropriate representation, to have a hearing of the complaint and be given the facility to reasonably respond whether in writing, orally or otherwise to the allegation of misconduct.

The Respondent submitted that the other employee comparator was a psychology/nursing graduate and it had been from the start of her employment that she would be facilitated in a second job that she had as a care worker in the health sector. The Respondent also maintained that the reason that she was not disciplined was because it was not in conflict with the Respondent’s business and it was an arrangement agreed by both parties from the outset of her employment.  In relation to the other comparators, the Respondent maintained that he was not aware of any posts or external work carried out by them prior to the dismissal of the Complainant.

The Adjudication Officer opined that the Complainant did not establish a prima facie case and therefore concluded that the Complainant was not subject to discriminatory dismissal on the grounds of race. However, it was clear to the Adjudication Officer that the Complainant was summarily dismissed for posting an advertisement for online fitness classes, an act of alleged misconduct. It was also clear that the Respondent did not comply with company grievance or disciplinary measures.

In recommending compensation,  the Adjudication Officer noted that there was an element of contribution by the Complainant in that she behaved rather recklessly in not first consulting with the Respondent before posting her classes online. Having considered all the elements of the case it was recommended the Respondent pay the Complainant compensation of €6000 for the unreasonable and unfair manner of her dismissal.
https://www.workplacerelations.ie/en/cases/2021/november/adj-00028843.html

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