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Judge rules ex-gym worker owed $15,400 in redundancy

A gym that went out of business owed a former staff member more than $15,000 in redundancy payments, the Supreme Court has ruled.

Cassandra Simmons had argued in an Employment Tribunal last year that the Athletic Club had made her redundant in November 2019 when it moved her to an off-site gym.

The tribunal found in her favour, but the gym’s former owners launched an appeal on the ground that Ms Simmons had signed a contract in 2015, which allowed the move.

The Supreme Court found in a judgment delivered last week, that the 2015 contract was in effect – but that Ms Simmons was still owed redundancy from when her employment ended last August.

Puisne Judge Larry Mussenden said in a written decision: “I am inclined to steer away from a finding of unfair dismissal as it was reasonable at the time for the appellant to terminate the employment as the tribunal had ruled that the respondent was made redundant.”

The Court heard that Ms Simmons was hired by The Athletic Club in 2010 and worked at the company’s Washington Street gym until it closed in November 2019.

The employer reassigned her to an off-site gym, where she remained until March 2020, when she stopped work because of the Covid-19 pandemic.

Ms Simmons filed a complaint with the Employment Tribunal shortly after she was moved to the other gym on the basis that the move was against her 2010 contract.

The company said the change was allowed under a 2015 contract – but could not produce a copy signed by Ms Simmons.

The tribunal heard the complaint and last July they ruled that under the 2010 contract Ms Simmons had been made redundant when the transfer happened and was owed $14,400 in redundancy payments.

But the court heard no payments were made because the company, based on the 2010 contract, determined that it had overpaid Ms Simmons for years and was actually owed money.

The employer launched a late appeal against the tribunal decision after Ms Simmons sought payments through Magistrates’ Court.

Wayne Scott, counsel for the company, said that the employer had discovered a copy of the 2015 contract signed by Ms Simmons, which meant the tribunals decision had to be reconsidered.

Ms Simmons said she had no recollection of signing the contract and told the court she had raised concerns at the time that it reduced her hours from 40 per week to between 15 and 40.

But she accepted that the signature on the document appeared to match hers and that she had received a pay increase from $18 per hour to $20.

Mr Justice Mussenden found that the 2015 contract was in effect based on the signed contract, the increased pay and Ms Simmons statement that she would work between 37 and 40 hours a week at the off-site location.

He said the 2019 move from the Washington Street gym to an off-site gym and reduction in hours did not amount to redundancy.

But Mr Justice Mussenden disagreed with the suggestion that Ms Simmons’ termination date was when she last attended work, and found it was when she was last paid.

He said: “In my view, upon the last payment of wages on August 6, 2020, the appellant terminated the employment of the respondent.

“The appellant’s logic appears to be that since the tribunal had declared that the respondent had been made redundant, then it followed that she was no longer employed by the appellant.”

Mr Justice Mussenden ruled Ms Simmons was owed 20 weeks of redundancy under the 2015 contract, which at an average of 38.5 hours at $20 per hour, amounted to $15,400.

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