UD1137/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                         CASE NO.

Gearoid Walsh - claimant                                                   

                                                                                                                                  UD1137/2013

against

Irish Coast Guard (Department Of Transport)

- respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:     Mr J.  Fahy B.L.

Members:     Mr T.  Gill

                     Ms H.  Murphy

heard this claim at Galway on 12th November 2014 and 17 February 2015

Representation:

_______________

Claimant(s) :        In Person

Respondent(s) :   Mr Peter Leonard BL instructed by Ms Julianna Quaney, C.S.S.O, Little Ship  

                            St, Dublin 8

This case came before the Tribunal by way of a claim by the claimant in respect of his dismissal from his employment by the respondent.

Preliminary Issue

The respondent’s legal representative raised a preliminary issue concerning the Tribunal’s jurisdiction to hear the case. It was submitted that the claimant was not an employee within the meaning of the definition of an employee as set out in Unfair Dismissals Act 1977. The respondent’s representative submitted a detailed and lengthy submission the substance of which was that the claimant was a volunteer as defined within section 51 (A) (1) of the Civil Law (Miscellaneous) Act 2011 which defines volunteers and voluntary work as follows:

“Voluntary work means any work or other activity that is carried out for any of the following purposes:

1. a charitable purpose within the meaning of the Charities Act 2009;

2. without prejudice to the generality of paragraph (a), the purpose of providing assistance, advice or care in an emergency or so as to prevent an emergency;”

    

   The respondent’s representative drew the Tribunal’s specific attention to voluntary workers.

    

   The respondent’s representative also referred to the case of Commissioner of An Garda Siochana v Singh Oberoi and the decision of Mr Justice Kevin Feeney in Commissioner of An Garda Siochana (appellant) v Singh Oberoi (respondent); Singh Oberoi (appellant) and Commissioner of An Garda Siochana (respondent).

    

    

   “For there to be a contract of employment and for a person to be an employee, the requirement of mutuality of obligation must be present. That is, there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer. In the absence of such mutuality, there is no contract of employment as there is no contract for services. In the absence of a mutuality of obligation, I could not conclude that there was in existence a contract of service or a contract of employment.”

    

    

   The respondent further referred the Tribunal to a High Court decision of Mr Justice John Edwards in the case of The Minister For Agriculture And Food and John Barry, Conor O’Brien, Mary O’Connor, Michael Spratt and Ciaran Dolan wherein the court decided that in order for a relationship of employer/employee to exist “there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer. If such mutuality is not present, then either there is no contract at all or whatever contract there is must be a contract for services or something else, but not a contract of service”. It was submitted by the respondent that the case before the Tribunal lacked any obligation on the respondent to provide work or furthermore on the claimant to be available for work.

    

   The claimant submitted P60’s and payslips in respect of monies received for the services which he provided as an officer in charge with the respondent. He told the Tribunal that since 2006 he had full responsibility for arranging training for coastguard volunteers within his unit. In addition he had responsibility for arranging a call out service and co-ordinating search and rescue missions one of which lasted 21 days. The Tribunal notes that the claimant receives an allowance of €222.20 per annual quarter and in addition receives €12.70 for attendance at each exercise. The Tribunal also notes that the language used in the claimant’s appointment letter would suggest that the claimant had an expectation that he was an employee. In that regard the letter stated “I am directed by the Minister for Transport to inform you that you have been recommended for appointment as Area Officer of the Irish Coast Guard Unit in Costello Bay…… Your appointment will initially be for a probation period of one year and it carries no rights to pension and is terminable at any time by one month’s notice in writing.”

    

    

   Determination on Preliminary Issue

    

   Notwithstanding the expectation of the claimant that he believed he was an employee, the Tribunal notes the requirements for a contract of services to exist as set out in the judgements of Feeney. J and Mr Justice John Edwards and in view of the nature of the service provided by the claimant which was that of a volunteer, the Tribunal is satisfied that the claimant was not employed under a contract of employment. Accordingly the Tribunal declines jurisdiction.

    

    

    

    

    

    

    

    

    

    

   Sealed with the Seal of the

    

   Employment Appeals Tribunal

    

    

    

   This   ________________________

    

   (Sgd.) ________________________

        (CHAIRMAN)