UD700/2015

EMPLOYMENT APPEALS TRIBUNAL

 CASE NO.

UD700/2015

CLAIM OF:                                                                                     

Brian Larkin             

against

Irish Coast Guard

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr D. Hayes B.L.

Members:     Mr J. Goulding

                     Ms. E. Brezina

heard this claim at Dublin on 8th June 2016

Representation:

Claimant : Mr Cormac O Dalaigh, Communication Workers Union, North Circular Road, Dublin 1

Respondent: Mr Peter Leonard BL instructed by Ms Julianna Quaney, Chief State Solicitor, Little Ship Street, Dublin 8

The determination of the Tribunal was as follows:

The claimant joined the Irish Coast Guard in 1995 and was based in north east Leinster. In 2011 he was appointed Deputy Office in Charge of his station. This followed an interview process. It is clear from his evidence that the claimant put a great deal of value on his work with the Coast Guard and his role with them was a source of great pride to him. However, he felt that after his promotion difficulties began to arise. The upshot was that ultimately the claimant’s appointment with the respondent was terminated on 28^th April 2015. The claimant felt that he had been unfairly dismissed and brought a claim to the Tribunal under the Unfair Dismissals Acts. The respondent contended, by way of a preliminary issue, that the claimant was not an employee of the respondent and was not, therefore, entitled to the protection of the legislation.

The respondent operates a mostly-volunteer service. It was submitted that the claimant had been a volunteer but that on his promotion he had become an employee. Since his promotion to Deputy Officer in Charge he had received a quarterly allowance of €111.10 together with a payment of €12.70 for each exercise attended. He received an annual P60 in respect of these payments.

It was submitted by Counsel for the respondent that the use of a P60 was nothing more than an administrative mechanism to make the payment of what was a stipend or allowance rather than a wage. Further, he suggested that it could not be a wage given how far below the minimum wage requirements it was. This latter point could not of course be determinative of the issue, no matter how far below. One would hope that no employer, least of all a State body, would breach minimum wage legislation but whether or not a payment an incidence of employment could not be determined in that way. On the other hand, the use of a P60, of itself, is not necessarily indicative of employment. The Tribunal accepts in this case that it was used as a matter of administrative convenience.

It was submitted on the respondent’s behalf that the payment was nothing more than an allowance in recognition of the additional responsibility undertaken by the claimant in his role as Deputy Officer in Charge. The Tribunal accepts that this was the case.

The Tribunal was referred to the judgement of the High Court in the case of Singh v. Commissioner of An Garda Síochána [2009] 1 IR 215 in which it held that a member of the Garda Reserve, as a volunteer was not an employee in the context of Employment Equality legislation. In that case Feeney J held that there was no mutuality of obligation and that such mutuality was a necessary ingredient of the employment relationship.

The Tribunal was also referred to a determination of a different Division of the Tribunal in the case of Walsh v Irish Coast Guard (UD1137/2013) in which an Officer in Charge with the respondent was held to be a volunteer rather than an employee.

It was also effectively conceded on the claimant’s behalf that he was not “strictly speaking” an employee of the respondent but that the Tribunal should take account of natural justice. Unfortunately the jurisdiction of the Tribunal is constrained by legislation. To exercise jurisdiction in an unfair dismissals case, the claimant must have been an employee.

The Tribunal must follow the authority of the High Court in Singh. Further, we can see no reason to distinguish this case from the previously decided case of Walsh. The Tribunal is satisfied that the claimant was a volunteer in the respondent’s service and was not an employee. Accordingly, his claim under the Unfair Dismissals Acts, 1977 to 2007 must be dismissed.

The Tribunal would like to note that we were much impressed with the claimant’s service to his community in a most important role in coastal areas.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)