Complainant

Respondent

Anonymised Parties

Community Worker

Registered Charity

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-00027910-001

23/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00027910-002

23/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00027910-003

23/04/2019

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

CA-00027910-004

23/04/2019

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

CA-00027910-006

23/04/2019

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

CA-00027910-008

23/04/2019

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

CA-00027910-009

23/04/2019

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

CA-00027910-010

23/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00027910-012

23/04/2019

The complainant joined the respondent, a registered charity, in September 1994, and performed a variety of roles within the organisation. The complainant was classified as a Long-Term Co-Worker (LTCW) and worked within a community structure. The respondent operated a number of such communities both in Ireland and internationally. The situation within which the respondent carried out its operations began to change as regulations governing such operations began to be introduced. In particular, the Health Information and Quality Authority (HIQA) began to regulate how the respondent operated.   As a result, the organisation began a transition which has been implemented over a number of years.   This transition included moving to the provision of services by qualified employed personnel and the phasing out of the LTCW model. The respondent concluded arrangements in this regard with the majority of LTCWs but did not reach an arrangement with the complainant as a result of which the complainant ceased working with the respondent on 31 December 2018.

The complainant was employed for many years on an unwritten contract of employment and her remuneration consisted largely of benefit-in-kind.

The contract was terminated unfairly without proper procedures, notice or reason.

The complainant’s contract terminated due to the alleged reorganisation of the respondent’s business but the complainant was not informed that she was redundant and received no payment in that regard.

The complainant did not receive the rate of pay specified in the National Minimum Wage Act, 2000.

The complainant did not receive payment for working on a Sunday.

The respondent has not been paid the amount due to her.

The complainant did not receive payment in respect of annual leave in 2018.

The complainant did not receive her Public Holiday entitlement.

The complainant did not receive any payment in lieu of notice.

The complainant did not receive a statement of her terms and conditions of employment.

The complainant was not an employee of the respondent and has no locus standi to bring these complaints.

The complainant was engaged as a volunteer co-worker and was not paid wages.

Expenses for her and her family were met by the community through a needs-based system.

In recent years the respondent has moved from its volunteer model to an employment model.

The respondent engaged with the complainant during the transition process but the complainant did not attend some meetings arranged in this regard.

The respondent concluded arrangements with 35 out of 41 persons who were in the same category as the complainant.

The complainant was offered a settlement deed and the deadline for acceptance was extended in order to facilitate the complainant. In the end the complainant declined the respondent’s offer.

The respondent is a registered charity which provides support to vulnerable adults with physical or intellectual disabilities in a residential community setting. These communities operate in over 20 countries including Ireland, where it has operated for many years. The ethos of the organisation was based on life-sharing model whereby individuals came and resided within the communities and assisted the residents as unwaged vocational volunteers. The respondent receives funding from the HSE. All expenses for the volunteers and their families were met from a community budget through what is described as “a needs-based system”. The respondent operates as a company limited by guarantee.

The complainant originally joined the respondent as a Short-Term Co-Worker (STCW) from August 1988 until July 1989. The STCW was a person who volunteered their services to the respondent for a defined period of time. The complainant re-joined the respondent in September 1994, this time as a Long-Term Co-Worker (LTCW), thereby committing herself to an extended relationship with the respondent. The complainant originally worked in location ‘D’ but in 2008 she was asked to move to location ‘B’ and she remained in that location until the cessation of her work with the respondent. This location had 3 residential units on the campus. The complainant lived in one of these units with her husband (who was also a LTCW) and their 4 children. The house would be shared with some residents so that the community could operate as a sort of extended family and all could participate in the living experience. There were also a small number of day attendees to the campus. There was one other LTCW on the campus making a total of 3 LTCWs. There was a management committee charged with running the community and overseeing its annual budget and this committee would include the 3 LTCWs.

The respondent did not pay wages to the LTCWs. All expenses for the complainant and her family were met from the community budget and these would include holidays, travel, accommodation, food, clothing, education and medical expenses. The community operated 3 cars and a bus which could be used as required by the co-workers. Originally the community’s budget was financed directly by a capitation grant from the HSE but this changed in or around 2015.

Change in fact had begun to happen since 2012. The Health Information and Quality Authority (HIQA) was unhappy with the model being utilised in the running of the communities and began to introduce regulations and oversight requirements in this regard. HIQA wanted someone in each location to act as a Person-in-Charge (PiC) and to ensure proper policies were in place to cover residents.   In 2012 the first national oversight functions were put in place by the respondent but by 2016 it was evident that more was required. Formal policies were introduced at national level including policies for employees and volunteers. There was a need for the PiC to have recognised qualifications. Another challenge was the fact that there now was a shortage of personnel entering the organisation willing to make long-term commitments. These issues led to a situation whereby staff were now being recruited as paid employees. This in turn was instrumental in putting financial pressure on the respondent.

In order to address these issues the respondent drew up a Strategic Plan for the period 2017 – 2020.   Included in this Plan was the initiation of a consultation process with the LTCWs with regard to how their role could continue to adapt to the changing environment. The Plan also emphasised the continuing need to ensure the ongoing implementation of supervision, appraisal and training plans for all staff and co-workers. As a result, a decision was made to phase out the role of LTCW as it then existed by either re-training the persons concerned into paid employment positions or facilitating an exit package. This process was to involve individual consultations with all LTCWs.

In the meantime, in 2017 the complainant’s husband had stood down as the PiC in location ‘B’ and a person from outside the community was appointed to that role. Some of the complainant’s role were taken from her and the relationship between the new PiC and the complainant was strained.   In February 2018 a monthly cap was imposed by the respondent on the credit cards issued by them to the LTCWs.   This resulted in the complainant and her husband getting into financial debt. Prior to this change the complainant had two credit cards, one for community expenses and one for personal / family expenses. The bills for both were met by the organisation.   The monthly cap imposed in February 2018 put a limit of spending of €1,000.00 per month on the cards.  In July 2018 the complainant went out on sick leave and remained absent until her association with the respondent terminated.

As the LTCW transition process commenced each member of that group received a letter dated 28 September 2018 advising that individual meetings would be taking place over the coming month. The complainant responded on 7 October stating that she required further information before agreeing to attend any meeting. A meeting did take place, however, on 23 October. On 22 November the complainant received a letter from the respondent’s CEO enclosing what was termed as a Transitional / Leaving Support Form for her to complete and advising that a further meeting would be held on 3 December. It was noted that the transition process was to be completed by the end of the year. A further meeting was arranged for 5 December but the complainant was unable to attend.   The complainant did however send an email to the CEO stating that she was surprised not to have received a contract offer and advising that her position was that, given her family commitments, she would have to “carefully weigh a potential redundancy offer against a contract”. The complainant received an email on 10 December inviting her to another meeting the following day but the complainant advised that due to other commitments she would not be in attendance. The CEO responded by suggesting 17 December for the meeting and this was agreed by the complainant. At this meeting the complainant was offered a support package to facilitate her leaving the role of LTCW and the document was emailed to her that evening with a reminder that it was intended to finalise payments by the end of the month. The email thanked her for her years with the respondent and wished her the very best for the future. On 21 December the complainant emailed the CEO to inform her that she had requested her solicitor to negotiate on her behalf. The CEO responded by agreeing to give the complainant more time to consider the settlement but requested vacant possession of the complainant’s flat and the return of all keys by 31 December. It should be noted that the complainant’s family had already moved out of their accommodation in October 2018 and that the complainant’s husband had accepted his settlement.

There followed in February / March 2019 further correspondence between the CEO and the complainant in which the latter advised that she was not happy with the figure proposed for the exit package and a meeting in this regard took place in mid-March. The complainant put forward an increased figure for the severance package and this was in turn transmitted to the respondent’s Council. On 27 March the CEO advised the complainant that the Council were not prepared to approve any additional payments and later advised that the final date for acceptance of the offer was 15 April. The complainant did not agree to accept the proposed settlement. The complainant filed her complaints with the WRC on 23 April 2019.

Preliminary Issue:

The respondent submitted that the Adjudication Officer has no jurisdiction in relation to these complaints as the complainant was not an employee of the respondent but was a volunteer who undertook her role as a LTCW of her own free will and without payment, except for the reimbursement of expenses. The complainant therefore has no locus standi to bring these complaints.

The complainant argued that the absence of a written contract, formal wage or failure to deduct taxes did not alter the fact that the relationship between the parties was one of employer and employee. The benefits received by the complainant were effectively emoluments and amounted to remuneration.

The Unfair Dismissal Act, 1977, defines an employee as:

‘employee’ means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment …

‘Contract of employment’ means a contract of service or apprenticeship, whether it is express or implied and (if it is express) whether it is oral or in writing.

The Industrial Relations Acts, 1946 – 1976, defines a ‘worker’ as follows:

‘Worker’ means any person aged 15 years or more who has entered into or works under a contract with an employer, whether the contract be for manual, clerical work or otherwise, whether it be express or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or of a contract personally to execute any work or labour…

When considering this issue it should be borne in mind that the labels that parties attach to their relationship are not decisive of their actual status. Therefore, the description of the complainant as a volunteer is not to be taken at face value. The title given to the complainant and other persons performing the same role for the respondent was Long-Term Co-Worker. In 2011, in a letter to the Revenue Commissioners on behalf of the respondent, solicitors described the LTCWs as “house parents” and stated that “they are the backbone of the communities. They do not have outside jobs. They live fully out of the ethos above, requesting resourcing of their needs at the communities’ discretion and being accountable for all expenditure. They operate more or less in loco parentis in each house in a community”. In other documentation dealing with policies and procedures the respondent differentiates between Co-Workers and Volunteers stating that the term ‘volunteer’ “would normally be used in relation to anybody working in the Community on a purely voluntary, usually part-time, non-residential basis”.   It would therefore appear that the respondent themselves did not apply the label of volunteer to persons performing the LTCW role. In another document dealing with the LTCW Transition Process the respondent themselves stated that “the fact that most of the activities of co-workers in today’s regulated Social Care environment are no longer self-directed, are being line managed and directed by others has created a form of engagement that would likely be considered as employment.”

I accept that the original concept under which the respondent organisation was set up was based on an idealistic, laudable approach to enabling persons with disabilities, be they physical or mental, participate in life in a community. In turn this philosophy attracted people who shared that ethos and were prepared to devote themselves to ensuring the delivery of this concept. It is accepted that there was no formal, written contract existing between the parties. As noted in the definition in the Unfair Dismissals Act above (which is similar to other legislation), a contract does not have to be in writing and does not have to be expressed. A contract can come into being by implication from the conduct of the parties.   I have no doubt but that there was such a contract between the parties in the case before me.

Mutuality of obligations is an essential feature of a contract of employment. It has been referred to as the irreducible minimum requirement which must be present before a contract of employment can be held to exist. The respondent submitted that no mutuality of obligation existed between the parties and referred to the decision of the High Court in Minister for Agriculture v Barry, (2009, 1 IR 21) in this regard.   In the case before me, however, the complainant undertook to perform a vital role in a community operated by the respondent and to undertake the work attached to that role.   The respondent in turn undertook to provide the complainant with accommodation and all expenses connected with her family including holiday, travel, educational and medical expenses. It is unlikely that the respondent would have continued to provide these things if the complainant did not provide her services.

Also to be considered is the principle of subordination in the relationship between the parties.   This principle was examined by the Labour Court in Moyne Veterinary Clinic v Natasha Nowacki, (EDA 198, 2019) which stated:

“Subordination refers to the degree to which one party exercises economic power vis-à-vis the other. Where one party is dependant on another to a significant extent for work and consequently their means of livelihood, a relationship of subordination exists.”

The Court went on to consider some relevant English case law which referenced Cotswold Developments Construction Limited v Williams (2006, IRLR181) wherein Langstaff J. stated:

“…a focus on whether the purported worker actively markets his services as an independent person to the work in general (a person who will thus have a client or customer) on the one hand or whether he is recruited by the principal to work for that principal as an integral part of the principal’s operations, will in most cases demonstrate on which side of the line a given person falls”.

I am satisfied that the complainant was in a position of subordination vis-à-vis the respondent.

Allied to this issue is the question of how much control was exercised by the respondent over the complainant. It is true that the day to day routine and activities of the community were not dictated centrally by the respondent. Nevertheless, whilst this routine varied from site to site, the health, well-being and security of the people in their care dictated that levels of staffing had to be maintained and each co-worker had specified duties which had to be performed within a community. As outlined, the level of scrutiny from outside agencies increased from 2012 onwards.   The respondent began to introduce comprehensive policies and procedures in this regard. Job descriptions were drawn up which covered some of the roles performed by the complainant. A Code of Conduct applicable to co-workers, volunteers and employees of the respondent was introduced in 2014 as were Disciplinary and Grievance Procedures. The complainant herself was subjected to this Disciplinary Procedure in 2018 and was issued with a verbal warning which was unsuccessfully appealed. Policies dealing with Bullying and Harassment and with Social and Digital Media followed.   Financial oversight increased with individual communities no longer dealing directly with HSE. A new policy in respect of Credit and Debit Card Use was issued. In short, by 2018 a full suite of policies and procedures, on a par with those in place with a progressive employer, now governed how the complainant operated within the respondent organisation.

The complainant in evidence stated that she reported to a line manager who was the Regional Co-ordinator. One of the respondent’s witnesses was the Regional Manager for the area which included the complainant’s location. As also noted a person from outside the community was appointed as Person-in-Charge (PiC) in 2017. I am satisfied that, whilst initially the role that the complainant had with the respondent was fairly autonomous, as events unfolded and time passed her role underwent significant change and the degree of control exercised by the respondent increased to the extent that it could be classed as significant.

As regards the further test of the extent to which a person is integrated into the business operated by the putative employer, it is obvious that the tasks performed by the complainant were central to the mission for which the respondent existed.   In this context I note again the description by the respondent describing the role carried out by persons such as the complainant as being “the backbone of the communities”.

The issue of the status of a volunteer having a contract of employment was examined in the High Court in the case of The Commissioner of An Garda Siochana & Anor v Oberoi & Ors, (2013) IEHC 267. The judgement in turn referred to a case in the Courts in the UK, Ready Mixed Concrete (south East) Ltd. v Minister of Pensions and National Insurance, (1968) 2 QB 497, in which the judge, McKenna J., analysed whether or not a person was an employee as follows:

“…there were three essential features of a contract of service.   These were (i) that the servant agreed in consideration of remuneration to provide his own work or skill in the performance of service for the master; (ii) that the servant agreed expressly or impliedly that they would be subject to control by the master; and (iii) that the other provisions of the contract were not inconsistent with a contract of service.”

That judgement went on to say that, if examination of the rights conferred and duties imposed by the contract led to the inference that the contract was a contract of service, it was irrelevant that the parties had declared it to be something else.   In the Oberoi case the judge went on to state that as follows

“for a volunteer to be engaged under a contract of employment, and to establish that such a contract exists, it would be necessary for the person claiming the existence of a contract of employment to establish that such a person was obliged under a contract to carry out work.   Fundamental to the position of a volunteer is that volunteers provide their services voluntarily, without reward and are therefore entitled to withhold those services with impunity.   Such impunity results in there being no mutuality.

For a person to be employed under a contract of service, or a contract personally to execute any work or service, it is necessary that there be not only an obligation to perform work and an obligation to provide work, but also that there be receipt of remuneration.”

The question that requires to be addressed is whether or not the complainant was in receipt of remuneration. The complainant in her submission argued that the benefits received by her were effectively emoluments. It was further submitted that most workers in conventional employment perform work to provide themselves and their family with shelter and living expenses and that this applies in the case of the complainant. The respondent stated that the complainant undertook her role of her own free will and without payment except for the reimbursement of expenses.

Black’s Law Dictionary (2nd Ed.) defines ‘remuneration’ as a quid pro quo, or whatever consideration is received in return for services given. Section 7(3) of the Unfair Dismissals Act states that “’remuneration’ includes allowances in the nature of pay and benefits in lieu of or in addition to pay.” In European Law Article 157 of the Treaty on the Functioning of the European Union deals with the principle of equal pay and section (2) of the Article states:

“For the purposes of this Article, “pay” means the ordinary basic or minimum wage or salary or any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.”

Moreover, the European Court of Justice determined in the case of Trojani, C-456/032,“that having established the benefits in kind and money provided by the Salvation Army to Mr. Trojani constitute the consideration for the services performed by him for and under the direction of the hostel, the national court has thereby established the existence of the constituent elements of any paid employment relationship, namely subordination and remuneration.” (Para 22). In that case, Mr. Trojani received benefits in kind and pocket money.

Finally, I note that the value that the complainant herself attributed to her total expenses projected for 2018 was in excess of €30,000.00. The respondent pointed out that this was not an agreed figure.

Nevertheless, it is accepted that the budget would include food, holidays, dependent’s schooling and pocket money, clothing, personal expenses, phones / internet, third level college support rent and living expenses, accommodation, etc. It is therefore apparent that the level of expenses was appreciable. The evidence is that this provision was in return for the service provided by the complainant. Having examined all the facts I am of the opinion that there was an implicit contract whereby the complainant would provide a service to the respondent, that she operated under the control of the respondent in a position of subordination and that the complainant received remuneration in this regard. This therefore constitutes an employment relationship. It follows therefore that I do not accept the submission that the complainant has no locus standi to bring the complaints and I find that I have jurisdiction in this regard.

Complaint No. CA-00027910-001:

This is a complaint under the Unfair Dismissal Act, 1977. The general background to the complaint has been set out above. It is accepted that the respondent acknowledged the need for change in the operation of the community structure and in that regard had introduced a Strategic Plan for that change. As part of the consultation process a Transition Group for LTCWs was set up (which included the complainant) and from this the respondent in October 2018 published “A Framework Document for Long Term Co-worker Transition Process”. The difficulties faced by this cohort of workers was acknowledged as was the fact that the changes would impact on their self-image and devalue their contribution. The document presents two scenarios, a transition to employment or a transition to retirement. I note that the retirement option was limited to persons over 66 years of age and consequently would not have applied to the complainant. An earlier report drawn up by outside consultants in September 2017 recommended that the respondent’s Council consider the options of (i) facilitating the conversion of all LTCW positions into paid employment positions or (ii) developing and offering a retirement / exit package for those LTCWs who wished to bow out gracefully from their role. It is clear that that recommendation meant that the onus lay with the individual LTCW to decide on which option to choose.

As part of the transition process, the respondent’s CEO wrote to the complainant on 28 September 2018 to arrange a meeting with her. This meeting was termed an information gathering meeting and part of the aim was to find out what was the complainant’s preferred option for the future. The letter further stated that every effort would be made to accommodate the wishes of each individual and if this did not prove possible then the LTCW Transition Group would assist in developing solutions. The survey document, dated 23 October 2018, completed as a result of the meeting has an entry in the section dealing with possible employment options as follows:

“I consider myself employed – am looking for the appropriate contract and rate of pay.”

In the section titled “Any other information” the complainant stated:

“I do not wish to be made redundant….I’m not interested in transitioning out of (respondent) based on my needs.”

The complainant did add that transitioning out of the organisation would require that she receive compensation appropriate to her status and service. I note that the complainant was at that time on sick leave and in dispute with the respondent re changes in the financial support received that year. The complainant and her family had commenced the process of moving out of their accommodation in the community and had not resolved what, if any, support would be given to them in this regard. The complainant’s husband (also a LTCW) was of course also in meetings regarding his future and the family finances formed part of those discussions.

The CEO again wrote to the complainant on 15 November to thank her for her attendance at the previous meeting and advising that they were working on individual plans with a view to finalising matters by 31 December 2018. The letter also stated that “we will be endeavouring to offer people a contract where employment with the organisation is the agreed outcome”. This was followed by a letter on 22 November which included a clause advising that a draft contract would be forwarded to the complainant prior to receiving her own contract which would include “your own personal job offer and key roles and responsibilities”.   Whilst meetings were scheduled for early December as noted above it was 17 December before the complainant again met with the CEO.   According to the evidence of the complainant she went to the meeting expecting a job offer but found instead that the discussion from the very start was focused on an exit package. The CEO in her evidence accepted that the discussion had been concentrated on the complainant leaving the organisation. The CEO stated that the complainant’s husband had engaged with them and a settlement had been agreed with him. She further explained that the organisation was under considerable pressure both from a financial and compliance aspect.   An Executive Group consisting of senior management (of which the CEO was a member) had been set up to deal with the issue of the LTCWs. It was felt that what was required were people who would buy into the new organisation and decisions were made not to offer contracts to some of this group and this included the complainant. An offer was made to the complainant in respect of an exit package and, as noted, was confirmed in writing later that day. There followed the extension of the deadline, a counter proposal from the complainant which was rejected by the respondent’s Council and finally the subsequent decision of the complainant not to accept the proposal and the expiry of the revised deadline for acceptance.

Section 6(1) of the Unfair Dismissals Act, 1977, states:

Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6(4) of the Act states:

Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a)    the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b)    the conduct of the employee,

(c)     the redundancy of the employee…

Section 6(7) of the Act states:

Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court as the case may be, considers it appropriate to do so –

(a)    to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal…

When an employer is making an employee redundant, while retaining other employees, the selection criteria being used should be objectively applied in a fair manner.   In addition, there should be real and substantial discussions with the employee prior to any decision being taken with regard to his or her redundancy. Suitable consideration should be given to alternatives to the termination of employment. There should also be the right of appeal against the decision to make an employee redundant.

It is true that consultations had taken place with a group representing the LTCWs. But this had been in relation to the general background that the organisation was facing and not the specifics of individual’s employment being terminated. As regards the consultation process with the complainant, I note that the first meeting in that regard was termed as an information gathering exercise. I accept that attempts were made to have further meetings in early December but that it did not prove possible to meet with the complainant at that time. In the meantime, the respondent had adopted a deadline of 31 December for the conclusion of this process. The evidence before me is that the only discussion that took place at the meeting on 17 December was in relation to an exit package for the complainant despite the input from the complainant from the previous meeting stating that she was primarily interested in employment. The further evidence from the CEO was that a high-level management group, of which she was part, had decided that the complainant would not be offered a contract. All this seems to be at odds with both the recommendations of the outside consultancy, which indicated that the choice between paid employment and exiting the organisation would lie with the LTCW, and the framework document published a few weeks beforehand which dealt only with employment or retirement. It also appears to me that realisation of the deadline was foremost in the mind of the CEO. When sending the complainant the written settlement agreement the cover letter thanked her for her years of service with the organisation and wished her well in the future as if the matter was a fait accompli. When it later became clear that the complainant was not agreeing to the proposed settlement there was no reference to the commitment given in previous correspondence that the matter would be referred to the LTCW Transition Group for assistance in finding a solution. The complainant finally exited the organisation without agreement and without any recognition for her many years of service.

I note that of the 41 persons performing the role of LTCW contracts were offered to 24 persons.   The CEO stated that management had looked at the needs of each community and consequent staffing levels.   There was no consultation with the complainant in this respect and no evidence of any objective matrix being employed to determine who was offered employment and who was not. I further note that the community in which the complainant worked now has about 10 employees (a mix of full-time and part-time staff) including 2 House Co-ordinators, one of the roles carried out by the complainant.

Having regard to all these factors, I find that the conduct of the respondent in terminating the employment of the complainant was unreasonable. There was no proper consultation with the complainant in this regard and no evidence that consideration was given to the transition of the complainant to becoming a regular employee. The decision to terminate the employment of the complainant was made by a management committee which included the CEO who was also conducting the negotiations with the complainant. That decision was not in accordance with the process laid out in the respondent’s documentation regarding the LTCWs’ transition. There were no objective or transparent criteria utilised in the selection of persons to be offered contracts of employment. The decision to terminate the complainant’s employment was instead based on personal criteria. The complainant was never advised of any appeal mechanism that would allow her to contest the decision to terminate her employment. It follows consequently that I find that the complainant was unfairly dismissed.

Complaint No. CA-00027910-002:

This is a complain under the Redundancy Payments Acts, 1967 – 2012. Having found that the complainant was unfairly dismissed under the Unfair Dismissals Acts, 1977 – 2015, I find that this complaint is not well founded.

Complaint No. CA-00027910-003:

This is a complaint under the National Minimum Wage Act, 2000.

Section 23 of the Act states:

(1)    Subject to subsection (2), an employee may request from his or her employer a written statement of the employee’s average hourly rate of pay for any pay reference period (other than the employee’s current pay reference period) falling within the 12 month period immediately preceding the request.

(2)    N/A

(3)    A request under subsection (1) shall be in writing and identify the pay reference period or periods to which it relates.

On 18 April 2019 the complainant’s solicitors wrote to the respondent advising that they represented the complainant and making the following request:

“We would be obliged if you could furnish us with a statement of our client’s average hourly rate of pay.”

Section 24(2) of the Act states:

The Director General of the Workplace Relations Commission shall not entertain a dispute in relation to an employee’s entitlements under this Act and, accordingly, shall not refer the dispute to an adjudication officer under Section 41 of the Workplace Relations Act 2015 –

(a)    unless the employee –

(i)                  has obtained under Section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay period.

The request from the complainant’s solicitors did not specify or identify the pay period or periods to which the request related. It follows therefore that it is not a valid request under the Act.   I do not, accordingly, have jurisdiction to hear this complaint.

Complaint No. CA-00027910-004:

This is a complaint under the Organisation of Working Time Act, 1997, to the effect that the complainant was not given compensation for working on Sundays. I note that the complainant went on sick-leave in July 2018 and did not return to work after that.

Section 41(6) of the Workplace Relations Act, 2015, states:

Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Section 41(8) of the Act states:

An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The complaints were presented to the WRC on 23 April 2019. The time frame to which the complaints relate therefore goes back to 24 October 2018 unless I am satisfied that the delay in presenting the complaints was due to reasonable cause as provided for by Section 41(8) of the Act. The complainant submitted as a reason for the delay the fact that she was awaiting a contract from the respondent.

The established test for deciding if an extension should be granted for reasonable cause is that formulated by the Labour Court in the case of Cementation Skanska v Carroll, (DWT 0338). The test was set out as follows:

“It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that thee are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd….The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant must satisfy the Court, as a matter of probability, that had these circumstances not been present he would have initiated the claim in time.”

The above test is itself founded on the High Court decision in the case of Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation (1991, ILRM 30), in which Costello J. stated that “the Court should not extend time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings.”

Applying the above guidance to the case before me I note that the complainant in her complaint form gives 31 December as the date of termination of employment. I note that the date of acceptance of the severance package was extended past that date and that there was a meeting and correspondence in relation to the amount on offer in that package. This exchange, however, was in relation to the quantum and was not in regard to the complainant being offered a contract. Regarding the specific complaint before me, the last date that the complainant could have worked on a Sunday was sometime in July 2018. The complaint was presented to the WRC on 23 April 2019. I note that the complainant was in receipt of legal advice since October 2018. I am not satisfied that the complainant has discharged the onus on her to give reasons that both explains and excuses the delay in presenting the complaint. I therefore cannot grant the extension of time permitted under Section 41(8) of the Act. The complainant did not work any Sundays in the six-month period preceding the lodging of the complaint. I therefore find this complaint to be not well founded.

Complaint No. CA-00027910-006:

This is a complaint under the Payment of Wages Act, 1991. As presented at the hearing this complaint was in respect of the unilateral decision by the respondent to put a cap on the amounts that the complainant could charge to the credit cards issued to her by the respondent. This in turn meant that items of expenditure such as the education fees in respect of the complainant’s children went unpaid.   The respondent argued that such items are not proper to claims under the Act as they are outside the definition of wages contained therein.

The evidence before me is that the respondent commenced the implementation of this change in February 2018 with restrictions imposed by the respondent on the use of the credit cards. A decision was then made to introduce the cap of €1,000.00 per month for LTCW’s expenses. From documentation supplied at the hearing I note that a meeting was held on 19 June, attended by the respondent’s Financial Advisor, the purpose of which was to finalise a new process for Co-workers payments as the respondent was withdrawing the use of its credit cards as a means of reimbursement / funds drawdown for Co-workers with effect from 1 July 2018. I therefore find the alleged contraventions which are the subject of this complaint occurred more than 6 months prior to the lodging of the complaint and I therefore, for the reasons outlined in the previous complaint, do not have jurisdiction to hear this complaint.

Complaint No. CA-00027910-008:

This is a complaint under the Organisation of Working Time Act, 1997, to the effect that the complainant did not receive her entitlement to annual leave. For the purposes of the Act the annual leave year is defined as commencing on 1 April of each year. The leave year in question in this complaint therefore is the year commencing on 1 April 2018 until 31 March 2019. Therefore, a complaint submitted on 23 April 2019 is within the time limit. The entitlement to annual leave is set out in Section 19(1) of the Act as follows:

Subject to the First Schedule (which contained transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as ‘annual leave’) equal to –

(a)    4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b)    one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c)     8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

From the evidence before me it is clear that the complainant worked in excess of 1,365 hours in a week. The complainant in her submission states that a holiday was booked in April 2018 but was later cancelled. The complainant went on sick-leave on some unspecified date in July 2018 and did not return to the workplace. The complainant and her family left their house and community on 15 October 2018.

I note that the respondent, in response to the issue of the holiday payment, states that the payment for the cancelled holiday was refunded to the respondent’s credit card by which it was originally paid. Furthermore, according to the respondent, the holiday accommodation for the complainant was re-booked and paid for by the respondent. I note that in her initial submission the complainant makes reference to returning from a holiday in August 2018.

Section 19(1A) of the Act states:

For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was –

(a)    at his or her place of work or at his or her employer’s disposal, and

(b)    carrying on or performing the activities or duties of his or her work.

The complainant’s submission in relation to this complaint is based solely on evidence of the cancelled holiday and on the amount of the refund arising from same. No evidence of medical certification was produced at the hearing.

Accepting that the employment terminated on 31 December 2018 the complainant would have been entitled to payment for 3 weeks’ annual leave provided that medical certificates were submitted in respect of the period of her illness. From this total would be deducted any paid leave granted during the leave year. I would point out that the onus is on the person making a complaint to provide the evidence to substantiate any claim under the Act.

Complaint No. CA-00027910-009:

This is a complaint under the Organisation of Working Time Act, 1997, to the effect that the complainant did not receive her Public Holiday entitlement. Section 21 of the Organisation of Working Time Act, 1997, states:

(1)    Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely –

(a)    a paid day off that day,

(b)    a paid day off within a month of that day,

(c)     an additional day’s leave,

(d)    an additional day’s pay.

Section 21(5) states:

Subsection (1) shall not apply, as respects a public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in the Third Schedule.

The Third Schedule refers to exceptions to the entitlement specified in Section 21 and specifies absences in excess of 26 weeks before the relevant public holiday.

As noted above I can only consider contraventions that occurred after 24 October 2018 and where the complainant’s absence was not in excess of 26 weeks prior to the public holiday.   The public holidays in question therefore are the October Holiday, 25 December, 26 December and New Year’s Day.

Complaint No. CA-00027910-010:

This complaint under the Payment of Wages Act, 1991, was withdrawn at the hearing.

Complaint No. CA-00027910-012:

This is a complaint under the Payment of Wages Act, 1991, to the effect that the complainant did not receive a statement in writing of her terms of employment. Section 3(1) of the Act states:

An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment….

It is accepted that no statement of the kind referred to in the legislation was given to the complainant. The respondent’s position is, as already referred to, that the complainant was never considered to be an employee and consequently did not require a statement of employment. It is fairly obvious from the evidence that this was not an issue between the parties until recent years when, because of various events, the relationship between the parties began to undergo fundamental change. This, in turn, brought to light the requirement for radical change within the organisation. It was this change and, in particular, the impact that change had on people like the complainant that brought into focus the legal complexities regarding their role within the respondent. In this case, having decided that a contract of employment did in fact exist between the complainant and the respondent, I consequently find that this complaint is well founded.

Complaint No. CA-00027910-001: This is a complaint under the Unfair Dismissals Acts, 1977 – 2015. For the reasons set out above I find that the termination of the employment of the complainant amounted to an unfair dismissal under the provisions of the Act.   Taking all factors into consideration I have decided that compensation is the most suitable form of redress. There is the obvious difficulty in determining the amount of compensation that is just and equitable in this case as the complainant was not paid wages in the conventional sense. The Act states in Section 7(1) that if an employee has incurred a financial loss attributable to the dismissal, that employee can be awarded compensation “not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed….as is just and equitable having regard to all the circumstances.” As previously noted, Section 7(3) states that “remuneration includes allowances in the nature of pay and benefits in lieu of or in addition to pay.”

I requested further submissions in relation to this issue. The complainant’s submission was that a budget had been drawn up for 2018 for herself and her husband for personal / family expenses as per normal practice and that 50% of this figure would amount to the complainant’s share.   To this, according to the complainant, should be added 50% of the costs of accommodation, heat and utilities for the family. This brought the total to €31,500.00. The complainant also lists outstanding medical / dental expenses. There is also a claim in relation to the cost of a booked holiday that was subsequently cancelled and the amount refunded to the credit card on which it was originally charged. A further factor that the complainant asks to be taken into consideration is the fact that transitional financial support for the family was requested by the complainant and her husband when they moved out of the community residence in October 2018 and whilst the complainant’s husband had received 50% of this payment when he agreed a settlement with the respondent the complainant had not received her share.

The respondent in reply stated that the budget as proposed was not agreed to by them as it was deemed too high. It was further argued that the complainant and her husband made the decision to leave the community accommodation in October, before the end of the transition process on 31 December 2018. It was pointed out that the dental expenses relate to dates in February and April 2019 which occurred after the process terminated on 31 December 2018.   Finally, as regards the holiday accommodation refund, the respondent stated that this had been charged to a credit card that was paid for by the respondent and that the refund was subsequently credited to that card. In those circumstances the refund was not due to be paid to the complainant.

I also note that the complainant lists payments totalling €15,414.91 received from the respondent in the year 2018. The complainant also commenced part-time employment with effect from 1 January 2019 and her earnings in this respect for the year 2019 amounted to €10,080.00.

Taking all these factors into consideration I order the respondent to pay to the complainant the sum of €40,000.00 as compensation for the unfair dismissal.

Complaint No. CA-00027910-002:

As set out above and following on from my decision on the previous complaint I find that this complaint under the Redundancy Payments Acts, 1967 – 2012, not to be well founded.

Complaint No. CA-00027910-003:

As detailed above, I find that the request under Section 23 of the National Minimum Wage Act, 2000, was not a valid request and that consequently I do not have jurisdiction to hear this complaint.

Complaint No. CA-00027910-004:

For the reasons detailed above I find that this complaint under the Organisation of Working Time Act, 1997, in relation to Sunday premium payments is not well founded.

Complaint No. CA-00027910-006:

As detailed above I find that this complaint under the Payment of Wages Act, 1991, is presented outside of the time limits set out in the legislation and I therefore do not have jurisdiction to hear this complaint.

Complaint No. CA-00027910 -008:

On the basis of the conflicting evidence offered in relation to this complaint under the Organisation of Working Time Act, 1997, and the lack of detail therein I find that I am unable to determine if there has been a breach of the legislation with regard to annual leave entitlement and I therefore find this complainant not to be well founded.

Complaint No. CA-00027910-009:

For the reasons set out above I find this complaint under the Organisation of Working Time Act, 1997, to be well founded in respect of four public holidays. In the circumstances of this case I do not have a precise method of determining the value of a day’s pay. I order the respondent to pay to the complainant the sum of €400.00 in this regard.

Complaint No. CA-00027910-010:

This complaint under the Payment of Wages Act, 1991, was withdrawn at hearing.

Complaint No. CA-00027910-012:

This complaint is under the Terms of Employment (Information) Act, 194, and for the reasons outlined above I find this complaint to be well founded. As noted both parties entered the relationship based on altruism and a vocational approach to the provision of services for the residents of the community. Given that background there is an inherent difficulty in assessing a figure for compensation. I therefore order the respondant to pay to the complainant the sum of €1,000.00 in this regard.