ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00022965

Parties:

	Complainant	Respondent
Anonymised Parties	A Volunteer	Therapy Service Provider

Representatives

Louise Ward National Advocacy Service for People with Disabilities

The respondent did not attend and was not represented at the hearing

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00029496-001	05/07/2019

Date of Adjudication Hearing: 18/11/2019

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 13 of the Industrial Relations Act , 1969 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Preliminary Matter of Jurisdiction

The claimant worked as a volunteer Retail Assistant with the respondent from the 12thJune 2006 to the 8th.April 2016 when he maintained he was constructively dismissed. On the 10th.September 2019 the respondent wrote to the WRC advising that the claimant was a volunteer and not an employee. The respondent’s handbook provides as follows: “While the Society values its employees and volunteers in equal measure, there is distinct difference between them. Paid staff operate under a contract of employment that is governed by employment legislation. Employees are obliged to work as scheduled by the organisation. As a volunteer , you operate by mutual agreement between you and the Society. You choose your rota in conjunction with the Manager and are free to withdraw your services at any time…”.

The definition of a worker under the Industrial Relations Acts is set out below –

Industrial Relations Generally
	“worker”.	23.—(1) In the Industrial Relations Acts, 1946 to 1976, and this Part, “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 labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour including, in particular, a psychiatric nurse employed by a health board and any person designated for the time being under subsection (3) but does not include—
		(a) a person who is employed by or under the State,
		(b) a teacher in a secondary school,
		(c) a teacher in a national school,
		(d) an officer of a local authority,
		(e) an officer of a vocational education committee, or
		(f) an officer of a school attendance committee.
		(2) In subsection (1) “local authority” means—
		(a) a council of a county, a corporation of a county or other borough, a council of an urban district, the commissioners of a town, a health board or a port sanitary authority,
		(b) a committee or joint committee or board or joint board appointed (whether before or after the passing of this Act) by or under statute to perform the functions or any of the functions of one or more of the bodies mentioned in paragraph (a), and
		(c) a committee or joint committee or board or joint board of or appointed by one or more of the bodies mentioned in paragraphs (a) and (b) but not including a vocational education committee, a committee of agriculture or a school attendance committee.
		(3) The Minister for Finance may from time to time—
		(a) designate for the purpose of subsection (1) any persons (other than established civil servants within the meaning of the Civil Service Regulation Act, 1956 ) employed by virtue of section 30 (1) (g) of the Defence Act, 1954 , or employed by or under the State, and
		(b) cancel the designation of any persons under this subsection.
		(4) Any person who stands designated by virtue of section 17 (2) (a) of the Industrial Relations Act, 1969 , at the passing of this Act shall remain designated for the purpose of subsection (1) unless the designation is cancelled under subsection (3) (b).
		(5) The Government may by order amend the definition of “worker” in subsection (1) and may by order revoke or amend any such order.
		(6) Every order made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either House, within the next twenty-one days on which that House has sat after the order has been laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

In light of the foregoing, I am obliged to conclude that the claimant was not a worker as defined under the Industrial Relations Acts and accordingly I have no jurisdiction to investigate this complaint.

Dated: 14th February 2020

Workplace Relations Commission Adjudication Officer: Emer O'Shea