Complainant

Respondent

Anonymised Parties

A Worker

A Disability Service Provider

Representatives

Michael Lanigan POE KIELY HOGAN LANIGAN

Sarah Conroy Beale & Company

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-00027861-001

18/04/2019

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

CA-00027861-002

18/04/2019

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

CA-00027861-003

18/04/2019

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

CA-00027861-004

18/04/2019

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

CA-00027861-006

18/04/2019

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

CA-00027861-008

18/04/2019

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

CA-00027861-009

18/04/2019

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

CA-00027861-010

18/04/2019

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

CA-00027861-012

18/04/2019

The Complainant has brought 9 complaints against the Respondent and these were received by the WRC on the 18th April, 2019. The complaints were made pursuant to the Payment of Wages Act, [1991-2019], the Organisation of Working Time Act [1997-2017], the Terms of Employment (Information) Acts [1994-2019] and the National Minimum Wage Act [2000-2020]. The Complainant has also submitted a complaint under the Unfair Dismissals Act [1977-2017] on the basis of “in the alternative” to a complaint under the Redundancy Payments Act [1967-2016] and vice-versa. Similar complaints by three other Complainants were also listed for hearing by the WRC.

The Respondent is a registered company and charity which owns and operates a number of residential communities throughout Ireland which provide support to vulnerable adults with intellectual disabilities. The model of care is described as “life sharing” on the basis that support and assistance to residents was given by Long Term Co-Workers (LTCW) and Short Term Co-Workers (STCW) who resided within the communities. The Respondent contends these workers were “unwaged vocational volunteers” as distinct from other workers who were employees of the Respondent.

At the outset the Respondent raised the preliminary matter of the Complainant’s employment status and that of the three other Complainants. The Respondent stated that the Complainant was not and and never had been an employee of the Respondent and that the WRC had no jurisdiction in relation to the complaints. The Respondent called for a ruling on this matter at the outset. Having heard the submissions of both the Complainant and the Respondent in relation to the sequence to be adopted, I advised the parties that I would deal with each Complainant’s case separately and that in respect of each, I would hear the arguments on the preliminary matter first and then deal with the substantive complaints.

The Adjudication hearing in respect of ADJ-00021177 commenced on the 14th January, 2020 and due to lack of time was adjourned that day but resumed and concluded on the 3rd March, 2020.

The Complainant was represented at the adjudication hearing by Mr Stephen O’Sullivan BL instructed by Poe Kiely Hogan Lanigan Solicitors.

The Respondent was represented by Ms Lauren Tennyson BL instructed by Beale & Co Solicitors.

Preliminary Matter:

The Complainant was described as a Long Term Care Worker (LTCW) who commenced working in the Respondent’s service on 20/7/1988. The Complainant was formally notified on 18/12/2018 that she was being terminated with effect from 31/12/2018. The Complainant resided on site within one of the residential communities owned and managed by the Respondent until October 2017. Her accommodation and food on site was provided by the Respondent. From October 2017 to December 2018 the Complainant resided in a house rented by the Respondent. The Complainant advised that the Respondent provided credit cards to each of its residential communities via which co-workers could purchase food, clothing, pay for sanctioned annual holidays, provide for their education and that of their children and have some pocket money according to perceived needs. In the years leading up to 2018, LTCWs regularly used the credit cards to purchase goods and services for the community including for themselves and the residents. Sanction of payments was made by the local management of the particular residential community and funds were provided by the national organisation. It is the Complainant’s position that although she did not receive formal remuneration, the benefits which she did receive and the payment of her monthly expenses were in the nature of wages/remuneration which should be regarded as corroborative of an employment relationship.

The Complainant stated that she devoted her life to the Respondent’s service, contributing to the residential community and that she cared for and worked with the residents. The Complainant stated that the use of credit cards was phased out in 2018, that LTCWs were advised of a new monthly expenditure limit of €1000 and some were asked to move out of residences which had been their homes for in excess of ten years. The Complainant stated that LTCWs faced a situation where no taxes or social insurance payments had been paid on their behalf by the Respondent. The Complainant also stated that “Many of the LTWCs are at an age where new placements in the work place would be more difficult to come by”.

As a consequence of the Respondent’s failure to grant her legal entitlements as an employee, the Complainant contends that was terminated unfairly and left in a situation where – but for the intervention of her family – she would have been homeless and without adequate means of living. It is the Complainant’s position that although she was described as an LTCW, that in fact she was an employee. In that regard, the Complainant submits that she was employed for many years on an unwritten contract of employment. In support of her contention that she was an employee of the Respondent and on the basis of the criteria set out by Revenue for determining the employment status of individuals, the Complainant stated:

·         That in the Respondent’s governance documents LTCWs are referred to as staff and the Complainant maintained that she was never described as a volunteer;

·         LTCWs have been defined as persons with five or more years experience;

·         That as an LTCW she supplied labour to the Respondent – in this regard the Complainant stated that “….whilst they may bring personal belongings which they share with the community the essence of the contract is that of labour only”. The Complainant stated that she worked an average of eighty hours/week, working daily as a House Co-ordinator and/or as PIC and doing duty nightly;

·         That she was directed as to the work to be carried out and when and where this was to be done. The Complainant outlined the various roles and responsibilities she held within the Respondent including as a House Parent/House Co-ordinator from 1991 – 2013, as a Person in Charge (PIC) from 2013 – 2016 and as a House Co-ordinator from January 2017 – May 2017. The Complainant stated that her job description as PIC was drafted by a working group. The Complainant furnished:

o   A document dated May 2014 titled “Responsibility Profile” which set out the list of responsibilities and tasks applicable to her PIC position;

o   A general job description document titled “Person in Charge” dated January 2014;

o   A document titled “LONG TERM CO-WORKER FILE CHECK LIST”

·         That as an LTCW she could not and did not sub-contract her work;

·         That she was not exposed to financial risk in carrying out the work;

·         That her hours of work were in the main fixed by the Respondent, that she was expected to be on call or working for periods far greater than an employed care worker and that time-tables and rosters applied;

·         That effectively she received remuneration and that the method of remuneration via expenses and the provision of accommodation showed that there was an exchange of consideration. The Complainant stated that she depended on the living expenses and accommodation to survive. The Complainant furnished detailed documentary breakdown in relation to budgets and expenses particularly from July – December, 2018;  

·         That as an LTCW the Complainant was in the same position as an employee who was free to leave his/her employment relationship.

In the course of her oral evidence, the Complainant elaborated on her qualifications, the circumstances of her coming to work with the Respondent, the details of her working arrangements within the Respondent and the changes which had occurred over the years. The Complainant stated that originally she had applied for the post via an application form but there had been no interview. The Complainant gave detailed evidence of her different roles and responsibilities as House Parent, House Co-Ordinator and PIC, of her daily hours, her management responsibilities and she stated that her duties were clearly set out and time-tabled. She stated that she spent all of her time in the residential community and had no other income or means of living. The Complainant stated that she had a credit card and that initially the limit on it was €3,000 which was for personal and house expenses. The Complainant also explained there was a petty cash account. She stated that people had personal budgets, that it there was a need to exceed the budget that could be discussed. The Complainant stated that she always provided receipts for all expenditure. The Complainant stated that she had one day off/week – usually Friday afternoon and Saturday morning.

The Complainant gave evidence in relation to HIQA inspections and as regards her stepping down from the role of PIC on 7/12/2016 and being replaced. The Complainant stated that she was forced to leave the residential community in October 2017 with only two days notice. Thereafter her accommodation was paid for by the Respondent until December, 2018. The Complainant also outlined the circumstances of her suspension in 2017. In this regard, the Complaint furnished copy of the Trust in Care Investigation Report which exonerated her of various allegations. The Complainant also furnished a letter dated the 7th January, 2019 which stated that the investigation of an historic matter relating to 2014 had been closed.

The Complainant provided two comprehensive booklets of documentation which included various workplace policies. The Complainant outlined her position that these policies were indicative of an employment relationship and that the Complainant’s work was regulated by policy in the same manner as employees. The documentation/policies referred to by the Complainant included:

-          Information in relation to the Respondent’s Social Fund;

-          A document titled “Guide to Recruitment and Selection of Volunteers, Employees, Co-workers and Local Volunteers”

-          A document titled “Policy on Training and Professional Development”

-          A document titled “Policies and Procedures for Dealing with Grievances of Co-workers or Volunteers”

-          Various iterations of a document titled “Disciplinary Procedures of Camphill Communities of Ireland (Coworkers/Volunteers only)”

-          Various iterations of a document titled “Social and Digital Media Policy”

-          Various iterations of a document titled “Code of Conduct for Co-Workers, Volunteers & Employees of [Respondent]”

-          A document titled “Policy and Procedure on Bullying and Harassment (Coworkers/Volunteers only)

-          A document titled “….Lone Worker Policy….”

-          A document titled “Policy Statement Credit & Debit Card Use/Guidelines”

-          A document titled “Framework Document for Long-term Coworker Transition Process”

-          A document titled “Statement of Main Terms of Employment”

-          A document titled “Employee Handbook”

-          A document titled “External Review of Organisation & Governance…..25th September 2017”

The Complainant also furnished documentation in relation to the Respondent’s exchange with Revenue. In 2011 the Respondent had sought “an exemption from operating the PAYE system on payments made for and on behalf of our Vocational Volunteer Co-workers”. In a further letter from the Respondent’s legal advisors to Revenue of the 20th December, 2013, the Respondent stated, inter alia, that

“We are writing to you to seek confirmation that [Respondent] is not obliged to operate the pay as you earn (“PAYE”) system in respect of any cash and/or benefits provided to co-workers”, on the basis that they are not employees of [Respondent]” There is no suggestion in this that co-workers are not liable for tax – both co-workers and the communities are keen to ensure that they are tax compliant in all respects. The issue is that the communities and co-workers believe as we have advised them that the tax schedule applicable to such individuals is Schedule D Case 11 rather than Schedule E”.

On the 25th July, 2012 Revenue advised the Respondent that it “found no basis for the alternative taxation arrangement….” which it had proposed. The Complainant provided copies of further exchanges between Revenue and the Respondent including reference to a meeting. In a letter dated the 16th June, 2014 Revenue sought clarification on the duties performed by LTCWs, on payments made to LTCWs and on their accommodation and rostering. The Respondent replied by letter of the 24th July, 2014. A further letter was sent by the Respondent to Revenue on the 26th October, 2018 detailing the role of LTCWs in the Respondent.

The Complainant stated that she was part of the transition group in 2018 in relation to the LTCW model of care and she confirmed that she wished to remain as an employed person within the Respondent but was not offered a contract of employment. In this regard, I was furnished with copy of a letter sent to the Complainant dated the 24th January, 2018 which referred to the formal Settlement Deed which had been agreed between [Respondent] and the Complainant’s Solicitor, which referred to revised arrangements for use of credit cards, car and mobile phone and which also stated that “In the event that you accept an offer of employment with [Respondent] it is envisaged that the rate of pay offered will be comparable to that of a House Coordinator”. The Complainant stated that the Respondent’s position in this regard changed and that in December 2018, the Respondent advised the Complainant “we are not in a position to offer [Complainant] an employment contract because of a breakdown of trust and confidence….”. The Complainant stated that she did not know why she was not offered a formal contract of employment from 2018 onwards. She stated that she did not accept the terms of the settlement deed or the settlement offer of €30k.

The parties were afforded the opportunity to examine and cross examine each other’s evidence as part of the hearing and both the Respondent and the Complainant availed of this.

The Respondent’s legal representative questioned the Complainant on her knowledge of the Respondent’s ethos, regarding her position as co-worker, that she was not provided with payslips nor didn’t get annual leave, the method of needs based expenses, the Complainant’s involvement in the management of the community and the provision of accommodation. The Complainant was also questioned about an email she sent to the Respondent on the 29th November, 2018 in relation to transition support, completing an application form for this purpose and the Complainant’s provisional proposal of a settlement amount of €30k. The Complainant responded that her proposal was in the context of her being offered a formal employment contract.

The Complainant cited the following cases in support of her position:

-          Market Investigations Ltd v Minister of Social Security [1969] QB 173

-          R (Payir) v Secretary of State for the Home Department [2006] ICR 188

-          Melhuish v Redbridge Citizens Advice Bureau [2004] Lexis Citation 1171

-          Kirwan v Technical Engineering and Electrical Union [2005] ELR 177.

CA-00027861-001

The Complainant has claimed that she was unfairly dismissed contrary to the provisions of the Unfair Dismissals Act [1977-2017]. In this regard, the Complainant outlined that arising from changes within the Respondent in particular with regard to its care model a decision was taken to phase out the role of LTCWs and that a transition group was established by the Respondent for this purpose. The transition group held meetings with LTCWs. The Complainant furnished copy of a document titled “Framework Document for Long-Term Coworker Transition Process (Version 2 – 19/9/2018) and a document titled “Long-term Coworker transitioning to or already in retirement”. These documents inter alia explored options for safeguarding the Respondent organisation and the rights of co-workers.

The Complainant stated that she had commenced working in the Respondent’s service on 20/7/1988. The Complainant stated that contrary to the indications in the letter to her of the 24th January, 2018 she was not offered a formal contract of employment going forward and that by letter of 18/12/2018 she was notified that she was being terminated with effect from 31/12/2018. In this regard, the letter of the 18th December included the following statement:

“As you are aware, the current role of Long Term CoWorker is in a transition process with all existing arrangements ceasing on December 31st 2018. You have been a Long Term CoWorker at Camphill for 30 years and this arrangement will terminate on December 31st 2018….”

This claim has been made by the Complainant in the alternative to her complaint of redundancy.

CA-00027861-002

The Complainant is seeking redundancy pursuant to the Redundancy Payments Act [1967-2016] without prejudice to and in the alternative to her complaint of unfair dismissal. The Complainant stated that her role ceased on the 31st December, 2018 due to re-organisation within the Respondent. The Complainant stated that the Respondent has not confirmed whether or not a redundancy situation existed and has not paid her redundancy.

CA-00027861-003

The Complainant stated that she was not paid the minimum wage rate of pay contrary to the National Minimum Wage Act [2000-2020]. The Complainant gave details of her hours and stated that there was an obligation on the employer to record the hours.

CA-00027861-004

Withdrawn at the adjudication hearing.

CA-00027861-006

The Complainant stated that the Respondent did not pay her or paid her less than the amount due to her contrary to the Payment of Wages Act, [1991-2019]. In this regard the Complaint referred to shortfalls in paying her the amounts budgeted for in October – December, 2018.

CA-00027861-008

Withdrawn at the adjudication hearing.

CA-00027861-009

Withdrawn at the adjudication hearing.

CA-00027861-010

The Complainant stated that she did not receive any payment in lieu of notice of termination contrary to the Payment of Wages Act, [1991-2019].

CA-00027861-012

The Complainant stated that she did not receive a statement in writing of her terms of employment contrary to the Terms of Employment (Information) Acts [1994-2019].

Preliminary Matter:

It is the Respondent’s position that the Complainant is not an employee and therefore has no locus standi to bring the various employment complaints. The Respondent stated that it is a registered charity operating residential communities and providing support for vulnerable adults with intellectual disabilities. The Respondent stated that it has provided services in Ireland for over forty years and that it receives funding from the HSE.

The Respondent described its ethos as “life-sharing is our way of life” and stated that individuals came and resided in the communities and assisted the residents as unwaged vocational volunteers. The Respondent stated that the Complainant entered the community in or around 1988 and was a House Coordinator and Person in Charge and that she was provided with accommodation. In support of its position that the Complainant was not an employee, the Respondent stated:

·         That the Complainant was not paid wages;

·         That the Complainant was reimbursed for any expenses (needs based) she incurred – including any medical, holidays, travel and education;

·         That the Complainant willingly and knowingly entered the Respondent’s service as a volunteer co-worker

·         That the Complainant continued to benefit from the arrangements in place until she left the community;

·         That the Complainant’s position of co-worker was voluntary, that the role was not subject to “or governed by a contract of employment…..or any form of contract, and co-workers have no legal entitlements to any payment or benefit-in-kind from the Respondent”.

The Respondent stated that its operations are regulated by HIQA and that in recent years it has been obliged to transition from its volunteer model of care to an employment model. In this regard, the Respondent stated that the LTCW model of work came to an end on the 31st December, 2018. The Respondent stated that it had concluded transition arrangements with the majority of its long term co-workers and that it had engaged with the Complainant also. In this regard, the Respondent referred to its email and letter to the Complainant of the 20th November, 2018 which inter alia stated that:

“Dear [Complainant]

As you may be aware, the [Respondent] has established a Long Term Coworker (LTCW) Transition Group…….The group has developed a framework document for the Long-Term Coworker Transition process. A copy of this document is now attached…..It was agreed that the Executive team would work though a process of individual meetings with each LTCW…..Please note, these are information gathering meetings only. No commitments, agreements or decisions will be made or required at these meetings……In any situation where we feel we will not be able to meet the individual wishes, the LTCWs Transition Group will assist in developing solutions…..”

The Respondent furnished copies of other exchanges between the Respondent and the Complainant after the 20th November, 2018 including the Complainant’s email to the Respondent of the 29th November 2018 wherein the Complainant stated:

“Two days ago, at a LTCW meeting…..I was encouraged to apply for Transition support. I did not receive the form before today’s deadline and therefore submit my request in this email. As yet I am not in a position to complete a full application…..I also do not know whether or not [Respondent] is offering me a contract and what the terms of that contract are….I do not consider any Leaving/Transitional support agreed to be a full and final settlement of the obligations of [Respondent] towards me….”

In a subsequent letter to the Complainant of the 3rd December, 2018, the Respondent set out of its “notes from the discussion” with the Complainant which took place earlier on that day. Included is a note to the effect that the Respondent’s CEO had advised the Complainant that “we are not in a position to offer [Complainant] an employment contract because of a breakdown of trust and confidence….”. The notes record that a further meeting was scheduled for the 5th December, 2018.

The Respondent furnished copy of its letter of the 18th December, 2018 which advised the Complainant: “You have been a Long Term CoWorker at [Respondent] for 30 years and this arrangement will terminate on December, 31st 2018. This has not been a period of employment”. This letter also informed the Complainant of her leaving support settlement and advised on the outcome and progress of two investigations.

The parties were afforded the opportunity to examine and cross examine each other’s evidence as part of the hearing and both the Respondent and the Complainant availed of this.

The Respondent’s Chief Executive Officer gave evidence in relation to the development of the Respondent within Ireland and across the world, in relation to its ethos, policies, financing, community approach and its staffing structure. The CEO stated that the expenses paid to its LTCWs were needs based and that different internal policies applied to co-workers and employees. The CEO outlined the impact of growing regulation on the sector particularly in terms of registration and financial, the changes required as a consequence, its various exchanges with HIQA and obligation to comply with HIQA requirements. The CEO explained how as a result LTCWs could no longer live on site with residents and ultimately that the LTCW model was transitioned out from end of 2018. The CEO outlined the transition process and stated that at the time the Respondent dealt with a legal representative of the LTCWs.

In relation to the Complainant, the CEO outlined its various exchanges of December 2018 including its offer of a leaving support settlement of €30k which was refused by the Complainant. The CEO referred to its meeting with the Complainant of the 3rd December, 2018 wherein the Complainant was advised that the Respondent was “….not in a position to offer [Complainant] an employment contract because of a breakdown in trust and confidence….”.   The CEO stated that approximately forty other LTCWs had not been offered employment contracts but that at the time of the adjudication hearing some 22 had been. When questioned about this, the CEO stated that at the time, the Respondent was under scrutiny from HIQA and the HSE and that when the Complainant was the PIC and in a position of management, there were significant issues with the cancellation of registration by HIQA. The CEO stated that the Respondent had to manage the system, that the Respondent had concerns, that the Respondent did not consider it appropriate in the situation to invoke its disciplinary procedures and that it was a time of transition from the LTCW model to an employment model. The CEO further stated that she did not discuss the Complainant’s position with either HIQA or the HSE and nor did she check the Complainant’s availability for work going forward. The CEO stated that the Respondent’s earlier letter to the Complainant of the 24th January, 2018 did not constitute an offer of employment nor had any such offer been made to the Complainant and the fact of this letter having been sent to the Complainant did not alter the Respondent’s position.

The CEO was questioned about the exchanges between the Respondent and Revenue and she stated that Revenue had not clarified the employment status of LTCWs or sought that PAYE should be applied to LTCWs. The Respondent stated that right up to its letter to Revenue of the 26th October 2018, it was seeking clarification from Revenue on the tax treatment of LTCWs. The Respondent also furnished copy of a letter dated 23rd November, 2018 in which it advised the Complainant that the Respondent had been formally requested by the DEASP to provide the following details of LTCWs – ie name, PPS No., details of any DEASP benefits and details of any leaving supports paid to LTCWs since 2017 and that the Respondent had complied with this. The CEO also referred to an appeal by another LTCW to the Scope Section (of the Department of Employment Affairs and Social Protection) which had allegedly determined that a contract of service did not apply – but this was under appeal.

It is the position of the Respondent that there was never an employment relationship between the Complainant and the Respondent, that the Complainant’s engagement with the Respondent was always on a voluntary basis and therefore the Complainant was not an employee. The Respondent stated that in order for the Complainant to bring her complaints she must come within the definition of employee. In this regard the Respondent cited the definition of employee from the Terms of Employment (Information) Acts [1994-2019]. The Respondent stated that the Complainant and the Respondent had not entered into a contract of employment, that the Complainant did not work under a contract of employment, that she was a volunteer LTCW who entered the Respondent’s community on a voluntary basis.

The Respondent cited the following in support of its position and provided copies:

-          Study on Volunteering in the EU Country Report Ireland

-          Minister for Agriculture v Barry [2009] 1 IR 21

-          McKayed V Forbidden City Ltd [2016] IEHC 722

-           

CA-00027861-001

The Respondent refuted this complaint on the basis that the Complainant was not and never had been an employee.

CA-00027861-002

The Respondent refuted this complaint on the basis that it was not a redundancy situation, that the Respondent was not operating an employment model and that the Complainant’s position of LTCW had come to an end.

CA-00027861-003

The Respondent refuted this complaint on the basis that the Complainant was not and never had been an employee. The Respondent also stated that the Complainant had not cited any reference period and nor had she written to the employer seeking a statement of hourly pay. The Respondent also stated that this complaint was out of time since the Complainant had been on suspension since 2017.

CA-00027861-004

Withdrawn at the adjudication hearing.

CA-00027861-006

The Respondent refuted this complaint on the basis that the Complainant was not and never had been an employee. The Respondent stated this complaint was out of time and that the Complainant was paid expenses on a needs basis only which was not comprehended by the Payment of Wages Act [1991-2019].

CA-00027861-008

Withdrawn at the adjudication hearing.

CA-00027861-009

Withdrawn at the adjudication hearing.

CA-00027861-010

The Respondent refuted this complaint on the basis that the Complainant was not and never had been an employee.

CA-00027861-012

The Respondent refuted this complaint on the basis that the Complainant was not and never had been an employee.

The Respondent raised a preliminary matter that the Complainant did not have locus standi to bring her complaints on the basis that she was not an employee. In order to determine this matter, it is necessary to consider various characteristics of the Complainant’s employment as against various tests which have been utilised by the courts. In Henry Denny & Sons (Ireland) Ltd. V. Minister for Social Welfare [1998] 1 IR 34, it was stated that: “Each case must be considered in the light of its particular facts and of the general principles which the courts have developed”. Similarly in Minister for Agriculture V. Barry [2009] I IR 215, it was held that there was not a “one size fits all” test for this purpose. The tests in question include consideration of the degree of control exercised over the worker, whether the person is integrated into the workplace and whether or not a mutuality of obligation existed in terms of the employer having been required to provide work for the employee and the corollary obligation on the employee to complete that work.

The parties have helpfully provided a number of cases in support of their respective positions. In this regard, I note that:

-          The Complainant cited the UK case of Market Investigations Ltd v Minister of Social Security [1969] QB 173, which stated that no exhaustive list of factors has been established for the purpose of determining employment status and that while the matter of control will have to be considered, it was not the sole determining factor. The Complainant also cited R (Payir) v Secretary of State for the Home Department [2006] ICR 188 where an au pair working in the UK was held to be an employee. The Complainant cited Melhuish v Redbridge Citizens Advice Bureau [2004] Lexis Citation 1171 on the basis that that case differed from her situation as she was paid remuneration and there was mutuality of obligation. Relying on Kirwan v Technical Engineering and Electrical Union [2005] ELR 177, the Complainant stated that the case was proposition for finding a worker to be an employee as the benefits received were “effectively emoluments”. On this basis the Complainant argued that the “WRC should be slow to find no contract of service exists by reason of the absence of a written contract of employment or a formal wage or the failure to deduct taxes at source”.

-          The Respondent has relied on the case of Minister for Agriculture v Barry [2009] 1 IR 21. This case travelled back and forth between the Employment Appeals Tribunal and the High Court. In particular the case highlighted the mutuality of obligation test as providing “an important filter” in determining the nature of a work relationship. The High Court also stated that the EAT had failed “to have regard to all possibilities in determining the nature of the work relationship between the parties” – in terms of confining the solution to a binary option as between a contract of and a contract for service. The Respondent also cited McKayed V Forbidden City Ltd [2016] IEHC 722 wherein the High Court stated that “the fact that work was given regularly for a period of time is not determinative of whether one party had a legal obligation to provide the other party with work”.

I have also considered the Code of Practice for Determining Employment or Self-Employment Status of Individuals which is published by the Irish Revenue Department. This Code sets out criteria to be considered in assessing whether an individual is an employee or is self employed.

In the present situation, I am satisfied that there are indications that the Complainant was an employee. In my view she was integrated into the workplace for some 30 years, she was described as a long term co-worker and from the evidence presented to me, I am satisfied there was control over the work she did. In this regard, the responsibility profile and job-description for the Person-in-Charge position which she occupied were clear and detailed. Further, the Complainant was obliged to comply with the Respondent’s extensive policies as already outlined. The Complainant was also subject to the Respondent’s disciplinary procedure which provided for dismissal – ie for a co-worker’s “Involvement with the Community to cease forthwith”. For the most part the same workplace policies applied to LTCWs and employees in the same manner – eg the Code of Conduct, the Lone Worker policy, the Social and Digital Media policy, the Policy on Training and Professional Development and the Guide to Recruitment and Selection of Volunteers, Employees, Co-workers and Local Volunteers. Where there are separately titled policies – eg Policies and Procedures for Dealing with Grievances of Co-workers, the Disciplinary Procedure and the Bullying and Harassment Procedure, the content of these policies in my view, mirror to a large degree what would be contained in any employee policy and what in fact is contained in the Respondent’s Employee Handbook.

As against that, there are a number of factors which do not indicate any employment relationship. In this regard, I note that the Complainant was not paid wages in the usual manner nor was she subject to PAYE tax. Whilst the Complainant has argued that the method of her remuneration was in the nature of wages and that like any employee, her expenses were her means of living, in my opinion it is difficult to reconcile a payment of expenses system based on the particular needs of the individual, with the concept of wages which are fixed and generally determined on an objective basis – eg dependent on a grade or position within a workplace. The criteria from Revenue’s Code of Practice in relation to wages refers to whether a worker “Receives a fixed hourly/weekly/monthly wage”. From the expenses budgets furnished, I also note that the items of expenditure were not specifically related to work – for example items of expenditure included holidays, car, medical, phone/internet/tv, personal care, clothing and education.

I have also considered that the Complainant did not receive payslips and that she was not a member of any pension scheme. Similarly, no evidence was presented that the Complainant’s leave arrangements were based on any objective criteria or that there was any alignment with statutory provisions. Nor was the Complainant a member of any sick leave scheme.

The Complainant was a long serving and dedicated coworker within the Respondent for many years. However, the evidence shows there was an absence of contractual documentation.  Having regard to this and the previous points, I am of the view that the Complainant’s working arrangement did not have the requisite mutuality of obligation necessary to establish an employee/employer relationship. In this regard, I agree with the assessment on mutuality set out by Ní Raifeartaigh J. in McKayed V Forbidden City Ltd [2016] IEHC 722 when she stated:

“…I am not convinced by the argument….that an obligation to provide work to the plaintiff arose from the fact that work had in fact been given to him on a regular basis for a particular period….If this approach were determinative of the issue, none of the previous authorities in which this issue has arisen could have reached any conclusion other than that the individuals in question were employees……as they had all carried out work on a regular basis for a period of time; but that is not how those cases were approached by the various courts which examined them. In other words, the fact that work was given regularly for a period of time is not determinative of whether one party had a legal obligation to provide the other party with work”.

The Complainant gave evidence that she was part of the transition group in 2018 in relation to the LTCW model of care and that she wished to remain as an employed person within the Respondent but was not offered a contract of employment. The Respondent explained why this occurred. The Complainant’s concern about obtaining a contract of employment from 2018 onwards was legitimate. However, in these circumstances, it seems to me that the Complainant must have or should have understood that her working arrangement with the Respondent before 2018, was not in the nature of a contractual employee/employer relationship. In this regard, I am persuaded by the Respondent’s argument that “….the Complainant was a volunteer co-worker/vocational volunteer who understood the structure and ethos of the respondent…..the complainant willingly and knowingly undertook the role of LTCW”. I have also considered that no evidence was presented to me by the Complainant that the matter of her employment status as an LTCW was an issue for her prior to the termination of her position in December, 2018.  

In the case of Chris Lavan V Liberty Insurance Ltd [UD 1575/2014], the Employment Appeals Tribunal traversed the law on employment status. In its conclusion, the EAT stated:

“Whether a worker is an employee or self-employed depends on a large number of factors. The Tribunal wishes to stress that the issue is not determined by adding up the number of factors pointing towards employment and comparing that result with the number of factors pointing towards self-employment. It is a matter of the overall effect which is not necessarily the same as the sum total of all individual details. Not all details are of equal weight or importance in any given situation…..When the detailed facts have been established the right approach is to stand back, and look at the picture as a whole.….If the evidence is evenly balanced, the intention of the parties may then decide the issue…”

Lastly, the Respondent had a number of communications with Revenue in relation to the tax liabilities of coworkers - as late as the 26th October 2018 – and the outcome of these may have been useful in assisting in the determination of the Complainant’s employment status. However, from my perspective, at the time of the adjudication hearing, the outcome of these inquiries was inconclusive.

Having considered all of these matters, on balance it is my view that the Complainant was not an employee of the Respondent and I decide accordingly. Therefore I do not have jurisdiction to hear/decide the various complaints.

CA-00027861-001

For the reasons outlined, this complaint is not well founded.

CA-00027861-002

For the reasons outlined, this complaint is not well founded.

CA-00027861-003

For the reasons outlined, this complaint is not well founded.

CA-00027861-004

Withdrawn at the adjudication hearing.

CA-00027861-006

For the reasons outlined, this complaint is not well founded.

CA-00027861-008

Withdrawn at the adjudication hearing.

CA-00027861-009

Withdrawn at the adjudication hearing.

CA-00027861-010

For the reasons outlined, this complaint is not well founded.

CA-00027861-012

For the reasons outlined, this complaint is not well founded.

Employment Status – Whether a contract of employment existed