Worker

Employer

Anonymised Parties

Worker

Charity

Representatives

self

Fiona Egan Peninsula

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00034847-001

25/02/2020

The dispute relates to the worker arguing that he was an employee of a charity and that in turn he was unfairly let go for being involved in an altercation with another participant without fair process. The Charity argues that the worker was not an employee rather a participant on one of their programmes and that the decision to cease the worker’s participation on the programme was made for clinical reasons. The worker’s participation or employment on the programme commenced on the 1st July 2019 and ended on 21st February 2020 after receiving two week notice. The worker attends at the Charity for 19.5 hours per week and receives Gross and Net pay of €225.50 per week.

The worker feels very aggrieved about his dismissal from a recovery programme run by the Charity, arising from an altercation near his home, involving another participant on the same programme that was violent; however, he states that he was blameless, no prosecution relating to this incident has been brought against him. He feels that one wrong committed against him, allegedly relating to alleged criminal assault and threats of damage to his property has led to another wrong and a gross injustice by being summarily dismissed by the Charity. He was dismissed by association, he had every legal right to protect his property and person, allegedly arising from a series of violent events not of his making, where he had no choice but to defend himself. The incident occurred on a Friday. The following Monday he received a call from the Charity informing him not to come to work and to attend on Thursday for a work meeting at 3.30pm. At that meeting he alleges that he was summarily dismissed and that the hearing was rushed and afforded him no fair opportunity to give his side of the story. He was denied fair process. He has no recollection of being offered an appeal of the decision to terminate his contract or that his case worker who accompanied him to the hearing was there to support and represent him at the meeting.

The worker is not an employee and is attending as a participant on a support programme. The decision to end his participation on the programme arose from a clinical decision relating to the participant’s welfare and to the welfare of others on the programme. The programme that the worker participated on was structured to include group therapy. A clinical decision was made that the Charity hadn’t the resources to ensure that the worker and others would be safe having regard to what they understood to have occurred on the previous Friday. The worker was given an opportunity to appeal that decision which he didn’t choose to use. Another client who was also involved in the same incident also was informed that their participation on the programme would cease. They appealed that initial clinical decision and their appeal was successful and returned to the programme. The services of the Charity are still available to the participant and the Charity would like him to again re-engage with them to help with appropriate support. The Charity’s purpose is to assist clients and support recovery not to punish clients. The decision that arose from the altercation was not about apportioning blame rather making decisions about the right clinical course of action having regard to the common good.

A preliminary matter arose at the hearing raised by the Charity concerning the participant’s contract. They argued that the contract was not an employee contract and therefore was not covered by the relevant Act. The Industrial Relations Act [1990] as amended defines worker as follows:

“ worker”.

23.— (1) In the Industrial Relations Acts, 1946 to 1976, and this Part, “ worker” means a member of the Garda Síochána referred to in subsection (1A) and any person aged 15 years or more who has entered into or works under or, where the employment has ceased, worked 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,

The participant’s contract uses the term employed in the first contract sentence:

“Anonymised is employed as CE Participant on the Charity anonymised CLG work placement, training and education program from 01/07/2019 to 26/06/2020 and is subject to funding.”

The contract has separate headings as follows:

·       Work Tasks/Duties

·       Sick Leave

·       Annual Leave

·       Compassionate Leave

·       Pay

·       Maternity leave

·       Health and Safety

·       Dress Code

·       Racism/Harassment

·       Grievance Procedure

·       Disciplinary Procedure

Under Work Tasks/Duties the contract details the following:

·       Attend your work placement on time everyday for the specified hours

·       Co-operate with the aims and objectives of the work placement

·       Work in accordance with the guidelines of the work placement programme

·       Participate in the work assigned by the manager

·       Carry out your workload to the best of your ability

·       Take part in regular appraisals with both CE Supervisor and work placement manager

·       Participate fully; attend on time any group work, 1:1 support, counselling or any other agreed activities which aim to support you to maintain…. (anonymised)

·       In the Interests of supporting your recovery you will be requested to give consent to [anonymised charity] to share limited information with relevant professionals. You can refuse this.

It would appear from the documentation presented that the participant was on a Community Employment scheme.

The payslips for the participant show that the Charity is the employer detailing PRSI employer deductions.

It is also clear that the purpose of the programme is also therapeutic and combines counselling support, training, education along with work placement with a sponsoring organisation.

In addition, the Charity’s complaint procedure provided to the participant at section 3.2.1 of that policy states:

3.2.1 Duration of Work Period

The contract for a participant starting at the beginning of the claim contract will be for 52 weeks. A participant contract commencing during the project claim period will be for the remaining number of weeks left on the current claim. A participant may be re-engaged for subsequent periods, where approval has been authorised by DEASP.

Participants (and Supervisors) are excluded from the provisions of Section 9 of the Protection of Employees (Fixed-Term Work) Act 2003 (as amended) as they are “employees with a contract of employment which has been concluded within the framework of a specific public our publicly-supported training, integration or vocational training programme” under Section 2 of this Act. This means that CE contracts for participants or Supervisors cannot be of indefinite duration. The contracts must be for a fixed duration and renewed annually.

And at section 3.2.2. of the same policy provided by the Charity states:

3.2.2 Protection of Employees (Part-Time Work) Act, 2001

The above Act covers all part-time workers including those on Community Employment. A regular part-time employee is one who has been in the continuous service of an employer for at least 13 weeks.

The Act applies the same rights and entitlements to part-time employees as apply to full-time employees and will ensure that such entitlements are applied to part-time employees on a pro-rata basis. The Act states that a part-time employee cannot, in respect of their remuneration and conditions of employment, be treated in a less than favourable than a comparable full-time employee.

It is clear based on the participant’s contract and the detailing of the core elements of that employment contract relating to hours of work, the rate of pay, annual leave, work duties that the trade dispute is being referred by a worker as detailed by section 23(1) of the Industrial Relations Act 1990. This is further corroborated by the Charity’s own complaint procedure as referenced above at sections 3.2.1 and 3.3.2 as participants on the Community Employment Programme are clearly referred to as employees and how employment rights legislation specifically relating to Section 9 of the Protection of Employees (Fixed-Term Work) Act 2003 and the Protection of Employees (Part-Time Work) Act, 2001 applies to them. The payslips of the participant are also corroborative of an employment contract. Therefore, I have concluded that the participant on the Charity’s community employment programme is a worker as detailed at section 23(1) of the 1990 Industrial Relations Act and that the respondent is the employer (and that the employing legal entity is not the state). While the matter is covered by the relevant Industrial Relations Acts, referral of a dispute is subject to the well established precedent that prior to referral to the WRC, internal dispute resolution procedures are exhausted.

There are unique features to this dispute. It is true that the participant is a worker as defined by the Act; however, he is also participating on a recovery programme. At the hearing it is evident that the Charity has the interest’s of the worker very much to the fore. It also appears to me that at the   review meeting whether it is classed as a disciplinary meeting or clinical assessment about continuing on the programme, the process appears rushed and moved with undue haste.

However, the worker was offered the right to appeal. He says he was unaware of that communication. This means that the internal dispute resolution procedure has not been exhausted prior to referral to the WRC.

The worker believes that he was unfairly treated based on the circumstances around the altercation that gave rise to a disciplinary hearing and the absence of fair procedures afforded him at that hearing. The Charity runs the community employment programme as a core element of a recovery programme that includes work placement, training, education and counselling. It acted based on the fact that a clinical assessment was conducted after the worker and another client of the Charity were involved in an altercation. The other client appealed their expulsion from the community employment programme and that appeal was successful. The Charity stated that the worker was also given a right to appeal and he didn’t exercise that right and they also stated that they are willing to provide support to him. It is with some reservation that I must refer the matter back to the Charity based on the well- established precedent that a referral only is accepted when the internal procedures have been exhausted. This will further delay the dispute resolution process due to the Pandemic and the many constraints that now must curtail meetings. However, having regard to Public Health Guidelines I would strongly recommend that this meeting be held soon and if necessary that it is facilitated through a remote hearing to ensure that the appeal is completed over the coming weeks. If the dispute remains unresolved after that appeal it then can be referred back for a hearing of the dispute to the WRC.