FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : CAMPHILL COMMUNITIES OF IRELAND (REPRESENTED MR. STEPHEN O'SULLIVAN BL, INSTRUCTED BY BEALE & CO SOLICITORS) - AND - ELKE WILLIAMS (REPRESENTED BY MS. LAUREN TENNYSON BL, POE KIELY HOGAN LANIGAN SOLICITORS) DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No: 00021196. In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Ms Williams is referred to as the Complainant and Camphill Communities of Ireland are referred to as the Respondent. BACKGROUND: The Complainant joined the Respondent, a registered charity, in September 1994 and performed a variety of roles within the organisation. The nature of the Respondent’s organisation is that they provide support on a residential and non- residential basis to those with intellectual disabilities and other needs in a community setting. The Complainant’s role within the community was as a Long- Term Co-Worker (LTCW). The Complainant with her family lived within the community and their accommodation and reasonable needs were met by the community. The Complainant’s husband was also taken on as a LTCW. The ethos of the organisation is that the relationship to the community is based on mutual trust, a shared vision and inner commitment to the principles values and aims of the community. The Complainant was classified as an LTCW and she worked within the community structure. In extracts from the Respondent’s website provided by the Respondent to the Court, LTCW are described as “keen to take on major responsibilities in the home, work, administration, social and spiritual life of the community.” The extract goes on to say that “Co-workers do not draw a salary, but their reasonable needs are met by the community from its funds.” It notes that some LTCW will carry major responsibilities for the contractual relationships to placement and funding bodies and the statutory obligations that go with these. It identifies the type of roles that LTCW’s will carry out such as House Guardian, workshop leader, teacher, therapist administrator. In terms of responsibilities the website states that LTCWs will be responsible for the Resident’s daily welfare and safety arrangements, managing and supervising the domestic provisions and also liaising with the resident’s families, social workers and other agencies involved with the Resident’s welfare. It goes on to say that as an LTCW you are also bound to carry out specialist responsibilities in areas such as teaching, therapies, leading day activities, craft workshops, admissions work among other things. The website states that the levels and nature of responsibilities that a LTCW takes on usually requires a commitment of a minimum stay of two years. However, LTCW’s often stay on for five or more years. LTCW do not draw a salary but their reasonable needs, including discretionary provision for their needs in retirement are met by the community from its funds. The Complainant submits that she was an employee of the Respondent and that her employment was terminated by the Respondent on 31stDecember 2018. The Respondent submits that the Complainant was never an employee and that she left of her own volition on the 15thOctober 2018 when she and her family moved out of their community accommodation. The Complainant lodged her complaint with the WRC on 23rdApril 2019. The cognisable period as defined by the Act is 24thOctober 2018 to 23rdApril 2019. PRELIMINARY ISSUES: The Respondent submitted that there were a number of preliminary issues that the Court needed to consider, 1) there was no contractual arrangement between the parties and there was no intention to create legal relationships. 2) the Complainant was not at any time an employee of the Respondent, she provided her services on a voluntary basis and was not paid a salary, 3) there was no mutuality of obligation. 4) As the Complainant had left the community in October 2018 her complaints were out of time. The Court having reviewed the preliminary issues raised by the Respondent concluded that these issues could not be considered without hearing the case in full. The Court proceeded to hear the case in full. As dismissal was in dispute the burden of proof lies with the Complainant to show that a dismissal as defined by the Act took place SUMMARY OF COMPLAINANT’S SUBMISSION AND EVIDENCE: Mr O Sullivan BL on behalf of the Complainant submitted to the Court that her employment was terminated by the Respondent on the 31stDecember 2018. This was the final date for vacating the apartment that had been provided for the use of the Complainant and her family. December was also the last month that the Complainant received a monthly allowance of €1,000 in respect of meeting her needs. While the Complainant and her family had moved out in October 2018, they still had the keys of and access to the apartment up until the 31stDecember 2018. During her tenure with the Respondent the Complainant caried out many roles and at one time was a member of the Board of Directors which at the time she was on it was known as the Council. The Complainant does not accept that each community group was autonomous, they all fell under the control and direction of the Board of Directors. From about 2012 onwards the HSE as one of the main funding bodies raised a number of issues in respect of the Camphill model and required that more formalised structures be put in place. A number of new policies and procedures were introduced at national level and rolled out to the various communities. While the role of LTCW ceased to exist after the 31stDecember 2018, unlike most of her colleagues the Complainant was not offered an opportunity to transition to the new employee model. It was never clarified for the Complainant why she was not afforded that opportunity other than she was told that a decision had been made. While the Complainant did not receive a salary during her tenure, she did receive emoluments and or consideration in the form of accommodation being provided and all her needs including family holidays being paid for by the community in exchange for the work she caried out in the various roles assigned to her. It is the Complainant’s submission that her case can be distinguished from the case ofMelhuish v Redbridge Citizen Advice BureauUKEAT/0130/04/DM. In that case the Complainant only received reimbursement of expenses incurred and therefore it was held that as no consideration passed between the parties there was not a contractual arrangement. Mr O Sullivan BL submitted that in this case consideration in the nature of providing her accommodation and meeting her needs did pass from the Respondent to the Complainant. The Complainant was rostered to do various elements of her work during the week and was subject to performance review caried out by the National Safe-Guarding Officer who was a paid employee of the Respondent. The Complainant was also subject to a number of policies such as grievance and disciplinary procedures, these procedures clearly distinguish between volunteers and LTCW’s. It is the Complainant’s submission that the nature of the relationship between herself and the Respondent was in the nature of an employment relationship and that she was at all times working for the Respondent. In the application form that they all had to fill out as part of the transition process she clearly indicated that she wished to transition into the new model. However, she was never given that option and her employment was unilaterally terminated by the Respondent. The Complainant in her evidence to the Court stated that she became aware of a vacancy in Duff Carraig one of the Camphill communities in 1994. She submitted an application on behalf of herself and her family. The application process was through a written application to the management team. This was followed by an exchange of phone calls cumulating in the Complainant and her family being invited to attend for a two-week trial period. During that period, they were interviewed and had a meeting with the management team in Duff Carraig. Initially they were not successful, and the position was offered to a different family. They were at a later stage offered a position in Duff Carraig which they took up. Both herself and her husband were given positions within the community. In 2008 a new community was set up in Ballymoney and her family moved there. Initially her role was as a House Co-ordinator proving support to all the residents and the short- term co-workers. In return for fulfilling that role the community met all their needs including paying for holidays and putting their eldest son through college. Shortly after the new centre was set up in Ballymoney, role descriptions started to be used. In and around 2012 National templates in respect of various policies and procedures were drawn up nationally and circulated to the communities for implementation. These policies were drawn up by a subcommittee of the Board of Directors and then approved by the Board of Directors. These procedures were drawn up in advance of HIQA taking on a role in the sector. Some national policies existed prior to 2012 such as policies on safe- guarding vulnerable Adults. It was the Complainant’s evidence that there was also supervision and appraisal of the LTCW’s from about 2008 and while this was carried out initially by the Community team, from 2011/2012 onwards, it became more formalised. As a social care worker, the Complainant had to undergo supervision training and meet with her supervisor every six weeks. Appraisals were annual and both line managers and supervisors would attend the appraisal meetings. It was the Complainant’s evidence that the Board of Directors which in 2012 was referred to as the Council was her employer. There were two national employees who liaised between the Board of Directors and the community. The Board of Director initially consisted of representatives from all the communities. It was the Complainant’s evidence that she as an LTCW had for a period of time, been a member of the Board. The Chair of the Board was an external person, and the Company Secretary was the only paid member of the Board. The communities were required to report monthly to the Board of Directors and submit their financial plans for the future. In and around 2012 a national template was developed for reporting. All communities had to report in once a month in respect of their budget and the Finance group who were a sub-group of the Board of Directors, would give feedback. Yearly budgets were submitted in advance to the Finance Group who would report to the Board of Directors. It was the Complainant’s submission that from about 2017 she was aware that there was an engagement with Revenue about their status, but she was not involved in the discussions. Prior to 2017, it is the Complainant’s evidence that her role was Social Care Co-ordinator which involved being the day service co-ordinator for the community which had six residents and twelve, day attendees. She also had responsibility for admissions of short-term and long- term volunteers and for the residents and the day residents. From 2017 Ms Byrne was appointed as the Person in Charge (PIC) for Ballymoney, she was only there part-time but she took over the role of the Social Care Co-ordinator and also got involved with the admissions procedures. It is the Complainant’s evidence that these were all roles that she had carried out. It is the Complainant’s evidence that she was out on certified sick from 13thAugust 2018 until her employment was terminated. It is the Complainant’s evidence that from early December 2018 her picture was removed from the poster in the community setting out who was who. In mid-2018 she became aware of the proposals to change the model and to transition to an employee model as her husband was involved with the transition working group. The transition was going to mean a change to their living arrangements. Herself and her husband started looking for alternative accommodation for their family. In October 2018 they found a suitable house to rent and moved out of the community. However, they retained access to the community accommodation until 31stDecember 2018 and continued to receive an allowance from the community until that date. The transition document suggested that there would be options of either leaving and coming to a financial arrangement with the Respondent or being offered the opportunity to transition to become an employee. It is the Complainant’s evidence that she indicated in her transition form that her preference was to transition to become an employee. It was the Complainant’s evidence that she was never offered a role post transition and it was never explained to her why other LTCW were offered roles and she was not. The Complainant’s evidence is that the first she knew that she was not going to be offered a contract was on the 17thDecember 2018 when she was told by the CEO. She was not given any explanation as to why she was not being offered a contract. In the run up to the 17thDecember it is the Complainant’s evidence that she had been trying to find out what was happening, while she did miss two meetings with the transition team, she was only given very short notice of the meetings. It was the Complainant’s evidence that she had co-operated with ongoing change, but she had a fractious relationship with the PIC. The Complainant stated that from May 2018 onwards her monthly budget had been reduced from €1500 to €1000 and that was the amount she received monthly up to the end of December 2018. The Complainant in support of her contention that she was an employee gave evidence of having been through a disciplinary procedure in 2017 where she was given a verbal warning. The Complainant went on to say that in April 2018 there was a complaint from one of the resident’s relatives about her, and she was suspended but asked to keep herself available for work. The complaint was not upheld so the Complainant returned to work. It is the Complainant’s evidence that after the 31stDecember 2018 when her employment with the Respondent came to an end, the Complainant found alternative employment in January 2019. However, with the onset of Covid 19 in March 2020 the employment closed. It is the Complainant’s evidence that the Respondent was funded by the HSE and received a capitation grant for each resident or day resident. Initially they had separate credit card for personnel expenses but that was changed, and the personnel credit cards were removed. When the Complainant moved out of the community house, she asked for support with their housing costs, but this was not forthcoming. It was the Complainants evidence that as part of the transition process, she had written out job descriptions for the roles she had carried out. Time sheets only started in 2018 and the purpose of the timesheets was to assist them understand the amount of time that was needed for different tasks. It was the Complainant’s evidence that there was national oversight of the various community budgets, and the expectation was that they should not have any losses. When the Complainant joined the Respondent, she did not pool personal assets. It was her understanding that it was not the norm to pool in Ireland. Tax arrangement in UK came into existence in 2000 as far as she is aware. It was put to the Complainant in cross examination by Ms Tennyson BL for the Respondent that her evidence had been that she and her family had applied in 1994 and that families do not enter into employment contracts. It was put to the Complainant that she had been invited by another community Duff Carraig which had been set up by LTCW’s. and that there had been no contract or intentions to create a contract, nothing in writing, no arrangement in relation to salary other than that she was informed that the needs of her family would be met. The Complainant confirmed that she knew it was a need’s met system that was being offered and that she had accepted. From 1994 to 2008 the budget had been organised by the communities. Duff Carraig community had asked her to set up a new community which they did in 2008 in Ballymoney. When they moved to Ballymoney they had their own flat at the top of the house where the residents lived. The management team in Ballymoney was the Complainant, her husband, another Co-worker and possibly one or two local employees. The Complainant in response to a question from Ms Tennyson BL confirmed that each community had their own payroll and employer number and between 2008 and 2012 they could employ social care supports. It was the Complaints evidence that she had responsibility for admissions she would make suggestions to the management group who if they approved them would then send them to the community who would ultimately decide. If the community did not agree it would go back to the management committee. It was put to the Complainant that her evidence had been that Ms Finn the National Safeguarding Manager had been her line manager. However, Ms Finn only started with the organisation in 2015. The Complainant stated that from 2013 HIQA had required some level of supervision and that in 2016 she got a specific line manager but prior to that different people had done her supervision. Ms Tennyson BL put it to the Complainant that LTCW’s could leave at any time of their own volition, that they were not required to give notice and that there were no repercussions, if they did walk out. The Complainant did not accept that and submitted that you could not walk out without notice. If you were considering leaving you were expected to give notice at your annual appraisal where you would be asked what your plan for the next twelve months was. It was put to the Complainant that in respect of the timetable that she had mentioned this timetable was organised by the community and was not rostered work as such. It was put to the Complainant that each community negotiated locally with the HSE and that the money received went straight into the community and was used to meet the need of the community. The Complainant accepted that and stated that after HIQA became involved in 2013, they had to employ more people in the Communities. She also stated that governance issues arose in respect of some of the communities, issues also arose about the composition of the Board of Directors and at that point Co-workers were taken off the board. The Complainant accepted that in 2017 there were discussions about the viability of the model and that engagement around transition to a new model took place in 2018. It was the Complainant’s evidence that there was a transition group made up of the CEO, CFO and LTCW’s. The Complainant confirmed that she was aware that there was a possibility that the role of LTCW’s could cease to exist. A transition document was circulated in September 2018 but there was no decision at that time in respect of who would be kept on or the criteria for same. It was put to the Complainant that the budget process she had referenced in her evidence was not available to employees and that in fact the Complainant had not done any work since April 2018 because she was on sick leave. It was the Complainant’s evidence that this was not true she went on sick leave in August 2018 and there was plenty evidence of her being in work and available for work up to that point in time. The Complainant confirmed that she had been invited to a meeting in November 2018, but she did not attend, her husband attended. It was her evidence she only received an email about that meeting the night before. It was put to the Complainant that at a meeting with Ms Sheehan she had indicated that she did not see a future in Camphill because of ongoing conflict. It is the Complainant’s evidence that she recalls making comment about the difficulties she was experiencing. The Complainant accepted that there were huge changes. In respect of the meeting scheduled for the 5 December 2018, there had been confusion over the date and the meeting of the 11thDecember 2018 she only got notification the night before and already had a previous commitment. At the meeting on the 17thDecember 2018, she was accompanied by a friend, she raised issues in relating to her finances and to the fact that her picture had been removed. The Complainant confirmed that at that meeting she was informed that she was not being offered a job and that they had some discussions in respect of a leaving package. The figure €39,500 was arrived at in the course of the meeting. The settlement deed was emailed to her on the 17thDecember 2018. There were further negotiations which resulted in an outcome that was not approved by the Board. The Complainant stated that in April 2019 she was given an opportunity to reconsider the offer of €39,500 but she declined that offer. In response to a question from the Court the Complainant stated that she could not decide, not to do any duties on a given day. If she was taking holidays, she had to provide cover and normally it would be provided by someone from one of the other communities. Mr O Sullivan BL opened the case ofMoyne Veterinary Clinic and Natasha NowackiEDA198 to the Court in support of the Complainant’s contention that she was an employee. It was his submission that the Complainant like Ms Nowacki in the above referenced case was a subordinate in the relationship and was very dependent on the Respondent. The Complainant derived her accommodation, and all means to meet all her needs from the Respondent. Mr O’ Sullivan also drew the Court’s attention to the decision inJohn Barry & Ors and Minister for Agriculture[2008] IEHC 216 and referenced the requirement for mutuality of obligation and the reference in that case to the fact that mutuality must be shown to exist as without it there cannot be a contract of service. It was Mr O Sullivan’s submission that the Complainant had given a 24/7 commitment to the Respondent, she was obliged in order to have her needs met as set out above to provide her labour and to carry out the required tasks in respect of the Respondent’s clients. The Complainant in advance of taking her holidays had to get them approved by the community and had to provide cover for when she was gone. The Complainant had a list of tasks that she had to carry out in respect of the residents and the service users. In respect of the obligation on the Employer to provide work to the employee the Respondent’s through its servants and agents entered into service level agreement with the HSE to provide residential and other services. The arrangement entered into at the commencement of the relationship was that the Respondent had residents in their communities that required care and that in return for providing care to the residents in the community she was living in the Complainant’s needs as set out above would be met. It was Mr O Sullivan BL submission that this was the mutuality of obligation and it continued until the 31stDecember 2018. Mr O Sullivan BL submitted that this case differs from theBarrycase referenced above and the case ofMonnie McKayed and Forbidden city t/a Translation.ie[2016] IEHC 722 as the Complainant was not on a panel whereby, she may be offered work. In this case the service being provided is a 24/7 service and the work arose from the nature of the service. In the caseof Preston v President of the Methodist Conference[2013] 4 AII ER 477 the UK Supreme Court noted that the Complainant had a vocation in that case and had entered into a Deed of Union and standing orders whereby she committed to submit herself to the discipline of church life. The Court found that therefore the Complainant was not an employee. Mr O Sullivan submitted that the Methodist Church case facts are peculiar to itself and relevant to the case to hand. Mr O’ Sullivan BL submitted that contracts can be expressed or implied, oral or in writing and the fact that there was no written contract does not mean that a contract does not exist., The evidence before the Court is that the Complainant is fully integrated into Camphill community and submitted that the position she went into evolved over time particularly post 2012, with changes to operational responsibilities. It was his submission that even if it wasn’t an employment contract at the beginning it evolved into an employment contact over time. It was his submission that the contract was either implied or oral but most likely implied. It is generally accepted that legislation is there for the protection of the worker because of the imbalance of power. In this case the imbalance was marked by the fact that her home was provided through the organisation and all her needs were to be met by the Respondent, which made her vulnerable and dependant on the Respondent. SUMMARY OF RESPONDENT’S SUBMISSION AND EVIDENCE: Ms Tennyson BL submitted on behalf of the Respondent that the Complainant is not an employee. Ms Tennyson BL set out for the Court the background to Camphill Communities and their operating model. It was her submission that LTCW are not viewed or treated as employees. It is a way of life that they chose as a desirable alternative to employment, and it is not for everyone. This model is distinct from the employment model in that LTCW shares the house with the clients and are there 24/7. In this case the Complainant had a self-contained apartment within the house where the residents lived. It was submitted that there were a number of reasons for transitioning out of the LTCW model in Ireland even though it continues to operate in the U.K. In 2013 HIQA brought in a suite of regulations which required that a number of formal procedures be put in place by providers such as Camphill who were providing care services. One such procedure was to have a Trust in Care policy. This policy applied to employees and volunteers. These procedures were obligatory under HIQA regulations. Ms Tennyson BL directed the Court to a study on volunteering which was in the appendices to her submission and submitted that LTCW were volunteering in that they undertook the work of their own free will on a voluntary basis without payment. Ms Tennyson BL submitted that the Complainant was not an employee and therefore does not have locus standi to take a case under the Act and that it is clear from theBarrycase that mutuality of obligation must exist. It is Ms Tennyson’s submission that no mutuality of obligation existed in this relationship. The LTCW model continues to exist in the UK and the Inland Revenue there does not consider them employees. While the Respondent has engaged with Revenue in Ireland in relation to their status, to-date no agreement has been reached. It is Ms Tennyson BL submission that this model of working is not covered by Employment law. A fundamental element of a contractual relationship is the intention to create legal relationships, this did not exist in this relationship. The Respondent further submitted that even if the Court were to find that the Complainant was an employee her complaint is out of time as the relationship ended on the 15thOctober 2018 when she moved out of the community house. In the alternative Ms Tennyson BL submitted that the decision by the Respondent to change the operating model and the fact that the other model is no longer in existence meets the requirement of other substantial grounds as set out in the act and therefore it was not an unfair dismissal. Mr Paul Henry Special Project lead with the Respondent gave evidence. It was his evidence that he started as an employee of the Respondent in January 2016 but prior to that he had a paid role as a Farm Manager in day services in a community in Monaghan. Mr Henry set out his understanding of the background to and operating of Camphill communities. It was his evidence that Camphill communities set up its first Irish community in Duff Carraig in 1972. The community have LTCW’s and short-term Co-Workers. It was Mr Henry’s evidence that to the best of his recollection the first paid employee was in Duff Carraig in 1992. The funding the Respondent received would have come from the HSE or its predecessor. This funding was used to cover the housing and expenses of the LTCW’s as well as the needs of the residents. LTCW were people, who had made a long-term commitment. If a LTCW went on holiday’s or was absent the Community would make arrangements for cover. Generally, the core group within the community would make the decisions. Each community would organise the priorities within the community and there would be a management structure in place that would decide who would do what on any particular day. It was Mr Henry’s evidence that a LTCW gave a life commitment. A short-term Co-worker gave a commitment of one to three years. It was his evidence from about 2016 onwards they had to take on more employees as it was getting harder to get people to come in as LTCW and make a long- term commitment. It is Mr Henry’s evidence that originally, he was a part-time regional manager but from about December 2017 he was carrying out the role full time. It is his understanding that at that time Camphill was being funded as a national entity. The Camphill Board of Directors realised that in order to meet the regulations each community would have to have a PIC and they set about putting that structure in place. They also created regional roles to provide support to the communities. In was Mr Henry’s evidence that in his regional role he would have visited Ballymoney community where the Complainant was based. At the time he visited the management group consisted of the Complainant, her husband and three LTCW’s. In respect of supervision each staff member had regular supervision it is a requirement for anybody who is employed or engaged in providing care to residents in this sector to have supervision. The Trust in care policies apply to everyone. The Respondent had grievance and disciplinary procedures for employees and then a separate policy for volunteers and LTCW’s. In respect of the difference between timetables and rosters it was his evidence that timetables are built around the people they support and the supports they need. Rosters show who is on duty. Mr Henry did not accept that there were job descriptions it was his evidence that there was no requirement for the Complainant to develop a job description for LTCW’s. In September 2018 in terms of the transition they did look at the purpose behind the various roles and what tasks were being carried out. It was Mr Henry’s evidence that he had worked in management type roles for 25 years and had a lot of experience. It was his evidence in the Respondent’s operation national governance was a challenge that they were trying to get to grips with. In response to a question in cross examination from Mr O Sullivan BL, Mr Henry confirmed that the Complainant had expressed a willingness to embrace the change that was happening. He confirmed that he had seen timetables for July 2017 and that the timetables would indicate that LTCW’s were doing the work. Mr Henry stated that it was his understanding that the HSE and or its predecessor provided money under a service agreement for Camphill to provide a suite of services. Mr Henry confirmed that employees reported to LTCW and that LTCW managed employees. Mr Henry accepted that some of the titles and job description carried out by LTCW’s such as House Co-ordinator existed after the transition. It was put to Mr Henry that the reason given to the Complainant for her dismissal was financial difficulties but in fact more people were employed after the transition. Mr Henry accepted that more people were employed during and after the transition. It was his evidence that he was not involved in the decision not to offer the Complainant a contract. Mr Henry accepted that there was a cross-over between the work of employees and LTCW. It was his evidence that the main difference between a paid employee and LTCW is that an employee gets a wage for doing the work whereas the LTCW gets their needs met. It was put to Mr Henry by Mr O Sullivan BL that LTCW’s were provided with things that you would normally buy with money. Mr Henry accepted that. Mr Henry also accepted that a person could have a vocation and still be paid a wage. Mr Henry was asked if LTCW’s could disappear for a few weeks. It was his evidence that LTCW cannot make the decision not to do the work on any given day, there would need to be a genuine reason and they would have to arrange cover. It was Mr Henry’s evidence that if they did not provide cover there could be consequences. The next witness for the Respondent was Ms Anne Sheehan CEO. Ms Sheehan informed the Court that she became CEO in 2018 prior to that she had worked for the HSE in the disability sector. It was Ms Sheehan’s evidence that she was familiar with the model before she joined the Respondent in September 2018. Ms Sheehan stated that she could see difficulties in respect of the provision of care in a voluntary LTCW model. From her perspective when she joined the Respondent there were significant financial and governance issues in terms of poor financial and governance oversight by the Board of Directors. The decision to end the LTCW model was made by the Board of Directors before she commenced working for the Respondent. It was Ms Sheehan evidence that the transition group comprised of two Board Members, the CEO, the HR manager and three LTCW one of whom moved into an employee role. A process was put in place to allow for the transition out of a life sharing post into an employee post and a number of staff transitioned in this way. While it predated her employment with the Respondent it was Ms Sheehan’s understanding that significant issues about lack of control over the communities, over-spending by the communities, along with the fact that the HSE who paid per resident were looking for a centralised location for making the payments in the interest of good governance all fed into the decision to change the model. It was Ms Sheehan’s evidence that the Board of Directors started the process of reform in 2017/2018. It was Ms Sheehan’s evidence that her first formal engagement with the Complainant was on the 26thOctober 2018 when she attended a meeting with the Complainant and her husband in relation to their financial support. At that stage they had moved out of the community housing ahead of the transition process. The Board of Directors had at that stage decided to remove the individual credit cards. The discussions were in respect of the quantum of financial support and how it could be provided for them in circumstances where the credit cards had been withdrawn. It was Ms Sheehan’s evidence that at that meeting the Complainant mentioned difficult and fractured relationships and that she did not see a future in Ballymoney. In respect of the meeting in November the email set out that there were two issues to be discussed 1) community issues and 2) transitional arrangements. The Complainant did not attend the meeting around her transitional needs. The next meeting was a separate meeting with the Complainant’s husband where they came to an arrangement with him. It is Ms Sheehan’s evidence that she does not accept that the Complainant did not know about the meeting on the 5thDecember 2018. A further meeting was arranged for the 11thDecember 2018 and the Complainant was not available for that either. A meeting was held on the 17thDecember which the Complainant attended, where she was advised at that stage that she was not being offered a contract. At that stage the Respondent was still reviewing the transitional costs, a settlement figure was agreed at the meeting and the Complainant was given time to review same with her solicitor. Even though the Complainant turned down the offer it was made available to her again in April 2019, but she still declined same. It was Ms Sheehan’s evidence that anyone who was offered the opportunity to stay on was given a contract of employment. It was Ms Sheehan’s evidence that out of about 35 Co Workers, 26 transferred on to employment contracts. In respect of the status of LTCW from a Revenue perspective they still have no decision from Revenue but have been making provision in their budgets for the possibility that Revenue might seek PAYE and PRSI payments in respect of LTCW’s. It was Ms Sheehan’s submission that England still have LTCW’s, and the Inland Revenue do not classify them as employees. In cross examination by Mr O Sullivan BL, Ms Sheehan confirmed that it was her belief that there had been no significant change until she took up her position in in September 2018. Ms Sheehan accepted that there had been some national posts in place prior to that but it was her evidence that there were still significant issues. In respect of the December meeting, it was Ms Sheehan’s evidence that the decision not to offer the Complainant a contract was made by herself as CEO, the CFO and the COO. It was her evidence that she could not remember when they made decision but that the Complainant was deemed not suitable for the posts available. It was Ms Sheehan’s evidence that she did not have any confidence in the Complainant and that this was based on what she had been told by one of her colleagues. Ms Sheehan accepted that as she herself was only new to the organisation at the time she did not have any reason not to have confidence in the Complainant and that she had not investigated the issues that her colleagued had told her about or sought a second opinion in respect of them. Ms Sheehan accepted in cross examination that the Complainants relationship with the Respondent formally ended on the 31stDecember 2018, and she was no longer supported by the organisation after that date. Ms Tennyson BL on behalf of the Respondent submitted that the Complainant did not deem herself to be an employee when she joined the Respondent in 1994. In the High Court case ofBarry, it is clearly set out that mutuality of obligation must be established. While it is accepted that the factual scenario in this case is different than in theBarrycase mutuality of obligation must still be present. In this case there is no obligation on Camphill to provide work. The community spotted a need and off their own initiative set up Ballymoney. HSE funds were used to develop the community. The relationship between the Respondent and the Complainant does not fall within the scope of an employment relationship. The EAT in previous cases has held that relationship might have some features that are indicative but if there is no mutuality between the parties the Court has to go no further. TheMcKayedcase again stress mutuality of obligation. Ms Tennyson BL submitted that mutuality of obligation cannot exist in the nature of this relationship because of the nature of the work. Other considerations that the Court can take account of are that the operations in the UK are not deemed to be employees in respect of their tax status. They are considered because of the unique set up not to be employees. Ms Tennyson BL informed the Court that another LTCW had sought a decision in respect of their status from a Social Welfare Deciding officer who found that they were not in insurable employment because of the unique circumstances of the relationship. That decision is under appeal. Ms Tennyson BL submitted that the relationship was not covered by employment legislation. TheMoyne Veterinarycase was under the Employment Equality Act which was more extensive legislation. In the case to hand the parties have not entered into a contract of employment. The English Supreme Court 2013 in theMethodistcase states there must be intention to create legal relations. In the case before this Court benefits were given in exchange for work the Complainant entered into an arrangement as an alternative to being employed. Ms Tennyson BL submitted that employees have duties in their contract. In this case neither party’s intended to create legal relations. The Court should look at the manner in which the Complainant was engaged and issues like control and integration. Looking at the control test the Complainant had significant autonomy. In respect of the integration test the decisions were made collectively by the communities. Looking at the enterprise test there was no contract and no invoices. Ms Tennyson submitted that these factors all supported the Respondent’s submission that the Complainant was not an employee. THE LAW: The Unfair Dismissals Act 1977, as amended states, in relevant part, as follows: 1. Definitions “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and, in relation to redress for a dismissal under this Act, includes, in the case of the death of the employee concerned at any time following the dismissal, his personal representative. Section 6 of the Unfair Dismissals Act 1977, as amended, states,
ISSUES FOR THE COURT TO CONSIDER: The first issue the Court needs to consider is whether or not a contract existed between the parties. If the Court determines that no contact existed, the matters will end there. If the Court determines that a contract did exist, the Court then needs to consider the nature of such a contract. If the Court determines that the contract was a contract of employment, it then needs to consider if the complaint was received within the time limits set out in the legislation. If the Court concludes the complaint was received in time the Court, then needs to consider if in the Circumstances of this case the decision to dismiss was fair. DISCUSSION: Both parties agree that no written contact was entered into in September 1994 when the Complainant joined the Respondent. However, it is the Complainant’s submission that a contract either oral or implied existed between the parties. The Respondent does not accept that, and submits that the requisite elements of offer, acceptance, consideration and intention to create legal relations required to establish a contract do not exist. The Court having reviewed the evidence in respect of how the Complainant came to take up a position notes that after being initially turned down, the Complainant was offered a position which she accepted, the agreed terms were that in return for her labour the Complainant would be provided with accommodation and her needs would be met by the Respondent. The Court finds that offer and acceptance occurred and that consideration in the nature of income passed from the Respondent to the Complainant in return for her labour. In respect of the intention to create legal intentions neither party submitted that they had in September 1994 clearly stated either by words or actions that they did or not intend to create legal relations therefore the Courts task is to ascertain their intentions. InEmo Oil Ltd v Sun Alliance and London Insurance plc[2009] IESC 2 the Supreme Court noted with approval the views expressed by Laffoy J inUPM Kymmene Corporation v BWG Ltd (Unreported, High Court, Laffoy J, 11 June 1999 when she stated:
The next issue for the Court to consider is the nature of the contract. The Respondent submits that the Complainant was doing voluntary work and therefore not covered by Employment Law. While the Complainant could be described as doing voluntary work as in, she worked for a charitable organisation, the question for the court is, was she a volunteer. The Court notes that the Civil Law (Miscellaneous) Act 2011 defines volunteer as follows:
The Respondent submitted that as the Complainant did not receive a wage, she could not be considered to be an employee. The Payment of Wages Act 1991(Consolidated)defines wages in section 1 of the Act as follows: 1. Interpretation
In this section—
Having satisfied itself that there was a contractual relationship between the parties and that the Complainant was in receipt of an income from the Respondent. The Court went on to consider if the contract was a contract of employment. In considering what the nature of the contractual arrangement was the Court notes that both parties agree that mutuality of obligation must exist for their to have been a contract of employment and even if it does exist mutuality of obligation on its own will not be sufficient to establish an employment contract. InBarry and the Minister for Agriculturethe Court at para 47 states: “The requirement of mutuality of obligation is the requirement that there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer”the court goes on to say“when one party to a work relationship contends that that relationship amounts to a contract of service, it is appropriate that the court or tribunal seized of the issue should in the first instance examine the relationship in question to determine if mutuality of obligation is a feature of it”. While the case to hand the relationship had some unusual elements such as being remunerated through a needs met system, and the need met system extending to the family and not just the LTCW that in and off itself cannot in the Court’s view be sufficient to say there is not mutuality of obligation as contested for by the Respondent. The service provided by the Respondent was to provide residential and day care services for people with disabilities. The service differed to the services provided in theBarryandMacKayedcases in that the service requirements were in the main regular and predictable carried out at the same location week in week out. The contract entered into was that the Complainant would do the work that was required to be done in return for her accommodation and needs met. In order for the Complainant to get her needs met (which the Respondent had undertaken to do) the Respondent had to provide the Complainant with work. In the nature of this case once the mutuality of obligation was established at the commencement of the contract it continued without break or interference. The Respondent in their submission submitted that the Complainant could have moved into the accommodation and had her needs met without giving of her labour. However, this was contradicted by the evidence of Mr Henry that an LTCW cannot make the decision not to go to work on any given day and that if they did there would be consequences. The Court notes that Mr Henry also stated in his evidence that the LTCW were interchangeable with paid employees and that the main difference between LCTW and paid employees was that employees got a wage. It was not put to the Court that the Respondent did not accept that in respect of paid employees there was not a mutuality of obligation. If in line with Nr Henry’s evidence the only difference in terms of the roles that they carried out was the nature of the payment the received, the Court struggles to see how mutuality of obligation existed for the group that got paid a wage but did not exist for the group that got paid in kind. The Court having studied the caselaw opened to it by the parties, carefully read the submissions and listened to the evidence of the witnesses finds that having examined the relationship between the Respondent and the Complainant that there was a mutuality of obligation. Having determined that there was a mutuality of obligation the Court went on to look at other elements of the relationship. In respect of what is generally referred to as the integration test it is the Complainant’s submission that she was fully integrated into the Respondent’s organisation. It is the Respondent’s submission that while the Complainant was integrated into the Ballymoney community she was not an integral part or integrated into Camphill Communities. The Court notes the uncontested evidence of the Complainant that she served for a time on the Board of Directors of Camphill and reported at various times to employees of Camphill at national or regional level. The Complainants evidence in terms of reporting to employees of Camphill is supported by the evidence of Mr O Shea who confirmed that he held a regional position with the Respondent, and, in that capacity, he had visited the community where the Complainant was based. The Respondent submitted that the Complainant was self- directed and not under their control and that if any control existed this was exercised by the community within which the Complainant lived and operated. The Complainant submitted that she was subordinate to the Board of Directors, she had to attend regular supervision, was subject to the Respondent’s policies and procedures and the Respondent approved or amended her applications for finance. It was the Complainant’s submission that when she wanted to take leave the cover had to be approved by the community. The Complainant was not in a position to move someone into her apartment and have them cover her duties unless they had been approved by the community. Mr Henry on behalf of the Respondent in his evidence accepted that any cover for leave that the Complainant sought to put in place had to be approved by the community. The Court having considered the different elements set out above and the relevant caselaw opened to the Court by the parties finds that the requisite elements of mutuality of obligation, integration and control existed to establish a contract of employment. While the Respondent touched on the enterprise test the Court finds that there was no evidence before it to demonstrate that the Complainant was in business for herself or could profit by managing the work more efficiently. Having concluded that the Complainant was an employee the next issue for the Court to consider is the time limits issue raised by the Respondent. The CEO Ms Sheehan in her evidence to the Court confirmed that the Complainant finished with the Respondent on the 31stDecember 2018 and received remuneration up to that date. On that basis the Court finds that the complaint is on time. The Complainant has established that a dismissal did take place in that her employment was terminated on the 31stDecember 2018. It is for the Respondent to establish that in all the circumstances of this case the dismissal was fair. The Respondent submits that there were substantial grounds justifying the dismissal as provided for under the section 6 of the Act citing the substantial transformation to a new model of work. The Respondent in their evidence accepted that a large number of LTCW’s were transitioned to the role of paid employee and that additional staff were recruited during and after the transitional period. In those circumstances it is not clear to the Court why the Complainant could not have transitioned to the role of paid employee. The evidence before the Court was that the Complainant had clearly indicated that was her preferred option. The Complainant in her evidence submitted that she was never given an explanation as to why other staff were allowed to transition and she was not. This was confirmed by Ms Sheehan in her evidence where she confirmed that she was one of three people involved in the decision not to offer the Complainant a contract going forward. Ms Sheehan did not dispute that the Complainant was informed of that decision without explanation as to why. It was Ms Sheehan’s evidence that the reason the Complainant was not offered a contract going forward was because of trust issues. It was her evidence that she and one of the other people involved in making the decision not to offer the Complainant a post were new to the organisation but were informed of the trust issue by the third member of the group. Ms Sheehan who was the CEO at the time, accepted in her evidence that she had no trust issue with the Complainant and that she had not investigated the issue raised by the third party or given the Complainant an opportunity to address these alleged issues. Ms Sheehan also confirmed that there was no appeal available in respect of that decision. The Court having considered the submissions of the parties and the oral evidence given determines that terminating the Complainant’s employment based on unsubstantiated allegations form a third party involved in the decision to terminate comes nowhere near the standard required to establish that the Complainant was afforded fair procedure. S.I. 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures at paragraph 4. 6 states
While the Complainant in this case was accompanied by a friend the allegations of mistrust and the basis for same were not put to her and she was not afforded an opportunity to respond to those allegations. On that basis the Court determines that the Complainant was not afforded fair procedures or an opportunity to defend herself therefore the dismissal was unfair. The Court having heard the parties on the three forms of redress available under the Act considers that compensation is the appropriate form of redress in this case. The Court notes that the Complainant has made efforts to mitigate her loss and has obtained some part-time employment. The nature of the remuneration in this case presents some difficulties in determining the quantum of compensation. The Court based on the submissions it received in respect of the calculation of earnings for 2018 put forward by the Complainant, which was not contested in the course of hearing, and taking account of her attempts to mitigate her loss and her earnings to the date of the hearing, determines that the compensation of €60,640 is the appropriate amount in the circumstances of this case. DETERMINATION: The Court determines that the dismissal was unfair and that compensation of €60,640 is to be paid to the Complainant. The decision of the Adjudication Officer is varied accordingly. The Court so Determines.
NOTE Enquiries concerning this Determination should be addressed to Shane Lyons, Court Secretary. |
