Complainant

Respondent

Parties

Noel  Casserly

Green Skibbereen CLG

Representatives

  Self- Represented

 Mr Jack Sreenan BL instructed by Georgina O’Halloran Fitzgerald LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00055482-003

02/06/2023

The Complainant set up the Respondent company with another director, Mr Jim O’Donnell  and the Company was incorporated as a CLG on 21 February 2020. The aims of the company were to promote awareness and understanding  of climate change in Skibbereen and West Cork, as well as provide a forum for local community input on sustainable development.  Other members from the local community came on board as directors. In July 2021 the Respondent entered into a five-year licence agreement with the Missionaries of the Sacred Heart Educational Trust to occupy Myross Wood House to develop a Centre for Climate Action and Sustainability. The Complainant and his family occupied a portion of the house from July 2021 and the Complainant signed a formal sub-licence agreement to cover occupancy on 11 February 2022 with the Respondent. The intention of the Respondent was to develop an ‘Airbnb’ business to fund the Respondent’s goals.

 The Complainant  submits that he was penalised by the Respondent company when he uncovered  concerns about corporate governance and financial matters.  This penalisation consisted of his removal from the board of directors and the issuing of an eviction letter from a property he held as sub-licensee.

The Respondent denies any penalisation and cites the removal of the Complainant  from the board of directors as a result of his improper withdrawals from the bank account to pay creditors without any appropriate authority of the board.

Preliminary Issues - Respondent Argument:

Out of Time:

 The Respondent submitted that the complaint of penalisation which  was received by the Workplace Relations Commission on 2 June 2023 was out of  time by nature of the fact that the Respondent had voted to remove the Complainant as a director on 17 October 2022. The Respondent contended that the complaint was therefore not within 26 weeks of the alleged contravention. However, I was satisfied that the act of the issuing of a letter of eviction on 05 December 2022  from a property held under sub-licence by the Complainant,  to be a  valid complaint for investigation within the statutory time limit . 

Complainant not an Employee:

The Respondent submits that the Complainant was never an employee at the material time and therefore does not come under the scope of the Protected Disclosures 2014.  The Respondent submits that the Complainant was one of six unpaid voluntary directors of a “not for profit” CLG, with no contract of employment, either express or implied. The sub-licence for property was exhibited by the Respondent and the Chairperson of the Board, Ms Trish Lavelle in evidence stated that there was never an intention that this was to be a  contract of employment with the Complainant.

Preliminary Issue - Complainant Argument:

The Complainant asserts that he should be recognised as a de facto employee because the duties outlined in the sub-licence agreement with the Respondent indicate  the attributes of an employment relationship. However, in evidence, the Complainant accepted that there was no express contract of employment and acknowledged  that in his original submissions to the WRC he described himself as a “volunteer director”.

The Complainant gave evidence at the hearing under affirmation. The Complainant raised concerns about unpaid bills and the financial governance of the company at board meetings, but his questions went unanswered. Matters came to ahead when a substantial portion of a deposit, that was properly payable to some Ghanaian visitors who ultimately could not make the trip to Myross Wood house in the summer of 2022 due to visa problems, was not paid. The Ghanaians had  paid full fees of €16,000 and the Complainant submitted  that they were entitled to a 75% refund on the sum. The Complainant stated that the monies were retained by the Respondent, to be paid back in stages instead, and he believes that this decision was morally and ethically wrong and added to his concerns about potential reckless trading. The Complainant went ahead and made the refund to the Ghanaians.

At an EGM on 17 October the other directors voted to remove him from the board. On 5 December 2022 he received an email in the name of the remaining board members with notice of eviction of himself and his family from their home at Myross Wood House. He still remains in residence at the time of the hearing.

He stated he had disposed of the family home before taking up residence at Myross and that the actions of the Respondent in seeking to evict them has had a detrimental effect on both him and  his family’s wellbeing.  

The Complainant accepted in cross-examination  that he was company secretary and that there was an opportunity for him to contact the relevant corporate enforcement authorities with his governance concerns, but he  chose  not to do so.

Mr Jim O’Donnell gave evidence in support of the Complainant under affirmation. He said he had to resign for personal reasons in September 2021. He expressed his concerns about governance at the Respondent company, and particularly the fact that they relied upon the casting vote of the chairperson on very important decisions which  he believed should be arrived at by consensus, in line with the organisational  that the Respondent purported to uphold.

Ms Trish Lavelle, chairperson of the Respondent company gave evidence under affirmation. Regarding the Ghanaian payment, she said that a decision of the board was taken to ask the Complainant to contact the person responsible for organising the trip and to request that they might accept repayment of the deposit in instalments. Instead, and without the authority of the board, the Complainant went ahead  and repaid the sum of money. The Directors considered this to be a serious breach of trust and a breach of the financial policy of the Respondent. Three directors submitted a resolution to remove the Complainant from the board at an EGM of 17 October 2022. The Complainant did not attend the EGM but sent in a written submission.

The witness gave evidence that the decision to issue an eviction notice within the 6 months requisite period according to the agreed sub-licence was because he was not carrying out tasks that were assigned to him under the agreement, despite these matters having been brought to his attention on a number of occasions.  In cross-examination the witness could not give further details of times and dates of tasks not being carried out by the Complainant.

 Is the Complainant  covered by the scope of the Protected Disclosures Act 2014 (“the Act”)?

The Act seeks to safeguard a broad range of workers including employees, contractors, and agency workers from being subject to detriment for having made a protected disclosure. The scope of the Act was extended by amendment from 01 January 2023  to cover volunteers, unpaid trainees, board members, shareholders, members of administrative, management or supervisory bodies and job applicants. However, the uncontested evidence in this case was that the final act of penalisation was 5 December 2022. There being no retrospective  effect, I am satisfied that the relevant Act that applies in this case is the unamended version that was current at the material time. The Respondent submits that the Complainant is not a worker whilst the Complainant argues that the nature of his duties under the property sub-licence can be constructed to show a contract of employment.

Section 5 of the Act provides:

(1)   For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18 , a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6 , 7 , 8 , 9 or 10 .

Section 2 of the Act defines worker as an individual who:-

(a) is an employee,

(b) entered into or works or worked under any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertook to do or perform (whether personally or otherwise) any work or services for another party to the contract for the purposes of that party’s business,

(c) works or worked for a person in circumstances in which—

(i) the individual is introduced or supplied to do the work by a third person, and

(ii) the terms on which the individual is engaged to do the work are or were in practice substantially determined not by the individual but by the person for whom the individual works or worked, by the third person or by both of them,

or

(d) is or was provided with work experience pursuant to a training course or programme or with training for employment (or with both) otherwise than—

(i) under a contract of employment, or

(ii) by an educational establishment on a course provided by the establishment and includes an individual who is deemed to be a worker by virtue of subsection (2) (b) and any reference to a worker being employed or to employment shall be construed accordingly.

The Complainant gave evidence that he did not agree a contract of employment with the Respondent and acknowledged that he set himself out as a volunteer in his original papers to the WRC. Ms. Trish Lavelle, for the Respondent,  likewise, gave uncontested evidence that the sub-licence agreement was never meant to be an employment contract, neither expressed or implied. The Complainant, however, contends that the maintenance and other duties attached to the sub-licence can be read to show the duties of an employee. The point at issue therefore is if  the  proprietary agreement can be interpreted  to reflect a retrospective  contact of employment. I am satisfied that while the sub-licence as exhibited grants certain rights to the Complainant, including the use of a portion of Myross Wood House and the use of utilities, it does not inherently establish an employee-employer relationship. Maintenance duties, and other obligations outlined in the agreement are typically related to the effective and responsible use of the licenced property. Misinterpreting this agreement would lead to obvious unintended legal consequences. Significantly, the evidence before me was that there was never an intention from either party to create an employment relationship from the outset. There is a clear distinction between a proprietary sub-licence and an employment contract, and the evidence I heard  in this case clearly did not suggest otherwise.  I conclude, therefore that the sub-licence, as agreed, did not create an employer-employee relationship. I find that the Complainant is not a worker as defined under the Act. 

I find in favour of the Respondent on the preliminary  issue of the Complainant not being a worker, as defined under the Protected Disclosures Act 2014, therefore, I do not have jurisdiction to adjudicate on  the complaint. 

Protected Disclosures Act 2014, No Jurisdiction, Employment Status.