Worker

Employer

Anonymised Parties

A Volunteer Director

A Company Limited by Guarantee

Representatives

  Self-Represented

 Mr Jack Sreenan BL instructed by Fitzgerald Legal and Advisory LLP

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00001156

08/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00001157

08/03/2023

The Complainant submitted disputes relating to an unfair dismissal and bullying procedures. The Respondent raised a preliminary point with regard to my jurisdiction in that the Complainant is not a worker for the purposes of the Industrial Relations Acts.

The Respondent submits that the Complainant was a volunteer director of the Respondent and a sub-licensee of a property. The Respondent submits that the Complainant was never an employee nor was it ever the intention of both the Respondent and the Complainant to enter into an employer-employee relationship.

The Complainant submits that by examination of the  nature of duties he carries out as a sub-licensee of a property, it can be construed that he is a worker.  The Worker accepted that he never signed a contract of employment nor was it his intention upon signing a  sub licence  with the Respondent, that he would become an employee.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.  I can only investigate a dispute under  the Industrial Relations Act 1946 which covers the definition of a “trade dispute” within the statutory meaning as set out under section 3, which states:

“the expression “trade dispute” means any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment, of any person and includes any such dispute or difference between employers and workers where the employment has ceased.”

Furthermore, in order for a dispute to be a trade dispute it must involve a “worker” as defined by section 23 of the Industrial Relations Act 1990:

“(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,

(b) a teacher in a secondary school,

(c) a teacher in a national school,

(ca) a teacher employed by an education and training board…”

I am satisfied in this case that there was never an employment relationship between the Complainant and the Respondent. The submissions before me from both parties 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 submissions I heard on the preliminary point in this dispute  did not suggest otherwise.

Definition of  Trade  dispute, Definition of Worker