ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference: ADJ-00039572 CA-OOO51141

Parties:

	Worker	Employer
Anonymised Parties	Volunteer Civil Defence	Local Authority

Representatives

Self

Amanda Kane LGMA

Dispute(s):

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 - 00000372	14/06/2022

Workplace Relations Commission Adjudication Officer: Janet Hughes

Date of Hearing: 10/02/2023

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute. The forgoing is the usual text det out by the WRC for the investigation of industrial relations disputes. A prerequisite of such investigations is that the claimant be a worker engaged or in some instances formerly in employment by the employer. For technical reasons the submission were not available to the AO or to each other prior to the hearing. However, as the text of the WRC complaint form completed by the claimant in this case used the term volunteer, this immediately raised a question for the undersigned as to the status of the claimant as a worker and consequently his right to have an investigation conducted under the Industrial Relations Act in the capacity of a worker. The LGMA on behalf of the Council had prepared a submission on this point which they read at the hearing. The claimant was given the opportunity to provide a written response. He also advised that another AO was faced with the same issue in an earlier hearing. In the circumstances, an undertaking was given to the parties that once the written submissions were all reviewed a decision of the status of the claimant to bring a complaint under the Industrial Relations Acts and the related jurisdiction of the WRC to hear the dispute under the same legislation would be prepared as a matter of priority.

The decision in this matter takes into account the submissions received by the undersigned including that of the claimant post hearing.

Background:

The matter referred to the WRC relates to dissatisfaction by the claimant (and a colleague member) of the civil defence in a named local authority. That dissatisfaction relates to the handling of a complaint made against another named person and related issues of dissatisfaction. As the jurisdiction issue took precedence, the detail of these issues was not explored at the hearing.

Summary of Employers Case on the matter of jurisdiction:

The claimant does not have standing to bring this case to the WRC and neither does the WRC have jurisdiction to investigate the dispute as his status does not comply with the definition of a ‘worker’ as set out in Section 23 of the Industrial Relations Act 1990:

“worker” means any person aged 15 years or more who has entered into or works under a contract with an employer”

The claimant in this instance is a volunteer with the Civil Defence. They referred to a previous decision of the Labour Court where that body concluded that it had no jurisdiction to hear the substance of the case as volunteers do not operate under either a contract of service or a contract for service in respect of the Civil Defence. LCR18371 refers.

Summary of Claimants Case on the subject of jurisdiction:

The claimant has along history of volunteering in public service. Issues with another named person arose in 2020 but he is dissatisfied with the outcome of a complaint he made at the time.

From the outset of his career in CD the roles and responsibilities which applied when on duty were reiterated time and time again and while in uniform volunteers were told that while on duty and in uniform, they were classified the same as employees of the Council and as such were required to adhere to all policies and procedures laid out by the Local Authority. Volunteers are covered to drive state vehicles by the state claims agency and no distinction is made between an employee and a volunteers for insurance purposes. As the civil defence is a state agency and a branch of the department of defence, he feels it is incumbent on him to seek resolution through state channels.

Conclusions:

My concern regarding the standing of the claimant under the Industrial Relations Act 1969/1990 arose from the text of his own complaint form where he wrote” I have been a volunteer with xxx for over ten years. He referred to the manual for volunteers and that xx have failed totally to me in their duty of care to me as a volunteer.

At the hearing he clarified that he does not receive any pay in relation to this activities as a volunteers save only for certain expenses.

There are several tests of the status or otherwise of a person as a worker. A central one is that of a payment whether that be in cash or in kind, for example living on a premises rent free might well be regarded as a form of payment but even so the commitment to certain attendance hours would generally be involved i.e., making themselves available to Local Authority for set routines at set times on a mandatory basis. This then could form the basis of a contractual relationship but not necessarily one of an employee/employer. Being obliged to follow the policies and procedures of any organisation for whom one is acting at a given time, does not convert the voluntary nature of that relationship into a contract of employment. Notwithstanding the claimants undoubted commitment as a volunteer, I am bound to take account of the previous opinion of the Labour Court and in any event, I find that the most basic elements of a worker employer relationship are not present in this case.

As I made clear at the hearing, the agreement of the Local Authority to enter into a dispute resolution process, knowing full well their position on his status, has served only to waste a great of the claimant’s time and energy.

In conclusion I find that the claimant is not a worker for the purposes of the Industrial Relations Acts and I therefore do not have jurisdiction to investigate the substance of the matter. Neither is it my role to advise the claimant as to how he can or should pursue his grievances.

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.

I find that the claimant is not a worker for the purposes of the Industrial Relations Acts 1969-1990 and as such I do not have jurisdiction to investigate the dispute.

Dated: 24/02/2023

Workplace Relations Commission Adjudication Officer: Janet Hughes

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