Complainant

Respondent

Parties

Liam  Kelly

Agriculture No. 1 Branch of Forsa Ag No.1 Branch

Representatives

Timothy J C O'Keeffe & Co Solicitors

Andy Pike National Secretary

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00035720-001

16/04/2020

The Complainant was employed as branch secretary from 26th October 2013 until 18th October 2019.

The Complainants appointment as Branch Secretary of Agriculture no. 1 Branch was confirmed at the Annual Delegate Meeting on 19th October 2013 in line with Branch rules. A new Branch Secretary was selected and confirmed on 18th October 2019 or shortly afterwards. Branch rules as well as fair procedures were not adhered to regarding the Complainant’s dismissal.

The Complainant says Branch 5 rule 5.4 (d) relates to the Branch Secretary and provides “where the motion is adopted the Branch Secretary’s term of office shall run until such time a motion of no confidence in the person as Branch Secretary is properly proposed and adopted by a 2/3 majority at a Delegate Meeting of the Branch.” He says a motion of no confidence was never properly proposed and adopted by a 2/3 majority at a Delegate Meeting.

On 17th February 2017 a vote of no confidence in the Complainant took place and was passed at a Branch meeting, however, the Complainant outlined that such a Motion has no impact on his tenure.  The Complainant says Branch rule 5.4 may have been changed at the ADM 2018 with a Branch Motion included on the agenda removing the requirement for a secretary to be adopted at a delegate meeting instead of being selected by the Branch. The Complainant was replaced by a Branch Secretary in October 2019.

The Respondent says the correct Respondent is Forsa Trade Union and the person named as Respondent is the Chairperson of a branch and is not an employer. The Agriculture No. 1 Branch is part of the national trade union structure. The claim is misconceived as the Agriculture No. 1 Branch is not an employer, and the Forsa Trade Union has never employed the Complainant in any capacity.

The Complainant was elected to a position as Branch Secretary for the Agriculture No. 1 Branch. The Complainant continued to be employed and remunerated by the Department of Agriculture, Fisheries and Marine as a civil servant. No branch has the authority to employ staff. The Respondent says the Complainant ceased to be a Branch Secretary in 2016 following a vote of no confidence by the Branch Committee, which was endorsed by successive Annual General Meetings.

The claim is misconceived as the Complainant was never an employee of Forsa Trade Union, no valid contract of employment was in place, no salary or other payments were made to the Complainant while employed as Branch Secretary, the alleged dismissal took place in 2016 and the claim is out of time.

I have heard and considered the submissions and evidence of the parties regarding the complaint.

The complaint is disputed by the Respondent in a number of respects, that the complaint is statute-barred, the election of the Complainant as Branch Secretary does not amount to a contract of employment as the Complainant is a volunteer and he remains employed by the Department of Agriculture, Fisheries and Marine, and no payment has been received by the Complainant in relation to the role.

The Complainant has submitted a document from Impact setting out details of the Branch Secretary Agriculture No. 1 Branch which states the Branch Secretary is an honorary officer of the Branch who is seconded from the Department of Agriculture and Food to carry out the role of Branch Secretary on a full-time basis. A non-pensionable and taxable honorarium is payable to the Branch Secretary. Civil Service rates and conditions will apply to authorised travel. The Branch Secretary will continue to be paid his normal salary. No assurances are given to the seconded Officer regarding work location on return to the Department.

A letter from the Department of Agriculture Food and the Marine dated 7th November 2014 to Impact shows the Department refused an extension of the secondment of the Complainant to Impact as the issues relating to the Agriculture No 1 Branch were largely complete. It states the Complainant is required to return to his role with the Department. The Department will allow up to two days per week for the Complainant to conclude residual issues.

The Complainant has submitted a letter dated 16th December 2016 addressed to union members, stating he was instructed by the Union to report to the Department of Agriculture and Food following his removal from payroll and stating he had no intention of walking away from the role.

The Complainant was requested to resign from the role of Branch Secretary in September 2016. A Motion of no confidence in the Complainant as Branch Secretary was passed at a Branch meeting on 17th February 2017. The Complainant did not accept the motion had impact on his tenure.

Further emails show the Complainant seeking payment of some claims to the Treasurer of the Union outstanding since 2016.

The Unfair Dismissals Act 1973-2015 defines “dismissal”, in relation to an employee, as—

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

The Complainant is an employee of the Department of Agriculture, Fisheries and the Marine. He was seconded to a post in the Respondent from 2013 until 2016. The Complainant returned to his position in the Department in 2016. The position of Branch Secretary for the Agriculture no. 1 Branch with the Respondent is a full-time honorary position for a full-time secondee of the Department of Agriculture, Fisheries and the Marine. The Complainant returned to his employment with the Department of Agriculture, Fisheries and the Marine in 2016 when his secondment with the Respondent concluded so there is no dismissal for the purposes of the Unfair Dismissals Act 1977.

I find the Complainant was not dismissed unfairly.

The Complainant was not dismissed unfairly.

Honorary appointment, secondment