Complainant

Respondent

Parties

Robert  Lee

Sunday's Well Life Centre t/a Cork Life Centre (amended at the hearing)

Representatives

Unite the Union

Cara Jane Walsh BL instructed by Ronan Daly Jermyn

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00060821-002

04/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 9 of the Industrial Relations (Miscellaneous Provisions) Act 2004

CA-00060821-003

04/01/2024

The Complainant swore an affirmation at the outset of the hearing. Mr. Sam Lynch, a witness and former colleague of the Complainant, swore an affirmation.

Ms. Louise Opperman, Chair of the Respondent, gave evidence on affirmation, as did Ms. Karin Jaglan, Board Member. The correct name of the Respondent was addressed by letter dated 16 April 2024 by the Respondent and amended accordingly.

Submissions were received and exchanged between the parties.

CA-00060821-002

The Complainant gave evidence he was employed as a teacher and received a weekly payment of €1,384.

It was his evidence that he signed a contract in August 2023 but was not given any time to read it. He was told to sign it by the former Director. It was the Complainant’s evidence that he had worked with the Respondent since 2015 and being provided with a series of fixed term contracts.

The Complainant was cross examined by the Respondent on his contracts. He agreed he was initially employed by the Respondent and after a period funding was received from the Cork Education and Training Board (CETB).

The Complainant agreed that his salary was paid by the CETB. It was agreed that he accessed a CETB portal where his contract was located, certified sick leave was paid by CETB, and occupational assessments were carried out at the request of CETB. It was confirmed by the Complainant that he was not on the Respondent’s payroll. 

It was Mr Lynch’s evidence that part of his role was to issue the contracts of employment and he did so in March 2023.

During cross examination Mr Lynch was asked if he prepared a contract for the Complainant to which he confirmed he prepared the contracts, but it was for each employee to input their name and renumeration. It was agreed that the CETB were to pay the Complainant’s renumeration, but Mr Lynch described this was a local arrangement between the Complainant and Respondent.

Upon inquiry, no contract was provided in evidence at the hearing.

CA-00060821-003

It was the Complainant’s complaint that he was victimised in the handling of his grievance as a result of his membership of a trade union by the Respondent.

Following cross examination of the Complainant, an application was made on behalf of the Respondent that it was wholly evident that the correct employer was CETB and not the Respondent. It was submitted that the definition of an employer under the Terms of Employment (Information) Act, 1994 state that the body who pays the wages were deemed to be the employer and it was accepted by the Complainant that this body was CETB in evidence. In addition, it was accepted by the Complainant that CETB was the body who paid his sick leave payments. Consequently, the complaint must fail.

It was Ms Opperman’s evidence that the Respondent was funded by CETB, and the contract was a service agreement sent to the Complainant.

Ms Opperman accepted, during cross examination, that she had no day-to-day involvement in the running of the centre and no role in the preparation of the contracts.

A copy of a template contract was produced but she confirmed it was not the Complainant’s signed contract.

CA-00060821-003

The Respondent raised a preliminary point on jurisdiction pursuant to Section 8 of the 2004 Act.

CA-00060821-002

Section 1 of the Terms of Employment (Information) Act 1994  defines an employer as:-

“employer”, whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer;

The lack of a contract at the hearing, despite being referred to by the Complainant in his evidence and requested by me , was an evidential difficulty for the Complainant.

Aside from this it was accepted by the Complainant in his clear evidence that Cork ETB pay his wages, he submits his medical certificates to CETB and they in turn pay him sick pay not the Respondent, he is not an employee of the Respondent as defined by Section 1 of the Act.

Consequently, I find his complaint against the Respondent not well founded.

CA-00060821-003

The Industrial Relations (Miscellaneous Provisions) Act, 2004 defines a worker as provided for in Section 23 (1) of the Industrial Relations Act 1990 (as amended) as:

“23.—(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”

It was the Complainant’s complaint, albeit unsuccessful, under CA-00060821-002 that he was employed by the Respondent. It was his evidence that he was a teacher in construction studies, a secondary school subject. No contract was produced in evidence by the Complainant. Consequently, I am limited to the oral evidence that he is a secondary teacher and therefore, he does not fall within the definition of a worker for the purposes of the Industrial Relations Act 2004.

Consequently,  he has no locus standi in this complaint in the first instance.

The complaint is not well founded.

CA-00060821-002

I find the  complaint is not well founded.

CA-00060821-003

I find the complaint is not well founded.