Complainant

Respondent

Parties

John  Clark

Camphill Communities Of Ireland

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

Michael Lanigan POE KIELY HOGAN LANIGAN

Sarah Conroy Beale & Company

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-00028651-001

24/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00028651-002

24/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00028651-003

24/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00028651-004

24/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00028651-006

24/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00028651-008

24/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00028651-009

24/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00028651-010

24/05/2019

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

CA-00028651-012

24/05/2019

The Respondent is a registered charity and it outlined its operations in the centre in which the Complainant worked with respect to the provision of residential accommodation, support, assistance and learning opportunities for children and adults with intellectual disabilities.  

The Complainant stated that up until December 2018 the Respondent’s staff was made up of long term care workers/LTCW, short term care workers/STCW, persons described as employees and persons described as volunteers. The Complainant stated there were approximately 450 staff who fell into those categories across the Respondent’s operations. The Complainant described himself as an LTCW having commenced with the Respondent in around 1977. The Complainant maintained that notwithstanding this description a de facto employment relationship existed and he cited various factors in support of his position in this regard including:

-          That the Respondent’s services were funded and monitored by the Department of Health and the HSE;

-          That there was a formality to the LTCW relationship beyond casual and voluntary including the requirement to comply with the Respondent’s policies – such as Disciplinary, Grievance Procedures, Codes of Conduct, Bullying and Harassment and Social and Media policies;

-          That his activities were line managed;

-          That in correspondence  with Revenue between 2012 and 2018, the Respondent accepted that LTCWs received remuneration which was taxable;

-          That whilst no direct monthly payments were made to the Complainant’s bank account and no tax deduction at source, the benefits he received constituted remuneration which could be reasonably estimated at €45K/year – these included accommodation, insurance, electricity, heat, living expenses including for food, holidays, clothes and entertainment, use of a credit card with a monthly limit of €6k and use of a vehicle;

-          That he had no other sources of income and whilst working for the Respondent he could not seek other work;

-          That although the Respondent never offered the Complainant formal employment nor specified his terms and conditions and notwithstanding that he did not understand at the time that his engagement with the Respondent was an employee/employer relationship, “the label attached by the parties or the views of the parties [was] of limited or no relevance to the legal issue of whether the engagement had constituted employment”.  In this regard, the Complainant submitted that notwithstanding views he expressed in 2018 that he did not consider he was in a contractual employment relationship, he was de facto an employee.

The Respondent stated that its ethos was that of a life sharing model where individuals – such as the Complainant - came and resided in the communities on a voluntary basis. The Respondent cited various studies in connection with volunteering including the Government’s White Paper “Supporting Voluntary Activity” published in 2000 which defined volunteering as:

“…..the commitment of time and energy, for the benefit of society, local communities, individuals outside the immediate family, the environment or other causes. Voluntary activities are undertaken of a person’s own free will, without payment (except for the reimbursement of out-of-pocket expenses)”

The Respondent outlined the Complainant’s role in the community/centre in terms of the provision of care and learning opportunities to the service users. The Respondent stated that decisions in the centre were made collectively, that each community was autonomous and that the Complainant was part of the decision making process and was not directed as to how he carried out his work. The Respondent stated that the Complainant was provided with accommodation, was reimbursed any expenses he incurred, had access to a credit card but was not paid any wages. The Respondent stated that the Complainant willingly and knowingly entered the LTCW arrangement in its centre in or around 1980 and that this model came to an end on 31 December 2018 due to various regulatory requirements. Notwithstanding, the Respondent stated that the Complainant refused to sign or accept a leaving settlement payment. The Respondent maintained that the Complainant always operated as a volunteer, that his role was not governed by any contract specifically not a contract of employment, that he had no legal entitlement to any payment or benefit in kind and that he was never an employee. Accordingly, the Respondent submitted that I did not have jurisdiction to deal with his complaints.

Both parties cited case law in support of their respective positions. In addition, the Respondent cited a similar case which had been considered by an Appeals Officer of the Department of Employment Affairs & Social Protection (DEASP) and the position with regard to its LTCWs in the UK. In relation to its communications with Revenue, the Respondent stated that Revenue had yet to issue a decision on the tax status of LTWCs and it cited its letter to Revenue of 20 December 2013.

I advised the parties that I would hear the complaints and reserve my position on the preliminary matter of the Complainant’s employment status pending issue of my decision.

In the course of the adjudication hearing the Complainant withdrew the following complaints:

·       CA-00028651-003

·       CA-00028651-004

·       CA-00028651-006

·       CA-00028651-008

·       CA-00028651-009

·       CA-00028651-010

The Complainant stated that he commenced in the Respondent’s centre in or around 1980 and remained attached to that centre until 2018. He outlined his work/role in the Respondent’s centre including as a music therapist, in the area of physiotherapy, active involvement, construction activities and care work. The Complainant stated that he lived in the centre with his chosen family and worked diligently with the users of the service – sometimes up to 72 hours/week. He stated that he was totally committed to his role and the activities he was involved with. He outlined various investigations he was subjected to in or around 2017 which found he had no case to answer.

The Complainant stated that various issues related to the Respondent’s governance arrangements arose from 2015. This he stated resulted in a decision on 6 June 2017 that the running of the centre at which he worked was being transferred to the HSE and that the LTCW model was being phased out in favour of an employed staff. In September 2018 the Brothers of Charity took over the management of the centre.

The Complainant explained that in around 2017 a transition group was established to consider the practicalities for the workers of this change in governance. The Complainant stated that representations were made that LTCWs would be taken on as employees and failing that would be given assistance in relation to leaving the Respondent – ie a retirement/exit package. In this regard, the Complainant cited various meetings convened at the time, reports and correspondences including a transition document which he completed in November 2018 wherein he stated:

“I do not wish to be made redundant…… my attendance is without prejudice to all rights I am entitled to as a matter of law and statute, I have never been employed by [Respondent]”

The Complainant stated that at a meeting with the Respondent on 27 November 2018 he suggested he be given the post of national cultural officer but as this post was not offered to him he treated the situation as a termination of his engagement. The Complainant stated that he was not offered an employment position prior to December 2018 but that instead in or about May 2019, he was offered an option as a volunteer. The Respondent terminated the Complainant’s status as an LTCW on 31 December 2018. The Complainant stated that of the 41 LTCWs, 24 transitioned to full employment whilst 17 did not and only six - including the Complainant - did not accept the severance terms offered. The Complainant also made arrangements in relation to his accommodation. The Complainant stated that whilst he secured the non-contributory pension in 2018 he still wanted to continue in his LTCW role as he wanted an active retirement.

Under cross examination, the Complainant accepted that he never received a contract of employment, that he never sought one, that it was not his understanding that he was entering a contractual relationship and that unlike others he saw himself as a “voluntary co-worker” and didn’t see himself as being employed by the Respondent. He stated that he expected there would be no cessation of his LTCW role, that he wanted to continue in that role which he thought  “went on till death”. He accepted he had no fixed work hours nor was there any objective measure of the hours he worked – that the hours were based on necessity and the needs of the users. He accepted that when he commenced working in the Respondent he was aware of the ethos and of the concept of the life sharing model operated by the Respondent. He stated that he was also aware that the LTCW role was unwaged and was aware that a needs met payments system applied. He accepted that the needs met expenses/payment system was not related to how much work he did or to how much hours he worked and that it was not subject to tax. The Complainant stated that he did not receive any payslips and there was no sick leave or pension scheme. In relation to taking holidays, the Complainant accepted under cross examination that leave was not based any statutory entitlement or on hours worked and was taken having regard to the leave arrangements of the other LTCWs. He also accepted that decisions were taken and/or approved by the centre’s local committee.

In relation to his statement on the transition documentation that he was not interested in formal employment, the Complainant stated this answer was contingent on him being catered for in one of the Respondent’s communities. He stated that whilst he knew the LTCW model was coming to an end in 2018 the detail of what would happen going forward was not apparent to him at the time. It was put to him that he could have applied to the Respondent’s trust for financial support as a consequence of the transition and he accepted this. He stated that his average/year living expenses would have been approximately €15K. It was put to the Complainant that in May 2019 he was offered a short term voluntary agreement and whilst he didn’t sign this as he didn’t consider it appropriate, he accepted that he did not take issue with it at the time.  He stated that he considered he was treated unfairly.

·       CA-00028651-001 – The Complainant stated that his employment was unilaterally terminated in December 2018 and that he was seeking two years compensation for loss of earnings. Under cross examination, the Complainant stated that he had not applied for any paid employment or sought alternative work since the LTWC model ended in 2018. He also stated that he was concerned that paid work could negatively impact his pension on which he was completely dependent. He stated that as he had no tax or social insurance record it would be difficult for him earn higher than what he was receiving in pension.

·       CA-00028651-002 – In the alternative to unfair dismissal, the Complainant sought redundancy payment based on his total service with the Respondent from 1977 – 2018. In this regard, the Complainant stated that he “was forced into retirement”. The Complainant submitted that his role as a music tutor and the other work he performed ceased in 2018.

·       CA-00028651-012 – The Complainant sought four weeks compensation for failure to supply him with terms and conditions of employment.  

The Respondent outlined its dealings with the Complainant and the other staff in 2018 in relation to the LTWC transition process. In this regard the Respondent cited the following written statement made by the Complainant on 27 November 2018 which indicated that the Complainant never regarded himself as an employee, that he did not “have the requisite intention to create legal relations to enter into a contract of employment” and that  post December 2018 he did not wish to transition into a role that was subject to an employment contract:

“NOT INTERESTED IN FORMAL EMPLOYMENT. RATHER GO ON AS SEMI RETIRED AND VOLUNTEERING…..[and] I HAVE NEVER BEEN EMPLOYED…”

The Respondent stated that after the LTCW arrangement came to an end on 31 December 2018, the Complainant – by letter of 13 May 2019 – was offered a volunteer agreement and an LTCW transition plan which he did not accept.

The Respondent’s Special Projects Lead (SPL) gave evidence and was cross examined. He stated he commenced working for the Respondent in January 2016. The SPL explained the history of the Respondent’s services in Ireland and the voluntary ethos of its operational model. He stated that persons with longer term commitments – over three years – generally were regarded as LTWCs and that the admin staff were generally employees. He stated that he regarded LTWCs as stakeholders in the Respondent’s service, that each LTWC worked from their own skill/interest base, that there was no standard set roles or working hours, that they were not tied to a fixed hour – eg 40 hour working week and that there was no set distinction between work and home life as it was a shared live in model of operation as distinct from an employer/employee model. The SPL stated that each individual’s reasonable living expenses was personal and did not relate to their hours of service/work. The SPL stated there were no payslips issued, that there was no tax or social insurance deductions/payments, that there was no pension or sick leave scheme nor any provision for overtime or any requirement for notice if leaving the Respondent.

The SPL stated that local committees included LTWCs such as the Complainant which were autonomous and made decisions for the community including on budgetary matters. Each community he stated had a Person in Charge/PIC who was a member of the local committee. He stated that LTWCs were also represented on the Respondent’s national council. The SPL stated that LTWCs had no formal reporting arrangements.

The SPL explained how the Respondent’s policies and procedures were developed and he stated there was “some slight differentiation” in the policies for employees and LTWCs. He stated that procedures were needed for dealing with matters such as grievances.

Under cross examination the SPL accepted that rosters of LTWCs were drawn up to meet the needs of the Respondent’s service and that LTWCs were rostered alongside employed staff. It was put to the SPL that in many cases – pre January 2019 - the roles of LTWCs and employed staff were interchangeable – which he did not accept. The SPL accepted that a job description for a PIC had been drawn up.

The Respondent’s former Chief Executive Officer (FCEO) gave evidence and was cross examined. She outlined that significant issues had arisen for the Respondent in relation to governance, financial challenges and regulatory requirements and the changes which were necessitated and implemented as a result. She stated that the development of policies from 2014 was a significant step in improving management and that LTWCs were fully involved in this process.

The FCEO outlined various correspondence and meetings in relation to the transition process which she  stated was fractious and difficult albeit that the Respondent dealt with the matter fairly and in a transparent manner. She stated that the Respondent was required by regulation to ensure that workers had contracts of agreement and role descriptions and that there was also a need for more centralised management and financial control. The FCEO also gave evidence in relation to a trust fund established to provide long term support for LTWCs. In relation to the transition process, the FCEO stated that the Respondent continued to financially support LTWCs with accommodation and expenses though the Complainant did not agree to any payments at the time.

The FCEO stated that the Complainant remained on for some time carrying out caretaking work but that his LTWC financial arrangements/payments ceased from December 2018. She stated that the Complainant did not see himself as an employee, that he wished to continue as an LTCW and not an employee. She stated that she met with the Complainant in December 2018 and May 2019 and offered him a volunteer agreement but this proposal was not accepted. The FCEO stated that the Complainant’s expectations were unrealistic. The FCEO stated that some staff signed volunteer agreements and others were offered employment contracts. The FCEO stated that she had not done any calculations in relations to what monies the Complainant received prior to 2018 – she stated any such information would have been held locally – though unlikely on an individual basis. She stated that the local committee of which the Complainant was a member, handled the credit cards and were responsible for payment of the living expenses – including accommodation, electricity, heat, medical, running of a car. However, the FCEO disputed that the Complainant’s notional wages could have equated to €45k and she stated that if the Complainant had transitioned to an employed role he would have been aligned with a tutor’s salary – ie consideration of 30 hours/week @ €15/hour which would have yielded an annual salary of approximately €23,400.

Under cross examination, the FCEO stated that no specific employment role was offered to the Complainant prior to December 2018 as the Complainant had stated in transition documentation that he did not wish to be employed.  She stated that the proposal re the Complainant seeking the post of national cultural officer most likely arose at the meeting in May 2019. The FCEO stated under cross examination  that there was no role as a music tutor created after December 2018. The FCEO stated that contracts of employment were offered where persons were willing to be employed and “work in a different way”. She clarified that the service/work of these persons prior to 2018 was not reckoned for employment purposes.

It is the position of the Respondent that in order for the Complainant to avail of employment legislation he must first come within the definition of an employee and that the Complainant did not satisfy the requisite tests. In this regard the Respondent submitted there was an absence of the requisite mutuality of obligation, there was no contract of service, there never was an intention to create legal relations and the Complainant was never an employee nor ever saw himself as such. The Respondent further stated that the Complainant was now retired and excluded from any benefit from the Unfair Dismissals Act [1977-2020] or the Redundancy Payments Act [1967-2021]. In addition, the Complainant had made no attempt to mitigate his losses.

The Respondent urged that the case be dealt with on its own merits and that based on the evidence and submissions the Complainant’s complaints be dismissed:

Preliminary Matter re Employment Status:

The preliminary matter of the employment status of the Complainant was the central issue of the evidence and submissions since it determines whether the Complainant had locus standi to bring his complaints and by extension my jurisdiction. The case of Henry Denny & Sons (Ireland) Ltd. V Minister for Social Welfare [1998] 1 IR 34, considered the matter of employment status and determined that: “Each case must be considered in the light of its particular facts and of the general principles which the courts have developed”. Similarly in Minister for Agriculture V. Barry [2009] I IR 215, it was held that there was not a “one size fits all” test for this purpose. The tests in question include consideration of the degree of control exercised over the worker, whether the person is integrated into the workplace and whether or not a mutuality of obligation existed in terms of the employer having been required to provide work for the employee and the corollary obligation on the employee to complete that work. In this regard I have carefully considered the following:

-          The evidence and submissions of the parties and in particular the circumstances of the relationship between the Complainant and the Respondent, whereby the former worked in the Respondent’s centre from 1980-2018 on a full time basis but instead of wages he received accommodation and living expenses;

-          The various industrial relations policies – such as disciplinary and grievance procedures – with which the Complainant as an LTCW was obliged to comply;

-          The Code of Practice for Determining Employment or Self-Employment Status of Individuals;

-          The fact that at the time of the adjudication hearing Revenue had not made any determination in relation to the tax liabilities/PAYE or employment status of LTWCs and in this regard, I note the letter to Revenue of 20 December 2013 wherein the Respondent stated:

“We are writing to you to seek confirmation that Camphill is not obliged to operate the pay as you earn (“PAYE”) system in respect of any cash and/or benefits provided to co-workers, on the basis that they are not employees of Camphill. There is no suggestion in this that co-workers are not liable for tax - both co-workers and the communities are keen to ensure that they are tax compliant in all respects. The issue is that the communities and co-workers believe as we have advised them that the tax schedule applicable to such individuals is schedule D… rather than schedule E”.

-          The case law cited by the parties in support of their respective positions.

In the present situation, I am satisfied there are indications the Complainant was an employee. In my view he was integrated into the workplace for some 38 years, he was described as an LTCW and from the evidence presented to me, I am satisfied there was control over the work he did. The Complainant was obliged to comply with the Respondent’s extensive policies as already outlined including for example its disciplinary procedure which provided for dismissal – ie for a co-worker’s “Involvement with the Community to cease forthwith”. For the most part the same workplace policies applied to LTCWs and employees in the same manner.

As against that, there are a number of factors which do not indicate any employment relationship – such as the fact that the Complainant was not paid wages in the usual manner nor was he subject to PAYE tax, he did not receive payslips and was not a member of any pension scheme. Similarly, no evidence was presented that the Complainant’s working hours or leave arrangements were based on any objective criteria or that there was any alignment with statutory provisions. Nor was there any sick leave scheme.

The Complainant has urged me to disregard the label attached to his position, to disregard views he expressed in relation to not regarding himself as an employee - particularly in around the transition time of 2018 – to disregard the absence of contractual documentation – and in the alternative to determine the matter on the basis of the de facto relationship between the parties. In my view such an approach was adopted by the Labour Court in the case of Camphill Communities of Ireland V Elke Williams [UDD2155] which in a similar case, determined as follows:

“The court having reviewed the evidence in respect of how the Complainant came to take up a position notes….the Complainant was offered a position which she accepted, the agreedterms were that in return for her labour the Complainant would be provided with accommodation and her needs would be met by the Respondent. The Court finds that offer and acceptance occurred and that consideration in the nature of income passed from the Respondent to the Complainant in return for her labour……. In the case to hand there was no written contract…..the uncontested evidence of the Complainant is that she entered into an arrangement with the Respondent whereby she would provide her labour on a 24/7 basis in return for the Respondent providing her with a place to live and meeting her needs…….the Respondent accepts that for Revenue purposes at least that these benefits constitute taxable income. In those circumstances it is difficult to see how the intention to create legal relations did not exist…..On that basis the Court finds there was a contractual arrangement between the parties…..While the Complainant was not in receipt of what would normally be considered a salary or wage, she did receive more than reimbursement for expenses…..Therefore the Court finds that she was not a volunteer…..….the service requirements were in the main regular and predictable carried out at the same location week in week out….. the Complainant would do the work that was required to be done.….In order for the Complainant to get her needs met……the Respondent had to provide the Complainant with work. In the nature of this case once the mutuality of obligation was established at the commencement of the contract it continued without break or interference…..The Court…..finds that that having examined the relationship between the Respondent and the Complainant that there was a mutuality of obligation….The Court…… finds that the requisite elements of mutuality of obligation, integration and control existed to establish a contract of employment.”

In all the circumstances I am persuaded by the reasoning set out by the Labour Court in Camphill Communities of Ireland V Elke Williams [UDD2155] and that the Complainant was entitled to bring his complaints to the WRC on the basis that he was employed by the Respondent.

Substantive Complaints:

Section 1 of the Unfair Dismissals Act [1977-2017] defines dismissal as follows:

“dismissal”, in relation to an employee, means—

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……”

Section 6 (1) of the Unfair Dismissals Act [1977-2017] provides that: “Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

Section 6(4) of the Act prescribes the circumstances where a dismissal may be justified:

6 (4) “Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from ……

(a)    the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b)    the conduct of the employee,

(c)     the redundancy of the employee, and

(d)    the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

Section 6(6) of the Unfair Dismissals Act [1977-2017] provides that:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection [6](4)….. or that there were other substantial grounds justifying the dismissal”.

Section 14(1) of the Act refers to such dismissal procedure as was furnished to the employee upon entering the contract of employment.

Sections 7 (2) of the Act provides that an Adjudication Officer may consider “compliance or failure to comply by the employer in relation to the employee, with the procedure referred to in subsection (1) of section 14….or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,….”

The combined effect of the above provisions is to place the statutory burden of proof on the Respondent to show that it acted reasonably and in accordance with its disciplinary procedure or relevant code of practice, and that the reason for the dismissal was substantial and/or within the parameters of Section 6(4).

The key purpose of a disciplinary procedure is to afford an employer the opportunity to set out the concerns it may have about the poor performance or conduct of an employee and at the same time, afford the employee the opportunity to answer the allegations and make representations as to why he/she should not be disciplined or dismissed. This rationale coupled with the principles of fair procedures are set out in Statutory Instrument (SI) 146/2000 which is the Code of Practice applicable to workplace disciplinary matters.   I have summarised the requirements of SI 146/2000 as follows:

·        To comply with the general principles of natural justice and fair procedures;

·       That the details of complaints are put to the employee, that he/she has the right to respond and challenge evidence, the right to representation and the right to a fair and impartial determination of the issues concerned;

·       That the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available;

·       That generally, the stages in a disciplinary procedure will be progressive, for example, an oral warning, a written warning, a final written warning, dismissal and that there is some consideration of other appropriate disciplinary action short of dismissal.

Section 7 of the Redundancy Payments Act [1967-2021] provides as follows:

“7 – (1) An employee, if he is dismissed by his employer by reason of redundancy……, shall, subject to this Act, be entitled to the payment of moneys which shall be known……as redundancy payment provided-

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts…..

7 – (2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if…..the dismissal is attributable wholly or mainly to –

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where that employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or…….”

In light of the foregoing legislative provisions and having considered all the evidence, submissions and case law cited, I am satisfied the Complainant was unfairly dismissed contrary to the provisions of the Unfair Dismissals Act [1977-2020] for the following reasons:

·       Services continued to be provided by the Respondent after 31 December 2018 of a similar nature to those performed by the Complainant up until that date. The Complainant was offered a volunteer agreement in 2019. Whilst ostensibly that constituted a change from LTWC to proposed volunteer, I consider the probability was that in reality the Complainant’s role had not been made redundant;

·       The Complainant was not afforded fair procedures in the nature of S1 146/2000 nor was he provided with any specific justifiable reason for the termination of his employment within the terms of Section 6(4) of the Unfair Dismissals Act [1977-2020] other than that the role of LTWC was coming to an end – which reason was of a general nature and applicable to the Respondent’s service generally. The Complainant was entitled to be appraised in specific terms of the reasons for his dismissal and afforded a fair process to deal with the matter having regard to the requirements of natural justice and the Respondent’s own Disciplinary Procedure.

The Terms of Employment (Information) Act 1994 require that an employee is provided with details of his/her terms and conditions of employment. Section 3 of the Act sets out the terms which should be included in a statement to be furnished to the employee within 2 months of his starting work. These include the full name and address of the employer, the job title, the expected duration of the contract, the rate or method of calculating pay, the normal length of the working day and week, the place of work and the terms and conditions of employment.

In the instant case, the Respondent never regarded the Complainant as an employee and the information provided to him related to his role as an LTWC. For his part the Complainant never sought this information. In any event, as I have found the Complainant was an employee during his tenure in the Respondent’s centre from 1980 – 2018, I find that he was not provided with a statement of his terms and conditions of employment in accordance with the Act.  

·       CA-00028651-003 – Withdrawn

·       CA-00028651-004 -  Withdrawn

·       CA-00028651-006  - Withdrawn

·       CA-00028651-008 – Withdrawn

·       CA-00028651-009 -  Withdrawn

·       CA-00028651-010 – Withdrawn

CA-00028651-001

For the reasons outlined this complaint is well founded. In accordance with Section 7 of the Unfair Dismissals Acts [1977 - 2017] I decide that compensation is the appropriate remedy. The nature of the case presents some difficulties in determining remuneration and therefore the quantum of compensation. The Complainant has assessed his annual income as being €45K. The Complainant stated that his average/year living expenses would have been approximately €15K. The Respondent’s former CEO stated that if the Complainant had transitioned to an employed role he would have been paid an annual salary of approximately €23,400. In all the circumstances and taking into account that he has not sought other employment since, I hereby determine that the Complainant be compensated €60K for his loss of earnings arising from the unfair dismissal - subject to such statutory deductions as may apply.

CA-00028651-002

The Complainant sought a redundancy payment award in the alternative to unfair dismissal. For the reasons outlined I have found that a redundancy situation did not arise and accordingly, this complaint is not well founded.

CA-00028651-012

For the reasons outlined this complaint is procedurally well founded. The Terms of Employment (Information) Act 1994 provide that I may award compensation in relation to a contravention of Section 3 of an amount not exceeding 4 weeks’ remuneration. Accordingly, I award the Complainant €1000 which I consider just and equitable in all the circumstances.

Employment Status, Unfair Dismissals, Redundancy, Terms of Employment