Complainant

Respondent

Parties

Denis  Collins

Callan Golf Club

Representatives

Gerard Freyne

Cathy McGrady, BL, instructed by Farrell McElwee Solicitors LLP

Act

Complaint Reference No.

Date of Receipt

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

CA-00050879-001

26/05/2022

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

CA-00050879-002

26/05/2022

The complainant’s case is that he was employed by the respondent as part of an administrative team (admin team) from 1st December 2020 and he was unfairly dismissed when his employment was terminated on 30th November 2021. He further claims that he has not been paid the minimum wage over this period.

The respondent contests his status as an employee and claims he does not have the requisite service to pursue a claim under the Unfair Dismissals Act. The respondent raised further preliminary issues on the legal entity of the club and questioned whether the complainant could take an action against his own club.

The complainant’s representative made a detailed submission on the history, finances, membership, and staffing of the club. He outlined the valuable work carried out by the complainant on a voluntary basis and then as a paid employee from 1st December 2020. He submits the complainant was an employee and referred to the various tests to establish employee status. He maintained there was no impediment on the complainant pursuing the case and this was established through case law.

Summary of Mr Collins (complainant) Evidence

The complainant outlined his business background and his membership of the club. He was on the Joint Management Committee (JMC) in 2015 and was treasurer in 2020. Due to the tight financial and staffing situation during 2020 & 2021, he assisted with the running of the club. He said that a roster was arranged to ensure members and visitors were facilitated and he worked 50/60 hours per week over the relevant period.

He said in advance of the new captaincy for 2021, he was prepared to continue with assistance on the administration of the club and a proposal was worked out. He added that these discussions commenced in August/September 2020 for a plan to be in place for the coming year.

He outlined in detail, the work he carried out for the club, particularly from December 2020 to November 2021. He worked 2,500 hours. He explained how goods and services were paid, and how finances were managed on behalf of the club. Like 2020, there were challenges due to Covid and the club closed for a period at the beginning of 2021. The administrative work was essential as services needed to be available to maintain membership. He received his first payment in May 2021, and he received further payments in July 2021, September 2021, and November 2021. These payments totalled €16,000. He said he was fully tax compliant on these payments. He understood that he was a paid employee and was working under the instructions of the JMC. He said he had made out a job description and received regular email instructions from the club captain and treasurer. These emails were submitted in evidence.

He said there were rumours circulating among members on club finances and he requested the JMC to clarify matters to alleviate any concerns. He said no clarification issued. The administrative arrangements were reviewed on 29th November 2021 and the committee voted to end the work.

Under cross-examination by the respondent representative, he was asked whether he had worked for one full year and who had drawn up the rosters. He replied that the rosters were drawn up by the admin team and his hours were 50-60 per week. He was questioned on how an arrangement could be agreed with the incoming captain to take effect from December 2020 when he was not captain until March 2021. He replied that arrangements had to be in place for the coming year and there were discussions with the incoming captain on this. He was questioned on whether there was an advertisement for the position and why he used the word ‘stipend’ in the proposal. He was asked whether it was normal for employees to be ratified by vote to continue in a job and why the pay was so irregular. He replied that this was due to the finances of the club at that time.

Summary of Mr Madigan Evidence

Mr Madigan gave evidence of his membership history within the club. He was a member of the Joint Management Committee (JMC) and also carried out a public relations role for several years. He was captain in 2020 and had previously been vice-captain.

He carried out voluntary work on behalf of the club during 2020. He was involved in a membership satisfaction survey carried out in August/September 2020. He said the survey results were positive. He outlined the finance and staffing difficulties within the club as there was no customer facing role at this time. He said that the new captain came in on 1st December 2020 and he did not want to see the good work carried out in 2020 just thrown away. He had discussions with the captain about continuing with the work as part of an admin team. He referred to the roster that commenced on 1st December 2020 which was drawn up by the admin team. He explained how goods and services were paid and how finances were managed on behalf of the club. Due to the finances at the end of the year, he did not receive a payment until May 2021. He outlined the valuable work that was undertaken by the admin team on administration and finance matters.

Under cross-examination by the respondent’s representative, he was questioned on the date the incoming captain took office and that he himself was captain for the full year of 2020. He replied that arrangements are normally planned in advance at the end of 2020. He was questioned on his business background and his familiarity of employment matters such as advertisements, wages, tax, and contracts of employment. He was asked about the creation of an invoice in May 2021 to facilitate payment to him at that time. He was asked about the creation of the roster and the authority of the captain to hire staff directly without committee approval. He replied that arrangements were agreed in principle and were approved later. He added that the captain delayed in drafting an agreement, so himself and another admin team member drafted the terms. He was questioned on these terms and whether in fact it was an employment contract or a proposal. He replied that he had been carrying out the role since 1st December 2020 and this was later approved by the relevant committee.

Summary of Mr Wellwood Evidence

Mr Wellwood gave evidence of his background in the club and his election to several committees. He outlined the financial difficulties of the club and the lack of paid staff at the end of 2019. He gave evidence of a review in 2020 to assess the work required to be done within the club. There was to be one integrated unit to see how the club could be run and to assess what was involved. He said this resulted in a better understanding of what was required to run the club. He said because of Covid, the bar and catering were not in operation for sustained periods. He said the voluntary work in 2020 and the admin team work in 2021 ensured the finances and membership of the club was holding firm.

Summary of Mr Skehan Evidence

Mr Skehan gave evidence of his involvement on the JMC for 2020 and 2021. He outlined the voluntary work carried out in 2020 and that he was prepared to be vice-captain on the basis that the admin team would remain on into 2021. He said that when the committee voted out the admin team in November 2021, he felt they did not get a fair hearing and he resigned his position.

Mr Skehan was cross-examined on what had occurred at the meeting in November 2021. It was put to him that the complainant himself was only satisfied to continue as part of admin team if ratified by the committee.

Closing Submission

The complainant’s representative outlined that despite the clubs difficult financial and staffing issues, the complainant had done valuable work on behalf of the club. The complainant became an employee, and this arrangement arose out of discussions with the incoming captain towards the end of 2020. He submitted that the tests on employee status were met. The complainant had the interests of the cub at heart when payments were not sought for his work until May 2021. There was gross negligence and complete incompetence in the way the club treated the complainant. As there were no grounds for the termination of the admin team, it was in effect an unfair dismissal.

Summary of Mr Carey’s Evidence

Mr Carey gave evidence of his role on the JMC in 2021. He received a proposal on 18th March 2021 to run the club through the admin team. He attended the meeting in March 2021 and his understanding was that the admin team were contractors and not employees. He said the vote was carried 14 to 1 in favour of the admin team proposal to run the club.

He also attended the meeting in November 2021 during which the committee voted 14 to 4 to discontinue with the admin team.

Under cross-examination by the complainant’s representative, he was asked about the running of the Executive Finance Committee and how the meetings were conducted. He was also questioned on how they appointed staff. He said that the administrative team would only hire on a casual basis for specific events.

Summary of Mr Kennedy’s Evidence

Mr Kennedy gave evidence of how he was asked to undertake the treasurer’s role in March 2021. He took up the position at the end of March 2021. He outlined that there were some issues that needed to be clarified on the accounts. This meant that the accounts were not finalised for the AGM in 2022. He was cross-examined on whether any terms and conditions of the admin team were discussed after March 2021. He replied that he was not at this meeting and was only appointed afterwards.

Summary of Mr Lawlor’s Evidence

Mr Lawlor gave evidence of his involvement in the club. He became captain on 11th March 2021. He said that he received a proposal from the admin team, and this was discussed and approved by vote on 18th March 2021. He said there were emails with the complainant before this and this was not unusual as he was also a committee member. He said there were no documents drawn up on the March 2021 proposal as the admin team were reluctant to tie themselves down to a formal written agreement. His clear understanding was the admin team were contractors and they were to submit invoices for their services to the club when they had their affairs in order.

In November 2021, he said it was clear to him that the admin team themselves did not want to continue doing the work unless the committee were in favour of this.

Under cross-examination by the complainant’s representative, he was asked about the appointment of Mr Skehan as his vice-captain. He said there were no pre-conditions involved with Mr Skehan’s appointment.

He said he was approached by the complainant about an admin team arrangement. He said there was no agreement for work to commence in December 2020 as he was not captain at that time. He was asked about an understanding reached with the complainant towards the end of 2020 to remain on and do the work on a paid basis. He said both himself and the complainant were of the understanding that any arrangement needed to be approved by the committee and there was no undertaken given prior to March 2021.

He was asked about wage amounts within the accounts. He was also asked about the emails of January and February 2021. He replied that the accounts did not come within his remit, and it was normal to send emails about club affairs and meetings.

When asked the exact date the new treasurer was appointed, he could not recall the exact date.

On putting in place a plan for the admin team, he said that they did not want to sign anything formal. He was asked about the roster in place. He replied he was not aware of a roster until it appeared in the papers at the WRC hearing. He accepted that although valuable work was done for the club, the admin team could come and go as they liked.

He was asked about accounts. He said there were some queries and not all the information was available for the AGM in 2022. He was asked about the decision in November 2021 to discontinue with the admin team and if he contacted the complainant on this decision. He replied he made no contact as he knew he would have been contacted by others at the meeting.

Closing Submission

The respondent’s representative summarised the preliminary objections. She contended that the complainant did not have the relevant status to make the statutory complaints. She referred to the recent Karshan case, and that the respondent was relying mainly on the 4th limb of the test.

She submitted there were no formal contracts or written documents and this was at the request of the complainant. She submitted that the status of the complainant, along with the requirement of one years’ continuous service under the Act was in question.

CA-00050879-001- Unfair Dismissals Complaint

The Law

Section 6(1) of the Unfair Dismissals Act provides:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 2(1)(a) of the Act provides:

“2.—(1)Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons:

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him…”.

Preliminary Issues on Jurisdiction

Status of Employment

Since 1998 and the case of Henry Denny & Sons, there is considerable case law on the tests to be applied to determine whether a contract is one ‘of’ or ‘for’ service. Very recently, in the Revenue Commissioners v. Karshan [2023] IESC 24, the Supreme Court at paragraph 281 set out the questions to ask whilst still having regard to the well-established case law.

The complainant in evidence has established that there was remuneration for work. The second question has also been answered in that his own personal services were provided. There was also evidence of some control through the emails and proposal accepted for the admin team in March 2021. Matters therefore turn to the 4th question-

‘…… the decision maker must then determine whether the terms of the contract between employer and worker enterpreted in the light of the admissible factual matrix and having regard to the working arrangements between the parties as disclosed by the evidence, are consistent with a contract of employment, or with some other form of contract having regard, in particular, to whether the arrangements point to the putative employee working for themselves or for the putative employer.’

The ‘Code of Practice on Determining Employment Status’ of July 2021 is also helpful as a guide. It is well established that each case needs to be considered on its own facts with no one clear-cut test to be applied.

The submissions contain limited documentation to establish the relationship between the parties. There are no contracts of employment, statements of wages, annual leave applications, and ‘agreed’ rosters. There is also an absence of documented interactions one would expect for an employer/employee relationship.

Nevertheless, it is not always the case that written contracts or documents truly reflect the nature of the relationship. Consideration needs to be taken of what was happening in practice on a day-to-day basis to establish the true nature of the relationship.

On the rosters issue, there is a conflict of evidence. The complainant has produced a roster to show he attended regularly at the club from 1st December 2020 up until the arrangements were terminated in November 2021. The respondent denies knowledge of the rosters and only became aware of a roster at the WRC hearing. Evidence was given by Mr Lawlor that the complainant could come and go as there was no specific attendance requirements.

There was no pay for work carried out until May 2021. The complainant said this arose as the club was always under financial pressure at the end of the year. The respondent position is the complainant was a contractor as part of the admin team. There were no formal agreements and Mr Lawlor said this was at the complainant’s request. There was some documentation of the method of payment in May 2021.

The payments made by the club were not subjected to tax at source. The complainant confirmed in evidence that his tax affairs were in order.

The complainant’s representative submitted emails to show supervision of work as per the control test. These emails in January & February 2021 concern arrangements for an AGM and are signed off by the ‘Office Admin Team.’ There are further emails from April 2021 onwards concerning machinery, meetings/minutes, and the contents of a newsletter.

There is a conflict in evidence of when the Admin Team commence work. The complainant’s evidence is that the proposal to employ an admin team was agreed in principle with the incoming captain towards the end of 2020. Mr Lawlor’s evidence was no commitment was given as he was not yet in office and the proposal needed committee approval as per the club rules.

It is agreement that the proposal was approved in March 2021. The proposal document outlines the remit of a 2–3-person admin team with no commencement date. It also mentions a ‘stipend’ with no dates on when the €32,000 total is due for payment.

The factors at play indicate a contract for services due to the following-

·       There is no correspondence of any sort which mentions employee, ‘agreed’ working times, terms & conditions, annual leave, payment intervals, lay-off and taxation. Even though there was a closure due to Covid over the relevant period neither party referred to the PUP government assistance to employees in a lay off situation.

·       Furthermore, the pay with no tax at source indicates a contractual arrangement for services. The proposal of a sum of €32,000 as a total sum with no weekly, fortnightly, or monthly payments are more indicative of a contract for services.

·       The use of the word ‘stipend’ in the complainant’s proposal instead of wage, remuneration or salary tends to show it was not an employer/employee relationship.

·       If the proposal was discussed and agreed at the end of 2020, as alleged, one would expect some documentary evidence prior to the commencement of work. There were no safeguards in terms of documents for an elected officer to move to a paid employee role. The lack of any documentation tends to show that there was a contract for service.

·       The signing from emails as the ‘admin team’, as opposed to named individuals with no individual accountability, also tends to show a contract for service. The emails are limited in content and regularity. The emails in January/February 2021 prior to the AGM are more typical of exchanges by club volunteers as opposed to employees.

On the balance of probabilities, the complainant has not made a sufficient case to prove that he was an employee. There is limited documentary evidence and the direct evidence at the hearing is not convincing that the complainant was an employee.

One Years Continuous Service

I will now deal with the second preliminary issue.

There is conflicting evidence as to the date when agreement was reached for the admin team to commence. The complainant gave evidence that there was an agreement reached towards the end of 2020, even if matters needed to be approved by committee at a later stage.  The respondent position is there was no agreement and the proposal for the admin team was only approved and in place from March 2021. The incoming captain for 2021, Mr Lawlor, gave evidence that any arrangement needed to be approved by the committee and there was no undertaken given prior to March 2021.

There is no documentary evidence apart from the disputed roster during December 2020 even though it is asserted that the complainant became an employee on 1st December 2020.

On 1st December 2020, Mr Lawlor was not officially the captain, and the move from a voluntary to a paid employee arrangement was an important decision governed by club rules. Emails from January 2021 and February 2021 show the work and preparations underway for the upcoming AGM. If there was an employer/employee relationship in existence from 1st December 2020, this is not backed up by any documentary evidence prior to or during December 2020.

The roster put into evidence was drawn up by the admin team and there is nothing to verify when it was drawn up. There are no signed employment records of attendance, breaks, annual leave applications, and working time records.

Based on the above, I am more convinced by the evidence of Mr Lawlor that the complainant did not commence work on 1st December 2020. If work did commence in December 2020, there is no evidence of a mutual agreement of employment around this time.

For the reasons outlined, I decide that the complainant did not have one years’ continuous service.

On the preliminary issues, I do not have jurisdiction to enquire into the substantive complaint of dismissal-

·       As the complainant was not an employee.

·       The complainant did not have one years’ continuous service.

CA-00050879-002- Minimum Wage Complaint

Although the complaint form does not contain a specific complaint under the National Minimum Wage Act, the wording on the form is ‘I am also seeking that I be paid for the hours I was rostered on for in 2020-2021 at a rate of the minimum wage at the very least.’

Due to this wording on the complaint form, I am satisfied that I can hear this complaint.

As the respondent representative has raised a preliminary objection on employee status, it falls on the complainant to show standing as an employee.

Since 1998 and the case of Henry Denny & Sons, there is considerable case law on the tests to be applied to determine whether a contract is one ‘of’ or ‘for’ service. Very recently, in the Revenue Commissioners v. Karshan [2023] IESC 24, the Supreme Court at paragraph 281 set out the questions to ask whilst still having regard to the well-established case law.

The complainant in evidence has established that there was remuneration for work. The second question has also been answered in that his own personal services were provided. There was also evidence of some control through the emails and proposal accepted for the admin team in March 2021. Matters therefore turn to the 4th question-

‘…… the decision maker must then determine whether the terms of the contract between employer and worker enterpreted in the light of the admissible factual matrix and having regard to the working arrangements between the parties as disclosed by the evidence, are consistent with a contract of employment, or with some other form of contract having regard, in particular, to whether the arrangements point to the putative employee working for themselves or for the putative employer.’

The ‘Code of Practice on Determining Employment Status’ of July 2021 is also helpful as a guide. It is well established that each case needs to be considered on its own facts with no one clear-cut test to be applied.

The submissions contain limited documentation to establish the relationship between the parties. There are no contracts of employment, statements of wages, annual leave applications, and ‘agreed’ rosters. There is also an absence of documented interactions one would expect for an employer/employee relationship.

Nevertheless, it is not always the case that written contracts or documents truly reflect the nature of the relationship. Consideration needs to be taken of what was happening in practice on a day-to-day basis to establish the true nature of the relationship.

On the rosters issue, there is a conflict of evidence. The complainant has produced a roster to show he attended regularly at the club from 1st December 2020 up until the arrangements were terminated in November 2021. The respondent denies knowledge of the rosters and only became aware of a roster at the WRC hearing. Evidence was given by Mr Lawlor that the complainant could come and go as there was no specific attendance requirements.

There was no pay for work carried out until May 2021. The complainant said this arose as the club was always under financial pressure at the end of the year. The respondent position is the complainant was a contractor as part of the admin team. There were no formal agreements and Mr Lawlor said this was at the complainant’s request. There was some documentation of the method of payment in May 2021.

The payments made by the club were not subjected to tax at source. The complainant confirmed in evidence that his tax affairs were in order.

The complainant’s representative submitted emails to show supervision of work as per the control test. These emails in January & February 2021 concern arrangements for an AGM and are signed off by the ‘Office Admin Team.’ There are further emails from April 2021 onwards concerning machinery, meetings/minutes, and the contents of a newsletter.

There is a conflict in evidence of when the Admin Team commence work. The complainant’s evidence is that the proposal to employ an admin team was agreed in principle with the incoming captain towards the end of 2020. Mr Lawlor’s evidence was no commitment was given as he was not yet in office and the proposal needed committee approval as per the club rules.

It is agreement that the proposal was approved in March 2021. The proposal document outlines the remit of a 2–3-person admin team with no commencement date. It also mentions a ‘stipend’ with no dates on when the €32,000 total is due for payment.

The factors at play indicate a contract for services due to the following-

·       There is no correspondence of any sort which mentions employee, ‘agreed’ working times, terms & conditions, annual leave, payment intervals, lay-off and taxation. Even though there was a closure due to Covid over the relevant period neither party referred to the PUP government assistance to employees in a lay off situation.

·       Furthermore, the pay with no tax at source indicates a contractual arrangement for services. The proposal of a sum of €32,000 as a total sum with no weekly, fortnightly, or monthly payments are more indicative of a contract for services.

·       The use of the word ‘stipend’ in the complainant’s proposal instead of wage, remuneration or salary tends to show it was not an employer/employee relationship.

·       If the proposal was discussed and agreed at the end of 2020, as alleged, one would expect some documentary evidence prior to the commencement of work. There were no safeguards in terms of documents for an elected officer to move to a paid employee role. The lack of any documentation tends to show that there was a contract for service.

·       The signing of emails as the ‘admin team’, as opposed to named individuals with no individual accountability, also tends to show a contract for service. The emails are limited in content and regularity. The emails in January/February 2021 prior to the AGM are more typical of exchanges by club volunteers as opposed to employees.

For the above reasons, I find that on the balance of probabilities there was no contract of services between the parties and therefore the complainant does not have standing as an employee to pursue the complaint under the National Minimum Wage Act.

Substantive Complaints

In B.T.F. v. Director of Public Prosecutions 2 ILRM 367, Hardiman J, found:

"It is often a difficult and delicate decision as to whether to try a particular issue as a preliminary matter. In a case where a point is raised which in and of itself and without regard to anything else may terminate the whole proceedings, clearly a strong case can be made for its trial as a preliminary issue. The classic example is where the Statute of Limitations is pleaded. In other cases, however, the position may be much less clear".

The Labour Court in Donegal Meat Processors v. Donal Gillespie, UDD 2114 stated-

“akin to asking the court to exercise its jurisdiction before it determines whether or not it has jurisdiction in the first instance.  […] Only if the court determines that it has jurisdiction to do so can it go on to consider the fairness or otherwise of the dismissal itself”.

On the above authorities, there is no requirement to inquire into the substantive complaints.

CA-00050879-001- Unfair Dismissals Complaint

I decide I have no jurisdiction to hear the substantive Unfair Dismissals complaint as the complainant was not an employee and did not have the required one years’ continuous service.

CA-00050879-002- Minimum Wage Complaint

I decide that the complainant does not have standing as an employee to pursue the complaint under the National Minimum Wage Act 2000.

Unfair Dismissal, National Minimum Wage, Standing