Complainant

Respondent

Parties

Eimhin  Shortt

Green Restoration Ireland Cooperative Society Limited

Representatives

  Self

Cathy McGrady BL instructed by  Farrell McElwee Solicitors LLP

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-00050234-001

03/05/2022

The Complainant is an administrator and Project Co-Ordinator and commenced his involvement with the Respondent in March 2020 to assist in applications for European Innovation Partnership Initiative (EIP) tenders.   

The Respondent is a Cooperative Society, established in 2019 and is working to innovate solutions to reverse the ecological degradation of the Irish landscape and the loss of rural communities.

The Complainant filed his complaint on the 3 May 2022 at 23:59:19 with the Workplace Relations Commission.  On the complaint form, his stated his start date of employment was 28 March 2021 and his end date was 4 December 2021. 

The Complainant clarified that the date 28 March 2021 was incorrect and that his working relationship with the Respondent commenced one year prior to his written contract start date and he provided me with a number of emails referring to meetings to discuss a working arrangement with the Respondent and one from the Chairperson of the Respondent on 21 March 2020 setting out:

“In relation to work done by yourself a half-day week paid at a rate of 150 euro in cash and extra work as payment in kind e.g., sweat capital shares in GRI”

The Complainant submitted that he commenced working for the Respondent as an employee in March 2020 and confirmed that while he did not receive any payment of €150 as set out above, he did receive the payment in kind being the shares in the Respondent. The application fee for membership was €250 and he received an allocation of €750 worth of shares.  He did not make pay these in money form, he said he received these in lieu of payment for his service to the Respondent. 

The Complainant explained that he was in receipt of a disability payment from Social Welfare while working for the Respondent Co-operative for that year 2020 – 2021.  He advised that he was in receipt of the disability payment from 2008. 

His role was to build up the Respondent’s agricultural networks and compile grant proposals.  Because of this work, the Respondent was successful in accruing €1.25m in funding from the European Innovation Partnership Initiative (EIP) for a project.  During this period, he received /sent thousands of emails.

The Complainant relied on this as evidence that his working relationship as an employee commenced in March 2020 and that the start date of employment should be accepted as such. 

Under cross examination he disputed that he was a volunteer before the 28 March 2021.   He acknowledged that he only ceased claiming his disability payment when he received a contract of employment in 2021. 

He acknowledged that his documented relationship with the Respondent commenced in June 2021 and he was issued with a 2-year fixed term contract of employment which had a start date of 28 March 2021.

He confirmed that the Respondent had received the funding referred to above in March 2021 and the funds became available to the Respondent in June 2021. 

The Complainant initially declined to sign the fixed term contract due to certain clauses he had an issue with and engaged a friend to negotiate with the Respondent in relation to same which he ultimately signed in September 2021.

The Complainant was paid a salary by the Respondent from 28 March 2021. 

The Complainant set out how the relationship between him and the Respondent’s Chairperson deteriorated in June / July 2021 and highlighted a specific incident of aggressive and menacing behaviour he experienced in July 2021. The incident occurred following a disagreement between the pair regarding the price of carbon units and whether the price should be flexible or fixed by the Respondent.  The Complainant explained that this led to the Chairperson shouting so disproportionately at him that he was left shaking and he was required to ask the Chairperson on a number of occasions to lower his voice and assume a more respectful position. 

The Complainant explained that this was just one of a series of outbursts from Chairperson, in each case similar in loudness, tone of (self)righteous indignation, and often aggression and foul language. These experiences led to the Complainant experiencing very uncomfortable conditions at work.  The Complainant referred to these as embarrassments.  He described the Chairperson as having ‘founder syndrome’ describing the anxieties felt on the part of the founder (the Chairperson) with rapid growth and the loss of control over an organisation resulting in attempts to buffer his/her station, usually in a context of bad decisions.

The relationship between the Complainant and the Respondent’s Chairperson further deteriorated leading to a particular incident on the 23 October 2021, when without notice to him, his remuneration was disclosed to a Special General Meeting (SGM) of the Respondent with what the Complainant described as a falsified misrepresentation of the Chairperson’s wages to make it appear that the Complainant’s wages were disproportionately higher than anyone else in the Cooperative. The Complainant explained that a proposal was made to significantly reduce the Complainant’s salary from €52,500 per annum to €20,000 per annum. The Complainant was taking notes of the meeting and in the notes wrote “at this point I get sick to my stomach and stop taking notes”. 

The Complainant submitted that to be publicly attacked in this way made his situation untenable and created serious stress related health concerns for him. He described how he was in shock with the behaviour of the Chairperson at the meeting. He confirmed that he had been effectively frozen out of his role for some time before the meeting.  He explained how he found himself in a vacuum as project coordinator and detailed that in September 2021 he called the Chairperson over 40 times and received only 2 return calls. He set out how he was insulted by the Chairperson (signing off on zoom calls with “Bye-Boy” and referring to his skin complaints), downgraded, placed under isolating conditions all of which resulted in his capacity to work being interfered with in the extreme.

Following the SGM, the Complainant made a counter presentation to what he described as the SGM ‘hatchet-job’ on wage restructuring to correct the numbers and to represent what was actually agreed and budgeted for.  He sent this to Co-operative members. He did not receive a reply to his counter presentation.

The Complainant felt he was being stripped of his contacts and prepared for removal. He submitted that he was taken advantage of in the extreme, working one year on a disability payment to compile and write the program on the promise of back payment for work in kind, later to be told there would be accounting for those contributions later on and then to be subject to a proposal to axe his agreed pay in such an underhand manner.  

The Complainant announced his intention to resign during a call with Dr Mc Millan and Francis Fortune on the morning of 3 November 2021 and confirmed this to an action point meeting of the Cooperative that evening.

The Complainant was clear that he did not state that he was resigning immediately on the 3 November 2021 but instead said it was his "intention to resign pending parting agreements" meaning the negotiation of a termination settlement.  A recording of the Co-Operative teams call of the 3 November 2021 was played to me.  During the AOB part of the meeting the Complainant set out that he would “come to an arrangement” and “bow to the side”. 

The Complainant was annoyed to receive within hours of the meeting an email requesting confirmation of his resignation and was informed that he would not be required to work out the remainder of his months’ notice period through to 4 December 2021.

He acknowledged under cross examination that he was very stressed at the meeting but said he was very careful with his wording as regards his resignation and that it was not to be effective immediately. 

The Complainant was paid his agreed salary and other entitlements to the 4 December 2021.   No further offer of compensation or a termination payment was made to the Complainant. 

Under cross examination the Complainant acknowledged that he had not raised a grievance with the Respondent as to the behaviour that he experienced with the Chairperson.  He submitted that he was not confident that doing so would lend to any improvement and the Chairperson had ousted a former member who had a grievance with him on an earlier occasion.

Umberto di Venosa and Eoghan Connaughton gave evidence on behalf of the Complainant.  Both were involved as volunteers with the Respondent before the received contracts of employment and both explained that they were dismissed by the Respondent. 

The Respondent’s case was that in or around May 2020, the Complainant became a member of the Cooperative. The Chairperson and Co-founder Douglas McMillian gave evidence that the organisation was set up as a co-operative and most of the members of the co-operative were involved in doing some form of work for it.  He described this as a voluntary effort on the part of all involved in the organisation. 

He confirmed that while there was a proposal to pay the Complainant €150 per week for his work, the proposal was not implemented.  He confirmed that the Complainant was given his share membership and did not have to pay his membership fee.

The Respondent made specific reliance on an email sent by the Complainant on the 8 October 2020 setting out that he was choosing to work for free and wanted to remain on as a volunteer.  The email was written in the context of not taking on the mantel of an employee and the Complainant having the freedom of autonomy and balance.  Evidence was given that Umberto di Venosa offered to pay the Complainant from his own funds.  The Complainant declined this offer. 

It was confirmed that there was no expectation of payment by any parties involved in the co-operative prior to the Respondent receiving funding for its projects. 

Due in part to the efforts of all in the cooperative, the Respondent was successful in their proposal and acquired funding under the European Innovation Partnership Initiative (EIP).  This meant that the Complainant could be hired as an employee and be paid for his work.  The Chairperson gave evidence that until the EU funding was awarded to the Respondent in June 2021, nobody had received “a penny”.  He confirmed that he had worked in a voluntary role for the co-operative as did other members until then. 

It was detailed that the Complainant’s employment with the Respondent commenced on 28 March 2021 as a Project Co-ordinator and he was issued with a contract of employment in June 2021, which contained the said appointment date of 28 March 2021.

The Complainant refused to sign the said contract, which had been drafted by a Solicitor and was perfectly standard in form. By email of 5 July 2021, the Complainant responded to the contract issued to him as follows:

.…My hours are incorrect as officially its 150 days as per the project document/proposals etc. Also, there are numerous elements that I’m not happy with in this contract, like the parts on intellectual property and the more hard-line neoliberal aspects. I couldn’t really sign as it is.

The Respondent pointed out that notably, despite raising such significant issue with the contract, he did not dispute the start date inserted thereon.

The Complainant engaged a friend to negotiate with the Respondent in relation to his contract of employment, which was eventually signed in September 2021 referring to a start date of 28 March 2021.

The Complainant was paid by the Respondent from 28 March 2021.

On or about 19 October 2021, the Complainant was issued with an employee handbook.

The Chairperson disputed that he engaged in bullying behaviour with the Complainant.  He said that he had a loud voice.  He said he was known for his passion and his interests and was prepared to argue his point.  He clarified that on one of the occasions that the Complainant had an issue with, it was the Complainant who appeared to have a panic attack following his disclosure to the Chairperson that he was having difficulty in obtaining access to see his daughter.  He denied he made any disparaging remarks about the Complainant’s skin or that he was jealous of the Complainant. 

The Chairperson explained how both Umberto di Venosa and Eoghan Connaughton left the organisation with Mr. di Venosa being voted out of the Co-operative with the Chairperson abstaining in the vote and Mr. Connaughton’s contract coming to an end. 

As regards the Special General Meeting in October 2021, the Chairperson set out that the cost cutting measures were presented was an item on the agenda to deal with cost reductions of the co-operative.  The purpose of the presentation was to identify who what getting what and he presented the relative incomes of the employees to the meeting.  The Chairperson himself took a pay cut to have more funds available to deliver the project and he hoped the Complainant would do the same.  He explained that nothing was agreed regarding the Complainant’s salary at the meeting.  In fact, it was proposed that a mediator would be appointed to negotiate any changes to salaries, but no agreement was made on the appointment of a mediator. 

The Chairperson denied there were any daggers at the meeting and it was the Complainant who made a threat under his breath when he was leaving the meeting. He said that the Complainant said “let the war begin” in a menacing tone. 

He pointed out that the Complainant did not raise a grievance or set out his grievance or harassment complaints before he resigned.  He said that he was not expecting the Complainant’s resignation and that it came “out of the blue”.  He pointed out that no complaints had been made against him by others who were in employment. 

The Respondent Chairperson gave evidence that the Complainant resigned his employment with immediate effect, during a regular meeting held by phone call with the Chairperson and Francis Fortune on the morning of 3 November 2021. On the call the Complainant suggested that the Respondent replace him and that he was taking time off with immediate effect due to stress and to focus on his own side interests.  There was no mention of a parting or termination arrangement on the call.  By email on the same day, the Chairperson acknowledged the Complainant’s verbal resignation with immediate effect and noted that he wished to announce his resignation to members at the meeting held by zoom call, that evening.

The Chairperson explained that the Complainant did confirm his resignation during the remote GRI meeting that evening, however he also sought, for the first time, a termination payment which was later clarified at 10-15% of the funding award.   

By email of 8 November 2021, the Respondent further acknowledged and accepted the Complainant’s resignation, and stated its belief that it was required to pay in lieu of notice period, despite the fact it was the Complainant who resigned.

The Respondent submitted that the Complainant’s employment ended on 3 November 2021 when he resigned with immediate effect. Accordingly, he had 31 weeks’ service, as an employee of the Respondent. Even if, as the Complainant stated, his employment ended on 4 December 2021, he had a maximum of 35 weeks’ service.  As such, the Respondent submitted that I lacked jurisdiction in relation to this complaint as the Complainant did not have 12 months’ service with the Respondent.

The Respondent also submitted that the complaint was out of time as the Complainant resigned on the 3 November 2021 with immediate effect.  The Complaint was lodged with the WRC on the 3 May 2022. 

As regards the decision of the Complainant to resign, the Respondents representative set out that there were personality issues between the Complainant and the Chairperson of the Respondent but these were not of significance to resign on the constructive dismissal tests.  It was submitted that mediation was proposed on the financial challenges to the Respondent’s budget but the Complainant resigned before the process started or concluded.

The Respondent’s representative relied on the Supreme Court decision in The Revenue Commissioners -V- Karshan Midlands Ltd T/A Dominos Pizza [2023] IESC 24 as clarification of the test of employment and advocated that the Complainant did not have service as an employee of the Respondent prior to the 28 March 2021. 

It is not possible for me to address all the evidence both oral and written that was presented to me in this written decision. I don’t believe that in the interests of justice or fairness that I am required to do so.

The oral evidence was presented over two and a half days. The legal arguments for both sides were well made. I found both witnesses to be truthful in their evidence.

The fact of dismissal was in dispute. The Complainant resigned from his employment on the 3 November 2021 and received his last payment from the Respondent on the 4 December 2021. The burden of proof is on him.

Overall, I found the Complainant to have a genuine belief in his complaints against the Respondent.   

My first role is to decide on whether the Complainant had sufficient service to bring a claim under the Unfair Dismissal Acts.  If the Complainant had the required service, I would then deal with the question of whether his complaint brought in time and if that was the case, I would then deal with whether the Complainant reached the threshold to succeed in his claim of constructive dismissal.

Looking at the first question and the start date of the Complainant’s employment with the Respondent, following the determination in The Revenue Commissioners -V- Karshan Midlands Ltd T/A Dominos Pizza, the Supreme Court set out a 5-question framework to guide any assessment of employment status.  These are:

(i) Does the contract involve the exchange of wage or other remuneration for work?

(ii) If so, is the agreement one pursuant to which the worker is agreeing to provide their own services, and not those of a third party, to the employer?

(iii) If so, does the employer exercise sufficient control over the putative employee to render the agreement one that is capable of being an employment agreement?

(iv) If these three requirements are met the decision maker must then determine whether the terms of the contract between employer and worker interpreted 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.

(v) Finally, it should be determined whether there is anything in the particular legislative regime under consideration that requires the court to adjust or supplement any of the foregoing.

Looking at Question 1, I need to decide if the contract involved the exchange of a wage or other remuneration for work.

It is common case that arrangements which do not involve the exchange of wages or remuneration for work cannot be categorised as an employment contract. For a contract of employment to exist, there must be an offer of work, acceptance of that offer, an intention to enter into a contract and resulting payment or consideration.

In this case, the evidence was that there was discussion on a weekly wage of €150 in cash, but this was not paid to the Complainant.  The Complainant relied on the payment in kind as his remuneration and detailed the waiving of his membership fee €250 to join the Co-operative and allocation of shares in the Co-operative to the value of €750. 

The Respondent disputes that this was remuneration and argued that the Complainant was at all times a volunteer prior to the 28 March 2021 and the membership and allocated shares were provided in the context of the Complainant becoming a member of the Co-operative and officer on the board.

Realistically a consideration of a combined value of €1,000 cannot reasonably be described as a regular or commercial wage for services provided over a period of 12 months (March 2020 to March 2021) during which the Complainant set out that he sent/received thousands of emails and was to spend half a day a week of his time.

I have reviewed the email of the Complainant sent on the 8 October 2020 and consider this as   strong evidence of where the Complainant saw himself viz a viz his relationship with the Co-operative.   I was only provided with what appears to be an extract from the email.  The Complainant himself did not object to it or put it in context.  The email set out

“choosing to work for free, for me, is about maintaining autonomy and balance in terms of contributions, ideas and approach which otherwise would be lost to the assumptions around ‘employee’ status …….”

Normally it is the Respondent that goes about labelling the relationship between the parties as other than one of an employment relationship.  However, in this case it is the Complainant that indicated his unwillingness to enter into an employment relationship. 

In considering the evidence presented to me and in particular the evidence that the Respondent was a Co-operative with evidence from both sides that no active member of the Respondent Co-Operative received any payment of a wage before EU funding was secured for its projects, and the fact that the Complainant did not receive any payment of wages before the 28 March 2021, the wording of the Complainants contract of employment, the nomination by the Complainant of the 28 March 2021 in his WRC complaint form as his start of employment date all indicate that the Complainant did not receive the exchange of a wage or other remuneration for work prior to the 28 March 2021 and was not an employee of the Respondent prior to the 28 March 2021. 

Therefore, I find that for the period of March 2020 to March 2021 that the Complainant was a volunteer in the Respondent Co-operative and not an employee with ensuing employment rights under the Unfair Dismissals legislation. 

Arising from this finding, I do not have jurisdiction to make a decision on this case as the Complainant did not have the required service under Unfair Dismissals Act.  I have no standing to move to the other queries that I have outlined above.

This complaint is not well founded.

Employee -v- volunteer

The Revenue Commissioners -V- Karshan Midlands Ltd T/A Dominos Pizza