Complainant

Respondent

Parties

Eleanor  Maher

North Munster Citizens Information Service CLG

Representatives

Ian Fitzharris BL                             James Birchall                                           RSM Ireland

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-00063793-001

29/05/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my functions, and I made all relevant inquiries in the usual way.

In response to the Supreme Court decision in the constitutional case of Zalewski  -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice.  I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have, as a practical measure, administered the said Affirmation as appropriate. It is noted that the giving of a false statement or evidence is an offence.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 29th of May 2024.

The Complainant was not represented and made her own case. When it came time to hear her evidence, the Complainant was happy to make an Affirmation to tell the truth. The Complainant gave comprehensive evidence concerning her history with the Respondent entity.

The Complainant was aware that a preliminary issue was raised by the named Respondent which went right to the heart of the Employment relationship. The Complainant put in a submission dated the 5th of July 2024 replying to the preliminary issue so asserted.

The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form. 

The Complainant had brought a separate complaint against another Respondent in ADJ file 52998 which said issue has yet to be determined. One document which was referenced in that file ended up being opened up in the course of the hearing before me. I have directed that the said document be shared post hearing for comment. I understand that this was subsequently done. In the course of the hearing, I outlined the content of this document which was a Contract of employment dated the 8th of January 2024. This document was therefore read into evidence.

The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative who chose to limit himself to the preliminary issue in circumstances where a second date for hearing would in any event  be required to hear the associated case – ADJ 52998.

The Complainant alleges that she was Unfairly Dismissed.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance and concerning her employment status.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent had representation at this hearing. The Respondent provided me with one written submission dated September 2024. I have additionally heard from a third-party representative who spoke as to the nature of the relationship between the Complainant and the Respondent herein as well as the relationship between the complainant and the third party. The Respondent provided me with a comprehensive submission dated the 4th of September 2024. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation.

The Respondent asserts that it is not and never has been the Complainant’s employer, and that the Complainant was placed into the Respondent workplace as part of a CE scheme. The third-party witness agreed with this proposition.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

It should be noted that I have amended the Respondent’s name as appropriate, and that the complainant had identified the correct registered address.

Darren Ryan was present on behalf of the Respondent though his evidence was not required.

I have carefully listened to the evidence adduced.

I allowed the Complainant to fully outline the history of her employment herein. The Complainant had initially returned to the workplace after a period of working from home as the primary homemaker. As I understand it, the Complainant would have been eligible for jobseeker’s allowance and was eligible to work under the Tús initiative which is a community work placement scheme providing short-term working opportunities for unemployed people. The work opportunities are to benefit the community and are provided by community and voluntary organisations in both urban and rural areas. The Tús initiative is managed by local development companies and Údarás na Gaeltachta for the Department of Social Protection (DSP), which has overall responsibility for the scheme.

It was with Tús that the Complainant was first placed in a local Citizens Information office in Thurles. This is an office owned and operated by the Respondent entity. The Complainant was initially engaged as a receptionist. The Tús scheme finished in January of 2023. The Complainant immediately qualified to move to a CE Scheme which also operates to help people who are long-term unemployed or otherwise disadvantaged to get back to work. It does this by offering part-time and temporary work placements in local communities. By taking part in a CE scheme, a person can gain new skills and experiences that may help with finding a job later on. To qualify for a CE scheme an applicant must work for 19.5 hours per week (excluding breaks) for the sponsor organisation.

Under the CE scheme a person’s (aged between 21 and 55 years) placement generally lasts for one year. However, if a person is working towards a major education award, the CE placement can be extended by up to two years. I note that the Complainant was highly ambitious and highly motivated during her time with the Respondent and was upskilling within the work environment as well as taking legal exams on her own time.

The minimum weekly payment for new participants is based on 19.5 hours worked and usually the rates are determined by the participants current social welfare payment.

I note under the terms of the scheme that any change in your circumstances might affect your payments. A participant should inform their CE supervisor and the local DSP Community Development Officer responsible for their CE scheme if circumstances change while taking part in the Community Employment scheme.

The Complainant was extremely happy working in the Thurles Citizens Information Office. I accept that while working in this environment that the Complainant took her directions from the Manager Mr DR. The Complainant wanted to become an information officer and then an advocacy officer. She partook in all the courses available to help her achieve this ambition.

The Complainant confirmed in her evidence that under the CE Scheme she was required to have a sponsor and that she liaised with a Ms AB who was a CE supervisor for another company called Tipperary Centre for independent Living. This is a company which I understand is primarily in the business of providing Personal Assistant services to the HSE for persons with Disability and Older Person Services. I assume that the Tipperary Centre for independent Living is a company that engages in offering suitable candidates work under the CE scheme to allow for upskilling. Using Tipperary Centre for independent Living as a sponsor, the Complainant continued in her placement with the Citizens Information Office.

In her direct evidence the Complainant noted that Tipperary Centre for independent Living was her sponsor and that her placement was with Citizens Information (the Respondent). The Complainant confirmed that her payslip came from Tipperary Centre for independent Living albeit the funding ultimately came from the Department of Social Protection. As the Complainant was training on an ongoing basis, she was allowed to extend her time with the Respondent and I note that on the 8th of January 2024 a Contract of Employment was entered into between the Complainant on the one part and Tipperary Centre for independent Living on the other. It is interesting to note that the Complainant is identified as being engaged as a Personal Assistant. A description morer elevant to the services being provided by the Centre for Independent Living.

It is clear that the Contract identifies Tipperary Centre for independent Living as the Employer. By way of an addendum to the Contract of Employment, it is noted that:

“Tipperary Centre for independent Living CE participants based within Citizens Information centre are fulfilling the role of assisting and personally supporting vulnerable people, people with disabilities and senior citizens in accessing information advice and advocacy services”

This addendum has assisted in my understanding of how the entity known as Tipperary Centre for independent Living has come to place the Complainant in a Citizens information office (i.e. the Respondent).

Unfortunately the relationship between the Complainant and certain staff members of  the citizens information centre (including the line Manager DR) went awry in the first few months of 2024. The Complainant noted that there was a bad atmosphere and that confidentiality issues had arisen. The Complainant gave evidence that the situation gave rise to a them and us divide between permanent members of staff and volunteers. The Complainant was given a dressing down on the 8th of April for leaving the workplace early some weeks before. The Complainant defended her position which led DR to question whether the complainant was happy in the job? The Complainant was told that she could ask L for an alternative role. I note that L was by now the contact point in Tipperary Centre for independent Living.  

The Complainant gave comprehensive evidence concerning the slow breakdown in the relationship between herself and DR. This culminated in a meeting held on the 27th of May 2024. This was a meeting called at the request of DR and held in the office of the Tipperary Centre for independent Living.  L was also present. DR said at the meeting he was acting on foot of an allegation of a breach of the General Data Protection Regulations concerning inquiries the Complainant may or not have made about a client. DR was not happy with the Complainant’s defence and the Complainant was not happy that DR had taken the word of someone else over her own. The Complainant was invited to step out of the meeting and when she was called back in, I understand that DR had already left. The outcome was as the Complainant put it in the complaint form:

…the result of that meeting was Darren insisted I do not return to the office in Thurles. I was not given any written or verbal explanation or reason for him ceasing my placement and I was not told who made the allegation, I was told if I wanted to know the reasons for my position ending I was to email him and ask him.

It was L who broke the news to the Complainant and the Complainant has confirmed that L also indicated that she would assist if the Complainant could source an alternative employment opportunity which would qualify under the CE scheme.

Under cross examination the Complainant confirmed that she continued to be paid by Tipperary Centre for independent Living (albeit the Complainant was out on sick leave) up until the end of August 2024. The Complainant has not been successful in securing employment under the CE scheme which tied in with her long-term requirements. The availability of gardening and painting work . which had been suggested, was not a direction the Complainant wanted to move towards.  

The Complainant confirmed that Ms. L was her supervisor for the purpose of the CE scheme though it is not clear that Ms. L was ever particularly hands on. I do understand though, that Ms. L received time sheets on a weekly basis which were submitted by Ms. L to the Department of Social Protection for the purpose of payment.

The witness Mr BS gave evidence as to the status of Tipperary Centre for independent Living.  He has asserted that at all times Tipperary Centre for independent Living acknowledges that it is the correct Employer and that the Complainant is placed by it in a position  to gain experience. Ms. L is the CE supervisor and is described as the sponsor of the CE scheme. Most importantly Mr BS invited me to consider the Contract of Employment entered into between the complainant Tipperary Centre for independent Living as they entered their second year operating under the scheme. This Contract was signed by the complainant as of January 8th, 2024, and was the Contract of employment relevant to the employment when DR opted to terminate the placement.

In response to the workplace complaint form lodged, the Respondent herein on the 29th of May 2024 replied by a letter dated the 12th of June 2024 stating:

We wish to acknowledge receipt of your letter dated 4tl June 2024.

On behalf of North Munster Citizens Information Services, I would like to advise you that the complainant is not an employee of this company. As indicated in their statement "l am a CE scheme worker placed in Citizens Information Centre, Thurles."

The letter goes on to describe the Tipperary Centre for Independent living as the Employer.

The Complainant replied as follows:

I would like to take this opportunity to respond to the email from Citizen Information Service dated 12 – 06 – 2024 in reply to my complaint Referenced above.

I had been on work placement in Thurles Citizen Information Centre from July 2022 until 27th May 2024 when I was unfairly dismissed without finding.

My first work placement with Citizen Information Centre was through North Tipperary Development Programme on a TUS programme in July 2022.

In March 2023 I transferred onto a CE Scheme through TCIL (Tipperary Centre for Independent Living) and my Work Placement continued in Thurles Citizen Information Centre.

TCIL was my sponsor and Citizen Information Centre was the end user of the service they provided.

My work placement in Citizen Information Centre had been extended through TCIL until February 2025.

I was interviewed by the Development Manager of Thurles Citizen Information Centre for my TUS work placement in June 2022.

I signed a work placement contract / agreement adhering to policies and procedure, health and safety guidelines in compliance with the terms of Citizen Information Centre before I commenced my work placement [2022] in Citizen Information Centre Thurles Office.

I completed an induction when I commenced my work placement in Citizen Information Centre. I completed all inhouse training for the work positions I filled in Citizen Information Centre, and I advanced from reception duties to becoming an Information Officer during my 2year placement.

For the duration of the time that I was in Thurles Citizen Information Centre I reported to the Development Manager who was also placed in the Thurles office. My work duties were decided by the development manager as was my rota. My days off and my holidays had to be approved by the development manager and any time allocated to training and qualifications had to be approved and allotted by the development manager also.

Workplace Relations Commission 2.docx 19 of 113 Please note that the complaint I have lodged is in relation to my unfair dismissal from my work position in the Thurles Citizen Information Centre was following an inaccurate allegation of breach of Data Protection and Confidentiality which was not formally investigated but one which I was penalised for and lost my work placement and lost the opportunity of any further employment within the Citizen Information Centre.

This is a very serious accusation and one which has had a serious impact on my professional career. I revert back to your office for further correspondence relating to this matter.

A more comprehensive submission was thereafter presented by the Respondent in early September 2024.

On balance I find that the complainant has not been able to establish that the Respondent named herein was her Employer (save for one short unrelated period of a three-month fixed term period). There was, in fact, no ambiguity about how this scheme operated and the Complainant knew or ought to have known that she was on a placement for the purpose of gaining experience and that, as such, the engagement was always capable of being terminated with or without explanation.

I have much sympathy for the complainant who clearly loved this position. She feels her termination was unjustified and on the face of it I can accept that the decision made by DR seemed arbitrary and unreasonable. However, neither DR nor the Respondent entity which he represents is obliged to justify the actions taken. This Respondent was not the Employer for the purpose of this arrangement. I find I must accept the Respondent assertion as pronounced by the Labour Court in the case of Akina Dada Wa Africa  -v-  Claudia Horeau UDD216 :

‘..that for a Complainant to enjoy the protections of the Unfair Dismissals Act 1977 there must be a Contract of Employment in place at the date of the alleged Dismissal’

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

CA-00063793-001  - The complaint herein is dismissed as being misconceived. The Complainant was not an Employee of the named Respondent on the 27th of May 2024.