Complainant

Respondent

Parties

Ame  Abdurahman

Munster Technological University

Representatives

Barry Coughlan – Legal Affairs

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00062065-001

07/03/2024

The Complainant was a student and for a period a student union officer at the Respondent’s institution. He claimed he was discriminated against, on the grounds of race & disability, by the Respondent. The Complainant referred to four specific incidents.

The Respondent submitted the Complainant’s claim could not proceed as he was not an employee or a worker at the Respondent. It also submitted that some of the incidents were out of time as they allegedly occurred beyond the prescribed six-month time limit.

The Complainant stated that he was a former student and form Student Union Officer of the Respondent. 

The Complainant set out that he had a disability in that he came from a country of conflict, specifically Ethiopia. He is now an Irish citizen. He suffered physical and mental trauma. The Complainant was treated for anxiety and has diabetes. Unfortunately, the Complainant’s property had recently been broken into which was also affecting him currently.

The Complainant then took an affirmation and gave his evidence in chief. He set out how he was a 43-year-old man with an African background. He was a former student and former Student Officer of the Respondent. He felt he had suffered harmful discrimination and been alienated by others.  The Complainant has had mental health difficulties as a result and had to stop his education.

The Complainant was a former equality officer. This was an active role, and he was on the executive team. The Complainant was dedicated to this role. He established the Equality Officer Twitter account in early September/October 2023. He needed a telephone for this, there was various charges for it and around €20 per month. He asked the President of the Student Union. The President did not approve the funding of the telephone. He was advised not to do this. The Complainant believed he was responsible and could make this decision. There was a general assembly proposal. He had emailed the Student Union requesting that a treasury account be set up to ensure he could do his role but never received an answer.

On the 7th of October 2023 there was a demonstration, and the Complainant tried to print leaflets. He used his own account, and the printer did not work. He asked the President of the Student Union to follow this up. 

On the 15th of March 2024, the Complainant emailed a report to the Returning Officer in relation to the college election. The Complainant discussed the constitution of the Student Union. All officers were to provide a report if an election was held without following the procedure. The Complainant felt ignored, isolated, and was denied the opportunity to do the job and the training. He wanted to have the chance to run for President or Vice President.

The Complainant submitted that as a Student Union Officer he had a part-time job. The President could approve money for him. He accepted he received no salary. He did not sign a contract of employment. The Complainant asked the President about the role. The Complainant requested details of his role in writing. 

In 2021 – 2022 the Complainant received money from student support. 

The Complainant had to stop his education due to money.  He registered but could not pay his fees.  In July 2023 he stopped his studies. He was currently undertaking exams. 

In relation to the innovation training. This is training to establish a business. The Complainant considered it vocational training. He started it in November 2022 and undertook eight weeks training. It ended in February 2023. 

There was an incident where a speaker made a comparison that offended the Complainant. He referenced a Nobel Prize winner who lost his title due to remarks on race. The Complainant believed that it was inappropriate for the speaker to reference him. It showed how prevalent the structural racism is. 

The Complainant believed that the matters were in time. The innovation challenge was in time as there was a letter from February 2023 and an email in that timeframe. There was a further email in April or May 2023. He sought clarity in relation to the position and there was further communications in relation to it.

In relation to the academic issues these occurred as recently as the 13th of September 2023 when there was a meeting with the academic committee.

The Complainant was not applying for an extension of time.

The Respondent was represented and the Vice President also attended.

The Respondent’s representative submitted there had been engagement between the Respondent’s disability services and the Complainant but no certificate in relation to his conditions have been provided. 

The Respondent’s representative submitted that a number of allegations put forward by the Complainant, had never been heard by them before.

The Respondent provided an opening statement. There were four issues put forward by the Complainant. Others were not validly before the WRC. Whilst the Complainant might be unhappy with things, there was no evidence of discrimination. 

The Respondent set out that the Complainant was not an employee or a worker, he was a student. He never had an employed role. The equality officer was a voluntary role. Some take a sabbatical for that year; however, the Complainant continued his studies. 

In relation to the New Frontiers, the Complainant had participated in phase one which is not paid. He did not progress to stage two.

In relation to Uni jobs, these are for open day. The Respondent engages an agency to provide workers. The Complainant was employed by an agency. The contract was for one day. Those incidents are not relevant.

In relation to vocational training the Complainant undertook a business course not vocational training. 

The Respondent submitted that there were two separate programmes being raised; an innovation challenge and new frontiers. The innovation challenge was extra-curricular. There is a prize to be won, it is run across different disciplines. The aim is to develop an innovative project. There is  a scientific element.

New frontiers on the other hand, has two phases. The aim is to develop entrepreneurs. Participants prepare a business proposal which is reviewed. Then some progress to phase two when they are funded and receive mentors. 

The Respondent also raised an issue over time. Some of the allegations appear to arise in February 2022, November 2021, and February 2023. They are outside of the allocated time allowed. The complaint form was received in the WRC on the 7th of March 2024. Six months back from that is the 7th of September 2023. The incidents are not linked. The innovative challenge occurred in February 2022 and February 2023. No extension was sought, and this was over 12 months ago. Then there are academic issues which are undated. Thirdly there is the bursary issue which occurred in the academic year 2021/2022 and 2022/2023. The last academic date 31 August 2023, therefore, the Complainant was outside of the time period in relation to that. The only complaint in time was the fourth issue in relation to the printer which occurred on the 3rd of October 2023. No complaint was ever raised internally about it.

The first matter for me to consider is if the relationship between the Complainant and the Respondent comes within the scope of the Employment Equality Act, 1998 as amended. The Complainant asserted that he was an employee of the Respondent. The Respondent rejected this proposition.

Section 2 of the Acts provides the following definitions:

“employee”, subject to subsection (3), means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and, where the context admits, includes a member or former member of a regulatory body, but, so far as regards access to employment, does not include a person employed in another person's home for the provision of personal services for persons residing in that home where the services affect the private or family life of those persons;

“employer”, subject to subsection (3), means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;

“contract of employment” means, subject to subsection (3)—

(a) a contract of service or apprenticeship, or (b) any other contract whereby— (i) an individual agrees with another person personally to execute any work or service for that person, or (ii) an individual agrees with a person carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 to do or perform personally any work or service for another person (whether or not the other person is a party to the contract),

whether the contract is express or implied and, if express, whether oral or written;”

The scope of the Acts is not limited to a person employed pursuant to a contract of employment, and it encompasses self-employed persons.

In this case, it was argued that the Complainant was engaged under a contract of service i.e. he was an employee of the Respondent.

The test to determine employment status has recently been determined by the Supreme Court in The Revenue Commissioners v Karshan (Midlands) Ltd t/a Domino’s Pizza [2023] IESC 24. It is reflected in the updated Code of Practice on Determining Employment Status.

The Court detailed a methodology to apply when analysing the factual matrix of a particular claim to determine if the contract was one of or for service. Murray J concluded that the question of whether a contract is one of service or for services should be resolved by reference to the following five-step framework:

“1.       Does the contract involve the exchange of wage or other remuneration for work?

2.       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?

3.       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?

4.       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.

5.       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.”

The first three questions are a filter, and if any of the three questions are answered in the negative there can be no contract of service.

Exchange of wage or other remuneration for work

The first question I must consider is whether the parties have entered into a contract at all (whether expressed or implied). For a contract of employment to exist, there has to be an offer of work, acceptance of that offer, and resulting payment or “consideration”.

If there was payment by the Respondent to the Complainant for a service directly or indirectly for the provision of the Complainant’s labour, whether agreed in writing or not, and whether the work is carried out on a once off basis or on a continuous basis or anything in between, there is a contract which is capable of being an employment contract.

The Complainant accepts he did not receive any payment from the Respondent. He sought the discharge of the costs of a phone, but this was refused. The Complainant received financial assistance with some of his educational costs, but these were not in exchange for the Complainant’s labour.

Taking all of the above into consideration, I find that the first question must be answered negatively in the circumstances. There was no exchange of wage or other remuneration for work.

Consequently, the Complainant does not come within the definition of an employee under the Act.

There was no proposition put forward that the Complainant’s relationship with the Respondent was of any other category encompassed by the Act other than that of a contract of service. On that basis, the Complainant has no locus standi to bring a claim against the Respondent pursuant to the Employment Equality Act.

In light of my finding on the preliminary matter of the status of the Complainant’s employment, I declare this complaint to be not well founded.

Discrimination; employment status