Complainant

Respondent

Anonymised Parties

Complainant

Respondent

Representatives

Self-Represented

Ms Christina O’Byrne BL instructed by Ms Meghan McSweeney Bird & Bird (Ireland) LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00065549-001

21/08/2024

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

CA-00065549-002

21/08/2024

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

CA-00065549-003

21/08/2024

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

CA-00065549-004

21/08/2024

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

CA-00065549-011

21/08/2024

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

CA-00065549-012

21/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998

CA-00065549-014

21/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00065549-015

21/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Protection of Young Persons (Employment) Act, 1996

CA-00065549-016

21/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00065549-017

21/08/2024

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

CA-00065549-018

21/08/2024

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

CA-00065549-019

21/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 4 of the Protection of Persons Reporting Child Abuse Act, 1998

CA-00065549-020

21/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00065549-021

21/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00065549-022

21/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00065549-023

21/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00065549-024

21/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00065549-025

21/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00065549-026

21/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 19 of the Carer's Leave Act 2001

CA-00065549-027

21/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00065549-028

21/08/2024

These matters came before the Workplace Relations Commission dated 21/08/2024 as 21 complaints submitted under various employment rights legislation and equality legislation set out above.   The aforesaid complaints were referred to me for investigation.  A hearing for that purpose was scheduled to take place on 23/01/2025. 

The Complainant and his wife are a host family in a cultural exchange programme and they host international students in their home.  The Respondent is a student exchange programme operating in the United States since 1979 and in Ireland since the early 2000s. 

The Respondent raised a preliminary issue at the outset in terms of my jurisdiction on the basis the Complainant is not an employee and does not have standing to bring complaints grounded in employment rights legislation before the WRC; and on the basis the Complainant was not availing of a service provided by the Respondent and does not have standing to bring a complaint under the Equal Status Act 2000. 

Submissions were heard from both parties on the preliminary issue. 

It was explained to the parties at hearing, having reserved my position on the preliminary issue, that there would be a hearing scheduled to hear the substantive matters in the event I make a ruling on the preliminary issue that finds that I have jurisdiction. 

It was explained to the parties that in the event I find in favour of the Respondent on the matter of the preliminary issue of jurisdiction there will not be any further hearing as I would then be precluded from determining on the substantive matters.

To ensure clarity and understanding I reaffirmed that if I were satisfied of jurisdiction the hearing would be reconvened to allow the parties to give evidence on the substantive matter.  If it was clear that I had no jurisdiction there would be no requirement to reconvene to hear the substantive matters and a decision would issue. 

As the Complainant presented as a litigant in person I advised him by correspondence of 25/03/2025 that I had carefully considered the question of jurisdiction and I set out for him in detail the rationale underpinning the ruling I intended making on the matter.  The Complainant forward a replying submission which was considered by me and forwarded to the Respondent in order that they might exercise the right of reply in line with fair procedures and fairness to both parties. 

In circumstances whereby a ruling on the preliminary jurisdictional issue may be determinative of the entire proceedings, it will be considered in advance of the substantive matter. 

The Complainant submits he definitely entered into a contract and he signed an agreement and he provides a 24hour service.  The Complainant submits there is so much involved in looking after the students and he is made to and told to chaperone them 24 hours. 

The Complainant submits the Respondent had control over them and treated them as employees and it was a full time job.  The Complainant submits you shouldn’t have to sign anything if you are a volunteer.  The Complainant submits they are doing all the hard work at home and they should get paid for it.  The Complainant’s wife submits she is standing here today for all the women who work in the home and she submits she takes care of the students she does their homework with them and the Respondent is making their profit. 

The Complainant in written post-hearing submissions further to my correspondence of 25/03/2025 on the matter of employment status and jurisdiction makes reference to numerous contract law principles and provisions which fall outside of the remit of the within complaints and outside of my ruling on the matter of my jurisdiction on the basis of the impleaded employment rights legislation and whether or not the Complainant has locus standi to bring these 21 complaints in the first instance.    

The Respondent submits the Complainant has not demonstrated that they were employees of, or workers for, the Respondent.  The Respondent submits the Complainant was not remunerated in exchange for work.  The Respondent submits the hosting of a third party, i.e., the student, in the family home is a cultural exchange and is not the provision of work.  The Respondent submits the host family contribution is a stipend paid to host families and does not meet the definition of wages under Irish employment law, namely the Payment of Wages Act, 1991. 

The guidance notes for a hearing issued by the WRC in July 2021 states that in the vast majority of cases the AO will take evidence in relation to the preliminary points raised from both and then proceed to hear the substantive claims.  The use of the word “majority” is noteworthy.   

I am mindful of the case of Guerin v. SR Technics Ireland Limited[UD969/2009] where the Employment Appeals Tribunal was asked to make a decision on a preliminary matter before moving to hearing the substantive case and given the significant preliminary point raised the Tribunal moved to hear the preliminary matter first and reach a decision on same. 

Furthermore, in the case of Bus Eireann v. SIPTU[PTD8/2004] the Labour Court indicated that a preliminary point should be determined separately from other issues arising in a case “where it could lead to considerable savings in both time and expense” and where the point was “a question of pure law where no evidence was needed and where no further information was required.”

In the case of Donal Gillespie v. Donegal Meat Processers[UD/20/135] the Labour Court dealt with the matter by expressing the view that in asking for the substantive issue and the jurisdictional issue to be heard together was “akin to asking the court to exercise its jurisdiction before it determines whether or not it has jurisdiction in the first instance.”

In Brothers of Charity (Roscommon) Ltd. v. Marian Keigher EDA1014, the Labour Court considered the determination of an issue by way of preliminary decision. The Labour Court referred to the judgments of Kenny J in Tara Explorations and Development Co. Ltd v. Minister for Industry and Commerce [1975] IR 242; and Hardiman J. in B.T.F. v. Director of Public Prosecutions 2 ILRM 367.   In the latter case 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…

Following the caselaw outlined above and particularly the case of B.T.F. v. Director of Public Prosecutions I find that there is a “strong case” for determining this matter by way of preliminary decision.

Furthermore, I am obliged at all times to consider that which constitutes the most efficient and effective use of the resources of the WRC. 

Accordingly, I will address the matter of jurisdiction at the outset in circumstances whereby this matter may be determinative of the entire proceedings. 

Equal Status Complaints

The purpose of the Equal Status Acts was explained in detail at hearing.    The Equal Status Acts 2000-2018 prohibit discrimination in the provision of goods and services, accommodation and education.  They cover the nine grounds of gender, marital status, family status, age, disability, sexual orientation, race, religion, and membership of the Traveller community.

In addition, the Acts prohibit discrimination in the provision of accommodation services against people who are in receipt of rent supplement, housing assistance, or social welfare payments.

Section 5 (1) of the Equal Status Act 2000 provides:-

“5.—(1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”

For completeness Section 2 (1) of the Act defines what constitutes a “service”:

“service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes— [emphasis added]

(a) access to and the use of any place,

(b) facilities for—

(i) banking, insurance, grants, loans, credit or financing,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

(d) a professional or trade service,

but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies;

I note the meaning of the term “goods and services” together with the concept of “the public generally or a section of the public” was discussed at hearing and whether or not the Complainant  was the recipient of a service or goods available to the public generally so as to give him locus standi to implead the Equal Status Act.  I am satisfied the Complainant was not in receipt of or availing of any service from the Respondent. 

It is well established there is an onus on a complainant seeking redress pursuant to the Act to establish that (a) he sought to access a service of the Respondent that was available to the public generally and (b) he was discriminated against on at least one of the stated grounds of discrimination. 

I find this claim as presented is not well-founded. 

Section 22 of the Equal Status Acts provides for dismissal of claims as follows:-

“22.— The Director may dismiss a claim at any stage in the investigation if he or she is of opinion that the claim has been made in bad faith or is frivolous or vexatious, misconceived or relates to a trivial matter.”

It is widely accepted by the Courts that the terms are legal terms which can be often used interchangeably as held by the Barron J in Farley v Ireland [1997] IESC 60

“So far as the legality of matters is concerned frivolous and vexatious are legal terms. They are not pejorative in the sense or possibly in the sense that Mr. Farley may think they are. It is merely a question of saying that so far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case.

Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed, and the law calls that vexatious”.

The terms “frivolous or vexatious” were carefully considered by the High Court in Patrick Kelly v The Information Commissioner [2014] IEHC 479 which is instructive as to the meaning of these terms:

“As a matter of Irish law, the term “frivolous or vexatious” does not, as noted by Birmingham J. in Nowak, necessarily carry any pejorative connotations but is more concerned with the situation where the litigation (or, in this instance, application) can be described as futile, misconceived or bound to fail.”  [emphasis added]

In conclusion, based on all the foregoing, I am satisfied that this claim as presented is futile and bound to fail because I do not have jurisdiction in the first instance to determine on the substantive matter as the Complainant does not have locus standi under the impleaded act. 

Employment Equality Complaints

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;”

Employment Status

In Karshan (Midlands) Ltd t/a Domino’s Pizza [2023] IESC 24, the notion of a ‘test’ to determine employment status was rejected with Murray J concluding that every case turns on its particular facts and that it is necessary to assess all relevant features of the relationship, identifying those features that are and are not consistent with an employment contract and “determining based upon the sum of those parts the correct characterisation”.  

Murray J outlined that the framework in Ready Mixed Concrete (South East) Ltd. v. Minister for Pensions and National Insurance [1968] 2 QB 497 and developed in Market Investigations v. Minister of Social Security [1969] 2 QB 173 (decisions later endorsed and applied in the Denny judgment) remain a “reliable structure for the identification of a contract of employment”, concluding that the question of whether a contract is one of service or for services should be resolved by reference to the following five questions:

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. 

If all three questions are answered positively, the decision maker must then proceed to look at all the facts to ascertain the true nature of the relationship.

I am satisfied that the correct approach to the issue is as per the Supreme Court’s decision in Karshan.  The Supreme Court reviewed the case law and various ‘tests’ for determining a worker’s status, and reformulated and restated the approach to the question of employment status.

I have considered the first question set out above and I am satisfied there was no exchange of wage or other remuneration for work. 

There was an agreement between the parties namely a Host Family Agreement which provides as follows under the heading Host Family Grant Contribution:

“I understand and agree to the host family contribution amount €500 per month set by [REDACTED].  I understand this amount is a contribution to assist with the related costs of hosting an exchange student and not intended to cover all expenditures.  I understand that the general household costs (food, drink, heating, water, gas/electricity, Wi-Fi etc.) are covered within the grant that is paid from [REDACTED] …”

I am satisfied that the Complainant entered into an agreement with the Respondent to provide room and board in his home for students for which he is offered financial support to cover some of the day-to-day costs of hosting a student in his home.  I am satisfied this financial assistance to cover some of the day-to-day costs was not in exchange for the Complainant’s labour.  

I am unable to find this grant contribution constitutes a wage or remuneration for labour.  I am unable to conclude the aforesaid agreement falls within the definition of a contract of service even by imputing the most expansive meaning possible to the terms of the aforesaid agreement.  I find that the first question must be answered negatively in the circumstances and, accordingly, it is not necessary to consider the matter any further because there can be no contract of service under the Act.

I find the Complainant does not fall within the definition of an employee under the Employment Equality Act, 1998. 

Employment Rights Complaints

I note it was explained at hearing on 23/01/2025 that the essential prerequisite in considering the various complaints is that a complainant falls within the definition of employee as set out in the many disparate pieces of legislation invoked by the Complainant. 

The approach to determining employment status as established by the Supreme Court in Karshan is set out above. 

I am satisfied that the Complainant entered into an agreement with the Respondent to provide room and board in his home for students for which he is offered financial support to cover some of the day-to-day costs of hosting a student in his home.  I am unable to find this grant contribution constitutes a wage or remuneration for labour. 

I am unable to conclude the aforesaid agreement falls within the definition of a contract of service even by imputing the most expansive meaning possible to the terms of the aforesaid agreement. 

Section 42(1) of the 2015 Act is entitled “Dismissal of claim by adjudication officer” and provides as follows:

“42(1) An adjudication officer may, at any time, dismiss a complaint or dispute referred to him or her under section 41 if he or she is of the opinion that it is frivolous or vexatious.”

It is widely accepted by the Courts that the terms “frivolous” and “vexatious” are legal terms which can be often used interchangeably as held by the Barron J in James Farley v. Ireland, An Taoiseach, Cabinet Ministers and the Attorney General [1997] IESC 60:

“So far as the legality of matters is concerned frivolous and vexatious are legal terms. They are not pejorative in the sense or possibly in the sense that Mr. Farley may think they are. It is merely a question of saying that so far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case.

Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed, and the law calls that vexatious.”

Birmingham J provided a legal definition of “frivolous” in Peter Nowak v. Data Protection Commissioner [2012] IEHC 499, where he held that: “frivolous, in this context does not mean only foolish or silly, but rather a complaint that was futile, or misconceived or hopeless in the sense that it was incapable of achieving the desired outcome”. 

I further note in J.O’N v S McD & Others [2013] IEHC 135, Birmingham J, in considering applications made by the defendants to strike out the plaintiff’s claim for failing to disclose a reasonable cause of action and as being frivolous and/or vexatious, described the words “frivolous” and “vexatious” as follows:

“…the words “frivolous” and “vexatious” are terms of art, they are legal terms and they are not used in a pejorative sense. They merely mean that the plaintiff has no reasonable chance of succeeding and that, because there is no reasonable chance of success, it is frivolous to bring the case. By the same token it imposes a hardship on the defendant if he has to expend time, effort and money in defending an action which cannot succeed and that is regarded as vexatious…”

In dismissing the plaintiff’s case, Birmingham J stated as follows:

“…In my view the plaintiff has no reasonable chance of succeeding against the first named defendant and it would be oppressive to require the defendant to have to take on the burden of defending proceedings which are fundamentally misconceived…”

I also note the decision in Goode Concrete v CRH plc [2012] IEHC 116 wherein, at para. 36, it was stated:

“A plaintiff's right of access to the Courts is not absolute and the Court has jurisdiction to prevent the right being abused by, for example, dismissing a case for inordinate delay or as frivolous, vexatious or bound fail in order to prevent injustice to a defendant (see Barry v Buckley [1981] IR 306).”

In Loughrey v Dolan [2012] IEHC 578 Laffoy J relied on a decision of the Ontario High Court of Justice in Re Lang Michener and Fabian (1987) 37 D.L.R. (4th) 685, cited by the High Court in Riordan v Ireland (No. 5) [2001] 4 I.R. 463 and Behan v McGinley  [2011] 1 I.R. 46, and which listed a number of factors which tend to indicate that proceedings may potentially be vexatious in nature and thus amenable to being struck out. These factors, which are not meant to be exhaustive, and include as follows:

(a) whether the issues in dispute are matters which have already been determined by a court of competent jurisdiction, i.e. res judicata;

(b) where it is obvious that an action cannot succeed, or if the action will lead to no possible good, or if no reasonable person can expect to obtain relief;

(c) where the action is brought for an improper purpose, including harassment and oppression of other parties, as opposed to asserting legitimate legal rights;

(d) where grounds and issues sought to be litigated tend to be rolled forward into subsequent actions and repeated and supplemented;

(e) where the person instituting the proceedings has failed to pay the costs of unsuccessfulproceedings;

(f) where the plaintiff persistently takes unsuccessful appeals against judicial decisions.

(g) where there is the persistent taking of unsuccessful appeals from judicial decisions.

The terms “frivolous or vexatious” were carefully considered by the High Court in Patrick Kelly v. The Information Commissioner [2014] IEHC 479 which is instructive as to the meaning of these terms:

“As a matter of Irish law, the term “frivolous or vexatious” does not, as noted by Birmingham J. in Nowak, necessarily carry any pejorative connotations but is more concerned with the situation where the litigation (or, in this instance, application) can be described as futile, misconceived or bound to fail.”

I am bound to conclude the complaints filed with the WRC by the Complainant are misconceived because the Complainant is not an employee of the Respondent and he does not have locus standi under the impleaded Acts. 

I do not suggest the Complainant acted vexatiously in filing these complaints.  I find it is case of misguided submissions under legislation that did not apply to him.  Accordingly, I am satisfied that these complaints are misconceived and bound to fail. 

CA-00065549-001/2/3/4/11/12/14/16/17/18/19/20/21/22/23/24/25/26/27/28

For the reasons stated above I dismiss the complaints in accordance with section 42 of the Workplace Relations Act, 2015.

CA-00065549-015

For the reasons stated above I dismiss this complaint in accordance with section 22 of the Equal Status Act, 2000. 

Employment status; host family; cultural exchange;