Complainant

Respondent

Parties

Celine  Murphy

Finglas Support And Suicide Prevention Network CLG.

Complainant

Respondent

 Parties

Celine  Murphy

Finglas Support and Suicide Prevention Network CLG

Representatives

James McEvoy Work Matters Ireland

 Diarmid MacDubhglais Chair

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-00065980-001

14/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00065980-003

14/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00065980-004

14/09/2024

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

CA-00065980-005

14/09/2024

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

CA-00065980-006

14/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00065980-007

14/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00065980-008

14/09/2024

The Complainant had worked for the Respondent previously in the position of Student Counsellor/Volunteer.

The Complainant stated that she was employed by the Respondent. This is denied by the Respondent who stated that the Complainant was on a self-employed contract or a contract for services.

There are multiple claims brought by the Complainant based on her alleged status as an employee.

At the hearing the relatively recent Supreme Court case in The Revenue Commissioners v Karshan (Midlands) Ltd t/a Domino’s Pizza [2023] IESC 24 was relied upon by the Complainant to ground her claim for a contract of service.

The Complainant had worked for the Respondent previously in the position of Student Counsellor/Volunteer.

 Subsequently in March 2022, she was employed by the Respondent as Clinical Coordinator until her resignation, because of alleged Bullying in March 2023.  On foot of this resignation, the Respondent was unable to remain viable as the Complainant acted as co-ordinator between a Third Level College who ran counselling programmes where she supervised their student placements with the Respondent. When she left the obligation to have a qualified supervisor could not be met.

In November 2023, the Complainant was contacted by Helena Moran a board member with the proposal to meet to discuss her return to the organisation to enable a reopening of the facilities. The Complainant met with Ms Moran and Sandra Dillon another board member to discuss the position, responsibilities, and requirements. The Complainant raised concerns in relation to bullying while previously employed. She was assured that there was no risk of a repeat of such behaviour as the alleged perpetuator was no longer working at the organisation.

It was agreed that the Complainant would return to work in January 2025. The contract was signed on January 15th, 2024.  The agreed number of hours per week was 16.  The agreed hourly rate of pay was €25ph. For payment purposes the Complainant was required to submit weekly “Employee Time Sheets”, detailing her hours worked to the Respondent and the Complainant was not provided with payslips.

On March 27th, 2024, following the discovery by the Complainant of WhatsApp inappropriate conversations between the Chair of the Board to other Board members, the Complainant submitted a formal Complaint raising concerns relating to matters of Bullying & Discrimination. Those messages it is alleged, between board members showed an animus towards the Complainant.  It is submitted that on receipt of this Complaint the Respondent began to treat the Complainant differently, attempted to classify her as self-employed and ultimately terminated her employment on 23rd of May 2024.

The Respondent stated that the Complainant has no standing to bring the complaints as she is not an employee.

In any case the matters complained about are old and dated. The Complainant should not have accessed private WhatsApp messages that may have related to her previous engagement at the service.

The services of the Complainant were not ended arising from any complaint. What occurred was a right to end a contract for services as is the norm for such an arrangement.

The Complainant did raise an issue; however, that matter had occurred prior to her new contract.

The Board did take her grievance seriously; however, she failed to engage with the Board. Thereafter, the contract for service came to a natural end as is the right of the Board to end such contracts.

The test to determine employment status must be made having regard to the Supreme Court ruling in The Revenue Commissioners v Karshan (Midlands) Ltd t/a Domino’s Pizza [2023] IESC 24 and I quote directly from that decision concerning the questions that are detailed so that the status of an employee maybe determined.

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.

The following are questions that should be referenced:

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

The contract did involve the exchange of wage/remuneration for work, which involved overseeing the voluntary counselling work of students who attended at the college for work experience while also providing a service to the community.

(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?

The Complainant in this case was providing the services personally.

(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?

The Complainant had a high level of autonomy as the only qualified counsellor. The fact that she was the only professional counsellor is like an organisation employing an engineer or other professional. The level of professional autonomy while a factor must be viewed against the backdrop of the control exercised by the employer. That oversight and control was exercised by the board by determining clear goals, the number of hours of work per week to be worked, where she was required to attend and who she must supervise and what college she would liaise with. This level of control contrasts sufficiently with a contract for service where such control would not exist. There was no right of substitution.

(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.

In answering the first 3 questions I have determined that the terms of the contract when interpreted in the light of the factual matrix and the working arrangements between the parties based on the oral evidence at the hearing and the supporting documentation opened is a contract of service and not for service.

(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

Nothing further arises in a particular legislative regime that would require any conclusion reached to be changed. On the facts I determine that the contract was a contract of service.

On balance the facts show that the employment ended arising from the Complainant raising a grievance about highly abusive WhatsApp messages by board members made against the Complainant. The evidence of the Complainant is credible that the Board went into a defensive mode and rather than addressing the wrong that on the face of the WhatsApp message had occurred, decided to move the Complainant out of the organisation. The Board should have ensured that the complaint was independently examined; however, as it related to board members that did not happen. On balance the services of the employee would have continued but for the complaint she made about the WhatsApp messages and that they amounted to bullying and were clearly abusive.

CA-00065980-001:   Unfair Dismissal/ Penalisation:

The Complainant states that they were dismissed by their employer for raising a complaint about being bullied: “I was dismissed from my employment because I raised a Complaint of Bullying with my employer”.

In Paul O’Neill v Tony & Guy Blackrock Limited [2010] ELR 21, the Labour Court made the following comments in relation to the “but for” test:

“The detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of, the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he, or she, would not have suffered the detriment. This involves the consideration of the motive, or reasons, which influenced the decision maker in imposing the impugned detriment

I have found that on balance the contract of service was terminated arising from the Complainant raising a grievance. The fact that the narrative complained about related to her last period of service is not the main relevant fact, rather that her employment ended because she raised a complaint.

 CA-00065980-003: Holidays further to section 27 of the Organisation of Working Time Act, 1997:

The Complainant took Annual Leave on the 08/04/24 and returned to work on 16/04/24.  While on Annual Leave the Complainant received her normal payment on 11/04/24 and continued to be paid as normal until 25/04/24.  The Complainant received no payment on 02/05/24. This was queried by the Treasurer, Ms Elaine Mc Dermott on 08/05/24. Ms McDermott informed the Complainant she had been "overpaid" for the week taken as Annual Leave. Ms McDermott also stated that she was "not prepared to pay any money" until the complainant provided her with a tax reference number.

 The Complaint submits, as an employee, she was entitled to annual leave, the leave had been requested and approved by the Respondent and therefore should have been paid. The fact no payment was made means that during her time with the Respondent she took no Annual Leave and at the time of termination had accrued one week’s annual leave equivalent to the sum of €400.

CA-00065980-004: Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005:

The Complainant commenced work with the Respondent on 15th January 2024.

In the Commission form the complaint is expressed as follows:

I had raised a Complaint of Bullying which affected my health and safety at work. I believe my employment was terminated as a result.

 For the period January 15,2024 to May 02 204 payment was made to the Complainant, without issue. However, after the submission of her Complaint of Bullying & Discrimination it is alleged, there was a change in the behaviour of the Respondent. The equivalent of a week’s wage, the amount of €400 was deducted from the Complainants pay. The Respondent claimed the Complainant was not entitled to be paid for holidays. The Respondent began to send communications to the Complainant suggesting that she was self-employed and requesting her tax registration details. The Complainant stated that no communications of this nature were issued prior to the submission of the Bullying and Discrimination complaint.

 The Complainant alleges that the contract makes no reference to self-employment or it being a contract for service. The Respondent has given the reason (among others) for termination of employment as the Complainant was out of contract.  The Complainant stated that the contract does not specify an end date.

 In an email dated May 07, 2025, Mr Diarmuid Mac Dubhghlais writes to the Complainant accusing her of committing a breach of GDPR regulations and inviting her to a meeting to address the matter. It is submitted that these allegations are without foundation and amount to a further act of Penalisation on behalf of the Respondent.

 In the termination email Mr Mac Dubhghlais stated that the Complainant had failed to make arrangements to meet the Board. This is untrue and is evidenced in communications with Ms Dillon of May 22. It is submitted that the decision of, Treasurer, Ms Elaine McDermott, to withhold payment to the Complainant is an act of Penalisation. The Respondent had previously made payment to the Complainant, without any tax registration number.  It is submitted that the Complainant was Penalised by the Respondent for making a Complainant related to her Health & Safety in the workplace.

The act of nonpayment of holidays could be determined to be penalisation. However, I have dealt with that claim under the Organisation Time Work Act and decide to make any further award would amount to double compensation.

The act of termination I have dealt with as an Unfair Dismissal and am precluded from making an award under both the Unfair Dismissal’s Act and the Safety, Health and Welfare at work Act.

CA-00065980-005: Section 12 of the Minimum Notice & Terms of Employment Act, 1973:

The Complainant has stated that she did not receive her legally entitled notice period of one week of her employer’s intention to terminate her employment. The Complainant is seeking payment of the equivalent of one week’s pay, equal to the sum of €400 for breach of the Act. The employment began on the 15th of January 2025 and ended on the 23rd of May 2025.

Section 3 of the Act states:

3.—(1) This Act shall not apply to—

(a) employment of an employee who is normally expected to work for the same employer for less than eighteen hours in a week

And in the first schedule it states:

Computable Service

8. Any week in which an employee is not normally expected to work for at least eighteen hours or more will not count in computing a period of service.

Based on the submission the following are the hours worked:

The agreed number of hours per week was 16 hours and the agreed hourly rate of pay was €25ph.

On these facts the Complainant’s weeks for the purpose of computing notice do not count as she worked 16 hours a week.

CA-00065980-006: section 7 of the Terms of Employment (Information) Act, 1994:

It is alleged that the Complaint was not issued with her Main Statement of Terms and Conditions of Employment as required under the Act. As no terms were provided as detailed in the Act, the amount of compensation for a breach is up to 4 weeks. Based on the circumstances of this case and the fact that this organisation’s work is primarily community based with limited resources, I award 1 week which is €400.

CA-00065980-007 section 6 Payment of Wages Act 1991:

It is alleged that the Complainant received no payment between the dates 05 May 2024 and the termination date of her employment.

It is alleged that the amount unpaid to be €1,100. The evidence to support the higher amount is unclear.

The Complainant’s written submission relates only to the deduction of Holiday pay amounting to €400.

I have dealt with the complaint under the heading of the Organisation Working Time Act and decline to make any further award as it would amount to double compensation.

CA-00065980-008 section 6 Payment of Wages Act 1991:

This is a duplicate complaint about 1 week’s holiday pay deducted from the Complainant equivalent to €400.

CA-00065980-001:   Unfair Dismissal/ Penalisation:

The Complainant states that they were dismissed by their employer for raising a complaint about being bullied: “I was dismissed from my employment because I raised a Complaint of Bullying with my employer”.

Employees are restricted to availing of one of the alternative remedies provided by the Unfair Dismissals Acts and other legislation and in this case penalisation for making a complaint pursuant to section 27 of the Safety, Health and Welfare at Work Act 2005 :

27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

I have found that on balance the contract of service was terminated arising from the Complainant raising a grievance alleging bullying which is a complaint made pursuant to the Safety, Health and Welfare at Work Act 2005. The fact that the narrative complained about related to her last period of service is not the main relevant fact, rather that her employment ended because she raised a complaint concerning her Safety and Welfare at work.

The relationship between the parties has broken down and therefore reinstatement or re-engagement in such a small entity is not an appropriate remedy.

The Act defines loss as:

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;

I note that in In Redmond on Dismissal Law 3rd edition at 24. 31:

‘The legislation does not envisage the deciding body being required to always, or perhaps ever, engage in calculation or mathematical formula by which it determines the extent of the financial loss exclusively to reference by weekly remuneration of an employee’ (Brady v Minister for Social Protection [2016] IEHC 553 Baker J at paragraph 23.

I also note in Dismissal Law the following:

[24.67]

When determining compensation, the WRC must take into account all the circumstances of the case, according to the Supreme Court in Carney v Balkan Tours Ltd. 106 Section 7(1) coupled with s 7(2)(d) allow the adjudication body to look at all the circumstances including the conduct of the parties prior to dismissal.

And:

The Supreme Court 107 held on a case stated from the Circuit Court that:

(1) There was no doubt that the conduct of an employee was material in determining his or her rights to redress under the 1977 Act.

(2) Under s 6 of the 1977 Act, if the dismissal resulted wholly or mainly from the conduct of the employee there would be no right to redress whether by way of reinstatement or compensation. The Court remarked: ‘Indeed one of the surprising features of the present case is that the EAT having found that the claimant “contributed substantially towards her dismissal” ... had satisfied themselves that the employee had not contributed wholly or mainly to her dismissal.’

(3) The discretion conferred upon the tribunal (or other adjudicating body) by s 7 of the 1977 Act in relation to the computation of a payment by way of compensation was very wide.

Allowing for the conduct of the Board and the bias shown to the Complaint resulting in her dismissal, the financial loss as set out is fair and reasonable. The expectation that the services that Complainant would provide were ongoing was a reasonable expectation. The necessity to commence her business after being dismissed continues to give rise to loss.

I have determined that the Complainant was Unfairly Dismissed, and the complaint is well founded.

The consequences of losing this role have impacted the Complainant negatively and her financial losses despite setting up practice privately are significant. In these circumstances the loss must have regard to the actual loss and likely future loss. Having regard to the limited finances of this organisation and the need to make an award that is just and equitable having regard to all the circumstances of this case, I award 6 months pay which is €10,400 gross.

CA-00065980-003: Holidays further to section 27 of the Organisation of Working Time Act, 1997:

The Complainant is looking for compensation of 1 week’s holiday pay amounting to €400. 

It was agreed that the Complainant would return to work in January 2025. The contract was signed on January 15, 2024.  The agreed number of hours per week was 16.  The agreed hourly rate of pay was €25ph. For payment purposes the Complainant was required to submit weekly “Employee Time Sheets”, detailing her hours worked to the Respondent and the Complainant was not provided with payslips.

On March 27,2024, following the discovery by the Complainant of WhatsApp inappropriate conversations between the Chair of the Board to other Board members, the Complainant submitted a formal Complaint raising concerns relating to matters of Bullying & Discrimination.  It is submitted that on receipt of this Complaint the Respondent began to treat the Complainant differently, attempted to classify her as self-employed and ultimately terminated her employment on 23/05/2024.

Based on this period of employment I determine that the Complaint is well founded and award compensation of €400.

CA-00065980-004: Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005:

The Complainant has been penalised arising from her employment terminating arising from making a complaint.

I have made an award of compensation under CA-00065980-001:   Unfair Dismissal/ Penalisation and decline to make an order for compensation under this heading as it would amount to double compensation.

CA-00065980-005: Section 12 of the Minimum Notice & Terms of Employment Act, 1973:

The Complainant has stated that she did not receive her legally entitled notice period of one week of her employer’s intention to terminate her employment. The Complainant is seeking payment of the equivalent of one week’s pay, equal to the sum of €400 for breach of the Act. The employment began on the 15th of January 2025 and ended on the 23rd of May 2025.

Section 3 of the Act states:

3.—(1) This Act shall not apply to—

(a) employment of an employee who is normally expected to work for the same employer for less than eighteen hours in a week

And in the first schedule it states:

Computable Service

8. Any week in which an employee is not normally expected to work for at least eighteen hours or more will not count in computing a period of service.

The complaint is not well founded as the service is not computable as set out in the Act as the Complainant worked 16 hours a week.

CA-00065980-006: section 7 of the Terms of Employment (Information) Act, 1994:

It is alleged that the Complaint was not issued with her Main Statement of Terms and Conditions of Employment as required under the Act. As no terms were provided as detailed in the Act, the amount of compensation for a breach is up to 4 weeks.

The Respondent is in breach of the Act by failing to provide the required information during the first week of employment and the additional information within a month of commencement. The complaint is well founded.

Based on the circumstances of this case and the fact that this organisation’s work is primarily community based with limited resources, I award 1 week which is €400 for breach of the Act.

CA-00065980-007 section 6 Payment of Wages Act 1991:

It is alleged that the Complainant received no payment between the dates 05 May 2024 and the termination date of her employment. The following is detailed the original WRC compalint form:

I received no payment between the dates 05 May 2024 and the termination date of my employment.

I calculate the amount unpaid to be €1,100.

However, the submission states the claim as follows:

8.3: The Complainant received no payment for week commencing 02/05/24. This was queried I was with the Treasurer, Ms Elaine McDermott on 08/05/24. Ms McDermott informed the Complainant she had been "overpaid" for the week taken as Annual Leave. Ms McDermott also stated that she was "not prepared to pay any money" until the complainant provided her with a tax reference number. 8.4: These communications are attached at Appendix 14. 8.5: There is no provision in the Contract for the Respondent to make deductions or withhold payment from the Complainant. 8.6: The Complainant submits that this was an illegal deduction from her wages and is seeking reimbursement for the sum of one week’s wages, a total of €400.

I have dealt with the complaint under the heading of the Organisation Working Time Act and decline to make any further award as it would amount to double compensation.

CA-00065980-008 section 6 Payment of Wages Act 1991:

This is a duplicate complaint about 1 week’s holiday pay deducted from the Complainant equivalent to €400. I have decided on that claim under CA-00065980-003 pursuant to section 27 of the Organisation of Working Time Act, 1997 and to make another award would amount to double compensation for the same claim.

Contract of Service-Bullying-Penalisation-Unfair Dismissal