Complainant

Respondent

Parties

Frank  Purcell

St Augustinian Church

Representatives

Limerick Council of Trade Unions

John Desmond Monaghan BL instructed by Dundon Callan 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-00070481-001

02/04/2025

The Complainant was engaged as a Volunteer and claimed he was unfairly dismissed.

The Complainant was engaged by the Church in various capacities since November 2008 to October 2024 when he was summarily dismissed without any reason or basis and without any investigation being held into any issues involved and without the right of appeal or no notice.

The Complainant has performed his duties over a long number of years and enjoyed his role and was extremely disappointed and confused to be dismissed from his role.

The Complainant denoted his role as a Volunteer and stated in his complaint form that he earned zero income.

The Complainant was involved in a number of incidents in the Church which he advised were detrimental to the Church or Church attendees.

The Complainant was told he had to “step down” by the Prior as a result of the Provincials direction.

The Complainant alleged that he was unfairly dismissed by the Respondent on 4 October 2024 following a complaint made by church goers at the St Augustinian Church in Limerick.

The Respondent argued that the Complainant is not an employee for the purpose of the Act and that, accordingly, any intent to rely on the provisions of the Act should be dismissed and any claim for unfair dismissal is statute barred.

Section 6(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

An individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment the person by whom the employee is (or, in a case where the employment has ceased, was) employed under a contract of employment. The Complainant was not working under any contract of employment for the Respondent. The Respondent argues that the test used to determine whether there is a relationship akin to an employment relationship has been reformulated in the High Court case Revenue Commissioners v Karshan (Midlands) Ltd t/a Domino's Pizza [2023] IESC 24. Accordingly, the question is whether there was a mutuality of obligations between the parties. The Supreme Court further restated that the first limb of the test to determine the existence of an employment relationship is whether the contract involves the exchange of wage or other remuneration for work. The Court decision stated any arrangement lacking an intention to create legal relations (as may be the case in what are truly casual or domestic agreement) and/or which are unsupported by consideration (as may be the case with volunteers) will immediately be ruled-out.

In light of this decision, it is incorrect for the Complainant to argue that he was employed by the Respondent in the performance of his duties at the Augustinian Church. The Respondent argues that, at no point since the commencement of the , did the parties entered into a contract of employment to the extent that they had agreed to create legal relations supported by consideration. The Complainant began to volunteer with the Respondent in or around November 2008. During those years, the Respondent never paid the Complainant any wages or remuneration or any benefits of some kind which could be deemed to amount to remuneration for work. The Complainant, in this instance, agreed that he would act in a volunteer capacity performing various security duties at the Augustinian Church.

The Complainant himself, in his submissions, stated that he was not receiving any remuneration in consideration of the performance of his duties. For the purpose of the Act, and in accordance with the decision of Supreme Court, the Complainant cannot claim to be an employee of the Respondent while never having received any remuneration for work from the Respondent.

The Respondent further argues that there was no obligation on the Complainant to work nor was there any obligation on the Respondent to provide work and there was certainly no obligation on the Respondent to pay the Complainant for the provision of his services. The Respondent argues that the Complainant was aware of this arrangement and consented to same.

Consequently, and in accordance with the first limb of the case, the Respondent argues that the relationship between the Complainant and the Respondent cannot be deemed to constitute an employment relationship in the absence of mutuality of obligation. There was no element suggesting that, at any point in time during which the Complainant was performing his duties, the Respondent had entered into a contract of employment with the Complainant to the extent that it involve an obligation to provide for work in the exchange of remuneration. The Respondent further argues that any arrangement which could have been entered by between the parties cannot be viewed as consistent with the status of employment. In conclusion, that the Complainant was an employee of the Respondent should be rejected are statute barred and should be dismissed.

The Law;

The Unfair Dismissal Act includes the following definitions;

“employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and, in relation to redress for a dismissal under this Act, includes, in the case of the death of the employee concerned at any time following the dismissal, his personal representative

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,”

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose. “

The Complainant submitted a compliant that he was unfairly dismissed without any cause, no investigation and no right of appeal.  He advised in his complaint form he was a Church Volunteer/Security Guard and received no income for his services. The Respondent objected to the hearing of the substantive unfair dismissal complaint on the basis the Complainant was a Volunteer and not an Employee and therefore not covered by the Act.  Submissions on the main points of the parties was made by the Respective Representatives at the Hearing. I note, for the record, the Complainant nor a Representative of the Respondent gave evidence to the Hearing

The Complainant Representative requested and was given time after the Hearing to submit any evidence the Complainant was an employee who received compensation for his services or evidence of an employment contract. No post Hearing documentation to support either of these two issues was received. This was the only post Hearing documentation requested. The Complainant Representative submitted post Hearing a Labour Court Decision UDD2155 (Elke Williams and Camphill Communities of Ireland) as a precedent to support their case. I have given consideration to this case and that case differed significantly from the case of the Complainant in that it involved the provision of accommodation, hotels, travel, food, clothing, education, medical support and a shared car to the Complainant and a requirement to be available 24/7. In that case the Labour Court ruled there was an intention to create a legal relationship and therefore the Complainant was an Employee, where there is no evidence of such expenses in this case.

In addition, the Adjudicator was asked by the Complainant Representative to consider the legislative changes enacted under SI No 686/ 2022 European Union (Transparent and Predictable Working Conditions) Regulations 2022 which the Complainant Representative argued has redefined the definition of a contract of employment under section 3(1) (b) to include any other contract whereby an individual agrees with another person personally to execute any work or service for that person. They advised the definition as written is silent on the question of remuneration. No example of a precedent to affect the within case was provided and on review the Regulations do amend certain employment legislation but do not amend the Unfair Dismissals Act. There was no submission to support the view that the conditions set out in Karshan (which was post the Regulations) had been modified by the Regulations..

The main issue is that there was no evidence provided to show that a written or verbal contract of employment was entered into or to show there was an intention to do so. The core fundamentals of mutuality of obligation, offer, acceptance, consideration and intention to create a legal relationship were not present in the relationship between the parties. Both the Labour Court case and the Regulations were supplied to the Respondent Representative for comment and they argued the Labour Court case was not similar or relevant and they had no comment to make on relevance of the 2022 Regulations.

Based on the lack of evidence to support his complaint, I conclude that the Complainant was not an Employee and I decide that he has no legal standing under the Unfair Dismissal Act to pursue a claim for Unfair Dismissal.

I find that the Complainant was not a person in an employment relationship with the Respondent and therefore he has no legal standing to pursue the substantive complaint.

Jurisdiction to hear the complaint