ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00060871
Parties:
| Complainant | Respondent |
Parties | Justine Geelan | Live 5D Health |
Representatives |
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Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00073665-001 | 22/07/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00074439-001 | 15/08/2025 |
Date of Adjudication Hearing: 16/03/2026
Workplace Relations Commission Adjudication Officer: Louise Boyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. Parties were advised in advance of the hearing that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 that the hearing would be held in public, that an Adjudication Officer may take evidence under oath or affirmation and reminded that cross examination was permitted. The hearing was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings. Where submissions from parties were received, they were exchanged. The complainant gave evidence under affirmation and Mr Gary Kealy Founder gave evidence under affirmation for the respondent.
Background:
The complainant submits that she was discriminated against on the grounds of her disability and that she did not receive annual leave entitlements.
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Summary of Complainant’s Case: CA-00073665-001
The complainant submitted she commenced employment on 25/09/2024 and her employment ended on 09/07/2025 and the respondent is located in in Boyle, Co. Roscommon. She was employed in Sales and Marketing, working 8 hours per day, 5 days per week, at a rate of €15 per hour. Despite Live 5D Health operating under the guise of a 'private members association,' her role and responsibilities were unequivocally those of an employee, subject to their direct control and supervision. She performed work essential to their operations, worked fixed hours, used company equipment, and received regular wages and the company's payment of staff wages further confirms the employer-employee relationship.
She submitted that she was dismissed unfairly when she received an abrupt phone call from Gary Kealy, of Live 5D Health, who informed her services were no longer required. There was no longer work for her, was without any prior warning and no opportunity to discuss the matter, no valid reason for dismissal other than this vague statement, and no notice period. This immediate dismissal over the phone, without any semblance of fair procedure, left her in "limbo" and severely impacted her ability to seek new employment, causing significant financial hardship, stress, and distress.
She submitted she accrued annual leave of approximately 19.36 days of paid annual leave however, Live 5D Health only paid for 5 days of holiday pay. This leaves an outstanding balance of approximately 14.36 days of accrued and unpaid annual leave, amounting to approximately €1,723.20, upon the termination of her employment. She did not receive appropriate payment or time off in lieu for the 8 public holidays that fell during her employment (December 25, 26, 2024; January 1, February 3, March 17, April 21, May 5, June 2, 2025), amounting to approximately €960.00. She was routinely required to work hours beyond the contracted 8-hour workday and 5-day week, without pay including weekends and worked additional work in the evenings and expected to perform duties or respond to work-related communications outside of contracted hours, including early mornings and late evenings, for which she received no remuneration. She submitted she was unable to provide a precise total figure due to the lack of proper record-keeping by the employer and did not get terms of employment.
The complainant submits that her dismissal constituted discrimination on the grounds of disability. Mr Kealy, one of the owners, was previously aware that she had undergone a full hysterectomy. On Wednesday, July 2nd, 2025, in the evening, she told Mr Kealy that she was experiencing severe mental and physical exhaustion/drainage and required time off. This condition was a direct consequence of the escalating stress and the toxic and unhealthy working environment previously described at Live 5D Health, and potentially exacerbated by the long-term effects of her previous medical procedure. The dismissal occurred just one week later, on Wednesday, July 9th, 2025, immediately following this disclosure and without any intervening discussions, support, or consideration for her health. Her condition amounts to a disability under the broad definition of the Employment Equality Acts, was a direct consequence of the escalating and unaddressed issues within the workplace and/or the long term impact of her hysterectomy. The decision to dismiss directly after being made aware of her health issues, and without any attempt to explore reasonable accommodations for the condition or to address the contributing factors within the workplace, represents direct discrimination. Furthermore, the owners' failure to provide a safe and healthy working environment and to address the bullying and inappropriate behaviour contributed to her condition.
Evidence of Complainant Ms Geelan The complainant gave evidence that her job title was Sales and Client Consultant and her responsibilities were sales, marketing, client consultation, reported directly to Mr Kealy with wages were paid monthly. She confirmed that the only two complaints in front of the WRC were regarding holidays and discrimination She was dismissed after saying she needed time off work and worked for the unincorporated association and did not work for Live 5D Ltd. Her role included placing clients on treatments and worked both at home and from the business promoting the business locally. This work included handing out flyers talking to customers and building stronger relationship by selling the majority of the packages that the association offered. Staff have to be trained on the equipment and you cannot walk into the business and pay nothing and untrained people cannot use the equipment. She was asked after Christmas to work full time and would work every day with basic wages paid through Revolut. The complainant used a bank machine to deal with clients, used her own personal email and then was removed from the system. She suffered with health issues including a hysterectomy and depression and anxiety. On 01/07/2024 she was told she could earn significant commission and told them she was struggling and was told she had no job. The complainant was owed €640, her mental health deteriorated and the disability was depression and anxiety. She became a member in August 2024 and started working in September and got monies that she did not pay tax on, no pay slip and no contract. On 02/07/2025 she said she was struggling, would be taking time out and on 09/07/2025 she called the respondent about coming back to work and there was no longer a job for her. You cannot just walk in and have treatments and there is a price list and you have to fill out a consultation form and then she would talk to clients and find out what they need. Her job was to sell members a package and different packages include oxygen therapy and these treatments could cost €1,000 to €2,000 and it was not an option not to pay for a treatment and she worked for Live 5D Health and not Live 5D Health Ltd. She was told that her employment ended because the business was struggling yet they kept on 2 other people.
Cross examination of Complainant Ms Geelan She confirmed the respondent knew about her health issues before she joined, did not support her, did not take her back and even when she had health issues she was asked to continue working. She confirmed she signed a membership form that sat out she was operating in a private capacity as a customer with the unincorporated association. |
Summary of Respondent’s Case: CA-00073665-001
It was submitted that the respondent is a private members club and from a technical and jurisdictional perspective the matter is moot and the respondent is an unincorporated association existing in equity and only dealing in private commerce between living men and women. They are classified as spiritual ministry and therefore cannot forcibly interact or contract with the WRC or Revenue or the corporation of the Republic of Ireland Government or any branch thereof.
The complainant signed the copy of their private members agreement and there were documents that the complainant was familiar with as she explained it to new members that outlined the nature of the relationship between members. There are no employees within the association, no contracts of employment, and they do not pay anyone who volunteers to achieve their goal to aid men and women in their wellness goal. Her role was a private agreement between members and payments made were not reported to revenue as they do not operate in a corporate environment. As a private club they do have to interact with the public world and need to operate in the monetary world by paying their electricity bill and rent but they are defined as unincorporated extending to their bank accounts also. They compensate volunteers for their time in the form of honorarium for the benefits received such as the complainant. Her failure to grasp that is her responsibility as they were clear to her on that and that they are an unincorporated association and she was not required to work, did not submit time sheets, sales reports, call logs and the organisation exists outside of the world of corporate law and they deem the matter closed.
Despite there being no obligation to do so she was remunerated with €3,300 for the holidays and no logs of calls made were given and no time sheets or sales reports received from her. The respondent acted with honour and to the maximum of their capacity. The organisation was established as a spiritual ministry and conducts commerce in the private domain and it is a private members association, a non-corporate body, held in trust. No pay slip exists because the complainant was compensated privately for her time privately via an honorarium and it was refuted that the complainant was bullied and discriminated against, her voluntary services were no longer necessary and the respondent has a big financial deficit.
The respondent referenced documents including the Application form which the complainant signed and the Certificate of Execution and outlined the complainant was very familiar with this and it provides that the respondent is a “Unincorporated Private Ministerial Association and Spiritual Ministry” and “The activities of i, (sic) within The Association are a private contractual matter that i (sic), a wo/man refuse to share with the Local, or National investigative or enforcement agencies; i (sic), a wo/man fully agree not to pursue any course of legal action against a fellow member of The Association, unless that member has exposed i (sic), to a clear and present danger of substantive evil, and upon the recommendation and approval of the Association; “ And that “Declaration provides and states that Live 5D Health Private Members Association is neither a public corporation, business, partnership, company, estate, joint stock company, trust, estate, public association nor any form of for-profit entity of any kind. Liv 5D Health Private Members Association is created as a separate, lawful, spiritual, and private organisation operating as a Faith Based Ministry in accordance with Natural Law under The Creator.” and “Live 5 D Health Private Members Association is created as a separate , lawful, spiritual, and private organisation operating as a Faith Based Ministry in accordance with Natural Law under The Creator. And “. i, a wo/man do voluntarily change the capacity of i, from that of a public person to that of a private member and stand as a private member under the jurisdiction of equity”... Further on the Application sets out “i (sic), a wo/man agree to join Live 5D Health Private Members Association, a private membership association under equity jurisdiction , whose members seek to help each other achieve better health and good quality of life;”.
Evidence of Mr Kealy: The evidence of Mr Kealy was the WRC is limited in the matters and it is a wellness centre operating under equity. The complainant signed up to the terms and there is agreement to resolve grievances within the association internally. Members do not get pay, they contribute and arrive at the premises and there are 2,000 members. The complainant was a volunteer and they tell people they operate outside of the system as they are private. Live 5D Health Ltd is a dormant limited company and it has never traded and it will be closed and they sat it up to protect themselves.
Cross Examination of Mr Kealy: Under cross examination Mr Kealy said they do not pay wages, do not register with revenue and that the complainant got a gift of payment. Customers do not have to pay and the services are free if the members cannot afford to pay and they accept donations from them. If the complainant felt she became an employee this was the complainant changing her status from private to public and it was not relevant if she thought she had a contract. If they used the terminology of ‘wages’ it was just for communication. |
Findings and Conclusions: CA-00073665-001
The complainant submits that she was an employee of the named respondent and that there is annual leave owing to her. The respondent submits that the WRC do not have jurisdiction to hear this complaint as the relationship between the parties is one of private equity as it is an unincorporated association and there was no annual leave owing to the complainant.
The first preliminary issue that arises is whether the respondent as an unincorporated association can be held liable for acts that may have been committed by their representatives while acting on behalf of the unincorporated association. If it is established that the respondent can be held liable in this instant case, a further preliminary matter arises in determining whether the complainant can be considered an employee for which the Supreme Court decision Revenue Commissioners v Karshan Midlands Ltd T/A Domino’s Pizza [2023] IESC 24, sets out developed series of ‘tests’.
Preliminary Issue 1 - Unincorporated: The complainant submits that the correct named respondent is Live 5D Health and the respondent submits that the WRC do not have jurisdiction to hear a complaint where the named respondent Live 5D Health is an unincorporated association and the relationship between the parties exists in private equity only dealing in private commerce between living men and women.
At the time of the hearing there existed a registered company Live 5D Health Ltd that Mr Kealy submits he sat up as a temporary measure and that its registration was to be a short term arrangement. The complainant took time to consider whether the respondent was Live 5D Health which is unincorporated or Live 5D Health Ltd and her own direct evidence was that Live 5D Health, an unincorporated associationwas the respondent and her employer and Live 5D Health Ltd was not the respondent and was not her employer. The form the complainant used to submit her complaint is not a statutory form and any request for amendment to the name of the respondent requires further enquiry, including determining if a party is prejudiced. However, I note that there was no request to amend the complaint form and therefore, the named respondent in this instant complaint remains Life 5D Health.
It was not in dispute that the complainant received monies through Revolut for doing tasks on behalf of the respondent and did not receive a pay slip and that the monies were not processed through revenue and no taxation was paid by the respondent or the complainant. Mr Kealy’s evidence was that the parties did not operate within a corporate environment and the complainant was compensated in the form of an honorarium. The complainant confirmed that she was classified as a volunteer but disputed that this accurately described the relationship. Mr Kealy gave evidence that terminology including ‘work’ and ‘wages’ may have been used in communication between parties and submits they were unavoidable terms necessary in communication.
In 2022, The Law Commission produced a Consultation Paperon Liability Of Clubs, Societies and Other Unincorporated Associations (LRC CP 68 – 2022) whichdefines a unincorporated association as: “a voluntary non-profit association like a club, society or other group. In these groups, people come together for at least one common purpose, for example, a shared interest in a sport or a religion.“
The Consultant Paper further sets out that “it is not possible to sue an unincorporated association, instead it is the members who must be sued” and “unincorporated associations are not legal entities separate from their members”.
Hickey v McGowan [2017] IESC 6, [2017] 2 IR 196 also highlights that unincorporated associations cannot be held liable for wrongful acts committed by their representatives while acting on behalf of the unincorporated association and Sandymount & Merrion Residents Association v An Bord Pleanála [2013] IESC 51 at para 5.2, [2013] 2 IR 578 at para 38 defined an unincorporated association as “simply the sum of its individual members with no independent legal personality.”
The Northern Ireland Court of Appeal found in a personal injuries claim (Kinner v McKeown v Trustees of West Belfast Pigeon Club [1998] 7 BNIL 9) that Kinner was both an employee and a member and that membership did not give the club immunity whereby he was injured in the capacity as an employee. It should be noted that in that case, it was not disputed that Kinner was an employee differing in this instant case where the respondent disputes that the complainant was ever an employee.
I note that the more recent case of Brady v Moore & Anor[2022] IEHC 420, albeit dealing with a volunteer, in a claim under the Occupiers’ Liability Act, 1995 Act set out the “…long standing legal principle that a club, as an unincorporated association of persons, cannot be sued by one of its members”
The aforementioned Judgement referenced Murphy v. Roche (No. 2) [1987] I.R. 656 which notes, however, there appears the possibility for “…cases in which, based on special circumstances falling outside the usual activities of a members’ club and the usual activities of Committee members, liability can be established”
In this instant case, the complainant was a member of the respondent and made efforts to promote and sell services offered by the respondent for which she received monies. This was not in dispute by the respondent and Mr Kealy’s evidence was that that this was done in her capacity as volunteer. No pay slips were given, the complainant was not taxed and she did not receive a written contract of employment. The complainant confirmed receipt and knowledge of the Associate Member Application hereinafter referredto as the Application Form and a document entitled a Certificate of Execution of an Unincorporated Private Ministerial Association and Spiritual Ministry documenthereinafter referred to as the Certificate of Execution.
The Certificate of Execution provides that the respondent is a “Unincorporated Private Ministerial Association and Spiritual Ministry” And that the “Founding Trustee is the man: gary- kealy and the man : xxx” And that it “provides and states that Live 5D Health Private Members Association is Not a Public Entity ie Live 5D Health Private Members Association is neither a public corporation, business, partnership, company, estate, joint stock company, trust, estate, public association nor any form of for-profit entity of any kind. Live 5D Health Private Members Association is created as a separate, lawful, spiritual, and private organisation operating as a Faith Based Ministry in accordance with Natural Law under The Creator;”.
The Application form which has the complainant’s signature sets out “The Association aims to provide a private commerce platform for founders and members of this private members association…” And “. i, a wo/man do voluntarily change the capacity of i, from that of a public person to that of a private member and stand as a private member under the jurisdiction of equity”...
Mr Kealy appeared at times hostile in answering some of the questions put to him at the hearing and indicated on many occasions his intention to leave the hearing by way of affirming his objection to the hearing proceeding, but I note that he did remain. The complainant’s evidence was clear and unequivocal that the respondent was Life 5D Health, and while the wording on the application form that she signed appears at times atypical; the complainant confirmed that she did sign up as a member to an unincorporated association. It would also appear from her own direct evidence that she was aware that as a private member of a private unincorporated association she had knowledge of what she was signing up for and the impact of doing work as a member of this unincorporated association.
The complainant has not pointed to any special circumstances that allows for liability to be established against the unincorporated association which she has named as the respondent. Taking into consideration all the submissions and evidence, I find, therefore, that I do not have jurisdiction against the respondent to hear the complaint and I dismiss the complaint. |
Summary of Complainant’s Case: CA-00074439-001
The complainant submitted she commenced employment on 25/09/2024 and her employment ended on 09/07/2025 and the respondent is located in in Boyle, Co. Roscommon. She was employed in Sales and Marketing, working 8 hours per day, 5 days per week, at a rate of €15 per hour. Despite Live 5D Health operating under the guise of a 'private members association,' her role and responsibilities were unequivocally those of an employee, subject to their direct control and supervision. She performed work essential to their operations, worked fixed hours, used company equipment, and received regular wages and the company's payment of staff wages further confirms the employer-employee relationship.
She submitted that she was dismissed unfairly when she received an abrupt phone call from Gary Kealy, of Live 5D Health, who informed her services were no longer required. There was no longer work for her, was without any prior warning and no opportunity to discuss the matter, no valid reason for dismissal other than this vague statement, and no notice period. This immediate dismissal over the phone, without any semblance of fair procedure, left her in "limbo" and severely impacted her ability to seek new employment, causing significant financial hardship, stress, and distress.
She submitted she accrued annual leave of approximately 19.36 days of paid annual leave however, Live 5D Health only paid for 5 days of holiday pay. This leaves an outstanding balance of approximately 14.36 days of accrued and unpaid annual leave, amounting to approximately €1,723.20, upon the termination of her employment. She did not receive appropriate payment or time off in lieu for the 8 public holidays that fell during her employment (December 25, 26, 2024; January 1, February 3, March 17, April 21, May 5, June 2, 2025), amounting to approximately €960.00. She was routinely required to work hours beyond the contracted 8-hour workday and 5-day week, without pay including weekends and worked additional work in the evenings and expected to perform duties or respond to work-related communications outside of contracted hours, including early mornings and late evenings, for which she received no remuneration. She submitted she was unable to provide a precise total figure due to the lack of proper record-keeping by the employer and did not get terms of employment.
The complainant submits that her dismissal constituted discrimination on the grounds of disability. Mr Kealy, one of the owners, was previously aware that she had undergone a full hysterectomy. On Wednesday, July 2nd, 2025, in the evening, she told Mr Kealy that she was experiencing severe mental and physical exhaustion/drainage and required time off. This condition was a direct consequence of the escalating stress and the toxic and unhealthy working environment previously described at Live 5D Health, and potentially exacerbated by the long-term effects of her previous medical procedure. The dismissal occurred just one week later, on Wednesday, July 9th, 2025, immediately following this disclosure and without any intervening discussions, support, or consideration for her health. Her condition amounts to a disability under the broad definition of the Employment Equality Acts, was a direct consequence of the escalating and unaddressed issues within the workplace and/or the long term impact of her hysterectomy. The decision to dismiss directly after being made aware of her health issues, and without any attempt to explore reasonable accommodations for the condition or to address the contributing factors within the workplace, represents direct discrimination. Furthermore, the owners' failure to provide a safe and healthy working environment and to address the bullying and inappropriate behaviour contributed to her condition.
Evidence of Complainant Ms Geelan The complainant gave evidence that her job title was Sales and Client Consultant and her responsibilities were sales, marketing, client consultation, reported directly to Mr Kealy with wages were paid monthly. She confirmed that the only two complaints in front of the WRC were regarding holidays and discrimination She was dismissed after saying she needed time off work and worked for the unincorporated association and did not work for Live 5D Ltd. Her role included placing clients on treatments and worked both at home and from the business promoting the business locally. This work included handing out flyers talking to customers and building stronger relationship by selling the majority of the packages that the association offered. Staff have to be trained on the equipment and you cannot walk into the business and pay nothing and untrained people cannot use the equipment. She was asked after Christmas to work full time and would work every day with basic wages paid through Revolut. The complainant used a bank machine to deal with clients, used her own personal email and then was removed from the system. She suffered with health issues including a hysterectomy and depression and anxiety. On 01/07/2024 she was told she could earn significant commission and told them she was struggling and was told she had no job. The complainant was owed €640, her mental health deteriorated and the disability was depression and anxiety. She became a member in August 2024 and started working in September and got monies that she did not pay tax on, no pay slip and no contract. On 02/07/2025 she said she was struggling, would be taking time out and on 09/07/2025 she called the respondent about coming back to work and there was no longer a job for her. You cannot just walk in and have treatments and there is a price list and you have to fill out a consultation form and then she would talk to clients and find out what they need. Her job was to sell members a package and different packages include oxygen therapy and these treatments could cost €1,000 to €2,000 and it was not an option not to pay for a treatment and she worked for Live 5D Health and not Live 5D Health Ltd. She was told that her employment ended because the business was struggling yet they kept on 2 other people.
Cross examination of Complainant Ms Geelan She confirmed the respondent knew about her health issues before she joined, did not support her, did not take her back and even when she had health issues she was asked to continue working. She confirmed she signed a membership form that sat out she was operating in a private capacity as a customer with the unincorporated association. |
Summary of Respondent’s Case: CA-00074439-001
It was submitted that the respondent is a private members club and from a technical and jurisdictional perspective the matter is moot and the respondent is an unincorporated association existing in equity and only dealing in private commerce between living men and women. They are classified as spiritual ministry and therefore cannot forcibly interact or contract with the WRC or Revenue or the corporation of the Republic of Ireland Government or any branch thereof.
The complainant signed the copy of their private members agreement and there were documents that the complainant was familiar with as she explained it to new members that outlined the nature of the relationship between members. There are no employees within the association, no contracts of employment, and they do not pay anyone who volunteers to achieve their goal to aid men and women in their wellness goal. Her role was a private agreement between members and payments made were not reported to revenue as they do not operate in a corporate environment. As a private club they do have to interact with the public world and need to operate in the monetary world by paying their electricity bill and rent but they are defined as unincorporated extending to their bank accounts also. They compensate volunteers for their time in the form of honorarium for the benefits received such as the complainant. Her failure to grasp that is her responsibility as they were clear to her on that and that they are an unincorporated association and she was not required to work, did not submit time sheets, sales reports, call logs and the organisation exists outside of the world of corporate law and they deem the matter closed.
Despite there being no obligation to do so she was remunerated with €3,300 for the holidays and no logs of calls made were given and no time sheets or sales reports received from her. The respondent acted with honour and to the maximum of their capacity. The organisation was established as a spiritual ministry and conducts commerce in the private domain and it is a private members association, a non-corporate body, held in trust. No pay slip exists because the complainant was compensated privately for her time privately via an honorarium and it was refuted that the complainant was bullied and discriminated against, her voluntary services were no longer necessary and the respondent has a big financial deficit.
The respondent referenced documents including the Application form which the complainant signed and the Certificate of Execution and outlined the complainant was very familiar with this and it provides that the respondent is a “Unincorporated Private Ministerial Association and Spiritual Ministry” and “The activities of i, (sic) within The Association are a private contractual matter that i (sic), a wo/man refuse to share with the Local, or National investigative or enforcement agencies; i (sic), a wo/man fully agree not to pursue any course of legal action against a fellow member of The Association, unless that member has exposed i (sic), to a clear and present danger of substantive evil, and upon the recommendation and approval of the Association; “ And that “Declaration provides and states that Live 5D Health Private Members Association is neither a public corporation, business, partnership, company, estate, joint stock company, trust, estate, public association nor any form of for-profit entity of any kind. Liv 5D Health Private Members Association is created as a separate, lawful, spiritual, and private organisation operating as a Faith Based Ministry in accordance with Natural Law under The Creator.” and “Live 5 D Health Private Members Association is created as a separate , lawful, spiritual, and private organisation operating as a Faith Based Ministry in accordance with Natural Law under The Creator. And “. i, a wo/man do voluntarily change the capacity of i, from that of a public person to that of a private member and stand as a private member under the jurisdiction of equity”... Further on the Application sets out “i (sic), a wo/man agree to join Live 5D Health Private Members Association, a private membership association under equity jurisdiction , whose members seek to help each other achieve better health and good quality of life;”.
Evidence of Mr Kealy: The evidence of Mr Kealy was the WRC is limited in the matters and it is a wellness centre operating under equity. The complainant signed up to the terms and there is agreement to resolve grievances within the association internally. Members do not get pay, they contribute and arrive at the premises and there are 2,000 members. The complainant was a volunteer and they tell people they operate outside of the system as they are private. Live 5D Health Ltd is a dormant limited company and it has never traded and it will be closed and they sat it up to protect themselves.
Cross Examination of Mr Kealy: Under cross examination Mr Kealy said they do not pay wages, do not register with revenue and that the complainant got a gift of payment. Customers do not have to pay and the services are free if the members cannot afford to pay and they accept donations from them. If the complainant felt she became an employee this was the complainant changing her status from private to public and it was not relevant if she thought she had a contract. If they used the terminology of ‘wages’ it was just for communication. |
Findings and Conclusions: CA-00074439-001
The complainant submits that she was an employee of the named respondent and that she was discriminated against on the grounds of her disability and her employment was terminated. The respondent submits that the WRC do not have jurisdiction to hear this complaint as the relationship between the parties is one of private equity as it is an unincorporated association and the complainant was not discriminated against..
The first preliminary issue that arises is whether the respondent as an unincorporated association can be held liable for acts that may have been committed by their representatives while acting on behalf of the unincorporated association. If it is established that the respondent can be held liable in this instant case, a further preliminary matter arises in determining whether the complainant can be considered an employee for which the Supreme Court decision Revenue Commissioners v Karshan Midlands Ltd T/A Domino’s Pizza [2023] IESC 24, sets out developed series of ‘tests’.
Preliminary Issue 1 - Unincorporated: The complainant submits that the correct named respondent is Live 5D Health and the respondent submits that the WRC do not have jurisdiction to hear a complaint where the named respondent Live 5D Health is an unincorporated association and the relationship between the parties exists in private equity only dealing in private commerce between living men and women.
At the time of the hearing there existed a registered company Live 5D Health Ltd that Mr Kealy submits he sat up as a temporary measure and that its registration was to be a short term arrangement. The complainant took time to consider whether the respondent was Live 5D Health which is unincorporated or Live 5D Health Ltd and her own direct evidence was that Live 5D Health, an unincorporated associationwas the respondent and her employer and Live 5D Health Ltd was not the respondent and was not her employer. The form the complainant used to submit her complaint is not a statutory form and any request for amendment to the name of the respondent requires further enquiry, including determining if a party is prejudiced. However, I note that there was no request to amend the complaint form and therefore, the named respondent in this instant complaint remains Life 5D Health.
It was not in dispute that the complainant received monies through Revolut for doing tasks on behalf of the respondent and did not receive a pay slip and that the monies were not processed through revenue and no taxation was paid by the respondent or the complainant. Mr Kealy’s evidence was that the parties did not operate within a corporate environment and the complainant was compensated in the form of an honorarium. The complainant confirmed that she was classified as a volunteer but disputed that this accurately described the relationship. Mr Kealy gave evidence that terminology including ‘work’ and ‘wages’ may have been used in communication between parties and submits they were unavoidable terms necessary in communication.
In 2022, The Law Commission produced a Consultation Paperon Liability Of Clubs, Societies and Other Unincorporated Associations (LRC CP 68 – 2022) whichdefines a unincorporated association as: “a voluntary non-profit association like a club, society or other group. In these groups, people come together for at least one common purpose, for example, a shared interest in a sport or a religion.“
The Consultant Paper further sets out that “it is not possible to sue an unincorporated association, instead it is the members who must be sued” and “unincorporated associations are not legal entities separate from their members”.
Hickey v McGowan [2017] IESC 6, [2017] 2 IR 196 also highlights that unincorporated associations cannot be held liable for wrongful acts committed by their representatives while acting on behalf of the unincorporated association and Sandymount & Merrion Residents Association v An Bord Pleanála [2013] IESC 51 at para 5.2, [2013] 2 IR 578 at para 38 defined an unincorporated association as “simply the sum of its individual members with no independent legal personality.”
The Northern Ireland Court of Appeal found in a personal injuries claim (Kinner v McKeown v Trustees of West Belfast Pigeon Club [1998] 7 BNIL 9) that Kinner was both an employee and a member and that membership did not give the club immunity whereby he was injured in the capacity as an employee. It should be noted that in that case, it was not disputed that Kinner was an employee differing in this instant case where the respondent disputes that the complainant was ever an employee.
I note that the more recent case of Brady v Moore & Anor[2022] IEHC 420, albeit dealing with a volunteer, in a claim under the Occupiers’ Liability Act, 1995 Act set out the “…long standing legal principle that a club, as an unincorporated association of persons, cannot be sued by one of its members”
The aforementioned Judgement referenced Murphy v. Roche (No. 2) [1987] I.R. 656 which notes, however, there appears the possibility for “…cases in which, based on special circumstances falling outside the usual activities of a members’ club and the usual activities of Committee members, liability can be established”
In this instant case, the complainant was a member of the respondent and made efforts to promote and sell services offered by the respondent for which she received monies. This was not in dispute by the respondent and Mr Kealy’s evidence was that that this was done in her capacity as volunteer. No pay slips were given, the complainant was not taxed and she did not receive a written contract of employment. The complainant confirmed receipt and knowledge of the Associate Member Application hereinafter referredto as the Application Form and a document entitled a Certificate of Execution of an Unincorporated Private Ministerial Association and Spiritual Ministry documenthereinafter referred to as the Certificate of Execution.
The Certificate of Execution provides that the respondent is a “Unincorporated Private Ministerial Association and Spiritual Ministry” And that the “Founding Trustee is the man: gary- kealy and the man : xxx” And that it “provides and states that Live 5D Health Private Members Association is Not a Public Entity ie Live 5D Health Private Members Association is neither a public corporation, business, partnership, company, estate, joint stock company, trust, estate, public association nor any form of for-profit entity of any kind. Live 5D Health Private Members Association is created as a separate, lawful, spiritual, and private organisation operating as a Faith Based Ministry in accordance with Natural Law under The Creator;”.
The Application form which has the complainant’s signature sets out “The Association aims to provide a private commerce platform for founders and members of this private members association…” And “. i, a wo/man do voluntarily change the capacity of i, from that of a public person to that of a private member and stand as a private member under the jurisdiction of equity”...
Mr Kealy appeared at times hostile in answering some of the questions put to him at the hearing and indicated on many occasions his intention to leave the hearing by way of affirming his objection to the hearing proceeding, but I note that he did remain. The complainant’s evidence was clear and unequivocal that the respondent was Life 5D Health, and while the wording on the application form that she signed appears at times atypical; the complainant confirmed that she did sign up as a member to an unincorporated association. It would also appear from her own direct evidence that she was aware that as a private member of a private unincorporated association she had knowledge of what she was signing up for and the impact of doing work as a member of this unincorporated association.
The complainant has not pointed to any special circumstances that allows for liability to be established against the unincorporated association which she has named as the respondent. Taking into consideration all the submissions and evidence, I find, therefore, that I do not have jurisdiction against the respondent to hear the complaint and I dismiss the complaint. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
CA-00073665-001 I find that I do not have jurisdiction to hear the complaint and dismiss the complaint. CA-00074439-001 I find that I do not have jurisdiction to hear the complaint and dismiss the complaint. |
Dated: 4th of June 2026.
Workplace Relations Commission Adjudication Officer: Louise Boyle
Key Words:
Jurisdiction, unincorporated association, member, annual leave, equality, discrimination. |