Camphill Communities of Ireland (Represented Mr. Stephen O'Sullivan BL, Instructed by Beale & Company Solicitors) v Elke Williams (Represented by Ms. Lauren Tennyson BL, Poe Kiely Hogan Lanigan Solicitors)

JurisdictionIreland
Judgment Date07 September 2021
Judgment citation (vLex)[2021] 9 JIEC 0703
Docket NumberFULL RECOMMENDATION ADJ-00021196 — CA-00027910-001 DETERMINATION NO. UDD2155
CourtLabour Court (Ireland)
PARTIES:
Camphill Communities of Ireland (Represented Mr. Stephen O'Sullivan BL, Instructed by Beale & Co Solicitors)
and
Elke Williams (Represented by Ms. Lauren Tennyson BL, Poe Kiely Hogan Lanigan Solicitors)

FULL RECOMMENDATION

UD/20/108

ADJ-00021196 — CA-00027910-001

DETERMINATION NO. UDD2155

Labour Court

DIVISION:

Chairman: Ms O'Donnell

Employer Member: Mr Marie

Worker Member: Mr Hall

SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015

SUBJECT:
1

1. Appeal Of Adjudication Officer Decision No: 00021196.

BACKGROUND:
2

2. The Complainant appealed the Decision of the Adjudication Officer to the Labour Court on 04 April 2020 in accordance with Section 8A of the Unfair Dismissals Act, 1977 to 2015. A Labour Court hearing took place on 07 July 2021. The following is the Determination of the Court:

DETERMINATION:
3

This is an appeal by Camphill Communities of Ireland against an Adjudication Officer's Decision ADJ-00021196 given under the Unfair Dismissals Acts 1977 to 2015 (the Act's) in a claim by Elke Williams that she was unfairly dismissed by her former employer. The Adjudication Officer upheld the complaint of unfair dismissal and awarded compensation of €40,000 euro.

4

In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Ms Williams is referred to as the Complainant and Camphill Communities of Ireland are referred to as the Respondent.

BACKGROUND:
5

The Complainant joined the Respondent, a registered charity, in September 1994 and performed a variety of roles within the organisation. The nature of the Respondent's organisation is that they provide support on a residential and non-residential basis to those with intellectual disabilities and other needs in a community setting. The Complainant's role within the community was as a Long—Term Co-Worker (LTCW). The Complainant with her family lived within the community and their accommodation and reasonable needs were met by the community. The Complainant's husband was also taken on as a LTCW. The ethos of the organisation is that the relationship to the community is based on mutual trust, a shared vision and inner commitment to the principles values and aims of the community. The Complainant was classified as an LTCW and she worked within the community structure. In extracts from the Respondent's website provided by the Respondent to the Court, LTCW are described as “ keen to take on major responsibilities in the home, work, administration, social and spiritual life of the community.” The extract goes on to say that “ Co-workers do not draw a salary, but their reasonable needs are met by the community from its funds.” It notes that some LTCW will carry major responsibilities for the contractual relationships to placement and funding bodies and the statutory obligations that go with these. It identifies the type of roles that LTCW's will carry out such as House Guardian, workshop leader, teacher, therapist administrator. In terms of responsibilities the website states that LTCWs will be responsible for the Resident's daily welfare and safety arrangements, managing and supervising the domestic provisions and also liaising with the resident's families, social workers and other agencies involved with the Resident's welfare. It goes on to say that as an LTCW you are also bound to carry out specialist responsibilities in areas such as teaching, therapies, leading day activities, craft workshops, admissions work among other things. The website states that the levels and nature of responsibilities that a LTCW takes on usually requires a commitment of a minimum stay of two years. However, LTCW's often stay on for five or more years. LTCW do not draw a salary but their reasonable needs, including discretionary provision for their needs in retirement are met by the community from its funds. The Complainant submits that she was an employee of the Respondent and that her employment was terminated by the Respondent on 31 st December 2018. The Respondent submits that the Complainant was never an employee and that she left of her own volition on the 15 th October 2018 when she and her family moved out of their community accommodation.

6

The Complainant lodged her complaint with the WRC on 23 rd April 2019. The cognisable period as defined by the Act is 24 th October 2018 to 23 rd April 2019.

PRELIMINARY ISSUES:
7

The Respondent submitted that there were a number of preliminary issues that the Court needed to consider, 1) there was no contractual arrangement between the parties and there was no intention to create legal relationships. 2) the Complainant was not at any time an employee of the Respondent, she provided her services on a voluntary basis and was not paid a salary, 3) there was no mutuality of obligation. 4) As the Complainant had left the community in October 2018 her complaints were out of time. The Court having reviewed the preliminary issues raised by the Respondent concluded that these issues could not be considered without hearing the case in full. The Court proceeded to hear the case in full. As dismissal was in dispute the burden of proof lies with the Complainant to show that a dismissal as defined by the Act took place

SUMMARY OF COMPLAINANT'S SUBMISSION AND EVIDENCE:
8

Mr O Sullivan BL on behalf of the Complainant submitted to the Court that her employment was terminated by the Respondent on the 31st December 2018. This was the final date for vacating the apartment that had been provided for the use of the Complainant and her family. December was also the last month that the Complainant received a monthly allowance of €1,000 in respect of meeting her needs. While the Complainant and her family had moved out in October 2018, they still had the keys of and access to the apartment up until the 31st December 2018. During her tenure with the Respondent the Complainant caried out many roles and at one time was a member of the Board of Directors which at the time she was on it was known as the Council. The Complainant does not accept that each community group was autonomous, they all fell under the control and direction of the Board of Directors. From about 2012 onwards the HSE as one of the main funding bodies raised a number of issues in respect of the Camphill model and required that more formalised structures be put in place. A number of new policies and procedures were introduced at national level and rolled out to the various communities. While the role of LTCW ceased to exist after the 31st December 2018, unlike most of her colleagues the Complainant was not offered an opportunity to transition to the new employee model. It was never clarified for the Complainant why she was not afforded that opportunity other than she was told that a decision had been made. While the Complainant did not receive a salary during her tenure, she did receive emoluments and or consideration in the form of accommodation being provided and all her needs including family holidays being paid for by the community in exchange for the work she caried out in the various roles assigned to her. It is the Complainant's submission that her case can be distinguished from the case of Melhuish v Redbridge Citizen Advice Bureau UKEAT/0130/04/DM. In that case the Complainant only received reimbursement of expenses incurred and therefore it was held that as no consideration passed between the parties there was not a contractual arrangement. Mr O Sullivan BL submitted that in this case consideration in the nature of providing her accommodation and meeting her needs did pass from the Respondent to the Complainant.

9

The Complainant was rostered to do various elements of her work during the week and was subject to performance review caried out by the National Safe-Guarding Officer who was a paid employee of the Respondent. The Complainant was also subject to a number of policies such as grievance and disciplinary procedures, these procedures clearly distinguish between volunteers and LTCW's. It is the Complainant's submission that the nature of the relationship between herself and the Respondent was in the nature of an employment relationship and that she was at all times working for the Respondent. In the application form that they all had to fill out as part of the transition process she clearly indicated that she wished to transition into the new model. However, she was never given that option and her employment was unilaterally terminated by the Respondent.

10

The Complainant in her evidence to the Court stated that she became aware of a vacancy in Duff Carraig one of the Camphill communities in 1994. She submitted an application on behalf of herself and her family. The application process was through a written application to the management team. This was followed by an exchange of phone calls cumulating in the Complainant and her family being invited to attend for a two-week trial period. During that period, they were interviewed and had a meeting with the management team in Duff Carraig. Initially they were not successful, and the position was offered to a different family. They were at a later stage offered a position in Duff Carraig which they took up. Both herself and her husband were given positions within the community. In 2008 a new community was set up in Ballymoney and her family moved there. Initially her role was as a House Co-ordinator proving support to all the residents and the short—term co-workers. In return for fulfilling that role the community met all their needs including paying for holidays and putting their eldest son through college. Shortly after the new centre was set up in Ballymoney, role descriptions started to be used. In and around 2012 National templates in respect of various policies and procedures were drawn up nationally and circulated to the communities for implementation. These policies were drawn up by a subcommittee of the Board of Directors and...

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