Contract of Employment or No Contract of Employment*

By November 8, 2021November 15th, 2021Employment Law, News

Contract of Employment or No Contract of Employment*

This issue arose in UDD2155 being a case of Camp Hill Communities Ireland and ELKE Williams UDD2155.

The issue surrounded the question as to whether the employee was a volunteer or not.

The Civil Law (Miscellaneous) Act 2011 sets out voluntary work and volunteers. A volunteer is described as;

“…a person who does voluntary work that is authorised by a voluntary organisation and does so without expectation of payment (other than reasonable reimbursement of expenses) or other reward”.

The issue which the Court had to determine was whether this individual was or was not an employee. It was accepted that no contract existed. The Court determined that the complainant was to be provided with accomodation by the respondent. The Court found that that offer and acceptance occurred and that the consideration was in the nature of income in return for labour. The Labour Court held that it was accepted that neither party by their words or action in September 1994 had intended or did not intend to create a legal relationship. On that basis the Court had to ascertain the intention of the parties.

The Court looked at the case of EMO Oil Limited –v- Sun Alliance and London Insurance 2009 IESC2 where the Supreme Court noted with approval the views expressed by Laffoy J in UPM Kymmene Corporation –v- BWG Limited Unreported High Court 11 June 1999 where she stated;

“The basic rule of construction within the Court must apply in interpreting the document which contains the parties agreements are not in dispute. The Courts task is to ascertain the intention of the party and the intention to be ascertained from the language that they used considered in the light of the surrounding circumstances and the object of the contract. Moreover, in attempting to ascertain the presumed intention of the parties the Court should adopt an objective rather than subjective approach and should consider what would have been the intention of reasonable persons in the position of the parties.

The Court concluded that from various correspondence with Revenue Authorities it was not disputed that the benefits constituted an income that was taxable in nature. The issue was whether it was taxed on behalf of the respondent or the complainant. The Court accepted that there needs to be mutuality of obligation and quoted the case of Barry and Minister for Agriculture. The Court was of the view that there was mutuality of obligation.

The Court concludes that the complainant was an employee and in this case awarded over €60,000.

This is an important decision of the Labour Court as it addresses the issue of volunteers. It is important for those, in our opinion, who are taking on volunteers that the issue is clarified at the very start and that appropriate advice is obtained to ensure that an employment status does not arise.

*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.

*In contentious cases a solicitor may not charge fees or expenses as a proportion or percentage of any award or settlement.

Richard Grogan

Author Richard Grogan

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