Brightwater Selection (Irl) Ltd v Min for Social & Family Affairs

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Paul Gilligan
Judgment Date27 July 2011
Neutral Citation[2011] IEHC 510
Date27 July 2011

[2011] IEHC 510

THE HIGH COURT

[459 SP/2010]
Brightwater Selection (Irl) Ltd v Min for Social & Family Affairs
IN THE MATTER OF THE SOCIAL WELFARE CONSOLIDATION ACT 2005

BETWEEN

BRIGHTWATER SELECTION (IRELAND) LIMITED
APPELLANT

AND

MINISTER FOR SOCIAL AND FAMILY AFFAIRS
RESPONDENT

SOCIAL WELFARE CONSOLIDATION ACT 2005 S318

SOCIAL WELFARE (CONSOLIDATION) ACT 1993 S9

SOCIAL WELFARE (CONSOLIDATION) ACT 1993 SCHED 1 PART I

SOCIAL WELFARE (MISCELLANEOUS PROVISIONS) ACT 2003 S19

SOCIAL WELFARE CONSOLIDATION ACT 2005 S327

HENRY DENNY & SONS (IRL) LTD T/A KERRY FOODS v MIN FOR SOCIAL WELFARE 1998 1 IR 34 2000/5/1750

NATIONAL UNIVERSITY OF IRELAND CORK v AHERN & ORS 2005 2 IR 577 2005/44/9152 2005 IESC 40

R v PATRICK KELLY & CO LTD 1969 IR 100

SUNDAY TRIBUNE LTD (IN LIQUIDATION), IN RE 1984 IR 505 1984/8/2850

CONSTRUCTION INDUSTRY TRAINING BOARD v LABOUR FORCE LTD 1970 3 AER 220

MIN FOR LABOUR v PMPA INSURANCE CO LTD UNREP BARRON 16.4.1986 1986/4/1253

MIN FOR AGRICULTURE v BARRY & ORS 2009 1 IR 215 2008/40/8622 2008 IEHC 216

NETHERMERE (ST NEOTS) LTD v TAVERNA & GARDINER 1984 ICR 612 1984 IRLR 240

CARMICHAEL & ANOR v NATIONAL POWER PLC 1999 1 WLR 2042 1999 4 AER 897 1999 ICR 1226

DACAS v BROOK STREET BUREAU (UK) LTD 2004 ICR 1437 2004 IRLR 358

JAMES v GREENWICH LONDON BOROUGH COUNCIL 2008 ICR 545 2008 IRLR 302

READY MIXED CONCRETE (SOUTH EAST) LTD v MIN OF PENSIONS & NATIONAL INSURANCE 1968 2 QB 497 1968 2 WLR 775 1968 1 AER 433

DIAGEO GLOBAL SUPPLY v ROONEY 2004 15 ELR 133

MARKET INVESTIGATIONS LTD v MIN OF SOCIAL SECURITY 1969 2 QB 173 1969 2 WLR 1 1968 3 AER 732

CORNWALL CO COUNCIL v PRATER 2006 2 AER 1013 2006 ICR 731 2006 IRLR 362

RSC O.38 r9

FLYNN & ORS v PRIMARK T/A PENNYS LTD & MIN FOR EQUALITY 1997 ELR 218 1997/9/2971

EMPLOYMENT LAW

Contract

Agency worker - Contract of service - PRSI contribution - Whether agency entitled to refund - Social welfare - Appeal - Standard of review - Jurisdiction - Whether court should interfere with decision of appeals officer on appeal - Whether court should defer to expertise and experience of expert administrative tribunal - Whether decision based upon error of law - Whether decision based upon unsustainable finding of fact - Control - Whether appeals officer correct in applying control test in conclusion that worker was employed under contract of service - Whether control important factor in determination - Whether appeals officer considered whether agency possessed power to direct manner in which work carried out - Whether appeals officer erred in interpreting application of previous decision - Contract sui generis - Whether other characters of employment contract existed beyond contract of service and contract for services - Whether appeals officer erred in law in failing to consider existence of alternative category of contract - Mutuality of obligation - Whether mutuality of obligation between parties - Whether mutuality of obligation test acted as filter - Whether mutuality of obligation key component of contract of service - Whether single composite test for determining nature of employment contract - Whether appeals officer erred in law in failing to properly consider issue of mutuality of obligation - Whether court could remit matter for re-hearing - Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare [1998] 1 IR 34, National University of Ireland Cork v Ahern [2005] IESC 40, [2005] 2 IR 577, Roche v Kelly [1969] IR 100, In re Sunday Tribune [1984] IR 505, Construction Industry Training Board v Labour Force Ltd [1970] 3 All ER 220, Minister for Labour v PMPA Insurance Company (Unrep, Barron J, 16/4/1986), Minister for Agriculture v Barry [2008] IEHC 216, [2009] 1 IR 215, Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612 Carmichael v National Power plc [1999] 1 WLR 2042, Dacas v Brook Street Bureau (UK) Ltd [2004] ICR 1437, James v Greenwich London Borough Council [2008] ICR 545, Ready Mixed Concrete (South East) Ltd v Minister for Pensions and National Insurance [1968] 2 QB 497, Diageo Global Supply v Rooney [2004] ELR 133 and Flynn v Primark [1997] ELR 218 considered - Social Welfare (Consolidation) Act 1993 (No 27), s 9 and first schedule - Social Welfare (Miscellaneous Provisions) Act 2003 (No 4), s 19 - Social Welfare Consolidation Act 2005 (No 26), ss 318 & 327 - Rules of the Superior Court 1986 (SI 15/1986), O 38, r 9 - Appeal granted, matter remitted to appeals officer (2010/459SP - Gilligan J - 27/7/2011) [2011] IEHC 510

Brightwater Selection (Ireland) Ltd v Minister for Social and Family Affairs

Facts The case concerned an appeal on a point of law regarding a decision that found that an individual was employed under a contract of service by the appellant (Brightwater Selection) and that her employment was insurable for all benefits and pensions under the Social Welfare Acts at PRSI Class A rate of contribution. The appellant had arranged an interview for the individual with University College Dublin who was subsequently offered a temporary position. Tax and the employee and employer's element of social insurance contributions were deducted and paid by the appellant to the Revenue Commissioners. Subsequently it transpired that in respect of such workers a refund would be made to employment agencies due to a lacuna in the law. The individual in question was selected as the mutually agreed agency worker for the purposes of a test case for determining the insurability of agency workers. It was the appellant's case that the dispute centred on whether the individual was employed under a contract of service and that the individual was not employed under such contract.

Held by Gilligan J in allowing the appeal and remitting the case. Control although not determinative was an important factor to be taken into account when deciding whether an individual was employed under a contract of service. The Appeals Officer did not appear to have directed his mind to whether the appellant possessed the power to direct the manner in which work was to be done by the individual. The correct test was whether the body in question possessed the right to control the individual both as regards the work to be done and also as regards the manner in which the work is to be done. Although the Appeals Officer did mention the phrase 'mutuality of obligation', he had not engaged in a substantive appraisal of whether the appellant was under any duty to provide work to the individual or whether that individual was under any duty to perform work given to her by the appellant. In failing to address the issue, the Appeals Officer erred in law. The case would be remitted to the Appeals Officer for reconsideration in light of the findings made.

Reporter: R.F.

1

JUDGMENT of Mr. Justice Paul Gilligan delivered the 27th day of July, 2011

Introduction
2

1. This is an appeal on a point of law against the decision of an Appeals Officer dated 15 th April, 2008 which upheld a Deciding Officer's decision which had found that Ms. Kerrie-Anne Keenan was employed under a contract of service by the Appellant during the period 14 th March, 2002 to 30 th September, 2002 and that her employment was insurable for all benefits and pensions under the Social Welfare Acts at PRSI Class A rate of contribution.

3

2. The appellant referred the decision under appeal to the Chief Appeals Officer pursuant to s. 318 of the Social Welfare (Consolidation) Act 2005 (hereafter referred to as "the 2005 Act"), but the Chief Appeals Officer declined to revise the decision because it did not appear to her that the decision of the Appeals Officer was erroneous by reason of some mistake having been made in relation to either the law or the facts.

Factual Background
4

3. Ms. Keenan registered with the appellant in June 2001. The appellant arranged for an interview for Ms. Keenan for a position in the administration department of University College Dublin (hereafter referred to as "U.C.D.") on 6 th March, 2002. Ms. Keenan was subsequently offered a temporary position as a financial accountant on 13 th March, 2002 and commenced her engagement with U.C.D. on 14 th March for a 31 week period.

5

4. The only interaction between Ms. Keenan and the appellant consisted of the filing of weekly timesheets and the corresponding payment by the appellant of Ms. Keenan's salary into a designated bank account. Tax and the employee and employer's element of social insurance contributions were deducted and paid by the Appellant to the Revenue Commissioners. There does not appear to have been any obligation on the appellant to provide work for Ms. Keenan nor any corresponding obligation on Ms. Keenan to work on behalf of the appellant.

6

5. Following a newspaper article in which a spokeswoman for the Minister for Social and Family Affairs indicated that a significant refund would be made to employment agencies due to a lacuna in the law, the appellant engaged in discussions and correspondence with the respondent for the purposes of procuring a refund of the employer's element of the social insurance contributions. After a process of consultation, the appellant and respondent agreed that Ms. Keenan would be selected as the mutually agreed agency worker for the purposes of a test case for determining the insurability of agency workers and the associated entitlement to a refund.

7

6. The Deciding Officer within the Department of Social and Family Affairs determined that, while Ms. Keenan was under the day to day control and direction of U.C.D. with regard to how she carried out her work, she was employed by the appellant based on the agreement between the parties entitled 'Terms of Employment for Temporary Workers'. The decision of the Deciding Officer was appealed to the Social Welfare Appeals Officer. After an oral hearing in which both sides...

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16 cases
  • Petecel v The Minister for Social Protection
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    ...together amounted to serious and significant error. In Brightwater Selection (Ireland) Limited v. Minister for Social and Family Affairs [2011] IEHC 510 Gilligan J. said that the task of the Court was to consider whether or not the appeals officer had based the decision on an identifiable e......
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    ...for cases which may fail in limine. 27 Further, in Brightwater Selection (Ireland) Ltd. v. Minister for Social and Family Affairs [2011] IEHC 510, the High Court (Gilligan J.) again engaged in a thorough review of the authorities as to when a contract of employment exists and examined the r......
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    ...this case is to consider, as Gilligan J. outlined in Brightwater Selection (Ireland) Limited v. Minister for Social and Family Affairs [2011] IEHC 510, ‘ whether the Appeals Officer based the decision on an identifiable error of law or a finding of fact that is not sustainable’. 35 The resp......
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