Case Number: ADJ-00000215. Workplace Relations Commission

Docket NumberADJ-00000215
Date03 March 2016
CourtWorkplace Relations Commission
PartiesAn Employee v An Employer
ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000215

Complaint for Resolution:

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00000273-001

16/10/2015

Date of Adjudication Hearing: 21/01/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Complainant’s Submission and Presentation:

The complainant is an actor who supplied entertainment services to the respondent. He was one of two actors engaged to provide the services on speciality tours. He undertook about sixty-five of these per year and there was some seasonality about the frequency. Each ‘shift’ lasted about three hours. But he had an expectation of some work every week and would be advised of the availability of work by text message.

He had been doing the work for six years.

He submitted invoices to the respondent for payment and was responsible for his own income tax returns.

He submitted that information provided by the respondent to the Department of Social Protection was an indicator that it regarded him as an employee.

In due course dissatisfaction arose with his performance and the respondent terminated his service.

The complainant says that he is an employee with entitlements under the Unfair Dismissals Act in that the respondent determined how and when he worked and that he was within their control at all times. Also he could not subcontract the work nor was he required to bring any equipment to work. He had no financial interest in, nor could he have influenced the success of the enterprise. The respondent also issued him with payslips.

The complainant says he was entitled to due process in respect of any such termination and that this did not happen.

The complainant submitted a list of twelve criteria published by the Department of Social Protection which, if applicable to a claimant ‘would normally’ make that person an employee, i.e. on a contract of service and asserted that they did apply in this case

He also complains that he was not given a statement of his Terms of Employment as required by Section 3 of the Terms of Employment (Information) Act 1994.

Respondent’s Submission and Presentation:

The respondent says that the complainant was engaged on a contract for services and that after each tour he submitted an invoice. There was no ‘mutuality of obligation’ and indeed no obligation to provide him with work at all. It said that no significance should be attached to the returns made to the Department of Social Protection as these were done on the only form the respondent has for such purposes.

In relation to the payslip referred to by the complainant no tax was deducted.

In direct evidence D said his job was to manage the tours and that he had recruited the actors. He made it clear to them at that point that they were not employed by the respondent or by him.

In relation to the process leading to the termination D said he had a meeting with the HR manager of the respondent to outline his serious concern at the complainant’s performance and that he intended to terminate the engagement. He also met the complainant and outlined the areas of improvement necessary, following up this conversation with an email.

In due course he observed that there had not been any improvement and recommended to the HR manager that the complainant’s services be discontinued. She authorised this course of action and a letter issued on June 2nd 2015 advising him that his services were no longer required.

They viewed this as a courtesy to him rather than the formal termination of a contract. No written

Conclusions and Findings

I have considered all the relevant evidence and submissions that were laid before me, oral and written in the course of the hearing and prior to it.

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

This issue turns quite simply, (although it is not a simple matter) on whether the complainant met the definition of a person engaged on a contract of service or on a contract for services. Between the easily recognisable contractor on the one hand (the totally independent tradesperson who calls to carry out a repair, to take a clear example) and the full time worker on a contract of indefinite duration there is a wide spectrum of contractual situations.

Distinguishing whether a person on the spectrum falls into one category or the other has occupied a good deal of judicial attention and there is a ‘Code of Practice in Determining Employment Status’ already referred to in the submission from the complainant.’

A number of key principles apply.

First, each case turns on its own facts and the adjudicator must take into account all aspects of the relationship. It is an objective test and the parties’ own description of the relationship may be irrelevant. Quite often the need to define the status may arise outside the strict employment rights field, as will be seen below where leading authorities stem from cases addressing social welfare entitlements or under Company law.

Likewise there may not be a single test and a number of tests have been evolved to ascertain the true status of the relationship. More than one may be necessary to determine the issue.

A good flavour of the underlying principles can be gleaned from the following statement, in which the purpose of making the distinction is described as being;

‘to correctly identify those who should fall within the embrace of Employment law and to exclude those who have sufficient independent existence to make it unnecessary to protect them’

Upes, Benny and Handy Labour Law (2nd Edition, OUP 2006) at 46 quoted in ‘Employment Law in Ireland’, Cox et al.

The question is often framed relatively simply as ‘whether the person is in business on their own account’ and this is a good starting point. Market Investigations v Min. of Soc. Security [1969] 2 Q.B. 173, Cooke J, at p. 184.

This opens up such criteria as to whether the person has the opportunity to benefit financially or improve or disimprove his earning possibilities by his actions, for example.

The leading case on the matter is Henry Denny v Minister of Social Welfare [1998] 1 I.R. 34 which concerned a supermarket demonstrator and was a case determined under the Social Welfare (Consolidation) Act 1981 to establish the applicant’s status as ‘an insured person’ for the purpose of social welfare payments.

The comparisons with the complainant’s case here are interesting.

In that case the worker had a written contract which specified that she was not an employee, but an independent contractor. Indeed she specifically agreed to the exclusion of the Unfair Dismissals Act 1977 to her employment. There is no written documentation governing the employment relationship in this case.

It was also stated that she was responsible for her own tax affairs (as was the current complainant) and her fees discharged on a fortnightly basis on production of completed invoices (also as in this case).

She was supplied with a uniform and was unsupervised but obliged to abide by the company rules. She could not nominate a substitute.

Some features of that case are not present here such as a non-compete clause

The Supreme Court in that case concluded that the worker was employed on a contract...

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