Case Number: ADJ-00000215. Workplace Relations Commission

CourtWorkplace Relations Commission
Docket NumberADJ-00000215
Date03 March 2016
PartiesAn Employee v An Employer
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...

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