Case Number: ADJ-00006779. Workplace Relations Commission

Docket NumberADJ-00006779
Date01 October 2017
CourtWorkplace Relations Commission
PartiesA Receptionist v A Sports Facility


Adjudication Reference: ADJ-00006779



Complaint Reference No.

Date of Receipt

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



Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973



Date of Adjudication Hearing: 01/09/2017

Workplace Relations Commission Adjudication Officer: Pat Brady


In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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.


The complainant commenced worked as a part time personal assistant and reception at a fitness club in November 2014 and was paid €10 per hour. She was also able to avail of free tuition for her daughter to the value of €80 per month.

Her employment was terminated on October 3rd 2016.

Preliminary Issue

The respondent asserts that the complainant was at all times self employed and therefore falls outside the protection of the Unfair Dismissal Act.

In correspondence with a WRC inspector he pointed out that he was not her employer and that she had requested time to consider whether she wished to remain self employed or ‘take up [his] offer of PAYE employment’. She did not respond.

The respondent says that initially the complainant assisted with the work of the club on a voluntary basis and then offered to help with administrative work. However, he submits that she was not an employee.

The complainant rejects this and says her work in all respects had the characteristics of a contract of service. She had varying, but regular hours, she was paid a fixed amount generally on the seventh of each month.

Findings and Conclusions on Preliminary Issue

The issue as to whether an employment relationship is a contract of service (the normal employment relationship) or is on a contract for services (a traditional contractor) has important consequences, in the context of statutory employment rights and social protection.

It can sometimes be difficult to discern which category it is and there are a number of criteria and indicators which can assist in doing so.

One thing is clear however is that this is not simply a matter to be left to agreement between an employer and an employee if they agree on something which flagrantly contradicts the generally accepted tests and indicators.

It is not open to an employer to give to a prospective employee a choice such as was claimed here in respect of a position which to the most superficial examination looks like, and was based on a contract of service. The respondent had a book keeper involved who would be expected to know what the legal provisions were. In any event, a prudent employer would be better advised to make a presumption that where a role looks like a traditional one it should by default be treated as a contract of service.

There was nothing in the nature of her employment which might define her as a ‘contractor’ (i.e. ‘for services’)

Both the tone and content of material submitted by the respondent himself give a clear indication of the nature of the relationship; he is issuing instructions, requiring reports and even making several references to the complainant as an ‘employee’.

An example from an email of September 2nd 2016 is as follows.

‘…I would like to see the office work is done the way I decide and the way I instruct my assistants and instructors to do’

On September 5th 2016 he had asked for ‘daily reports’. In the letter of termination he said that he had emailed her ‘instructions/warnings in numerous times’ (sic) and her work was described as ‘secretarial services’.

On September 27th he sent her a list of some seven detailed tasks that needed ‘to be done urgently’.

Accordingly, I can see no basis for concluding other than that the complainant was employed on a contract of service, on any view of the employment relationship. The respondent’s attempt to suggest that the complainant remained in some sort of employment limbo because of her failure to provide tax clearance information is without merit.

The obligation fell on him as an employer to correctly set up the complainant as an employee; it was not a matter for her to decide, nor should her failure to provide information be used as a reason not to do so.

Her complaint therefore falls to be dealt with under the Unfair Dismissals Act.

Summary of Respondent’s Case:

The respondent says that the facility run by him is a community club and not strictly a business. However it has been losing members and tensions were developing between participants in the club.

He says that he wrote to the complainant on a number of occasions, (and copies were provided in evidence) but he did not issue any formal warnings.

However, things were very bad in the club and the complainant was ignoring his attempts to improve the atmosphere.

He therefore terminated her employment by email of October 3rd 2016

Summary of Complainant’s Case:

While there had been some difficulties with the respondent in January 2016 the sequence of events which led to the termination of her employment began in September 2016.

Prior to that she had not been given any formal warnings as to her conduct or performance.

On Friday, September 30th she received a text message from the respondent to say that she would not be required to work the following day.

On Monday October 3rd while she was on her way to work she received two messages; initially saying she would not be needed that day or for the rest of the following week and then a text message stating that her services were no longer required.

She replied asking for an explanation and suggested a meeting with the respondent.

However the respondent refused to meet with her or explain further and said it was his business and he would run it as he saw fit.

He demanded that she return her keys.

There was a further email on October 3rd which is considered below in my Findings.

Findings and Conclusions:

The respondent sent an email to the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT