Case Number: ADJ-00007896. Workplace Relations Commission

• Docket Number: ADJ-00007896
• Date: 21 August 2018
• Court: Workplace Relations Commission
• Parties: A Courier v A Hospital Group

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. Further written submissions were made by the Parties on the 24th May 2018 and 20th June 2018.

Background:

The Complainant entered into an agreement with the Respondent and delivered laboratory samples for the Respondent to different hospitals in various locations since 2nd April 2002. This agreement was terminated by the Respondent in April 2016. The Complainant claims that his contract of employment was terminated in February 2016 and he performed his last delivery for the Respondent in April 2016. At the hearing the Parties agreed that the last date the Complainant delivered samples for the Respondent was 2nd April 2016. The Complainant claims that he was an employee of the Respondent and was entitled to redundancy payment, annual leave entitlements and his notice. The Respondent denies the claims and argues that the Complainant was self-employed and engaged under a contract for service.

Preliminary matter: Employment status

There was a dispute between the Parties as to whether the Complainant was an employee as claimed by the Complainant or whether the Complainant had a contract for services as maintained by the Respondent.

Summary of Respondent’s Case:

The Respondent entirely refutes the assertion that the Complainant was an employee and argues that he was an independent contractor engaged under a contract for services. The Respondent submits that the Complainant was self-employed under the business name “ABC”. The Complainant was one of several couriers which the Respondent used for a number of years. In early 2015 negotiations had taken place with the Complainant with a view to reducing costs. At that time, the Complainant asserted that he was working exclusively for the Respondent. He was advised that the level and extent of his service provision was a matter for himself. When the Complainant first commenced providing services for the Respondent, the Respondent understood that he was also employed by other entities for courier services. The Respondent submits that a Service Level Agreement (SLA) was required as otherwise the Respondent would be in breach of National Financial Regulations (NFRs). The Respondent presented at the hearing a copy of “Service Level Agreement for Transport Service between [Respondent] and “ABC” Courier Service” dated August 2014 and July 2015. The SLA provided that the service required the transport of laboratory samples “as required” and “upon request” and for the most part (but not exclusively) within Monday to Friday regime. The SLA also made provision for a schedule of costs, which were set up for a round trip. The schedule also included details of VAT payable to the provider of services at 23% and set out the procedure for invoicing. The SLA also made provision for a review date which stated: “This is a rolling service level agreement which is subject to review, when appropriate. This Agreement is subject to compliance with NFRs. Any subsequent contracts awarded by the National Procurement under its obligations may supersede this agreement.” The SLAs were signed by the Respondent and by the Complainant “on behalf of the ‘ABC’ Courier Service”. The arrangement with ABC formally concluded following a tender process which commenced in 2015 and which was conducted as per the NFR requirements. All existing and prospective suppliers, including the Complainant, were notified of the tender process in advance. The Complainant submitted an application to the Respondent procurement office and was unsuccessful mainly because he had only tendered for a portion of the work and not the full requirement and therefore was deemed non-compliant for the requirement of the service. The results of the tender were notified to the parties in writing on 17th December 2015 by the Respondent’s national procurement office. The letter confirmed the identity of the successful applicant and outlined that the decision was subject to a standstill period until 3rd January 2016. The Respondent further advised that under the EU procurement law, they are obliged to observe a standstill period of at least 14 days before finalising with the preferred bidder. This period is available to deal with any queries from unsuccessful tenderers. All such queries by tenderers were to be remitted to the Respondent national procurement office. The Respondent is not aware whether the Complainant took up further queries with the procurement office. The Respondent wrote to the Complainant in February 2016 to confirm the outcome of the tender and to advise that the tender contract would commence on 1st April 2016, and from that date, all transport samples would be the responsibility of the successful bidder. PK, Chief Medical Scientist and KO, Laboratory Manager of the Respondent also met with the Complainant after the tender award and explained the process in detail to him. The Complainant was advised to contact the national procurement office with regard to any queries with the tender process. The Respondent argues that for an employment relationship to exist there must be a mutual obligation on the employer to provide work for the employee and on the employee to perform that work. The mere fact of existence of mutuality is not determinative. The Respondent submits also that the fact that work is given regularly for a period of time is not necessarily determinative of whether there is an obligation on one of the parties to provide work. In McKayed v Forbidden City Limited, the plaintiff could refuse work, which could come at any time of the day. In the case therein, the Complainant had the same ability to decline work as the Respondent had other contractors engaged in similar service and available for duty and the couriers could be selected interchangeably. The Respondent submits that other key factors need to be considered such as: the written contract of employment, the degree of control exercised over how work is performed, is the worker in business on his own account, the degree to which the worker is integrated into the workplace. The Respondent submits that the Revenue’s Code of Practice for determining Employment and Self Employment Status of individuals can also be considered. The Respondent accepts that the Complainant was engaged to undertake service for a long number of years. It was the Respondent understanding that he operated and provided services for other entities. He more recently indicated that the Respondent had become his only contract. It was the matter entirely for the Complainant to maintain, expand or reduce his clients and the fact that he let other clients lapse should not transform him into contract of service. The Respondent submits also that the Complainant was not in receipt of a regular wage and was paid for services that varied from week to week. Two witnesses gave evidence on behalf of the Respondent. Evidence of PK, Chief Medical Scientist Ms PK stated that in 2002 she contacted several courier businesses in relation to the delivery of samples. The Complainant was originally providing his service 1-2 days a week. He was at no stage precluded from canvassing and securing work from other laboratories. Ms PK confirmed that on occasions when the Complainant was not available there were other courier services available. Ms PK confirmed that the laboratory would have samples ready for collection by 11am. The Complainant was not required to be at the Respondent’s premises before 11am and he was rarely asked to work at the weekends, which work he could decline. She confirmed that the Complainant requested to have his invoices submitted twice a month in order to speed up the payment process but he was never paid a fortnightly wage. Evidence of KO, Laboratory Manager Mr KO outlined the regulations in respect of the standards required in relation to the services provided by the Complainant. He stated that in order to comply with the changed standards the SLAs were introduced in 2014. The Respondent relies on the following case law: Minister for Agriculture & Food v Barry & Ors [2008] IECH 216, McKayed v Forbidden City Limited T/A Translation [2016] IECH 722, Monsoor v Minister for Justice Equality and Law Reform & Ors [2010] IECH 389, Castleisland Cattle v Minister for Social & Family Affairs (2004), O ’Coindealbhain (Inspector of Taxes) v Mooney [1990].

Summary of Complainant’s ...