Case Number: ADJ-00012546. Workplace Relations Commission

• Date: 04 October 2018
• Docket Number: ADJ-00012546
• Court: Workplace Relations Commission
• Parties: An Accountant V A Restaurant

Procedure:

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 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.

Background:

The complainant submitted his complaints on 11 October 2017. A hearing was initially scheduled for 31 May 2018. At that hearing, the respondent raised a preliminary objection on the complainant’s employment status, and submitted extensive evidence and submissions with regard to this point. In order to give both myself and the complainant an opportunity to consider these points, I adjourned the hearing to 20 September 2018, and asked for a written response from the complainant, which was received on 23 July 2018.

Summary of Complainant’s Case:

The complainant is a Certified Public Accountant (CPA). He obtained the relevant qualifications in 2013, but states that he had worked in accountancy for 15 years by the time his relationship with the respondent started. He asserts that he was deprived of his employment rights under the statutes listed above, inter alia having been denied payslips and a contract of employment, or a statement of his terms of employment, and that he was unfairly dismissed. In terms of the objections which the respondent raised about his employment status, the complainant asserted that he was forced into bogus self-employment. He stated that he felt so forced because, in his words, in 2014, the “Irish economy had collapsed” and there were “thousands of unemployed accountants around”. He pointed to a decision by a Social Welfare Appeals Officer that he had been found to be employed by another business, where, he asserted, the exact same facts pertained as with the within respondent. In terms of the within respondent, it was common case that a decision by the SCOPE section of the Department of Employment Affairs and Social Protection had been unfavourable to the complainant, but the complainant stated that this was under appeal. In terms of the amount of control which the respondent had over him, the complainant stated that he obtained the role by replying to an advertisement on a website which also lists job offers, that his initial interview took place at the respondent’s direction, that he was asked to use the staff car park, that his rate of €300 per day entailed an obligation to stay on the premises for a minimum of 7.5 hours, that he received staff meals, and that he used the respondent’s computers and software. He stated that the respondent bought him a Mac computer to do his work on, and software to work with. He further said that he supervised and managed the respondent’s bookkeeping staff. He also stated that he was forced to take his breaks at certain times. The complainant also asserted, throughout his evidence, that a contract of employment simply existed, without any further evidentiary support. He also stated repeatedly that if this had been a contract for services, he could have sued the respondent in the regular courts for breach of contract.

Summary of Respondent’s Case:

The respondent provided extensive documentary evidence from throughout the parties’ relationship, which strongly underpins its contention that the complainant was an independent contractor who provided accountancy services to the respondent’s small business. The respondent specifically disputed that the complainant’s per diem rate entailed a fixed number of hours. The respondent asserted that the complainant was not obliged to be present on the premises. The respondent accepted that the complainant was allowed to use the staff car park and that he was provided with meals from the restaurant in addition to his daily rate. The respondent accepted that the complainant was asked not to take those meals during the main lunch hour rush at the business. The respondent also stated that the complainant had specific, highly sophisticated bookkeeping software to do his work which the respondent business did not own, and which made it difficult for the respondent, after the end of the relationship, to retrieve its accounts. The respondent accepted that the complainant was welcome to use its computer and whatever accounting and payroll software it owned. The respondent categorically disputed ever buying a Mac computer or software for the complainant.

Findings and Conclusions:

CA-14921-001 to CA-14921-11, as listed above: The matter of the complainant’s employment status is in many ways equivalent with the case itself. If the complainant was not an employee, he has none of the entitlements he claims. The findings of the SCOPE section of the Department of Employment Affairs and Social Protection are of somewhat limited relevance here, as they relate to social insurance status rather than how the complainant’s situation meets the relevant definitions in the statutes under which he has brought his complaint. I reviewed the definitions of “employment contract”, respectively “employee”, for all of these, and they are as follows:

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