Case Number: FTD1216. Labour Court

• Docket Number: FTD1216
• Date: 01 July 2012
• Court: Labour Court (Ireland)

FULL RECOMMENDATION ; FTC/11/36 DETERMINATIONNO.FTD1216 (R-077765-FT-09/D1); INDUSTRIAL RELATIONS ACTS, 1946 TO 1990; SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 ; PARTIES : NUI MAYNOOTH; (REPRESENTED BY MC CANN FITZGERALD SOLICITORS); - AND -; MR LEONARD DORRIAN; (REPRESENTED BY MS LOUISE O' DONNELL); DIVISION : Chairman: Mr Hayes; Employer Member: Ms Cryan; Worker Member: Mr Shanahan

SUBJECT:
1. Appeal of Rights Commissioner's Decision r-077765-ft-09/DI.



BACKGROUND:

2. The Worker and the Employer appealed the Rights Commissioner's Decision to the Labour Court. Labour Court hearings took place on the 17th November, 2011, the 5th December, 2011 and on the 12th March, 2012. The following is the Labour Court's Decision:-


DETERMINATION:

Mr Dorrian hereinafter “the Complainant” has been employed by NUI Maynooth, hereinafter “the Respondent” or “the University” as an Instrument Teacher/Occasional Performance Tutor sinceOctober 2003. The parties disagree on the precise job title of the Complainant. The Complainant maintains that she is employed as an Instrument Teacher. The Respondent maintains that he is employed as an Occasional Performance Tutor.

The Respondent employed the Complainant on a series of fixed term contracts as follows:

8th October 2001 to May 2002
7th October 2002 to May 2003
6^thOctober 2003 to May 2004
4^thOctober 2004 to May 2005
3^rdOctober 2005 to 5^thMay 2006
2^ndOctober 2006 to 4^thMay 2007
8^thOctober 2007 to 9^thMay 2008
13^thOctober 2008 to 8^thMay 2009

The Complainant's contract was renewed in October 2009. The Complainant is paid €46.98 per hour. Hhe has no entitlement to increments, sick pay, pension or annual leave.

On 30^thMarch 2009 the complainant referred a number of complaints to the Rights Commissioner under the terms of the Protection of Employees (Fixed-Term Work) Act 2003. The Complainant alleged that the manner of her treatment by the Respondent was contrary to the provisions of Sections 6, 8(2) and 9(1) of the Act.

The University rejected the complaint, asserted that the Complainant was employed on a contract for services and did not come within the scope of the Act. The Respondent challenged the jurisdiction of the Rights Commissioner to hear the complaint under the Act.

The Rights Commissioner held against the University on the issue of jurisdiction. The Rights also decided that the Complainant was employed on a contract of service.

On the substantive issues the Rights Commissioner decided that the Complaint under section 9 was well founded. The Rights Commissioner decided that the Complainant became entitled to a contract of indefinite duration by operation of law with effect from 4^thOctober 2006. She ordered the Respondent to pay the Complainant €2,500 compensation for the breach of s9 of the Act.

The Rights Commissioner decided that the Complaint under s6 of the Act was not well founded. She decided that the Comparator put forward by the Claimant was not a comparable employee within the meaning of Section 5 of the Act.

The Rights Commissioner decided that the complaint under s. 8(2) of the Act was well founded. She ordered the Respondent to pay the Complainant compensation in the amount of €2,500 for the breach of the Act involved.

For different reasons both sides appealed to the Labour Court against the Decision of the Rights Commissioner.

The case came on for hearing before the Labour Court on the 17^thNovember 2011. The case was adjourned and came before the Court again on Monday 12^thMarch. A period of time was allowed thereafter for additional written submissions from the Respondent on issues that arose in the course of the hearing. However, at the end of the allowed time, the Respondent informed the Court that it had no further submissions to make to the Court.


Preliminary Issue:

The University submits that the Complainant is employed under a contract for services and does not enjoy the protection of the Act.

University’s Position
The University submits the Complainant was not part of the departmental staff of the Respondent. Under the arrangement in place between the Complainant and the Respondent he was offered work when it was available and that the Complainant could accept or reject the work as he saw fit. The University was under no obligation to offer work to him and he was under no contractual duty to accept and perform any work offered to her. Accordingly the University submits that there is no mutuality of obligations between the parties which it submits is a condition precedent for a contract of employment.

The Respondent further submits that the practical situation in the University means that a contract for services is the most appropriate form engagement in the case of occasional performance tutors. Students each year choose an instrument to study. The University does not know until quite late in the day how many students will choose any given instrument. The instruments chosen vary from student to student and from year to year. When each of the students finally selects the instrument they wish to study each year the University then proceeds to source specialist tutors to mentor each of the students and assist him or her prepare performance pieces on those instruments as part of their academic studies. Because the instrument studied is chosen by the student each year and the performance tutors are specialists in one instrument only, the University cannot guarantee employment to any of the performance tutors. Equally, without a guarantee of work, it would be impractical to require the performance tutors to commit to the University until the need for their services had been established each year. Accordingly each year, after each of the students has chosen the instrument they wish to study, the University offers contracts for service to those tutors for whom there is a demand.

The position is further complicated by the one to one nature of the relationship that must be established between the student and the tutor. Students to flourish in the tuition system must have confidence in and build a rapport with the instrument tutor. Accordingly each student and tutor must establish a working relationship before the contract with the University can be finally confirmed. On occasion the tutor and student, for various reasons, cannot work together. In those circumstances the student is assigned another tutor with a consequent loss of hours for the originally assigned tutor.

The one to one relationship was, until quite recently, reflected in the payment arrangements originally in place in the university. Students paid the performance tutor directly for their work. Over time this changed and the University collected the monies from the students and handed them over in a lump sum to each of the tutors. Following discussions with Revenue the University paid the monies involved to the tutors through payroll and brought them into the PAYE tax system.

Counsel for the Respondent referred the Court to the judgement of Edwards J in Minister for Agriculture v Barry [2008] IEHC 216 216 where he held

• “The requirement of mutuality of obligation is the requirement that there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer. If such mutuality is not present, then either there is no contract at all or whatever contract there is must be a contract for services or something else, but not a contract of service.”

Counsel for the Respondent submits that in this case the Complainant was free to accept or reject offers of work each year and accordingly each contract was best characterised as being a contract for services rather than a contract of service. He also referred the Court to the judgement of Keane J in Henry Denny & Sons (Ireland) v Minister for Social Welfare [1998] 1 IR 34 and in particular the following passage

• “it is, accordingly, clear that, while each case must be determined in the light of its particular facts and circumstances, in general a person will be regarded as providing his or her services under a contract of service and not as an independent contractor where he or she is performing those services for another person and not for himself or herself. The degree of control exercised over how the work is to be performed, although a factor to be taken into account, is not decisive. The inference that the person is engaged in business on his or her own account can be more readily drawn where he or she provides the necessary premises or equipment or some other form of investment, where he or she employs others to assist in the business and where the profit which he or she derives from the business is dependent on the efficiency with which it is conducted by him or her.”
  

He further referred the Court to judgement of Carroll J in Re Sunday Tribune Ltd [1984] 1 IR 505 Carroll J in which she reviewed many authorities including that of Simmons v Heath Laundry Company [1910] 1 K.B. 543 where it was stated as follows:

• “The greater the amount of direct control exercised over the person rendering the services by the person contracting for them the stronger the grounds for holding it to be a contract of service, and similarly the greater the degree of independence of such control the greater the probability that the services rendered are of the nature of professional services and that the contract is not one of service. The place where the services are rendered, i.e. whether at the residence of the person rendering the services or not, will also be an element in deciding the case, but is not in my opinion decisive”

The Court was also referred to the judgement of Denning L.J. in the cases ofStevenson, Jordan & Harrision Ltd v Macdonald [1952] 1 T.L.R. 101and to the decision ofGeoghegan J. in Castleisland Cattle Breeding Society Limited v Minister for Social and Family Affairs92004] 4 IR 150.

Applying these cases Counsel for the Respondent submits that there was no control exercised over the...