Laurence Wall, Tomas O’Shea and Joseph Kavanagh, Veterinary Partnership t/a Moyne Veterinary Clinic (Represented by Dorothy Donovan B.L., Instructed by Frizelle O’ Leary & Company, Solicitors) v Natasha Nowacki (Represented by Emma Cassidy B.L., Instructed by Niamh Moriarty & Company, Solicitors)
| Jurisdiction | Ireland |
| Judgment Date | 04 April 2019 |
| Judgment citation (vLex) | [2019] 4 JIEC 0401 |
| Court | Employment Appeal Tribunal (Ireland) |
| Date | 04 April 2019 |
| Docket Number | DETERMINATION NO.EDA198,ADJ-00000026,FULL RECOMMENDATION |
Labour Court
FULL RECOMMENDATION
ADE/16/51
DETERMINATION NO.EDA198
ADJ-00000026
Chairman: Ms Jenkinson
Employer Member: Mr Murphy
Worker Member: Ms Treacy
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015
1. Appeal of Adjudication Officer’s Decision ADJ-00000026.
2. The Claimant appealed the Adjudication Officer’s DecisionADJ-00000026 to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2015. Labour Court hearings took place on 26th and 27th February, 2019. The following is the Determination of the Court:
This is an appeal by Ms Natasha Nowacki against the Decision of an Adjudication Officer in Decision ADJ-00000026 under the Employment Equality Acts 1998 – 2015 (“the Acts”) where she claimed that she had been discriminated against on the gender and family status grounds by Laurence Wall, Tomas O’Shea and Joseph Kavanagh, Veterinary Partnership t/a Moyne Veterinary Clinic. The Adjudication Officer held that her claim could not be maintained under the Acts as he held that Ms Nowacki was engaged under a contract for service and not a contract of service and consequently was not an employee. He did not make any decisions on the substance of the claim.
The complaint under the Acts was referred to the Workplace Relations Commission on 4 th October 2015.
In this Determination the parties are referred to as they were at first instance. Hence Ms Natasha Nowacki is referred to as “the Complainant” and Laurence Wall, Tomas O’Shea and Joseph Kavanagh, Veterinary Partnership t/a Moyne Veterinary Clinic is referred to as “the Respondent”.
The Respondent contended that the Complainant was not its employee and had no locus standi to maintain the proceedings and therefore contended that the Court lacks jurisdiction to investigate the complaint.
This contention was fully contested by the Complainant who asserted that she comes within the broad definition of Section 2 of the Acts.
The Adjudication Officer held for the Respondent on this point and held that he lacked jurisdiction to investigate the complaint. The Adjudication Officer did not make any decision on the substance of the Complainant’s case.
Therefore, the first issue to be considered by the Court in this case is whether the Complainant was engaged under a contract of employment as defined by the Acts. With the concurrence of both parties, it was agreed that the Court would deal with this issue as a preliminary matter. In the event that the Court were to uphold the Adjudication Officer’s Decision, then that will be the conclusion of the case. In the event that the Court were to overturn the Adjudication Officer’s Decision, then the case will be remitted back to the Workplace Relations Commission for investigation of the substantive claim.
The Complainant is a Veterinary Surgeon and an American citizen and at the material time of this claim was a non-EU and non-EEA citizen. She was engaged by the Respondent from 2 nd August 2004. She was rostered to work Monday to Friday, every second Saturday, one in four Saturday nights, Sundays and Sunday nights. Initially she was paid on a fixed rate of pay and in May 2005, after she had been offered an alternative position with another veterinary practice, it was decided to pay her on a commission basis. No other changes took place in her conditions at that time.
At the hearing before the Court there was a substantial discussion on the question of the Complainant’s status to work/ provide a business service due to her non-national status. However, it was accepted that from 2003 until 2013 the Complainant had Business Permission from the Irish National Immigration Service of the Department of Justice and Equality and from 2013 she was deemed to be encompassed by the Zambrano Judgement on the basis of her parentage of an Irish citizen child. The latter provided her with a right to reside and work in the State as an employee without an Employment Permit or to set up a legitimate business or engage in a profession without seeking the permission of the Minister for Justice and Equality.
Ms Emma Cassidy, B.L., instructed by Niamh Moriarty & Company, Solicitors, on behalf of the Complainant, asserted that the Complainant was an employee of the Respondent and therefore had appropriate locus standi to maintain a claim for discrimination under the Acts. She stated that the Complainant commenced working for the Respondent on 2nd August 2004 and was employed as a Veterinary Surgeon having responded to an advertisement placed by the Respondent in a veterinary periodical. She went on maternity leave in March 2007 and returned in August 2007. The Complainant became pregnant again in March 2014 and took maternity leave from 6 October 2014 until 6 April 2015.
Ms Cassidy stated that during her pregnancies the only duties the Complainant could not carry out were those that involved lambing sheep as it is inadvisable for pregnant women to be near same due to the dangers this could cause to the pregnancy. The Complainant also could not undertake large animal work for approximately four weeks before going on maternity leave in March 2007 when she was physically unable to do large animal work. Further, the Complainant was advised generally by her Doctor in and around January 2007, approximately 10 weeks from her due date, that she should avoid working nights if possible for her general wellbeing for the rest of her pregnancy.
Ms Cassidy submitted that the Complainant was covered by the broad definition of employee contained in the Acts which she contended was also echoed in definition of a “worker” by the CJEU for the purpose of EU law and she relied upon the case of Danosa v LKB Lizings SIA [2011] 2 CMLR 45 where it held that: -
• “…the essential feature of an employment relationship is that, for a certain period of time, a person performs services for and under the direction of another person, in return for which he receives remuneration…”
Ms Cassidy stated that the decision in the Danosa case arose in the context of establishing the definition of worker for the purposes of the Pregnancy Directive and therefore has a clear application to the circumstances at issue in the within proceedings.
The claimant in Danosa performed services for the respondent and received remuneration. She was directed to perform these duties personally by certain weekly deadlines and remained subject to the management of the respondent. Therefore, in the context of this claim, Ms Cassidy submitted the above-mentioned test was passed by the Complainant as she could easily be identified as a worker who was directed to perform duties personally by the Respondent and was at all time subject to the management of the Respondent.
Ms Cassidy argued that the Danosa case and the definitions contained therein are the supreme authority in this jurisdiction. She submitted that both this authority and the precedents it has created are the only appropriate authorities that may be considered when determining the Complainant’s locus standi pursuant to the Acts. She said that this is a much less restrictive and broader definition of “worker” and actually has the effect of capturing many more working relationships than other employment legislation. In addition, this broad definition is what was intended by the legislature given the European Directives from which it emanated.
Further to the foregoing definitions Ms Cassidy also submitted that on the basis of the established tests, the Complainant was engaged by the Respondent under a contract of service and as such was an employee for the purposes for the Acts. She presented her argument under each of the established tests to show that the Complainant was obliged “personally to execute” the work which she was assigned by the Respondent.
• Control Test
Ms Cassidy submitted that the Respondent set the Complainant’s hours of work, dictated the nature of the work she undertook, determined the location where she would undertake the work and, in respect of annual leave or other absences, required, as is normal in an employment relationship, that she request time off and on occasion refused such requests. She said that the Complainant was told where and when to attend on-call call-outs and was required to undertake small animal clinics. The Complainant used the Respondent’s equipment and drugs and on occasions was directed by one or more of the Partners on how to mix particular drugs and, notwithstanding the fact that the Complainant regularly used the Respondent’s equipment and drugs, she did not necessarily agree with the Partner’s directions on how to mix particular drugs.
With regard to her argument on the extent of the control exercised over the Complainant by the Respondent, Ms Cassidy placed reliance upon the case of Beloff v Pressdranz Ltd [1973] 1 ALL ER 241 which specifically addressed the significance of the control test when dealing with a skilled worker wherein it was held that:-
• “…the greater the skill required for an employee’s work, the less significant is control in determining whether the employee is under a contract of service. Control is just one of many factors whose influence varies according to circumstances.”
She said that this test was accepted and promulgated further in Re Sunday Tribune Ltd [1984] 1 IR 505 by Carroll J. who, in reference to the control test, noted that:-
• “when senior staff...
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