McKayed v Forbidden City Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Ní Raifeartaigh
• Judgment Date: 16 November 2016
• Neutral Citation: [2016] IEHC 722
• Docket Number: RECORD NO: 2016-37-CA
• Court: High Court
• Date: 16 November 2016

IN THE MATTER OF THE UNFAIR DISMISSALS ACTS, 1977-2015

MONNIE MCKAYED

Plaintiff

AND

FORBIDDEN CITY LTD. T/A TRANSLATIONS.IE

Defendant

[2016] IEHC 722

Ní Raifeartaigh J.

RECORD NO: 2016-37-CA

THE HIGH COURT

Employment – The Unfair Dismissals Acts 1977–2015 – Contract of employment – Absence of mutuality of obligation

Facts: The plaintiff had filed an appeal to set aside the decision of the Employment Appeals Tribunal (EAT) reversing the determination of the Rights Commissioner to the effect that the plaintiff was not an employee of the defendant. The defendant argued that there was no mutuality of obligation as evidenced from the work arrangements entered into between the plaintiff and the defendant and thus the plaintiff was not an employee.

Ms. Justice Ni Raifeartaigh dismissed the plaintiff's claim. The Court found that the word ‘will arrange appointments for me' appearing under the contract of employment of the plaintiff should be interpreted to mean that the defendant would try its best to procure work for the plaintiff and thus there was no guarantee of work. The Court held that the defendant had no obligation to provide work to the plaintiff into the future and thus the claim of the plaintiff could not succeed.

JUDGMENT of Ms. Justice Ní Raifeartaigh delivered on the 16th day of November 2016

Issue addressed in this judgment

1 The issue addressed in this judgment is whether or not the plaintiff was an employee of the defendant in the context of a claim by the plaintiff that he was unfairly dismissed and is entitled to certain compensation pursuant to the Unfair Dismissals legislation. The defendant is an Arabic translator, and the defendant was and is a company in the business of providing interpretation and translation services, including interpretation services for suspects being interviewed while in Garda detention and persons being interviewed in the context of asylum applications. It is a necessary precondition to the plaintiff's claim that he was unfairly dismissed that he was, at the relevant time, an employee of the defendant, and this preliminary issue is the sole issue addressed in the judgment.

Procedural History

2 The matter was originally dealt with by a Rights Commissioner, who found in favour of the plaintiff by a determination dated the 3rd August 2011. The matter was subsequently dealt with by the Employment Appeals Tribunal (the EAT), in a decision dated the 14th January 2015, which came to the conclusion that the plaintiff was not an employee of the defendant. The EAT, applying the approach set out in Minister for Agriculture v. Barry [2009] 1 I.R. 215, decided that there was insufficient “mutuality of obligation” in the arrangements between the plaintiff and defendant for there to be a contract of employment. The plaintiff appealed to the Circuit Court in accordance with section 10(4) of the Unfair Dismissals Act 1977, and by a decision dated 4th February 2016, the President dismissed his appeal against the determination of the EAT.

3 The Master of the High Court by order on consent, dated the 5th April 2016, extended the time for serving and lodging a Notice of Appeal against the Circuit Court order, and the plaintiff appealed to the High Court in respect of the decision of the Circuit Court. The matter having come on for hearing before this Court on the 24th October 2016, I heard argument at that stage on the preliminary point as to whether the plaintiff was an employee of the defendant. The defendant was represented by counsel and the plaintiff represented himself.

Facts

4 It was not in dispute that the plaintiff started doing work for the defendant company in July 2008. Evidence was called at the hearing before me, on behalf of the respondent company, to prove that the Plaintiff had signed a document on the 8th August 2008, which set out the terms of the working arrangements between them. The witness called was one Ms. Li, who was managing director in the respondent company, and she said that this document was a standard form document signed by all their interpreters/translators. She produced a document dated the 8th August 2008. The Plaintiff objected that this particular copy produced was not the document he signed; however, he accepted that he had signed a different document on the same date which was identical in its terms except that he had written the word “none” at the bottom of the document. This document was entitled “Memo re Declaration of Interests” and provided as follows:

‘I hereby re-affirm my agreement that I represent FC translations in court, Garda stations and in similar and related areas of operation of FC translations. Including visits to new commercial customers introduced to me through the company.

I agree to not work for another company operating competitively in the same area as FC Translations. Unless I have declared this fact to company management, and I will consider at all times the sensitive and trustworthy area in which I am engaged. And so, in doing, I prioritise work for FC Translations and I do not represent any competitor parties operating in the same areas. Especially where that work could lead to confusion or is likely to be considered a conflict of interest, howsoever arising,

I will abide by the rules, standards, codes of conduct and the methods of operation adopted by the company and that may be adopted in the future and communicated directly to me, or, written. I will not engage in any dishonest practice regarding any aspect of the company's work, or conduct my business or behaviour in any manner possibly resulting in negative reaction, while representing FC translations,

In return, the company will prioritise me for work in these fields to ensure that it is in my interest and benefit to remain part of FC translations. The company will maintain good relations and will place a high level of trust in me knowing that I not only represent myself but also many others working with the company on sensitive public and legal matters. The company will arrange appointments for me and endeavour to maintain sufficient work for me, and promptly pay me on receipt of correctly submitted invoices or time sheets.’

5 The Declaration of Interests also contained a declaration of conflicts of interest, which read as follows:

‘According to the terms of our agreement, I declare here, so as to highlight potential conflicts of interest, or situation arising, that, I work for these ompanies/groups/individuals etc. listed below, operating in the same area as FC translations, whether or not I am providing interpreting/translation, freely or for reward, howsoever trivial.’

The plaintiff said that he had handwritten the word “none” under this paragraph.

6 Mr. McKayed did not call evidence as such, but made certain factual assertions while he was on his feet making submissions. He also relied on certain additional documents handed in to the court.

7 One of these documents was a Code of Conduct which he had been required to sign and did sign on the 8th August 2008. I do not set out here all of the Code, but Mr. McKayed drew attention to the following passages within it in the course of his submissions:

‘Procedure

You will:

• Not enter into discussion, give advice or express opinions or give reactions to any of the parties;

• Intervene only:

• To point out that a party may not have understood something

• To alert the parties of a possible missed cultural inference

• To ask for the interpreting process to be accommodated and inform all parties present of the reason for the intervention;

• To ask for clarification

• To advise the court that there is no equivalent term in the language concerned to the term being used.

• To advise the court that you require a break due to lapses in your concentration occur during lengthy periods of simultaneous or consecutive interpreting

• Not delegate work, nor accept delegated work, without the consent of the company and the client.

• Convey the exact meaning of what has been said without adding, omitting or changing anything; making explanation only where a cultural misunderstanding may be occurring, or where there is no direct equivalent for a particular term. Only in exceptional circumstances should a summary be given (if this is consented to by all parties) provided the meaning of what is being summarised is not distorted.

• Be reliable and punctual at all times.

• Must state (in a criminal trial) if you were involved in interpreting at the police station on the same case.

• Not have discourse with any client or defendant at any time.

• Not be interviewed by the media.

• Not accept offers or lifts or to share taxis or other means of transport with any client, defendant, accused or solicitor before or after any appointment.

• Not disclose any information learnt in the course of any interview, to anybody.

• Not permit any questioning or interview by solicitors except in court on foot of a court order.

• You will not allow the distribution of your phone number or that of any co-worker to any defendants, clients or solicitors. All such queries should be directed to the company's office. Give the company business card if requested.

• Be required to make an oath or affirmation in court in the presence of a judge.

• Be required to make statements to gardai concerning the accuracy of the information you translate.’ (emphasis added)

8 The following was also contained in the code in a section entitled “ethical and professional rules”:

‘You will:

• Respect confidentiality at all times and not take advantage of any information gained during your work.

• Act in an impartial and professional manner;

• Not discriminate against parties, either directly or indirectly, on the grounds of race, colour, ethnic origin, age, nationality, religion, gender, sexuality or disability;

• Not give advice, legal or...