PTD101

The facts

The material facts, as admitted or as found by the Court, are as follows: -

•The Claimant is or was a Director of Early Language Interventions Limited (the Company) The services which she provided under the Home Tuition Scheme were provided through that Company and the fees paid by participating parents were paid to that Company.

•The Company contracted directly with the parents of the children to whom she provided tuition. At the end of each month the Claimant completed a form provided by the Respondent on which she certified the hours which she worked. This was returned to the parents for forward transmission to the Respondent. On foot of this completed form the parents were paid the appropriate grant by the Respondent which they subsequently paid over to the Company.

•At no time did the Claimant enter into or work under a contract, either expressed or implied, with the Respondent.

Position of the parties

The Claimant contends that she was treated less favourably that a full-time qualified teacher in that she was paid the at the rate of €27.12 rather than at the higher rate of €42.18 per hour which is paid to full-time qualified teachers. The Claimant contends that in November 2007 the Minister for Education and Science acknowledged that qualified teachers participating in the Scheme were underpaid and, from December 2007 onwards, the correct rate was paid by the Respondent. However arrears in respect of the period prior to December 2007 were not paid. The within claim is in respect of the difference between the rate paid and the higher rate for the years 2003 to 2007 inclusive.

The Claimant contends that she was employed by the Respondent at the times material to her claim. In the alternative the Claimant contends that the parents participating in the scheme were acting as an employment agency and were providing services to the Respondent in that capacity and that she, in turn, was providing her service to the parents as an employment agency. It was the Claimant’s submission that in these circumstance she should be deemed to be an employee of the Respondent.

The Respondent

The Respondent contends that the Claimant was not its employee at any time material to her claim. On that basis it is submitted that her claim is unsustainable. Without prejudice to its submission in that regard the Respondent submitted that the claim was presented outside the time limit prescribed by Section 16(3) of the Act.

Earlier hearing

This matter came before the Court on 1st September 2009. Having heard the submissions of the parties the Court wrote to the parties setting out certain suggestions on how a resolution of the issue in dispute could be resolved on a voluntary basis. The text of the Court’s letter was as follows: -

1.The parties should exchange the information upon which their respective estimates of the amount due to the Claimant, arising from the erroneous calculation of the hourly rate between 2003 and 2007,are based.

2.Following the exchange of this information the parties should negotiate with a view to reaching agreement on an ex-gratia amount to be paid to the Claimant in full and final settlement of her claim.

3.The Claimant should provide the Respondent with an indemnity against any claims from the parents to whom she provided services in respect to the underpayments which form the subject matter of her claim

4.In the event of the parties failing to agree on the amount to be paid by way of an ex-gratia sum, that question may be referred back to the Court for adjudication. The Court may provide that adjudication itself or it may appoint a suitable person as adjudicator.

5.The Court believes that finality could best be achieved by the parties agreeing to adjudication by way of arbitration. Should either party consider binding arbitration on the quantum of ex-gratia payment inappropriate the Court would be willing to have the matter dealt with by way of a non-binding recommendation.

• These suggestions are put forward for the consideration of the parties so as to assist them in finding a basis upon which they might resolve their current differences. They do not have the status of a Labour Court Recommendation or Determination.
  
  The claims before the Court have been adjourned generally with liberty to re-enter.
  

Conclusions of the Court

It is clear to the Court that no contractual relations existed between the Claimant and the Respondent in the period to which this claim relates. At all material times a service was provided by a Company of which the Claimant was a Director to parents of children who availed of those services. As a matter of law the Company and the Claimant are entirely separate legal persons. Any dispute concerning payment for those services is therefore between the Company and the parents to whom the services were provided.

While the Respondent paid a grant to the parents out of which the Claimant was ultimately paid, this could not establish the necessary nexus between her and the Respondent to afford her legal standing to maintain a claim under the Act.

DETERMINATION:

In these circumstances the Court must conclude that it has no jurisdiction to entertain the within claim. Accordingly the Court concurs with the Decision of the Rights Commissioner.

The appeal is disallowed and the Decision of the Rights Commissioner is affirmed.



Signed on behalf of the Labour Court



Kevin Duffy
29th June, 2010______________________
JFChairman



NOTE

Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.