DWT1236

Facts
The Claimant initially worked with the Respondent between 2005 and April 2007. He again worked with the Respondent from August 2007 until February 2011. At all material times he was engaged as a motorcycle courier. There was no contract in writing between the parties. The Claimant was responsible for the making of deliveries on behalf of the Respondent to its various customers. He was paid by reference to the number of deliveries made. On this arrangement the Claimant’s earnings fluctuated from week to week. While the Claimant was originally paid a fixed sum per week this arrangement was discontinued in favour of a payment per delivery shortly after his engagement commenced. If the Claimant was unable to work for any reason, including a mechanical failure of his mode of transport, he did not receive any payments. There was no sick-pay and the Claimant was never paid for holidays.

While he generally worked between 9am and 6pm, five days per week, there were no formal or fixed working hours. An arrangement was in place whereby the Respondent paid a financial incentive to its couriers, including the Claimant, if they were available to work five days in any week. The Claimant was required to provide his own motorbike and to meet the full running costs thereof. This included tax, insurance and fuel costs. He did not receive any allowance or reimbursement from the Respondent to offset these costs.

The Claimant was required to undertake the work personally and he could not delegate his duties. Neither could he work for any other courier service while engaged by the Respondent. The Claimant was not paid overtime,per se,if deliveries were made late in the evening or at weekends, although an extra charge was made to the customers and a portion of this extra charge was paid to the Courier.

The Court was told that a special arrangement was put in place by the Revenue Commissioners on the tax treatment of earnings arising from engagement as,inter alia,a motorcycle courier. This recognises that Couriers are generally not chargeable for income tax under Schedule E of the Taxes Consolidation Act 1997. Under this arrangement couriers may, on a voluntary basis, opt to have 45% of their earnings treated as expenses incurred in the performance of their duties and exempt from tax, with the remainder liable to tax under PAYE. The Claimant availed of this arrangement. Further, motorcycle Couriers who provide their own equipment are regarded as insurable as self-employed persons for the purpose of the Social Welfare Acts.

Conclusion
There is a very considerable body of case law on the various tests to be employed in distinguishing between a contract of service and a contract for services in both employment and tax law. These various tests are helpfully encapsulated in a document entitled “Code of Practice for Determining Employment or self-Employment Status of Individuals”. This Code of practice was formulated by the Employment Status Group set up under the Programme for Prosperity and Fairness with the assistance of relevant Government Departments, Trade Unions and Employer Bodies, NERA and the Revenue Commissioners. While the provisions of this Code of Practice cannot be regarded as a definitive statement of the law in this area they are nonetheless of persuasive authority.

The Court has had regard to the provisions of this Code in addressing the question in issue in this case. Having done so the Court finds that, on balance, the factual matrix surrounding the Claimant’s engagement with the Respondent is more consistent with a contract for services than with a contract of service. In particular the Court has had regard to the fact that the Claimant was not paid a fixed wage or salary and that his earnings were entirely dependent upon the number of deliveries that he could made in the course of a day. He was responsible for providing the equipment necessary to undertake his work, namely, a motorcycle, and that he was fully responsible for the costs associated with the running and maintaining his motorcycle. He availed of a special tax arrangement which could not apply to an employee and benefited significantly from that arrangement. He was treated as self-employed for the purposes of the Social Welfare Acts and never sought to challenge that designation.

Determination
Having regard to all the circumstances of this case the Court has concluded that the Claimant was not employed by the Respondent pursuant to a contract of service. Accordingly, the Court affirms the Decision of the Rights Commissioner and the within appeal is disallowed.