EQUALITY OFFICER'S DECISION NO: DEC-EE/2013/035
PARTIES
Natalia Siekierska, Marek Konopielko & Rafal Synal
(Represented by Independent Workers' Union)
Vs
Publicity Mailing Limited
(Represented by Peninsula Business Services Limited)
FILE NO's: EE/2010/507, EE/2010/511 & EE/2010/573
Date of issue: 7th of May, 2013
1. Dispute
1.1 This dispute involves a claim by three Polish complainants, Ms. Natalia Siekierska, Mr. Marek Konopielko & Mr. Rafal Synal against Publicity Mailing Limited that they were discriminated against on grounds of race, in terms of section 6 of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts, in relation to access to employment, conditions of employment and in relation to their dismissal. Two of the complainants Ms. Natalia Siekierska and Mr, Marek Konopielko also claim that they are entitled to the same rate of remuneration as that paid to a named comparator in accordance with the provisions of Section 29(1) of the Acts.
2. Background
2.1 Two of the complainants Ms. Natalia Siekierska and Mr, Marek Konopielko referred complaints under the Employment Equality Acts 1998 to 2008, to the Equality Tribunal, on the 7th of July 2010, the other complainant Mr. Rafal Synal referred his complaint on 18th of July, 2010 alleging that the respondent had discriminated against them, on grounds of race, when they did not receive any proper contracts of employment, had to work long hours for very little pay and were dismissed suddenly and without any proper reason. The complainants also state that they worked in inhumane conditions, working outdoors in bad weather conditions and that they were expected to travel to work in an overloaded van with no regard for their safety. The complainants also claim that they were dismissed without notice.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated these cases on 3rd of August 2012 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 79(1) of the Acts and as part of my investigation I proceeded to a Hearing on the 1st of February, 2013.
3. Preliminary issue - Non-attendance of 1 complainant
3.1 On the day of the hearing, one of the complainants, Ms. Natalia Siekierska was not in attendance. As part of my investigation under Section 79 of the Act, I am obliged to hold a hearing. I am satisfied that the complainant, Ms. Natalia Siekierska, received notification of the hearing arrangements. I find that the failure of Ms. Natalia Siekierska to attend such a hearing was unreasonable in the circumstances and that any obligation under Section 79 has ceased. As no evidence was given at the hearing in support of the allegations of discrimination I find that the complainant, Ms. Natalia Siekierska has failed to establish a prima facie case and her complaint therefore fails.
4. Summary of complainant's case
4.1 The complainants, Mr. Marek Konopielko & Mr. Rafal Synal, state that they are Polish Nationals and submit that they were employed by the respondent to deliver leaflets. Mr. Rafal Synal stated that he was employed by the respondent from 2001 to 2010 and Mr. Marek Konopielko from October 2009 to June 2010.
4.2 The complainants submitted that they did not receive their legal entitlements as regards contracts of employment, they had to work long hours for very little pay and that they worked in inhumane conditions, working outdoors in bad weather conditions and that they were expected to travel to work in an overloaded van with no regard for their safety. The complainants also claim that they were dismissed suddenly and without notice.
5. Preliminary issue - Employment Status
5.1 The respondent denies that the Tribunal has jurisdiction in the above complaints. The respondent maintains that the complainants, were independent contractors, and therefore not employees for the purposes of the Acts. The respondent submits that the complainants were hired as independent contractors in the capacity of Distributors of flyers, brochures, newspapers etc.
5.2 It is submitted that in April 2010, in order to regularise its Distributors positions, the respondent provided the complainant's with Contracts for Services (submitted in evidence) which clarified the complainant's terms and conditions of employment as independent contractors. It is submitted that the complainant's were provided with these contracts and were notified of the content and meaning of these contracts at meetings which were also attended by a translator Mr. I. The complainants failed to return these contracts to the respondent.
5.3 Bearing in mind the fact that the complainant's were only provided with these Contracts for Services in April 2010, it is necessary for me to examine the working relationship between the complainants and the respondent in order to ascertain whether or not the complainants were working as independent contractors or as employees of the respondent. In doing so I am guided by the finding in Castleisland Cattle Breeding Society v Minister for Social and Family Affairs 1 where the Supreme Court held that, notwithstanding the requirement to examine the terms of the written contract, in determining whether a contract was one of service, or for services, an appeals officer was bound to examine and have regard to what was the real arrangement, on a day-to-day basis, between the parties. A statement in a contract to the effect that a person was an ''independent contractor'' was not a contractual obligation but merely a statement which might or might not be reflective of the actual legal relationship between the parties. In that case, the Court found that, apart from matters of minor detail, the written contract, which was consistent with the worker being an independent contractor, seemed to have been the contract that was actually worked.
5.4 The respondent submits that the issue of whether the services provided by the complainants who worked as 'Distributors' constitutes, a Contract of, or a Contract for Services, was a matter which had been in dispute for some time until February 2009 when the respondent requested the Department of Social and Family Affairs to determine the status of the Distributors from a PRSI perspective. It is submitted that a test case, Mr. W was forwarded to the Department for a determination on the employment status of the Distributors. The Department concluded that the test case Mr. W was employed under a Contract for Services and that his insurable status was PRSI Class S.
5.5 The respondent submits that the complainants were hired to distribute materials at an agreed specific site within an agreed specified period. The respondent further submits that provided the work was completed satisfactorily the complainants were free to work whatever hours within these days that suited.
5.6 The first issue I have to consider is whether the Tribunal has jurisdiction to investigate and decide on the complainants' cases. The question is whether the contract between the complainants and the respondent constitutes a contract of employment, and therefore, whether the complainants were employees for the purposes of the Acts. In reaching my decision I have taken into account all of the evidence, written and oral, submitted by the parties.
5.7 Section 2 of the Employment Equality act, 1998 provides, inter alia,
"employee"....., means a person who has entered into or worked under (or, where the employment has ceased, entered into or worked under) a contract of employment;"
"contract of employment" means .....
(a) a contract of service or apprenticeship, ......"
It follows therefore that the complainants must have been employed under a contract of service if they are to pursue these claims.
5.8 The question of whether a particular employment is to be regarded as a contract of service or a contract for services has been the subject of a number of decisions by the Courts in this jurisdiction. The main test, under Irish law, for assessing this in work situations such as the complainants found themselves, was set out by Keane J in Henry Denny & Sons (Ireland) Ltd v. The Minister for Social Welfare2. The Supreme Court held that it was appropriate not only to examine the entire contractual agreement between the parties, but also the particular conditions under which work was performed. In that judgment Murphy J stated that the question of whether the claimant "was retained under a contract of service depends essentially on the totality of the contractual relationship express or implied between her and the appellant...".
5.9 In the same judgement Keane J noted that whilst the extent and degree of control which was exercised by one party over another, in the performance of the work, had been regarded as decisive in the past, later authorities demonstrated that the control test did not always provide satisfactory guidance. He then went on to hold that:
"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 on 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 a person is engaged in business on his or her own account is 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."
5.10 I am also mindful of the High Court decision in the case of The Minister for Agriculture and Food V Barry and Others 3which contains a detailed analysis of the tests which should be considered in deciding whether a person is working under a Contract for Service or a Contract of Service. In his finding Mr. Justice Edwards stipulated that a Court or a Tribunal should not confine its examination to the "so called enterprise test" and added that " Like the question of enterprise, questions of control and integration may also provide a court or tribunal with valuable assistance in drawing the appropriate inferences" . This finding also addressed the question of 'mutuality of obligation' on an employer to provide work for the employee and on the employee to perform that work personally for the employer.
5.11 Thus, having regard to the above it is clear that the Courts in these situations, in addition to the aforementioned 'enterprise test' have also been guided by the level of control exercised over how the work is to be performed and the level of integration into the business as a whole as well as the question of 'mutuality of obligation' between the parties.
5.12 In examining whether or not an employer employee relationship existed between the complainants and the respondent I must apply all of the above to the instant case.
5.13 The respondent submits that it provides the material for distribution by the Distributors and that this is transported to the various sites via a fleet of vans. The respondent submits that the Distributors are invited to travel in the vans if they so wish and stated that many availed of this as a matter of convenience. The complainant's prior to the hearing had submitted that they were forced to travel in overloaded vans to the delivery destination. The respondent stated that all Distributors including the complainants were given the option of travelling to the delivery destination in the vans or they could find their own way there. The respondent added that most distributors opted to take the lift as it saved them having to find their own way there. The complainants at the hearing did not dispute this and agreed that they did opt to travel in the vans.
5.14 The complainants availed of the option to travel to work in the delivery vans thus enabling them to reduce or avoid any travel costs associated with travelling to various locations. Thus the amount of profit the complainants could derive from the arrangement was therefore contingent on how low they kept their costs relative to what they were paid and thus had an opportunity to maximize their own profit, or minimize any loss, by avoiding the costs associated with finding alternative means of travelling to work.
5.15 The complainants confirmed, in the course of the hearing, that the respondent did not instruct them as to the amount of time they should spend on deliveries just that each day a certain area had to be covered and a certain number of leaflets or newspapers delivered. They received no instruction regarding finishing times or break times and the complainants advised the hearing that they went home whenever they had finished, not at any particular time and that finishing time was dependant on whether they had delivered all of the material.
5.16 At the core of the definition of a contract of employment is the requirement for the employee to ''personally'' execute the work. The extent to which a party can delegate or sub-contract work has been a factor examined many times in the case law. In Henry Denny & Sons v Minister for Social Welfare 4 the Supreme Court noted that the inference that a person is engaged in business on his or her own account can be more readily drawn where he or she employs others to assist in the business. The complainants, when questioned, advised the hearing that they could arrange for someone else to attend in their place if they were not available to work on a particular day. The complainants upon questioning agreed that failure to attend work on a particular day did not result in any failure to be offered work on subsequent occasions. When they were available they worked and if not available they could send someone else in their place.
5.17 The respondent submitted that the complainants were free to work for anyone else, if they so wished. The complainants did not dispute this but stated that they did not do so as they did not have the time. The complainants were therefore not obliged to perform the work personally and could engage the assistance of another person without the approval of the respondent. It is clear that the complainants had considerable discretion in both of these areas, features that one would not normally find in a contract of service. The complainants acknowledged that they did not receive payment for annual leave or sick leave and confirmed that they were not required to seek the respondent's permission when they took days off although they rarely or never did so. The complainants added that the respondents told them on several occasions that plenty of others were willing to do their jobs and that they could be easily replaced at any time.
5.18 The respondents submit that a shift allowance was agreed between the parties and that payment was made following the monthly submission by the complainants of signed invoices. The complainants disagreed on whether they were paid per number of leaflets delivered or per shift but agreed that they did submit signed invoices for payment by the respondent on a monthly basis. The first complainant, Mr. Synal advised the hearing that they were paid according to the number of leaflets delivered and the second complainant Mr. Konopielko stated that they were paid a certain amount per shift once the leaflets were delivered. At the hearing both parties agreed that the complainants submitted invoices seeking payment (signed copies submitted in evidence) on a monthly basis. It is the respondent's position that they prepared these invoices for the complainants for a small administration fee. The complainants did not dispute this and agreed that this had to be done as they would not have had the means to prepare and print the invoices themselves. The respondent at the hearing submitted that the distributors were responsible for their own tax PRSI contributions (as per the determination of the Department of Social and Family Affairs outlined at 5.4 above) and stated that no deductions were made from the payments made to the complainants for PRSI or PAYE. This was also outlined in the contract.
5.19 It is submitted that the complainants were free to work for any other organisation and to refuse work from the respondent and were under no obligation to attend for work. The complainants upon questioning agreed that failure to attend work on a particular day did not result in any failure to be offered work on subsequent occasions.
5.20 Taking into consideration all of the evidence both written and oral in conjunction with my examination/comments in the preceding paragraphs I am of the view that the features of the employment relationship between the parties is not consistent with a contract of service and instead points to a contract for services. The complainants do not therefore fall within the requirements of the Act to be employed under a contract of employment.
6. DECISION
6.1 I find that the complainants were employed under a contract for service and were not employed under a contract of employment as defined at section 2 of the Employment Equality Act, 1998. I therefore have no jurisdiction to investigate the claims by the complainants.
____________________
Orla Jones
Equality Officer
May, 2013
1 [2004] IR 150
2 [1998] 1 IR 34
3 [2008] IEHC 216
4 [1998] 1 IR 34