FTD143

This is an appeal by the Football Association of Ireland against the decision of a Rights Commissioner in a claim by Mr Eoin Hand under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act).

In keeping with the normal practice of the Court the parties are referred to herein as they were at first instance. Hence, Mr Hand is referred to as the Claimant and the Football Association of Ireland is referred to as the Respondent.

In these proceedings the Claimant contends that he was a fixed-term employee within the statutory meaning of that term at all times material to his claim. He provided services to the Respondent in various capacities and with various titles from 1999 until 2012. He provided his services to the Respondent pursuant to a series of contracts all of which were for a fixed term. The fundamental issue in this case relates to the employment status of the Claimant under those contracts.

The Respondent contends that the Claimant was at all times engaged by it as a consultant pursuant to a contract for services. The Claimant contends that while these contracts appear on their face to be ones for services the reality of his relationship with the Respondent was that of an employee working on a contract of service.

The Rights Commissioner found that the Claimant was an employee of the Respondent who was employed on a succession of fixed-term contracts of employment. He found that the continued renewal of his employment for a fixed-term contravened s.9(1) of the Act, in consequence of which, by operation of s.9(3) of the Act, his employment transmuted to one of indefinite duration. Having so found the Rights Commissioner directed that the Claimant be reinstated by the Respondent on a contract of indefinite duration.

The Respondent appealed to this Court.

The Facts
The Court heard oral evidence from six witnesses, including the Claimant, over two days. In light of that evidence the Court has reached the conclusions of fact set out in the following paragraphs.

History of the Claimant’s Engagement
The Claimant was first engaged by the Respondent on or about January 1999. At that stage the Claimant had an established career in professional football internationally. He was engaged as a youth career advisor. His principal role was to advise and assist young people who wished to pursue a professional career in the game. He was approached by the then Chief Executive of the Respondent and asked to take on that role for an initial period of one year. The Respondent was paid what was described as a retainer in the amount of £9,500. He was also paid a car mileage allowance of 30p per mile in respect of vouched travel. He also received reimbursement of expenses incurred in the performance of his duties.

Following his initial engagement the Claimant had a further meeting with the then Chief Executive concerning his future involvement with the Respondent. He was provided with a further contract to run from 1^stMay 2000 to 30^thApril 2004. The terms of this contract were set out in writing by letter dated 18^thMay 2000 as follows: -

• “Following our recent conversations, I confirm that the Football Association of Ireland wishes to extend your part-time employment with us as follows: -

  TERM: 1^stMay 2000 to 30^thApril 2004

  SALARY: £12,500 per annum plus £1,000 per annum for rental of office space in your home

  REVIEW: Review in good faith after two years

  We are pleased to have agreed these terms with you and would be grateful if you would countersign this letter and return it to us.”

Pursuant to the provision in this contract for a review after two years the parties again negotiated in 2002. These negotiations resulted in the agreement being extended by one year to 30^thApril 2005. The payments to the Claimant were also substantially revised and new terms were agreed. The agreed terms were confirmed to the Claimant in writing by letter dated 21^stFebruary 2002 by the newly appointed Chief Executive of the Respondent (then described as the General Secretary) as follows: -

• 
  I confirm the recent discussions we had re your position as Careers Officer for the Football Association of Ireland on a consultancy basis. This is the mid-term review of your existing agreement as promised to you by the Association’s former Chief Executive.
  • 
    •There will be a one-year extension of the agreement to 30^thApril 2005.
    
    •The revised salary will be €31,750, backdated to 1^stAugust 2001, as had been indicated by [the former CEC].
    
    •The salary will be subject to review on 30^thApril 2004.
    
    •The payment of £1,000 for office rent will continue.
    
    •You will coordinate your activities for the Association through John Byrne Development Manager. You will continue to have access to the General Secretary as and when needed.
  
  I will revert to you re tax and insurance on your car. The current arrangement is unique as you are covered under our fleet policy. I would point out that mileage allowance paid by the Association cover contributions for tax and insurance.

  I will ask John Byrne to agree a terms of reference with you to cover your expanded role”

Under these ‘terms of reference’ he was required to organise seminars and visit schools as part of his work on behalf of the Respondent. The Claimant was also to be responsible for dealing with what are referred to as ‘compensation’ issues. This relates to an arrangement whereby clubs are compensated in the event of a player being contracted to play for a foreign club. He was also required to implement a system of registration and control of scouts and agents between UK clubs and the Respondent and the maintenance of proper standards in the process of identifying and recruiting Irish players for UK clubs.

The agreement was reviewed in April 2004 and revised terms were again agreed. These revised terms were set out in a letter dated 15^thApril 2004. The revised terms provided for a further extension of the Claimant’s appointment to 30^thApril 2006. What was described as the“fee”payable to the Claimant was fixed at €45,000 per annum with effect from 1^stJanuary 2004. This agreement provided for the continuation of the payment of €1,000 for office rent. It also provided for the continuation of the arrangement then in place concerning the insurance and taxation of the Claimant’s private car. Additionally, a special once-off payment of €2,000 was to be made to the Claimant.

The agreement was again reviewed in or about May 2005. The term of the agreement was extended to 30^thApril 2008. What was again described as the‘fee’payable to the Claimant was increased to €50,000 per annum. There was also a provision for the payment of a bonus payment of up to 10% of this fee which was expressed to be subject to “performance and the achievement of agreed targets”. The arrangements regarding the Claimant’s car tax and insurance were to continue, as was the arrangement regarding his office rental. He was also to be entitled to four complementary tickets for all home international matches at Landsdown Road with an option to purchase up to 6 additional tickets.

The Claimant’s title was also changed to that of “Manager- Football Support Services”

The terms of this revised agreement were set out in a letter to the Claimant dated 16^thJune 2005 from Mr Tadhg O’Halloran, Chief Operations Officer of the Respondent. At paragraph 6 of this letter the following new terms appear: -

• “ In the new organisational structure you will report to me with access to the CEO as required. You will be required to present a monthly report in written format covering all current issues being dealt with by you and setting out progress on each. These reports will also be used to brief the CEO and the Board. You should submit your reports by email by Friday of the first week of each month. Additional reports may be required to provide the CEO and the Board with the most up to date information.”

The Claimant’s contract was further extended in or about May 2008 for a further four years to 30^thApril 2012. This was the final extension of the Claimant’s engagement. The terms of this extension are set out in a letter dated 12^thMay 2008 from the Chief Executive of the Respondent. This letter is headed“Extension of Contract for Services –Football Support Services”the letter goes on to refer to the Claimant’s engagement being on a contract for services and sets out the terms of the contract, including what is described as a“fee”in the amount of €65,000 per annum, which amount was to increase by 5% in each year of the four year term.

Non-Renewal of the 2008 Contract
The contract was not renewed on its expiry. It seems clear to the Court that the non-renewal of this contract was anticipated. Mr Stephen Driver, who was then the Respondent’s Human Resources Manager, held discussions with the Claimant in relation to this extension. He told the Court in evidence that he met with the Claimant in or about August 2007 to discuss matters relating to his engagement with the Respondent. It appears that the Claimant’s retirement was discussed at this meeting. In the context of discussions on the possible extension of the Claimant’s engagement to 2012, Mr Driver asked the Claimant what age he would be in that year. The Claimant told Mr Driver than he would then be 66 years of age. According to Mr Driver, he informed the Claimant that the retirement age for the Respondent’s staff had been regularised at 65, but that would not apply to the Claimant because he was not classified as an employee. The Claimant suggested that on the expiry of the contract then in contemplation he should be provided with what was termed a ‘golden handshake’.

The principal matters discussed at this meeting were recited in an email sent to the Claimant by Mr Driver dated 14^thAugust 2007 which was opened to the Court. This email records that the Claimant had enquired as to“some form of ‘golden handshake’ upon retirement in 2012”

The revised terms of the Claimant’s engagement, as set out in the CEO’s letter of 12^thMay 2008, did not contain any provision for a severance payment upon its expiry nor did it contain any reference to retirement. It was, however, Mr Driver’s recollection that both parties understood that the contract would not be further renewed on its expiry in 2012.

The Claimant’s recollection on this point was that at the time of the negotiations on a revised contract he was aware that the extension in contemplation would bring him to age 66 and that he might not wish to continue at that stage. The Claimant told the Court that he had not decided to retire in 2012 but it was a possibility.

In or about September 2011 the Claimant again met with Mr Driver to discuss the possibility of having his contract further extended on its expiry in April 2012. It appears that at this meeting the Claimant was advised that due to financial difficulties then being experienced by the Respondent, and certain restructurings made in consequence of those difficulties, it was unlikely that his contract would be further renewed. It appears that the Claimant offered to provide more limited services to the Respondent in return for reduced payments.

The Claimant subsequently wrote to the CEO of the Respondent by letter dated 6^thJanuary 2012 setting out a proposal for his continued involvement with the Respondent in dealing with ‘compensation’ matters. In the penultimate paragraph of this letter the Claimant stated: -

• “Should the FAI wish to avail of my continued services I am feel [sic] sure that an acceptable consultancy fee can be negotiated. I am confident that all will benefit and would appreciate if you would give due consideration to the forgoing at your earliest convenience”

The Claimant subsequently obtained legal advice on his position. He then wrote to the CEO of the Respondent by letter dated 27^thMarch 2012. The letter is headed“My Employment with the FAI”.In this letter the Claimant asserted that he had been an employee of the Respondent on a series of fixed-term contracts from January 1999. He further asserted that his contract dated 12^thMay 2008 had become one of indefinite duration by operation of the Protection of Employees (Fixed-Term Work) Act 2003.

The Court is satisfied that this was the first occasion on which the Claimant had asserted in terms that the status of his engagement with the Respondent was one of employment.

The Basis of the Engagement
As noted earlier in this Determination, the status of the Claimant’s engagement by the Respondent is a central issue arising for consideration in this case. Between 1999 and 2002 the arrangements in place between the parties were relatively informal and the payments made to the Claimant were modest. The Claimant had other commercial interests including a commercial involvement with RTE as a contributor on football related matters. He was also paid an annual retainer by a sports management company for what were undoubtedly consultancy services.

There was some controversy as to the compatibility of his involvement in this latter undertaking with the role that he exercised for the Respondent. Witnesses who gave evidence on behalf of the Respondent considered that the Claimant’s involvement with this enterprise constituted a conflict of interest. The Claimant denied that this was so and he maintained that the then Chief Executive of the Respondent with whom he negotiated were aware of his involvement with this sports management company.

On balance the Court is satisfied that the Claimant never tried to conceal his involvement with this sports management company and while his role with that company may have subsequently been a cause of concern to the Respondent, nothing of significance turns on this point. The Claimant’s involvement with this company lasted from 2001 until 2007.

The Claimant’s engagement with RTE continued throughout the currency of his engagement with the Respondent. He was paid fees by RTE as a sole trader between 2000 and March 2004. At that point his engagement by the broadcaster was pursuant to what was described as a fixed-purpose contract of employment which ran from 26^thMarch 2004 and 30^thApril 2008. Thereafter he reverted to providing his services as a sole trader.

In 2002 the arrangement with the Respondent was put on a more formal footing and the amounts payable to him increased substantially. Mr Peter Buckley who was the Respondent’s Head of Finance between 1995 and 2005 told the Court in evidence that the Claimant was being paid a gross fee for professional services. The mode of payment was that the Claimant raised invoices each month for an amount equal to one-twelfth of the agreed annual fee together with agreed expenses.

Mr Buckley formed the opinion that the Claimant could be classified by the Revenue Commissioners as an employee liable to taxation under PAYE. He said that if the Claimant were to be so classified the Respondent could be held liable for back taxes which had not been deducted. Mr Buckley told the Court that the payment then being made to the Claimant on foot of his contract were at a level that should attract VAT on professional services. Mr Buckley informed the Claimant of his concerns and advised him that unless he could obtain clearance from the Revenue Commissioners that he could properly be classified as a self-employed consultant he proposed to treat him as an employee payable through the pay-roll.

The Claimant consulted his accountant, Mr Pat Finn of CK Finn & Co, Public Accountants. It appears that the Claimant had a long standing association with this firm and had received advice from Mr Finn from time to time on his financial and tax affairs. In that regard the Court received in evidence a letter written by Mr Finn to the Claimant dated 13^thSeptember 2001 in which it was pointed out that his earnings from the supply of services then exceeded £20, 000 and that he should register for VAT. It was pointed out that this would involve charging the Respondent and the other entities to which he provided services 20% VAT on his invoices. It was further suggested that this situation could be ameliorated if he could arrange to take some of his earnings through a PAYE system. It was suggested by the Respondent that it was in response to this advice that the Claimant arranged to enter into a fixed-purpose employment contract with RTE in 2004. However, the witness who gave evidence concerning the Claimant’s involvement with RTE could not explain the circumstances in which the Claimant came to be engaged on a contract of employment during the period in question and the Court cannot draw any inference on how this came about.

It is clear from the evidence that in response to Mr Buckley’s concerns in relation to the Claimant’s employment status discussions ensued between Mr Finn, acting on behalf of the Claimant, and the Revenue Commissioners. It is also clear that in the course of these dealings Mr Finn advanced the case that the Claimant was genuinely engaged on a contract for services and that he should be liable for tax under Schedule D of the Taxes Consolidation Act 1997. The Court is further satisfied on the evidence that the Claimant was at all times aware of the nature and implication of the case being advanced on his behalf.

Mr Buckley of the Respondent was kept informed by Mr Finn of his involvement with the Revenue Commissioners and of the nature of the case which he was advancing on the Claimant’s behalf. The Court is satisfied on the evidence that Mr Buckley’s preference was that the Claimant would be paid as an employee through the payroll but that he was prepared to accept a contrary ruling if made by the Revenue Commissioners. On that point Mr Buckley told the Court that he was conscious that if the then current arrangement continued the Claimant would be required to charge VAT at the rate of 20% on his invoices. The Respondent was not registered for VAT in consequence of which continuing to treat the Claimant as a self-employed person would increase the net cost of his services to the Respondent by 20%

In his evidence to the Court Mr Finn said that he was not particularly optimistic of obtaining the result desired by the Claimant in his dealings with the Revenue Commissioners in that he felt that there was a substantial basis upon which it could be held that the Claimant’s contract was one of service. It is also clear to the Court that the Claimant sought and obtained advice from Mr Finn on the implications for him of a ruling by Revenue that he was an employee of the Respondent. In that regard the content of a letter sent by Mr Finn to the Claimant dated 1^stMay 2002 is of considerable significance. In this letter Mr Finn referred to questions raised by the Claimant concerning the implications of a change in his designated status from that of self-employed consultant to that of an employee. Mr Finn expressly pointed out to the Claimant that one consequence of a change to employee status would be that he would come within the protection of employment legislation. It also appears that the Claimant had been separately advised by a solicitor in that regard. However, notwithstanding this advice Mr Finn’s instructions were to make representations to the Revenue Commissioners seeking to have the Claimant designated as a self-employed person.

Representations were made to the Revenue Commissioners by Mr Finn and by the Claimant seeking to have his status as a self-employed person accepted. By letter dated 27^thMay 2002, Mr Finn wrote to the relevant Inspector of Taxes in which he stated,inter alia,that there were no set hours to the Claimant’s work, which is up to his own discretion and that he did not work from the Respondent’s premises but from his own home. Subsequently, by letter dated 21^stMarch 2003, the relevant inspector of taxes wrote to Mr Buckley of the Respondent confirming that the Revenue Commissions were prepared to accept that the Claimant could continue to be regarded as a self-employed person for tax purposes. The Court is satisfied that during the continuance of the Claimant’s engagement with the Respondent both parties proceeded on the basis that the relationship was that of consultant and client.

Office Accommodation
Throughout the currency of his engagement the Claimant worked from an office that he provided. Originally this was located in the home of a relative and later in his own home. He was paid an annual amount described as ‘rent’ in consideration of providing this facility. It appears that initially this arrangement came about because there was insufficient space in the Respondent’s then head office to accommodate the Claimant. Later, when the Respondent relocated to larger premises, the Claimant was offered office accommodation which he declined.

The Issues Arising
As noted earlier, the first issue for determination is whether the Claimant was employed by the Respondent pursuant to a contract of service, as he contends, or whether his employment was under a contract for services as contended for by the Respondent. If the latter contention is correct the Claimant cannot maintain a claim under the Act.

A second point taken by the Respondent is that the Claimant is in any event estopped from denying that his engagement was as a self-employed consultant by operation of the doctrine of promissory estoppel. In advancing that argument the Respondent relies on the representation made by or on behalf of the Claimant to the Revenue Commissioners, and by extension to the Respondent, seeking to have his employment status recognised as one for services.

The Applicable Law
The contract of service / contract for services dichotomy has received considerable judicial consideration over many years. The earlier cases indicate that that the degree of control which the putative employer exercises in directing the work to be done is a decisive consideration. InPatrick Roche v Patrick Kelly and Co Limited[1969] IR 100 Walsh J said the following, at page 108: -

• “While many ingredients may be present in the relationship of master and servant, it is undoubtedly true that the principal one, and almost invariably the determining one, is the fact of the master's right to direct the servant not merely as to what is to be done but as to how it is to be done. The fact that the master does not exercise that right, as distinct from possessing it, is of no weight if he has the right.

This so called control test is now regarded as less relevant. In modern employment relationships employees are often expected to exercise a high degree of initiative in the performance of the work that they are employed to perform. Moreover, skilled employees often know a great deal more about the work that they perform than the employer. Consequently the degree of control exercised by the putative employer can no longer be regarded as conclusive.

A further approach looks at the extent to which the person whose status is in issue is integrated into the business of the putative employer or is only accessory to that business. That so called ‘integration test’ was applied by Carroll J inRe Sunday Tribune LimitedIR 505.

In more modern times the Courts have tended to apply what is referred to the entrepreneurial or mixed test. That test was set down in the English decision ofMarket Investigations v Minister of Social Security[1969] 2 Q.B 173. Here it was held that the Court should consider if the person was performing the service as a person in business on his or her own account. If the answer to that question is yes, than the contract is one for service. If the answer is no then the contract is one of service.

That approach was adopted in this jurisdiction by the Supreme Court inHenry Denny & Sons v Minister for Social WelfareIR 34. Here Keane J (as he then was) quoted with approval the following passage from the judgement of Cook J inMarket Investigations:

• “The observations of Lord Wright, of Denning L. J and of the judges of the Supreme Court suggest that the fundamental test to be applied is this: 'Is the person who has engaged himself to perform these services performing them as a person in business on his own account '. If the answer to that question is 'yes', then the contract is a contract for services. If the answer is 'no', then the contract is a contract of service. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task."

• 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 under 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 the person is engaged in business on his or her own account can be 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.

• There is nothing unlawful or necessarily ineffective about a company deciding to engage people on an independent contractor basis rather than on a “servant” basis but as this court has pointed out inHenry Dennyand other cases, in determining whether the new contract is one of service or for services the decider must look at how the contract is worked out in practice as mere wording cannot determine its nature. Nevertheless the wording of a written contract still remains of great importance. It can, however, emerge in evidence that in practice the working arrangements between the parties are consistent only with a different kind of contract or at least are inconsistent with the expressed categorisation of the contract.

Conclusions
It is clear to the Court that each of the Claimant’s contracts was expressed to be one for services. While this is not a determinative consideration the decision inCastleisland Cattle Breeding Society Limited v Minister for Social and Family Affairsindicates that it is a matter of great importance. In the Court’s view it is also of great importance that the Claimant’s accountant, acting as his agent, actively and successfully advanced a case to the Revenue Commissioners that the Claimant was a person in business on his own account. The Court is also satisfied that the evidence adduced in the course of the appeal indicates that in practice the working arrangements between the parties was consistent with the expressed characterisation of their relationship.

The Respondent exercised little day-to-day control over the Claimant. While this is not in itself a decisive consideration it did leave the Claimant free to organise his work in a manner that suited his own circumstances. He did not have any set or fixed hours of work and the payment that he received were not linked to or dependent upon the time which the Claimant spent rendering service to the Respondent. The Claimant had other commercial interests and he was free to organise his work on behalf of the Respondent in a way that maximised opportunities to generate income from other sources.

The Claimant was paid on foot of invoices that he raised and on which he charged VAT at the rate payable on professional services. The payments claimed by the Claimant on his invoices were expressed to be in respect of consultancy fees.

Other terms of the Claimant’s engagement were also consistent with its classification as one for services. Unlike employees, that Claimant did not work from the Respondent offices but from office accommodation that he himself provided, albeit in respect of which he was paid ‘rent’ by the Respondent. While there was some controversy as to the frequency with which he attended at the Respondent offices the Court is satisfied that he did so with significantly less frequency that would have been expected of an employee. While the Respondent operated a pension scheme for its staff the Claimant was never entered in the scheme.

It is also of significance that while employees of the Respondent had their pay reduced in or around 2010, the Claimant suffered no such reduction. The Claimant was not subjected to formal performance appraisal in the same way as employees of the Respondent.

While these factors are indicative of a contract for services there are features of the Claimant’s engagement that suggest the contrary. The service that the Claimant provided was personal and he was not contractually entitled to delegate any of the duties prescribed by his contract. While there was some suggestion by the Respondent that the Claimant could delegate, it is clear that he never did. Moreover, there was nothing in any of the contracts between the parties that authorised the Claimant to assign or delegate the functions entrusted to him to others. It also appears to the Court that the role that the Claimant performed was more integrated into the business of the Respondent than ancillary to that business. Moreover, the payment by the Respondent of the tax and insurance on the Claimant’s private car is more suggestive of an employment relationship than that of a self-employed consultant. The Claimant did not supply any plant or equipment although such forms of investment would not normally arise in the case of a consultancy business. As previously noted, however, he did maintain a fully equipped office for which he received an allowance in the form of rent.

There are factors of the relationship which point in each direction. However, on balance and viewing the nature and history of the relationship between the parties in its totality, the Court has come to the conclusion that the Claimant was properly classified as a consultant engaged on a contract for services rather than an employee of the Respondent.

Estoppel
The Court’s finding that the true nature of the Claimant’s engagement with the Respondent was that of a consultant on a contract for services is sufficient to dispose of the case. Nevertheless, for the sake of completeness, the Court has considered the submission advanced by the Respondent that the Claimant is in any event estopped by his conduct from denying that his engagement was on a contract for services. In effect the Respondent contends that when it proposed to treat the Claimant as an employee he objected to such a course and insisted that his true status was that of a self-employed consultant. The Respondent further pointed out that following representations made by the Claimant’s agent in that behalf to the Revenue Commissioners it agreed to continue to treat the Claimant as a self-employed consultant. This, it pointed out, resulted in additional cost to it of 20% by way of VAT charged on the Claimant’s services.

As the Court understands it the import of the Respondent’s submissions on this point is that the Claimant is estopped from denying that he was self-employed by the doctrine of promissory estoppel.

Application of Promissory Estoppel
Promissory estoppel or estoppel by representation can arise if a person by words or conduct makes a representation of existing fact, which the person to whom the representation is made relies upon to their detriment. In these circumstances the person making the representation will not be allowed to act inconsistently with the representation made.

Short of a binding contract, if a person makes a promise not to insist upon his or her strict legal rights - then, even though that promise may be unenforceable in point of law for want of consideration or because it is not in writing- if it is made knowing or intending that the other party will act upon it, and the other party does act upon it, the person making the promise will not allowed to resile for the position previously taken ( seeCentral London Property Trust Ltd. v. High Trees House Ltd.[1947] K.B. 130andCharles Rickards Ltd. v. Oppenhaim[1950] 1 K.B. 616, 623).

InCrabb v Arun District Council[1976] 1 Ch 179 Lord Denning MR states the position to be as follows: -

• • Short of an actual promise, if he, by his words or conduct, so behaves as to lead another to believe that he will not insist on his strict legal rights - knowing or intending that the other will act on that belief - and he does so act, that again will raise an equity in favour of the other; and it is for a court of equity to say in what way the equity may be satisfied. The cases show that this equity does not depend on agreement but on words or conduct. In Ramsden v. Dyson (1866) L.R. 1 H.L. 129, 170 Lord Kingsdown spoke of a verbal agreement "or what amounts to the same thing, an expectation, created or encouraged." In Birmingham and District Land Co. v. London and North Western Railway Co.(1888) 40 Ch.D. 268, 277, Cotton L.J. said that "… what passed did not make a new agreement, but … what took place … raised anequity against him." And it was the Privy Council inPlimmer v. Wellington Corporation(1884) 9 App.Cas. 699, 713-714who said that "… the court must look at the circumstances in each case to decide in what way the equity can be satisfied"
  
  
  

InTruck and Machinery Sales Ltd v Marubeni Komatsu Ltd[1996] 1 IR 12Keane J (as he then was) recognised the existence of the doctrine of promissory estoppel in this jurisdiction in the following passage in his judgment (at p 29):

• “It is also clear that, where parties to a contract enter into a course of negotiations which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced, or will be kept in suspense, the person who might otherwise have enforced those rights will not be allowed to enforce them where it would be inequitable having regard to the dealings which have taken place between the parties. This doctrine, sometimes referred to as 'promissory estoppel', first appeared in English law inHughes v Metropolitan Railway Co(1877) 2 App Cas 439and was given renewed life byCentral London Property Trust Ltd v High Trees House Ltd . . . .A not dissimilar approach was adopted by the Supreme Courtin Webb v Ireland[1988] IR 353.”

• • (a) the pre-existing legal relationship between the parties;

    (b) an unambiguous representation;

    (c) reliance by the promisee (and possible detriment);

    (d) some element of unfairness and unconscionability;

    (e) that the estoppel is being used not as a cause of action, but as a defence; and

    (f) that the remedy is a matter for the court.”

  
  
  

Determination
For the reasons set out herein the Court has concluded that the Claimant was not employed by the Respondent pursuant to a contract of employment. Consequently he cannot maintain a claim under the Act. In these circumstances the Respondent’s appeal is allowed and the decision of the Rights Commissioner is set aside

Signed on behalf of the Labour Court



Kevin Duffy
9th April 2014______________________
HTChairman



NOTE

Enquiries concerning this Determination should be addressed to Helen Tobin, Court Secretary.