ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000026

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 20/01/2016 and 01/03/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, and/or Section 79 of the Employment Equality Act, 1998, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

In 2005 the complainant renegotiated her contract with the respondent whereby she would be paid commission and work on an agreed rota including providing weekend cover. She would be contacted by the office and informed of her appointments which in the main would involve visits to farms.

The complainant had her first child in 2007. In Spring 2014 she became pregnant again and informed the respondent accordingly. During this pregnancy the respondent hired two vets, the first one during the complainant’s pregnancy and the other (a nephew of one of the partners) at the commencement of her maternity leave.

Upon the complainant’s return from maternity leave the second vet was retained in the practice and she was advised that, as there was not enough work for the vets in the practice, she should look for part time work elsewhere. A significant number of duties previously being performed by the complainant were now being performed by this other vet and this in turn has led to a sizeable reduction in her earnings. In particular the complainant now gets very little small animal work.

The treatment of the complainant following her maternity leave has resulted in terms and conditions of employment which are far less favourable than those that existed prior to that leave and is discriminatory on the grounds of gender and family status.

As regards the complainant’s employment status, she worked on commission and work was provided for her by the respondent. Her professional insurance was in relation to the practice only. The respondent exercised day to day control in regard to her work, her hours of work were subject to a roster and she had to request time off which on occasions was refused. The complainant was therefore integrated into the practice and there was a strong mutuality of obligation between the parties. These factors in turn indicate the existence of a contract of employment between the parties.

Respondent’s Submission and Presentation:

The complainant was never employed by the respondent but rather she entered into an agreement to supply services on an independent contractor basis, initially on a consultancy basis and thereafter on a commission basis at the behest of the complainant.

The general basis of the agreement was that the respondent would contract out the supply of some of their services when necessary – generally when there was work that the partners or their employee vets could not cover.

In 2004 the practice had advertised for a vet who would be an employee and receive a salary. The complainant was offered that position but she responded that she preferred to be self employed. Her initial position was as consultant on a fixed monthly remuneration but in 2005 the complainant requested that she be paid on a commission basis and an agreed percentage was negotiated. The respondent did not deal in any way with income tax, PRSI, USC or provide holiday pay. No car was supplied nor any travelling expenses paid. The practice paid the complainant’s professional insurance fee but this was then fully reimbursed by the complainant.

Any work that the complainant was excluded from was at her behest and/or on the advice of her medical advisors. Work in the practice had also got quieter, due partly to the eradication of brucellosis, so there was less need to contract out work. She also excluded herself from work in meat factories and dog tracks.

The respondent took on one vet in 2014 as replacement for another vet. A second vet was employed later that year on a temporary basis and as cover for one of the partners who had suffered an injury. That vet’s employment was extended due to the illness and death of the partner’s wife and subsequent increased family responsibilities.

The respondent regularly refused work because of commitments in relation to her daughter.

In summary the complainant was not employed by the respondent nor was the complainant discriminated against on the basis of her family status, gender or otherwise.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Issues for Decision:

The issues that require decision are;

Is the complainant employed under a contract for service or a contract of service?

If employed under a contract of service was the complainant discriminated against on the grounds of gender and family status contrary to the provisions of the Employment Equality Act 1998.

Legislation involved and requirements of legislation:

The Employment Equality Act 1998 states that

“employee, subject to subsection (3), means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment…”

. In addition the Act states that

“employer, subject to subsection (3), means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment.”

Section 6 (1) of the Act reads:

“For the purpose of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination will be taken to occur where –

(a)    A person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which –

(i)                exists

(ii)              existed but no longer exists

(iii)             may exist in the future

(iv)             is imputed to the person concerned

The grounds specified in the complaint are:

     6 (2)(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”)

     6 (2)(c) that one has family status and the other does not (in this Act referred to as “the family status ground”)

     The complainant also referred to Section 6 (2)(A) of the Act:

     “Without prejudice to the generality of subsections (1) and (2), discrimination on a gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.”

The requirement is therefore to examine the employment relationship to determine whether or not the complainant is an employee of the respondent (the preliminary issue) and, dependent on that outcome, to determine if there was a breach of the cited provisions of the Act (the substantive issue).                       

Decision:

In addition to the two days of hearing the respondents submitted further written submissions at the conclusion of the hearing and the complainant’s representatives were given the opportunity to respond to same which they did some two weeks later.

The Preliminary Issue:

The issue of whether a person is an employee or otherwise has been the subject of a number of court cases from which have emerged a number of principles. In Henry Denny & Sons v The Minister for Social Welfare Keane J stated:

“However, there is a consensus to be found in the authorities that each case must be considered in the light of its particular facts and of the general principles which the courts have developed.”

The first fact in this case is that no written contract existed between the parties and that it is therefore necessary to rely in full on the verbal accounts given in evidence by the parties as to the intended employment relationship between them.

An advertisement for a vet to join the practice was placed in a trade publication in 2004 by the respondent. While not specified in the advertisement, the principal witness for the respondent stated that the intention was that the person hired would be an employee of the practice. The complainant applied and was subsequently offered the position as she was the best candidate. As a result of discussions the complainant received a fixed weekly sum and made herself available for work during agreed hours. The respondent claimed that the complainant wished to be self employed and that the weekly amount was a consultant’s fee whereas the complainant termed it as a salary. What was clear is that the complainant was responsible for her own tax and paid VAT.

In 2005 this arrangement changed. From that time onwards the complainant was paid on a commission basis, i.e. she received an agreed percentage of the fee that the practice got for each visit or procedure executed by her. In order to receive payment the complainant would, at intervals determined by herself, produce an invoice listing amounts plus VAT due to her and would be paid accordingly. In addition the complainant was self assessed for Revenue purposes and had tax clearance certificates up to 2014. She had her own car for which she paid her own motor tax and insurance and did not claim any travelling expenses. She provided her own phone and paid all bills connected with it. The practice required all their vets to carry professional indemnity insurance. The respondent paid the premium for the complainant each year and the complainant then reimbursed the respondent for the full amount. The complainant did not receive any payments for holidays or Public Holidays. The complainant also performed work for the Department of Agriculture. This was arranged through the practice and they took an agreed percentage of the fee which was subject to withholding tax.

Both sides referred to existing case law. The complainant’s representative referred to the Sunday Tribune case in relation to the control exercised by the respondent over the complainant’s work. In that case Carroll J stated:

“The simple test is whether the employer possessed the right not only to control what work the employee was to do but also the manner in which the work was to be done. However the test is no longer of universal application. In the present day when senior staff with professional qualifications are employed, the nature of their employment cannot be determined in such a simplistic way.”

In applying this principle to the present case it is clear that the work performed by the complainant was provided by the respondent. Urgent cases by their nature would have to be responded to urgently. There was also other work such as meat factory work, which the complainant could not do as she was not on the panel for same, as well as dog-track work which the complainant chose not to do as it was evening work.  The complainant in latter years requested not to be allocated work on Monday afternoons because of child commitments and this was agreed. I do not believe that any definitive conclusion can be arrived at in this regard.

The concept of what part mutuality of obligation should play was considered in The Minister for Agriculture and Food v Barry & ors. Edwards J said:

“The requirement of mutuality of obligation is the requirement that there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer”.

The respondent in evidence stated that the complainant had been advised that there was no commitment regarding the level of work that would be available. The complainant agreed in principle with this statement but pointed out that she had to make herself available to work agreed hours.  Looking at figures provided by the complainant’s accountant it would appear, however, that work had been maintained at a fairly consistent level up to 2015. In the above case (Barry) Edwards J went on to state;

“However, if mutuality of obligation is found to exist, the mere fact of its existence is not, of itself, determinative of the nature of the relationship and it is necessary to examine the relationship further”.

The entirety of the relationship of the relationship must therefore be considered. The complainant looked after her own tax affairs. She provided tax clearance certificates annually up to 2014. She invoiced the respondent on a periodic basis (which she determined) and charged VAT on these invoices.   She provided her own transport and paid all associated costs (which in 2014 amounted to €6,348.00 excluding depreciation). Her holidays were unpaid and were taken on the basis of her giving notice to the respondent of her unavailability at certain times during the year. No statutory forms were submitted in relation to the complainant’s maternity leave. In particular, the expense of the professional indemnity insurance required by the respondent was entirely borne by the complainant. Whilst no one factor by itself is determinative of the matter I am satisfied that taken together they are of importance in determining the nature of the contract. In his judgement in the case of Castleisland Breeding Society Ltd. v The Minister for Social Affairs, Geoghegan J said:

“The change in the contractual arrangements had obvious consequences. The most important of these were that the inseminators, including Mr. Walsh, became self-employed for tax purposes. Mr Walsh made returns on that basis and claimed tax allowances under the self-assesment system. Even more importantly the inseminators under the new contractual arrangements had to carry their own insurance.”

Later in the same judgement it is stated:

“the fact that they had to carry their own insurance was of great importance in considering the nature of the contract.”

In addition to the cost of the insurance I cannot accept that an employee could be expected to burden themselves to an amount in excess of €6,000.00 per annum in relation to motor expenses. I am also influenced by the fact that the payments received by the complainant were controlled by her to the extent that they were paid on foot of invoices produced by her at periods which she determined, sometimes more than once per week.

Taking these factors into consideration I therefore determine that the complainant was engaged under a contract for service and not a contract of service and consequently was not an employee. Accordingly the complaints under The Employment Equality Act 1998 cannot be maintained.

Dated:   18/4/2016