FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 17 (1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001 PARTIES : ST JAMES'S HOSPITAL - AND - DR KEVIN O'FLYNN (REPRESENTED BY IRISH MEDICAL ORGANISATION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms O'Donnell |
1. Appeal of Adjudication Officer's Decision No: r-155030-pt-15/EH.
BACKGROUND:
2. This is an appeal by the worker of an Adjudication Officer's Decision No: r-155030-pt-15/EH made pursuant to section 17 (1) of the Protection of Employees (Part-Time Work) Act, 2001. A Labour Court hearing took place on 13 April 2016. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Dr. Kevin O’Flynn against the Decision of an Adjudication Officer in his claim under the Protection of Employees (Part Time Work) Act 2001(the Act) against St James’s Hospital. The claim was grounded on an alleged contravention of Section 9 of the Act. The Adjudication Officer found that he had no jurisdiction to deal with the claim as there was no employer/employee relationship between the parties.
For ease of reference the parties are given the same designation as they had at first instance. Hence Dr. O’Flynn will be referred to as “the Complainant” and St James’s Hospital will be referred to as “the Respondent”.
Background
In 1993 the Respondent commenced a study which examined the impact of General Practitioners attending to patients in the Emergency Department of the Hospital as opposed to Senior House Officers. Senior House Officers are junior Doctors in training who work under the close supervision of Consultants. It was a research project and the outcome of which was published in the British Medical Journal in 1996.
To run the project, the Study Group sought expressions of interest from GPs. In August 1993 the Complainant was successful in his application for such a position in the Emergency Department of the Respondent Hospital. Following the conclusion of the study the Complainant remained on to work partial shifts in the Emergency Department. He attends the Hospital on Mondays and Tuesdays for 2 hours and on Wednesdays for 4 hours.
The Complainant alleged that he has been employed by the Respondent in a part time capacity ever since then and that he has been treated less favourably than a comparable full-time employee in relation to annual leave, public holidays, sick leave, study leave, overtime and pension entitlements.
The Respondent raised a number of preliminary issues:-
- i.the Complainant’s complaint was referred outside the time limits provided for under Section 16 (3) of the Act;
ii.the Complainant was not an employee under a contract of service but an independent contractor on a contract for services;
iii.the Complainant had not identified any comparator with whom he is performing “like work”.
The Complainant referred his claims under the Act to the Workplace Relations Commission on 31stMarch 2015.
The Respondent submitted that the claim is out of time under Section 16 of the Act as the Complainant raised the issue of his employment status with the Respondent in 2010 in the context of the Protection of Employees (Fixed-Term Work) Act, 2003. He did not pursue the matter any further until he referred his claim under the Protection of Employees (Part-Time Work) Act 2001 in March 2015. Therefore the Respondent submitted that the Court is prevented from entertaining his complaint as to whether or not he is “an employee” within the meaning of Section 3 of the Act.
The Court cannot accept this contention as it finds that the Complainant’s complaint was submitted within time and in accordance with the provisions of Section 16 (3) of the Act, and the cognisable period covered by the claim is the period from 1stOctober 2014 until 31stMarch 2015. The Court will proceed to examine the question of whether or not the Complainant is an employee within the meaning of the Act and if it finds that he haslocus standiunder the Act then the Court will examine the question of whether or not he was treated less favourably than a full-time comparator during that period.
Preliminary Issue – The Complainant’s Status
Mr Peter Flood, Ibec, on behalf of the Respondent, submitted that the Complainant isnot an employee of the Respondent employed under a contract of employment but is engaged under a contract for services and therefore has nolocus standiunder the Act.
He submitted that the Complainant is a self-employed independent contractor contracted to provide a service to the Emergency Department for a number of days and hours per week as isevident from the following:-
- •the Complainant remained on beyond the conclusion of the study to work partial shifts in the Emergency Department. He insisted on being identified as an independent practitioner rather than as an employee and invoiced the Respondent for his services on an hourly basis;
•he charges a personalised rate of €76.32 per hour determined by himself, which rate is not within the public service consolidated salary scales, it exceeds new entrant Consultant’s rates and is more than double the Senior House Officer rate at the top of their salary scale;
•he has his own private medical practice and provides a service as a GP to the Hospital each week;
•his skillset is consistent with that of general practice and he decides which patients to see as there are certain duties he does not perform and certain patients he would not have the expertise to deal with;
•the Consultants in the Emergency Department have no oversight of the type of cases he sees, they do not restrict his work, he does not have to report to them and he is left to his own individual professional decision-making;
•he is keen to maintain an exposure to a mix of clinical practice that allows for immediate x-rays and blood tests;
•he has no formal role in training or in supervising NCHDs;
•on a number of occasions he changed his working days and times by simply informing the Emergency Department that he was not going to come for a week or two or longer;
•there has never been a requirement on the Complainant to clock in or out unlike other employees who are required to clock in/out or mark their arrival and departure in some way;
•he is not rostered for duty or placed on a roster with other medical staff;
•he does not work Public Holidays despite Mondays being part of his usual roster;
•the Hospital does not seek cover for him when he was absent;
•the Hospital did not seek any reduction in his hourly rate when pay cuts were implemented in the public sector;
•he sought increases in his pay whereas these are applied automatically to staff;
•he was paid on a regular basis every 4 to 6 months on receipt of invoices for hours worked on a document headed'Dr Kevin O'Flynn General Practitioner';
•no tax was deducted for the work done; and
•while he was given a personnel ID number this was merely to give him security access, access to parking privileges on site and access to the computer system for ordering X-Rays, etc.
- •the Complainant has a certain level of independence and control in howhe undertakes his workandthis is the same level of independence as any other doctor who is on the Specialist Division of the Medical Register;
•the Respondent benefits from the reduced waiting times within the Emergency Department due to the work undertaken by him;
•his level of skill and experience is similar to any senior clinical employee;
•he reports to the Clinical Director within the Emergency Department;
•he is not required to make a financial investment in the medical equipment and facilities he uses to treat patients andthe Respondent’s support staff,nurses andother staff in the Emergency Department staff are available to him;
•whenever he sought payment of the increases due under Public Service Payagreements, these would be paid without question;
•the Respondent pays his personal insurance indemnity costs;
•in 1993 he was registered by the Respondent with the Revenue Commissioners as an employee and has on occasions been issued with an annual Tax Free Allowance Certificate and P60;
•he pays Class A PRSI in respect of his earnings for his role with the Respondent while he pays Class S for his role as a GP in private practice;
•he is required to work 8 hours per week as set out in the roster which includes Consultants and NCHDs in the Department;
•when he is on leave heis not responsible forsecuring cover and he is not permitted to sub-contracthis work
•he is integrated both within the Hospital generally and within the Emergency Department in particular which include access to the bike shed,he was offered parkingpermission, access-to the e-payslip system and he has been invited to the Emergency DepartmentChristmas party;
•he is involved in a number of non-clinical activities/committees and groups and he has benefitted from the Public Service Payagreements in the period from 2001 to 2007;
•within the provisions of Section 2 of the Financial Emergency Measures in the Public Interest Act 2009 pension related deductions (“the Pensions Levy”) have been made from his earnings since 2012; and
•the issue of the Complainant’s status had been an issue that the Respondent is aware of and had been the subject of correspondence from the Union since 2013 and was the subject of a meeting on 24thSeptember 2014 when the Complainant clearly set out his views.
Mr Smyth submitted that, while the Complainant invoices the Hospital for his work, there is precedence for such within the HSE, e.g. GPs who specialise in substance abuse and alcoholaddiction invoice for their sessions but remain employees of the HSE.
Furthermore, the IMO submitted that there is a mutuality of obligations
between the Complainant and the Respondent which is necessary forthe establishment of an employment relationship as set out inMinister for Agriculture and Food-v Barry and Others[2008] IEHC 216 216.
Preliminary Issue - No Nominated Comparator
Without prejudice to its argument that the Complainant is not an employee the Respondent also contended that no proper complaint had been referred under the Act. The legislation requires that a complainant name a comparator with whom he is performing like work. The Respondent stated that no such person had been named by the Complainant.
Mr Flood cited the caseGalway City VEC v Patricia O'Donovan(PTW/IO/7), where the Labour Court held:-
- "The general scheme of the Act is to provide that a part-time employee shall not be treated less favourably than a comparable full-time employee in respect or her conditions of employment including pay and pension entitlements. Thus, in order to ground a claim under the Act a part-time employee must first identify a comparable permanent employee against whom he or she claims to be treated less favourably."
The Union submitted that for the purposes of thiscomplaint the appropriatecomparator would be any member of the full-time Consultants within the Emergency Department and in that regard he nominated Dr. Daragh Shields,Consultant in the Emergency Department. Mr Smyth told the Court that the nominated comparatoris encompassed by the nationally agreed Consultants’ Contract Standard Terms and Conditions.
The Court is of the view that the Complainant has not addressed the conditions mentioned in Section 7(2) and (3) of the Act in terms of whether or not the Complainant and his chosen comparator are engaged in like work. However, the Court must first decide whether or not it has jurisdiction under the Act to proceed with this case and this will depend on its examination of the preliminary issue of whether or not the Complainant haslocus standiunder the Act. Consequently, the Court will proceed to examine the latter issue before a submission on the question of like work is deemed necessary.
Was the Contract one of Service?
The central issue arising for consideration in this case by the Court is whether or not the Complainant was engaged on a contract of employment. If, as contended by the Respondent, he was engaged as an independent contractor in the Emergency Department on a contract for services, he lacks the necessary legal standing (locus standi) to pursue a claim under the Act. Therefore the Court will examine this issue as a preliminary issue as the outcome of the Court’s deliberations on this issue has the potential to be determinative of the case in its entirety.
The contract of service / contract for services dichotomy has received considerable judicial consideration over many years. It is, however, clear from the decision of the High Court inMinister for Agriculture and Food v Barry and Ors[2009] 1 IR 215 that there is no single test that can be applied to decide all cases and that the facts of each case must be considered in terms of their overall significance. The earlier cases indicate 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.”
The importance of control was also emphasised inMinister for Industry and Commerce v Elizabeth Healy[1941] IR 545 and inLynch v Palgrave Murphy Ltd[1962] IR 150.
Control Test
In some occupations where employees have a significant degree of autonomy in carrying out their work the control test while relevant can nonetheless be of less importance.
In this case the Complainant is required to personally perform the work he is assigned to do and cannot delegate those duties. However, he is not directed in his work, he has the freedom to decide on the patients he will treat and generally speaking treats patients assigned at Triage Levels 3 and 4 and not patients assigned at Level 2 or above. The Complainant has complete freedom to decide when to take time off and when to avail of annual leave. Unlike employees of the Respondent he is not required to seek permission to do so nor to be included in a roster for leave. Furthermore, unlike employees of the Respondent, he would not be subject to disciplinary sanction if he did not turn up for work on any given day. In such circumstances, he simply invoices the Respondent for the hours he actually works.
Despite the fact that Mondays are one of his regular working days, the Complainant never works on a Public Holiday whereas other Doctors in the Department are rostered on/off on those days. Unlike others in the Emergency Department his working hours do not vary. In such circumstances the Court is satisfied that the Complainant has a level of autonomy which other medical staff in the Department do not have. In that regard his is an unique situation. Therefore, the Court is satisfied that the Complainant is not contractually bound to attend for work and the degree of control which the Respondent exercises in directing the Complainant’s work is limited.
Mutuality of Obligations Test
The Court accepts that the Respondent undertook to provide the Complainant with work and that he undertook to perform that work, however, there the mutuality of obligations ceases as there is no obligation on the Complainant to attend for work. He can decide when to take time off without having regard to the manning levels or the activity levels of the Emergency Department and without seeking permission from the Clinical Director. Consistent with an independent contractor, he only invoices the Respondent for the work undertaken. The Complainant exercises complete clinical and professional autonomy and does not have a direct reporting relationship.
Enterprise Test
In examining the various tests to determine whether a particular contractual relationship is to be regarded as constituting a contract of service, one of the questions for determination is whether a person is engaged in a business on his own account. In such cases the modern approach is to apply an enterprise test. This essentially asks if the person is in business on their own account or are they an integral part of the business of the other party,viz. O’Coindealbhan v Mooney, [1990] 1 IR 422Denny v Minister for Social Welfare [1998] 1 IR 34andTierney v An Post [1999] ELR 293.
There is no disagreement in this case that the Complainant operates his own business. However, what is at issue here is his status while engaged in his work for the Respondent. Apart from the work he carries out in the Hospital he also runs his own private medical GP practice and took up the position in the Hospital at a time when his practice was not economically viable as it only had a list size of 300 patients. The Hospital work supplements his own business by approximately 25%. He invoices the Respondent for his work in the Hospital and determines his own fee.
The Complainant invoices the Respondent for his fees on a 4 – 6 months basis and on occasions his fees have not been paid for many months. Such a situation would be most unlikely to happen in the case of an employer/ employee relationship. From time to time, the Complainant notifies the Respondent of increases in his fee none of which have been challenged to date. He is classed as a PRSI Class S for the purposes of his own medical practice and as Class A for his earnings in the Hospital. On 9thApril 2010, the Respondent notified the Complainant that his bills would be subject to both PAYE/PRSI/Income Levy as directed by the Revenue Commissioners.
Both parties agreed that the terms of his engagement have never been documented and he was never furnished with a contract of employment. However, the Court is satisfied that the ability to determine one’s fee, which does not correspond to any recognised public sector salary scale and has not been subject to deductions unlike all other public servants’ pay in recent years, is not consistent with it being a contract of employment but is more akin to a contract for services.
Integration Test
It appears that the Complainant’s work, while highly regarded, is not integral to the emergency medical service provided by the Respondent as no replacement is provided for him whenever he is not available for work. However, as with all employees he was supplied with an ID number and security pass in order to gain access to the facilities and services of the Respondent. However, the Court notes that all contractors, e.g. contract cleaners, are also provided with ID numbers and security passes to gain access.
Unlike an independent contractor, the Respondent pays for his personal insurance indemnity costs. At the end of his duty he is involved in the ‘hand-over’ of patients and this process includes all medical personnel in the Emergency Department and takes place at 4.00pm each day. He is accepted as part of the staff of the Emergency Department in that he is always invited to attend the staff Christmas party. He is actively involved in non-clinical activities/committees and groups associated with the Hospital.
As has already been observed, the Complainant's fees were subjected to PAYE/PRSI/USC for most of his tenure with the Respondent and this is more suggestive of an employment relationship than that of a self-employed contractor. However, during the years from 2004 until 2009, as a result of an error no such deductions were made and the Complainant was paid gross payments and had to return details of his earnings to the Revenue Commissioners. This practice is not consistent with the Respondent being his employer.
Conclusion of the Court
The Court is of the view that the significant factors in this case are the fact that in a busy Emergency Department where medical staff are rostered on 24 hours per day, seven days per week and over 365 days per year, the Complainant has set hours: two hours on a Monday and Tuesday from 2.00pm until 4.00pm and four hours on a Wednesday from 2.00pm until 6.00pm. He takes all Public Holidays off and is not subject to rotation in that regard. Furthermore, in a Teaching Hospital the Court is of the view that it is significant that the Complainant, who compares himself to a Consultant, is not involved in training NCHDs/Interns. It is also significant that while employees of the Respondent had their pay reduced in or around 2010, the Complainant suffered no such reduction in his fees. Finally, the Court considers that it is of significance that the Complainant decides on his own fees and fee increases, which have no relation to the public sector consolidated salary scales, yet all employees of the Hospital must be encompassed by such salary scales.
From its examination of the facts of this case, the Court finds that there are factors of the relationship between the Complainant and the Respondent which point in each direction. However, on balance the preponderance of evidence suggests that the Complainant undertook a continuing arrangement to provide his own expertise in the Emergency Department of the Hospital on a mutually convenient basis as to how and when he would work and that he did so in return for remuneration. Therefore, in viewing the matter in its totality, the Court has come to the conclusion that the Complainant is properly classified as an independent contractor engaged on a contract for services rather than as an employee of the Respondent.
Determination
The Court determines that the Complainant does not havelocus standito maintain the within proceedings under the Act. Accordingly, the Court affirms the Decision of the Rights Commissioner and the within appeal is disallowed.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
25 April 2016______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.