ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000264

Complaints for Resolution:

Venue: WRC, Tom Johnson House, Haddington Road, Dublin 4.

Date of Adjudication Hearing: 31/05/2016

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and under section 27 of the Organisation of Working Time Act, 1997 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Preliminary Point – Jurisdiction - Employer/Employee Relationship?

Respondent’s Submission and Presentation:

The Respondent is a language translation company. It engages the services of independent interpreters to meet its business needs. There is no mutuality of obligation. The Respondent is not obliged to provide work and the Complainant is not obliged to accept the work. In fact there is between 40% to 60% refusal of job offers. The Complainant was free to work for competitors whenever she choose. She was not supervised; she provided her own tools and equipment. She submitted invoices for her work. These invoices all stated the following, “I understand and agree that nothing in this document shall be understood to confer the relationship of employer/employee upon the parties thereto”. This was signed by the Complainant. She was responsible for her own statutory deductions / contributions of tax and PRSI. She did not have a contract of services. She was not integrated into the business and visited it infrequently.

She was self-employed. This was not an employer/employee relationship therefore the Rights Commissioner/ Adjudication Officer has no jurisdiction to hear this complaint.

Complainant’s Submission and Presentation

The Complainant did not attend this hearing and was not represented.

Findings

These findings are based on the uncontested evidence of the Respondent.

I note that in the “Kerry Foods” case the Supreme Court decided that each case must be determined in the light of its own particular facts and circumstances.

I note that there is an amount of case law on this subject that will require attention in order to arrive at a decision on this matter.

The Code of Practice for Determining Employment or Self-Employment Status of Individuals issued through the Department of Social & Family Affairs helps to form an understanding of this complex matter. It states “The overriding consideration or test will always be whether the person performing the work does so ‘as a person in business on their own account ‘. Is the person a free agent with an economic independence of the person engaging the service? This economic test is paramount”.

I note that Langford in The Classification of Workers: Employees and Independent Contractors “(1998) 5 (3) CLP 63 states, “The courts have over the years sought to decide the issue by reference to a variety of legal tests, traditionally the control test. More recently, the courts have tended to adopt a practical test such as that of economic reality, or to have regard to all the different features of the work relationship and to engage in a balancing exercise in relation to all the various factors. The modern tendency would seem to be not to regard any one issue as conclusive but to look at the whole picture of the work situation”.

I note that in the case of McAuliffe v Minister for Social Welfare, Barr J. said it was not possible to devise any hard and fast rule as to what constitutes a contract of service.

In Sunday Tribune Ltd [1984] I.R. 505 Carroll J. stated: “The Court must look at the realities of the situation in order to determine whether the relationship of employer and employee in fact exists, and it must do so regardless of how the parties describe themselves”.

I have decided that it is necessary to consider the evidence as presented at the hearing under a series of tests as set out in the varying court cases that have dealt with this type of matter in the past.

These findings are based on the uncontested evidence of the Respondent.

1) Mutuality of Obligation

In order for a contract of service to exist there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer. So there is an ongoing duty to provide work and one to accept work.

In the High Court case Minister for Agriculture and Food v Barry & Ors the mutuality test of obligation was endorsed by Edwards J. when he stated ,”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. If such a mutuality is not present, then either there is no contract at all or whatever contract there is must be a contract for services or something else, but not a contract of service”.

In this case I find that the Respondent was not obliged to provide work and the Complainant was not obliged to accept it.

I find that there was no mutuality of obligation. Therefore this was not an employer – employee relationship.

2) Control

Under this test the following matters needs to be addressed: deciding the thing to be done, way it is to be done, the means to be employed doing it and the time and place.

I find that she was not supervised at work. She was free to carry out her duties as she saw fit. There was a general code of conduct which covered general matters of conduct.

I find that there was no control exercised in this relationship. Therefore this was not an employer – employee relationship.

3) Integration

I find that there was no integration into this company. Therefore this was not an employer – employee relationship.

4) Taxation / VAT

I note that she invoiced for the work and was responsible for her own tax and PRSI contributions. I note that she signed the invoices which contained the following declaration, “I understand and agree that nothing in this document shall be understood to confer the relationship of employer/employee upon the parties thereto”. Therefore this was not an employer – employee relationship.

5) In business on own account

I find that she was in business on her own account. Therefore this was not an employer – employee relationship.

Decision:

Section 41(4) of the Workplace Relations Act 2015 and under section 27 of the Organisation of Working Time Act, 1997 they require that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that this was not an employer/employee relationship and that I do not have jurisdiction to hear this complaint.

Dated:   18 August 2016