ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000821

Complaint for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00001289-001	04/12/2015

Date of Adjudication Hearing: 26/05/2016

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure:

In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Complainant’s Submission and Presentation:

The complainant anticipates a preliminary issue that the respondent will argue that he was not an employee under a contract of service and does not have the required service to avail of the Act.

It is argued that the complainant was involved with the respondent with the establishment and promotion of a cookery school from May 2013 and he was dismissed on 23^rd July 2015 on notice to 31^st July 2015. It is submitted that he was in the paid employment of the respondent receiving remuneration from 21^st July 2013. He was given a service provision contract dated 11^th August 2014. It is argued that this was a mechanism to secure funding as the funder would not provide funding for staff. On 12^th May 2015, the complainant was given a one year fixed contract, and he had been told by email that his job was secure “for the next year”. However, on 23^rd July 2015 he was suddenly advised that the Board was not signing his contract and did not now wish to engage the complainant. It is argued that although the complainant was required to submit invoices in the initial period, in every other way the relationship between him and the respondent was one of employee/employer. It is submitted that the complainant is an employee pursuant to the Unfair Dismissals Act 1977. It is submitted that his period of employment ran from 21^st July 2014 to 23^rd July 2015 and he therefore has the requisite period of continuous service to satisfy the provisions of the Act. Case law was submitted in support of the argument . The tests established under Irish law were outlined to establish that the complainant was effectively under a contract of service rather than a contract for service, specifically:

The control test

The enterprise test

The mutuality of obligation test

The integration test

It is argued that the complainant was an employee of the respondent, had the required service and was unfairly dismissed.

Respondent’s Submission and Presentation:

The respondent submits that the complainant was employed as a Coordinator on a contract for services from 11^th August 2014. The respondent refutes the allegation that he was unfairly dismissed. It is submitted that Section 2 of the Act precludes the complainant from taking a claim, as he did not have the requisite one year’s service. The complainant tendered for a position as Coordinator on a contract for services basis on 22^nd July 2014. He was employed on an unsigned one year fixed term contract from 12^th May 2015. It is submitted that the working relationship prior to 12^th May 2015 lacked the necessary characteristics of an employment relationship. The judgement in the case of The Minister for Agriculture and Food v Barry and Others is relied upon, specifically in relation to the primary test of ‘mutuality of obligation’. It is submitted that no such mutuality of obligation existed prior to 12^th May 2015. The service provision contract stated that future services would be subject to tender in the normal way. It is further submitted that the Denny case is relevant to this case, as the service contract provides that the complainant could use other persons in the performance of work and the complainant would be responsible for their wages, income tax, social welfare contributions etc. It is the respondent’s position that the complainant was not an employee prior to 12^th May 2015 and does not have the service to take a claim under the Act. Verbal evidence was given by one of the Directors at the hearing of the circumstances leading up to the situation where the Board was unwilling to sign the fixed term contract for the complainant. Evidence was given that he (the complainant) had his own web business, had his own personal email which he used in the course of his work for the respondent, that he was difficult to contact, and that the members of the Board and community personnel had difficulties with him.

Decision:

I have examined the various tests in respect of the working relationship between the parties and find as follows:

Although the complainant was given a service provision contract for financial/funding reasons, I find that on the basis that he worked full time for the project from at least 21^st July 2014, and that he was effectively under the control of and was obliged to report to the Board. I find that there was, in practice a mutuality of obligation. I find and that the complainant did not engage others to work / or sub contract the work. I find that the relationship between the complainant and respondent was one of employee and employer. I find that in that case, the complainant having been employed from 21^st July 2014 to 31^st July 2015, he has the requisite service to allow him to bring his claim.

In relation to the substantive issue, the complainant was told suddenly and without warning on 23^rd July 2015 that the Board did not want him to be the “face” of the company going forward. Whatever problems members of the Board had with the complainant, no due process was afforded him, no right of reply, no right to representation and no right of appeal. S.I. 146 /2000 is a statutory instrument which sets down basic rules of natural justice which must be employed by employers in disciplinary situations and none of the rules were followed in this case. The behaviour of the respondent in this case I therefore deem to have been unreasonable, and I find the complainant was unfairly dismissed.

I find that the remedies of re-instatement or re-engagement are not suitable in circumstances where the relationship is broken down. I find compensation to be the appropriate remedy. I have taken into account the complainant’s current business involvement and am of the opinion that he is making many efforts to mitigate his loss. I therefore find the compensation of the sum of €13,750 should be paid by the respondent to the complainant.

Dated: 24^th August 2016