EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Siobhan Doran
- claimant UD1640/13
Against
Anthony Sweeney
- respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms C. Egan B L
Members: Mr. D. Morrison
Mr T. Gill
heard this claim at Castlebar on 14th May 2015, 13th July and 14th July 2015, 14th and 15th October 2015
Representation:
Claimant: Mr. Alan Dodd BL, instructed by Mr. Joseph Burke, McCartan & Burke, Solicitors, Iceland House, Arran Court, Smithfield, Dublin 7
Respondent: Mr. Peter Flynn, Clarke & Flynn, Solicitors, Bury Street, Ballina, Co Mayo
The determination of the Tribunal was as follows:-
Claimant’s Case:
The respondent is a dental surgeon. The claimant worked as a dental hygienist for the respondent and commenced employment on 7 July 2007. She graduated with a Diploma in Dental Hygiene in June 2004.
Her role included oral hygiene instruction, fluoride application, taking of radiographs, dental health education, scaling and polishing and local delivery of antimicrobials. She worked Tuesdays, Thursdays and Fridays from 9.30 am to 5.30 pm. Her payment arrangement with the respondent was 50/50 and was paid at the end of each week. This arrangement changed in 2012 and her percentage was reduced to 45% due to economic times.
She carried out her work in an upstairs room in the surgery. Patients made appointments at reception following referral from the respondent. She was not permitted to see patients independently. She did not invest in the practice and there was no licence agreement in place.
The claimant met her patients at reception. She carried out her role alone. Patients paid for their treatment at reception and were furnished with a receipt. Initially the set fee for treatments was €70, but this was reduced to €65 after some time.
The respondent supplied all the relevant equipment and materials for the claimant to carry out her role. The claimant took her holidays when the respondent was on holidays.
The claimant kept a list of patients she had seen each week and at the end of the week she counted up the number of patients she had seen and divided the amount by two. The respondent paid the claimant by cheque each week. The claimant lodged the cheque to her bank account and liaised with her accountant in relation to tax.
In the absence of a receptionist at any given time, the claimant accepted payments from patients and issued them with receipts. The claimant immediately placed the money in the respondent’s room. At lunch time she answered the phones when the need arose.
The claimant was informed by the respondent that as and from 1st January 2013, on a directive issued by Revenue to the Irish Dental Association, employees working for dentists should be treated as persons working under a contract of service and be subject to the USC, PAYE, Tax and PRSI. This was reflected in mid-January 2013. Her role remained the same. The claimant was not furnished with a contract of employment, terms and conditions of employment or issued with payslips. However, she sought clarity on her employment status and the respondent furnished her with explanations, but she was still unclear.
In June 2013 the claimant applied for holidays in July 2013, but was refused. She also sought holiday pay and was told she was not entitled to this pay. She became very upset and stressed and returned home that evening.
On 14th June 2013 the claimant furnished the respondent with a medical certificate which covered the period 14th June 2013 to 21st June 2013. She received no response from the respondent. She did not return to work but was furnished with her P45 which cited a cessation date of 6th June 2013.
The claimant secured work in July 2013 in a Dental Practice in Longford. She works there when work is available.
At the resumed hearing on the 13 July, the claimant gave evidence of commencing at the Longord practice in March 2013 which was later corrected during re-examination at the hearing on the 14 July. Her commencement date was confirmed as 14 March 2012 when she worked one and a half days. The claimant accepted that she had cancelled appointments at the respondent’s practice on occasion but only where she had a genuinely good reason and with permission from the respondent. She gifted equipment, which she had, to the respondent’s practice. By April 2013 she had sought the advice of her solicitor as she was concerned about her taxation obligations and wished to be tax compliant. At that stage the respondent had not registered her as a PAYE worker. She forwarded the advice she had received to the respondent. The respondent informed her that she owed him money as he had not made sufficient deductions to cover her taxation for the first period of 2013. The claimant was eventually registered in May 2013. The claimant had two periods of maternity leave over the course of her employment with the respondent. During these periods the respondent arranged cover. She had no role in getting cover.
On the 6 June 2013, the claimant asked about her holiday entitlements and she was informed she was not entitled and owed the respondent money.She received no clarification on the amount she owed. The claimant denied terminating her employment and had not sought her P45. While she was on certified sick leave, the claimant received a letter including payslips and the amount she owed.
Respondent’s Case
The respondent (AS) gave evidence of advertising for a dental hygienist in June 2007 and following an interview with the claimant he offered her the position. The practice had two appointment books one for dentist and one for hygienist. The claimant had indicated she was happy with the fee and payment structures. The claimant brought her own equipment and tools to the practice. At the time the respondent had a holiday and sick pay policy for the two administration employees. The hygienist operated as a self employed contractor. Each Friday the claimant would complete a chit for payment. The respondent told the Tribunal that the claimant was in charge of her own appointment book and free to change appointments as she wished. The respondent arranged cover for two periods of maternity leave taken by the claimant. The respondent reduced the fees in 2011 following a complaint from a patient who complained that other practices were cheaper. The claimants fees dropped further to 45% of €65 in February 2012.
The respondent became aware of changes to the taxation system for hygienists in May 2012. He was of the view that this change was grossly unfair to the claimant who was self employed. Initially in 2013 he had calculated an amount to deduct from the claimant but later learned from his accountant that the amount was under calculated. For the first two weeks of 2013 the respondent paid 45% as per 2012. In week three the amount reduced to 34.5% which was a significant reduction to the claimant. The respondent said the claimant was unhappy with the reduction and did not wish to have employee status. The respondent accepted that he was slow moving ahead and registering the claimant. After March 2013 he accepted the claimant was entitled to pay slips. On the 1 May 2013 the respondent was handed two envelopes by the claimant. The letter from the claimant’s solicitor, which contained employment queries, puzzled him and the second letter from the claimant shocked him. He engaged his accountant to deal with the claimant’s letters. He had always operated a P35 system for his other employees, which meant the PRSI contributions were paid in a lump sum at the end of each year, and this was accepted by revenue.
On the 6 June 2013 the claimant asked the respondent about holiday pay entitlements and he explained he would work everything out and not to worry. The claimant interpreted his response as being that she was not getting holiday pay and asked him to get the accountant to move quickly. The claimant left that day and did not work the following day. Over the next few days the respondent with his accountant worked on preparing payslips and details of under deductions. He texted the claimant to confirm she would have the information within three days, but got no response.
The next communication from the claimant was a letter dated 10 June 2013 from the claimant’s solicitor. A medical certificate for the claimant was received on the 12 June 2013. The letter sought compensation for injury caused. The respondent interpreted the letter as indicating that the claimant had ceased working in his practice. The respondent stated that he never considered the claimant an employee as she operated as an independent contractor with the freedom to change and cancel appointments.
Determination:
The Tribunal, having heard the evidence, determines that the claimant was self employed up until January 2013. The claimant became an employee with the respondent on or about 1st January 2013 and her employment ended on or about 6th June 2013.
Accordingly, as per section 2 (1) (a) of the 1977 Act, the claimant is excluded from taking a claim for unfair dismissal and the Tribunal does not have jurisdiction under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)