ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002233

Complaints for Resolution:  

Date of Adjudication Hearing: 25/07/2016

Parties:                                An Employee v An Employer

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure: 

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Act, 1977 and 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.

Background

The Complainant was on a Contract as a Freelance Contributor to a named Newspaper commencing on 17^th May 2007. This was signed and dated by both Parties. This Contract provides in summary that the Complainant would submit copy to the Newspaper for 46 weeks in a 12 month period. The Complainant was responsible for all overheads and tax liability. and he was to be paid an annual fee of €60,000 to be divided into 13 equal amounts. He was informed that all necessary equipment and/or facilities were the complainant’s responsibility and the facilities of the Newspaper would not be available. Invoices were to be submitted. It also provides that if the Complainant failed to submit copy or that the contribution did not meet required standards then the Newspaper could withhold some or all of the Fee. The Complainant was to submit copy to the Sports Editor as agreed and the Sports Editor had absolute discretion to publish or not.

This initial Contract was for a period from 1^st January to 31^st December 2007 but could be renewed subject to the agreement of both Parties and in the event of renewal then the Contract states that the terms and conditions of the 2007 contract would apply unless otherwise agreed in writing.

The Complainant was informed that as the Contract was a contract for services that the Complainant was responsible for all overheads and tax liabilities. The Contract also provides for the termination by either party by giving 13 weeks notice in writing. 

The Contract between the Parties was terminated on 11^th January 2016.

The Complainant referred a complaint to the Workplace Relations Commission on 4^th March 2016 alleging that he had been unfairly dismissed by the Respondent on 11^th January 2016 and that he had not been paid his Minimum Notice on termination of the employment. At the time of the termination of the Contract the Complainant was paid €4500.00 a month over a 12 month period.

 Preliminary Legal Issue 

There was a dispute between the Parties as to whether the Complainant was an employee as claimed by the Complainant or whether the Complainant had a contract for services as maintained by the Respondent. 

Complainant’s Submission. The Complainant made a detailed written submission to the Hearing followed by a Supplementary submission dated 27^th July 2016. The Complainant stated that they accepted that the Contract dated 17th May 2007 was a contract for services and it was his understanding that this one year contract was initially a trial or probationary period. There was no other contract provided to the Complainant and he argued that after this one year the Complainant became employed on a full-time basis with the Respondent. While no other contract was provided, there was an implied contract, by the very nature of the relationship that the Complainant was an employee of the Respondent.

The Complainant asserted –

• The Complainant worked regular hours of 35 hours a week over 9 years and was paid a fixed sum each month.

• The Complainant worked under the guidance and instruction of the Editor/Deputy Editor

• The Respondent had full editorial control over the Complainant’s work.

• He was required to produce four pieces per week and also cover events at the request of the Editor/Deputy.

• The Complainant was never commissioned for work but was required to submit a list of ideas to the Editor and await instructions

• The Complainant attended Christmas Parties and Departmental Parties as a member of staff. He also attended seminars and meetings.

• The Complainant was provided with annual leave but had to get prior sanction for this.

• The Complainant did not have his own insurance to cover defamation cases as this was covered by the Respondent’s insurance.

• The Complainant worked first and foremost for the Respondent and any work he carried out outside this was minor in nature. However following a series of pay cuts the Complainant did work for 8 nites a year with a named TV Channel and 14 nights with another named Sports Channel. He also worked for RTE each Monday.

• The Complainant shared the copyright of his articles with the Respondent.

The Complainant referenced the following case law in support of their contention that the Complainant was an employee of the Respondent. –

• Roche v Kelly (1969) IR 100

• Henry Denny & Sons Ltd t/a Kerry Foods v The Minister for Social Welfare (1997)

• The Sunday Tribune Limited (In Liquidation) 1984. This case dealt with three named different complainants which in the case of Mary Holland the Court determined she was an employee.

 Respondent’s Submission. The Respondent made a substantial submission to the Hearing and a further supplemental submission on 4^th August 2016. The Complainant was not at any time an employee of the Respondent but a self-employed contributor who provided his services to the Respondent and to other named media outlets. They argued –

• The Complainant always operated as an independent freelance contributor. He would submit ideas to the Sports Editor which were either accepted or rejected. He collaborated with the Editor in relation to what articles he would submit on a weekly basis. There was no supervision over his work and he managed his own availability.

• The annual fee the Complainant was paid each year varied as Contributor rates changed. The Complainant was advised each year of the fee and it was his choice to accept or reject which is different to employees on a salary.

• The Complainant worked from his home and did not attend the Respondent’s Premises, he did not have a desk and was not furnished with any equipment.

• The Complainant had complete control over his hours and his invoices cite “journalistic services”, there was never any reference to hours/days worked as the basis for the invoices.

• He was responsible for his own tax affairs.

• The High Court Decision in the Sunday Tribune Limited (In Liquidation) in relation to three journalists in which different decisions were made by the High Court.

• The Complainant did attend “Parties” at the Respondent’s premises but a wide group of individuals, including employees, contractors, regular contributors, were all invited to attend.

• The Complainant did attend a defamation training day but the invite was addressed to all staff and contractors who were required to attend.

• In relation to liability for defamation, it is publication rather than authorship is one of the main prerequisites for liability for defamation.

• The Complainant’s Contract provides that the Complainant provided copy for 46 weeks of the year. He was not paid annual leave entitlements

• The Respondent rejected the Complainant’s contention that the copyright of the Complainant’s articles were shared. The Contract clearly provides that the Respondent has the right to publish any of the contributions on its website and to other outlets. But at all times it states he owned the copyright to the contributions.

 Decision

I have given due consideration to all the submissions made, including the considerable amount of case law cited by both parties. I have also looked at

• the 2010 Revenue Document – Code of Practice for Determining Employment or Self Employment Status of Individuals

• The Department of Social Protection Code of Practice for Determining Employment or Self-Employment Status of Individuals.

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. In Sunday Tribune Ltd (In Liquidation) (1984) 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”.

Accordingly it is necessary to consider the evidence as presented under a series of tests as set out in the varying court cases that have dealt with this issue.

 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. Both Parties confirmed at the Hearing that the Complainant in conjunction with the Editor/Deputy Editor agreed on an article to be submitted each week to be published. This could be accepted, amended or rejected by the Editor/Deputy Editor.

I find that the Complainant was required to provide copy to the Respondent each week over 46 weeks of the year for which he was paid a fee on a monthly basis. On this basis I am not satisfied that this test is conclusive and that this was an employee/employer relationship.

 Control

There was considerable conflict of evidence in relation to this test. The Complainant stated that he was under the complete control of the Editor while the Respondent stated that following consultation between the Complainant and the Respondent the Complainant would submit ideas or alternatively the Respondent would suggest a particular article.

I note that the Supreme Court in Henry Denny & Sons Ltd v The Minister for Social Welfare (1998) stated “The degree of control exercised over how the work is performed, although a factor to be taken into account, is not decisive”.

I find that this test is not conclusive to establish an employer/employee relationship existed.

Integration

I note the complainants contention that he attended the Respondent’s Premises to attend Parties  and he did attend a Training day on defamation which was obligatory on all employees and contractors. The evidence was that the Complainant worked from his home, that he managed his own hours and that he did attend “social” occasions and he did attend an obligatory training day. However this does not denote an employee/employer relationship.

I find this test is not conclusive.

 Taxation/Vat

In the Supreme Court Case of The Sunday Tribune Ltd (In Liquidation) (1984) Carroll J stated that a Complainant’s taxation status was not a determining factor in determining if an employee/employer relationship exists

I note also in the Kerry Foods Case that although the Complainant submitted an invoice the Court determined she was an employee

This test is not conclusive.

 In Business of own account.

The Code of Practice of the Department of Social Protection is helpful in determining this complex question. 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”.

However I also note that Geoghegan J in Castleisland Cattle Breeding Society Ltd v Minister for Social and Family Affairs held “That nevertheless the wording of a written contractstill remains of great importance”

I find that the express terms of the Contract of 2007 may not be lightly discarded, where this clearly states that “these terms and conditions shall apply unless otherwise agreed in writing and signed by both parties”. This is a Contract for Freelance Contributor to the Named Respondent and states “I am pleased to confirm the terms and conditions to (Named) on a self-employed contributor basis.

On the basis of my conclusions above I conclude that the Complainant has not established that he had an employee/employer relationship. 

Decision CA-00003029-001 and 002

 I do not have jurisdiction to deal with these complaints under the Minimum Notice and Terms of Employment Act, 1973 or under the Unfair Dismissals Act, 1977.

Date: 7 November 2016