UDD1634

The Adjudication Officer found that the Claimant had been unfairly dismissed and awarded the sum of €7,500 in compensation.

The Facts

The Respondent was approached by a third party, Mr O’D, in 1998 who proposed that his then walking Ghost tour of Dublin be operated as a Ghost Bus Tour. The third party and the Respondent entered into a ‘commercial arrangement’ whereby the Respondent provided buses and drivers and Mr O’D provided scripts, actors and the equipment necessary to conduct performances on the bus including sound equipment etc. Mr O’D, as part of the commercial arrangement, is responsible for the provision of actors and he informed the Court in evidence that he worked with two ‘main’ actors who guaranteed that there would be sufficient actors available to conduct whatever tours were programmed. The Respondent and MrO’D ‘split’ the ticket price of the tours.

The Claimant was ‘auditioned’ by Mr O’D in 2009. He was provided with training on the Respondent’s premises and thereafter he undertook one to two tours per week whenever he was available. There was, according to the Claimant, an arrangement in place whereby if the Claimant was to be unavailable he was required by the two ‘main’ actors to give them two weeks’ notice so that they could arrange for planned tours to be covered by other actors including themselves. There was no negative consequence applying to the Claimant in the event of his unavailability. The Claimant stated in evidence that Mr O’D required him to perform one tour per week when available in order to ‘keep it up’. The Claimant had no interaction with the Respondent as regards his availability for or assignment to Ghost Bus tours.

The Claimant, in 2009, completed the internal paperwork of the Respondent in order to function as an external supplier to the Respondent. The Claimant regularly called in to the Respondent’s offices and signed a number of invoices to cover future Ghost Bus tours. Those invoices, which had been drawn up by the Respondent, were subsequently used to process payments to the Claimant whenever he had completed a Ghost Bus tour. In the event that a Ghost Bus tour was cancelled within 24 hours of its scheduled time the Claimant was paid by the Respondent as if the tour had taken place. The procedure for payment involved the Claimant notifying the Respondent at intervals detailing the number of tours he had delivered.

The Respondent made decisions as regards the schedule of Ghost Bus tours. Mr O’D was responsible for ensuring that the schedule was serviced by actors.

In early April 2015 the Commercial Manager for the respondent, Ms B., took a Ghost Bus tour with new Bus Drivers for services operated by the respondent. The Claimant was the actor performing that tour. Ms B was dissatisfied with certain aspects of the tour and subsequently conveyed her dissatisfaction to Mr O’D. Mr O’D then made contact with the Claimant in April 2015 and raised concerns as regards the performance of the Ghost Bus tour. Mr O’D went on the tour in May 2015 on an occasion when the claimant was conducting the tour. Mr O’D subsequently informed the Claimant that he would be asking Ms B to ‘let the Claimant go’. Ms O’B wrote to the Claimant on 2^ndJune 2015 advising that ‘your services are no longer required on the Ghostbus tour’.

Position of the Respondent

The Respondent contended that no contract of service existed between the Respondent and the Claimant and consequently the Claimant was not an employee of the Respondent. The Respondent contended that in any event the Claimant’s performance was unsatisfactory on the occasion of the tour attended by Ms B, that he had been advised verbally and in writing of shortcomings in his performance but that he failed to address these matters as observed by Mr O’D when he attended the tour subsequently and in the view of the Respondent made it clear that he did not care to make the improvements required. In those circumstances the Respondent contended that there were substantial grounds justifying the decision to terminate the Claimant’s involvement in the Ghost Bus tour. The Claimant was, in the view of the Respondent, made aware of the grounds giving rise to concern, given an opportunity to address those grounds and given the opportunity to improve.

The Respondent, in addressing the question of the nature of the Claimant’s contract drew the Court’s attention toCastleisland Cattle Breeding v Minister for Social Welfare [2004] 4 IR150 at 161,Henry Denny and Sons (Ireland) Ltd v The minister for Social Welfare [1998] 1 IR 34,Minister for Agriculture and Food v Barry [2009],Clark v Oxfordshire Health Authority [1997] EWCA Civ j1218-19,Forbidden City Ltd, t/a Translation.ie v McKayed UD265/2013, Murphy v Grand circle Travel UD715/2010andBlake v Grand Circle UD620/2013.

The Respondent contended that there was no mutuality of obligation as between the Respondent and the Claimant insofar as there was no obligation on the Claimant to take any work offered and that this was demonstrated by the fact that the Claimant declined to take tours when he was engaged on other acting work. The Respondent contended that the fact that the Claimant was treated as self-employed was relevant to the Court’s consideration of the nature of the Claimant’s contract as was the fact that the Claimant was required to submit tax clearance certificates to the Respondent in order to be paid. The Respondent asserted that the Claimant was not a member of the Respondent’s pension scheme. The Claimant was, in the view of the Respondent, in a position to increase his profit through performance in view of his access to ‘tips’.

The Respondent contended that while the Claimant was required to perform the script written by Mr O’D and to carry out other instructions these requirements were requirements of the work to be done and are neither indicative of a contract for service or a contract for service. The Respondent submitted to the Court that when all of the factors present in the case are taken into account, it is clear that there was no contract of service between the parties.

The Respondent, without prejudice, submitted in the alternative that it decided that it no longer required the Claimant’s services on substantial grounds, i.e. competence. The Respondent contended that it observed fair procedures before reaching that decision.

Position of the Claimant

The Claimant contended that he had an employment relationship with the Respondent. He submitted to the Court that in April 2009 he met with Mr O’D who offered him a position of actor on the Dublin Bus Ghostbus Tour and the Claimant accepted that offer. The Claimant submitted that he then met a commercial manager of the Respondent and signed a document accepting the job. That meeting was followed by a training programme in the Respondent’s Summerhill Garage. The Claimant then commenced working as an actor on the Dublin Bus Ghostbus tours. For the first two weeks he was one of two actors and that was then augmented to three when a third actor returned to become available.

The Claimant contended that he was engaged on a contract of service with the Respondent and asserted that

• 
  •The Respondent decided how many tours there were to be each week. The roster for the tours was then divided up between the actors by the actors on the basis of their seniority.

  •The Claimant attended at the office of the Respondent every six weeks to sign his pay sheets which had an invoice number assigned to them.

  •The Respondent would, each week, sign a form issued by the Department of Social Welfare. The Respondent signed and stamped that form on the area of the form headed ‘Employer’s Declaration’. Similarly at regular intervals the Respondent completed another form issued by the Department of Social Welfare by stamping the form in the area headed ‘Employer’s Stamp’.

  •The Claimant was within the control of the Respondent at all time insofar as the Respondent retained control over who carried out the work. The Respondent owned the buses and maintained them. The Claimant did not have the facility to sub-contract the work and notice was required for any period of the Claimant’s unavailability. The Respondent provided the uniforms used while acting on the tour and the Claimant was not required to bring any equipment to work. The Claimant was required to follow a script provided for him and a manager of the Respondent was in a position to take the tour herself and to direct how the work was carried out. The Claimant was not in a position to influence the profit made from the enterprise and only the Respondent controlled where the work was done.

The Claimant contended that the Respondent had not followed a fair procedure in dismissing the claimant and in particular that the Claimant was dismissed without good cause or the facility to appeal his dismissal.

Discussion

The Respondent in this case contends that the Claimant was not an employee and as such was not unfairly dismissed. In the alternative the Respondent contends that the Claimant’s services were terminated on substantial grounds.

In the context of the submissions made it is appropriate that the Court would first consider whether the Claimant was engaged on a contract for service or whether he was engaged on a contract of service – whether he was an employee of the Respondent or whether he was self-employed.

The law in this regard is quite complex. However a common theme in all of the case law on the subject is that each situation must be judged on its facts and the Court has accordingly considered the matter in that context.

Edwards J set out in Minister for Agriculture and food v Barry [2009] 1 IR 215 that

• “The important thing to remember, however, is that every case must be considered in the light of its particular facts and it is for the court or tribunal considering those facts to draw the appropriate inferences from them by applying the general principles which the courts have developed. That requires the exercise of judgement and analytical skill. In my view it is simply not possible to arrive at the correct result by “testing” the facts of the case in some rigid formulaic way, and I do not believe that the Supreme Court ever envisaged, or intended to suggest, that it could be ….

  All potential aids to the drawing of the appropriate inferences from the primary facts as found stand in their own stead, and no one is subsumed by another. However, depending on the circumstances of the particular case, some aids may prove more helpful or more useful than others. In the words of Dillon L.J. “the same question, as an aid to appreciating the facts, will not necessarily be crucial or fundamental in every case”. It is for a court or tribunal seized of the issue to identify those aids of greatest potential assistance to them in the circumstances of the particular case and to use those aids appropriately”

The Contract of Employment and relevant documentation

It is common case that no contract of employment existed between the parties.

The Respondent contends that the documentation surrounding the relationship was that of an external supplier to the company and was comprised of relevant clearance certification and invoices submitted regularly. The Respondent submits that the Claimant was responsible for all of his own taxation affairs and that he was not entitled to or afforded the arrangements normally attaching to an employee including leave or pension facilities.

The Claimant contends that the Respondent behaved in response to requests from the Department of Social Protection for information as the Claimant’s employer and completed documentation in that regard regularly. The Claimant acknowledged that tax clearance certificates may have been provided to the Respondent but expressed no clear knowledge of this matter to the Court.

Control.

The Respondent contends that it never exercised control over the Claimant as regards when or if he worked the tours. The Respondent contended that the Claimant decided himself when he worked tours and when he would be available. The Respondent asserted to the Court that the Claimant at all times interacted with other actors and not the Respondent as regards his availability or otherwise to conduct tours.

The Claimant contended that as the Respondent owned and maintained the buses used in the tours and as the Respondent decided when and how many tours took place it exercised control over the Claimant. The Claimant further contended that whenever he was unavailable for work he was obliged to notify his fellow actors. He asserted that the tours when scheduled were divided up among the actors on the basis of their seniority.

Mutuality of obligation.

The Respondent contended that at no time did the Respondent place an obligation on the Claimant to take up work on the tours. The Respondent asserted that it had a commercial relationship with a third party, Mr O’D and it was his responsibility to source and supply the actors to carry out all scheduled tours.

The Claimant at contended that the Respondent set the schedule for tours and that the work arising therefrom was then divided among the actors. The Claimant submitted that on each occasion when he was to be unavailable he was required to notify his fellow actors as regards his unavailability.

Was the Claimant in business on his own account?

The Respondent contended that the Claimant was self-employed and was so regarded by the Respondent for all purposes including taxation. The Respondent asserted that the Claimant was free to, and did, take up other acting opportunities throughout his period of engagement with the Respondent. The Respondent asserted that the Claimant’s capacity to enhance his ‘profit’ through tips was indicative of a person in business on his own account.

The Claimant contended that the Respondent supplied buses and uniforms and determined the times when work was available and that the Claimant supplied no equipment and nor could he influence the profit accruing to him and that any assertions as regards tip income were not relevant. He asserted that he had no capacity to sub-contract the work involved.

Conclusions

The Court has considered the totality of the relationship between the parties. The Court accepts the nature of the relationship between the parties was complicated by the presence of a third party who exerted managerial type functions over the mechanisms employed to secure the presence of actors on each tour scheduled by the Respondent.

Nevertheless at its heart the relationship involved the Respondent establishing a schedule of tours which varied and involving an obligation on a team of actors to meet that schedule by ensuring the presence of an actor on the bus when a tour occurred. The Respondent, notwithstanding the absence of a contract of employment, or it seems any contract as such, was required by the relationship as it operated to make a payment to the claimant every time he carried out a tour which had been scheduled by the Respondent. The Respondent set out to the Court that the Claimant invoiced the Respondent for work carried out. Both parties at the hearing however agreed that the invoicing arrangement was an unusual one involving the Claimant signing blank forms in advance which were at a later stage converted into invoices by the Respondent whenever the Claimant completed a tour. The Respondent in effect filled out every aspect of the invoice except the signature.

The Court is satisfied that, taking the entirety of the relationship into account, the Claimant was employed by the Respondent on a contract of service.

The case.

The Court, having decided that the Claimant was employed on a contract of service must conclude that the Claimant has locus standi to make a complaint under the Act.

The facts of the case itself are not substantially in dispute.

A manager of the Respondent attended a tour given by the Claimant. The manager was not satisfied by the performance of the Claimant. The manager spoke to Mr O’D who met the Claimant and subsequently wrote to him advising him of shortcomings. Mr O’D attended a tour and decided after that to ask the Respondent to terminate the engagement of the Claimant. That was done and no right of appeal was afforded to the Claimant.

The Court finds that the Respondent followed no clear procedure when terminating the engagement of the Claimant and the Claimant was not afforded adequate opportunity to address the issue which gave rise to the decision of the Respondent to terminate his employment. The Court further finds that the Claimant sought an appeal by letter of 24^thJune 2015 and such appeal was not afforded to him.

Determination

The Court finds that the Claimant was unfairly dismissed by the Respondent and affirms the decision of the Adjudication Officer to award a sum of €7,500 in compensation.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
LS______________________
15th November, 2016Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.