ADJUDICATION OFFICER RECOMMENDATION.

Adjudication Decision Reference: ADJ-00001375

Dispute for Resolution:

Date of Adjudication Hearing: 16th June 2016

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act 2015 and Section 13 of the Industrial Relations 1969, following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

 Summary of Trade Union Case:

The Trade Union said that central to the Complainant’s case is the submission that the Respondent failed to acknowledge her as an employee by not issuing her with a contract of employment and thereby resulting in a significant personal loss of monies legitimately due, including:

• Non-payment of maternity pay in 2013

• Non-payment of employer pension contributions

• Non-payment as a full “employee” as designated as self-employed

• Loss of annual leave and public holidays

The Trade Union said the Complainant was engaged by the Respondent on 10^th April 2007, as a Sessional Trainer with a named group, initially for a 12 week period.   The contract stated:

“In consideration of the services rendered by the Sessional Trainer, (named body) shall pay a fee of €650.00c per week (from which statutory deductions, PAYE, PRSI and levies will the responsibility of the Sessional Trainer)…….”   (This contract was submitted to the Hearing).

The Complainant was required to issue weekly invoices to the Employer detailing her daily hours worked, in turn she was paid for providing same.

The Trade Union asked it be noted that the Complainant was never paid for annual leave, sick leave or public holidays throughout the period in question, i.e. 10^th April 2011 to 11^th November 2015.

In 2012, the Revenue Commissioners reviewed the Complainant’s case and determined that she should be an employee on the basis that the employment was a contract of service.   In an email dated 25^th September 2012, a named Revenue Officer confirmed that he had written to the Respondent.   Subsequently, Revenue were informed by the Respondent that calculations were being prepared on PAYE tax owed from the Respondent to Revenue in relation to the Complainant.   The Trade Union said that this confirms the view of the Revenue Commissioners that the Complainant was indeed an employee of the Respondent - although engaged in a contract for services, the Complainant was in fact an employee.

The Trade Union said further correspondence with the Revenue Commissioners of 13^th May 2013, confirmed that the Respondent had accepted the determination of the contract of employment.

A Manager of the Respondent in an email dated 26^th November 2015 to the Complainant stated:

“Payments made to yourself were included in the amounts deemed to be liable for tax settlement for the period 2011 to 2013.

Settlement included Income Tax, USC, Employee PRSI, Employer PRSI and interest/penalties……”

In order to progress matters to regularise her employment in accordance with the Determination of the Revenue Commissioners, the Complainant engaged in constant contact with the Respondent, most of which was not responded to, however there were a number of commitments to deal with the matter and some samples of that correspondence was submitted to the Hearing.

The Trade Union Official met with the Complainant on 17^th October 2014 and they subsequently wrote to the Respondent on the same day outlining their view that a contract of indefinite duration should be issued by them to the Complainant and this was acknowledged by the Respondent on 20^th October 2014.   In an email of 11^th December 2014, the Respondent confirmed that a contract would be issued.  

A further email was issued from the Respondent of 9^th January 2015, confirming that a contract would be “generated”.   A further email was issued on 27^th April confirming that a contract had been authorised by a named senior manager.   A further email was issued on 15^th May 2015, confirming the contract was progressing to a “final conclusion”.   On 18^th June 2015, a pre-contract letter and pack was sent to the Complainant with the statement that “contracts will issue.   A further email of 14^th August 2015 stated the contract was “nearly ready”.   On 11^th November 2015, the contract was issued, but it had wrong hours and leave and wrong date of 10^th August on it.  

The Trade Union said it was clear that the Complainant was engaged in an employment relationship as an employee since the commencement of her time with the Respondent in April 2007.   The Trade Union said that regardless of that and being both generous and pragmatic; the Complainant will accept that the Respondent entered into a formalised employment relationship as an employer in 2011.

The Trade Union said that the Respondent agreed to the categorisation of employee and the responsibilities therein for the Complainant and their obligations for tax compliance with the State, then it must follow that they must equally discharge their responsibilities as an employer to the Complainant as an employee.

The Trade Union said the Complainant has been treated unfairly by the Respondent as her Employer, who have delayed, frustrated and prevaricated at every opportunity, consistently failing to do the right thing or rectify matters in a timely fashion, despite written commitments to do so, which has resulted in unnecessary stress and significant financial losses.  

The failure to provide the Complainant with a written contract of employment has meant that she has lost out on paid annual leave and public holidays, paid sick leave, loss of incremental pay and loss of pension entitlements.

The Trade Union and the Complainant sought a recommendation as follows:

• Annual Leave of 32 days per year as per established practice and agreements

   

• Maternity pay backdated for 2013.

   

• Backdated pension contributions to 10^th April 2011, when the Complainant would have had 4 years continuous service: 2011 also being the year that the Respondent backdated payments to the Revenue Commissioners

   

• Backdate public holidays to 10^th April 2011.

   

• That the contract of employment be amended to commence on 10^th April 2011.

   

   

• Annual leave entitlements to be backdated to 10^th April 2011.

   

• Pay to be awarded for the differential in salary between 10^th April 2011 to 10^th August 2015 (the commencement of the new contract) taken into account increments

   

• That a significant financial award be made for injury to feelings for stress caused by the delay in dealing with matters in a timely fashion.

Based on the foregoing the Trade Union and the Complainant sought a favourable recommendation.

Summary of Respondent’s Position:

The Respondent said that the Complainant was engage by a named group in April 2007, to deliver 2 programmes, namely:

1. Community Link, a 20 week programme funded by a named body.

1. STEPS Programme, a 30 week programme funded by another named body.

The Respondent said the Complainant was engaged on a 35 hour week basis since 2007, which continued until 2013.   At all time payment was by way of invoice and the Complainant received no paid annual leave or sick leave entitlements.

The Respondent said that following a letter from the Revenue Commissioners to their Deputy Director or HR on 14^th June 2012, which suggested that the Complainant was an employee of theirs, a review of her employment status took place.

It was decided by the Respondent, that given the public service jobs moratorium at the time, that it would not be possible to employ the Complainant and that the Respondent should organise arrangements to be made to put in place an appropriate service arrangement and that the Respondent complies with Revenue guidelines for self employment.

This was conveyed to the Complainant by one of the Respondent’s business managers.   The Complainant did not accept the Respondent’s position at that time and sought to have her employment status with the Respondent progressed.

The Respondent said that at this stage there were a number of complicating factors around tax and PRSI monies that were owed and the Respondent was taking advice on how to deal with those historic issues.   The Respondent said that while Revenue had determined the Complainant to be an employee of theirs, due the recruitment moratorium, they were unable to deal with the case and the matter moved on into 2014.

Advice was provided to management on 26^th May 2014, as to how to set the Complainant as a sessional employee that complied with Revenue’s assessment of the Complainant as an employee of theirs for tax purposes, but still engage as a contractor by the Respondent and not an actual employee of theirs - and on 17^th July 2014, a named HR Manager confirmed that that this arrangement was in place.

On 17^th October 2014, the Trade Union issued a letter to the Respondent seeking employment status by way of the issuing of a contract of indefinite duration (CID).   It was confirmed internally to the Respondent on 28^th November 2014, that the Complainant’s position was now tax compliant, but that her employment status had still not been agreed.

Following further advice, the Respondent was advised that the Complainant should be regularised as an employee of the Respondent, and they then issued her with a CID in August 2015, on a 34 hour week based on hours worked prior to that.   The Complainant signed the contract of employment under protest highlighting a number of issues in dispute and those issues included:

• Commencement date to be backdated to 10^th April 2007

   

• Maternity leave entitlements for 2013

   

• Annual Leave, public holidays paid and backdated to 2007

   

• Pension contributions to be paid and backdated to 2007

   

• A working week of 39 hours

.                                                                                                                                                                               . The Respondent said that the Complainant is now an employee of theirs and this in not in dispute.   What does appear to be in dispute is when the Complainant’s employment status changed from a contract for services to a contract of service and she effectively became an employee of the Respondent.   The Respondent submitted that this occurred on the date she signed her employment contract in 2015.

Based on the foregoing the Respondent submitted that they had behaved reasonably and fairly towards the Complainant and the claim should be rejected.

Findings and Recommendation:    

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation setting forth my opinion on the merits of the dispute.

I have carefully considered the evidence and the submissions made and I have concluded as follows.

I note that based on the considered view of the Revenue Commissioners the Complainant was an employee of the Respondent and it is logical to infer from that that she was at all relevant times since April 2007 an employee of the Respondent with all the employment rights and responsibilities that this conferred on her.

On those grounds alone I see considerable merit in the claim and it is upheld.

I recommend the following as a full and final settlement of these matters:

1. The Complainant’s contract of employment shall be amended to show a commencement date of 23^rd June 2012 (this being the date of the Revenue Commissioners email to the Respondent confirming their determination that the Complainant was an employee of the Respondent).

    

2. Annual Leave for the Complainant shall be 30 days per year

    

3. The employer and the employee pension contributions shall be backdated to the commencement of the employment, i.e. 23^rd June 2012.

    

4. 39 days annual leave and public holidays shall be applied to the Complainant as compensation on a ‘once-off basis’.

    

5. Loss of maternity pay for 2013 to be paid to the Complainant by the Respondent, i.e. 26 weeks pay

    

6. The sum of €3,000.00c (say three thousand) to be paid to the Complainant as compensation for the failure of the Respondent to deal with or process these matters in a timely fashion.   It should be noted that this sum is not wages or arrears of wages but rather is compensation for the failure of the Respondent to deal with these matters in a timely fashion.

The recommendation is being made on the basis that it is acceptable to both parties.

For the avoidance of doubt I wish to confirm that this recommendation is particular to the unique facts and circumstances of the instant case and it cannot and will not be used or quoted by either party or any other party in any other case.

Dated: 7^th September 2016