ADJUDICATION OFFICER DECISIONS

Adjudication Decision Reference: ADJ-00000680

Complaints for Resolution:

Dates of Adjudication Hearings: 2nd March 2016, 14th July 2016, 15th November and 18th and 19th January 2017.

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Sections 80 and 41 of the Workplace Relations Act 2015, Section 8 of the Unfair Dismissals Act 1977, Section 7 of the Terms of Employment (Information) Act 1994, Section 6 of the Payment of Wages Act 1991, Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 and Section 27 of the Organisation of Working Time Act 1997 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.

Preliminary Issues:

Preliminary Issues arose as to whether the Adjudication Officer had jurisdiction to hear the complaints under the various pieces of legislation and the 2003 Regulations.

These issues can be broadly categorised into two parts namely:

1.    That the Complainant was ordinarily resident and/or domiciled outside the Republic of Ireland
2.    That the Complainant was not at any stage an Employee of the Respondent in that he was on             .       a contract for service and not a contract of service.

Both parties made extremely extensive submissions, written and verbal, supplemented by copious authorities quoted by both parties in support of their positions.   While I have taken into account all of the submissions, written and verbal, along with all of the authorities quoted what follows is of necessity a brief summary of the parties submissions.

Summary of Respondent’s Submission on Preliminary Issue:                        

The Respondent said the Complainant was engaged as a Regional Claims Manager (RCM).   He was allocated, when he was willing and able, to take on insurance claims, tasked with investigating these claims and providing written reports determining whether to settle, repudiate or refuse claims.   He was assigned the power of delegated authority to settle insurance claims and this power was not curtailed in any manner by the Respondent apart from that under the Service Level Agreement (SLA) of 2012, where the delegated authority was capped as €50,000 and the Respondent said that this did not curtail his activities to any extent as only 1.8% of the claims that he settled during his engagement with the Respondent exceeded that figure, in 98% of cases the Complainant had absolute discretion to deal with and settle cases.

The Respondent said that the within complaints and claims are misconceived and no jurisdiction exists for them to proceed in circumstances where the Complainant was ordinarily resident and/or domiciled outside of the Republic of Ireland, filed his tax returns and paid his social insurance and tax outside of the Republic of Ireland and did not work in the Republic of Ireland at the time of the termination of his engagement.

The Respondent said that in this regard Section 2(3) of the Unfair Dismissals Acts 1977 is of relevance and its application cannot be contested by the Complainant.   The Respondent said that the proportion of work undertaken by the Complainant in the years 2013, 2014 and 2015 shows that 2 out of 65 claims (3.08%) dealt with by the Complainant during that time related to work undertaken in the Republic of Ireland.  

The Respondent quoted from Section 2(3) of the Unfair Dismissals Acts 1977 – 2007 and they said that in effect this endorses the generally recognised principle that an employee cannot seek the protection of the laws in a state as regards a contract preformed performed outside it and they referred to and quoted from Buckley -v- Lee Overlay Partners Limited in that respect.

The Respondent said that there is no evidence of the Complainant being ordinarily resident or domiciled within the State and said it is difficult to anticipate how this can arise in circumstances where in his own initial statement to the WRC the Complainant refers to having spent nearly 20 years working in construction in New York and returning to Northern Ireland.   The Respondent said that domicile has been defined as: “the place in which a person has a fixed and permanent home, and to which, whenever (s)he is absent has the intention of returning to.   It depends on the physical fact of residence in addition to the intention of remaining”.

The Respondent said that in his submissions to the Adjudication Officer in July 2016, the Complainant positively asserts that he is domiciled in Northern Ireland.   At the time of the termination of his engagement the Complainant undertook no work whatsoever in the Republic of Ireland and in fact this had been the case for a number of years in circumstances where he was not qualified to so do by reason of the Minimum Competency Code of 2011.

The Respondent said that in circumstances where the Complainant was not working in the Republic of Ireland at the date of the lodging of his complaints and had not worked there for a number of years, is not ordinarily resident or domiciled within the Republic of Ireland, did not pay any social insurance or tax in this jurisdiction, it was submitted that the complaints should be dismissed as it was asserted that no jurisdiction exists for the complaints to proceed.

It was submitted by the Respondent that the Complainant is not an employee pursuant to a contract of employment.   The Respondent submitted that in such circumstances the complaints under the various Acts and the 2003 Regulations should be dismissed by reason of there being no jurisdiction for the Adjudication Officer/Workplace Relations Commission to determine them.

In relation to the second issue the Respondent said the Complainant asserts that he was heavily controlled and that his duties as an RCM was directed by the Respondent as he was required to submit a report and have regular progress reports, attend case review meetings and telephone consultations on all claims.   The Respondent said this is practically impossible in circumstances where he would have had a considerable number of claims for which he was responsible.   The Respondent said that it is accepted on their part that certain requirements were common to review and monitor the performance of contractors in order to ensure they are receiving the best possible service.   The Respondent said it is common practice, for example, for them to review legal services provided by external sources and other third party contractors and this was/is the same for RCM’s who have very significant autonomy.

The Respondent quoted from the Supreme Court Judgement in the case of Castleisland Cattle Breeding -v- Minister for Social Welfare in support of their position.

The Respondent said that in the submissions of the Complainant he accepted that he had significant authority in the form of delegated authority.   He stated he was given “binding authority (by the Respondent) to investigate, agree settlement or repudiate claims on its behalf” and they said this is correct.   The Respondent submitted details in that respect.   RCM’s were informed that that they could not be overruled and it should be the case that delegated authority applied.   The Respondent said that there were frequent meeting for RCM’s and the attendance at did not attract any payment of fees or expenses - the Respondent said this is very different to an employment relationship.   The Respondent said that in addition the Complainant did not attend staff meetings or training for staff.   Any training he attended at, he was not paid for, and it was generally due to the requirements of the Minimum Competency Code 2011.

The Respondent said that further documentation during the Complainant’s engagement shows him instructing the Respondent to defend in full certain claims, close certain claims, settle such cases at certain levels and generally negotiating with claimant’s and solicitors in an autonomous manner having regard to his delegated authority.   The Respondent referred to emails in relation to certain cases which they said demonstrated the Respondent being kept updated about actions on his part and do not in any way show any supervision or control.   The Respondent said it is a odds with an employment relationship for an employee to instruct his employer when s/he was taking holidays as distinct to requesting could s/he take their holiday at a particular part of the holiday year and the Respondent said that this is further evidence of the self employed nature of the engagement of the Respondent.   The Respondent said that in an email of 23^rd March 2011 the Complainant stated that he “could do business and costs would be no problem” at a particular level; he merely informed a claims co-ordinator of this turn of events and the Respondent said that again this is clear evidence of the autonomy he had, he was acting very much as a sole trader.  

The Respondent said in an email of 29th September 2014, the Complainant negotiated with different insurance companies.   The Respondent said again this was undertaken without any permission or input on the part of the Respondent.

The Respondent said that it is clear from the foregoing that essentially the Complainant was acting in a similar manner to a solicitor or barrister engaged as a contractor to the Respondent and provided his expertise and services.   The Respondent said that in many respects he was acting in the manner of a loss adjuster.   His autonomy was significant.   The autonomy of the Complainant in relation to his work and the lack of imposition on working hours once the case was dealt with are similar to the engagement arrangements in place in the decision of Campbell & Glenn on -v- EBS where the EAT found those claimants who were engaged as financial consultants were not employees.

The Respondent said that the delegated authority and the manner in which it was exercised by the Complainant entirely undermine his assertions that significant control was exercised by the Respondent.   The Respondent said that they were entitled to review the services provided by the Complainant in a manner similar to that of an individual reviewing the work of a plumber or painter.

The Respondent said that it should be noted that audits and compliance checks were undertaken by the Respondent in 2013 where the Complainant was reminded that he was not an employee and insurance, understanding the delegated authority etc. were discussed with the Complainant.   At this time the Complainant raised no issues about his employment status and the first occasion when he raised such a contention was after his engagement had terminated.

The Respondent said that the Complainant’s self-employed status was made clear and not objected to, for example during his initial training, and during certain RCM meetings.   The Respondent said the Complainant refers in his submissions to always understanding he was an employee of the Respondent (and their predecessor).   The Respondent said that the question that arises is why this was never raised with them.   The Respondent said that the Complainant also referred to himself as self-employed in an email to the Respondent and he filed his tax returns.   The Complainant said while the Complainant disputes significantly the SLA’s in his written submissions it is noteworthy that he signed the SLA in July 2013.   The Respondent said that the Complainant signed two further documents demonstrating his subcontractor status, the 1^st July 2013 authorising him to act as a contractor and in July 2015 executed a fitness continuity agreement.   All of this means the Complainant effectively acquiesced in his treatment as a self-employed contractor and cannot now assert this and/or his credibility in respect of this must be seriously questioned and this is only raised following the termination of his engagement.

The Respondent said that in the lengthy submissions submitted by the Complainant it is alleged that there was full mutuality of obligations between them and him as he “worked continuously for (the Respondent and their predecessor) from February 2007 until November 2015, covering about 500 cases on his allocated regional patch, some of which took weeks to sort out, some months and with about 10% ending up in the courts many years later.”   The Respondent said that the Complainant seeks to rely on the course of dealings between the parties to establish mutuality of obligations and on the judgement of the High Court in Barry -v- Minister for Agriculture.   The Respondent said that this contention on the part of the Complainant is misguided and incorrect as a matter of law.   The Respondent said that in Paragraph 50 of the judgement of Mr. Justice Edwards in Barry he referred to the O’Kelly -v- Trust House Forte PLC where ongoing regular engagement between the parties

is not sufficient to establish mutuality of obligations.   The Respondent said that in fact Justice Edwards criticised the Employment Appeals Tribunal in his determination in giving rise to a finding of mutuality of obligations on the basis of there being no evidence in circumstances where it was predicated on a finding that there was an implied agreement reached with the proposed employees to carry to carry out inspection and certification of meat on an ongoing basis.   The Judge noted that there was no ability on the part of the alleged employer in that case to give “a commitment to the respondents at any stage as to the level of work available to him.”   The Respondent said that this is reflected in the SLA in place for the Complainant where there was clear statement that no commitment was given in respect of any particular case or volume of work.   An ongoing relationship between the parties is not sufficient for mutuality of obligations to be established.

The Respondent said that no commitment was given to the to the Complainant about the volume of cases he would be offered; he was not obliged to take any case offered to him; no sanction was applied to him if he chose not to take any cases and the volume of cases given to him over the years varied and this is reflected in the payments made to him during his engagement with the Respondent and details of that were provided.     The Respondent said that the position of RCM’s and their lack of a guarantee of work or control over volumes of work was noted in the decision of the EAT in the case of Cotter -v- Quinn Insurance Ireland.

The Respondent said that the Complainant did not receive any annual leave payments or sick leave pay and rather was only paid for work undertaken.   The Respondent said that clearly the attitude of the Complainant is consistent with being self employed by reason of him merely informing the Respondent of his annual leave and not seeking permission for such leave.   Providing notice of annual leave is not inconsistent with a contract arrangement where it is commonly the case that outside contractors would be required to provide notice of annual leave in order that the principal would be aware when they were not available and the important distinction is that no permission was sought by the Complainant and that he did not receive annual leave payments during this time and these are significantly different factors to an employment relationship.   The Respondent said that crucially at this time the Complainant did not seek payment for periods of annual leave and he was not paid for such periods.

The Respondent said that the Complainant was paid for the claims he completed irrespective of the time invested by him in these claims.   If he did not accept engagements or claims he did not receive any payment, which again is consistent with his self employed status.

The Respondent said that the Complainant alleges that he was subjected to duress in terms of the Service Level Agreement (SLA) and its execution.   He further alleges that he should have been advised to take legal advice and that the SLA’s do not comply with the requirements to exclude employment rights.   The Respondent said that these assertions are fundamentally misconceived and incorrect as a matter of law.   The Respondent said the case law of Thompson -v- County Wexford Education Centre and Hurley -v- Royal Yacht Club are cases that involved severance agreements concerned with the termination of employment.   The Respondent said that there is no requirement for a principal in engaging a contractor on the basis of a self-employed relationship to undertake such an action.

The Respondent said that it has been held in cases such as Hennessy -v- Craigmyle that it is only in exceptional cases that duress could be a relevant factor in employment cases.

The Respondent said a meeting was held with RCM’s in December 2012 at which the Complainant was in attendance.   The SLA of 2012 was explained at this meeting and was provided to him on 7^th December 2012, with other RCM’s   They were not expected to return this document until 21^st December 2012, thereby having time to consider the implications of this on legal advice.     The Respondent said that the Complainant was in receipt of tax advice from an accountant as is evident from his tax return.   The Respondent said that this was not ‘a gun to the head’ situation and the Complainant had decided not to upskill and become a certified insurance practitioner in 2011, so he was able to make decisions that had an effect on his engagement with the Respondent.

The Respondent said the Complainant had willingly executed the SLA and that one was consistent with the terms of his earlier engagement.   He did not return the signed SLA until 30^th July 2013 and he was therefore in a position to consider that document for a period of 8 months.   During that 8 month period the Complainant continued to receive instructions/work as normal from the Respondent.

The Complainant made no attempt to raise any objections with the SLA of 2012 and he signed this on a full, free and unfettered basis almost 8 months after receiving it.   He signed two further documents in 2013 and 2015 extending the SLA, confirming that he was duly authorised as a contractor and continuing with his business arrangements with the Respondent.   He also provided Data Protection documentation to the Respondent in 2013, demonstrating that he was a Data Controller, which is very different to an employment relationship.

The Respondent said the Complainant was self-employed as:

• There was no obligation for instructions/work to be received or provided
• All equipment was to be provided by the Complainant
• There was no holiday pay or sick pay
• The Complainant was entitled to provide other services to other entities
• He was required to provide his own office and equipment

The Complainant mainly worked from home or was out of his home office conducting his services for the Respondent.   The Respondent said that any attendance at their premises was minimal and the Complainant did not have a desk at the Respondent’s premises.

The Complainant also provided his own insurance both in terms of his car used to travel for business purposes and also for his home office from which he operated.   He also provided all other elements necessary to carry out his work, e.g. telephones, postages, parking costs and office cost and did not seek to reclaim any such expenses for these from the Respondent; also the Complainant sought tax reliefs in respect of these expenses.

The Respondent submitted that the Complainant himself was satisfied in the arrangement and circumstances in place with the Respondent both prior to the SLA of 2012 and during that SLA.   He was audited in 2011 by the Respondent and raised no concerns as to his self-employed status and the Respondent submitted that therefore no duress can be said to arise and there is a high burden of proof required on the Complainant to demonstrate this.

The Respondent said the Complainant only asserted he was an employee when he lodged these claims such that his claim to this extent must be questioned in terms of motive and creditability.   The Respondent said that the Complainant was happy to act as a self employed individual and they said this was demonstrated in an email he sent to them on 15^th June 2015 stating he was a “one man band”.   The Respondent said the Complainant was clearly self-employed and he represented this on a number of occasions including in his tax returns, which clearly state that he declares the content of the returns to be correct.   He was not referred to as an employee of the Respondent on his business card and his identification card refers to the Complainant being a contractor and not an employee and in that respect the Respondent quoted from the decision of the Labour Court in Board Gais Eireann -v- McGinley in support of their position.

The Respondent said the High Court in the decision of Mansoor took express account of the fact that that Claimant was in charge of his own tax affairs as being a relevant factor in determining whether he was an employee and they said this is equally the case with the decision in Grand Circle Travel.   In addition in the Bord Gais case the Labour Court took particular account of the tax status of the claimant in that case and decided that it was inconsistent with “the status of an employee to submit V.A.T. returns to the Revenue Commissioners; to be required to submit Tax Clearance Certificates and to offset travelling expenses from tax returns.”   The Respondent also referred to the Supreme Court Decision in Castleisland Cattle Breeding -v- Minister for Social Welfare in support of their position.

The Respondent said the provision of invoices by the Complainant is further evidence of his contractor status.

The Respondent said it is clear that the SLA’s were not ‘sham’ agreements.

The Respondent said the Complainant has failed to demonstrate any reference to his being an employee of the Respondent during his services contract.   He was free to engage substitutes and he could have had assistance in terms of administration.

The Respondent submitted that based on the evidence and facts of the case there was no jurisdiction to hear as the Complainant was/is not an employee of theirs and in addition in circumstances where the Complainant was working outside of the Republic of Ireland and was domiciled in Northern Ireland.

Summary of Complainant’s Submission on Preliminary Issues:

The Complainant was rejecting the submissions made by the Respondent on the preliminary issue and were submitting that the Adjudication Officer had full jurisdiction to hear the complaints under the various pieces of legislation and the 2003 Regulations.

The Complainant said that almost 12 months from service of his complaints/claims with the WRC the Respondent has now raised an issue contesting his right of access to the WRC, based on the fact that he normally resided in Northern Ireland and not in the Republic of Ireland.   The Complainant referred to Clause 6 of the WRC Procedure Code.

The Complainant said the Respondent referred to the case of Buckle -v- Overlay Partners Limited [UD 1509/2003], but said that case is quite different from his as:

(a)    That claimant was a founding member of that respondent company

(b)   While that Company was based in Dublin, the senior staff and partners, including that claimant, were employed and paid by a different named Isle of Man registered Company.   That claimant’s contract of employment stated his employment contract would be at all times governed by Isle of Man law.   That claimant never lived in Ireland but visited a few dozen times a year.   That claimant initially lodged his claim in the Isle of Man switched his claim to the Republic of Ireland on the basis of some dubious legal advice.   The Respondent said that the effect of European Law, and specifically Brussels 1 Regulation, does not appear to have been raised or argued by either side in this case, probably because the Isle of Man is not part of the EU.   So, along with the Isle of Man Law being stipulated in the employment contract, which in turn was with an Isle of Man registered and based Company and that claimant as a founding partner, playing an active role in the employment contract arrangements, these circumstances render the cases value as a precedent as virtually nil in relation to jurisdiction in this case.

The Complainant said that he is an Irish citizen and it was in the Cavan HQ Offices of the Respondent he was interviewed and appointed to the position of RCM in 2007 having responded to a job advertisement in an Irish Paper.   The Respondent has its registered HQ in Cavan and it was from this office that the Complainant had regular case review/progress and received instruction from his management and it was to those same offices that he submitted all his interim and final reports on insurance claims.   All the Complainant’s pay arrangements were made, managed and issued from the Republic of Ireland.   All of the Complainant’s line managers and senior managers were either based in Cavan or Dublin.

The Complainant said that the key elements of his employment contract occurred when he was instructed on cases, when he submitted his reports to HQ and when he was paid and all of these were done in the Republic of Ireland and therefore WRC jurisdiction follow those key facts in the Republic of Ireland.

The Complainant said that it is ludicrous for the Respondent, having required him to sign a Republic of Ireland Region SLA that specified Irish Law and Irish Courts, to try to deny him access to an effective legal remedy.

The Complainant said that Section 17.1 of the SLA dated 7^th December 2012, drafted solely by the Respondent imposed by duress on him provides that:

“this agreement shall be governed by and construed and enforced in all respects in accordance with the law of the Republic of Ireland.   Section 17.2 of this SLA clearly states “each party irrevocably agrees that the courts of the Republic of Ireland shall have exclusive jurisdiction to settle any dispute re claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).”

The Complainant said that he has asked the Adjudicator to set aside the SLA insofar as it purports to subvert and replace his employment contract of service.   However Section 19 of this SLA provides for severance of the terms and provisions and states: “if any term or provision of this agreement shall in whole or in part be held to any extent to be invalid or unenforceable under any enactment or rule of law, such invalidity or unenforceability shall not affect the other provisions of this agreement which shall remain in force and effect.”   The Complainant said that therefore they are requesting the Adjudicator to uphold the jurisdiction provisions and Article 17.1 and 17.2 regarding Irish Law and jurisdiction, using the severance provision of Section 19 while ruling as null and void all the ‘codology’ clauses about absolute autonomy, subcontracting, substitution, no instructions, whatever hours suits etc.

The Complainant said that as this is a Respondent drafted document, imposed by duress, the “Contra Proferentem” Legal Rule, whereby a legal document should in all cases where possible be interpreted against the draughtsperson and in favour of the person on whom it was imposed, fully supports this approach.   The Complainant said that accordingly in construing this SLA and any related documents the benefit of any interpretation should be to him on whom the document was imposed and against the party who drafted the document, the Respondent – they said that this rule should be robustly applied in this case.  

The Complainant said that the Brussels 1 Recast Regulations commenced in Ireland on 10^th January 2015 are both: “directly applicable and binding” (Clause 6 of the preamble)   Article 21.1(a) clearly states that, on individual contracts of employment “an employee domiciled in a member state may be sued in the courts of the member state in which he is domiciled”.

The Complainant said under Article 26.1 of the Brussels 1 Recast Regulations, a Court of a member state, before which a defendant enters an appearance, shall have jurisdiction.   The Complainant said this article alone, especially when read with the WRC 21 day requirement would rule out this geographical jurisdiction issue being raised 12 months after service of claim with the WRC.

The Complainant said that the jurisdiction of a specialist employment court, such as the EAT, the Labour Court, the Rights Commissioners and Adjudicators was considered by the EU Court when the IMPACT trade union took a case against the Minister for Agriculture and Food [EUECJ C.268/6] in which it was held;

“Community Law, in particular the principle of effectiveness required that a specialist court which is called upon ….. to hear a claim based on an infringement of that legislation must also have jurisdiction to hear an applicant’s claim arising directly from the directive itself…….”  

The Complainant said the binding principle of EU Law must, under any consideration, apply to Regulation EU 1215/2012 which is “directly applicable and binding”.

The Complainant referred to and quoted from the case of Deferene -v- Sabena [EU ECJ C-4375] and they said that from this is quite clear that notwithstanding anything in the Unfair Dismissals Act 1977, superior EU Law must hold sway and thus the WRC has full jurisdiction to hear the case.

The Complainant said that his main area of operation (90% +) was commercial claims with solicitors involved and with occasional household and motor claims.   He said it is clear that he had to get instruction and pre-clearance on all these claims (extensive detail submitted).

The Complainant said that the specific managers, controllers assigned by the Respondent to manage RCM’s and their claims gave the specific instruction in CPR in relation when, what and how to carry out the claim investigation and the specific powers specified in the SLA together with the emails and letter submitted to the hearings all confirm beyond all doubt that the Respondent exercised control over RCM’s and their claims.

The Complainant said that is his case the very detailed control of work to be done and the manner and timing in which it was required to be done was specified in the Claim Instruction, Notification and Progress Report and in addition, the SLA itself provided that:

“Clause 6.1   The service provider contractor shall accept instructions and carry out services with reasonable skill, care and diligence and all material respects in accordance with the Service Level Agreement and the terms therein.”

The Complainant said that in practice he, as well as submitting a report on each claim after 24 hours, 4 days and 11 days had regular progress report/case review meeting and telephone consultations on virtually all claims and was under the control of and accountable to management of the Respondent, the names of those managers with whom these meetings/consultations were with was submitted to the Hearing.

The Complainant said that completion of the Claims Notification Progress Report and Final Report documents is a mandatory requirement of the SLA and is thereby incorporated into the SLA and this fully contradicts clauses 3.1 to 3.8, clause 12 and the SLA as a whole.

The Complainant said that in fact the Respondent has a RCM Manager, specifically to control and manage RCMs.

The Complainant said that therefore it is clear that there are serious internal contradictions within the SLA itself, between some of the clauses in the SLA and the Case Instruction Report Form and between the SLA and the daily worked reality by both RCM’s and the Respondent.

The Complainant said that for the same reasons as those set out in the Narich case it was submitted that the SLA is self-contradictory and must be set aside as void.

The Complainant said that the cut and paste ‘codology’ clauses in the 2012 SLA are totally contradicted by all these documents and by the daily reality as worked by the RCMs and the Respondent.

The Complainant responded in great detail to the authorities and cases referred to by the Respondent.

The Complainant in referring to the question of mutuality of obligations referred to a number of cases and stated that his case was different to some of the ones referred to by the Respondent for stated reasons.

The Complainant said that it is abundantly clear that there is no doubt but that there was a full mutuality of obligations between him and the Respondent, as he worked continuously for the Respondent from February 2007 until November 2015, covering about 500 cases, on his allocated regional patch, some of which took weeks to sort out, some months and some years, with approximately 10% ending up in court many years later.   At all relevant time during this 9 year period the Complainant always had a caseload of chronologically overlapping claims at various stages of investigation and settlement.   The Complainant said that by any measure, this constitutes a mutuality of obligations and course of dealing amounting to an employment contract of service.

The Complainant said that in December 2012, when the SLA emerged from the Respondent, he had already completed more than 7 years service.   He said that RCM’s got 3 letters in Decembers 2012, 7^th, 14^th and 21^st December requiring signature of the SLA under pain of effective dismissal.   He said that in his case a possibility of a SLA specific to Northern Ireland arose; however that option petered out and pressure again came on him to sign the SLA, which he did at end of July 2013 (some 7 months later).   The Complainant said he was left in no doubt that he must sign it and that it is ludicrous for the Respondent to deny this, having regard to the content and tone of the emails sent to the RCM’s.   He said there were specific threats of no work no pay in emails 7th, 14^th and 21^st December 2012. He said the SLA, on its front cover makes it clear that he is part of the Respondent’s Republic of Ireland Region and it make it absolutely clear that the Courts and Laws of the Republic of Ireland apply to all aspects of the SLA and its making.   He said that the SLA at clauses 9.4.7 and 9.4.8 makes it clear that the content and very existence of the SLA is confidential and that he is therefore debarred from getting independent legal advice or independent advice from any source.

The Complainant said that he was an employee of the Respondent and its immediate predecessor and submitted he is entitled to have his employment rights complaints heard and his employment rights vindicated

Findings and Decisions:                                                                                    

Preliminary Issues:

I wish to confirm that I have carefully considered all of the extremely extensive submissions made by both parties, both written and verbal and supplemented by copious authorities quoted by both parties in support of their positions and I have fully taken them into account in arriving at findings, conclusions and decisions.

As already stated the preliminary issues can be categorises into two parts and my finding and decision in relation to those two parts are as follows:

1.    That the Complainant was ordinarily resident and/or domiciled outside the Republic of Ireland The Respondent quoted from and relied upon Section 2(3) of the Unfair Dismissals Act 1977 in support of their position that based on the fact that the Complainant lives and is domiciled in Northern Ireland and that only 3% of the Complainant’s work was undertaken in the Republic of Ireland.   They were submitting that there is a generally recognised principle that an employee cannot seek the protection of the laws in a state as regards a contract performed outside it.

Section 2(3) of the Unfair Dismissals Act 1977 states:

“(a)   This Act shall not apply in relation to the dismissal of an employee who, under the relevant contract of employment, ordinarily worked outside the State unless—

(i)      he was ordinarily resident in the state during the term of the contract, or

(j)     he was domiciled in the state during the term of the contract, and the employer—

(I)                 in the case the employer was an individual, was ordinarily resident in the State, during the term of the contract, or

(II)               in the case the employer was a body corporate or an incorporated body of persons, had its principal place of business in the State during the term of the contract.

(b)    In this subsection “term of the contract” means the whole of the period from the time of the commencement of work under the contract to the time of the relevant dismissal.”

There can be no doubt that this would appear to exclude the Complainant from the protections of the Unfair Dismissals Act 1977.   However the Respondent does not take into account developments in (Labour) Law since the 1977 Act (nor indeed does that Section of the 1977 Act suggest that a complainant is excluded from the provisions of the other legislation and regulations under which the Complaint has submitted complaints).

In particular the Respondent has not taken account of the Recast Brussels Regulations (EU) 1215/2012 (the Recast Regulations) that came into effect on 10^th January 2015.   The purpose of the Recast Regulations is that parties to a contract should have autonomy to agree on which court jurisdiction will be conferred.   However the Recast Regulations sets down rules for matters relating to employment contracts.   They state an employee may sue an employer domiciled in a Member State in the courts of the Member State where (a) the employee habitually carries out her or his work, or (b) the business which engages the employee is or was situated.   I note that these rules may only be departed from where the parties to the employment contract agree in writing to submit to the jurisdiction of the courts of a particular Member State and the agreement (a) was entered into after the dispute commenced or (b) allows that employee to bring proceedings in the courts of a different jurisdiction to that specified.

Plainly the Recast Regulations, take precedence over the Section of the 1977 Act relied upon by the Respondent, as they were enacted (long) after the Section of the 1997 Act relied upon by the Respondent and as European Regulations are binding on all member states they take precedence over domestic law.

There is no dispute that the business of the Respondent was and is situated in the Republic of Ireland.   I further note that it is not in dispute that the Complainant and the Respondent did not agree in writing (or otherwise) to submit to the jurisdiction of the Courts of a particular Member State after the dispute commenced.   Indeed the fact is that the agreement in writing between the parties specifically stipulates that any dispute will be dealt with in the Republic of Ireland.

Based on the foregoing I find, decide and declare that the Complainant is not prohibited or estopped by the provisions of Section 2(3) of the Unfair Dismissals Act 1977 from having his complaints under the 4 Acts and the 2003 Regulations heard and adjudicated upon and the Respondent’s submissions in that respect are rejected by me.    

2. That the Complainant was not at any stage an Employee of the Respondent in that he was on a contract for service and not a contract of service.                                                                                                I have carefully considered the evidence and the submissions and I have concluded as follows.

The Complainant contends that he was an employee of the Respondent and the Respondent contends that at all relevant times the Complainant was engaged as an independent contractor providing services to the Respondent.

Accordingly the second preliminary issue before me is whether the Complainant undertook work for the Respondent under a Contract of Service or a Contract for Service.

Whether or not the Complainant was retained under a Contract of Services or a Contract for Services depends on the totality of the contractual relationship between the parties, whether express or implied and whether or not the contractual relationship changed during the course of dealing between the parties.

The Complainant submits that he was placed under extreme duress in terms of the signing / execution of the 2012 SLA – he said that it was a ‘gun to the head’ situation where he would lose all work and pay if he did not sign and execute that SLA.   I cannot accept that, as that SLA was presented to the Complainant on 17^th December 2012 and was not signed or executed by him until more than 7 months later on 30^th July 2013, yet he suffered no adverse consequences in the intervening 7 months, continuing to receive the same level of work as previously.   In addition I note that this SLA was not substantially different to the previous ones and was certainly no different in relation to his employment status.

In reaching my conclusions I have had regard to the various non-definitive tests which the Courts have identified as being of assistance in determining the true nature of the working relationship between the parties, together with all relevant considerations, including mutuality of obligations and which arise from the particular facts and circumstances.

In this case the proposal of the Respondent (and their immediate predecessor) was that the Complaint would undertake work as a Regional Claims Manager tasked with investigating insurance claims and providing written reports determining whether to settle, repudiate or refuse claims under the terms of Service Level Agreements (SLA’s).   He was allocated with this work and was assigned delegated authority when performing these tasks and he was only paid an agreed fee when he completed each insurance claim.

The Complainant was provided with and signed a number of these SLA’s in which he is clearly described as a contractor/self-employed.

The Complainant was not on the Respondent’s payroll, but rather presented invoices for payment on a regular basis.

The Complainant was registered as self-employed and charged for and paid VAT

The Complainant was only paid for cases/claims he completed.   He accepted, unlike employees of the Respondent, that he did not receive holiday pay, sick pay and was not a member of the Employee Pension Scheme.   He did not pay PRSI and he was assessed and taxed as self-employed and claimed and obtained tax reliefs in that respect.

The Complainant did not have access to the Respondent’s internal email system in the same way that employees of the Respondent did.

The Complaint did not have office space, a desk or telephone lines in the Respondent’s Premises and on the odd occasion that he attended there for meetings was not paid in that respect.

The Complainant had his own office in his home, the running of which he claimed tax reliefs for.

The Complainant retained significant autonomy in relation to timing of his work, his conduct of meeting with customers and his own itinerary and there was no restrictions placed on the Complainant in relation to working hours.

The Complainant could profit from completing his cases expeditiously.

In my view these are matters not inconsistent with the Complainant’s status as an independent contractor, providing a specific service to the Respondent.

I have also considered the question of mutuality of obligations, where a work provider is obliged to provide employment and there is a corresponding obligation on the worker to accept and carry out the work.   Based on the evidence I am not satisfied that there was such a mutuality of obligations.    I am satisfied that the Complainant could, if he so desired, decline to accept any individual insurance case or claim offered to him without and particular adverse consequences to him.   In addition I note that there were no insurance claims available to the Complainant due to internal factors and the position in the insurance industry for a number of months and he was not redeployed to other sections of the Company as would occur with employees of the Respondent.

I have taken all relevant factors into consideration in reaching my conclusion that true nature of the working relationship between the parties was that the Complainant was an independent contractor and not an employee of the Respondent - accordingly the Complainant is not covered or comprehended by the provisions of the 4 Acts and the 2003 Regulations.

Sections 80 and 41 of the Workplace Relations Act 2015 require that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Act 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with Section 7 of that Act.

Section 7 of the Terms of Employment (Information) Act 1994 requires that I make a decision on the complaints consisting of redress consisting of redress in accordance with the same Section of the 1994 Act.

Section 6 of the Payment of Wages Act 1991 requires that I make a decision on the complaint consisting of redress in accordance with the same Section of the 1991 Act.

Regulation 10 of S.I. No. 131 of 2003 European Communities (Protection) of Employees on Transfer of Undertakings) Regulations 2003 requires that I make a decision on the complaint consisting of redress in accordance with the same Regulation of the 2003 Regulations.

Section 27 of the Organisation of Working Time Act 1997 requires that I make a decision on the complaints consisting of redress in accordance with the same Section of the 1997 Act.

Based on the findings and decisions above the following are my decisions in relation to the complaints under each of the 4 Acts and the 2003 Regulations.

Unfair Dismissals Act 1977: CA-00001086-001:                                                                                   . Based on the above findings and decisions the Complainant was not an employee of the Respondent at the relevant times, accordingly I must find and declare that the complaint under 1977 Act is not well founded, it is rejected and it is not upheld.

Terms of Employment (Information) Act 1994:   CA-00001086-002 and CA-00003514-002.               . Based on the above findings and decisions the Complainant was not an employee of the Respondent at the relevant times, accordingly I must find and declare that the complaints under the 1994 Act are not well founded, they are not rejected and they are not upheld.

Payment of Wages Act 1991: CA-00001086:                                                                                           . Based on the above findings and decision the Complainant was not an employee of the Respondent at the relevant times, accordingly I must find and declare that the complaints under the 1991 Act are not well founded, they are rejected and they are not upheld.

European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003:                                                                                                                                             . Based on the above findings and decisions the Complainant was not an employee of the Respondent at the relevant times, accordingly I must find and declare that the complaints under the 2003 Regulations are not well founded, they are rejected and they are not upheld.

Organisation of Working Time Act 1997: CA-00003514-001:                                                                    . Based on the above findings and decisions the Complainant was not an employee of the Respondent at the relevant times, accordingly I must find and declare that the complaints under the 1997 Act are not well founded, they are rejected and they are not upheld.

Sean Reilly, Adjudication Officer.  

Dated:   12^th April 2017