ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003973

Complaints and Dispute for Resolution:

Date of Adjudication Hearing: 08/11/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 , Regulation 18 of the European communities ( Road Transport)Organisation of Working Time of Persons Performing Mobile Road Transport Activities )Regulations 2012,Section 27 of the Organisation of Working Time Act, 1997 and Section 13 of the Industrial Relations Act 1969, following the referral of the complaints and dispute to me by the Director General, I inquired into the complaints and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and dispute.

Complainant’s Submission and Presentation:

The complainant raised a preliminary issue concerning the complaint lodged with WRC on 20 June, 2016. The first complaint lodged was intended as referring to the Terms of Employment (Information) Act, 1994 and not the EC Regulations of 2012.The Dispute was referred under the Industrial Relations Act, 1969 and not 1946.

The complainant commenced work as an Independent Contractor on 31 October 2015 .She worked a 40 hour week for €2,500 gross per month .Her contract was due to run from 31 October 2015 to 30 October 2016 .The complainant was not paid by the company after 18 May 2016 and sustained a loss of €11,250.

The complainant contended that her “self employment” was bogus and was denied payment for annual leave, public holidays and the provision of PRSI payments from the respondent.

The complainant acknowledged that the claims under Terms of Employment and Organisation of Working Time Acts did not fit neatly into the maze of her employment status and submitted her claims under the IR Act 1969 for Adjudication.

When the complainant applied for the job, she was of a view that she would be an “employee” However; she was presented with a document which suggested that she was a “self employee contractor”. Her work was no different to direct employees of the company .She worked under the direction and control of a Supervisor. She was obliged to request time off and request annual leave, which was unpaid .She, was not permitted to work on public holidays .She was not permitted to work either from home or at the weekends.

On April, 6, 2016, the complainant was faced with an accusation that she had downloaded a movie at work; contrary to the rules of her employer .The complainant disputed a purported admission that she had downloaded the movie and she was dismissed.

The complainant acknowledged that she did not have the statutory service requirement to take an action for Unfair Dismissal .Her case is that she was

1 Denied written terms of employment

2 Denied annual leave, public holidays and PRSI payments by her employer

3 At a loss for this treatment and sought compensation.

The complainant told the hearing that she heard about the position from a friend. She applied on line and attended an interview .She signed a “self –employment “contract of employment .She had lodge a complaint with the Dept. of Social Protection SCOPE section contesting the self employed status.

She understood that she was a good fit for the position as she had local knowledge of France which was required for the position .Three of her colleagues had contracts which permitted them 5 weeks holidays . There were five people on the French Team.

The complainant contended that she was treated as an employee and the reason wasn’t clear to her why she was actually self employed. She did not discuss this within the company as she did not want to rock the boat .She had not read the staff handbook for contractors’ .She did not have opportunities for training.

During cross examination, the complainant confirmed that she had read the contract she received and invoiced the company for €128.00 per day on the last Friday of every month. She was addressing her own tax liabilities. She was aware that colleagues who required work permits were permitted employee status.

Respondent’s Submission and Presentation:

1. CA-00005372-001:

Regulation 18 of the European communities (Road Transport) Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012

1 .The Respondent rejected the claim made under, Regulation 18 of the European communities (Road Transport) Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 stating that it was misguided. The respondent did not accept that the complainant was an employee and without prejudice to that contention, the respondent submitted that the complainant was never required to perform mobile road transport activities .The respondent submitted at hearing that the claim for redress under the Terms of Employment Act was out of time.

2 CA-00005372-002

Section 27 of the Organisation of Working Time Act, 1997

2 The respondent rejected the claim as they did not accept that the complainant had employee status from October, 2015. The respondent submitted that the complainant was engaged by the respondent as an Independent Contractor by agreement on 31 October ,2015 with an effective period until 30 September, 2016.Details of the contract were submitted .She had no entitlement to the provisions of the Act .

The complainant was engaged by the respondent to be part of a Project, where she was seconded to an associate employer .Her contract was terminated on 19 May 2016 for breach of policy by downloading /streaming software to view a movie on her work lap top .It was the respondent’s position that the complainant admitted the breach of policy.

3 CA-00005372-003 Section 13 of the Industrial Relations Act 1969

The respondent rejected both the complaint and the complainant’s contention that she was an employee. The respondent submitted that no detail had been furnished in relation to a Trade Dispute and if the complainant contended employment, she should have submitted a claim under the Terms of Employment (Information) Act 1994. The respondent further contended that a claim for annual leave, public holidays and social welfare contributions did not form part of a trade dispute as provided for under the Act.

Decision and Recommendation .

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints and dispute in accordance with the relevant redress provisions under Schedule 6 of that Act. Regulation 18 of the European communities ( Road Transport)Organisation of Working Time of Persons Performing Mobile Road Transport Activities )Regulations 2012,Section 27 of the Organisation of Working Time Act, 1997 require me to make a decision in the case and Section 13 of the Industrial Relations Act 1969,requires me to make a recommendation .

Preliminary Issue: Determination of Employment Status

I have returned to and examined the complaint lodged with the WRC on 20 June, 2016 by the complainant’s representatives .The complaint clearly refers to statutory employment records and was acknowledged as such by the WRC. It stood uncorrected until the day of hearing some 5 months later .In order for me to address this claim, in the first instance; I have to be satisfied that the complainant has the locus standi to maintain her claim as an employee of the respondent company.

The complainant is one of a number of claimants who were based at the respondent company in 2015/2016. At the hearing, the complainant submitted a copy of WRC decision in the case of ADJ 4297 dated 28 October, 2016 and sought application of the precedent contained in this decision /recommendation, given that they were both simultaneously employed by the same respondent, albeit on different teams.

There is a variant in the two cases. The complainant in the instant case was not offered a contract of service by the respondent as the preparatory work on the offer of contracts of employment was not completed at the time of her termination of contract in May 2016. I must , therefore examine this case incorporating the period of time 31 October 2015-19 May 2016 , a period of 6.5 months .

The respondent helpfully submitted copies of both the Contractor Handbook and The Employee Handbook in support of their submission. I reviewed both documents to assist in the decision making in this case. I found the 21 July 2016 employee handbook to be a more sophisticated version of the contractor handbook.

A careful examination of the complainant’s contract as submitted by the respondent recorded joint signatures on behalf of the parties dated the last week of August 2015, some two months before she commenced employment .It was clear for all to see that this was a contract for an Independent contractor.

I note the date of January 2013 inserted on the contractor handbook .There is no discernible reference to this handbook in the contract for service dated August 2015. The handbook reads more like an employee handbook in terms of

1. Direction to accept the policies of a company in the case of secondment.

2. Disciplinary Procedures

3. Medical Certification ,recourse to company doctor , prior approval to attend doctor

4. Gross Misconduct

5. Dismissal

These references are at variance with the contract for service, which limits the working relationship to a mere invoice to be submitted once monthly.

I accept the complainant’s contention that her working life did not differ from her directly employed colleagues on the French team and I accept that the respondent was advancing plans to recast the contractor workforce to a direct employee workforce shortly before the complainant left her job.

Therefore, there is a considerable overlap in this case with ADJ 4297, which I heard previously .I am slightly surprised that the SCOPE investigation which was anticipated by the complainant to be finalised shortly after the hearing in November, 2016 has not crystallised into a supplementary submission on behalf of the parties. Nonetheless, I have made my decision based on the evidence adduced by the parties who attended before me and the precedent in part within ADJ 4297. I am again struck by the differential in the approach of the company towards prospective employees requiring work permits to join the respondent and the EU citizens.

I find that the complainant is entitled to succeed in her claim to be recognised as an employee of the respondent company from her commencement date of 31 October 2015-19 May 2016 .

1. Regulation 18 of the European communities ( Road Transport)Organisation of Working Time of Persons Performing Mobile Road Transport Activities )Regulations 2012

I have examined the text of the complaint made on behalf of the complainant and find that it refers to a claim that her self employment was bogus. While I appreciate that the form is not limited by statutory status, I find that the respondent in this case was not on notice of the claim under the Terms of Employment (Information) Act, 1994. Nonetheless, I am directed by the provisions of Section 41(6) of the Workplace Relations Act, 2015

1. (6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The complaint was lodged on 20 June, 2016; I must dismiss this claim as being out of time.

1. CA-00005372-002 Section 27 of the Organisation of Working Time Act, 1997

I have inquired into this complaint and note that the complainant did not receive payment for annual leave or public holidays during the course of her employment with the respondent .The question of PRSI payments is properly before the SCOPE section of the Dept. of Social Protection .

I am to refer again to the limitations of Section 41(6) of the Workplace Relations Act 2015 for my decision.

1. (6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The complaint was lodged on 20 June, 2016; I must dismiss this claim as being out of time.

1. CA-00005372-003 Industrial Relations Act Recommendation

I accept that there was a clerical error on the complaint form which should have inserted reference to the Industrial Relations Act, 1969.

I am satisfied that there was a dispute between the parties on determination of the claimants’ employees status in relation to contract for v contract of service .Given that I have found in favour of the claimant’s employee status in the Preliminary section of my report, I must now conclude my investigation into the dispute and make a recommendation to the parties.

The claimant submitted that I should give consideration to the loss of €11,250 sustained by the claimant in the interruption in her contract for service in May 2016. No evidence was adduced by the parties into the circumstances that surrounded these events bar a mutual reference to a video being played at work and most importantly it was not incorporated in the submission of the dispute on June 20, 2016. I cannot find merit in this part of the dispute.

Neither can I accept that the claim under the IR Acts be permitted to be “ catch all claim” for earlier unsuccessful claims .That would be both unfair and unreasonable with a potential to vex the respondent position.

However, I am mindful that I have established that the claimant can safely be regarded as an employee from the outset of her employment and I find that there is merit in that part of the dispute .I find that the claimant was treated unfairly and inequitably by the respondent in determining her employment as an Independent contractor rather than an employee during the operation of the contract and thus denying her the protections of an employee. ADJ 4297 considered.

I recommend that the respondent pay the complainant €1,000.00 euro in compensation for this treatment.

Dated:   05/04/2017