ADJUDICATION OFFICER DECISION and RECOMMENDATION

Adjudication Reference: ADJ-00005590

Parties:

	Complainant	Respondent
Anonymised Parties	Maps Data Analyst	A Tech Company

Representatives

Noel Murphy IWU

Sophie Crosbie IBEC

Complaints and Dispute for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00007516-001	10/10/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00007516-002	10/10/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00007516-003	10/10/2016

Date of Adjudication Hearing: 01/03/2017

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Location of Hearing: Radisson Blu Hotel Cork

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 7 of the Terms of Employment (Information) Act, 1994, Section 8 of the Unfair Dismissals Acts, 1977-2015 and Section 13 of the Industrial Relations Acts 1946 – 2015, 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.

Background:

The complainant is a Croatian national who worked as a Maps Data Analyst on a contract for service basis with the Respondent Company from 7 November 2013 to 3 June 2016 when his employment was terminated. He worked a 40 hour week and received €2,500 per month .This complaint was lodged with the WRC on 10 October, 2016 and referred to:

1 The complainant stated that he was an employee of the company and not a Contractor .He sought written terms of employment.

2 The complainant sought payment for annual leave and public holidays.

3 The complainant submitted that he had been unfairly dismissed and sought the remedy of compensation.

Summary of Respondent’s Case:

The respondent submitted that the complainant had entered into a written agreement on a “Contract for Service “basis to provide services for a defined period from 7 November 2013 until 30 September, 2016 .The respondent disputed all three claims.

As a Croatian Native speaker, the complainant was assigned to work on the Croatian market at an associate company. He was one of four Croatian team members.

In or around November 2015, the Croatian market began to wind down and each day, the amount of work assigned to the Croatian market was becoming increasingly limited. This was reduced to almost 1 hour per day and the Croatian Team members were assigned to assist some of the English speaking teams to fill their working day.

On May 6, 2016, the complainant was informed that the Respondent client, the associate company, had no further requirement for the services of the Croatian Team .The complainant was given four weeks pay in accordance with the “notice clause “on the foundation agreement and his employment was terminated .The complainant signed an acceptance for these terms on the day and did not raise a grievance or objection to the decision taken by the respondent.

On 20 July, 2016, the respondent received a claim fro the complainant, wherein, he submitted that he was now an employee seeking re-instatement.

1 Terms of Employment (Information) Act, 1994

The respondent identified the complainant as a self employed contractor from the outset and ha issued a commensurate contract for service, signed by the company on 3 March 2015 and by the complainant on 12 March 2015.

The respondent contended that the instant claim was out of time; relying on HSE V John Mc Dermott IEHC 331.The respondent argued that the claim referred to an alleged contravention linked to October 2013, which was outside the statutory time limit.

The respondent submitted that the written statement given to the complainant incorporated most of the aspects of Section 3 of the Act, adding that the complainant had not suffered a detriment as a result.

2 Industrial Relations Claim:

The respondent submitted that the complainant had worked as a Contractor for 2.5 years and during that time, he had not raised the claim for employee status .The respondent accepted that the claim was linked to other former contractors at the company and submitted that the Adjudicator should decide on employment status .The respondent disputed liability for annual leave.

3 Unfair Dismissals Act 1977-2015.

The respondent submitted that the respondent had adopted a tacit acceptance of the complainants ‘status as an employee.

The respondent submitted that notwithstanding this tacit acceptance of the complainants employment status, the termination of the complainants employment arose as a direct consequence of a decision taken by the key client (associate company) to dispense with the entire Croatian team .The respondent sought to rely on the exclusion clause provided in Section 6(4) (c) that redundancy was wholly responsible for the decision to dismiss the complainant.

There was no dispute between the parties that a genuine redundancy had occurred. The respondent understood that the company acted in accordance to the “live “contractors agreement held by the complainant. The company also offered 7 out of the 11 workers affected paid flights to their home country .The entire Croatian Team was disbanded and there was no further work available to the complainant. The company hired some staff post the termination, but none for the Croatian market.

The respondent contended that the company had behaved in a reasonable manner in relation to the termination of the complainants employment on May 6, 2016 in accordance with Section 6(7) of the Act .The respondent found it very difficult to now look back and apply the maxims of a contract of service . Consultation had predated the departure date of 3 June 2016.

Summary of Complainant’s Case:

The complainant lodged a complaint and Dispute with the WRC on 10 October 2016.

1 Terms of Employment

The complainant understood that he was to start his working life with the respondent on 7 November, 2013 as a direct employee. He contended that he was actually an employee and not a contractor .He submitted evidence of supporting documentation in support of this view .He submitted that he had not received written terms of employment in accordance with section 3 of the Act.

The complainant ceased work on 3 June 2016. He had received a contract for service.

2 Industrial Relations Dispute :

The complainant sought payment for Annual Leave and Public Holidays for time spent as an employee with the respondent.

3 Unfair Dismissal

The complainant submitted that he was directly employed by the company and disputed his contractor status .Initially; he submitted that he had worked on Croatian and English Language Projects at the associate company and his service was sufficient grounds for his retention .He contended that he had been Unfairly Dismissed.

During the course of the hearing, the complainant considered the respondents alignment to a description of redundancy in his case and was keen to accept an offer of redundancy .The complainant submitted the decision on the complainant’s employee status to the Adjudicator.

Findings and Conclusions:

Preliminary Issue of Determination of Contractual Status :

I have considered the submissions made by both parties. I have considered the documentation submitted by the parties. I found that there was no real dispute between the parties on the categorisation of the complainant from the “lens of March 1, 2017”. This was marked by the “tacit acceptance” of employee status demonstrated by the respondent.

The respondent was aggrieved that that the matter was not addressed during the life time of the contract for service. The complainant was clear in his submitted alignment to a contract of service.

Based on the evidence before me, I find that the complainant is entitled to be considered an employee of the respondent from 7 November 2013.

Unfair Dismissal Claim :

Section 7(2) of the Redundancy Payments Acts 1967 (as amended) defines redundancy based on 5 grounds. Impersonality and Change run through all five grounds.

Section 7 (2)( b) provides :

The fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish.

Section 7(2)( c ) provides that :

(c) The fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee has been employed –to be done by other employees or otherwise.

I accept that it is difficult to retrospectively analyse an employment relationship cast as a contractor which became an employee. In the case of a contractor, there is no statutory protection against termination of service outside what is provided in a contract for service.

In the case of an employee, providing, for the most part, certain criteria of service/category are met, protections are available against Unfair Dismissal.

The complainant did not dispute that he understood that he had been made redundant in June 2016. I find that the respondent has demonstrated a substantial ground in justifying the dismissal under Section 6(4) (c) of the Unfair Dismissals Act.

The complainant did not advance any evidence on circumstances to be considered under Section 6(3) of the Act. The respondent detailed a summary of the approach adopted by the company in managing the termination and this was not disputed by the complainant.

While, I can understand that the complainant was surprised to be met with a notice of dismissal on 6 May, 2016, It is clear to me that the general threat of a redundancy situation had been flagged over the intervening months when the time spent by the complainant on his home market was diminished to 1 hr per day. 11 workers received notice of cessation on 6 May, 2016. The situation was complicated due to lack of certainty in relation to an agreed definition of employment status directed by the “ lens of hindsight “

I find that a genuine Redundancy situation existed at the respondent company on May 6, 2016 and the Complainant was not unfairly dismissed.

Decision:

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

Terms of Employment (Information) Act, 1994 .CA-00007516-001

I have considered the party’s presentations in this regard .I find that the complaint is outside the statutory time frame provided in Section 41(6) of the Workplace Relations Act, 2015. The complainant received a contract for service incorporating Independent contractor status dated 30 October, 2013. It did seem that there was an undue delay in the complainant receiving his agreement as a Contractor, but I cannot find that he suffered a detriment in this regard .I find that the complaint is not well founded.

Unfair Dismissals Act, 1977 CA-00007516-002

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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 the 1977 Act.

I have found that the Complainant could be readily identifiable as an employee of the respondent from November 7 , 2013 – June 3, 2016; However, I have found that he was not unfairly dismissed.

Recommendation: CA-00007516-002

Section 13 of the Industrial Relations Acts, 1946 – 2015 requires that I make a recommendation in relation to the dispute.]

I have considered the parties submissions in this case and I do not find the claim to be well founded. Claims for annual leave are encompassed in the Organisation of Working Time Act, 1997 and claims should be submitted in accordance with the statutory time limits in this regard .I was not provided with details of an expansion of this claim.

Dated: 24^th April 2017

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Key Words:

Terms of Employment, Contract For/ Of Service, Unfair Dismissal.