ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00006710

Parties:

Complaint(s):

Date of Adjudication Hearing: 04/08/2017

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Summary of Complainant’s Case:

The Complainant worked for the Respondent Company from April 2002 to 28^th September 2016 in one of the Company’s Nursing Home (Nursing Home A) and until 31^st October 2016 in another Nursing Home (Nursing Home B). The Complainant provided a prayer and music service in the Nursing Homes and was paid €130 per week and was paid by electronic funds transfer into her bank account.

Nursing Home A is owned and run by the Respondent Company. Nursing Home B is only management by the Respondent Company and is owned by a different Company.

The Complainant was called to a meeting on 31^st August 2016 in Nursing Home A where she was informed that her employment would end on 28^th September 2016, she was not given any reason for the termination of her employment at this meeting. The Complainant received a letter from the Respondent dated 1^st September 2016 outlining the details of this meeting. At a subsequent meeting in Nursing Home B on 4^th October 2016 she was told that her employment would be terminated at the end of October 2016, no reason was given.

The Complainant wrote to the Operations Manager of the Respondent Company and copied the Director of Care Services of the Respondent Company at the beginning of September 2016 requesting a reason for the termination of her employment and enquiring as to whether this situation was a redundancy situation or if it was a dismissal and if so what were the reasons. To date she has not received a reply to her correspondence.

On 12^th October 2016 the Complainant wrote to the HR Manager of the Respondent Company requesting further clarification of the situation, to date she has not had any contact from the company.

On the day of the hearing, the Complainant stated that she was there 14 years and that she did lots of activities with the residents.

If she was off a day due to holidays she worked another day instead. She never received holidays or public holidays.

Summary of Respondent’s Case:

This case concerns the alleged unfair dismissal of the Complainant by the Respondent. To claim protection under the Unfair Dismissal Act the person in question must be an employee employed under a contract of employment. The Respondent claims that the Complainant is not or never was an employee of the Respondent Company and has been never issued a contract of employment.

The Respondent Company claims that the Complainant is an independent contractor who was providing a music and prayer service for residents at Nursing Home A every week for 2 hours a week. This is a service that she was also providing to other nursing homes in the locality including Nursing Home B that the Respondent Company managed. The requirement for this service was discontinued in September 2016 as it no longer met the needs of the residents.

It is the Respondent’s position that the Complainant’s unfair dismissal claim is unfounded as she was an independent contractor that provided a music and prayer service for residents two hours a week. This service first commenced in September 2004.

The Complainant was paid €50 a week for this service and this was paid directly to the Complainant in cash and by cheque. The Complainant was never paid through the Respondent Company’s payroll system. The Complainant never received a contract of employment to state that she was an employee of the Respondent Company.

The Respondent Company has a normal retirement age of 65 years of age and this is stated in all contracts of employment that are issued to employees. The Complainant did not receive a contract as she was not an employee.

The Complainant was 66 years of age when she first started to provide the music and prayer service to the Respondent Company in September 2004. Based on this she would not have met the criteria to be selected as an employee of the Nursing Home. The Activities Co-ordinator in the nursing home who had co-ordinated the visits of the Complainant had recently retired herself in line with the normal Company retirement age.

The Complainant was invited into a meeting with the Director of Nursing on 31^st of August 2016. At the meeting the Director of Nursing informed the Complainant that following a recent visit from HIQA the regulatory body who oversee the application of the standards in nursing homes, the home had to review the activities that were being provided for the residents. The music and prayer service that was being provided by the Complainant was no longer meeting the needs of the residents. The Complainant was informed that the prayer and music service would no longer be required after 28^th September 2016.

The Complainant was unhappy with this situation and contacted a number of people in the Respondent Company to discuss the situation. The Healthcare Manager with responsibility for Nursing Home A met with the claimant on behalf of the Company on 29^th September 2016 to discuss the situation with her. She confirmed to the claimant at this meeting that she was not an employee of the Company and that she was providing a service to the nursing home that was no longer required.

The Company take the view that it has always dealt fairly with the Complainant. The Complainant was an independent contractor and was never an employee of the Respondent Company. This was explained to her by the Director of Nursing and by the Healthcare Manager.

On the day of the hearing, the Respondent stated that there was no contractor’s agreement in place.

The Respondent said that they never recorded invoices from the Complainant. The Respondent stated that the administrator kept a records of all payments made to the Complainant.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act and Section 8 of the Unfair Dismissals Acts, 1977 – 2015.

I have investigated the above complaints and make the following decision in accordance with the relevant sections of the legislation set out above and the following are my conclusions:  

In order for me to have jurisdiction to hear a case under the Unfair Dismissals Acts, 1977 – 2015; I must be satisfied that the Complainant has proved that they are an employee. In this case, the Complainant was not treated as comparable employees and did not receive Annual Leave, Public Holidays or a contract of employment. She provided to her services to multiple nursing homes for a net payment.

I am satisfied that she is not an employee and therefore is not covered by the Unfair Dismissals Act and therefore this claim fails.

Dated:   23/08/2017

Workplace Relations Commission Adjudication Officer: Caroline McEnery