ADJ-00004994

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00004994

Parties:

Complaint

Date of Adjudication Hearing: 02/05/2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Location of Hearing: Lansdowne House, Dublin 4.

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Preliminary Issue – Status of the Complainant.

The Respondent Company signed a Contract for Services with another named Company for the supply of specialised consultants to the Company for assignment to the client of the Respondent Company. This Contract for Services between these two Companies was signed on behalf of the Contractor Company by the Complainant on 3^rd November 2014.

The Complainant also sent a letter dated 1^st November 2014 to the Respondent Company which states in part “I warrant that I am an employee/Director of the Contractor Company and shall notify the Company of any change”.

The Complainant also signed a further Contract for Services on behalf of the Contractor Company and the Respondent Company on 22^nd January 2015. The Complainant signed another Contract on behalf of the Contractor Company with the Respondent Company on 18^th December 2015 to run to 31^st December 2016.

The Contractor in each of these agreements is named as the Complainant

The Respondent Company then enters into a Contract for Services for assignment to a named Client of the Respondent Company. The Complainant had such a Contract for Services from 16^th December 2013 to 13^th June 2014.There was no such contract provided to me at the Hearing to cover the period from 13^th June 2014 to the alleged date of dismissal on 8^th July 2016

Both Parties confirmed at the Hearing that these signed Contracts for Services between the Respondent Company and the Contractor Company of which the Complainant was both an employee and Director named the same client to whom the Respondent Company assigned the Complainant to and this is confirmed in the Agreements provided to the Hearing. In other words the Complainant is the named Contractor assigned by the Contractor Company to the Client Company of the Respondent.

Control

The Supreme Court in Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare (1998) stated – The degree of control exercised over how the work is performed, although a factor to be taken into account is not decisive. However the case law has considerably modified this approach to include other considerations such as whether there was a mutuality of obligation and a requirement on the Respondent to offer work and on the Complainant to perform this work: whether the Respondent exercised control over the Complainant: whether the Complainant was in business on their own behalf and whether the Complainant had been integrated into the Respondent’s business: Taxation and VAT Payments and who made these payments. Mindful of the legal principles set out in previous case law, including Minister for Agriculture v Barry and Castleisland Cattle Breeding Society v Minister for Social and Family Affairs, each case must be considered in light of its own particular facts.

The Complainant had a Contract for Services between her Company and the Respondent Company to provide services to a Client Company of the Respondent. The Respondent Company did not exercise any control over the Complainant. The Complainant verifies this in her submission to the Hearing where she clearly states that she is directly managed by the Managers of the Client Company and not by the Respondent Company.

The Contract for Services between the Parties and dated 15^th December 2015 provides as follows: “Contractor” means named (the Complainant) and/or any substitute appointed subject to the prior written approval of the Company” i.e. the Respondent Company. In Tierney v An Post (1998) the High Court held “the fact remains that it is not normal to find in a Contract of service that the employee can hire assistants to perform the work which he or she is employed to do”.

I find that on the basis of this evidence this test is not conclusive that the Contract for Services was in fact a Contract of Service.

Mutuality of Obligation.

In order for a Contract of Service to exist there must be a mutual obligation on the Employer to provide work for the Employee and on the Employee to perform work for the Employer. There is an ongoing obligation to provide work and one to accept work

The High Court in Minister for Agriculture and Food v Barry & Ors stated as follows: “The requirement of mutuality of obligation is the requirement that there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer. If such mutuality is not present, then either there is not contract at or whatever contract there is must be a contract for services or something else, but not a contract of service”..

The evidence was that the Respondent Company did not provide work to the Complainant. Work was assigned to the Complainant by the Client Company of the Respondent. This is confirmed by the Complainant in her Submission where she states that it was the Client Company, named, of the Respondent who assigned her 17 customers to deal with.

There was no evidence presented to me at the Hearing or by way of submission that the Complainant was arguing that she was integrated into the business of the Respondent Company.

In Business on her own account.

The Code of Practice for Determining Employment or Self-Employment Status of Individuals issued through the Department of Social Protection provides some understanding of this issue. It states – “The overriding consideration or test will always be whether the person performing the work does so as a person in business on their own account. Is the person a free agent with an economic independence of the person engaging the service? The economic test is paramount”.

The evidence was that the Complainant operated her own Company and was in business on her own account and that her economic independence depended on the contracts she entered into.

Clause 5.1 of the Contract for Services between the Respondent and the Contractor Company and the Complainant provides that the Complainant is not entitled to any overtime payments, holiday pay, pension, bonus or any other fringe benefits from the Respondent Company. The Complainant is also required and be responsible for all corporation or income tax liabilities, prsi contributions or any deduction required by law in respect of fees for themselves and their employees together with all necessary statutory fillings or administration.

The Complainant confirmed at the Hearing that she submitted invoices to the Respondent Company for services provided to the Client Company and that these were paid to the Complainant by the Respondent Company. Evidence was provided of this.

Preliminary Issue – Who is the Respondent under the Unfair Dismissals Acts.

Both Parties confirmed at the Hearing that the Respondent Company was a Recruitment Agency and that the Complainant signed a Contract for Services with the Respondent in which the Complainant was assigned to a Client Company of the Respondent.

Section 13 of the Unfair Dismissals (Amendment) Act, 1993 provides as follow – “Where, whether before, on or after the commencement of this Act, an individual agrees with another person, who is carrying on the business of an employment agency, within the meaning of the Employment Agency Act, 1971 and is acting in the course of that business, to do or perform personally any work or service for a third person………then for the purposes of the Principal Act, as respects a dismissal occurring after such commencement – (a) the individual shall be deemed to be an employee employed by the third person under a contract of employment”

The Complainant lodged her complaint against the Recruitment Agency rather than the Client of the Respondent in accordance with Section 13 of the Act of 1993

Findings

On the basis of the evidence from both Parties and in accordance with the general principles established over the years in respect of relevant Employment Appeals Tribunal and Court Decisions and also Social Welfare Adjudications I find as follows:

Status of Complainant. The original approach was to examine the Contract between the Parties. The Respondent Company is a Recruitment Agency and the Respondent recruits specialists for assignment to Client Companies. These Specialists are recruited on a Contract for Services to a named Client. The Complainant is a Director and the sole “employee” of her own registered Company. The Complainant on behalf of her Company signed Contracts for Services with the Respondent Company on 12^th November 2013 to run from 16/12/2013 to 13/06/20134 – from 1^st November 2014 to 1^st May 2015 on 1^st November 2014 – from 19^th January 2015 to 31^st December 2015 on 19^th January 2015 and from 1^st January 2016 to 31^st December 2016 on 15^th December 2015. The Complainant was to be paid €540.00 per professional day. The Complainant was assigned to work in each of these Contracts to a named Client.   On the basis of my findings I find that the Complainant had a Contract for Services

Decision:

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.

On the basis of my findings above I declare I do not have jurisdiction to hear this complaint as the Complainant had a Contract for Services with the Respondent Company

Dated:   23/08/17

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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