DECISION NO: DEC-E/2017-087
PARTIES
Helen Fitzgerald
Vs
Peter Dwan t/a Spar (Represented by Martin Moran & Co. Solicitors)
FILE NO: ET-152229-es-15
DATE OF ISSUE: 19th of December, 2017
1. Dispute
This dispute involves a claim by the complainant that she was discriminated against by the respondent on the grounds of age, in respect of the termination of her employment.
2. Background
2.1 The complainant referred a complaint against the above respondent under the Equal Status Act, 2000-2015 to the Equality Tribunal on the 8th of January, 2015.
2.2 In accordance with powers under section 75 of the Employment Equality Acts, 1998-2015 and under the Equal Status Acts, 2000-2015, the Director delegated the case on the 8th of May 2017 to me Orla Jones, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under III of the Equal Status Acts, 2000-2015. This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 25(1) and as part of my investigation, I proceeded to a Hearing on the 24th of November, 2017.
2.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
3. Summary of complainant’s case
3.1 It is submitted that
the complainant, commenced her employment with the respondent in 1999 as a book keeper and ceased working for him in October 2014,
the respondent terminated her employment in October 2014 due to the complainant’s age.
4. Summary of respondent’s case
4.1 It is submitted that the complainant was engaged by the respondent to provide book keeping services for his two Spar shops from 1999 to October 2014,
the complainant’s work quality had deteriorated in the period preceding the termination of her employment and the respondent had been forced to employ another book keeper to complete the complainant’s work,
the complainant continued to fall behind in her work and the respondent advised her that he was no longer engaging her as a bookkeeper,
the complainant’s age did not in any way influence the decision to terminate the employment relationship.
5 Pre-liminary Issue – Equal Status Act
5.1 The complainant in submitting her complaint had done so under the Equal Status Acts. The complainant at the hearing clarified that it was her intention to submit her complaint under the Employment Equality Acts as the matters complained of relate to an employment matter and to the termination of an employment relationship.
5.2 In addition, the complainant has in her complaint form ticked the ground of gender instead of age but she had stated in the narrative of the complaint form that she believed she had been dismissed due to her age.
5.3 In considering the complainant’s request to pursue the claim under the Employment Equality Acts despite the fact that she submitted it under the Equal Status Acts, I am guided by the High Court judgment in the case of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan[2009] IEHC 370 . In that case McGovern J. held that it was permissible to amend a claim set out in form EE.1 where ‘the general nature of the complaint (in this case discrimination on grounds of sexual orientation) remains the same.’ I note that McGovern, J. also stated in this decision that this can only be done so long as the general nature of the complaint remains the same. He went on to say that "what is in issue here is the furnishing of further and better particulars" and "the respondent....must be given a reasonable opportunity to deal with these complaints and the fair procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice.".
5.4 In the present case the complainant had submitted the incorrect form but had still referred to an allegation of discriminatory dismissal on the ground of age in the narrative of the form. In addition, the complainant on the complaint form stated that she had worked for the respondent since 1999 and had also clearly stated that she was alleging that her employment had been terminated by the respondent as she thought the respondent felt she was “too old for the job…” I am also mindful of the fact that the complainant in this case had completed the form herself and was unrepresented throughout the process.
5.5 The respondent in its reply to the complaint in March 2015 stated that he had told the complainant on 16th of October 2014 that he no longer wanted her to do the book keeping for his shops. The respondent stated that the reason for doing this was due to the fact that her work was not up to date and was holding up his accountant and that he had to pay another book keeper to bring the accounts up to date. I am thus satisfied that the respondent was on notice of the allegation of discriminatory dismissal on grounds of age from the initiation of the complaint, given that it was set out in the narrative of the complaint form and replied to by the respondent.
5.6 I am thus satisfied that the respondent has been on notice of the claim of discriminatory dismissal on the ground of age since the initiation of the complaint and is in no way prejudiced by the complainant pursuing a claim of discriminatory dismissal on the age ground despite the fact that she had ticked the Gender box on the complaint form and had submitted the claim under the Equal Status Acts instead of under the Employment Equality acts.
5.7 I am satisfied given all of the circumstances of the present case, that it would not be contrary to fair procedures and natural justice for me to consider the complainant’s allegation of discriminatory dismissal on grounds of age. Accordingly, I am satisfied that I do have jurisdiction to permit the complainant to proceed with the allegation of discriminatory dismissal on the ground of age.
6. Preliminary issue – Employment Status
6.1 The respondent submits that the complainant in this case was self-employed and was not an employee of the respondent. The respondent submits that he had engaged the complainant as a self-employed book keeper to provide book keeping accountancy services for his business. The respondent submits that a decision of the Department of Social Protection indicates that the complainant “was not an ordinary employee of (the respondent)” and that a Class S PRSI code was applied to her status under that Departments codes.
6.2 In order to ascertain whether or not the complainant was working as an independent self-employed contractor it is necessary for me to examine the working relationship between the complainant and the respondent. In doing so I am guided by the finding in Castleisland Cattle Breeding Society v Minister for Social and Family Affairs where the Supreme Court held that, notwithstanding the requirement to examine the terms of the written contract, in determining whether a contract was one of service, or for services, an appeals officer was bound to examine and have regard to what was the real arrangement, on a day-to-day basis, between the parties. A statement in a contract to the effect that a person was an ''independent contractor'' was not a contractual obligation but merely a statement which might or might not be reflective of the actual legal relationship between the parties.
6.3 The question of whether a particular employment is to be regarded as a contract of service or a contract for services has been the subject of a number of decisions by the Courts in this jurisdiction. The main test, under Irish law, for assessing this in work situations, was set out by Keane J in Henry Denny & Sons (Ireland) Ltd v. The Minister for Social Welfare . The Supreme Court held that it was appropriate not only to examine the entire contractual agreement between the parties, but also the particular conditions under which work was performed. In that judgment Murphy J stated that the question of whether the claimant "was retained under a contract of service depends essentially on the totality of the contractual relationship express or implied between her and the appellant...".
6.4 In the same judgement Keane J noted that whilst the extent and degree of control which was exercised by one party over another, in the performance of the work, had been regarded as decisive in the past, later authorities demonstrated that the control test did not always provide satisfactory guidance. He then went on to hold that:
"It is accordingly clear that while each case must be determined in the light of its particular facts and circumstances, in general a person will be regarded as providing his or her services on a contract of service and not as an independent contractor where he or she is performing those services for another person and not for himself or herself. The degree of control exercised over how the work is to be performed, although a factor to be taken into account, is not decisive. The inference that a person is engaged in business on his or her own account is more readily drawn where he or she provides the necessary premises or equipment or some other form of investment, where he or she employs others to assist in the business and where the profit which he or she derives from the business is dependent on the efficiency with which it is conducted by him or her."
6.5 I am also mindful of the High Court decision in the case of The Minister for Agriculture and Food V Barry and Others which contains a detailed analysis of the tests which should be considered in deciding whether a person is working under a Contract for Service or a Contract of Service. In his finding, Mr. Justice Edwards stipulated that a Court or a Tribunal should not confine its examination to the "so called enterprise test" and added that
" Like the question of enterprise, questions of control and integration may also provide a court or tribunal with valuable assistance in drawing the appropriate inferences”. This finding also addressed the question of 'mutuality of obligation' on an employer to provide work for the employee and on the employee to perform that work personally for the employer.
6.6 Thus, having regard to the above it is clear that the Courts in these situations, in addition to the 'enterprise test' have also been guided by the level of control exercised over how the work is to be performed and the level of integration into the business as a whole as well as the question of 'mutuality of obligation' between the parties.
6.7 In examining whether or not an employer employee relationship existed between the complainant and the named respondent I must apply all of the above to the instant case.
6.8 The complainant advised the hearing that she had been employed by the respondent since 1999. She advised the hearing that she provided book keeping services for the respondent in respect of his two shops initially but stated that this expanded to seven shops in later years. The complainant advised the hearing that she was paid a monthly rate to provide the accounts services. It is submitted by the respondent that this was a flat rate without deductions and that the complainant was responsible for her own tax and deductions from this as a self-employed person. The complainant did not dispute this.
6.9 The complainant went on to state that she did not have to work any fixed days or hours and that there was no arrangement with the respondent in respect of time off or holidays. She stated that she was paid to do certain work on a monthly basis but that the hours and days spent doing such work were a matter for herself. She also stated that she was not directed as to when and how to do her work by the respondent but that this was a matter for herself.
6.10 In addition, the complainant at the hearing confirmed that it was open to her to engage someone else to assist her in doing this work and that it did not have to be carried out by her personally.
6.11 The complainant when questioned at the hearing also stated that she could work for other people as well as the respondent and stated that she did provide book keeping services to two other clients as well as the respondent. The complainant at the hearing indicated that she operated out of her own premises at her own house and did not attend the respondent’s premises to do her work.
6.12 At the core of the definition of a contract of employment is the requirement for the employee to ''personally'' execute the work. The extent to which a party can delegate or sub-contract work has been a factor examined many times in the case law. In Henry Denny & Sons v Minister for Social Welfare the Supreme Court noted that the inference that a person is engaged in business on his or her own account can be more readily drawn where he or she employs others to assist in the business. It emerged at the hearing that the complainant, could arrange for someone else to carry out the work or to assist her in carrying out the work.
6.13 It is also clear from the evidence adduced that the complainant was free to work for anyone else, as and when she so wished. The complainant was also not obliged to perform the work personally and could engage the assistance of another person. It is clear that the complainant had complete discretion in both of these areas, features that one would not normally find in a contract of service.
6.14 It is submitted that the complainant was never provided with any contract by the respondent but that a verbal agreement existed for the complainant to carry out book keeping services for the respondent for which she would be paid an agreed sum on a monthly basis.
6.15 Taking into consideration all of the evidence both written and oral in conjunction with my examination/comments in the preceding paragraphs, I am of the view that the features of the employment relationship between the parties is not consistent with a contract of service and instead points to a contract for services. The complainant does not therefore fall within the requirements of the Act to be employed under a contract of employment.
7. DECISION
7.1 I find that the complainant in this case was employed under a contract for service and was not employed under a contract of employment as defined at section 2 of the Employment Equality Acts, 1998-2015. I therefore have no jurisdiction to investigate the claim submitted by the complainant.
___________________
Orla Jones
Adjudicator/Equality Officer
19th of December, 2017