ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001166
Complaint(s)/Dispute(s) 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-00001665-003 |
22/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 |
CA-00001665-004 |
22/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00001666-001 |
22/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00001666-002 |
22/12/2015 |
Date of Adjudication Hearing: May 11th 2016, October 25th 2016 and May 31st 2017.
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and under Section 8 of the Unfair Dismissals Act, 1977 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) The claim reference number CA-00001666-002 under the Unfair Dismissals Act was the only claim dealt with at the Hearing. The complaints under section 27 of the Organisation of Working Time Act, 1997 Reference Number CA-00001666-001 and the complaints under Section 7 of the Terms of Employment (Information) Act, 1994 Reference Number CA-00001666-003 and CA-00001666-004 are dependent on their capability to proceed on a determination of the Complainants employment status which will be dealt with in the decision reference number CA-00001662-002 in this instance and where not heard at the Hearing.
Background
The Complainant submitted a claim that she was constructively dismissed as a result of significant changes that the Respondent made to her contractual relationship with the Respondent. The Respondent contested that the Complainant was an employee on a Contract of Service and maintained that the relationship was one of a Contract for Service and therefore the Adjudicator had no jurisdiction to make a decision on the case as the complainant was not an employee under the Act. The Respondent also denied any dismissal/termination of the contract had taken place. The Respondent advised that the issue of the contractual relationship had far reaching consequences for the Organisation with regard to other staff.
The Complainant submitted her claim to the WRC on December 22nd 2015 as follows” I was advised in April 2015 that my contract would not be renewal and that in June 15 I was to be terminated. I have been retained purportedly as an independent contractor of revolving contracts. At all times I was in fact an employee and the fiction of contract was forced upon me by my employer. Having regard to the Revenue guidelines I have clearly been an employee at all times”
The Complainant alleged that she was constructively dismissed on June 27th 2015 arising from the actions of the Respondent in the two months leading up to that date. Constructive dismissal is defined in the Act Section 1.(b) of the Unfair Dismissal Act 1977 as “the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.
Three Hearing were held on the case on May 11th 2016, October 25th 2016 and May 31st 2017.
From the gathering of evidence, which took place over the three Hearings the following contracts for the “Supply of Linear Scoring and Weight Recording Devices” were made available to the Adjudicator;
For the Period from/to Signed/Not Signed
1/9/2007 to 31/8/2009 Signed by the Company only
1/9/2010 to 31/8/2011 Signed by both parties
1/9/2014 to 28/2/2015 Not signed
1/11/2015 to 30/10/16 Signed by both parties
While neither party could confirm if contracts existed prior to 2007 it was accepted that if they did they would be reflective of the contract dated 1/9/2007 to 31/8/2009. I was also advised at the Hearing on May 31st 2017 that a further more recent contract commencing at the end of the October 2016 contract has been entered into by the parties. Therefore on the date the Complainant alleged that she was constructively dismissed on June 27th 2015 arising from the actions of the Respondent there was no written contract in effect, as per the above contract structure.
The Complainants case is that in the two months prior to June 2015 the Respondent informed the Complainant that her work and regional geographical basis would reduce and as a result her income subsequently dropped from approximately 46k to 8k Euros per year. The Complainant advised that she signed the contract dated 1/11/2015 to 30/10/2016 under duress and whilst the date which the Complainant signed that contract is 6/4/2015, this is probably an error in the date; the Respondent signed it as 4/4/2016. This error is not material to the case.
The Complainant case is that she was always an employee on a contract of service and that she was never on a contract for service and when the new contract arrangement came into effect, both her income significantly reduced and her workload opportunity was very diminished. She felt both of these actions amounted to constructive dismissal and the Complainant only signed the contract between 1/11/2015 to 30/10/2016 so as to maintain an income, albeit a much reduced one.
The parties made initial submissions at the first Hearing where both the Adjudicators right to hear the case was contested and the dismissal itself was also contested by the Respondent. Following that Hearing the parties made written submissions on the core issues and agreed to provide contractual documentation to the Adjudicator. Following the second Hearing the Adjudicator posed a series of question to both parties on the issues he felt were relevant to the case to do with the type of contract relationship between the parties (that had not been addressed up to that point) and both parties made written submissions to the questions and made verbal submissions on this and all issues finally at the Hearing on May 31st 2017. The questions and responses to these questions are included below.
Prior to considering the grounds put forward by the Complainant for her constructive dismissal it is essential in this case to make a determination firstly if the Complainant was employed under a Contract of Service or not. In the event that she was then it is my duty to consider the grounds for constructive dismissal and issue a decision on whether a dismissal took place and if it was fair or unfair. The Respondent also argued that if I was to make a decision on the unfair dismissal claim, that the claim was out of time. In the event that I determine that she was not an employee then I have no jurisdiction to make a decision under the Unfair Dismissals Act on her dismissal claim.
It should be noted some parts of the following two submissions have been amended to protect the identity of the parties.
Complainant’s Submission
The Complainant argued that the Respondent to the complaint has furnished submissions essentially premised on 2 grounds:
purported contract unsigned by the parties.
As regards the first issue, the Respondent bases their submission of the complaint being
out of time on the basis that the Complainant was given notice of an intention to cease her
employment, such notice having been given in April 2015. It appears accepted that
whereas notice was given to her in April 2015 that her employment did not in fact cease
until 27th June 2015. The Respondent’s appear to have ignored the clear provisions of
Section 1 of the Unfair Dismissals Act 1977. In particular, the definition of “date of
dismissal” therein contained makes clear that the date of dismissal is the date of actual
termination and not the date of notice.
As regards the issue as to whether the applicant was an employee or an independent
contractor; as indicated above, the Respondent appears to rely entirely on a document
produced, being a form of purported draft contract unsigned by the parties.
Leaving aside that it is not accepted that that contract has any bearing, it is noted that it,
on the face of it, would have expired in February 2015 in any event. Accordingly and
even if it were signed, it has no application in the circumstances.
Further it is the claimant’s submission that the detail of such contract even if accepted as
being a valid document, is an irrelevance to the reality of the situation. It is clear from
all case law and revenue guidelines that any particular form of documentation is not
determinative of the question as to whether one is an employee or an independent
between the parties. Having regard to those factors indicating the level of control
exercised by the Respondent’s, it is the Complainants case that she is and always was an
employee who has now been unfairly dismissed. In that regard it is clear that the
Respondent’s controlled the customers, the location, the work to be done, the equipment to
be used, the results to be achieved and most especially, the pay rates to be paid. It would
be submitted that the Respondent also controlled the times at which the work was to be
done to the extent that the Respondent’s determined at what ages the cattle were to be
day attendances, this was subject to the overriding requirement for the work to be done
(as specified by the respondent) within periods as specified by the respondent. It is also
significant that the Respondent supplied the Complainant with equipment which the
Complainant was required to use.
Further and as regards the fees payable, the Respondent’s in their submission specifically
argue that it is significant that the farmers pay for the service directly to the Complainant.
In the first instance this is factually incorrect in that for various of the schemes (such as
the Maternal Bull Breeding Scheme), the Respondent directed the service and paid the
Complainant directly for all work done directly.
Further and as regards the submission that the Respondent was free to substitute any other
qualified person to provide the service this is again factually not correct. The
Complainant had no ability to subcontract the work at her discretion. It is a fact that other linear scorers have been let go over the years for not making contact with farmers as directed and for not being proactive in offering linear scoring services to the breeders in their assigned areas as determined by the Respondent’s.
In all the circumstances it is submitted that the Complainant was an employee of the
when and where the work was to be carried out and in circumstance that the respondent
provided equipment necessary for the job to the Complainant and required her to use such
Complainant could not sub contract the work. The Complainant was an employee who
was dismissed on the 27th June 2015.
Respondent’s Submission
The claimant states that they were an employee of the Respondent from 1/1/2001 until their dismissal on the 27/6/2015. A claim form was submitted to the WRC dated 22/12/2015 under Terms of Employment (Information) Act, 1994 (two complaints), Organisation of Working Time Act, 1997 (one compliant) and Unfair Dismissals Act, 1997 (one complaint).
The Respondent received correspondence from the WRC, dated 15th January, seeking a submission in respect of the Unfair Dismissals case.
- The Complainant was not an employee of the Respondent and is not covered by the Unfair Dismissals legislation therefore the complaint is invalid and the case cannot be heard.
The Complainant was an authorised agent providing a service to farmers within a specified geographic area in respect of Linear Scoring and Weight Recording services. Her previous contract, as a contractor, was effective for the period September 2014 until February 2015, see attached.
Of specific note within the contract I would highlight the following.
Section 2 Engagement specifically refers to The Complainant as an independent contractor. Section 5 Fees confirms that it is the farmers that pay for the services directly to “The Complainant” . Farmers contact the contractor directly themselves and the contractor accepts or rejects the work themselves.
Section 6 Substitution gives the contractor the right to substitute any other qualified person to provide the service. The Complainant does not have to do it herself.
Section 12 Arbitration provides a process by which any issues relating to the contract should be decided.
Section 14.2 states that she is an independent contractor and solely responsible for the payment of all income taxes, social insurance contributions etc.
In addition, the contractor has the right to refuse work and they can solely decide when they are available or not to provide the services specified within the contract.
The contractor determines their own working hours and periods of availability.
- Dismissal is in dispute.
Given that The Complainant was not an employee she could not and was not dismissed. The contract she had as an independent contractor was of a fixed duration and was not renewed by the Respondent. A different contract was entered into, as an independent contractor, providing weighing services to farmers and The Complainant continues to operate under this contract to this day. There has been no break between contracts.
- Timing of the complaint to the WRC
The previous contract expired in February 2015 and The Complainant was officially informed on the
7th April that this particular contract would not be renewed. It is our understanding that the Complainant had some bookings agreed with Farmers and the Respondent were agreeable that she would honour these commitments. As the farmers deal with the contractors directly and pay them directly for their services it was left up to “The Complainant” to manage this. The Respondent did not agree any specifics in terms of commitments or for how long this would last. It was understood that whatever commitments had been agreed prior to the 7th April would be only be honoured. No new work would be undertaken.
The alleged date of dismissal of 27/06/2015 is in dispute. No dismissal took place (The Complainant continues to be a contractor) and there was no communication whatsoever with the Complainant at that time to suggest termination. Her employment, in any event, could not be terminated as she was not an employee.
The previous contract terminated In February 2015 and confirmation of non-renewal of this particular contract was confirmed in April 2015. The complaint received by the WRC on the 22nd December 2015, even if it was valid, Is out of time.
The responses to the queries regarding the contractual relationship
I set out below the letter sent to both Parties, the questions raised in the letter by the Adjudicator and the Parties responses. The questions were created after a review of the contracts, the initial information provided by the Parties, the relevant legal precedents and the Revenue and WRC guidelines regarding determining employment status.
The Respondents replies
As agreed at the Hearing I am setting out, for guidance only, the issues which I would
appreciate both sides cover in their submissions regarding the contractual status of
the Complainants relationship with the Respondent. This list of issues are not to
be treated as all inclusive and the parties are free to add to these areas of
submission or indeed decide to not submit input in any or all of the areas at
your discretion. Please ensure to relate your submissions, if appropriate, to either
the part of the relationship for the services provided by the Complainant directly to
the “The Respondent” or for the services provided by the Complainant directly to the third party in
the contract (the Farmers).The areas which I recommend the parties cover are;
regarding either an employment or contractual relationship. (R) There is no doubt
that the intention was clearly to put in place a Contractual Relationship and
not an employment relationship. This is evidenced by the documentation and
the conduct of the parties throughout.
of dismissal. Please supply any copies of a contract at the alleged date of
There was no break of gap. Therefore, even if the contract is found to be an
employment contract then there has been a change in the terms of the
contract but no termination or dismissal.
Please supply copies (R) all contracts available have been supplied. This
includes the current contract which is similar in nature and design to previous
times) and what party determined these hours of work for the last three years
of the contractual relationship – (R) From an “The Respondent” perspective, we have no idea
of the actual hours. “The Complainant” was responsible for all aspects of organising her
what assignments were accepted or rejected by the contractor or if the
contractor assigned the work to another suitably qualified person. Neither did
we monitor the work or hours in any way.
last three years of the contractual relationship. Please set out clearly the
income paid directly to the Complainant for the services provided by week
and the income received from third parties arising from the contract. (R) The
contractor provided services for a variety of individuals and received
monetary reward directly from each client. “The Respondent” did contract with “The Complainant” to
undertake contracts directly for them, as they do now as well. In 2014, “The Respondent”
paid “The Complainant” €19,641 for work contracted to her directly. “The Respondent” does not have
visibility to the other income “The Complainant” would have charged her clients directly.
Reimbursement sheet) to the Complainant –(R) “The Respondent” did not pay “The Complainant”
to work “The Respondent” asked her to do directly for “The Respondent” .
relationship relating to either of the services provided under the contract -
(R) “The Complainant” was responsible for her own taxes. “The Respondent” did not have any involvement
with any employment forms or taxes. The invoices from “The Complainant” did not include
VAT – (R) “The Respondent” did not have visibility or any input on this.
a copy of any relevant policy – (R) “The Complainant” was responsible for her own insurance
parties by the Complainant in the last three years of the contractual
illness in the last three years of the contractual relationship –(R) No, no
responsibility on “The Complainant” to inform “The Respondent” on sickness or general availability to
carry out assignments with farmers.
relationship (R) “The Complainant” was responsible for her own taxes and prsi. No
employers prsi was paid by “The Respondent” on behalf of “The Complainant” .
to the alleged date of dismissal – (R) None from “The Respondent”
by the Complainant - (R) No
compassionate leave in the last three years of the contractual relationship –
(R) No
from the services provided and did any such claim ever arise -(R) Issues did not
come to “The Respondent” and “The Complainant” was responsible for dealing with such issues
and “The Complainant” may have had to refer it to her own insurance. No such claim ever
arose that “The Respondent” is aware of. “The Complainant” never raised any issue or grievance or
complaint directly with “The Respondent” . (R)
was “The Complainant” ’s responsibility
directly from her clients. “The Respondent” did not have visibility on the costs of her
running her operation, or any work she may have carried on outside of the
covered by this arrangement, and could not comment on profitability or
otherwise
income derived from third parties arsing from the contract and how were
these fees billed to the clients - (R) “The Complainant” was responsible for her own taxes
or did not take place. It was within the terms of the contract that “The Complainant” could
assign work to other suitably qualified persons.
Respondent–(R) on a day to day basis, zero. “The Complainant” was not required to issue
any reports to “The Respondent” .
Complainant –(R) It was totally up to “The Complainant” organise her own schedule and
decide what work to undertake or refuse. From time to time to “The Respondent” would
inform “The Complainant” of project herds that were available to her for scoring, but the
timing, organising and scheduling of those visits was purely a matter for
“The Complainant” .
supplied a scales, a handheld and a laptop to ensure that the data was
recorded in a manner that could be used by “The Respondent” in genetic evaluations.
relationship or the business –(R) the annual value of the equipment that “The Complainant”
would have used from “The Respondent” would be roughly ~€500
order to ensure that the data gathered at the farm level is usable in genetic
evaluations, “The Respondent” would have communicated the international standards that
applied to Animal Recording. It was entirely up to “The Complainant” then to carry out the
work ensuring that it complied with such international standards.
person in the last three years of the contractual relationship (R) Yes, other
scorers would have carried out work in the area which was assigned to
“The Complainant” . “The Respondent” would not have visibility on all of this as “The Complainant” could have done so at any time.
party at any stage in the last three years of the contractual relationship –(R) Yes,
details of which would only be known by “The Complainant” .
requirements –(R) No
(R) “The Complainant” provided this to the farmer – “The Respondent” did not have a role in this.
Complainants cost or the Respondent’s cost – (R) If a farmer was not happy with
the genetic evaluations resulting from the scoring session, we offered an
appeal mechanism and “The Respondent” would contract another party to re-score the
provided but Referencing Sessions to assess Repeatability and Correlation
with other Scorers were held periodically.
any required – (R) None required
policies or legislation affecting the services – (R) “The Respondent” would communicate these
via email or phone. This would be done to ensure international standards
relating to the work were maintained.
the parties in relation to the “Integration Test”, the “Enterprise Test” and the
“Mixed Test”. (R) I refer to our previous legal submission on these points.
These submissions concern a contract between the Complainant and the
Respondent for services covering the period of 1st September 2014 until 28th
February 2015. The contract concerned services for “Beef Linear Scoring and
Weight Recording” that the Respondent wished to provide to farmers and engaged
the services of the Complainant for this purpose. The question that has now arisen
is whether or not this contract is a contract of service, signifying that the
Complainant is an employee, or a contract for services, signifying that the
complainant is an independent contractor.
The Respondent also submitted a legal position paper from a Barrister with regard to their position.
The submission was as follows:
“The Irish jurisprudence in relation to this issue has evolved over the years but it
originally started with the “control test” in order to determine the nature of the
contract, as adopted in this jurisdiction in the case of Roche v Kelly (1968). This
test simply examined how much control the employer exerted over the contractors
work, how much input they had into how the job was done and how much
supervision they performed over their working methods. This was later rightfully
seen to be overly simplistic in the case of Re Sunday Tribune (1984) although the
level of control still remains to be one of the considerations when determining a
contracts nature.
There has been a plethora of case law in the interim but ultimately Ireland has
adopted a “mixed test” approach to assessing a contracts nature, taking into
account a myriad of factors that the courts have set out to be determinative of a
contracts nature. This test was established initially in Ready Mixed Concrete v
Minister for Pensions (1968) but then added to by the cases of Kirwan v Dart
Industries and Leahy (1980) and also Henry Denny & Sons (Ireland) Ltd t/a Kerry
Foods v The Minister for Social Welfare (1998). Accordingly, the criteria to be
examined is as follows:
a) The degree of control exerted by the employer over the contractor;
Extent of the control over
How the job is done
Means to do it
Where it is done
b) The economic reality of the situation;
Do they receive holiday pay, sick pay, pension,
Are they PAYE or self-assessment
c) Whether they provide their own equipment;
d) The provisions of the contract being consistent with a contract of service;
e) The level of integration of the contractor into the business;
Are they in business on their own account or
Are they integral to the business
f) Whether the contractor can delegate to others;
g) Whether the contractor is free to take on work for others.
Degree of Control
How the job is done.
There is nothing in the contract as to how the job is performed, suggesting that the
intention was that it be for an independent contractor. There is a fee structure set
out though indicating exactly how much should be charged. There is a discretionary
fee built into the scale for work that takes longer than usual and the collection of
fees is incumbent on the Complainant also and these provisions would tend to
suggest an independent contractor arrangement.
The only requirement is that the scoring is done to the standard required.
Means to do it.
The contractor is bound to provide their own transport and equipment at his own
cost, including the insurance of same. However, the contractor will be provided
with a laptop computer, handheld computer, loads cells, spare load cells and a
weighing platform from the company. This would tend to suggest that she is an
independent contractor.
Where it is done.
The contractor must attend at individual farms to perform the contract. All
arrangements relating to this are done by the contractor with the contractor
determining which farms they attend. There is no obligation on the contractor to
attend at any specific farms.
Economic Reality
The contract obliges the contractor to charge the employer by invoice. The
Complainant is responsible for their own tax affairs (PAYE/PRSI/VAT), pension and
right of refusal or delegation to another. The contractor is fully entitled to take on
any such other work or activities as they so wish and are completely free to
determine the levels of such other activities. The Complainant is engaged in such
other activities. Taken as a whole, these provisions would strongly suggest that the
intention and reality in this case was to engage an independent contractor.
Provision of Equipment
As stated above, for the most part the equipment, as well as the premises, is to be
provided by the contractor and not the Respondent. However there is some
equipment being provided by the respondent, including computer equipment and a
weighing platform. These items are unique and necessary for the provision of the
services to farmers.
Level of Integration
The Complainant is contracted to conduct operations from the premises of
individual farmers, who engage and pay the claimant directly, using primarily their
own equipment and transport and will never have to attend at the Respondent’s
once again is strongly indicative of an independent contractor arrangement.
The claimant determines their own working times. They are not obliged to work at
any specific times and may be absent completely for such times as they wish.
There are no holiday arrangements in place and the Respondent does not exercise
any control whatsoever over working hours or times.
The claimant directly contacts Farmers and engages with them. Both parties are
then free to engage or not engage. If they do engage the claimant and the farmer
agree the scope of the work and when it will be carried out. The farmer pays the
claimant directly for the work.
The claimant contracts directly with the Respondent for some work. Our figures are
that in 2014 total income for “The Complainant” amounted to 61,845 Euro of which 68% was
paid by farmers directly and 32% the Respondent contracted for. In 2015 (January to
June) 23,085 Euro of which the farmers accounted for 74% and the respondent
contracted for 26%. These figures do not include other type of work that the
claimant conducted outside of the terms of the contract for service.
The claimant is totally responsible for all their personal tax and insurance. The
company are not aware of “The Complainant” ’s income level, not just from other word that she
engages in but even from the farmers themselves.
Ability to Delegate
The Complainant is entitled to delegate, or “substitute”, another suitably qualified
and experienced individual to perform the services required without the consent of
the company. The lack of control, by the respondent, once again is strongly
indicative of a contract for service.
Freedom to Take on Other Work
The Complainant is entitled to enter into contracts for other work which they have
would never be the case in a contract of service and yet again confirms that this is
a contract for service.
Conclusion
Using the “Mixed Test” and applying the criteria above to the contract we can see
that the balance of the provisions would strongly suggest that this is a contract for
services, as would all the language used throughout the contract, which
demonstrates the clear intention of the Respondent to establish this.
The Complainant continues to be engaged in a contract for service similar to her
previous contract for service. If one contract is considered to be an employment
contract then the other must also be one. In such case there has been no
and simply providing services under a contract for service then the previous
contract must also be a contract for service. It is the strong contention of the
Respondent that both contracts are contracts for service.
Cases
- Ready Mixed Concrete v Minister of Pensions and national Insurance (1968)
- Henry Denny & Sons (Ireland) Ltd (t/a Kerry Foods) v minister for Social
Welfare (1998)
- Minister for Labour v PMPA Insurance Co. Ltd
- Yemen v Noakes (1880)
- Roche v Kelly (1968)
- Re Sunday Tribune (1984)
- Steevenson, Jordan & Harrison Ltd v MacDonald & Evans Ltd (1952)
- Kirwan v Dart Industries and Leahy (1980)”
(End of Barrister submission on behalf of the Respondent)
The Complainants replies
“Further to your directions of the 12th December we are happy to respond to the queries raised as follows:-
- It is the Applicant/ Complainants position that from 2003 the level of control exerted by the employer was such that she was an employee thereafter.
- The applicant feels she was an employee at the date of dismissal. There is no written contract at that date.
- Enclosed copies of documentation held by the applicant. It is the applicant's position that the documentation prepared by the Respondent (and in respect of which the applicant had no choice) does not reflect the actual arrangements and contractual position between the parties.
- Enclosed.
5. Enclosed copy bank accounts.
- Enclosed example documents provided for training days. The employer paid for travel expenses to the employee and paid for the cost of training directly.
- No.
- No vat. We enclose income tax returns.
- The applicant is not registered for vat.
- Enclosed copy of our client's policy. Mr x told the applicant by telephone approximately 18 months prior to termination that the “The Respondent” would be providing insurance.
11. See schedule attached, other work undertaken by the applicant for third parties is under the X column.
- No.
13. See tax return furnished.
- None.
- The applicant is unaware and never invoked or sought to invoke any grievance or disciplinary procedure.
- No.
17. No claim ever arose or was ever intimated. So far as the applicant was concerned any claim would be for the “The Respondent” to deal with had such arisen.
- The applicant has a standard private car insurance policy. The respondent requested
sight of the applicants insurance policy each year..
- See tax returns and income chart.
- See tax return and income chart. In relation to linear scoring, this was not paid
directly by “The Respondent” but was billed through automatic generation of bills on the hand held computer and printer supplied by the “The Respondent” . Bills are generated automatically by such system at rates set by the “The Respondent” .
- No.
22. and 23. High level of supervision. The applicant was required to attend referencing
sessions and training days. All directions for work etc were sent directly to the lap top by the “The Respondent” and the applicant's work was checked I audited on an ongoing basis.
- The applicant was supplied with weighing scales a lap top, a hand held unit, printer,
printer papers and sample charts. In addition the respondent supplied the applicant with branded “The Respondent” jackets.
- “The Respondent” determined the manner including the age range which changed from time to time at their direction and also the scoring system to be applied and controlled by them.
- Applicant provided data to “The Respondent” who provided fInal certificates to the farmers, the applicant would provide copies of the data obtained to the farmers on the day of inspection but formal certificate came directly from the “The Respondent” .
- Only ever once and the farmer paid for such rescoring.
- Ongoing - referencing sessions and training days provided by the “The Respondent” were required to be attended by the applicant.
- No formal certifications only experience.
- The relevant grow manager in different years. Most recently X
We would further refer the adjudicator to the recent decisions particularly in the UK
regarding the so called GIG economy.
In that regard we would particularly refer the adjudicator to the Employment Tribunal
Decision Aslam, Farrar - v- Uber and Gary Smith -v- Pimplico Plumbers I Court of Appeal
The Legal Background and Precedents
In researching the legal precedents and background to this claim there are many decisions which relate to the case. However, the overriding principle is that each case should be determined on its own merits.
An employee is defined under the Act as:- "An individual who has entered into or works under (or where the employment has ceased worked under) a Contract of Employment".
Employment relationships can be divided generally into two forms – the employee and the independent contractor. The employee is hired under a contract of service and he is an independent contractor under a contract for services. The distinction between the two is not always obvious and it falls to the Quasi Judiciary bodies, like the WRC, or the Courts to decide on the issue of the nature of the employment relationship. Other options are available to determine the employment status of an individual, i.e. The Revenue Service, but this was not taken up in this case.
The distinction is important because it determines the statutory protection that applies. The rights and remedies provided for under the Unfair Dismissals Acts only apply to employees under a contract of service. Likewise of importance is that fact that employers are only vicariously liable for torts committed by employees who are under a contract of service. Independent contractors under a contract for services are responsible for their own torts.
Another reason why it is important to distinguish between a contract of services and a contract for services is that the system of taxation applied to each category is quite different. In a
contract of services, the employer is responsible under the PAYE system, whereas in a contract for services, the independent contractor is subject to the self-assessment system.
The Courts have established a number of criteria to determine the nature of the employment relationship. The first test is the control test, first established in Yewen v. Noakes (1880). The Irish courts have adopted this test. In Roche v. Kelly (1968), it was held that the principal test is the right of the master to direct servants as to what is to be done and how it is to be done. In this case, the defendants had a contract with a farmer to build a barn and had employed the plaintiff to build it for a lump sum of £300. The defendants were to supply the construction materials and the plaintiff was to build the barn under their specifications. The defendants monitored the progress of the construction but at no time did they tell the plaintiff how to do the job nor did they supervise his working methods. The plaintiff had considerable experience and expertise in building barns and had done similar jobs for the defendant in the past. The plaintiff was injured during the construction of this barn and one of the issues was whether he was an employee of the defendant or an independent contractor.
The Supreme Court found that the main factor in determining the relationship is the element of control that the employer can exercise over the employee. The Court found in this instance that the plaintiff was not an employee as the defendants did not have the right to interfere with the manner in which he carried out his obligations and hence they did not exercise any control over him.
In Re Sunday Tribune (1984), the Court recognised that given difficulties in relation to skilled workers who are told what to do but not how to do it, the control test was no longer of universal application and cannot be used definitively as in a modern context, the nature of the employment relationship may not be so simplistic.
The second test that can be used in determining the relationship is the integration or organisation test. This test was introduced by Denning LJ in Stevenson, Jordan & Harrison Ltd.
Macdonald & Evans Ltd. (1952). He stated that an employee is a person who is integrated with others in the work place or business even though the employer does not necessarily exercise a detailed control over what he does. The courts, in applying this test, will consider whether the worker was a vital part of the operation of the work place.
The third test, one favoured by the Irish Courts is the mixed test, developed by McKenna K in Ready Mixed Concrete v. Minister for Pensions (1968). A contract between the plaintiff company and a lorry driver stated that the lorry driver was self-employed. He owned, insured and maintained his own lorry, but the plaintiffs had helped finance its purchase. He wore a uniform, and the lorry was painted with the company’s colours. He could delegate the driving and was paid per mile driven. The issue arose as to whether he was an employee and whether the plaintiffs should have been making pension contributions for him to the defendants. McKenna J stated that three conditions had to be fulfilled to establish a contract of service:
(1) there must be an obligation of the person to provide his own skill and work in return for a wage or other remuneration,
(2) there must be a sufficient degree of control by the employer,
(3) the other provisions of the contract must not be inconsistent with its being a contract of service
The Court found that the economic reality of the situation should also be considered when coming to a decision. Having regard to all of the factors, the Court concluded that the lorry driver was an independent contractor.
In Kirwan v. Dart Industries and Leahy (1980), the Employment Appeals Tribunal applied the mixed test and set out a number of criteria to consider including the extent of control over the task, the manner in which it is carried out, the means used to carry it out and where it is to be carried out; whether the person was in business of his own account or whether he was an integral part of the business; whether the person was required to provide personal service or whether he could delegate the job and finally whether the person was free to work for other employers.
Whether a shop demonstrator was an employee or not was examined in the case of Henry Denny & Sons (Ireland) Ltd t/a Kerry Foods v The Minister for Social Welfare (1998). Despite the contract stipulating that she was not an employee and the fact that she was responsible for her own tax affairs, Keane J held that she was an employee, applying a combination of tests. Keane J stated that: ‘in general a person will be regarded as providing his or her services under 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.’ In making this assessment, regard had to be had to the degree of control, the contract of employment and its express and implied terms, the level of integration of the individual into the workplace, whether the individual provides equipment, premises or investment, employment for others, whether they work on their own account, whether the person engaged receives holiday pay, sick pay or is part of the pension scheme.
Despite the fact that the contract stated that she was not an employee, the other terms of the contract – the requirement to be at work during specified hours, the requirement to wear a
certain uniform provided by employers, the requirement to carry out tasks in a particular way - led the court to conclude given other factors that she was an employee.
The Irish Courts, it appears, whilst favouring the mixed test, tend not to stick rigidly to any particular test but to view each contract as a whole, examine its terms and compare them with the reality of the relationship between the parties.
The question of whether the contract is one of service or for services has been the subject of considerable judicial consideration over many years and in this regard is quite complex. A series of tests have evolved at common law to assist in this identification process. It is accepted that the distinction is a fine one and may be difficult to apply in borderline cases. However, a common theme in all of the case law on the subject is that each situation must be judged on its own facts and the Court has accordingly considered the matter in that context. Edwards J set out in Minister for Agriculture and Food v Barry [2009] 1 IR 215 that;-
“The important thing to remember, however, is that every case must be considered in the light of its particular facts and it is for the court or tribunal considering those facts to draw the appropriate inferences from them by applying the general principles which the courts have developed. That requires the exercise of judgement and analytical skill. In my view it is simply not possible to arrive at the correct result by “testing” the facts of the case in some rigid formulaic way , and I do not believe that the Supreme Court ever envisaged, or intended to suggest, that it could be …. All potential aids to the drawing of the appropriate inferences from the primary facts as found stand in their own stead, and no one is subsumed by another. However, depending on the circumstances of the particular case, some aids may prove more helpful or more useful than others. In the words of Dillon L.J. “the same question, as an aid to appreciating the facts, will not necessarily be crucial or fundamental in every case”. It is for a court or tribunal seized of the issue to identify those aids of greatest potential assistance to them in the circumstances of the particular case and to use those aids appropriately”.
In the Minister for Agriculture and Food -v- Barrv[2009] lIR 2015 where Edwards J. commented on the many tests established under Irish law as to whether a contract is one of service or for services, and held that it is unhelpful to speak of such tests because none of these approaches constitute a test to deliver definitive results.
It is also established in Henry Denny & Sons (Ireland) Limited -v- The Minister for Social Welfare[1998] by Murphy J. that the written contract was not a unique source of the relationship between the parties and that the Court was required to consider the "facts" or realties of the situation on the ground to enable it reach a decision as to whether a person was an employee or an independent contractor.
Furthermore, in the EAT decision in McCotter -v- Quinn Insurance Limited[2013] which noted with approval the High Court judgment in the Minister for Agriculture and Food -v- Barry[2009] where the Tribunal summarised the appropriate test as set out above. The Tribunal considered that the correct approach was to stand back and look at the picture as a whole to see if the overall effect was that of a person in a self-employed capacity or the person working as an employee. If the evidence was evenly balanced then the intention of the parties may decide the issue.In The Minister for Agriculture and Food v Barry and others[2009] 1 IR 215 where the High Court held that the primary test as to whether or not a person is an employee is that of "mutuality of obligation". Mutuality of obligation is said to exist where the employer is obliged to provide work for the employee and the employee is obliged to perform that work in a normal employer/employee relationship. The High Court set out the legal position as follows:-
"If such mutuality is not present, then either there is no contract at all or whatever contract there is must be a contract for services or something else, but not a contract of service ... Moreover, in Carmichael v. National Power PLC, [1999] ICR,1226at 1230 it was referred to as "that irreducible minimum of mutual obligation necessary to create a contract of service." Accordingly the mutuality of obligation test provides an important filter. Where one party to a work relationship contends that that relationship amounts to a contract of service, it is appropriate that the court or tribunal seized of that issue should in the first instance examine the relationship in question to determine if mutuality of obligation is a feature of it. If there is no mutuality of obligation it is not necessary to go further. Whatever the relationship is, it cannot amount to a contract of service."
In the Supreme Court decision in Henry Denny & Sons v Minister for Social Welfare(1998) I IR 34 also provides precedent for the present case with the following being particularly relevant:-
"The inference that the person is engaged in business on his or her own account can be 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".
Also in some Supreme Court decisions which outline that an employer/employee relationship did not exist in circumstances where the worker could send other persons to perform work on the worker's behalf and these include Castleisland Cattle Breeding Society v Minister for Social and Family Affairs[2004] IR 150 and Tierney v An Post[1999] IESC 91.The earlier cases indicate that that the degree of control which the putative employer exercises in directing the work to be done is a decisive consideration. In Patrick Roche v Patrick Kelly and Co Limited[1969] IR 100 Walsh J said the following, at page 108: -
“While many ingredients may be present in the relationship of master and servant, it is undoubtedly true that the principal one, and almost invariably the determining one, is the fact of the master's right to direct the servant not merely as to what is to be done but as to how it is to be done. The fact that the master does not exercise that right, as distinct from possessing it, is of no weight if he has the right.
The importance of control was also emphasised in Minister for Industry and Commerce v Elizabeth Healy[1941] IR 545 and in Lynch v Palgrave Murphy Ltd[1962] IR 150. This so-called “control test” is now regarded as less relevant. In modern employment relationships employees are often expected to exercise a high degree of initiative in the performance of the work that they are employed to perform. Moreover, skilled employees often know a great deal more about the work that they perform than the employer. Consequently the degree of control exercised by the putative employer can no longer be regarded as conclusive.
A further approach looks at the extent to which the person whose status is at issue is integrated into the business of the putative employer or is only accessory to that business. That so-called “integration test” was applied by Carroll J in Re Sunday Tribune Limited[1984] IR 505.
In more modern times the Courts have tended to apply what is referred to the entrepreneurial or mixed test. That test was set down in the English decision of Market Investigations v Minister of Social Security[1969] 2 Q.B 173. Here it was held that the Court should consider if the person was performing the service as a person in business on their own account. If the answer to that question is yes, then the contract is one for services. If the answer is no, then the contract is one of service.
That approach was adopted in this jurisdiction by the Supreme Court in Henry Denny & Sons v Minister for Social Welfare IR 34. Here Keane J (as he then was) quoted with approval the following passage from the judgement of Cook J in Market Investigations:
“The observations of Lord Wright, of Denning L. J. and of the judges of the Supreme Court suggest that the fundamental test to be applied is this: 'Is the person who has engaged himself to perform these services performing them as a person in business on his own account '. If the answer to that question is 'yes', then the contract is a contract for services. If the answer is 'no', then the contract is a contract of service. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task."
From that passage Keane J concluded as follows:
“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 under 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 the person is engaged in business on his or her own account can be 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”
In Castleisland Cattle Breeding Society Limited v Minister for Social and Family Affairs[2004] 4 IR 150 Geoghegan J referred to the categorisation which the parties place on the legal status of their relationship. He said: -
There is nothing unlawful or necessarily ineffective about a company deciding to engage people on an independent contractor basis rather than on a “servant” basis but as this court has pointed out in Henry Denny and other cases, in determining whether the new contract is one of service or for services the decider must look at how the contract is worked out in practice as mere wording cannot determine its nature. Nevertheless the wording of a written contract still remains of great importance. It can, however, emerge in evidence that in practice the working arrangements between the parties are consistent only with a different kind of contract or at least are inconsistent with the expressed categorisation of the contract.
The Adjudicator therefore has to consider the matter of the relationship across a range of relevant factors with no clear definitive formula.
Findings from the information presented to the Adjudicator
The Complainant was engaged as a Cattle Measurer from January 1st 2001 to June 27th 2015 as per her submission. The Respondent stated that the relationship ceased in February 2015.
The parties engaged in a number of contracts since 2001 on broadly similar terms, but with several periods of no written contract. There were contracts for fixed durations and stated the following;
a) The Contractor is a self employed person
b) The Contractor cannot claim sick pay or holiday pay
c) The Contractor will operate as an Independent Contractor and provide their own transport, Mobile phone and protective clothing and footwear
d) The Contractor will maintain in force sufficient and appropriate policies of insurance
e) The Contractor will make themselves available to provide the services on request
f) The Respondent will pay the Contractor fees monthly in arrears
g) The Contractor will be solely responsible for the payment of all income taxes, social insurance contribution, employment levies and other taxes
The Complainant earned approximately 46,000 Euro per year. 21,827 Euro of this was paid by the Respondent for the services provided under the contract. The Complainant invoiced the Respondent for the portion of the income from their contract.
A further 24,100 Euro was paid directly to the Complainant by Farmers which she engaged with providing other services mentioned under the contract but not for the services under the contract. The Complainant directly invoiced the Farmers for these fees.
Set rates are determined in the contract for Visit Fees, Weighing Rates Pedigrees, Linear Scoring Rates- Pedigrees, Gene Ireland Bull Breeder Herd Visits, Weighting Rates Commercials and Linear Scoring Rates Commercials. The collection of charges was the sole responsibility of the Contractor.
A rate per hour for other work pre sanctioned by the Respondent was to be paid at 18 Euro per hour. The Complainant was to invoice the Respondent for the fees and the tax affairs are the responsibility of the Complainant.
The Complainant could substitute another suitably qualified person for any or all of the services on providing reasonable notice to the Respondent.
The contract states it is a contract for services and is not an employer/employee relationship and the Complainant is an Independent Contractor.
The contract states that it can be ended by either party giving one calendars notice in writing.
With regard to the contract itself it states that the Complainant is engaged as an independent contractor and self employed person. It also states that the Contractor will base the operation from their own facility, provide transport and equipment at their own cost and expense and that the Respondent will provide laptop computer, handheld computer, load cells, weighting platform, display and a spare pair of load cells and is not to be used for any purpose other than that authorised by the Respondent.
The Complainant invoiced the Respondent for her services.
The Complainant completed expenses sheets (only one was submitted in evidence) made out in the Respondents logo.
The Complainant was self assessed, along with her Husband, for Tax and PRSI.
The Complainant completed the Revenue Self Assessment Form 11 declaring her income as “self employed” Income with the description of her trade as “Linear Scoring”.
The parties operated at times with a fixed term fee contract and sometimes without a written contract.
Decision:
Section 8 of the Unfair Dismissals Act requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Section 7 of that Act.
Having considered the oral and various written submissions and the legal precedents on this issue I will now address the key determining factors in deciding whether the Complainant is an employee or not.
There are two cores issues involved in this case, one, was the Complainant an employee or an Independent Contractor. In the event she is found to be an employee she may purse her claim for unfair dismissal or if she is found to be an Independent Contractor then she is legally barred from taking a claim under the Unfair Dismissal Act 1977 and all other Acts listed above as she is not an employee under the Act. Secondly was the claim submitted within the allowed period under the Act or was there reasonable cause for the delay. I will only deal with this matter if the decision is that the Complainant is deemed to be an employee and subsequent to any appeal process being exhausted.
The Complainant alleges she did not receive notice until April 2015 and that the contractual relationship ceased on June 27th 2015.
The Respondent alleges that no dismissal took place and the independent contactor contract terminated in February 2015 and confirmed in April 2015.
The claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977. The burden of proof, which is a very high one, lies on the claimant. She must show that her resignation was not voluntary. As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, the Adjudicator must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.
“if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”
If an Adjudicator is not satisfied that the “contract” test has been proven then it is obliged to consider the “reasonableness” test. “The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”. When assessing the reasonableness test all of the circumstances of the case must be considered to establish whether or not it was reasonable for the claimant to terminate his contract of employment.
It is well established in law that the general rule is that a claimant must exhaust the internal process prior to lodging a claim with any external body. On occasion, and in very limited circumstances, when a claimant can prove, by the production of evidence, that the invoking of a grievance process would be a fruitless exercise the general rule can be displaced. This argument was not raised at the Hearing.
It is clear to the Adjudicator that the Contracts under which the parties operated was expressly one for services and that was understood by both parties for a considerable period of time. While this is not in itself a determinative consideration the decision in Castleisland indicates that it is a matter of great importance. In Castleisland Geoghegan J held “It seems quite clear that these Inseminators fully understood the position in 1990 and in no sense did they enter into a bogus contract, whether as a consequence of exploitation or otherwise”. The Adjudicator is satisfied that the factors identified by Geoghegan J apply equally in the instant case. The Complainant’s contract clearly stated that she was an independent consultant providing specialist and technical assistance to the Respondent and that nothing in the contract would have the effect of making her an employee of the Respondent. She complied with the practical aspects of this arrangement, declared herself as self-employed for the purposes of tax assessment and made income tax returns on that basis. The “Mutuality of Obligation” test is less clear in that their was no responsibility on the Respondent to provide the opportunity for work and indeed the fees varied yearly and monthly based on the work offered.
The evidence adduced in the course of the case indicates that in practice the working arrangements between the parties were consistent with the expressed characterisation of their relationship. The Respondent exercised little day-to-day control over the Complainant. While this is not in itself a decisive consideration, the Complainant organized her own work and schedule in a manner that suited her own circumstances.
While the Complainant said that her work on behalf of the Respondent left her little time to pursue her other business interests there was no impediment to her generating income from other sources. Indeed part of the arrangement with the Respondent facilitated this through the work with Farmers directly. It is not reasonable to deduce that someone who was engaged in a contractual relationship for nearly 16 years which involved invoicing the Respondent and declaring themselves liable for self assessment income tax can then say they understood this contractual relationship to be an employee/employer relationship when the circumstances of the Contract changed.
It is equally significant that other terms of the Complainant’s engagement were also consistent with its classification as one of a contract for services. Unlike employees, the Complainant was the sole point of contact with the Clients.
With regard to the “three tests”, the Complainant operated her own business and provide services independently to clients which she received direct income from. She worked from home and was not in any way integrated with the Respondents operation. She also operated in a self employed manner and was and did engage directly with a variety of customers, including the Respondent. Their was really no evidence to support a claim that she had become “integrated” into the organisation and while received some equipment from the Respondent his was of a limited variety.
With regard to the Mixed Tests outlined above it is clear that the Complainant was obliged to provide her skill, but not limited by contract to her being the sole provider of that service herself for which she got paid by invoice.
With regard to their being a sufficient degree of control by the employer this has not been proven and the Complainant seemed pretty free to do the work at her own discretion.
With regard the other provisions of the contract must not be inconsistent with its being a contract of service all the contractual signs were that it was a contract of service.
It is clear from the construct of the contract wording that the Respondent intended the relationship to be one of an Independent Contractor. It is also clear that the Complainant operated this Independent Contractor situation for 14 years and only challenged the issue when the contractual terms changed. The Complainant was not paid a salary, was free to take or leave work, was free to take on additional work than from the Respondent, was free to delegate the work, was not integrated into the operation of the Respondent, charged fees for a multiple level of services by invoice, choose her own days and times of work, was not controlled in a detailed way by the Respondent as to the detail of how and when she performed the work, declared herself to the Revenue as “self employed” for tax purposes, was never entitled to holiday or sick pay nor made a claim to be paid holiday pay over the course of the relationship. The Complainant was not “controlled” by the Respondent in any substantial way which would lead the relationship to be a employee/employer relationship. The Complainant was provided with equipment from the Respondent but this positive in her favour is minor in the overall scheme of the situation. The Complainant was also free to decline work if she choose to do so. The Complainant was obliged to provide her own insurance and did so for pubic liability in common with her Husbands business interest. However, this was limited to farm activity and is not clear if the policy applied to the Complainant. Either way the contractual liability was with the Complainant if an event requiring insurance cover occurred, which happily it does not seem to have over the course of the relationship. It is obvious that the Complainant provided services to other farmers. It would appear the Respondent really operated as a “Referral Service” to the Complainant for business and only certified the final outcome of her work. There was no “Mutuality of Obligation” on the Respondent to provide work in the situation. The issue of profit as per the Supreme Court decision in Henry Denny & Sons v Minister for Social Welfare above rested with the Complainants efficient use of her time and skills to minimise cost in relation to the fees provided by the Respondent. This would satisfy the test set out above that the Complainant was engaged in a business venture rather than an employment relationship.
I found that the economic reality of the situation also lends itself to a contract of service. The Complainant was not on a salary, was paid by Invoice for fees earned on a variable basis and declared herself self employed to the Revenue.
It is also of great importance that prior to her constructive dismissal in July 2015, there was no dispute between the parties regarding her employment status. The Complainant cannot seek to "approbate and reprobate” i.e. it cannot be ignored that she claimed to be self-employed when it was to her advantage and yet she subsequently attempted to disclaim her self-employment status when it may have been a liability.
Finally, as the Complainants case it that she was an employee, she technically still is under the new contract, and this in itself causes complications to her claim for Unfair Dismissal as she would have to prove she had to leave and only returned under duress in a new contractual relationship situation. However, I am not going to delve into this issue further in this determination as it creates a whole other issue of whether the Complainants relationship with the Contractor had terminated at all.
For all of the above reasons the Adjudicator is satisfied that the Complainant was properly classified as an independent contractor from the commencement of her relationship with the Respondent until June 27th 2015 and was therefore not “an employee” as defined by Section 2 of the Act. Consequently the Complainant does not have the requisite service to sustain a claim under the Act and the Adjudicator has no jurisdiction to investigate the complaint for Unfair Dismissal. The Claims under the Organisation of Working Time Act 1997 and the Terms and Conditions of Employment Act 1994 also are not well founded as a result of the Complainant not having the employment status to proceed with a claim under those Acts.
Dated 10th July 2017