Complainant

Respondent

Anonymised Parties

Data Analyst

A Tech Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00005396-001

21/06/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00005396-002

21/06/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00005396-003

21/06/2016

This case is conjoined with ADJ 5594. The Complainant commenced work as an Independent contractor on 11 November, 2014. She has submitted three claims associated with her employment with the respondent which is disputed. The complaint was lodged on 21 June 2016.

1 The complainant submitted that she was wrongly classified as an Independent contractor and was instead an employee.

2 The complainant submitted that she had been deprived of annual leave , social security benefits and public holidays .She claimed payment for 20 days annual leave and 9 public holidays.

The complainant is a Dutch National who commenced work as a Data Analyst on 11 November 2014.She was described as a self employed contractor .She was based on an associate company site and reported to the respondent representatives .She clocked in and worked a set working week of 40 hours .Her lunch break was reduced by half an hour in 2015.Changes were communicated by email. She worked overtime.

The complainant contended that her work was continually tested by her manager and she was fully engaged in the social aspect of the work environment .She followed the respondent policies and this was her sole employment.

She contended that she was in fact an employee and not an Independent contractor. She submitted daily reports and spreadsheets and did not provide her own tools .The complainant submitted that she was employed by the respondent but under the daily control of the associate company. She has discussions with the respondent in December 2015 surrounding “employee status “Some progress was made and she was offered a fixed term contract in June 2016. She sought clarification on clause 24 :

The complainant contended that she witnessed inequality as pay rises were given to some staff and others secured promotion .The complainant sought transparency. She stated her dissatisfaction with the confusion she experienced when being asked to work as an employee but paid as a Contractor and when she sought to work as a Contractor, this was not permitted by the respondent.

The complainant sought compensation for the non payment of annual leave and PRSI by the respondent. She was awaiting a Determination on her employee status from the SCOPE section of the Department of Social Protection.

The complainant left the respondent employment in August 2016 (The circumstances surrounding this are incorporated in the conjoint claim lodged on 10 October 2016).

CA-00005396-001 Industrial Relations Dispute :

The complainant sought compensation for her mis categorisation as an Independent Contractor by the respondent when she should have been recognised as an employee in receipt of associate benefits.

CA -00005396-002 Payment of Wages Complaint

The complainant submitted that she was employed to work a 35 hour week. On the 9^th August, 2015, this was unilaterally increased to 37.5hrs without extra pay .She had 44 weeks of lost pay resulting in €2,464.00 loss.

The complainant submitted that she had not been paid for 20 days of annual leave and 9 public holidays. Her daily rate was €128.00 per day .She submitted that her loss amounted to €3,712

Total claimed : €6,176.00

CA -00005396-003 Organisation of Working Time Act complaint.

The complainant submitted that she was owed €3,712 for 20 annual leave days and 9 public holidays as an employee.

The complainant was engaged by the respondent on a contract for service basis in November 2014, This was part of a Project, and on a contract for service with an associate company .She agreed to an extension in her contract from 30 September 2015 to 30 September 2016 and indicated her satisfaction with the opportunity to remain with the respondent.

The complainant, along with other independent contractors expressed an interest in converting to fixed term employment. The respondent offered the complainant fixed term employment on 28 June 2016.

CA -00005396-001 Industrial Relations Dispute

The respondent rejected the complainant’s contention that she was an employee and submitted that the complainant had not submitted details of a Trade Dispute.

The respondent submitted that there was duplication in all three complaints lodged on 21 June 2016.

CA -00005396-002 Payment of Wages Complaint

The respondent disputed that the complainant was an employee and pointed to the date of alleged contravention as 9 August 2015. The respondent relied on a High Court case of HSE V Mc Dermott [2014] IEHC 331 and submitted that the complaint is outside the statutory time limit.

CA-00005396-003 Organisation of Working time Act Complaint :

The respondent submitted that the complaint related to an infringement since 11 November, 2014 and submitted that the claim is out of time and should be dismissed.

I have found that based on the evidence before me of the reality of the employment relationship, the complainant can properly be regarded as an employee of the respondent from November 2014.

I have considered the presentations made by both parties and I have read both parties comprehensive written submissions.

This claim is related to a large cohort of similar complaints lodged with the WRC, involving the respondent in 2016 .I adjourned the complainants hearing in November 2016 to facilitate a conjoint hearing into a latter day complaint ADJ 5594.The complainant lodged her complaint with the assistance of her Union and was represented by the Union at the hearing on 16 January 2017. During mid February, 2017, the complainant submitted a copy of her Determination from the SCOPE section of Department of Social Protection.

“ It has now been accepted by ( The respondent) that your engagement with them was under a contract of service ( i.e. employee status ) ….This involves the collection of outstanding   PRSI “

This information was copied to the respondent and no further points were raised.

I have carefully considered the facts as raised by the parties in this case. It was clear that the contract for service raised with the complainant in November 2014 had all the hallmarks of a contract befitting an Independent Contractor. I accept the evidence of the respondent that the project expanded with the associate company on broader scale than they had ever anticipated and it took some time before the attention was drawn to categorisation of the contractors.

However, I am persuaded by the account of the “reality of the employment relationship” as advanced by the complainant. She detailed a true employment relationship in line with the primary decision in these cases ADJ 4297. I note that the complainant was pro-active in chasing employee status late in 2015.

I find that her complaint is well founded and uphold the complainants claim for employee status ; however, the complainant no longer works with the respondent. The most practical recommendation open to me in this case, given the timing of the Dispute, is to require the respondent to pay the complainant €3,000 in compensation for the miscasting of the complainant as an Independent Contractor, when the reality of the employment relationship clearly dictated that she was an employee.

This award is to be paid within 4 weeks in the event that the parties accept this recommendation.

Contract for / Contract of service.