Complainant

Respondent

Anonymised Parties

An Art Teacher

A Health Provider

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00006999-001

07/09/2016

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

CA-00006999-003

07/09/2016

The complainant had been employed since 2003 to provide art lessons as a form of therapy for people experiencing mental health difficulties.

He provided two sessions each week of one and a half hours duration each.

His position was terminated following an allegation of an inappropriate relationship with a service user.  

The respondent raised a preliminary issue regarding the status of the complainant to lodge a complaint under the Unfair Dismissals Act.

It says that it is not the complainant’s employer within the meaning of the Act as he is employed to carry out sessional work, he is not paid via the organisation’s payroll, is not pensionable as all employees are, and has no entitlement to sick pay or other employee benefits.

He is entitled to organise his work as he sees fit and is not subject to direct supervision.

While tax is deducted from his earnings this has only been the case since 2015.

Finally, there is no mutuality of obligation between the parties.

On the substantive matter the respondent says the complainant accepted that there had been an intimate relationship with a service user. No further investigation was necessary as   he had admitted the facts as put to him.

The disciplinary process was not invoked as he was not an employee.

The respondent denies that it deliberately ‘leaked’ the information about his termination in advance.

The complainant was invited to a meeting on February 25^th 2016 at which the alleged relationship   with the service user was put to him.

He admitted it and told the hearing that he had met the person in question outside the facility and that   it was a fully consensual, adult relationship. She was no longer an ‘in-patient’ for over a year but he accepted that she continued to attend as an outpatient and was therefore still a service user.

The couple went on to have a child together.

He had not been given prior notice as to the nature of the meeting nor was he given any notes or report   of it subsequently.

At the meeting he was told not to conduct further sessions and was effectively suspended.

He made a number of efforts to clarify the position and having heard nothing attended on March 2^nd. He was told by management to go home.

On the basis of legal advice he presented again for work on March 9^th and towards the end of the day learned informally from a colleague that he was to have his position terminated.

He eventually received a letter dated March 16^th terminating his employment.

On the preliminary issue he says that the Revenue Commissioners treat him as an employee and he got a P45   on cessation.

All materials needed for his classes were provided for him and he brought no tools or equipment of his own   to the classes.

Preliminary Issue

In the first instance I have to   decide whether the complainant was employed on a contract of service such as   would bring him within the jurisdiction of the Unfair Dismissals Act.

The complainant thought he had been given a written contract but it had been mislaid.

The facts are that he had been employed without interruption for almost fifteen years for three hours per   week.

He attended at two venues and gave art lessons lasting an hour and a half to service users with mental   health problems; in a general sense he was a sort of teacher/demonstrator. He   supplied none of his own, or the participants’ materials.

There are a number of tests to distinguish whether a person is engaged on a contract of employment (‘of   service’) or is what is generally referred to as a contractor’ (engaged on a ‘contract   for services’).

Some are decisive in either   direction, some are more indicative.

In the leading UK case of Market   Investigations Ltd v Minister of Social Security [1969] 2 QB 173 a number   of tests were formulated.

1)       Does   the person performing the services supply his own equipment

2)       Can   he hire his own helpers?

3)       Does   he carry any financial risks and to what extent?

4)       What   opportunity does he have to make a profit?

5)     To what extent does he carry the responsibility   for investment/management.

The Revenue Commissioners of   Ireland have outlined similar tests in their Code of Practice for Determining   Employment or Self Employment. These relate to whether the employee;

1)       Is   under the control of another person who directs as to how, when and here the   work is to be carried out,

2)       Supplies   labour only,

3)       Received   a fixed wage

4)       Cannot   subcontract the work

5)       Does   no supply materials for the job

6)       Does   not provide equipment other than small tools of the trade

7)       Is   not exposed to personal financial risk in carrying out the work

8)       Works   set hours or a given number of hours

It will be obvious from these indicators that the complainant meets the criteria required for a contract of   service. Every single one of them can be answered in the affirmative in   respect of the complainant.

He was paid a fixed hourly fee of approximately €25 per hour (as evidenced by his payslip). Nothing he could   do would alter that rate of earning. The respondent supplied all the   necessary materials, The complainant in this case presented regularly at the place of work, at a starting and finishing   time determined by the respondent,  and so one can continue through the list.

Of course the respondent argued that it did not determine the precise content of the lessons, but in every   other respect the complainant falls squarely within the definition. The same   case can be made about a teacher in a school or the captain of a ship and is   not decisive in the face of the other facts in this case.

I have little hesitation in   concluding that the complainant met the criteria for the former; a contract   of service and falls within the jurisdiction of the Unfair Dismissals Act.

Other arguments advanced by the   respondent are circular ones; e.g. he is not an employee because he is not in one or other of their employee benefit schemes, or is paid through a   different mechanism than other employees.

But this begs the question and   does not answer it. It is of no evidential value at all to respond to a claim   that a person is an employee by saying he is not because he has none of the   consequential benefits of being an employee.

Substantive Issue

The evidence about the handling   of the matter was not in dispute.

The complainant was called to a meeting but given no indication as to its purpose or possible outcomes. When   it was put to him he readily admitted to the relationship. He was placed on a   form of suspension. The respondent agreed that it undertook no further   investigation because of the confirmation of the facts by the complainant.

And this is where the   respondent falls victim to its own presumption about the complainant’s   employment status. It was the decision to act on this presumption that is   fatal to its case.

In its submission to the   hearing it stated that its ‘disciplinary   procedure was not invoked in this incidence as the procedure is for [its]   employees and [the complainant] is not an employee’.

One might observe that fair procedure requirements are merely the legal expression of basic courtesy to   an employee, although with the significant additional force of constitutional   rights they are much more than this.

The meeting to which the   complainant was invited took place on February 26^th 2016.

As noted above there had been   no prior indication of its purpose. He was told that a decision would be made   and that he would be advised of it on February 29^th. This did not   happen.

The respondent was telephoned by the respondent’s sister on that day and she left a message but her call   was not returned. He made a number of ill advised attempts to attend for work   as he had heard nothing.

At one of these, on March 9^th   he heard from a co-worker that his contract was to be terminated.

On March 11^th, a   full two weeks after the initial meeting he received a letter confirming this.  

The respondent does not dispute   these deficits in how it handled the matter; it simply argues that given its   view (and it was stated to the hearing that advice had been taken on the   position) it was not obliged to carry out any process.

While this presumption is   erroneous as it turns out, had the respondent shown even elementary courtesy   to the complainant it might, even accidentally, have met the requirements of   a fair procedure; it is a matter of surprise that it failed to do so.

I find that the complainant was   an employee and falls within the jurisdiction of the Unfair Dismissals Act.

I find that he was unfairly dismissed and I take into account his thirteen years service, the fact that   the respondent is a large organisation with highly developed HR and   employment law resources.

I also take into account in   making my award the difficulty experienced by the complainant in securing new   employment given the inevitable leakage of the facts surrounding the matter (not, of course by the respondent).

He was not available for work   for six months due to a period of ill-health which I discount and he has   embarked on a training programme in a different subject area.

The complaint under the   Industrial Relations Act was withdrawn.

I uphold the complaint CA-00006999-001 and award the   complainant €5040.00 subject to the normal statutory deductions. Complaint  CA-00006999-003 was withdrawn.

Employment status, contract of service, unfair dismissal