Act

Complaint Reference No.

Date of Receipt

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

CA-00009161-001

18/01/2017

Complaint    seeking adjudication by the Workplace Relations Commission under Section 11    of the Minimum Notice & Terms of Employment Act, 1973

CA-00009161-007

18/01/2017

The complainant commenced   worked as a part time personal assistant and reception at a fitness club in   November 2014 and was paid €10 per hour. She was also able to avail of free   tuition for her daughter to the value of €80 per month.

Her employment was terminated   on October 3^rd 2016.

The respondent asserts that the   complainant was at all times self employed and therefore falls outside the   protection of the Unfair Dismissal Act.

In correspondence with a WRC   inspector he pointed out that he was not her employer and that she had   requested time to consider whether she wished to remain self employed or   ‘take up [his] offer of PAYE employment’. She did not respond.

The respondent says that   initially the complainant assisted with the work of the club on a voluntary   basis and then offered to help with administrative work. However, he submits   that she was not an employee.

The complainant rejects this   and says her work in all respects had the characteristics of a contract of   service. She had varying, but regular hours, she was paid a fixed amount   generally on the seventh of each month.

The issue as to whether an   employment relationship is a contract of service (the normal employment   relationship) or is on a contract for services (a traditional contractor) has   important consequences, in the context of statutory employment rights and   social protection.

It can sometimes be difficult   to discern which category it is and there are a number of criteria and indicators   which can assist in doing so.

One thing is clear however is   that this is not simply a matter to be left to agreement between an employer   and an employee if they agree on something which flagrantly contradicts the generally   accepted tests and indicators.

It is not open to an employer   to give to a prospective employee a   choice such as was claimed here in respect of a position which to the most   superficial examination looks like, and was based on a contract of service.   The respondent had a book keeper involved who would be expected to know what   the legal provisions were. In any event, a prudent employer would be better   advised to make a presumption that where a role looks like a traditional one   it should by default be treated as a contract of service.

There was nothing in the nature   of her employment which might define her as a ‘contractor’ (i.e. ‘for   services’)

Both the tone and content of   material submitted by the respondent himself give a clear indication of the   nature of the relationship; he is issuing instructions, requiring reports and   even making several references to the complainant as an ‘employee’.

An example from an email of   September 2^nd 2016 is as follows.

‘…I would like to see the office work is done the way I decide and   the way I instruct my assistants and instructors to do’

On September 5^th 2016   he had asked for ‘daily reports’. In the letter of termination he said that   he had emailed her ‘instructions/warnings   in numerous times’ (sic) and her work was described as ‘secretarial services’.

On September 27^th he   sent her a list of some seven detailed tasks that needed ‘to be done urgently’.

Accordingly, I can see no basis for concluding other   than that the complainant was employed on a contract of service, on any view   of the employment relationship. The respondent’s attempt to suggest that the   complainant remained in some sort of employment limbo because of her failure   to provide tax clearance information is without merit.

The obligation fell on him as an employer to correctly set up the   complainant as an employee; it was not a matter for her to decide, nor should   her failure to provide information be used as a reason not to do so.

Her complaint therefore falls to be dealt with under the Unfair   Dismissals Act.

The respondent says that the   facility run by him is a community club and not strictly a business. However   it has been losing members and tensions were developing between participants   in the club.

He says that he wrote to the   complainant on a number of occasions, (and copies were provided in evidence)   but he did not issue any formal warnings.

However, things were very bad   in the club and the complainant was ignoring his attempts to improve the   atmosphere.

He therefore terminated her   employment by email of October 3^rd 2016

While there had been some   difficulties with the respondent in January 2016 the sequence of events which   led to the termination of her employment began in September 2016.

Prior to that she had not been   given any formal warnings as to her conduct or performance.

On Friday, September 30^th   she received a text message from the respondent to say that she would not be   required to work the following day.

On Monday October 3^rd   while she was on her way to work she received two messages; initially saying   she would not be needed that day or for the rest of the following week and   then a text message stating that her services were no longer required.

She replied asking for an   explanation and suggested a meeting with the respondent.

However the respondent refused   to meet with her or explain further and said it was his business and he would   run it as he saw fit.

He demanded that she return her   keys.

There was a further email on   October 3^rd which is considered below in my Findings.

The respondent sent an email to the complainant at 4.30 pm   on October 3^rd, some time after he had texted her to terminate her   employment.

It contained the following (errors appear in original).

As I’ve warned you verbally in many   occasions and have also provided you instructions/warnings in numerous times   I requested your secretarial services to be done according to the policy of the   club that have been put together in the past 30 years and proved successful   and acceptable by all members and their families, also to comply with data   protection at all times.

As you are not following the club policies   and there is loads of tension involving yourself, some of he assistant   instructors and visiting instructors accumulated during last couple of   months, I consider the best option is to let you go and cancel all your secretarial   services as you yourself seem very unhappy in club recently.

This followed an email the previous Friday where the   respondent had told her not to present for work the following day and that ;

‘We need to meet up and talk at some stage   today or Monday. There is something very important and I prefer to   communicate in person as opposed to send you an email’

No meeting took place on foot   of this email. Instead the sequence of events leading to the termination of   the complainant’s employment followed.

It is fundamental to the   conduct of workplace discipline of any sort that fair procedure appropriate   to the level of discipline involved be applied.

This is not an onerous   requirement and might be said to be little more than a legally expressed version   of simple courtesy.

It requires that an employee be   made aware of deficits in performance, given a clear opportunity to improve,   and where discipline is contemplated to be put on clear notice of any   proposed process which might result in adverse findings against them, and a   broad indication of the range of any sanctions that might follow.

It will be seen that in the   current case none of this was observed. It was something of a masterclass in   what should not be done.

There had been no warnings,   oral or written, of the nature required, there was no prior notice to the   complainant that her position might be in jeopardy, she was given no   opportunity to answer any charges against her and she was given no right of   appeal.

The respondent’s further and   somewhat fanciful attempts to deny the complainant a hearing by   asserting that she was not an employee   also reflect badly on his handling of the case, although happily the parties   remained on amicable terms.

I have no hesitation in finding   the dismissal unfair.

The complainant is entitled to   be compensated for her financial losses arising from the dismissal.

It is ten months since the   dismissal representing a gross loss of €5,000. She is also at the loss of the   Benefit in Kind in the form of the free tuition to her daughter which I place   at €800.

However she has had income of   €4,689 in the period which I must take into account. Her future loss of   earnings potential is also diminished by the fact that she is undertaking a   course of study.

She also has a claim under   Section 11 of the Minimum Notice & Terms of Employment Act, 1973. She was   entitled to receive one week’s notice of the termination of her employment.

I uphold complaint CA-00009161-001 under the Unfair   Dismissal Act 1977 and award her €1,100.

I uphold complaint CA-00009161-007 under the Minimum   Notice and Terms of Employment Act 1973 and award her €580.

In each case this is subject to normal statutory   deductions.

Unfair Dismissal, fair procedure, Notice.