Complainant

Respondent

Anonymised Parties

A Courier

A Hospital Group

Representatives

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00010516-001

29/03/2017

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

CA-00010516-002

29/03/2017

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

CA-00010516-003

29/03/2017

The Complainant entered into an agreement with the Respondent and delivered laboratory samples for the Respondent to different hospitals in various locations since 2nd April 2002. This agreement was terminated by the Respondent in April 2016. The Complainant claims that his contract of employment was terminated in February 2016 and he performed his last delivery for the Respondent in April 2016. At the hearing the Parties agreed that the last date the Complainant delivered samples for the Respondent was 2nd April 2016.

The Complainant claims that he was an employee of the Respondent and was entitled to redundancy payment, annual leave entitlements and his notice.

The Respondent denies the claims and argues that the Complainant was self-employed and engaged under a contract for service.

The Respondent entirely refutes the assertion that the Complainant was an employee and argues that he was an independent contractor engaged under a contract for services. The Respondent submits that the Complainant was self-employed under the business name “ABC”. The Complainant was one of several couriers which the Respondent used for a number of years.

In early 2015 negotiations had taken place with the Complainant with a view to reducing costs. At that time, the Complainant asserted that he was working exclusively for the Respondent. He was advised that the level and extent of his service provision was a matter for himself. When the Complainant first commenced providing services for the Respondent, the Respondent understood that he was also employed by other entities for courier services.

The Respondent submits that a Service Level Agreement (SLA) was required as otherwise the Respondent would be in breach of National Financial Regulations (NFRs). The Respondent presented at the hearing a copy of “Service Level Agreement for Transport Service between [Respondent] and “ABC” Courier Service” dated August 2014 and July 2015. The SLA provided that the service required the transport of laboratory samples “as required” and “upon request” and for the most part (but not exclusively) within Monday to Friday regime. The SLA also made provision for a schedule of costs, which were set up for a round trip. The schedule also included details of VAT payable to the provider of services at 23% and set out the procedure for invoicing. The SLA also made provision for a review date which stated: “This is a rolling service level agreement which is subject to review, when appropriate. This Agreement is subject to compliance with NFRs. Any subsequent contracts awarded by the National Procurement under its obligations may supersede this agreement.” The SLAs were signed by the Respondent and by the Complainant “on behalf of the ‘ABC’ Courier Service”.

The arrangement with ABC formally concluded following a tender process which commenced in 2015 and which was conducted as per the NFR requirements. All existing and prospective suppliers, including the Complainant, were notified of the tender process in advance. The Complainant submitted an application to the Respondent procurement office and was unsuccessful mainly because he had only tendered for a portion of the work and not the full requirement and therefore was deemed non-compliant for the requirement of the service. The results of the tender were notified to the parties in writing on 17th December 2015 by the Respondent’s national procurement office. The letter confirmed the identity of the successful applicant and outlined that the decision was subject to a standstill period until 3rd January 2016. The Respondent further advised that under the EU procurement law, they are obliged to observe a standstill period of at least 14 days before finalising with the preferred bidder. This period is available to deal with any queries from unsuccessful tenderers. All such queries by tenderers were to be remitted to the Respondent national procurement office. The Respondent is not aware whether the Complainant took up further queries with the procurement office. The Respondent wrote to the Complainant in February 2016 to confirm the outcome of the tender and to advise that the tender contract would commence on 1st April 2016, and from that date, all transport samples would be the responsibility of the successful bidder. PK, Chief Medical Scientist and KO, Laboratory Manager of the Respondent also met with the Complainant after the tender award and explained the process in detail to him. The Complainant was advised to contact the national procurement office with regard to any queries with the tender process.

The Respondent argues that for an employment relationship to exist there must be a mutual obligation on the employer to provide work for the employee and on the employee to perform that work. The mere fact of existence of mutuality is not determinative. The Respondent submits also that the fact that work is given regularly for a period of time is not necessarily determinative of whether there is an obligation on one of the parties to provide work. In McKayed v Forbidden City Limited, the plaintiff could refuse work, which could come at any time of the day. In the case therein, the Complainant had the same ability to decline work as the Respondent had other contractors engaged in similar service and available for duty and the couriers could be selected interchangeably. The Respondent submits that other key factors need to be considered such as: the written contract of employment, the degree of control exercised over how work is performed, is the worker in business on his own account, the degree to which the worker is integrated into the workplace. The Respondent submits that the Revenue’s Code of Practice for determining Employment and Self Employment Status of individuals can also be considered.

The Respondent accepts that the Complainant was engaged to undertake service for a long number of years. It was the Respondent understanding that he operated and provided services for other entities. He more recently indicated that the Respondent had become his only contract. It was the matter entirely for the Complainant to maintain, expand or reduce his clients and the fact that he let other clients lapse should not transform him into contract of service.

The Respondent submits also that the Complainant was not in receipt of a regular wage and was paid for services that varied from week to week.

Two witnesses gave evidence on behalf of the Respondent.

Evidence of PK, Chief Medical Scientist

Ms PK stated that in 2002 she contacted several courier businesses in relation to the delivery of samples. The Complainant was originally providing his service 1-2 days a week. He was at no stage precluded from canvassing and securing work from other laboratories. Ms PK confirmed that on occasions when the Complainant was not available there were other courier services available. Ms PK confirmed that the laboratory would have samples ready for collection by 11am. The Complainant was not required to be at the Respondent’s premises before 11am and he was rarely asked to work at the weekends, which work he could decline. She confirmed that the Complainant requested to have his invoices submitted twice a month in order to speed up the payment process but he was never paid a fortnightly wage.

Evidence of KO, Laboratory Manager

Mr KO outlined the regulations in respect of the standards required in relation to the services provided by the Complainant. He stated that in order to comply with the changed standards the SLAs were introduced in 2014.

The Respondent relies on the following case law: Minister for Agriculture & Food v Barry & Ors [2008] IECH 216, McKayed v Forbidden City Limited T/A Translation [2016] IECH 722, Monsoor v Minister for Justice Equality and Law Reform & Ors [2010] IECH 389, Castleisland Cattle v Minister for Social & Family Affairs (2004), O ’Coindealbhain (Inspector of Taxes) v Mooney [1990].

The Complainant was accompanied by his son and his accountant. He confirmed that he was happy to proceed without legal representation. Complainant’s position is that over the course of 14 years he was an employee of the Respondent.

In his written submission, the Complainant asserts that the concept of mutuality of obligations existed between him and the Respondent whereby the Respondent was obligated to employ the Complainant to transport laboratory samples on a daily basis and the Complainant was obliged to undertake that work. Whether laboratory samples were required to be delivered or not, the Complainant had to be on call for the whole week. In Airfix Footwear Limited v Cope [1978] ICR 1210 it was found that where work is accepted and performed over a long period, the proper inference is that there may be a mutual obligation to provide and perform the work. The Complainant was employed for 14 years doing the same work on a weekly basis for the Respondent. The Complainant was under the control of the Respondent. He was subject to audit. He had to sign for all deliveries in various diaries. He had to undertake Pathology Department Training, he could not set his own rate. What he earned was dependent on work from the Respondent. He could not alter how he did work so as to maximise profit. The Complainant argues that he was over a 14-year period fully integrated into the Respondent. It is the Complainant’s position that he was not able to gain higher profit or returns. The rates of pay were set by the Respondent. He was dependent on the Respondent for work. He could not employ his resources to gain a higher profit. In the alternative, the Complainant submits that on each occasion that the Complainant was engaged to do a delivery or worked for the Respondent he entered into a separate contract governing that particular delivery or engagement, each engagement was a contract of service and by virtue of the Complainant’s and the Respondent’s course of dealing over a period of 14 years that course of dealings became hardened into an enforceable contract or a kind of overarching master or umbrella contract of employment which was a contract of service.

The Complainant submits that there was no written agreement between the Respondent and the Complainant. However, in July 2015 the Respondent drew up a Service Level Agreement (SLA) to cover deliveries made by the Complainant for the Respondent. The Complainant had no input into the SLA. In 2015 the Complainant was invited to submit a tender for continuing work with the Respondent. He did so as he felt he had no other option. However, it is apparent from the tender process that the Complainant, as a driver of a single van was never in the running to succeed. By letter date 17th December 2015 the Complainant was advised that he was unsuccessful and that a named Company would now operate in his place. The named Company were to commence operations on or about 4th January 2016 but the Complainant received work up to 1st April 2016.

Over the course of 14 years the Complainant considered himself an integral part of the Respondent organisation. He worked 5 days a week for the Respondent. He was always on call for the Respondent. He made himself available when required. He undertook training when instructed to do so by the Respondent. He submitted invoices every two weeks and was paid fortnightly. He had no input into the amount he was paid. He had no input into any aspect of the work save to drive the samples from the Respondent to various locations.

Service Level Agreement

The SLA sets out the terms of each trip which the Complainant was to undertake. The Complainant was to sign a diary on pick-up and on delivery of samples. He had to be available to deliver urgent samples within four hours of pick-up. He had to record times. More importantly the Complainant had to make himself available for training required by the Pathology Department. Costs were set out in a schedule of costs. These were non-negotiable and set by the Respondent. The costs were for round trip to a destination. The cost remained the same no matter how many places were visited in that destination or how many samples were delivered. The hours of work are stated as the Complainant to provide the service five days a week upon request. Urgent requirements outside these hours were to be agreed between the Complainant and the Respondent. The General requirements state that the Complainant was to provide a service, Monday to Friday, 9am to 5pm from the Respondent to the agreed destinations as required. The Complainant was to provide his own vehicle. He also made his own tax returns.

The Complainant submits that he was obliged to make himself available Monday to Friday, 9am to 5pm for work for the Respondent. The Respondent was obliged to give him that work. This is clear implication of the SLA. The Complainant had to make himself available for any deliveries the following day, in that respect he is no different to an employee on call. The Respondent was responsible for their own laboratory samples and had control over its work (in contrast to McKayed v Forbidden City Ltd.) The Complainant had to make himself available for urgent deliveries. The Complainant submits that he could not turn down work if it did not suit him.

The Complainant worked for the Respondent for 14 years. In Minister for Agriculture v Barry the High Court notes by way of obiter dictum remarks that where a person has a course of dealings with another over a lengthy period of time that course of dealings may become “…hardened or refined into an enforceable contract, a kind of overarching master or umbrella contract, if you like, to offer and accept employment, which master or umbrella contract might conceivably be either contract of service or contract for services or perhaps a different type of contract altogether. The notion of an umbrella contract, though controversial, has featured in several English cases involving particular classes of workers, such as outworkers, casual workers and piece workers…” It is accepted that the High Court’s remarks were obiter dictum it did leave that possibility open to be considered. Further it should be noted that the High Court endorsed the views of Stephenson LJ in Netherermere when considering what is termed the enterprise test or fundamental test.

The Complainant argues that the Henry Denny case is apposite when considering the Complainant’s position. The Complainant was under continuous supervision of the Respondent. He had to sign the requisite diaries and forms. He was subject to audit. He had to go where he was told and make himself available five days a week. The amount of remuneration the Complainant earned was solely dependent on the Respondent. This was determined exclusively to the extent his services were availed of. The Complainant was not in a position by better management or better employment of resources to gain a higher profit for himself the Complainant did not as a matter of routine engage others to make deliveries for him. If he did so he obtained consent from the Respondent.

It is conceded that the Complainant was not provided with a uniform or equipment to undertake his work and he provided his own van. It is argued that employees generally use their own vehicles for work. It is further submitted that many jobs come with the proviso that the successful applicant must have his/her own vehicle or transport.

In conclusion, the Complainant submits that a mutual obligation existed between the Complainant and the Respondent whereby the Complainant was obliged to perform work for the Respondent and the Respondent was obliged to provide him with that work and pay him. That relationship had all elements of master/servant or employer/employee relationship. This relationship existed for 14 years. The Complainant was not an equal to the Respondent, in fact he was dependent in all aspects of the work on the Respondent, including earning a wage from work provided by the Respondent. The facts show that the Complainant was operating under a business name that was essentially himself. He had no control over his business and how it earned money. He was not in a position to earn higher profit. He had to do what he was instructed to do and make himself available for that. His only employer was the Respondent. If he did take odd jobs outside of his role with the Respondent this did not interfere with the fact that he was on call 9am to 5pm with the Respondent. The Complainant submits that despite what his contract says he was an employee of the Respondent.

The Complainant gave direct evidence at the hearing. He stated that in 2002 he was approached by Ms PK of the Respondent to do deliveries for the Respondent. He confirmed that initially he worked also for other businesses but with time due to the volume of work for the Respondent he limited his services to the Respondent only. He stated that he was asked to sign the SLA but has not read it. He confirmed that he received a copy of the SLA and forwarded it to his accountant.

The Complainant confirmed that it was up to him to organise cover when he would have taken time off. He stated that his family members would have cover for him and at times he would have to get another driver (e.g. if samples were required to be delivered to two separate locations). The Complainant confirmed that the standard procedure was that he was informed when the samples were ready for collection and he was to deliver them within 4 hours from pick-up to the required location. He would sign confirmation of the pick-up time and similarly he would sign the delivery time at the destination. However, no records of hours of work were kept. There was no supervision of his work as long as the samples were delivered within the specified time limit. The Complainant confirmed that there were times when there was no work for him or when he couldn’t work but, in general, he was on call. The Complainant confirmed that he did not receive travel and subsistence or overtime pay. He has never requested annual leave or public holidays’ entitlements and he has never raised the matter of his employment status with the Respondent. He stated that if he was to take holidays he would have arranged for someone to cover for him. He confirmed that although he was not precluded from taking up other work after the initial period of time the level of work for the Respondent was such that he stopped working for other businesses.

The Complainant relies on: McKayed v Forbidden City Limited t/a Translations.ie [2016] IEHC 722, Minister for Agriculture and Food v Barry [2009]1 IR 215, Ahktar Mansoor v Minister for Justice Equality and Law Reform [2010]IEHC 389, Airfix Footwear Limited v Cope [1978] ICR 1210, Henry Denny & Sons (Ireland) t/a Kerry Foods v The Minister for Social Welfare [1998] 1 IR 34, Netherermere (St Neots) Ltd v Gardiner and anor [1984] ICR 612, Aslam & ors v UBER BV & ors .

In order to decide whether the Complainant is entitled to pursue his complaints it is necessary to determine the nature of employment relationship between the Parties and decide whether he was engaged under "contract ofservice" or "contract forservice" by the Respondent.

The case law in relation to the employment status has developed over the years and a number of tests have been applied by the courts in order to determine the employment relationship. The High Court in The Minister for Agriculture and Food v John Barry & Ors [2008] IEHC 216 made clear that all of the tests are potential aids for identifying the nature of the working relationship and no single test is definitive.

I note that in the case of McAuliffe v Minister for Social Welfare [1994] ELR 239 Barr J. said it was not possible to devise any hard and fast rule as to what constitutes a contract of service.

The Tribunals are required to look at totality of relationship between the parties and each case must be considered on its particular merits. Accordingly, it is necessary to consider the evidence as presented under a series of tests as set out in the varying court cases that have dealt with this issue.

Mutuality of obligation

In order for a contract of service to exist there must be mutual obligation on the employer to provide work for the employee and on the employee to perform work for the employer. There is an ongoing duty to provide work and one to accept work. In Minister for Agriculture and Food v Barry & Orsthe mutuality of obligation test was endorsed by Edwards J. when he stated “The requirement of mutuality of obligation is the requirement that there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer. 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”. I note that the Respondent submits that the Complainant was offered work and was required to “provide this service upon request 5 days a week”. The SLA clearly stipulates that “The service provider will provide daily, Monday to Friday service….as required”, “Urgent requirements …will be agreed between the requestor and the service provider”, “the service provider will be contacted the evening before collection for non urgent requests. A time and date will be agreed between the laboratory and the service provider for collection of the laboratory samples…”. Therefore, the Respondent argues that there was no obligation to provide work and the Complainant was not under any obligation to accept it.

The Complainant direct evidence is in stark contrast with the details of his written submission in that respect. In his written submission the Complainant claims that, as per the SLA, he was obliged to make himself available Monday to Friday, 9am to 5pm for work for the Respondent. I note that the SLA stipulates that “The service provider will provide a daily, Monday to Friday service …as required. The service provide will be contacted the evening before the collection for non urgent requests. A time and date will be agreed between the laboratory and the service provider…” I note that the SLA makes no mention of the service provider having to be available Monday to Friday, 9am to 5pm.The Complainant submitted also that he could not turn down work if it did not suit him and that he was obliged to perform work for the Respondent and the Respondent was obliged to provide him with that work and pay him. He argued that the relationship had all elements of master/servant or employer/employee relationship. He had to do what he was instructed to do and make himself available for that. However, in his direct evidence the Complainant confirmed to this Adjudication Officer that there were times when there was no work for him or he would not be available. He was not precluded from working for other businesses and, in fact, initially he did so. He also stated that at times his family members or other drivers would cover for him if he was not available for any reason including holidays.

On this basis I am satisfied that there was mutuality of obligation in this instance.

The Control Test

Is the person "subject to the command of his master as to the manner in which he shall do his work"? (Yewens v Noakes (1880) 6 QBD 530, Bramwell L.J.). The test was applied by the High Court in Minister for Industry & Commerce v Elizabeth Healy [1941] IR 545 and by the Supreme Court in Roche v Kelly and Co Ltd. [1969] IR 100 where Walsh J held that in master-servant relationship the master must have right to tell servant what to do and how to do it, whether or not he exercises that right. The more control that is exercised the more likely there is an employer/employee relationship. However, the employer may exercise very little day-to-day control but the relationship can still be this of master-servant. In the case of Re Sunday Tribune[1984] IR 505 although the company exercised relatively little control over them, the Court found that two journalists were employees.

In the instant case, both Parties confirmed that the Complainant was required to, and ordinarily performed deliveries upon request, at the later stage of his engagement with the Respondent five days a week. The Respondent confirmed that inability to undertake duties assigned by the Respondent would have no consequences for the Complainant as the Respondent had other couriers available to them. The Complainant confirmed at the hearing that at times he was not available and at times he would arrange a substitute driver. The Parties confirmed that here were no records of hours worked by the Complainant kept. I note the Complainant’s assertion that he had to sign a record/docket on collection and delivery of the sample. This however, appears to be a control measure in relation to the samples not to the Complainant’s hours of work. The Complainant confirmed that there was no supervision in terms of the route, time, rest breaks etc. of his work as long as the samples were delivered within the specified four hours window. When asked by this Adjudication Officer, the Complainant confirmed that there was nothing precluding him from taking on other engagements or making other deliveries en route, albeit he did not do so.

On the balance of probability, I find that there was a very low level of control exerted by the Respondent on the Complainant’s work. I find that the Complainant decided how, when and where the work was carried out as long as the samples were delivered within the specific time limit. I find that this test points to a contract for service relationship. On the balance of probability, I find that the Respondent did not prescribe the way the Complainant should conduct his business as long as it was compliant with the standards in respect of transport of samples. I find that the Complainant himself determined the way that he would go about his business.

Integration test

The test was proposed in Stevenson Jordan & Harrison Ltd. v McDonald and Evans [1952] 1 TLR 101and applied by the High Court in Re Sunday Tribune Ltd. The question to answer is whether an employee is employed as part of the business and his work is an integral part of the business, or whether his work is not integrated into business but is only accessory to it.

I note that the Complainant’s position is that he was integrated into the organisation. However, the Complainant confirmed that he did not have an office/desk within the Respondent, he did not have work phone, business cards, pass key/card to enter premises. The Complainant’s delivery van did not bear the Respondent’s logo and the Complainant was not provided with the Respondent’s uniform. The Complainant confirmed that he did not attend the Respondent’s work meetings or social events. I note that the Complainant was required to complete the training provided by the Respondent. I note that this requirement is outlined in the SLA. However, I find that due to the nature of the items transported (blood samples, bone marrow samples and human tissue sample) it would be appropriate to provide a training for those handling the samples. Moreover, the work of the Complainant and other contracted courier services providers was interchangeable.

On the balance of probability, I find that the above test indicates that the Complainant was engaged as an independent contractor.

Entrepreneurial Test

The test is to assist to determine whether a person is in business on his own account.   The Code of Practice for Determining Employment or Self-Employment Status of Individuals issued through the Department of Social Protection provides clarification of this issue. It states that: “An important consideration in this context, will be whether the person performing the work does so “as a person in business on their own account”.” Is the person a free agent with an economic independence of the person engaging the service?”

The Entrepreneurial Test was developed in the English case of Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173, where Cooke J held “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’’.

This test was endorsed by the High Court in O ’Coindealbhain (Inspector of Taxes) v Mooney [1990] IR 422and by the Supreme Court Henry Denny & Sons (Ireland) Ltd. V Minister for Social Welfare. It has been since applied by the High Court and the Supreme Court in many cases to establish whether a person was an employee or an independent contractor.

The main questions to answer are:

a)       Did the Complainant have the opportunity to supply services to others during his contract of engagement with the Respondent?

b)      Was the Complainant permitted to employ assistant or subcontract his work?

c)       Did the Complainant have the opportunity to maximise his profit from sound management in the performance of his tasks?

d)      Did the Complainant provide equipment or some form of investment?

I note that the Complainant applied for the position on the clear understanding that the contract was for service. I note that the subsequent SLA states clearly the following: “Title: Service Level Agreement for Transport Service between…”, “…The service provider will provide this service upon request…”, “…urgent requirements… will be agreed between the requestor and the service provider…”, “…a time and date will be agreed between the laboratory and the service provider…” The Complainant has not questioned these arrangements.

I note that the Complainant provided his own vehicle, he was also obliged to have appropriate insurance cover. He agreed to charge the Respondent per trip as per agreed schedule of costs and to submit invoices on a monthly basis (subsequently changed to twice a month). I note that the Complainant never received a flat wage fortnightly and his earnings depended on the number of trips made. The Complainant was permitted to sub-contract his work or hire assistants/other drivers. He had no responsibility for investments and management in the Respondent company. However, he had opportunity to profit from sound management in the scheduling and performance of his engagements. Equally, he was exposed to financial risk in carrying his work in terms of his own business. I note the Complainant assertion that he worked exclusively for the Respondent. However, as he confirmed, there was nothing precluding him from entering into other engagements. The profit he derived from his work was therefore dependent on the efficiency with which he conducted his work. The Respondent confirmed that the Complainant was engaged for 14 years but he was not prevented in any way from providing services to other people or businesses. In fact, the Respondent submitted that it’s understanding was that the Complainant did work for other businesses.

On the balance of probability, I therefore find that he was in business in his own right.

Taxation / VAT

I note in the Henry Denny & Sons (Ireland) Ltd. v The Minister for Social Welfare thedemonstrator in question submitted invoices yet it was deemed that she was an employee. Similarly, in Re Sunday Tribune Ltd. Carroll J stated that a Complainant’s taxation status was not a determining factor in deciding if an employee/employer relationship exists. I note that the Complainant submitted invoices to the Respondent on a regular basis. He was responsible for his own tax affairs, he charged VAT and he was registered with the Revenue Commissioners as self-employed.

Personal Service

The requirement for employee’s obligation to personally provide services to employer is the core of the employment contract. In Henry Denny Keane J held that the fact that the shop demonstrator did not as a matter of routine engage other people to assist her in work pointed toward her being an employee.

In this instance the Complainant was allowed to subcontract the work. When he was not able to do the work himself he would have made arrangements for a replacement. The Complainant confirmed that family members and other drivers on occasion would have delivered samples in his absence. The Respondent did not interfere with these arrangements. If the Complainant was not available and had no cover available the Respondent would have arranged one of the other Respondent’s contractors. The Complainant confirmed that at the initial stage of his engagement with the Respondent he worked for other business. However, with time he would be much busier with the Respondent and limited his service to the Respondent exclusively.

The above points towards contract for services relationship.

Written Contract / Parties’ Categorisation

I note that Geoghegan J in Castleisland Cattle Breeding Society Ltd v Minister for Social and Family Affairs held that “nevertheless the wording of a written contract still remains of great importance”. However, it is crucial to examine and have regard to what was the real arrangement, on a day-to-day basis, between the Parties. Employers cannot avoid an employer- employee relationship by drafting contracts that do not accord with the reality if the relationship.

In Firthglow Limited (trading as Protectacoat) v Szilagyi [2009] ICR. 835 Smith L.J. in the Court of Appeal stated: “In a case involving a written contract, the tribunal will ordinarily regard the documents as the starting point and will ask itself what legal rights and obligations the written agreement creates. But it may then have to ask whether the parties ever realistically intended or envisaged that its terms, particularly the essential terms, would be carried out as written. By the essential terms, I mean those terms which are central to the nature of the relationship, namely mutuality of obligation… and the obligation of personal performance of the work”. The same principle was followed in Autoclentz Ltd. V Belcher [2011] I.C.R. 1557.

Similarly, in Henry Denny despite the wording of the written contract “deemed to be an independent contractor”, and nothing in the agreement should ‘‘be construed as creating the relationship of master and servant or principal and agents’’ Murphy J held that an attempt must be made to ascertain the true bargain between the parties, rather than merely rely on the ‘‘labels ascribed by them to their relationship” and that ‘‘the facts or realities of the situation on the ground’’ must be considered. In Re Sunday Tribune Ltd [1984] IR 505 Carroll J. stated: “The Court must look at the realities of the situation in order to determine whether the relationship of employer and employee in fact exists, and it must do so regardless of how the parties describe themselves”.

I note that SLA signed by the parties stipulates that the Complainant was a "service provider". This Agreement did not provide for payment of wages, overtime, sick or holiday pay. There was no reimbursement of expenses incurred by the Complainant. There was no evidence presented by the Complainant that he had raised these issues with the Respondent during the course of his 14 years with the Respondent.

Having considered the evidence available to me I find that the Complainant’s relationship with the Respondent was as described in the SLA that of a service provider.

I have subjected the employment relationship between the Parties to a number of tests. I have reflected on the evidence and I have concluded that the relationship was that of an independent contractor whereby the Complainant would provide a service and the Respondent would pay an amount based on fee per trip. I find that, on the balance of probabilities, the Complainant was an independent contractor, and that this was in effect a contract for service.

Therefore, I have decided that I have no jurisdiction to hear the claims under the Organisation of Working Time Act, 1997, the Redundancy Payments Act, 1967 and the Payment of Wages Act, 1991.

Employment status- redundancy- annual leave- minimum notice