Complainant

Respondent

Anonymised Parties

A Social Worker

A Children’s Rights Organisation

Representatives

nil

Harry Wall Ronan Daly Jermyn

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00018593-001

19/04/2018

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

CA-00018593-002

19/04/2018

The Complainant commenced working with the Respondent in May 2008.   His employment ended on 31 March 2018.   He was paid a daily rate of €350.   The Complainant lodged a Complaint Form with the WRC on 19 April 2018.

The Complainant submits that he was employed by the Respondent under a series of fixed term contracts since May 2008 as follows; May 2008 an 11-month fixed term contract, 2009 a fixed term contract, October 2010 a two-year fixed term contract with an extension for one year, November 2013 a two-year fixed term contract with an extension for one year, April 2016 a two-year fixed term contract.

In February 2018 the Complainant received a letter from the Respondent, terminating his employment with the Respondent, on the grounds of non-renewal of a fixed-term contract, which, in the Complainant’s eyes, was unlawful, in breach of his statutory protections as an employee pursuant to the Unfair Dismissals Acts, 1977-2015 and the Protection of Employees (Fixed Term Work) Act, 2003.

In March 2018 the Complainant’s representative wrote to the Respondent asserting that the Complainant’s fixed-term contract had transmuted to one of indefinite duration and that any attempt to terminate the Complainant’s employment would amount to an unfair dismissal. The Complainant’s representative also sought that his client be furnished with a Contract of Indefinite Duration (CID). The Respondent refused to grant the Complainant a CID and advised the Complainant not to return to work. The Complainant asserts is breach of the Act and an Unfair Dismissal.

The complainant submits that there were numerous points that support his contention that he should have been granted a CID. With regard to his working relationship with the Respondent the Complainant submits. inter alia, the following as indicators of his employment status:

He was required to carry out work from the Office base during the officer core working hours; he did not provide any materials for the work he carried out; the work he carried out was assigned to him by the Respondent’s management team, in practical terms he did not have control over the work which was assigned to him; he was not in a position to subcontract any work;   he was not exposed to any financial risk when working for the Respondent; he was required to submit weekly attendance sheets signed by management; he did not have any other paid employment in the years 2008 to 2016; during his time with the Respondent he was full-time Monday to Friday working and had to notify or request leave from management.

In 2016 the Complainant took a part-time job and job shared for 1 month. Again, in January 2018 he took a part time job and job shared. This was, according to the Complainant, a response to the changing circumstances as to how the Respondent was treating him and the days it designated to him.

Prior to 2016 he was required to discuss any days off with management and have these approved, from 2016 he was required to notify management of the days which they offered that he could work. He was required to attend weekly and monthly meetings at which he often lead specific projects, he was placed on cross-functional teams and attended team training sessions and often strategic planning meetings. He was involved in the training of inexperienced staff.

The Complainant submits that he worked only for the Respondent for the vast majority of his time there and only sought to work elsewhere as a response to the change in the Respondent’s treatment of him.

In response to questions from me at the hearing the Complainant stated that there had been a mutuality of obligation from 2008 and it never changed during the relationship with the Respondent.

At the hearing the Complainant stated that things had changed in 2016 when he did set his own daily rate, it increased from €200 per day to €350 per day. Also at this time he was told how many days he was to work with the Respondent. He did work elsewhere, but only for one month to mitigate his losses at being given shorter hours by the Respondent.

When asked why he did not request a contract of indefinite duration in 2016 the Complainant stated that he did not fully understand the significance of such a contract. He Complainant also stated that he had looked after his own tax affairs from 2010 on.

The Complainant stated that he did not apply for an EO role which became available as he had been working for 10 years with the organisation but did apply for an AP role but was not successful.

The Complainant submits that in light of the above he was, pursuant to the Act, entitled to a Contract of Indefinite Duration, and that the Respondent’s decision not to give him such a contract amounts to a breach of the Act.

The Respondent submits thatthe Complainant’s Case is unsustainable and ill-founded because the Complainant has never been an employee of the Respondent.

In cases such as this, the Respondent submits, the central distinction or question to answer is whether the Complainant is or was performing a service for another person or for himself. This is a question to be determined having regard to all the relevant circumstances of the relationship when rationally assessed and fairly weighed. Each case must be determined in light of its particular facts.

The Respondent submits that there was no mutuality of obligation between the Respondent and the Complainant; there was neither an obligation on the Respondent to offer the Complainant work nor any obligation on the Respondent to accept any work offered and therefore there is no basis on which an implied term of mutual obligations could be imported into the contract between the Complainant and the Respondent. Without prejudice to the foregoing, the Respondent submits, when the contract between the Complainant and the Respondent is looked at holistically it is apparent that is a contract for service. Nor was the Complainant was not entitled to holiday pay, medical leave or other benefits that normally accrue to employees.

In respect of whether the Complainant could engage substitutes, the Respondent accepts that a clause in his contract prohibited this, except with the prior written consent of the Respondent however, the Respondent contends that this aspect has less weight in circumstances where, because of Garda vetting and other child protection legal requirements, it was impossible for the Respondent to permit the subcontracting or assignment of the Complainant’s contractual duties

In respect of the level of control exercised by the Respondent it is fully accepted that the Respondent did exercised a significant level of control. However, the Respondent contends that this must be viewed in the particular context of the role and the Respondent’s statutory functions and obligations in a highly sensitive and regulated field. The Respondent believes it was quite entitled to do chose to exercise these functions and discharge these obligations through engaging independent contractors but was still lawfully obliged to ensure the necessary safeguards were put in place. The control exercised by the Respondent arose not because of the contract between it and the Complainant but because of separate legal obligations on the Respondent

In addition, the Respondent submits that the Complainant successfully negotiated; upward increases in his daily rate; to work varying amounts on a monthly basis; the days he would be working in advance. He was paid in excess of the salary paid to a civil servant performing an analogous role, and in 2016 also maintained a part-time role in another separate organisation.

The Respondent submits that the scope section of the Department of Social Protection has already considered whether the Complainant was employed by the Respondent and determined that he was not. The Department of Social Protection examined many of the issues detailed above and concluded that the Complainant was an end independent self-employed contractor.

In concluding, the Respondent submits that the Complainant is not (and was not) an employee and does not have grounds to maintain a claim under this Act. The Respondent also points out that the Complainant, freely and voluntarily, entered into a fixed term contract to provides services only in 2016, having negotiated substantially better terms.

In response to questions from me, the Respondent stated that the Complainant had been a highly respected service provider but his claim to have been an employee does not stand up to scrutiny, for the reasons outlined above.

The Complainant has highlighted several indicators that he believes demonstrate that his employment with the Respondent was under a contract of service. The Respondent has countered, pointing out a number of indicators to the contrary. As with all such cases each must be looked at on its own individual merits and idiosyncrasies.

Regarding successive fixed-term contracts the Act states:

9.—(1) Subject to subsection (4), where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year.

(2) Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.

(3) Where any term of a fixed-term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration.

(4) Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.

(5) The First Schedule to the Minimum Notice and Terms of Employment Acts 1973 to 2001 shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous.

I find that although the Complainant may have had a case that he was an employee of the Respondent from 2008-2016, and should have been offered a contract of indefinite duration, the merits of that case evaporated in 2016 when the Complainant negotiated a new standalone contract, with an individual daily fee (markedly different from his peers), accepted that his working hours could be reduced and took up employment elsewhere. Indeed, the Complainant, in his submission, stated that, he “had a fixed daily wage and invoiced the Respondent on a monthly basis.”

These characteristics tip the scales in favour of the Respondent’s argument that the Complainant was not an employee, at least from 2016 on. Allied to this, the fact that he looked after his own tax affairs, leaves me in no doubt that from 2016 the Complainant was certainly working under a contract for services basis.

I find, not unlike the SCOPE Section of the Dept. of Social Protection, that although there are indicators for both employment under a contract of service and employment under a contract for services, on balance, I am satisfied that the Complainant was employed under a contract for services in 2018 and that being the case his claim under the Act cannot succeed.

The complaint is not well founded and fails.

Fixed-term contract, individual characteristics, contract for service