ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00008335

Parties:

Complaint(s):

Date of Adjudication Hearing: 22/01/2018

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Unfair Dismissal Act 1977

CA-00011047-001

Preliminary Issue

The respondent submitted that the claimant is self-employed agent , who operates an agency on behalf of the respondent which involves them visiting customers each week to issue loans and collect repayments. Subject to certain lending limits imposed by the respondent, it is the agent’s decision which customers to lend to and how much and as agents are paid commission based almost entirely on the amount collected on their agency. It is in the agent’s interest to issue loans to customers who can afford to keep up with repayments. The respondent has a substantial number of agents. The respondent operates in a highly-regulated environment and are licenced to carry out their business subject to regulations and conditions.

The claimant was in business on his own account as an agent.

The contract expressly provided that it was not a contract of employment.

The claimant has no obligation to provide personal service to the respondent. He was entitled to, and in fact did, subcontract his agency work.

He had autonomy and flexibility in the way he worked both as to amount of work and timing. Since his remuneration was entirely commission based he had the opportunity to profit and bore the risk of loss. He provided his own transport, telephone and all other costs of running his agency and receiving no expenses.

The respondent did not deduct tax, prsi contributions. The claimant did not receive holiday pay or sick pay entitlements.

The claimant’s representative submitted that he was under the direct control of the respondent and he made additional arguments to support the client’s position.

Findings

Both parties made written and verbal submissions at the hearing. I find that having examined all evidence the claimant was self-employed. I find that in evidence the claimant confirmed at the hearing that he could sub contract his agency. I find that he controlled the hours he worked each week. I find that the claimant was in business on his own account.

I also taken into account the decision of the High Court in Leon Mowlds v Personal Credit Limited where it was accepted the plaintiff was employed on a contract for services

Decision

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I find that claimant is not an employee and that he was engaged by the respondent as self-employed agent in a contract for services.

I find that he is not covered by the Unfair Dismissal Act 1977

Dated:   31/5/2018

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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