Complainant

Respondent

Anonymised Parties

An Accountant

A Restaurant

Representatives

n/a

 Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00014921-001

11/10/2017

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

CA-00014921-003

11/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00014921-005

11/10/2017

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

CA-00014921-007

11/10/2017

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

CA-00014921-008

11/10/2017

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

CA-00014921-009

11/10/2017

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

CA-00014921-010

11/10/2017

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

CA-00014921-011

11/10/2017

The complainant submitted his complaints on 11 October 2017. A hearing was initially scheduled for 31 May 2018. At that hearing, the respondent raised a preliminary objection on the complainant’s employment status, and submitted extensive evidence and submissions with regard to this point. In order to give both myself and the complainant an opportunity to consider these points, I adjourned the hearing to 20 September 2018, and asked for a written response from the complainant, which was received on 23 July 2018.

The complainant is a Certified Public Accountant (CPA). He obtained the relevant qualifications in 2013, but states that he had worked in accountancy for 15 years by the time his relationship with the respondent started.   He asserts that he was deprived of his employment rights under the statutes listed above, inter alia having been denied payslips and a contract of employment, or a statement of his terms of employment, and that he was unfairly dismissed.

In terms of the objections which the respondent raised about his employment status, the complainant asserted that he was forced into bogus self-employment. He stated that he felt so forced because, in his words, in 2014, the “Irish economy had collapsed” and there were “thousands of unemployed accountants around”. He pointed to a decision by a Social Welfare Appeals Officer that he had been found to be employed by another business, where, he asserted, the exact same facts pertained as with the within respondent. In terms of the within respondent, it was common case that a decision by the SCOPE section of the Department of Employment Affairs and Social Protection had been unfavourable to the complainant, but the complainant stated that this was under appeal.

In terms of the amount of control which the respondent had over him, the complainant stated that he obtained the role by replying to an advertisement on a website which also lists job offers, that his initial interview took place at the respondent’s direction, that he was asked to use the staff car park, that his rate of €300 per day entailed an obligation to stay on the premises for a minimum of 7.5 hours, that he received staff meals, and that he used the respondent’s computers and software. He stated that the respondent bought him a Mac computer to do his work on, and software to work with. He further said that he supervised and managed the respondent’s bookkeeping staff. He also stated that he was forced to take his breaks at certain times.

The complainant also asserted, throughout his evidence, that a contract of employment simply existed, without any further evidentiary support. He also stated repeatedly that if this had been a contract for services, he could have sued the respondent in the regular courts for breach of contract.

The respondent provided extensive documentary evidence from throughout the parties’ relationship, which strongly underpins its contention that the complainant was an independent contractor who provided accountancy services to the respondent’s small business. The respondent specifically disputed that the complainant’s per diem rate entailed a fixed number of hours. The respondent asserted that the complainant was not obliged to be present on the premises. The respondent accepted that the complainant was allowed to use the staff car park and that he was provided with meals from the restaurant in addition to his daily rate. The respondent accepted that the complainant was asked not to take those meals during the main lunch hour rush at the business.

The respondent also stated that the complainant had specific, highly sophisticated bookkeeping software to do his work which the respondent business did not own, and which made it difficult for the respondent, after the end of the relationship, to retrieve its accounts. The respondent accepted that the complainant was welcome to use its computer and whatever accounting and payroll software it owned. The respondent categorically disputed ever buying a Mac computer or software for the complainant.

CA-14921-001 to CA-14921-11, as listed above:

The matter of the complainant’s employment status is in many ways equivalent with the case itself.   If the complainant was not an employee, he has none of the entitlements he claims. The findings of the SCOPE section of the Department of Employment Affairs and Social Protection are of somewhat limited relevance here, as they relate to social insurance status rather than how the complainant’s situation meets the relevant definitions in the statutes under which he has brought his complaint. I reviewed the definitions of “employment contract”, respectively “employee”, for all of these, and they are as follows:

Terms of Employment (Information) Act 1973, as amended:

“ ‘ contract of employment ’ means —

( a ) a contract of service or apprenticeship, or

( b ) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of either the Employment Agency Act 1971   or the Protection of Employees (Temporary Agency Work) Act 2012 and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract),  

whether the contract is express or implied and if express, whether it is oral or in writing.”

Organisation of Working Time Act 1997, as amended:

“ “contract of employment” means—

( a) a contract of service or apprenticeship, and

( b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act, 1971, and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract),

whether the contract is express or implied and if express, whether it is oral or in writing;”

Payment of Wages Act 1991, as amended:

“ “contract of employment” means—

( a) a contract of service or of apprenticeship, and

( b) any other contract whereby an individual agrees with another person to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract) whose status by virtue of the contract is not that of a client or customer of any profession or business undertaking carried on by the individual, and the person who is liable to pay the wages of the individual in respect of the work or service shall be deemed for the purposes of this Act to be his employer,

whether the contract is express or implied and if express, whether it is oral or in writing;”

Minimum Notice and Terms of Employment Act 1973, as amended:

“ “employee” means an individual who has entered into or works under a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or otherwise, and cognate expressions shall be construed accordingly;”

[NB: The Act does not have a specific definition for a contract of employment.]

Unfair Dismissals Act, 1977, as amended:

“ “ contract of employment” means a contract of service or of apprenticeship, whether it is express or implied and (if it is express) whether it is oral or in writing;”

The relevant aspect to note about these legal provisions is that none of them envisages an employment relationship which is a contract for services which have to be personally performed, as is the case with the Employment Equality Acts, for example.   Therefore, the complainant needs to have a contract of service to avail of the provisions of the various statutes cited in the within complaint.

The documentary evidence regarding the complainant’s employment status overwhelmingly favours the respondent, in terms of invoices, VAT payments, the complainant’s public LinkedIn profile, the information available about the complainant’s companies, and in particular the communications between the parties for the duration of their relationship. There is simply no evidence that the complainant was forced, as he claims, into bogus self-employment, for example a contract which looks identical to a contract of employment except for a clause that it is not one.   I am also unable to accept the complainant’s evidence of general economic duress in Ireland in 2014. It is public knowledge that the Irish economy was technically out of recession since the last quarter of 2009, and that Ireland had exited the Troika bailout in 2013. In other words, by 2014, the economy was growing again and had been for some years. Whatever about the complainant’s personal financial circumstances or the exact number of unemployed CPA’s, the picture which the complainant seeks to paint here is wrong.  This damages the complainant’s credibility to some extent.

As to the complainant’s assertions that he was employed by the respondent and that he would have sued for breach of contract otherwise, it must be said that it is ultimately the complainant’s decision in which forum he wishes to pursue a grievance.   The mere decision by someone to complain to the Commission because they are of the belief to have been employed does not make it so. I found that both in his written submission and in his oral evidence, the complainant employed this particular kind of circular reasoning a lot. That is, he asserted to have been employed, rather than show why, in his view, he was employed.

Furthermore, the evidence opened by the respondent includes many contemporaneous communications by the complainant himself which are at odds with what he asserted during the hearing. For example, there are numerous emails and text messages in which the complainant talks of his other clients, whereas during the hearing, he sought to assert that in reality, he held a variety of part-time employments. If these actually were part-time employments, why would he have described the relationship as a client relationship in contemporaneous communications with the respondent? Certainly, the respondent would not have forced him to do that. This again damages the complainant’s credibility.

Looking at the actual facts of how the complainant worked for the respondent, it is common case that he worked for one day per week, usually Monday, in the first year, and later on two days per month. I accept the respondent’s evidence that it never bought a computer or software for the complainant, as well as its evidence that the complainant was not obliged to spend a specific amount of time at the respondent’s premises in return for his daily rate. The complainant asserted that he provided his labour only; I am not satisfied that this was the case. I accept the respondent’s evidence that due to their financial information being stored in specialist software which the complainant owned, they had trouble availing of their accounts when the relationship ended.   So, I am satisfied that the complainant used some technology owned by the respondent, and some of his own.     I am also satisfied that he was not obliged to spend a set number of hours at the respondent premises for his per diem rate, and therefore could, theoretically, profit by completing his work faster, and effectively, earn a higher hourly rate. I also accept the respondent’s evidence that when the complainant needed more time to complete his work, he charged the respondent for additional days.   This assertion is well supported by the existing invoices. The complainant argued that he could not charge for additional hours, but I regard this as hair-splitting, given that the arrangement between the parties was that he would be paid per day.   Overall, I am satisfied that the complainant was not in the situation of an employee with set working hours. And clearly, he worked for other businesses whilst working with the respondent, which he was then happy to call his clients, but now insists were his other employers.   All of this supports the notion that the complainant was in business on his own account.

It was the complainant’s argument that the respondent exerted a particular amount of control over him, in terms of time and place. But from his evidence, I cannot find that it exceeds how other people who contract for services normally facilitate their clients. The emails which the complainant submitted on the arrangement of the first interview with one of the respondent’s owner, for example, show great politeness on the part of the respondent and are not “controlling” as claimed by the complainant. I am referring to this example because the complainant sought to rely on it during his evidence. Likewise, I cannot accept that using the staff car park makes him a staff member – clearly, he was not a patron of the restaurant – or that being given courtesy meals establishes such a relationship.

It is also clear that the respondent did tell the complainant what accountancy services it wanted from him, and did a considerable amount of checking on his work.     But none of this, from the available evidence, was much different from say, hiring a tradesman, telling them what needs to be done, and checking that their work is of an acceptable standard.   Neither is the fact that the complainant spent time at the respondent premises to carry out his duties determinative, since there are many service arrangements which need to be carried out on site. Anyone who buys a service wants to ensure it is done properly and that they are getting value for their money.   A contract for services is not a control-free zone, as it were. Accountancy services in particular need to be performed correctly so as not to create problems for a business.   This should not be confused with the control of an employer, to use the manpower of its employees.

The respondent also provided numerous written communications which show that the complainant bargained with the respondent, for example: “Agreed one day a month with [X.] from September 2016”, or about providing training for an employee of the respondent free of charge.   Had the complainant been an employee of the respondent himself, this would not have arisen. If the respondent had had the control of an employer over the complainant, it would simply have the complainant directed to do so.

All of these considerations, in addition to the undeniable fact that the complainant invoiced the respondent, and charged VAT on his services throughout their relationship, and the fact that I cannot accept from the available evidence that he did so under duress, lead me to conclude that the complainant was employed under a contract for services, rather than a contract of service, at all times and was therefore not an employee of the respondent pursuant to the statutory definitions which govern the within complaints. I therefore find that I have no jurisdiction in this matter.

For the reasons set out in detail in the preceding pages, I find that I have no jurisdiction to investigate the within complaints as the complainant was not employed by the respondent under any of the statutes cited in the within complaint.

Complainant not an employee – no jurisdiction.