ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012853
Parties:
| Complainant | Respondent |
Anonymised Parties | Warehouse Operative | Distributor |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00017087-001 | 25/01/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00017087-002 | 25/01/2018 |
Date of Adjudication Hearing: 26/06/2018
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,and Section 11 of the Minimum Notice & Terms of Employment Act 1973following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant contends that he was unfairly dismissed from his employment. The Respondent contends that the Complainant was not an employee since 2014, and therefore has no basis on which to make his claim. |
Summary of Complainant’s Case:
The Complainant contends that he has been employed by the Respondent from 1st October 2010 until 9th October 2017. He worked primarily on the Eircom contract, receiving battery deliveries, battery testing, labelling and general warehouse duties. The Summer months were quiet and in September 2016, after a discussion with the Respondent, the Complainant took up a second job. It was agreed between the Complainant and the Respondent that the days upon which he would undertake his work duties could be varied. He undertook his duties on Saturday and Sunday and most Fridays. He also covered busy periods mid-week. The Respondent required the Complainant to resign his position in September 2014 to effect these working changes. However, it is argued that the Complainant’s employment was continuous. In May 2016 it was agreed that the Complainant’s hours would be from 9.00am to 2.00pm Monday to Thursday and 9.00am to 1.00pm on Friday. It was also agreed that the Complainant would not be required to work the Summer months of June, July and August 2017. The Complainant took the Summer 2017 period off and as requested contacted the office to find out his starting back date. He was requested by the Respondent to attend a meeting on 25th September 2017 and was taken aback when told his hours going forward would be confined to deliveries only. He made contact with the Citizens Advice Office and on foot of this he made contact with the Respondent stating that he had been advised to expect the same hours and salary as he had received between the previous September and May. The Complainant then received a registered letter dated 9th October 2017 where he was advised that his employment was terminated. He was terminated without due process. The Respondent sought to allege that the Complainant was not an employee. The Complainant was at all times an employee. |
Summary of Respondent’s Case:
The Complainant was an employee of the company between 2010 and 2014. He resigned on 19 September 2014 and was provided with a P45. It is contended that the Complainant approached the Respondent in 2014 seeking hours. The Respondent engaged the Complainant to undertake project work which varied. The Respondent was not obliged to provide work for the Complainant and the Complainant was not obligated to undertake work for the Respondent. In particular, the Complainant was entitled to refuse work without negative consequences. It is argued that relationship was mutually convenient as the Complainant was free to determine his own work patterns and the Respondent was able to cope with fluctuating demand. This pattern worked until May 2017 when the Complainant was unavailable for work and informed the Respondent. It was agreed that the Complainant would approach the Respondent again when he became available for work. In September the Complainant approached the Respondent and the Respondent expected that work would become available in October or November. The Complainant then sent a text message on 2 October 2017 stating that he was advised to expect the same hours and salary as the previous September/May 2016/2017 and if not he should expect a redundancy letter. It is argued that as there was no mutuality of obligation (ref Minister for Agriculture and Food v Barry [2009] IR 215), the relationship was not a contract of service and the Complainant does not meet the definition of employee as required to pursue his claim. |
Findings and Conclusions:
CA-00017087-001 – Unfair Dismissals Act 1977 Preliminary Argument The Respondent contends that the Complainant cannot avail of the Act as he was not an employee. Section 1 of the Act defines an employee as “an individual who has entered into or works under (or where the employment has ceased, worked under) a contract of employment” and contract of employment (whether written or implied) is defined as |
“contract of employment means a contract of service”.
The difference between a contract of service and a contract for service involves a number of features as well as the mutuality of obligation which the Respondent relies upon in his submission. An individual who is on a contract for services is essentially an independent contractor, not subject to the normal controls in an employment relationship. The individual is responsible for paying their own tax, is responsible for ensuring replacement when away from the workplace and is independent from the employer. In this instant case I find that the Complainant was subject to the normal employee/employer controls, he received payslips with tax deducted and he worked in the employment availing of the respondent’s equipment and materials. I find that he was an employee of the Respondent. The parties had some mutually agreed working arrangements acceptable to both until the Complainant was asserting a right to return after the summer break on the same hours and salary. The Respondent reacted to this and summarily dismissed the Complainant without due process. I uphold the Complainant’s complaint that he was unfairly dismissed. I find that compensation is the appropriate remedy. I require the Respondent to pay to the Complainant the sum of €5,000 compensation.
CA-00017087-002 Minimum Notice & Terms of Employment Act 1973
The Complainant’s employment was terminated without notice. In his case the minimum notice period is 4 weeks. I find the Complainant’s complaint to be well founded. I require the Respondent to pay to the Complainant the net sum of €854.44.
Decision:
CA-00017087-001 – Unfair Dismissals Act 1977
The complaint is upheld and the Respondent is required to pay to the Complainant the sum of €5,000 compensation.
CA-00017087-002 Minimum Notice & Terms of Employment Act 1973
The complaint is upheld and the Respondent is required to pay to the Complainant the net sum of €854.44
Dated: 27/09/18
Workplace Relations Commission Adjudication Officer: Gaye Cunningham