ADJ-00017565

Complainant

Respondent

Anonymised Parties

A Fitness Coach

A Football Cub

Representatives

Eagleton Downey Solicitors

Anne O'Connell Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00022711-001

19/10/2018

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

CA-00022711-003

19/10/2018

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

CA-00022711-004

19/10/2018

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

CA-00022711-005

19/10/2018

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

CA-00022711-007

19/10/2018

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

CA-00022711-008

19/10/2018

The complainant worked as a fitness coach with the respondent during the football season between early 2013 and the date of the termination of his employment in April 2018.

A preliminary issue arises on whether the complainant falls within the jurisdiction of the Unfair Dismissals Act 1977; in the first instance based on the nature of his contract of employment, and whether he was engaged on a contract of service prior to 2018, after which time it is agreed that he was, and then, secondly, if he was not, whether he has the required one year’s service necessary to bring him within jurisdiction.

Preliminary Matter.

The complainant was at all times an independent contractor engaged by the club manager to provide specific fitness training.

At the start of each season he and the Team Manager would discuss the club’s needs for the upcoming season; when he would be needed and what would fees would be charged. The complainant submitted invoices on a monthly basis and was responsible for his own tax affairs. He was asked on a number of occasions whether his tax affairs were in order and he confirmed that they were.

He was also employed elsewhere in similar work and was not required to get approval for annual leave, although he was asked to notify the respondent as a courtesy.

At all times his employment relationship with the respondent was that of a contract for services.

The Team Manager gave evidence on this point. He said that he initially invited the complainant at the end of 2012 to come in for the following season, and that he would be paid for the duration of the season which was forty weeks as this was the system in the club.

Then, he confirmed that they would have a pre-season meeting each year to discuss the upcoming season and terms would be agreed. The witness knew nothing about the arrangements for payments to the complainant except that he and other staff in a similar position submitted invoices for payment.

He also confirmed that the complainant attended the club training camp, that he had personalised club gear and he was aware that he had a fuel card provided by one of the club sponsors.

Another member of the team management said that the complainant was not treated in the same way as staff of the respondent, or players. He did not attend all games or travel on the team bus.

The respondent accepts that the position changed for the 2018 season as the complainant was engaged on a full-time basis.

Substantive Issue

Regarding the complaint of unfair dismissal, the complainant was dismissed for physically assaulting two players, including the team captain. This followed an altercation about a posting on social media. Evidence was given by one of the players that the complainant had made an unprovoked attack on him, as a result of which he sustained swelling and bruising around the eye.

The Team Manager gave evidence that he had not been in the room where the incident occurred at the time; he had been downstairs and heard a ‘hullaballoo’ and went upstairs, by which time the incident had concluded.

He took the complainant downstairs for a chat and told him to take a few days off to cool down not to come to a game arranged for the following and to allow for investigation of the incident. Other players who had witnessed the events complained to another manager and stated that it was ‘out of order’.

Following this he spoke to the club CEO and to the players who witnessed the incident. He just could not see any way that those involved could ever put it behind them. He had asked the complainant for his version of events when he took him away from the incident.

It was decided to terminate the complainant’s employment and he was called to the club premises some days later and told by the manager that, following an investigation, his contract was being terminated effective immediately.

The witness accepted that the actions of the complainant were uncharacteristic

Following a discussion with the CEO the complainant was offered a severance settlement and although he was paid other monies that were due to him this agreement was not concluded.

Regarding the other complaints the respondent says that no claim arises regarding Sunday pay and public holidays (CA-0002711-003 and 004) as there are no applicable days within the cognisable period of six months prior to the making of the complaint.

The respondent says that as the complaint was made only on October 19th, 2018 and its annual leave year commences on March 31st only 1.2 days arise, and these were accounted for by time off he took for which he was paid. (CA-0002711-005).

It rejects the claim for payment of a six months’ notice and says there is no contractual basis for this complaint (CA-0002711-007) and CA-0002711-008 is a duplicate complaint.

Preliminary Issue

At no stage during the complainant’s work with the respondent did he have a written contract.

There were a series of oral agreements dating from the complainant’s first engagement on January 17th, 2013 up to his dismissal on April 21st, 2018.

The respondent failed to notify the WRC within the specified time that it had an objection on the preliminary point and did not do so until the day before the hearing. However, even then it did not provide any detail of its objection which is in further breach of the WRC guidelines.

The complainant says that he was at all times an ‘employee’. The respondent’s case relies solely on the basis that he was not an employee, and it has not defended the dismissal procedure.

In his direct evidence the complainant said he first met the club manager on December 27th, 2012 about the possibility of him joining the club and they agreed terms and an outline of his work. He started providing coaching on January 17th, 2013.

He was approached again at the end of that season and again terms were agreed with a significant increase in the financial terms. It was renewed again for the 2015 season with another improvement in the financial terms. He was paid a bonus at the end of that season.

It was renewed for the 2016 season on the same terms as the previous season, but a bonus was paid at the end of the season.

For the following season he was asked to increase his time commitment and for the 2017 season he got a further increase in his financial terms. He quit other work he did (taking a leave of absence) and was full time devoted to the respondent for the 2018 season

The complainant relied on the well-established tests and case law in this regard; mutuality of obligation, the control test, the integration test and the ‘multi-factorial’ test.

In this latter regard the complainant says that a contract of service exists where;

(i)                  The servant agrees that in consideration of a wage or other remuneration he will provide his own work and skill in the performance of some service to his master

(ii)                He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master

(iii)               The other provisions of the contract are consistent with its being a contract of service

These tests were formulated in Ready Mixed Concrete (South East Ltd v Minister of Pensions and National Insurance [1968] 1 All ER 433, applied in Ireland in Ó’Coindealbháin (Inspector of Taxes) v Mooney [1990] 1IR 422

Also, by reference to the personal service test the complainant had no option to delegate or substitute his service.

Ultimately, he was ‘not ‘in business on his own account’, as required by the enterprise test. If he were, then that would indicate a contract for services. But the complainant did not provide any equipment, nor did he have any assistants, nor was he exposed to any financial risk in working with the respondent.

Finally, he did not provide his own insurance.

On the issue of taxation this is a factor but is not determinative, and neither id the fact that the complainant was not solely employed by the respondent.

The respondent also relied on the Code of Practice (which is considered further below).

Substantive Issue

The complainant disputes some aspects of the detail in the evidence of the respondent and in particular that of the team captain whose evidence is above and who was the victim of the punch.

The complainant says that no second punch was thrown, and that the victim made a move to approach him in a threatening manner. The complainant denied that he was the aggressor.

In any event the complainant says that the process entirely lacked any element of fair procedure.

There was no proper investigation, he was not suspended and there was no proper disciplinary hearing. He was not given any right to representation.

First it is necessary to establish the employment status of the complainant.

Two issues arise here.

If, as conceded by the respondent his contract of service only commenced for the 2018 season he had not, by the time of the incident, acquired the qualifying service necessary to bring a complaint under the Unfair Dismissals’ Act.

The related issue concerns the nature of his contract (or contracts) prior to that change, and whether he was working on one or more contracts of service (i.e. an employee) or contracts for services (a self-employed contractor).

Related to this is whether there was sufficient continuity in the engagements to bring the complainant within the jurisdiction of the Act, bearing in mind that he only needs to establish continuity by reference to the one immediately preceding the incident to give him a year’s service.

There are a number of tests to determine whether a person is engaged on a contract of employment (‘of service’) or is what is generally referred to as ‘a contractor’ (engaged on a ‘contract for services’), and these were referred to in both legal submissions at length.

These are tests based on the nature of the employment relationship and were referred to above; mutuality of obligation, the control test, the integration test and the ‘multi-factorial’ test.

Some are decisive in either direction, some are more indicative.

In the leading UK case of Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173 a number of tests were formulated.

1)      Does the person performing the services supply his own equipment?

2)      Can he hire his own helpers?

3)      Does he carry any financial risks and to what extent?

4)      What opportunity does he have to make a profit?

5)      To what extent does he carry the responsibility for investment/management.

The Revenue Commissioners of Ireland have outlined similar tests in their Code of Practice for Determining Employment or Self Employment. These relate to whether the employee;

1)      Is under the control of another person who directs as to how, when and here the work is to be carried out,

2)      Supplies labour only,

3)      Received a fixed wage

4)      Cannot subcontract the work

5)      Does not supply materials for the job

6)      Does not provide equipment other than small tools of the trade

7)      Is not exposed to personal financial risk in carrying out the work

8)      Works set hours or a given number of hours

It is also important to say that the number of hours worked for an employer is not relevant in determining employment status; it is the nature of the contractual engagement.

In this case the respondent seemed to believe that something decisive occurred when the complainant went to work for the respondent on a full-time basis in 2018. That is not relevant at all to the question, neither is the fact that he had other work elsewhere. These do not go to the essence of the nature of the employment relationship between the parties.

It will be obvious from these indicators that the complainant meets the criteria required for a contract of service. Every single one of them can be answered in the complainant’s favour.

Taking the five Market Investigations criteria all may be answered in the negative (i.e. in the complainant’s favour).

Likewise, looking at the Revenue Commissioners tests all favour the interpretation that the complainant was not an independent contractor or ‘in business on his own account’.

Much was made of the invoicing and payment system agreed between the parties which was indeed unorthodox and may have been constructed to avoid being decisive in some way in determining the complainant’s employment status.

At the time the relationship between the parties up until the events which gave rise to the complaint was a good one and, it is most improbable that either side ever envisaged the prospect of ending up in the difficulties they now face following the events above.

He was paid a fixed weekly fee which was reviewed by the Manager before each season. I do not accept that he invoiced on the basis of the number of training sessions conducted,   or that these varies in any significant way.

While success brought him additional benefits in the nature of bonus payments, these were made at the discretion of the management of the club. It was not ‘the opportunity to make a profit’.

In general, nothing he could do would alter his basic earning.

The complainant in this case presented regularly at the place of work, on terms and for a duration determined by the respondent, and so one can continue through the list above.

Of course, the complainant had the expertise in relation to the precise nature of the training regime, but the club Manager made it clear in his evidence that if he needed to change the overall thrust of the training he would have done so. The times of training sessions were determined by the Manager and this falls within the parameters of the ‘control’ test.

I have little hesitation in concluding that the complainant met the criteria for the former; a contract of service and falls within the jurisdiction of the Unfair Dismissals Act.

This then addresses whether he has the qualifying service to bring a complaint under the Act.

The complainant outlined the process by which his engagement was arranged before each season. He would meet the manager and they would review terms and details of what was expected for the upcoming season.

There was no sense from the evidence of either party that this was some sort of de novo recruitment process each year. It is quite clear that it was not so much a matter of whether the complainant would continue to work for the respondent but the details of that employment relationship. It is equally clear that the Manager held the complainant in very high regard both personally and professionally.

In that respect can the complainant fall to be considered a ‘seasonal worker’ such as certain school workers and people employed in agriculture and horticulture etc and whose continuity is not disrupted by the natural breaks such as the summer in relation to the former and the winter in relation to the latter.

The Labour Court has recently considered this in Donegal County Council v James Sheridan Determination FTD185.

Although that case concerned whether a person on several, repeating contracts was entitled to a Contract of Indefinite Duration the Court set out principles which are applicable in this case to deciding whether, having found that the complainant had a contract of service, he had the qualifying service for the purposes of the Unfair Dismissal Act.

In the course of that decision reference is made to a Labour Court Recommendation North Tipperary County Council v SIPTU LCR19685 where the Court in a Recommendation under the Industrial Relations Act recommended that: -

"Workers who have accrued an aggregate of 48 months casual/seasonal employment, where any two periods were not broken by a period in excess of 26 weeks, should be entitled to placement on the panel for an indefinite duration up to normal retirement age.

Later in its own decision in FTD185 the Court addresses ‘Continuity of the Complainant’s Employment’ as follows;

As was pointed out in Revenue Commissioners v Beary while Section 9 of the Act is directed at preventing the unlimited use of continuous fixed-term contracts the objective of the Directive is to combat the abuse of successive fixed-term contracts and the Court must apply the well settled principle of European law that national law must be interpreted as far as possible in the light of the wording and purpose of a Directive so as to achieve the result envisaged by the Directive. In Beary the Court also held that Section 9 is unduly limited in its ambit in that it excludes from the protection of the Act successive periods of employment which are not physically continuous and held that the result plainly pursued by the Directive is to prevent the abuse of “successive” fixed-term contracts. It pointed out that Clause 5.2(a) of the Framework Agreement left it open to the Oireachtas to provide an outer temporal limit beyond which renewed contracts would not be regarded as successive, however, as the legislature chose not to do so, it was not now open to the Court by way of interpretation to import such a provision into the statute. Having examined the First Schedule to the 1973 Act the Court held that the fundamental effect of the provision is that all periods of employment are to be regarded as continuous unless broken by dismissal or resignation. Hence, successive periods of employment which are not continuous in the literal sense because they are broken by, for example, lay-off or authorised absence, are deemed to be continuous. It is accordingly clear that the word “continuous” as used in the Act has a special meaning which is different to its ordinary or dictionary meaning. As so defined the word can in certain circumstances have a meaning more akin to the ordinary meaning of the word successive.

Therefore, in the instant case, this Court must consider if the Complainant was employed on a series of separate contracts, some of which did not contain a break in service, or whether the periods between contracts can be regarded as lay-offs thus preserving the continuity of the employment within the statutory meaning accorded to that term.

The Court proceeds to consider the definition of a ‘layoff’ and then concludes; (underlining added)

In the instant case, having examined the fixed-term contracts which commenced in 2004, the Court is satisfied that on each occasion there was a reasonable expectation of re-employment following termination of the earlier fixed-term contract and/or that the cessation in employment would not be permanent as can be seen from the sequence of the contracts. In this case, the Complainant was drawn from a panel for seasonal or casual work and he was placed back on the panel after each assignment. The Court is satisfied that when the Complainant’s employment was terminated because there was no longer work available for him, it was envisaged at the time of the termination that he would be required again in the future and he was placed on a panel for further temporary work and therefore in such circumstances and in line with Beary, the Court is satisfied that the Complainant’s employment can be regarded as "continuous" within the meaning of the First Schedule of the Minimum Notice and Terms of Employment Act 1973 and for the purpose of Section 9 of the Act. Consequently, even though there were gaps in the Complainant’s employment, including two lengthy gaps due to the moratorium, the Court is satisfied that his employment was continuous.

Therefore, having regard to the nature of the breaks in service in the complainant’s case and the evidence of the parties in relation to the annual renewal I find that there was sufficient continuity in the employment contract to bring the complainant within jurisdiction.

Turning to the events leading to the termination itself, they are as set out above. There was some disagreement in relation to the detail of the altercation; the number of punches thrown, the precise location of the various participants but the general nature of the incident is sufficiently clear to ground the initiation of the normal disciplinary process against the complainant.

However, this is not what happened.

There was an understandable need to immediately diffuse the situation and the complainant was told to go home and not report for work.

The Manager made some inquiries about what happened; perhaps insufficient to represent a proper investigation as he did not interview the complainant apart from their discussion immediately following the incident, or share the information he had from other witnesses, but this was not the fatal flaw in the procedure.

Certainly, there was enough information known about what happened to set up a hearing and decide the matter and had that happened it might have been a different matter.

This did not happen.

The complainant was summoned to a meeting, which was not identified as being a disciplinary meeting, and he was told he was being dismissed. There were some further discussions with the Club CEO about administrative matters but nothing that could be said to resemble a fair process. (The respondent accepted ‘that a perfect disciplinary process was not followed’ but attributed this to its understanding that the complainant was not an employee).

The dismissal was, for those reasons unfair.

Regarding his loss this was stated as being two and a half months. I note that the complainant’s conduct was, by his own admission unacceptable and uncharacteristic but where the dismissal has been rendered unfair by serious flaws in the procedure I do not consider his conduct to be a mitigating factor in making an award of compensation.

However, I do take into account approximately one week’s pay he received for April following his dismissal.

Regarding the other complaints I accept that no claim arises regarding Sunday pay and public holidays (CA-0002711-003 and 004) as there are no applicable days within the cognisable period of six months prior to the making of the complaint.

I accept the respondent’s submission that as the complaint was made only on October 19th 2018 and its annual leave year commences on March 31st only 1.2 days arise and these were accounted for by time off he took for which he was paid. (CA-0002711-005).

There is no contractual basis for payment of six months’ notice (CA-0002711-007) but the complainant is entitled to a notice payment of four weeks’ pay based on his service.

CA-0002711-008 is a duplicate complaint.

I uphold complaint CA-0002711-001 under the Unfair Dismissals Act and award the complainant €9,000.00.

I uphold complaint CA-0002711-007 and award the complainant four weeks’ pay in the amount of €4000.00.

I do not uphold complaints CA-0002711-003, 004, 005 and 008 and they are dismissed.

Unfair Dismissal, Employment status,