Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00025999-001

04/02/2019

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

CA-00025999-003

04/02/2019

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

CA-00025999-004

04/02/2019

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

CA-00025999-005

04/02/2019

The complainant is not an employee of the respondent.

The complainant was contracted by the respondent to carry out two specific but short tasks. A lady employed by the company, who had been previously carrying out these tasks, unfortunately gave birth prematurely and the infant passed away three weeks later. She took an extended period of leave in the circumstances. There was an urgency in relation to completion of the last 10% of the job. Mr G met with the complainant to discuss what it is she would have to do to complete the job. He informed her that it would take approximately 40 hours to complete and that she was free to work whenever she liked, and he placed no time limit on the completion of the task. It was agreed that the complainant would be paid €18.30 per hour. It was anticipated that it would take no more than 40 hours to complete the task. The respondent asked the complainant to log her hours of work into the respondent’s computer system so that she could be paid. The complainant was paid the sum of €1,100. No PRSI or USC etc was deducted from the payment as the complainant was not an employee. The complainant worked from home and with her own equipment and was completely in charge of her own hours and days of work.

The respondent became extremely frustrated when the task was still not completed by December. His employees based in his Dublin office were having terrible problems communicating with the complainant due to the fact that there was an issue with the SIM card in her phone. Any response to emails were short and vague and did not set out her progress. The customer for whom the task was been completed was also getting very upset. In December the respondent stated that he couldn’t wait any longer for the task to be completed so he made his own arrangements.

The complainant stated that she met with Mr G on two occasions prior to commencing work with the respondent. On the first occasion they had an informal chat about the tasks that he required her to complete. The second time they met they had a more in-depth discussion about her employment. He stated originally that he wanted her to work on an external contract. She explained to him that that was not something that she could not do, so he stated that she would be employed as a part-time employee. He asked her how many hours she could do and she explained that her hours were limited as she was doing her PhD. She was required to email the respondent regularly to identify any issues she was having and to keep them informed of her progress. She regularly called the office to discuss her progress. The complainant concedes that she was paid €1,100 into her bank account but over several payments. She does not know whether or not any tax has been paid on that amount. She is v.a.t registered but did not charge the respondent v.a.t.. Then in December the complainants email password was changed which meant she could not get access to the respondent system. The complainant alleges that she is owed some money and payment in relation to her annual leave. She also states that she did not get her terms and conditions of employment within two months of commencing the role.

It is settled law that the question of whether a contract is one of services or for services is dependent on the particular facts, rather than a straightforward application of a clear test. However, it is submitted that there is one critical question that the courts always turn to, namely, whether the individual is in business on his or her own account and has an opportunity to make a profit or gain by the manner in which the work is executed.   In Market Investigations v Minister for Social Security   Cooke J stated:

“the fundamental test to be applied is this; if the person has engaged himself to perform these services performing them as a person in business on his own account’

If the answer to that question is ‘yes’, then the contract is a contract for service. If the answer is ‘no’ then the contract is a contract of service. It is submitted that at all times the Complainant was in business on her own account. She had a meeting with the respondent to discuss the details of the two tasks she was required to do. She was told that approximately 90% of the task had been completed by an employee who was now out on compassionate leave. It was agreed that the complainant would completed the task and would be paid an hourly rate for doing so. The more hours it took, the more money she would make. Her payments were not taxed at source. She stated that she hasn’t actually paid any tax on the sum. She is registered for v.a.t. but did not charge any v.a.t to the respondent.

In Autoclenz Limited v Belcher and Ors   the Court focused heavily on the test to establish whether a contract of service exists set out by McKenna J in Ready Mixed Concrete (SE) Limited v Minister of Pensions and National Insurance   where he stated;

“I must now consider what is meant by a contract of service.   A contract of service exists if these three conditions are fulfilled.

(a)          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 for his master.

(b)          He agrees, expressly or implicitly, 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.

(c)           The other provisions of the contract are consistent with it being a contract of service”.

McKenna J further states

Condition (c) is sometimes called an “enterprise test” and it focuses on the typical characteristics of an entrepreneur ‘that is a person who is in business on his own account’. Per Cooke J in Market Investigations:

“factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether or how far he has an opportunity of profiting from sound management in the performance of his task”.

The Supreme Court in Autoclenz added to those propositions the following:-

i.             That there must be a irreducible minimum of obligation on each side to create a contract of service

ii.            That a genuine right of substitution will negate an obligation to perform work personally and          is inconsistent with employee status; and

iii.        If a contractual right, as for example the right to substitute exits, it does not matter that it is not used.

The complainant herein was her own Master. Other than having to complete the task she was entirely in control of her working day. So long as the task was completed within a reasonable time frame she could do her work, when, where and how she wanted. She used her own equipment and worked from her home. She was answerable to nobody. She submitted her hours of work solely for the purpose of calculating payment.

In the case of O’Coindealbhain v Mooney , Blayney J commented that the power of dismissal, while inherent in the master servant relationship, could also equally be found in a contract for services. The case related to a contract that Mr Delaney had entered into with the Department of Social Welfare to act as a branch manager of a labour exchange. In this case, Blayney J stated;

“The second test to be applied “is whether the respondent is in business on his own account.” In my opinion he is. I have no doubt that he is running a business, the nature of the business being to provide a particular service for the Minister.   His profit is the amount by which his remuneration exceeds his expenses; The lower he can keep his expenses the greater the profit”.

In the seminal case of Henry Denny & Sons (Ireland) Limited v Minister for Social Welfare Keane J upheld the adjudication of the social welfare appeals officer who was

“entirely correct in holding that he should not confine his consideration to what was contained in the written contract but should have regard to all the circumstances of {the demonstrator’s} employment”

Keane J, at page 49, cited with the approval of Cooke J in the of Market Investigations case, ”that the fundamental test to be applied is this:

‘is the person who has engaged himself to perform these services, performing them as a person in business on his own account?…The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as a sole determining factor; and that factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how he has an opportunity of profiting from sound management in the performance of his task’.    

Keane J also cites the Irish case of Graham v Minister for Industry and Commerce that the Supreme Court “…had also made it clear that the essential test was whether the person alleged to be a servant” was in fact working for himself or for another person.

Keane J, at page 50, goes on to say:

“the degree of control exercised over how the work is to be performed, although a factor to be taken into account is not decisive. The inference that the person is engaged in business on his or her own account can be more readily drawn where he or she provides the necessary premises or equipment or some other form of investment, where he or she employs others to assist in the business and where the profit which he or she derives from the business is dependent on the efficiency with which it is conducted by him or her”.

I am satisfied based on the evidence adduced by both parties and for the reasons set out above that the complainant was carrying out her role on a contract for service and was not an employee of the respondents. I therefore do not have jurisdiction to hear the within claims.

I do not have jurisdiction to hear any of the within claims.

Contract for / Contract of Service.