FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : LAURENCE WALL, TOMAS O'SHEA AND JOSEPH KAVANAGH, VETERINARY PARTNERSHIP T/A MOYNE VETERINARY CLINIC (REPRESENTED BY DOROTHY DONOVAN B.L., INSTRUCTED BY FRIZELLE O' LEARY & CO., SOLICITORS) - AND - NATASHA NOWACKI (REPRESENTED BY EMMA CASSIDY B.L., INSTRUCTED BY NIAMH MORIARTY & COMPANY, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Treacy |
1. Appeal of Adjudication Officer's Decision ADJ-00000026.
BACKGROUND:
2. The Claimant appealed the Adjudication Officer's DecisionADJ-00000026 to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2015. Labour Court hearings took place on 26th and 27th February, 2019. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Ms Natasha Nowacki against the Decision of an Adjudication Officer in Decision ADJ-00000026 under the Employment Equality Acts 1998 – 2015 (“the Acts”) where she claimed that she had been discriminated against on the gender and family status grounds by Laurence Wall, Tomas O’Shea and Joseph Kavanagh, Veterinary Partnership t/a Moyne Veterinary Clinic. The Adjudication Officer held that her claim could not be maintained under the Acts as he held that Ms Nowacki was engaged under a contract for service and not a contract of service and consequently was not an employee. He did not make any decisions on the substance of the claim.
The complaint under the Acts was referred to the Workplace Relations Commission on 4thOctober 2015.
In this Determination the parties are referred to as they were at first instance. Hence Ms Natasha Nowacki is referred to as “the Complainant” and Laurence Wall, Tomas O’Shea and Joseph Kavanagh, Veterinary Partnership t/a Moyne Veterinary Clinic is referred to as “the Respondent”.
Position of the parties
The Respondent contended that the Complainant was not its employee and had nolocus standito maintain the proceedings and therefore contended that the Court lacks jurisdiction to investigate the complaint.
This contention was fully contested by the Complainant who asserted that she comes within the broad definition of Section 2 of the Acts.
The Adjudication Officer held for the Respondent on this point and held that he lacked jurisdiction to investigate the complaint. The Adjudication Officer did not make any decision on the substance of the Complainant’s case.
Therefore, the first issue to be considered by the Court in this case is whether the Complainant was engaged under a contract of employment as defined by the Acts. With the concurrence of both parties, it was agreed that the Court would deal with this issue as a preliminary matter. In the event that the Court were to uphold the Adjudication Officer’s Decision, then that will be the conclusion of the case. In the event that the Court were to overturn the Adjudication Officer’s Decision, then the case will be remitted back to the Workplace Relations Commission for investigation of the substantive claim.
Background
The Complainant is a Veterinary Surgeon and an American citizen and at the material time of this claim was a non-EU and non-EEA citizen. She was engaged by the Respondent from 2ndAugust 2004. She was rostered to work Monday to Friday, every second Saturday, one in four Saturday nights, Sundays and Sunday nights. Initially she was paid on a fixed rate of pay and in May 2005, after she had been offered an alternative position with another veterinary practice, it was decided to pay her on a commission basis. No other changes took place in her conditions at that time.
At the hearing before the Court there was a substantial discussion on the question of the Complainant’s status to work/ provide a business service due to her non-national status. However, it was accepted that from 2003 until 2013 the Complainant had Business Permission from the Irish National Immigration Service of the Department of Justice and Equality and from 2013 she was deemed to be encompassed by theZambranoJudgement on the basis of her parentage of an Irish citizen child. The latter provided her with a right to reside and work in the State as an employee without an Employment Permit or to set up a legitimate business or engage in a profession without seeking the permission of the Minister for Justice and Equality.
Summary of the Complainant’s Case on the Preliminary Issue
Ms Emma Cassidy, B.L., instructed by Niamh Moriarty & Company, Solicitors, on behalf of the Complainant, asserted that the Complainant was an employee of the Respondent and therefore had appropriatelocus standito maintain a claim for discrimination under the Acts. She stated that the Complainant commenced working for the Respondent on 2nd August 2004 and was employed as a Veterinary Surgeon having responded to an advertisement placed by the Respondent in a veterinary periodical. She went on maternity leave in March 2007 and returned in August 2007. The Complainant became pregnantagain in March 2014 and took maternity leave from 6 October 2014 until 6 April 2015.
Ms Cassidy stated that during her pregnancies the only duties the Complainant could not carry out were those that involved lambing sheep as it is inadvisable for pregnant women to be near same due to the dangers this could cause to the pregnancy. The Complainant also could not undertake large animal work for approximately four weeks before going on maternity leave in March 2007 when she was physically unable to do large animal work. Further, the Complainant was advised generally by her Doctor in and around January 2007, approximately 10 weeks from her due date, that she should avoid working nights if possible for her general wellbeing for the rest of her pregnancy.
Ms Cassidy submitted that the Complainant was covered by the broad definition of employee contained in the Acts which she contended was also echoed in definition of a “worker” by the CJEU for the purpose of EU law and she relied upon the case ofDanosa v LKB Lizings SIA[2011] 2 CMLR 45 where it held that: -
- “...the essential feature of an employment relationship is that, for a
certain period of time, a person performs services for and under
the direction of another person, in return for which he receives
remuneration...”
Ms Cassidy stated that the decision in theDanosacase arose in the context of establishing the definition of worker for the purposes of the Pregnancy Directive and therefore has a clear application to the circumstances at issue in the within proceedings.
The claimant inDanosaperformed services for the respondent and received
remuneration. She was directed to perform these duties personally by certain weekly deadlines and remained subject to the management of the respondent. Therefore, in the context of this claim, Ms Cassidy submitted the above-mentioned test was passed by the Complainant as she could easily be identified as a worker who was directed to perform duties personally by the Respondent and was at all time subject to the management of the Respondent.
Ms Cassidy argued that theDanosacase and the definitions contained therein are the supreme authority in this jurisdiction. She submitted that both this authority and the precedents it has created are the only appropriate authorities that may be considered when determining the Complainant’slocus standipursuant to the Acts. She said that this is a much less restrictive and broader definition of “worker” and actually has the effect of capturing many more working relationships than other employment legislation. In addition, this broad definition is what was intended by the legislature given the European Directives from which it emanated.
Further to the foregoing definitions Ms Cassidy also submitted that on the basis of the established tests, the Complainant was engaged by the Respondent under a contract of service and as such was an employee for the purposes for the Acts. She presented her argument under each of the established tests to show that the Complainant was obliged “personally to execute” the work which she was assigned by the Respondent.
- Control Test
Ms Cassidy submitted that the Respondent set the Complainant’s hours of work, dictated the nature of the work she undertook, determined the location where she would undertake the work and, in respect of annual leave or other absences, required, as is normal in an employment relationship, that she request time off and on occasion refused such requests. She said that the Complainant was told where and when to attend on-call call-outs and was required to undertake small animal clinics. The Complainant used the Respondent’s equipment and drugs and on occasions was directed by one or more of the Partners on how to mix particular drugs and, notwithstanding the fact that the Complainant regularly used the Respondent’s equipment and drugs, she did not necessarily agree with the Partner’s directions on how to mix particular drugs.
With regard to her argument on the extent of the control exercised over the Complainant by the Respondent, Ms Cassidy placed reliance upon the case ofBeloff v Pressdranz Ltd[1973] 1 ALL ER 241 which specifically addressed the significance of the control test when dealing with a skilled worker wherein it was held that:-
- “...the greater the skill required for an employee’s work, the
less significant is control in determining whether the employee
is under a contract of service. Control is just one of many
factors whose influence varies according to circumstances.”
She said that this test was accepted and promulgated further inRe Sunday Tribune Ltd[1984] 1 IR 505 by Carroll J. who, in reference to the control test, noted that:-
“when senior staff with professional qualifications are
employed, the nature of their employment cannot be determined
in such a simplistic way.”
Ms Cassidy asserted that the Complainant’s professional qualification as and skills of a Veterinary Surgeon clearly brought her within the catchment of the foregoing authorities.
- Integration Test
In addition to the foregoing, Ms Cassidy again relied uponRe Sunday Tribune Ltdwhich found a claimant to be an employee on the basis that her work was an integral part of the business of the respondent. In the instant case, it was submitted that given the level of control enjoyed by the Respondent over the day-to-day conduct of the Complainant’s work, her hours of work as indicated by rostering and the fact she had to request time off and on occasion was refused time off, as well as the frequency of work allocated to her, Ms Cassidy contended that the Complainant was fully integrated into the Respondent’s veterinary practice.
- EntrepreneurialTest
Ms Cassidy submitted that any integration test is inextricably linked to the test of whether or not a worker is in business on their own account as espoused inHenry Denny and Sons (Ireland) Limited v Minister for Social Welfare[1998] 1 ER 34 wherein the then Mr Justice Keane stated that such an inference of a contract for services can only arise where a person:-
“provides the necessary 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.”
Ms Cassidy said that the Complainant was not engaged in business on her own account nor on a contract for services by the Respondent as she did not have any employees, her duties were set by the Respondent, she could not sub-contract work, even during periods of annual leave or sick leave, and she had no premises nor means of conducting work independent of all the facilities and equipment provided by the Respondent and, in particular, all of the medications utilised by the Complainant derived from the Respondent’s stock of same.
- Mutuality of Obligation Test
Counsel for the Complainant submitted that there was a mutuality of obligation between the parties as the Respondent offered work to the Complainant and she alone was required to undertake this work when and wherever she was instructed to carry it out. The Complainant could not refuse the work assigned to her and work was allocated on a consistent and regular basis over eleven years. There was a clear expectation on the part of the Respondent that the Complainant would undertake the work allocated to her.
If the Complainant was unable to attend at work due to illness, sick leave and/or maternity leave, she was required to inform the Respondent as is normal in employer/employee relationships as she could not sub-contract any work assigned to her. In this regard, reliance was placed on the decision of Mr Justice Edwards inBarry v Minister for Agriculture[2009] 1 l.R. 2152 where he stated:-
- “The requirement of mutuality of obligation is the requirement
that there must be mutual obligations on the employer to provide
work for the employee and on the employee to perform work for
the employer.”- Other Issues
Ms Cassidy accepted that the Complainant dealt with her own income tax, VAT and PRSI affairs, however, she maintained that in line with a long-established practice, dealing with one’s own tax affairs was not a factor that in and of itself could be determinative on whether or not a person is an employee. She said that any such argument proffered in this regard has been explicitly rejected by the High Court inRe Sunday TribuneLtdwhere it was held that the fact that income tax was not deducted at source was not determinative of the issue as the relationship had to be examined from the perspective of the realities of the situation irrespective of any labels ascribed by the parties.
This line of authority was also accepted and applied in theHenry Dennycase
and in the 2016 Determination of the Employment Appeals Tribunal in0’Hanlon v Ulster Bank Ireland LimitedUD1096/20l4 wherein the Tribunal dealt exclusively with the preliminary question of whether or not the claimant was an employee and found that she was notwithstanding the facts that she not only looked after her own income tax affairs but also invoiced for payment and dealt with her own VAT and PRSI.
In conclusion, Ms Cassidy submitted that the Complainant in fact meets all of the tests proffered and was therefore an employee of the Respondent. She said that indeed the Respondent itself confirmed in writing in July 2014 that the Complainant was one of its full-time employees when it very helpfully assisted the Complainant in her application for Irish citizenship.
Ms Cassidy refuted the Respondent’s reliance on theOberoi v An Garda Síochána[2013] IEHC 267 case and maintained that it was not applicable in circumstances where the decision in that case was based on the fact that the complainant could never have been an employee of the respondent for the purposes of bringing a claim under the Acts given the specific exclusion into which he fell that is outlined in the Acts in addition to that in An Garda Síochána Act 2005, as Mr Oberoi was a volunteer in the Garda Reserve.
Summary of the Respondent’s Position
Ms Dorothy Donovan, B.L., instructed by Frizelle O’Leary & Company, Solicitors, on behalf of the Respondent, contended that the Complainant is a self-employed independent contractor and accordingly not covered by the Acts. She said that the Complainant informed the Respondent prior to the commencement of their relationship in August 2004 that this was the type of arrangement that she wanted. She was regularly asked to become an employee but she consistently refused opting to remain a sub-contractor as this suited her better because of the freedom to choose and pick both the type of work and the times worked. The Complainant registered herself as self-employed with the Revenue Commissioners and for social welfare purposes. She used her own Accountant regarding her business and income tax and VAT affairs. She charged VAT using her VAT registration number which she had been using prior to her commencing her relationship with the Respondent. She was paid fees on foot of VAT Invoices which were not submitted on a regular basis. The Complainant paid her own professional indemnity insurance and her own professional veterinary registration fees. She registered herself with the Veterinary Council.
Ms Donovan said that there was no obligation on the Respondent to provide work to the Complainant but rather it offered her work if and when she was available but such work could not be guaranteed. She said that the Complainant was in the nature of a favoured sub-contractor. She liked TB testing as she was paid per head of cattle and she was extremely efficient and speedy at testing unlike an employee of the Respondent who was paid the same salary irrespective of the number of cattle tested.
It was part of the agreement that the Respondent would offer work when available to the Complainant but it was at all times a matter for the Complainant as to whether or not to accept the work and Ms Donovan said that regularly she did not accept the work offered. Ms Donovan said that there were many times when the Respondent telephoned the Complainant to check her availability she would not answer her telephone. The Complainant would make herself available or unavailable based on her own needs, for example, sometimes on a Monday or Tuesday when she was taking her daughter swimming or to ballet she would not be available and sometimes early in the morning or after 4.30pm depending on her personal or domestic requirements. Ms Donovan said that the Respondent never took issue with the Complainant’s refusals of work. Availability of work for the Complainant varied according to seasonal and economic factors.
Ms Donovan said that the Complainant was liable to receive a telephone call offering her some work at any time of the day other than the times she let the Respondent know she would not be available to take calls However, she was free to refuse that work if she chose to do so. What exact time the Complainant attends to the client or how long the visit takes to carry out the service is a matter for her. The fact that the Complainant may have responded affirmatively on many occasions because she needed to work and needed the money “does not transform the working arrangements between” the Complainant and the Respondent “legally speaking into a contract of service” vizMcKayed v Forbidden City Ltd t/a Translations. i.e.[2016] IEHC 722.
Ms Donovan said that the Respondent did not exercise any control or direction over how the Complainant carried out the work offered and accepted. The Complainant had a statutory obligation to carry out the work to a certain standard in accordance with professional veterinary best practice and codes of practice. How the Complainant carried out her professional veterinary work is determined by the Veterinary Council and by statute (oath, codes of practice and ethics). Where and when the Complainant does the Department of Agriculture (“the Department”) work is by notification from the Department and not the Respondent and any direction or control over the Complainant is by the Department so that if on inspection the Department is not satisfied with the services carried out by the Complainant it is the Complainant and not the Respondent that is called into the Department.
Ms Donovan said that the Complainant could not only refuse work but she could choose the type of work she wished to do. For example, the Complainant refused to join the Temporary Veterinary Inspectors (“TVI”) Panel for the meat factories. The Complainant provided just one service at the dog track in Enniscorthy in 2007 but did not accept any more work there. She refused some call-outs either because the farmers were too slow to pay or the locations were too far away.
At a meeting on 22nd February 2015 she told the Respondent that in future she would prefer mainly to do TB testing because it was the best organised work and better paid and otherwise she would only be available four days per week as it would not pay her to get a babysitter for a few farm callouts and that it would be less income for her. Ms Donovan said that the Respondent completely understood this and took no issue with it.
Counsel for the Respondent stated that the Complainant was free to make her own timetable and could increase her profits with her own efficiency. The Complainant organised her own work and rosters save for the roster for the John Bowler Clinic but she was only rostered for that Clinic after checking her availability.
The Complainant supplied and maintained her own equipment viz. calving jack, calving ropes, TB-testing equipment/guns, stomach tubes, a funnel, surgical instruments and equipment and protective clothing. She never claimed any reimbursement in respect of same. She supplied her own phone and paid her own telephone hills. She never claimed any reimbursement in respect of same and the Complainant dealt with these as deductible items and allowances for the purposes of income tax. She supplied her own transport vehicle, petrol, motor tax, insurance and maintenance. The Complainant did not get paid until the Client farmer paid the Respondent and if they did not pay then the Complainant did not get paid.
Ms Donovan said that there was no agreement between the Complainant and the Respondent that she could not provide a substitute and she did in fact do so, namely, Mr C. R., Veterinary Surgeon, and she asked other Veterinary Surgeons in the Respondent’s practice including the Partners, to take over her testing when she was ill.
In support of her position that there was an absence of mutuality of obligation between the parties, Ms Donovan cited theBarrycase where the High Court held: -
- “If there is no mutuality of obligation it is not necessary to go further: whatever the relationship is, it cannot amount to a contract of service”.
She submitted that it was asine qua nonof any employment relationship that there must be mutuality of obligation. In circumstances where the Complainant was entitled to refuse work and did in fact at times refuse work it was submitted that there was no mutuality of obligation and accordingly that was the end of matter and whatever contract the Complainant had with the Respondent it did not amount to a contract of service. Ms Donovan also citedMcKayedwhere the High Court said
- “….the fact that work was given regularly for a period of time is not determinative of whether one party had a legal obligation to provide the other party with work.
In reality, what seems to me to be the position is that he was liable to receive a telephone call requesting that he carry out some work at any time of day or night. However, he was free to refuse that work if he chose to do so. No person could ever be ‘on call 24/7’ on a permanent basis, in the normal sense of the phrase ‘on call’, which means that the person has an obligation to work if so required. It may well be that if he had been telephoned, the plaintiff would in fact have responded affirmatively on every occasion because he needed the work. However, his factual dependence on the defendant company does not transform the working arrangements between them, legally speaking, into a contract of service.”
- “….the fact that work was given regularly for a period of time is not determinative of whether one party had a legal obligation to provide the other party with work.
Furthermore, Ms Donovan argued that the Respondent’s position was supported by the Supreme Court in its decision in the case ofCastleisland Cattle Breeding v. Minister for Social Welfare[2004] 4 I.R. 150 and [2004] IESC 40 where on the following facts the Court held that it was “satisfied that it was not open to the appeals officer to take the view that the evidence established a contract of service rather than a contract for services”. The evidence were the incidents of the relationship between a Mr Walsh and the Plaintiff which were as follows:
- “From 1990 he registered as self-employed. made tax returns under self-assessment and signed a contract for service with the Cattle Breeding Society Limited. He has no entitlement to holiday/sick pay or expenses and has to provide his own insurance, communication and transport. When the contract for service has negotiated between
SIPTU on behalf of Mr Walsh and the other inseminators it was agreed that a portion of their redundancy would be retained by the company. Mr Walsh has to repeat inseminations at his own cost and expense if earlier inseminations were not successful.
An ordinary employee does not have to make any payment when negotiating a contract of service or repeat a job at his own expense. In this case therefore I am satisfied that there are more points in favour of a contract for service self-employment) than contract of service (employee).”
- “From 1990 he registered as self-employed. made tax returns under self-assessment and signed a contract for service with the Cattle Breeding Society Limited. He has no entitlement to holiday/sick pay or expenses and has to provide his own insurance, communication and transport. When the contract for service has negotiated between
Ms Donovan relied upon the similarities in the instant case to those in a Determinations of this Court inSt. James’s Hospital v Dr Kevin 0’FlynnPTD162 which found that Dr. O’Flynn who worked in the Hospital did so as an independent contractor engaged on a contract for services rather than as an employee of the Hospital.
In addressing the broad definition of who is covered by the Acts, Ms Donovan submitted that a contract“personally to do work”within the definition of Section 2 of the Acts (similar to the definition in the UK Equality Act 2010) must include a requirement on the Complainant to be in a relationship of subordination with the Respondent. Counsel replied uponJivrajv Hashwani[2011] UKSC 40 where Lord Clarke specifically remarked that there was“some significance in the fact that the definition does not simply refer to a contract to do work but to ‘employment under’ such a contract.”
Counsel for the Respondent relied onOberoiwhere the Irish High Court held that for the Acts to apply in that case, to be an employee, he would have to be“a person who has entered into or works under... a contract of employment”. The High Court deemed Mr Oberoi not to be an employee, despite the fact that he had a contract whereby he agreed with another person to personally carry out work or services for that person, as he was considered to be a volunteer and was not in receipt of remuneration, the Court therefore made it clear he would not have succeeded.
The Court inOberoifurther went on to consider the decision inReady Mixed Concrete (South East) Ltd v. Minister of Pensions and National Insurance[1968] 2 QB 497 where it was held “that there were three essential features of a contract of service. These were:-
- (i)“that the servant agreed in consideration of remuneration to provide his own work or skill in the performance of service for the master;
(ii)that the servant agreed expressly or impliedly that he would be subject to control by the master; and
(iii)that the other provisions of the contract were not inconsistent with a contract of service”.
- (i)“that the servant agreed in consideration of remuneration to provide his own work or skill in the performance of service for the master;
Ms Donovan addressed the issue of subordination and referred to the decision of the CJEU inAllonby v Accrington and Rossendale College(Case C-256/01) [2004] ICR 1328 which dealt with a contract containing the expression‘contract personally to do work’. It was held that the term ‘worker’ should not include “independent providers of services who are not in a relationship of subordination with the person who receives the services”.
She said that this requirement for subordination was also noted in the UK Supreme Court inClyde & Co. LLP Bates van Winkelhof[2014] UKSC 32 and in theJivrajv Hashwanicase, in the UK Court of Appeal inWindle and Arada v Secretary of State Justice[2016] EWCA Civ 459 and inJames v Redcats (Brands) Ltd.[2007] ICR 1006.
Finally, Ms Donovan argued that taking the factual matrix into account and the authorities cited above it is submitted that the Complainant was not in a relationship of subordination with the Respondent and accordingly was not working under a contract of employment within the meaning of Section 2 of the Acts.
Summary of the Complainant’s Evidence
The Complainant told the Court that she qualified from UCD in 2002 as a Veterinary Surgeon. Her first job was in Donegal and her second position was in the Burren, Co. Clare. When in the Donegal position, she paid all her own income tax/PRSI from the outset. In the Burren position, she was initially paid a salary and then changed to being paid on commission. She said that she answered an advertisement for a Veterinarian role with the Respondent in August 2004. Initially, she requested to be paid on a commission basis, however, this was not acceded to and she was paid a fixed rate. In May 2005, when she informed the Respondent that she was considering moving to another veterinary practice, they offered to pay her on a commission basis, and she therefore decided to stay with the Respondent.
The Complainant said that her hours of work were from 9am to 6pm, Monday to Friday, every second Saturday and she was rostered on-call one in every four Saturday and Sunday nights. She said that in the last few years, she was covering evening clinics from 4pm to 6pm. She said in 2007 the Respondent commenced an arrangement with a neighbouring clinic to share weekend cover. Thereafter, she was rostered to work one in every six weekends.
The Complainant said that she was paid a percentage of the call-out fee but not for drugs the cost of which was paid directly to the Respondent. The Respondent’s Accounts Department informed her of the details of the call-outs and how much to make out the Invoices for. She then raised her own VAT Invoices for those amounts and she was paid accordingly.
With reference to TB testing, the Complainant said that farmers would ring into the Respondent and book a TB test, the Partners in the Respondent would allocate Veterinary Surgeons to do the testing and she would receive her instructions. She then would decide on how long that test would take and arrange appointments with the farmers.
With reference to taking calls to visit a farm, the Complainant said that it would depend on which Veterinary Surgeon was nearest the farm at the time the call came in. She said that she dropped her daughter to school in the mornings and brought her to swimming classes on Saturdays, however, as her daughter was missing a number of those classes she came to an arrangement with the Respondent to change to Mondays for that work. She said that another colleague was also accommodated in a similar fashion when she was allowed to bring her son to the office on a Saturday.
The Complainant was questioned about the assertion that she could refuse work. The Complainant said that she was once asked to cover a call to see a horse with colic. It was the same day that she had an appointment for a pregnancy scan. She said that she felt that she could not say “no” to the Respondent and she therefore managed to do the call-out and get to the scan appointment just in time. She said that there was another occasion when she had no one to look after her daughter at the weekend when she was rostered to work and she said that she had no choice but to work.
The Complainant was questioned about the assertion that she could call a substitute in to do her work for her. She said that during the bad snow conditions in 2010 she was called out to an emergency but as the road conditions were so bad she asked her ex-boyfriend who was also a Veterinary Surgeon and lived near the farmer concerned to attend to the call for her.
The Complainant was questioned about the assertion that she refused to work in meat factories. She said that she was not trained in meat inspection work and her name was not on the Department of Agriculture’s TVI panel. She said that the Respondent had no control over this work as it was entirely up to the Department to decide who was on the list for such work. She also stated that she did not want to work at the dog track as it would require her working in the evenings and that did not suit her family responsibilities as a single mother.
The Complainant said that TB testing was the largest part of her work. At the time the payments for it were made by the farmers to the Veterinary Surgeons directly whereas now they are made by the Department.
She said that the Respondent paid her professional indemnity insurance and she reimbursed the Respondent for it. She said that she was insured to work for the Respondent only. She paid for her own car, travel and telephone expenses and claimed those expenses back as tax deductible expenses from the Revenue. She said that she owned a number of pieces of equipment that she used in her work, however, she said that all drugs/medications came from the Respondent.
The Complainant said that it was expected of her that she would seek permission from the Respondent when she needed to take time off. A number of text message were put in evidence to demonstrate this point.
Under cross-examination, the Complainant stated that she brought her daughter to school at 9am in the mornings and then, depending on the work, she would either head straight out to a call, go to the office of the Respondent or go to her home and await a call. She said that she did TB testing two/three days per week and read test results on the other days. She said that whether or not she needed to call to the office to respond to a call would depend on what drugs/medications etc. she had in her car. She said that if she needed to take a shower after a call then she would either go home or take one in the office of the Respondent.
Details of occasions when she allegedly refused calls were put to her under cross-examination. In 2015 she had a call from a farmer at 4am who had a cow calving with the calf upside down. She said that she told the farmer what to do and asked him to call back in an hour if he still had a problem. She said that he did not call back, however, he did call the office and another Veterinary Surgeon was sent to the call.
She was asked about another incident on 14thApril 2015 when she was asked at 5pm to do TB testing for Farmer TM. She said that as she was due to bring her daughter to ballet class she asked if it was possible for another Veterinary Surgeon to do it. She said that she rang the Respondent back five minutes later to say that she would do it but at that stage another Veterinary Surgeon had been sent. The Complainant was also asked about her refusal to carry out testing on that same date in the morning for Farmer DM. During the giving of her evidence, the witness checked her diary for that date and confirmed for the Court that she carried out the testing referred to. She gave evidence that she tested 206 cattle for Farmer DM and that she also did a caesarean section on a cow for another famer on that same date.
She was questioned about why she no longer provided vetinerary services to Farmer BMD. The Complainant said that she had tested for her frequently, however, Farmer BMD moved farm and as it was now a long distance from the Complainant’s home another Veterinary Surgeon in the practice covered that farm.
She was asked if she refused to call out to Farmer WR. She said that he did not pay for testing in 2010 therefore she did not get paid. Consequently, she said that she did not want to do that testing again. She said that she had nothing to do with which farmer was assigned to her.
The Complainant said that in March 2015 when she was returning to work after having twins she spoke to the Partners and requested to finish at 5pm instead of 6pm and that at busy times she said she would work until 6pm. The Partners agreed and said that she could be on the rota for every second Saturday from May 2015, however, this never transpired.
She said that in August 2015 she made enquiries about a part-time position in another veterinary practice and spoke to one of the Partners about the possibility of doing part-time work elsewhere as her income had reduced.
The Complainant accepted that she was registered as self-employed with the Revenue Commissioners and the Department of Social Protection. She said that she did receive Maternity Benefit as a self-employed person. She said that she considered herself as a self-employed person working for the Respondent.
Outcome of the Submissions/Evidence
Having accepted that she was a self-employed person working for the Respondent, Ms Donovan submitted that the Complainant was legally working on a business permission and therefore the contract between the Complainant and the Respondent was a business-to-business contract. Ms Donovan submitted that such a contract was inconsistent with the definition of a contract of employment as defined by the Acts. Ms Cassidy on the other hand contended that the contract was between a sole trader (the Complainant) and a partnership (the Respondent) and comes within the definition of the Acts as she was personally required to carry out the work for the Respondent.
The Law Applicable
The appropriate test to consider the Complainant’s locus standi under the Acts is determined by Section 2 of the Acts. It is a broader definition than that which applies in other employment enactments.
Section 2 of the Act of 1998 as amended by Section 3 of the Act of 2004 defines a contract of employment as: -
- "‘contract of employment’ means, subject to Subsection (3) —
(a) a contract of service or apprenticeship, or
(b) any other contract whereby —
(i)an individual agrees with another person personally to execute any work or service for that person, or
(ii)- an individual agrees with a person carrying on the business of an employment agency within the meaning ofthe Employment Agency Act 1971to do or perform personally any work or service for another person (whether or not the other person is a party to the contract),
- "‘contract of employment’ means, subject to Subsection (3) —
Section 2 Subsection 3(d)(i) provides: -
- “References in this Act to an employee shall be construed as references to the party who agrees personally to execute the work or service concerned and references to an employer as references to the person for whom it is to be executed”.
Therefore, employment under a contract of service is not a condition precedent tolocus standiunder the Acts. The Acts apply to a person employed under a contract of employment. However, it is clear that that term is given a much broader meaning than under other employment enactments. The definition brings within its ambit a person employed on “any other contract” which can include a person employed on a contract for services provided that the person provides services personally.
"Worker" in the Industrial Relations Acts, 1946 to 1976, is defined by Section 23 of the Industrial Relations Act, 1990 as follows:
- " 'Worker' means any person aged 15 years or more 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 express or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or of a contract personally to execute any work or labour…"
The Court accepts the Complainant’s contention that this broad definition of employee was echoed in the definition of a “worker” by the CJEU inDanosawhere it held that the essential feature of an employment relationship is that, for a certain period of time, a person performs services for and under the direction of another person, in return for which he receives remuneration. InDanosathe complainant was directed to perform duties personally by certain weekly deadlines.
The Respondent, in addressing the question of the nature of the Complainant’s contract, drew the Court’s attention to theOberoiandAllonbycases, mentioned above.
Conclusions of the Court
It is common case that no written contract existed between the parties in respect of the arrangements entered into. Therefore, the Court has considered the totality of the relationship between the parties. The Court notes the nature of the relationship between the parties was not one of employer/employee. Nevertheless, the relationship involved an obligation on the Complainant to respond to calls from the Respondent’s Clients, to be included on the roster for the small animal clinic and to be available for out-of-hours call-outs. The Respondent, notwithstanding the absence of any written formal contract, was required by the relationship as it operated to make payments to the Complainant on foot of VAT Invoices presented to it by the Complainant. The amounts of such VAT invoices were calculated by the Respondent on the basis of information accumulated by its Accounts Department.
The Labour Court in Determination No. EDA047,Western People Newspaper v A Worker,examined the legal complexity surrounding the area of the distinction between a contract of service and a contract for services. It outlined the series of tests which have evolved at common law to assist in this identification process. It accepted that the distinction is a fine one and may be difficult to apply in borderline cases. It held that“Traditionally, the existence of a contract of employment was dependent in part on the amount of control exercised by the employer, but the Court accepts that this test is not an absolute one”.
Control Test
As a professional and skilled Veterinary Surgeon, it would be expected that the Complainant would exercise a high degree of initiative in the performance of her work. Consequently, the degree of control exercised by the putative employer could no longer be regarded as conclusive. Nevertheless, from the submissions made and the evidence given by the Complainant, it would appear that the Respondent exercised much the same level of control over the Complainant as one would expect of a Veterinary Surgeon employed by an employer in a veterinary clinic whose status was not in dispute. The Court draws this conclusion based on the evidence given with respect to the hours the Complainant told the Court she was rostered to work and the allocation of duties assigned to her by the Respondent.
In line with theAllonbycase, the Respondent contended that the Complainant was not in a relationship of subordination with the Respondent as she was an independent provider of a service to the Respondent. However, the Court cannot accept this contention. While it is not disputed that the Respondent exercised little day-to-day control over her work, the facts show the Respondent required her to be available to respond to calls which were mostly generated at the Respondent’s base and to attend to Clients in its small animal clinic.
Referring to theOberoicase, the Respondent contended that there as was no contract in place between the parties, and even if there was one, it would have to be considered as inconsistent with a contract of employment, therefore, it submitted that it was not a contract of employment. Again, the Court cannot accept this contention. The Complainant was personally providing services to the Respondent in return for remuneration. As she had been engaged by the Respondent for over eleven years to provide those services, the Court is of the view that being subject to control by the Respondent could be implied by the arrangements having regard to the professional nature of their respective positions.
Finally, in considering the tests laid down in theOberoicase, while the Court accepts that many of the provisions of that implied contract could be deemed inconsistent with a contract of service, when account is taken of the fact thatOberoiwas a volunteer in the Garda Reserve, the circumstances in this case are entirely different.
In any event, the Court examined a number of other tests, in reaching its decision in this matter, as follows: -
Integration Test
The core business of the Respondent is the provision of veterinary services to its Clients. It appears to the Court that the role that the Complainant performed was more integrated into the business of the Respondent than ancillary to that business.
- Mutuality of Obligation
The Court accepts that the Respondent undertook to provide the Complainant with work and that she undertook to personally perform that work in consideration of remuneration.
- Enterprise Test
The Claimant did supply a limited amount of her own equipment, however, much of her equipment and all of the drugs/medications she used were provided by the Respondent.
The Respondent suggested that the Complainant had the power to provide a substitute to carry out the functions entrusted to her and did in fact do so. The Complainant told the Court that she did so on one occasion and explained the circumstances of that occasion. The Court cannot find that those circumstances go far enough to affirm the contentions advanced by the Respondent.
The Respondent also stated that she asked other Veterinary Surgeons with the Respondent, including the Partners, to take over her testing when she was ill. The Court is of the view that such a situation could not establish a presumption that she had no locus standi under the Acts. Bearing in mind the broad definition under the Acts, the Court does not accept that this contention counters the claim that she was not required to personally carry out the work for the Respondent.
Application of these Principles to the Present Case
The question as to whether or not a self-employed person comes within the ambit of the Acts, is answered by Article 14 of the Recast Directive 2006/54/EC and Article 3 of the Framework Directive 2000/78/EC, both of which make it clear that the principle of non-discrimination extends to self-employed persons. The Race Directive 2000/43/EC also brings self-employment within its scope at Article 3. The Acts are intended to implement these three Directive and must be interpreted in conformity with each of them. It follows that the broad definition of a “contract of employment” as defined by the Acts must be interpreted as intended to bring self-employed persons within the ambit of the Acts so as bring the Acts into conformity with the personal scope of the Directives.
With regard to the UK case ofJivrajv Hashwani, there are material differences in the facts of that case relative to the instant case. Moreover, the relevant provision of UK law that the court relied upon is worded in significantly different terms to those of the Irish statute. Lord Clarke placed some emphasis on the words “employed under a contract......” that appear in the UK legislation. Those words do not appear in the definition of a “contract of employment”in Irish law. Also, the Respondent placed significant reliance on the requirement identified inJivrajv Hashwanifor a relationship of subordination. In that context, subordination refers to the degree to which one party exercises economic power vis-a-vis the other. Where one party is dependent on another to a significant extent for work, and consequently their means of livelihood, a relationship of subordination exists. This point was considered in theBates van Winkelhofcase where Lady Hale referred to English cases in the EAT which she said have attempted to capture the essential distinction in a variety of ways. She citedByrne Bros (Formwork) Limited v Baird[2002] ICR 667 where Recorder Underhill QC suggested at para 17(4) that: -
- “the reason why employees are thought to need such protection is that they are in a subordinate and dependent position vis-�-vis their employers: the purpose of the Regulations is to extend protection to workers who are, substantively and economically, in the same position. Thus, the essence of the intended distinction must be between, on the one hand, workers whose degree of dependence is essentially the same as that of employees and, on the other, contractors who have a sufficiently arm’s-length and independent position to be treated as being able to look after themselves in the relevant respects.”
- “….a focus on whether the purported worker actively markets his services as an independent person to the work in general (a person who will thus have a client or customer) on the one hand, or whether he is recruited by the principal to work for that principal as an integral part of the principal’s operations, will in most cases demonstrate on which side of the line a given person falls.”
In this case, the Court is satisfied that the Complainant was clearly dependent on the Respondent for most, if not all, of her work. Consequently, it is satisfied that she was in a position of subordination vis-a-vis the Respondent.
In theOberoicase,it is significant that Section 15 of the Garda Síochána Act 2005, that established the Garda Reserve, which is governed and regulated by the Garda Síochána (Reserve Members) Regulations 2006 S.I. No 413/2006 expressly provides that a member of the reserve is not to be regarded as serving pursuant to a contract of employment. That is a point that was also acknowledged by Feeney J in his judgment.
Having considered the nature and history of the relationship between the parties in its totality, on balance, the Court is satisfied that a continuous contractual relationship existed between the Complainant and the Respondent for a period of eleven years during which there was an obligation on the Complainant to provide services to the Respondent. Having considered the various tests the Court is satisfied that that contract was one which can justifiably be described as one where the Complainant agreed “personally to execute” the work assigned to her by the Respondent. Accordingly, the Court is satisfied that, taking the entirety of the relationship into account, the Complainant was employed by the Respondent on a contract of employment and therefore is covered by the broad definition under Section 2 of the Acts. Accordingly, the Court finds that the Complainant has the necessary legal standing to pursue a claim under the Acts.
Determination
This is a Preliminary Determination of the Court.
Having considered the issues arising in this case, the Court has concluded that the Adjudication Officer erred in holding that he lacked jurisdiction to hear and decide the Complainant’s claim. Accordingly, it is the Determination of the Court that the Decision of the Adjudication Officer be set aside and substituted with a finding that the Complainant was encompassed by the scope of the Acts at all times material to her complaint.
Since the substance of the Complainant’s claim has not been investigated at first instance, the Court hereby refers the matter back to the Workplace Relations Commission pursuant to section 84(4) of the Acts for investigation and determination.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
4th April 2019______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.