Complainant

Respondent

Anonymised Parties

A Delivery Driver

A Delivery Business

Representatives

Rory Treanor, Peninsula Group Limited

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00018238-001

30/03/2018

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

CA-00018327-001

05/04/2018

The respondent is a company that provides courier and delivery services and the complainant worked as a delivery driver.  He entered into a contract for service on November 8^th 2016.  He claims that he was dismissed without notice on March 28^th 2018 and that his dismissal was unfair.  The complainant said that he was given no opportunity to explain himself and “not even informed in a proper and dignified manner” that he was being terminated.

The respondent’s case is that the complainant was an independent contractor and not an employee and that he is not covered by the provisions of the Unfair Dismissals Act.  For this reason, the respondent submitted that I have no jurisdiction to hear this complaint.

As the respondent’s position is that the complainant was a self-employed contractor, an issue arises about his status.  As a preliminary matter I must consider if the complainant was an employee of the respondent.

In his complaint form, the complainant said that he “signed up” with the respondent on November 8^th 2016 as “a delivery contractor.”  It is unclear if he did any work for the respondent until May 2017, when he said that he was assigned to a take-away business in Santry, north Dublin, and he delivered for that client until March 28^th 2018, when he wasn’t offered more shifts.  The complainant submitted a document detailing his communications between him and the respondent’s driver liaison manager between May 2017 and March 2018.  This shows that, apart from the Santry operation, on occasion, the complainant did deliveries for other restaurants in Dublin and for an electrical retailer. 

The complainant said that he looked at the case of Henry Denny & Sons (Ireland) Limited v Minister for Social Welfare [1998] 1 IR 34, whereMr Justice Keane found that Ms Mahon, the supermarket demonstrator employed by Henry Denny & Sons, was an employee and not a contractor.  The complainant said that he is in the same position as Ms Mahon and that he was an employee of the respondent company.

When he joined the company, the complainant said that he used to get an e mail every Sunday, giving information about time slots of work available the following week.  He would let the company know his availability by replying to this e mail.  The company then developed an IT application (“app”) that showed the time slots that were open for drivers and he made himself available at times that suited him.  He said that when he did the deliveries, he drove his own car and he provided his own car insurance.  He wore a uniform with the logo of the take-away in Santry for whom he did the deliveries. 

At the hearing, the complainant was shown a copy of his contract, which was submitted in evidence by the respondent.  Two contracts were issued during the complainant’s tenure, the first, when he signed up on November 8^th 2016 and the second on March 14^th 2018.  Both documents are headed, “Independent Contractor Agreement.”  The complainant said that he “had no responsibility for the contract” and that he was there to “satisfy customer needs.”

A schedule attached to both contracts of employment show that the complainant was paid a fixed fee, depending on the distance he was required to drive.  A “standard task” was described as a delivery within 10 kilometres of the collection point.  The fee for a standard task was €5.24.  Every extra kilometre travelled attracted an extra payment of €1.01 per kilometre. 

The complainant explained that he generally communicated via the company’s app every Sunday.  He said that the driver liaison manager is responsible for managing the delivery rosters.  For information about deliveries and places that he was to go, he logged on to the app multiple times throughout his working day.

Clause 2 of the complainant’s contract of employment is a section headed, “Independent Contractor Status” and it provides as follows:

2.1  The parties intend that the Contractor is an independent contractor of the company.  Nothing contained in this Agreement will be construed to create the relationship of employer and employee, principal and agent, partnership or joint venture, or any other fiduciary relationship.

2.2  The Contractor may not act as an agent for or on behalf of the Company, or represent the company, or bind the company in any manner.

2.3  The Contractor will not be entitled to worker’s compensation, retirement, insurance or other benefits afforded to employees of the Company.  The Contractor is responsible for the deduction of income tax liabilities and pay related social insurance taxes or similar contributions, if applicable, arising from the payment of the fees to it under this Agreement.

2.4  The Contractor is responsible for all necessary and relevant insurance requirements including but not limited to occasional business use, carrier and commercial insurance (if applicable).  The Contractor is responsible for the maintenance and road-worthiness of their vehicle (NCT / CRVT) and applicable motor tax.

2.5  The Contractor is responsible for generating weekly invoices for the Company in order to facilitate accurate payments being made.  The Contractor’s (name of respondent’s) account will automatically generate weekly invoices as required based on work performed against specified tasks.

At the hearing, the commercial director said that the drivers determine their own availability and they may decline jobs if they wish. 

On behalf of the respondent, Mr Treanor said that the complainant had the freedom to select his hours of work and that there was no obligation on him to work any number of hours in any week.  Also, there was no obligation on the company to offer him a set number of hours.  On this basis, Mr Treanor submitted that the “mutuality of obligation” required to determine the existence of a contract of service, did not exist.  He said that the complainant’s contract was different from the claimant’s in the “Denny” case, because, unlike “Denny,” there was no mutuality of obligation between the respondent and the complainant and the contract for service was clear on this matter.

Mr Treanor said that the complainant’s hours were not consistent from week to week and that they varied according to the work that was available, or the availability of the complainant to work for the respondent.  Details of the hours worked by the complainant in his last five weeks was submitted in evidence.  Over this period, the complainant worked on Friday, Saturday and Sunday on three weekends, on Saturday and Sunday for one weekend and, on the fifth weekend, he worked on Sunday only.  In his complaint form, the complainant said that he worked an average of 18 hours per week.  From the evidence submitted by the respondent, I estimate that he was paid an average of about €210 per week.

The commercial director explained the mechanics of the payment process for delivery drivers.  He said that the drivers’ “app” generates an invoice and a payment remittance for each driver.  As soon as the amount remitted in any year exceeds €37,500, the driver earning that amount is registered for VAT. 

The respondent did not dispute that, unlike some independent contractors, the complainant did not profit from any input in the form of innovation or improvement of the work process.

At the end of his evidence, the commercial director said that the complainant was terminated from working with one client, and that he could have continued to roster himself for other work.  When he was invited to a meeting to discuss why he was discontinued from working with this client, he declined to attend.  Explaining why the complainant was taken off the roster for this client, the manager said that they came under pressure to not put him on that contract.  However, from the respondent’s point of view, the complainant is still one of their contractors and he said that “third party pressure does not determine his entire contract.”

In conclusion, Mr Treanor said that, while he is not an employee, the complainant retains his status as a contractor and he has not been dismissed.

Consideration of the Preliminary Issue – Was the Complainant an Employee of the Respondent?

The issues to be considered in determining whether a person is an employee or a self-employed contractor are well set out in the determination of the Employment Appeals Tribunal (EAT) in the case of O’Hanlon v Ulster Bank Ireland Limited, UD 1096/2014.  Here, the Tribunal followed the exhortation of Mr Justice McMenamin in the Supreme Court appeal of Barry and others v the Minister for Agriculture and Food, [Appeal number 86/2011], when he asked the parties to prepare an “issue paper” identifying the questions to be addressed by the Tribunal to assist its determination on the status of the claimant.  In its determination on the O’Hanlon case, the Tribunal noted that:

“The parties agreed the following issues, as being relevant to the Tribunal’s decision: [was the claimant] in business on her own account and/or integration; relevant contracts; mutuality of obligation; the intention of the parties; control; actions of claimant; taxation. The Tribunal did not consider itself confined to the issues agreed between the parties and also indicated that it would have regard to the following: pension entitlements; sick pay; substitution; whether the profit which she derived was dependent on how she carried out her work; was she paid for holidays; did she have support staff; how and where she did the work; could she engage someone else to do the work instead of her. The Tribunal did not close its mind to other factors which might arise during the hearing of the case.”

The Barry case, referred to above, is described in the O’Hanlon decision as having had “an eventful legal journey” with two sittings before the EAT and two sittings in the High Court before being returned by the Supreme Court to the EAT for a third time.  This 11-year saga shows how difficult it can be to determine on the issue of employment status.  Ultimately, the Supreme Court decided that this responsibility must reside with the EAT.  As that institution ceased to exist with the enactment of the Workplace Relations Act in 2015, the responsibility at first instance, now falls to the adjudicator.

It is evident from the jurisprudence that there is no specific test for determining the status of an individual whose status is unclear.  It is my view that the criteria set out in the O’Hanlon case, in circumstances where the Tribunal “did not close its mind to other factors” provide a starting point for an examination of the case under consideration here.

Mutuality of Obligation

This principle refers to the obligation of the employer to provide work and the obligation of the employee to carry out the work.  These “mutual obligations” are considered not to exist at all, or to constitute only a minor component of the relationship between an employer and a self-employed contractor.  In the first outing of Barry at the High Court, (Minister for Agriculture and Food v Barry [2008] IEHC 216), referring to the principle of mutuality of obligation, Mr Justice Edwards stated:

“If such mutuality is not present, then either there is no contract at all or whatever contract there is must be a contract for services or something else, but not a contract of service.  It was characterised in Nethermere (St Neots) Ltd v Gardiner, [1984] ICR 612 as the ‘one sine qua non which can firmly be identified as an essential of the existence of a contract of service’.  Moreover, in Carmichael v. National Power Plc, [1999] ICR, 1226 at 1230 it was referred to as ‘that irreducible minimum of mutual obligation necessary to create a contract of service.’  Accordingly, the mutuality of obligation test provides an important filter.  Where one party to a work relationship contends that that relationship amounts to a contract of service, it is appropriate that the court or tribunal seized of that issue should in the first instance examine the relationship in question to determine if mutuality of obligation is a feature of it.  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. However, if mutuality of obligation is found to exist the mere fact of its existence is not, of itself, determinative of the nature of the relationship and it is necessary to examine the relationship further.”   

In the case referred to above, of Nethermere (St Neots) Limited v Gardiner [1984] ICR 612 where the principle of the “irreducible minimum of mutuality of obligation” was established, there was an obligation on the respondent to provide work and a corresponding obligation on the complainant to carry out the work.  In the case we are considering here, there was no obligation on the complainant to report for work at a specific time and place and the respondent had no obligation to provide work for him.  The only time an obligation arose was when the complainant carried out work, which he did when it suited him.  When the work was done, the respondent was obliged, in accordance with the contract agreed between them, to pay the complainant an agreed fee.

The Relationship between the Complainant and the Respondent

With the complaint form that he submitted on April 4^th 2018, the complainant attached a print-out of the communications between him and the driver liaison manager on duty from May 2017 until his last assignment on March 28^th 2017.  At the hearing, we learned that this job was covered by more than one person.  This document gives an insight into the degree of the obligation on the complainant to accept work and the obligation on the employer to provide work.  For convenience, from here on, I will refer to the driver liaison manager as “DLM.”   

On June 5^th 2016, the complainant was scheduled to start work at 5.00pm.  DLM sent him a text message saying, “can you do your shift in Blackrock by any chance?”

The complainant replied, “Ok.  Just for today koz too much problem with parking there (sic).  And am not going to Dundrum.”

DLM replied, “okay thanks, it is just because of the bank holiday.”

On July 14^th 2017, DLM sent the complainant a message asking him if he was available to work that evening.  The complainant replied, “Yes, might be 15 minutes late.

DLM replied, “Great, I’ll roster you in now.”

The complainant replied, “Santry.”

DLM initially confirmed the location for that evening’s work as Santry and then replied, “Actually, are you able to go to Terenure area?  We are very short there.”

The complainant replied, “No going anywhere else (sic).  Sorry.”

DLM replied, “okay no problem, Santry it is.”

Later that afternoon, the complainant sent a text message saying, “Hi guys Saturday 22^nd July can I do 5 to 10 instead of 2 to 10?  Or even can I do 4 to 10?”

DLM replied, “No problem I’ll change that now.”

On July 15^th, the complainant sent a message saying, “Hi John I just received an urgent appointment.  I will be late around 13.30.  Sorry, might be before.”

DLM replied, “that’s no problem, thanks for letting us know.”

On August 1^st 2017, the complainant sent a message to let DLM know that he was “available to work on Saturday 5^th August from 12 to 5 and Monday 7^th August on bank holiday from 12 to 10 in Santry.”

DLM replied, “Great stuff, thanks…”

On August 7^th, DLM sent the complainant a message to say, “just so you know, I have been adding in extra for the (electrical retailer delivery) job.”

On the same day, the complainant sent DLM a message to say , “Sat 12^th I can only do 12 to 5.  Can’t do till 10.”

DLM replied, “no problem I have taken you out of the roster from 5 - 10.”

The next day, DLM sent a message to the complainant:  “…are you available for (an electrical retailer) Coolock job delivering to Clongriffen 2pm or so?”

The complainant replied, “Am in work in town, finishing at 5.”

DLM replied, “No worries…have a good day.”

On September 14^th 2017, DLM asked the complainant, “can you work 5-10 tonight?”

The complainant replied, “Is that in Santry?” and when this was confirmed he said, “yep, am in then.” He also responded to a request to work from 12-10 that Sunday.

On September 21^st, DLM asked the complainant if he could work “5-10 tonight.”

The complainant replied, “no sorry guys am in college tonight.”

DLM replied, “no problem.”

On November 1^st 2017, DM asked the complainant if he could work that evening.  He replied, “Sorry lads.  Busy tonite (sic).”

DLM replied, “would you be interested in working 12-5 tomorrow in Santry?”

The complainant replied, “Am in work till 4.30.  Can do Saturday.”

On November 19^th, the complainant queried why he was only getting five hours the following week.  He was informed that the roster wasn’t finished yet.  He said that he needed 20 hours until mid-December and DLM replied, “we will give you more hours.”  The complainant then informed DLM that he was travelling from mid-December to 22^nd January and that he would come back in January to work weekends.  DLM replied, “ok, no problem, thank you.”

On November 20^th, the complainant again sent a message to DLM complaining that “yesterday you mentioned that the roster is not done yet but the other drivers have been getting more hours and mine is still 6 hours”.  There is no evidence in the print-out of any reply from DLM to this message.

On November 27^th, the complainant sent a message to his colleagues, “Guys shift for sale on Friday from Santry from 12.00 to 17.00.  Just go on the app and take the shift.”

On December 6^th 2017, the complainant was asked to work from 5.00pm until 10.00pm, but he replied, “sorry guys, finish uni at 9pm.”

The purpose of repeating these communications here is to show that the complainant had no commitment from the respondent that he would be scheduled for a specific number of hours during the week in a specific place, although he expressed a preference to work at weekends in Santry.  For his part, when he wasn’t available, he simply informed the driver liaison manager, even at times when he had already accepted a shift.  On any occasion when he wasn’t available, the general response from the respondent was, “no problem.”  When he went on holidays between December 2017 and January 2018, he didn’t seek approval and he simply informed the driver liaison manager that he would be away.      

It is apparent from this communication that the complainant had a job in Dublin city from Monday to Friday and he finished work there around 5.00pm.  He went to college on some evenings and he supplemented his income by working for the respondent as a delivery driver at weekends.  When he wasn’t available, he simply didn’t put himself on the roster.  On some occasions, even when he put himself on the roster, he removed himself, with no penalty from the company.  He decided where he wanted to work and he was free to refuse to work in certain locations.

At the hearing of this complaint, the respondent said that they stopped giving the complainant any work at the restaurant in Santry where he wanted to work.  The explanation for this was that the client asked for a different driver.  From the evidence of the commercial manager at the hearing, this did not prevent the complainant continuing to work for the complainant, but after March 28^th 2018, he decided not to roster himself for any more shifts. 

Conclusion

It is my view that no mutuality of obligation existed in the relationship between the complainant and the respondent in this case.  As the requirement for mutuality of obligation is the critical factor, the “one sine qua non” which is essential to a contract of service, I have to conclude that this complainant was not a direct employee but was employed on a contract for service.

I have examined the evidence submitted by both sides at the hearing of this complaint and I have enquired into the nature of the relationship between the parties.  I have concluded that the complainant was not an employee of the respondent company, but that he was an independent contractor and that he was paid a fee for the deliveries he made, in accordance with the contract he agreed with the respondent in November 2017 and March 2018.  I decide therefore, that I have no jurisdiction to hear this complaint under the Unfair Dismissals Act 1977 – 2015.

I recommend that the respondent takes no action in respect of this complaint because it is a duplication of the complaint under the Unfair Dismissals Act on which a decision has been reached, as set out above. 

Status of the complainant