ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00019782
Parties:
| Complainant | Respondent |
Anonymised Parties | A Maintenance Engineer/Fitter | A Printing & Packaging Company |
Representatives | Kealin Ireland of Ireland Human Resources | Barry Collins, Solicitor of Barry Collins and Company |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00026250-001 | 12/02/2019 |
Date of Adjudication Hearing: 09/05/2019
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The issues in contention concern the alleged Unfair Dismissal of a Maintenance Engineer by a Packaging and Printing Company. |
1: Summary of Complainant’s Case:
The Complainant began with the Respondent Organisation as an Apprentice in 1983. On completion of his Apprenticeship he was let go. New management had taken over and it was decided that Maintenance would not be done on an inhouse basis. The Complainant at this time established himself as a sole trader and approached the Respondent for maintenance work. This was agreed, and the Complainant spent the next thirty years working on the maintenance of the Respondent’s extensive equipment range. In all matters he was effectively an employee. He was under the complete control of the Respondent and was constantly at their beck and call as regards equipment breakdowns and routine maintenance. He worked around the clock for the Respondent and had very little private time.
In June 2018 rumours circulated about the Maintenance position and the Complainant approached the Respondent Managing Director. At a staff meeting it was stated that a full time Maintenance Manager was going to be appointed. The Complainant made representations to the HR manger and the MD and was given an Interview for the position. This interview was perfunctory in the extreme. Shortly afterwards the Complainant was informed that he was unsuccessful. The Complainant was not retained for further work from the 12th November 2018. He has not worked since. The Complainant’s Legal Representative presented extensive case law and precedent evidence regarding the question of employment status. It was maintained that the employment relation, stretching over 35 years, was clearly that of an employee – a status of OF Service was the only possible conclusion that could be reached. The issue of Control was strongly canvassed by the Complainant’s representative – the Complainant was always under the complete and total control of the Respondent even extending to making regular contacts with him while he was away on holidays. Accordingly, he is/was an employee and is covered by the provisions of the Unfair Dismissals Act,1977. His removal from the Respondent’s employment was grossly unfair, no natural justice was evident and accordingly a case for Unfair Dismissal must be found. |
2: Summary of Respondent’s Case:
The Respondent argued strongly that the Complainant was not an employee. He provided his service to the Respondent via a separate Company called XXX Print Repairs Limited. This company invoiced the Respondent for work done and charged Vat on the invoices. This had been the case for many years. There was no suggestion of any other employment benefits involved. The hourly rate charged by XXX Print Repairs was clearly well in advance of any “employee” status maintenance person. His total bill for a year, taking the figure quoted on the Claim form was, potentially, in the region of €340,000. In the Summer of 2018 the Respondent decided to change how it was doing its Maintenance and moved to employ a full time Maintenance Manager. The Complainant had been interviewed for the position on an employee basis but was not successful. The Respondent, in conclusion, maintained that the Complainant had never been an employee but rather a Contractor via XXX Print Repairs Limited. As such the Unfair Dismissals Act cannot apply. |
3: Findings and Conclusions:
3:1 The relevant Law. Statute /Legal precedents/ OF or FOR Service / Natural Justice. The relevant statute law here is the Unfair Dismissals Act,1977 supported by S1 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures. There is, also, extensive Legal Precedent and case law on the key issue in this case – the question of the employment status of the Complainant – a contract OF or FOR service. I will deal with this issue first. 3:2 Contracts OF or FOR Service. The landscape of Legal Precedents is extensive here and all academic & legal commentators agree on one key point - that there is no definite rule of Universal Application. Ryan in Chapter 3 of Redmond on Dismissal Law Bloomsbury 3rd Edition 2017 Page 35 refers to the issue as being “exceedingly difficult” to answer and has been debated in “Courts for Centuries”. A range of legal Tests are referred to “but none is determinative”. Accordingly, each case has to be seen “in the light of its own facts and unique context”. The case of Denny v the Minister for Social Welfare [1998] I IR 34 is a good example of a case that had multiple legal outings and examinations by Courts and Tribunals and reached as far as the Irish Supreme Court. Nonetheless ,in considering carefully to how to assess the work relationship, Edwards J. in Minister for Agriculture and Food v Barry - Minister for Agriculture and Food v Barry [2009] 1 I.R. 215 stated that it is unhelpful to speak of a “control test”, an “integration test”, a “fundamental test”, an “essential test” or a “single composite test” because none of these approaches constitute a test to deliver a definitive result. He further stated: “The important thing to remember, however, is that every case must be considered in the light of its particular facts and it is for the court or tribunal considering those facts to draw the appropriate inferences from them by applying the general principles which the courts have developed. That requires the exercise of judgment and analytical skills. In my view it is simply not possible to arrive at the correct result by ‘testing’ the facts of the case in some rigid formulaic way.” Accordingly, cases must be seen in their own lights and a degree of Reasonable Common sense applied.
I will look at this case, hopefully, in the light of this principle. 3:3 Consideration of the facts of this case The facts in the Complainant’s favour for a Contract OF Service were that he had effectively (save for some minor works elsewhere) never worked anywhere else that at the Respondent’s premises. He had completed his apprentice ship there. His daily work was here for almost 35 years and he had been most diligent in attending to all mechanical issues that arose over these years. It was accepted that following his Apprenticeship he had been temporarily let go but had returned to the Premises in a different guise. In the Respondents’ favour for a FOR service arrangement was the fact that it was accepted by all that the Complainant had established himself as a Sole Trader post his Apprenticeship and had invoiced the Respondent on this basis throughout the employment. All the Tests of Control, Integration, Mutuality of Obligation, Contract, Entrepreneurship and SW welfare status can be applied to this case, but the results are ambiguous at best. Keane J. in Denny v the Minister for Social Welfare [1998] I IR 34 stated, as quoted above, that “each case must be considered in the light of its particular facts”. He also considered “the extent and degree of control” but considered that this test did not always provide satisfactory guidance. Relying on Cooke J. in Market Investigations v Minister for Social Security, [1969] 2 Q.B. 173 at 184 Keane J. suggested 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?’. If the answer to that question is ‘yes’, then the contract is a contract for services. If the answer is ‘no’, then the contract is a contract of service. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. 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 the 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 far he has an opportunity of profiting from sound management in the performance of his task.” (Underlining by Adjudication Officer) Taking this point and on a Reasonable Common-sense basis the fact that most clearly stood out to me was that the Complainant was, via his Company, invoicing the Respondent for an Annual Sum that approximated to € 340,000. Even allowing for the Complainant’s own wage rate figures of a rate of € 55.00 per hour on 75 hours a week basis an annual figure of €214,500 is arrived at. It could never be suggested that these two figures are the Wage or Remuneration of a Maintenance Fitter, as commonly understood, possibly or hypothetically employed by the Respondent no matter how the employment was characterised. This view was reinforced by the fact that the Complainant’s Company supplied Engineering Parts and Spares as required. The sourcing of these parts and the “mark up” if any was the province of the Complainant. Travel time was also charged by the Complainant. Vat was applied to both Labour and the Engineering Parts supplied. It was clear that the Complainant provided an exemplary service to the Respondent for nearly 30 years. However, the fact that this was effectively done on a one-man basis with horrendous working hours, was ultimately the choice of the Complainant working via his Company. This was, I felt, an example, following Mr. Justice Keane above, of the Complainant managing his own business, possibly unwisely in the long term, as he saw fit. I could not see any evidence that the Respondent, while delighted with the service provided, ever insisted that it be done single handled by the Complainant. Much was made in oral references to understandings with previous senior Managers and I had no doubt that they were aware of what was happening. They quite likely gave the Complainant, what in the end turned out to be, a false sense of security. The Complainant was, to my view and having reviewed the evidence, following Justice Keane quoted above, clearly “A person in business on his own account” In final analysis the fact that this maintenance arrangement continued unaltered for some 30 years does not in my view reflect well on either Party but does not alter the basic facts. This was a contract For Service. 3:4 Conclusion Having reviewed all the evidence both written and an extensive oral discussion at the Hearing I came to the view that the arrangement between the Parties was a Contract FOR Service. Accordingly, the provisions of the Unfair Dismissals Act cannot apply. The claim is not well founded. |
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4: Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Act | Complaint/Dispute Reference No. | Summary Decision. Please refer to Section Three above for reasoning. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00026250-001 | Contract Of Service not established. Accordingly claim is outside the ambit of the Unfair Dismissals Act,1977 and is not Well Founded. |
Dated: 12th June 2019
Workplace Relations Commission Adjudication Officer: Michael McEntee