ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00016102

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Date of Adjudication Hearing: 17/09/2018

Parties:

Date of Adjudication Hearing: 22nd January 2019

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Complaint:

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Respondent rejects the claim and asserts that the Adjudication Officer has no jurisdiction to hear the complaint as it is out of time and this is not an employer / Employee relationship.

There is a similar complaint lodged with the WRC under ADJ No 16042

Terms of Employment (Information) Act CA 20931-001/002

Summary of Complainant’s Case:

Summary of Respondent’s Case:

It is proposed in this submission to deal with a number of general submissions, including preliminary points and to set out thereafter such limited submissions as are relevant to the individual complainant. We reserve the right to make further submissions both generally and in respect of the individual claimant.

• THE CLAIMS CA-4409-001

1. Each of the complaints made seek adjudication pursuant to the provisions of Section 7 of the Terms of Employment (Information Act) 1994. The specific complaint details are as follows:

“Section 3 of the Terms of Employment (Information Act) 1994 sets out the minimum information which an employee must be provided with, in writing, within two months of commencing employment. In particular the following information must be provided “(a) the full names of the employer and the employee, (b) the address of the employer in the State … (e) the date of commencement of the employee’s contract of employment, (h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or other interval, (j) any terms or conditions relating to paid leave (other than sick leave), (k) any terms or conditions relating to – (i) incapacity for work due to sickness or injury and paid sick leave, and (ii) pensions and pension schemes”, I hereby request that the above information is provided to me by the Health Service Executive. Attention is drawn to the recent decision of Rights Commissioner/Adjudication Officer, Mr John Walsh, in Case No I-154253-TE-15/JW dated 14th December 2015. This case related to a colleague of mine, Dr Marion Dyer, who is an Assistant Program Director for the HSE. In that case Mr Walsh determined that Dr Dyer should be provided with a written statement outlining her terms and conditions. The HSE accepted that Dr Dyer had not been provided with such a statement and, critically, accepted that the fact that she was an employee on a Contract of Service and that she had an entitlement to be provided with a Contract of Employment. Dr Dyer’s employment circumstances are essentially on all fours with my own and, therefore, there is no legitimate reason why I should not be similarly recognised as an employee. It is evident that I am employed under a contract of service, meeting, as I do, the majority of the established criteria for employee status. I therefore call upon the Respondent to confirm in writing my employee status and to provide a written statement of my terms and conditions of employment, in compliance with their obligations under the Terms of Employment (Information) Act 1994.”

CA-20931-001

“I started my employment as an Assistant Programme Director with GP Training Scheme in October 2011. At that time I was given a three-month Contract For Service. I have been continuously employed to date in the same position and I do not have any current written terms of employment. The way in which I am paid was changed by the employer in 2012 and since then PAYE, PRSI, superannuation are taken at source by the Respondent. I have also had paid maternity leave, and sick leave. I have no written terms of employment regarding same. There are currently negotiations underway looking at transferring GP Training from the HSE to another body and I feel I am in a vulnerable position without written terms of employment.”  

CA-20931-002

“I started by employment as an Assistant Programme Director with the General Practice Training Scheme in October 2011. At that time I was given a three-month Contract For Service, and was paid a gross amount, from which I was responsible for paying my own tax. In 2012, the Respondent changed the way in which I was paid and from that date PRSI, PAYE and superannuation was taken at source by the Respondent. I have also had paid maternity leave and sick leave during my employment. I did not receive a statement in writing regarding the change in my terms of employment. There are currently negotiations underway looking at transferring the GP Training from the HSE to another body and I feel I am in a vulnerable position without written terms of employment.”

First and foremost, it appears that all of the claims made by the Claimant relate to her position as an Assistant Programme Director with the same GP Training Scheme. It is unclear to the Respondent why the Claimant has issued three separate claims.

Further, the nature of the claim made by the Claimant under CA-4409-001 warrants comment. Firstly, it must be said that it would be an abuse of process to make a claim pursuant to the provisions of the Act of 1994 merely for the purposes of obtaining a declaration of employment status.

What is beyond doubt is that the Act (as amended) only applies to employees. The onus of proving that one is an employee lies on the Claimant, and a Claimant must discharge that proof before they become entitled to seek any remedy pursuant to the provisions of the Act. In the instant case, the Respondent challenges the status of the Claimant and submits that the onus of proof of her status lies on the Claimant individually.

The Respondent further submits that it is a requirement that the Claimant prove before the Adjudicating Officer her status and to that end she produce to the Adjudicating Officer all necessary records and documents that go to that question. The Respondent’s solicitors have advised the Claimant that they wish to cross examine her in relation to these matters and that they wish to cross examine the Claimant in relation to her tax returns over recent years. The reason for this is that it is the Respondent’s case that the individual Claimant is a self-employed doctor. To that end the Claimant has been put on notice that it is the intention of the Respondent to cross examine the Claimant in relation to her tax affairs, not for the purposes of ascertaining any private information in relation to her income or tax payments but rather to ascertain evidence in relation to how the Claimant has regarded herself and her status for the purposes of tax.

THE CLAIMANT’S CLAIMS ARE OUT OF TIME.

The complaints that are made are expressly described as adjudications pursuant to Section 7 of the Act of 1994.

The terms of that original provision (before any amendment) were as follows:-

• An employee may present a complaint to a rights commissioner that his or her employer has contravened section 3, 4, 5 or 6 in relation to him or her and, if he or she does so, the commissioner shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint, shall give a recommendation in writing in relation to it and shall communicate the recommendation to the parties.

• A recommendation of a rights commissioner under subsection (1) shall do one or more of the following:
• declare that the complaint was or, as the case may be, was not well founded,
•  
• confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4 5 or 6, or
• 1. 1.  
• alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,
• 1.  
• require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the commissioner,
• 1. 1.  
• order the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 4 weeks remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act, 1977,

…

• A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the period of 6 months beginning on the date of termination of the employment concerned.”

1. Section 3 sets out that an employer shall not later than two months after the commencement of employment give a statement in writing containing the particulars set out therein.

1. Nothing in these cases is in any way affected by sections 4, 5 or 6.

It is clear that, pursuant to the original provisions of the Act, the obligation was on the employer to provide the statement within two months of the commencement of the employment, and an employee could make a complaint under Section 7 at any time thereafter up to six months after the termination of that employment. It would follow that an employee could make a complaint at any time during the course of his or her employment.  

The 1994 Act has been amended in a number of significant ways in recent years.

The Industrial Relations (Amendment Act) 2012 (section 18) inserted a new section 6(a) into the Act of 1994 which provides as follows:-

• Where it appears to an inspector that an employer has contravened section 3, 4, 5 or 6 the inspector may, where he or she considers it appropriate, give a direction to the employer to comply with the provision concerned within such period as is specified in the direction.

• In this section ‘inspector’ means an inspector for the purposes of the National Minimum Wage Act 2000 and an inspector may, for the purposes of this section, exercise any of the functions conferred on him or her by that Act.”,Section 7 of the Act was amended by the insertion of a new subsection (e) which in essence provided that an employee could not make a complaint to a Rights Commissioner if an employer had complied with a direction under Section 6(a) or the time for compliance with such a direction had not yet expired.The next and most significant amendment of the Act of 1994 is by virtue of the Workplace Relations Act 2015. Section 52(1) of the latter act amends enactments specified in Column (3) of Part 1 of Schedule 7 to that Act to the extent specified in Column (4) of that part. Item 5 in Schedule 7 relates to Section 7 of the Act of 1994 and, in the new Section 7, there is no reference to a time limit for making a complaint to the Adjudicating Officer. 

1. 1. 1. The new Section 7 is in the following terms and is headed “Complaint to Adjudication Officer Under Section 41 of the Workplace Relations Act 2015” which states that:-
      2. In the instant case there has been no direction given by an Inspector.
      3.  

• An employee shall not be entitled to present a complaint under section 41 of the Workplace Relations Act 2015 in respect of a contravention of section 3, 4, 5 or 6, if the employer concerned has—
• complied with a direction under section 6A given in relation to the contravention before the commencement of section 8 of the Workplace Relations Act 2015, or
• 1. 1.  
• been given a direction under that section in relation to the contravention and the period specified in the direction within which he or she is required to comply with the direction has not yet expired.
• 1.  

• A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3, 4, 5 or 6 shall do one or more of the following, namely—
• declare that the complaint was or, as the case may be, was not well founded,
• 1. 1.  
• either—
• confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5 or 6, or
• 1. 1.  
• alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,
• 1.  
• 1. 1.  
• require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,
• 1. 1.  
• order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.Section 41 of the Act of 2015 provides, at subsection (6) that subject to subsection (8) an Adjudication Officer shall not entertain a complaint if it has been presented after the expiry of six months beginning on the date of contravention to which the complaint relates.In this case, even if there was an entitlement for her to bring a complaint, it had to be laid within two months of the commencement of her alleged employment. Here, the Claimant has been acting as an Assistant Programme Director since 2011/2012. In those circumstances it is clear that her claims herein are significantly out of time. It is not open to an employee to make a complaint at a later date unless there has been a direction given by an inspector.In all of the circumstances it is submitted that these claims must be dismissed as being out of time. There is no requirement for the Adjudicating Officer to consider whether or not the period of time could be extended by a further six months as such an extension would not avail the Claimant herein.[1]WITHOUT PREJUDICE TO THE ABOVE, THE CLAIMANT IS NOT AN EMPLOYEE.There is no definitive statutory or common law definition of what constitutes a contract of service or a contract of employment. The Courts have had the task of deciding when a relationship fitted in and was properly called an employment relationship by examining various tests.“it was incorrect [of the EAT] to assert that questions of control and integration are to be regarded merely as elements to be taken into account in applying the enterprise test. They are not. Like the question of enterprise, questions of control and integration may also provide a court or tribunal with valuable assistance in drawing the appropriate inferences. All potential aids to the drawing of the appropriate inferences from the primary facts as found stand in their own stead, and no one is subsumed by another. Moreover, those mentioned do not represent an exhaustive list. There could be other factors that might also assist … It is for a court or tribunal seized of the issue to identify those aids of greatest potential assistance to them in the circumstances of the particular case and to use those aids appropriately.”The Supreme Court on appeal in that case affirmed this approach and Charleton J made the following observation:Very strong emphasis was placed by the High Court in the Barry case on the mutuality of obligation that there must be an obligation on the employer to give the employee work and there must be an obligation on the employee to carry out that work for the employer.The Supreme Court in cases such as Minister for Industry and Commerce -v- Healy [1941] IR 545, Lynch -v- Palgrave Murphy Ltd [1962] IR 150 and Roche -v- Patrick Kelly & Company Ltd [1969] IR 100 emphasised the control test. In the Roche case Walsh J had to consider whether Mr Roche, a builder contracted by the defendant company was an employee and he made the following statement:The courts have also made reference to the integration test which was first referred to by Denning LJ in Stevenson Jordan and Harrison Limited -v- McDonnell & others where he said:Finally the courts have applied what is being called the multifactorial test which was formulated in the English case, by McKenna J, of Readymix Concrete (Southeast) Limited -v- Minister for Pensions and National Insurance [1968] 1 All ER 433 where he stated that:“A contract of service exists if these three conditions are fulfilled.
• 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.
• He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master.
• The other provisions of the contract are consistent with its being a contract of service.”That multifactorial test was applied by the Irish High Court in O’Coindealbhain (Inspector of Taxes) -v- Mooney [1990] 1 IR 422.In Henry Denny & Sons (Ireland) Ltd -v- Minister for Social Welfare [1998] 1 IR 34 the court held that the provisions of the contract are not of decisive importance. In fact in that case Murphy J stated:-“In my view their value, if any, is marginal. These terms are included in the contract but they are not contractual terms in the sense of imposing obligations on one party in favour of the other. They purport to express a conclusion of law as to the consequences of the contract between the parties. Whether Ms. Mahon (the shop demonstrator engaged by Denny) was retained under a contract of service depends essentially on the totality of the contractual relationship express or implied between her and the appellant and not upon any statement as to the consequence of the bargain.” It is submitted that in all of the circumstances of this case, the Claimant, as a doctor working in the GMS scheme, is not an employee of the HSE. The work undertaken by her in the training program is an ancillary activity to her practice as a general practitioner.In this regard the Respondent emphasises that it wishes to challenge and cross examine the Claimant in respect of her status and will, as appropriate, make more detailed submissions in relation to the Complainant. One of the Claimant’s complaints (CA-4409-001) seeks to rely on the decision relating to Dr Dyer. However, no claim made pursuant to the provisions of the Act is binding on an Adjudication Officer and, in particular, the Dyer case is wholly irrelevant. Whether or not that case was conceded by the Respondent is equally irrelevant, and it is not open to the Claimant to simply assert that she is, to all intents and purposes, on all fours with her. Any submission based on that case should be rejected out of hand.
• 1. The foregoing should be regarded as preliminary submissions and the Respondent reserves the right to make further submissions following the evidence of the Claimant, to include any cross examination of her, and on receipt of any written or oral submission made by or on her behalf.  
  2. DR DYER’S CASE IS IRRELEVANT AND SHOULD NOT BE CONSIDERED.
  3.  
  4. There can be no doubt that as a general practitioner, she is not an employee of the HSE but is clearly a self-employed person. Her role in the training program must be seen as no more than an additional factor, albeit paid separately, to her principal role as a practicing general practitioner.
  5. In Castleisland Cattle Breeding Society -v- Minister for Social and Family Affairs [2004] 4 IR 150, it was made clear by the Supreme Court (Geoghegan J) that there was nothing unlawful or necessarily ineffective about a company deciding to engage people on an independent contractor basis rather than on an employee basis. In that same case the issue of taxation was a matter that the court held was relevant. Where a person is registered as self-employed for tax purpose this will be a factor pointing to an independent contractor arrangement. In that case also the structure of the industry was seen to be relevant.
  6.  
  7. It is undoubtedly correct that many other factors are taken into account, particularly in relation to particular industries, trades or professions.  
  8.  
• 1.  
  2.  
  3. “One feature which seems to run through the instances is that, under a contract of service a man is employed as part of the business, whereas under a contract for services, his work, although done for the business, is not integrated into it but only accessory to it.”
  4. “While many ingredients may be present in the relationship of master and servant, it is undoubtedly true that the principal one, and almost invariably the determining one, is the fact of the master's right to direct the servant not merely as to what is to be done but as to how it is to be done. The fact that the master does not exercise that right, as distinct from possessing it, is of no weight if he has the right.”
  5. “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.   If such mutuality was not present, then either there was no contract at all or whatever contract there was must be a contract for services or something else, but not a contract of service.”
  6. “It is correct to note, however, as was noted by Edwards J, that there is no universal test where it may be said that if a particular indication is met or not met that a person is employed or not. Furthermore, it may need to be factored into any such analysis that it can be a course of dealings over years may turn from what was initially the engagement of a self-employed contractor to do work on a particular basis into an employed relationship.”  
  7.  
  8. In Minister for Agriculture and Food -v- Barry & others [2009] 1 IR 215, the High Court had to determine whether the EAT had correctly applied the law in determining employee status in respect of temporary veterinary surgeons. In that case, the High Court made it clear that the various tests were potential aids to identifying the nature of the working relationship but that no single test was definitive. The court held that, depending on the circumstances of the particular case, some aids will be more helpful than others. The court (Edwards J) stated as follows:-
  9. It is clear from Section 1 of the Act of 1994 that the definition of contract of employment and of employee and/or employer all relate back to the existence of a “contract of service”.  
  10.  
  11. It is respectfully submitted that the Adjudicating Officer, as a creature of statute, has no jurisdiction whatsoever to apply the “old” statutory provision and must apply the amended statute. The Oireachtas made the amendment and there is no power to an Adjudicating Officer or any other party to look behind the intention of the Oireachtas and it is clear that the introduction of the Inspector’s role creates an entirely new statutory time limit.
  12. This is significantly different than under the original Act which provided for the complaint being made within six months of the termination of the employment whereas now it must be within six months of the contravention. It is clear that the obligation under the Act, which has not been altered, is that an employer must give to the employee a statement setting out the terms within two months of the commencement of employment or (pursuant to the 2012 amendments) within the time specified by an inspector.
  13.  

At the second day of this hearing the Respondent made the following points:

A number of GPs provide a service to the HSE tutoring GPs on specialist training courses. Doctors undertaking this training partake in GP practices. This GP training is ancillary to the Complainant’s GP practice. This does not make it an Employer/Employee relationship. This was a contract for service. Her payment system changed. This was an attitudinal change to deal with for those that have a regular relationship with the Provider. How the Complainant pays her tax is her business. However, once you are on the payroll the Provider treats you as an employee and so she got maternity leave but she was not entitled to it. Pension contributions were deducted. The Circuit Court upheld that in the light of the FEMPI legislation. Tax deducted and given maternity leave wrongly doesn’t allow for the basic facts that this was not an employer / employee relationship. The work that she does is stand alone.

She is not integrated into the Provider’s business. No control is exercise over her. She doesn’t report to anyone in the Provider’s organisation. She names a certain Doctor only. She has taken a claim under the Terms of Employment (Information) Act not for the purpose of establishing her status because the Department of Social Protection does that. A decision from an Adjudication Officer does not give her any right other than to provide a statement on terms and conditions. The first, second and third contracts that she received stated that they were contracts for service. Regarding mutuality of obligation they stated that all contracts contain a degree of mutuality of obligation. It was not specified if she was in work on her own account.

This is a contract for service, it was not an employer/employee relationship and the Adjudication officer does not have jurisdiction to deal with this case.

Findings and Conclusions:

Preliminary Points

1)Time Limit

I note the conflicting positions of both parties.

I note that Section 3(1) of the Terms of Employment (Information) Act states, “An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment”.

I note that no written statement of her terms and conditions of employment was issued because it is the Respondent’s position that this was not an employer/employee relationship and so the Terms of Employment (Information) Act does not apply.

So the Act gives an employer two months to issue the written statement. Therefore, the first date that a breach can occur is the day following the expiry of the two-month period.

I note that prior to amendment by the Workplace Relations Act, section 7(3) of the Terms of Employment (Information) Act stated: “A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the period of 6 months beginning on the date of termination of the employment concerned.”

 This section of that Act was amended by Section 41(6) of the Workplace Relations Act which states, “Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

 So, has section 41(6) of the Workplace Relations Act restricted the limitation period for breaches of section 3 of the Terms of Employment (Information) Act?

The Oireachtas in its wisdom decided to amend the Terms of Employment (Information) Act through sec 41(6) of the Workplace Relations Act, see above.

This amendment states, “after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”.

I note that this amendment specifically refers to “beginning”. It is my position that a beginning can only occur once.

I find that in respect of a contract of employment/written statement of employment there can only be an expectation to receive it once, not one every week or month.

If I accept this interpretation then I find that the amendment means that the breach begins to occur on the first day after the two-month period allowed to give the contract /written statement.

That would mean that I find that there is a period of 6 months from that date in order to present a complaint to the Workplace Relations Commission.

To do otherwise I could be seeking to defeat the amendment of the Terms of Employment (Information) Act and the Oireachtas was clear in its intention to amend that Act.

I refer to Sec 5 of the Interpretation Act 2005. It states” In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction that is obscure or ambiguous or that on a literal interpretation would be absurd or would fail to reflect the plane intention of the Act.

It is my position that the plane intention of the Oirceachtas was to streamline the Terms of Employment (Information) Act 1994 Act in line with other Acts and to amend its provisions from 6 months after the termination of employment to ‘after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”.

In accepting this interpretation, it means that many or most claims could be out of time, depending on the commencement date of the employment.

Was this the intention of this amendment?

It is clear that the primary and main objective of the Terms of Employment (Information) Act 1994 was to require an employer to provide a written statement of the main terms and conditions of employment to their employee.

I find that a contract of employment has a continuous relevance to one’s employment.

I find that the Terms of Employment (Information) Act transposes Directive 91/533/EC, the ‘Written Statement’ Directive. It recites Article 117 of the Treaty and point 9 of the Community Charter of Fundamental Social Rights of Workers. Article 2 provides that an employer shall notify the employee of certain essential aspects of the employment relationship. Article 3 provides for the means of information and that the information stated in Article 2 may be given to the employee in certain forms, for example a written contract or letter of engagement. Article 3 refers to this information being provided not later than two months from the commencement of employment. Article 8 requires member states to introduce measures to allow employees to pursue claims via a judicial process.

 If I were to find that the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, has curtailed the obligations provided in Article 2 of the Directive to a contravention arising on the first day after the end of the two-month period, then I believe that this is not what the “plane intention” of the Oireachtas was.

 I note that in Seclusion Properties Ltd v O’Donovan (DWT14114), the Labour Court held as follows: “It is clear that the obligation on domestic courts and tribunals to interpret national law in conformity with a Directive applies ‘as far as possible’. That is to say, it cannot serve as a basis for an interpretation of national law contra legem. As was pointed out by the CJEU in Dominguez v Centre Informatique du Centre Ouest Atlantique, a conforming interpretation can only be arrived at by taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that the Directive in question is fully effective and that an outcome consistent with the objective pursued by the Directive is achieved.”

I find that the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, provides that a contravention of section 3 occurs where, after the expiry of the initial two-month period of employment, the employee has not been provided with a statement.

I find that the contravention of section 3 is therefore a subsisting contravention.

Therefore, I find that the complaint is within the time limit allowed.

2) Employer / Employee Relationship

I find that there was considerable conflict of evidence in this case.

I note that in the “Kerry Foods” case the Supreme Court decided that each case must be determined in the light of its own particular facts and circumstances.

I note that there is an amount of case law on this subject that will require attention in order to arrive at a decision on this matter.

The Code of Practice for Determining Employment or Self-Employment Status of Individuals issued through the Department of Social & Family Affairs helps to form an understanding of this complex matter. It states “The overriding consideration or test will always be whether the person performing the work does so ‘as a person in business on their own account ‘. Is the person a free agent with an economic independence of the person engaging the service? This economic test is paramount”.

I note that Langford in The Classification of Workers: Employees and Independent Contractors “ (1998) 5 (3) CLP 63 states, “The courts have over the years sought to decide the issue by reference to a variety of legal tests, traditionally the control test. More recently, the courts have tended to adopt a practical test such as that of economic reality, or to have regard to all the different features of the work relationship and to engage in a balancing exercise in relation to all the various factors. The modern tendency would seem to be not to regard any one issue as conclusive but to look at the whole picture of the work situation”.

I note that in the case of McAuliffe v Minister for Social Welfare, Barr J. said it was not possible to devise any hard and fast rule as to what constitutes a contract of service.

In Sunday Tribune Ltd [1984] I.R. 505 Carroll J. stated: “The Court must look at the realities of the situation in order to determine whether the relationship of employer and employee in fact exists, and it must do so regardless of how the parties describe themselves”.

I have decided that it is necessary to consider the evidence as presented at the hearing under a series of tests as set out in the varying court cases that have dealt with this type of matter in the past.

1)Contract

I note that the first and subsequent contracts issued were for contracts for service.

I note the changes that were implemented by the Provider which provided for payments through the payroll system, tax, PRSI and USC were deducted at source, pension contributions were deducted and she received maternity leave and holidays.

I find that while the contracts were clearly of contracts for service in practice the employment relationship changed to that of contract of service.

Therefore, the changed nature of the relationship would lead me to conclude that this was an employer / employee relationship.

2)Taxation / VAT

I note that the Complainant was paid through the payroll system, which has the hall marks of an employer/employee relationship.

I note in the Henry Denny & Sons (Ireland) Ltd t/a Kerry Foods v The Minister for Social Welfare Kerry Foods case the demonstrator in question submitted an invoice yet it was deemed that she was an employee. I also note that in the Phelan case a VAT invoice was submitted and it was also decided that he was an employee.

I find that this test is inconclusive.

3) Control

Under this test the following matters needs to be addressed: deciding the thing to be done, way it is to be done, the means to be employed doing it and the time and place.

I note the conflict of evidence in this test.

I note that the Complainant stated that she reported to a named Doctor.

I find that she was contracted to work 12 hours per week on two days.

I find that her hours of work were controlled by the Provider.

I find that she presents regularly at the designated place of work, in circumstances generally controlled by the Provider.

I find that she was able to carry out her lecturing role on an unsupervised basis, similar to that of a university lecturer.

I found evidence of a control function in operation, albeit on a limited scale.

I find that this test is inconclusive.

4) Integration

I note the conflict of evidence in this test.

I found that she was paid through the payroll system with statutory deductions, had pension contributions deducted, was in receipt of maternity leave and holidays.

I note that when she went on maternity leave her post was advertised and filled by a Locum.

I find that this shows that she was integrated into the Provider’s business and benefitted personally from it.

This shows that she was on a contract of service and that this was an employer/employee relationship.

5) Mutuality of Obligation

In order for a contract of service to exist there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer. So there is an ongoing duty to provide work and one to accept work.

In the High Court case Minister for Agriculture and Food v Barry & Ors the mutuality test of obligation was endorsed by Edwards J. when 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. If such a 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”.

I find that she was provided with 12 hours work per week.

I find that she committed to provide that service each week.

I find that when she went on maternity leave the Provider made temporary arrangements to cover her absence on the understanding that she would return to that post.

I note that she had an expectation that she would hold this post until such time as the job remained or she resigned.

I find that there was a mutuality of obligation in this contract.

Therefore, under this test I have decided that this was an employer/employee relationship.

6) In business on own account

I find that she was contracted to work 12 hours per week.

I find that she had no option of managing this role to increase her income or profits from it.

I find that when she went on maternity leave she did not have the option of replacing herself, this was done on a temporary basis until she returned.

I find that she was not in business on her own account.

I find that this leads me to conclude that this was a contract of service and she was in an employer/employee relationship.

Overall, based on these tests I have concluded, on the balance of probability that this was a contract of service and an employer/employee relationship.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided based on the above that the Complainant worked under a contract of service, the relationship was of employer/employee and she is entitled to be issued with a statement of her terms and conditions of employment.

In addition, I have decided that the Respondent should pay her compensation of €4,000 for breach of her rights under this Act.

The statement and compensation should be enacted within six weeks of the date below.

Dated:   19 March 2019

Workplace Relations Commission Adjudication Officer: Eugene Hanly

[1] A copy of the Law Reform Commission Consolidated Statute is attached herewith at Tab 2 of the Book of Authorities.