Complainant

Respondent

Anonymised Parties

A GP

A public body

Representatives

Lauren Tennyson BL instructed byO'Mara Geraghty McCourt Solicitors

Mason, Hayes & Curran Solicitors

Act

Complaints Reference No.

Date of Receipt

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

CA-00013388-001

30/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00013388-002

30/08/2017

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

CA-00013388-003

30/08/2017

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

CA-00013388-004

30/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00016739-001

03/01/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00016739-002

03/01/2017

The complainant worked as a locum doctor and asserts that she was an employee of the respondent, the health service provider. The complainant asserts that she is entitled to redress for breaches arising from several employment statutes; the respondent denies the claims or that she was an employee.

The complainant started in the role in August 2014. The GP Coordinator asked if she wanted to work in addiction services and told her that she had to invoice through the Agency. The complainant replied that she invoiced through the Company. The complainant understood that she was replacing a doctor who was out on indefinite compassionate leave and who never returned. The complainant was to be paid €60 per hour and worked the following rota: Monday 10 to 1, Tuesday 2 to 4, Wednesday 10 to 12, Thursday 12 to 4 and every alternate Friday 10 – 2. These were the regular hours of the doctor she replaced. She also covered shifts at two other clinics.

The complainant worked under the direction of the GP Coordinator, who assigned her hours. She was covered by the group health insurance policy and did not have her own insurance. She worked in the public body’s clinic and used their items. She could not delegate to others. She had to give six weeks’ notice to take a week’s annual leave, for which she was not paid.

The complainant said that she joined this company with other doctors for tax and insurance purposes. Previously, her wages were paid through this company for other locum work. She did this other work for seven years and during an audit, Revenue queried whether she was an employee of the practice. The complainant referred to the letter of the 3^rd March 2010which states that locums are employees of the practice.

The complainant worked for the respondent for two years and 10 months. She was coming up to three years when the GP Coordinator said that she was being let go as she would acquire employment rights. This conversation took place in March or April. She thought she would stay on to August but was let go in June. The rota came in and the complainant saw that her name was off it. Another doctor, a male, was inserted in her place. The GP Coordinator did not explain what was going on. The complainant did not phone the GP Coordinator on seeing that her name was omitted from the rota.

The complainant commented that there was a discussion about a new contract, but the GP Coordinator told her this was “age sensitive”. The complainant took this as meaning she was too old for the job. The complainant had been offered a new contract in 2015 and the GP Coordinator told her not to bother as she was better off where she was. The complainant was not offered a contract in 2017. She also never received a statement of the terms of her employment in her time at the clinic. The complainant did not receive any notice pay and did not receive any annual leave or public holidays.

The GP Coordinator had said that the complainant must be paid via the Agency and the complainant had no choice but to accept this. The complainant was never on their books and was only asked to register with them in July 2017. The complainant declined to do so.

Following her dismissal, the complainant obtained part-time work for one or two weeks. She earned about €6,000 in 2018 while she earned €48,000 per annum with the respondent. She had invoiced the Agency and the public body, who transferred money to the Company for her to be paid. The complainant faxed her hours to both the Agency and the public body. The Agency invoiced the public body.

In questioning by ESA Consultants for the Agency, the complainant said that her employer must be the public body as she attended the clinic every day for two years and 10 months. She was not aware why the Agency was in the loop and she had to be paid through them. She joined the Company by signing a form in the same way as other doctors. The Agency did not instruct her, and she just sent them her hours. The complainant accepted that the Agency was a facilitator, and this was the same for the Company, who deducted her taxes. The complainant said that she received a P60 from Revenue and her P45 referred to the Company as her employer. This was sent in March 2017. She did not invoice the Agency but sent them her hours and from this the Agency invoiced the public body.

In questioning by the solicitor for the HSE and the GP Coordinator, it was put to the complainant that the GP Coordinator had explained in August why the public body could not directly employ GPs; she could not recall this and was told that she would be employed through the Agency. It was put to the complainant that there were 12 other GPs employed through the Agency. It was put to the complainant that she was offered a temporary contract in 2017; she replied that she never received it. It was put to the complainant that there was a process within the public body to convert GPs from agency workers to employees; she replied that she never received a contract and would have agreed to it. It was put to the complainant that she asked to be kept on as an agency worker and this was approved for nine months; she replied that this was not offered to her. It was put to the complainant that she was taken off the rota at her request; she replied that she asked the Agency what was going on and they said that they had heard nothing. The complainant obtained work elsewhere. It was put to the complainant that she had told a named receptionist at the end of June that she should no longer be placed on the rota. She was also not paid for sick leave, for example when she was assaulted by a client. She had been assaulted three times at work.

In closing comments, the complainant outlined that the 2017 contract was a fixed-term contract and she did not receive this. Even if she was provided with the contract, this was to regularise her position as an employee of the public body. Alternatively, she had a fixed-term contract with the fixed purpose of replacing a named doctor. It was submitted that the respondent now sought to pull together a story to put the complainant at a disadvantage. The complainant was there for a fixed purpose and entitled to a contract of indefinite duration. If the complainant was an employee of the public body, the Agency was used to divert payment to the complainant and she is entitled to win the unfair dismissal complaint. It is the law that the end user is the employer and it is incorrect to say that the Agency was the employer. Furthermore, the complainant was never registered with the Agency.

The public body submitted that it was not the complainant’s employer and that the GP Coordinator was its employee.

Evidence of the GP Coordinator

In evidence, the GP Coordinator outlined that the last doctor in the addiction service to be issued with a permanent contract was in 2004. In 2014, the respondent public body was short staffed and given permission to take on locums. They could not recruit in the absence of a national recruitment process. The GP Coordinator was advised to use the Agency, who paid the locums. In her view, the locums were self-employed, which is why they form companies. In her opinion, the complainant was employed as a locum by the Agency. The complainant submitted time sheets, which the GP Coordinator signed off on and faxed to the Agency. She was signing the time sheet as the complainant’s line manager and “GP coordinator”. She did this for all locums. She did not know how much they were paid and this was probably higher than the permanent, sessional doctors.

The GP Coordinator informed the agency staff that they could have a temporary contract, and this was being processed. She gave a draft contract for the agency staff to read. The complainant said that she would not be able to sign the contract for tax reasons. The complainant asked to continue working in the current form and the GP Coordinator obtained approval for this. She arranged to meet the complainant towards the end of June and was surprised that the complainant did not attend. She had no mobile or email address for the complainant.

The GP Coordinator denied telling the complainant that the contract was “age sensitive”. There was no contract in 2015 and the only contract was in 2017. The contract was only for 6 months but they all rolled over to a year contract. The GP Coordinator ensured there was cover for the week of 3^rd July. An existing locum, who had signed the contract, covered the hours and he was not recruited to replace the complainant. The respondent remained short-staffed.

The GP Coordinator outlined that as a locum, the complainant could not accrue employment rights, while someone on a temporary contract was able to. She denied saying that the complainant was being terminated because she was accruing rights. She overheard the phone call between the complainant and the receptionist and her understanding was that the complainant would not be on the rota. Locums are sourced from an agency and she could convert them onto a temporary contract. She spoke with each doctor on a one to one basis regarding the new contract and there was no group meeting.

In questioning by the complainant, the GP Coordinator accepted that she had a home phone number for the complainant. She considered it intrusive to use this phone number. When she contacted the complainant in 2014, this was arranged by a colleague. In 2014, she had needed replacements for five permanent doctors. The complainant replaced a doctor who worked part-time and worked in other clinics. The complainant had rarely covered the other clinics. The complainant did not work a permanent session at a named clinic and covered hours elsewhere. The GP Coordinator offered the complainant the role on the basis that she was registered with the Agency. She was not aware that the complainant had not registered with them. The GP Coordinator assumed that the complainant was registered with the Agency as she used their time sheets.

The GP Coordinator said that she did not give the complainant a contract of employment as she was employed as a locum.  She line managed the doctors and did not instruct them. They had the right to say ‘no’ to an assignment. The complainant was not allowed to delegate the work to others. It was expected that the complainant would work according to the rota. All doctors worked in the clinic. The complainant was not covered by the public body indemnity and it was for the Agency to check the complainant’s insurance. The GP Coordinator never told the complainant at interview that she would be covered by the public body indemnity. The temporary doctors are now under the indemnity and locums carry their own insurance. The doctor the complainant replaced ultimately resigned. The complainant was never paid annual leave or for public holidays.

The GP Coordinator outlined that she had given the complainant an initial draft of the contract. She told the complainant that she was entitled to apply for the contract. She said that unless the complainant signed the new temporary contract, her role would come to an end. The GP Coordinator expected to convert all locums to temporary contracts by September 2017. It was incorrect to say that she had referred to the complainant accruing employment rights. There was a different conversation where the complainant asked to work until September 2017, and the GP Coordinator sought approval for this by email. The public body insisted that all doctors employed as locums convert to temporary contracts.

It was put to the GP Coordinator that the complainant did not receive the draft contract; she replied that she had handed it to the complainant personally in March or April 2017. It was the complainant who said that she would not be able to sign the contract because of tax issues. The GP Coordinator had expected to speak with the complainant at the last clinical meeting, but the complainant did not attend. She initially only had the complainant’s home phone number. The GP Coordinator said that the complainant was taken off the rota because of the complainant’s conversation with the receptionist, which the GP Coordinator had overheard. The GP Coordinator heard what the receptionist said to the complainant and the receptionist told the GP Coordinator what the conversation was about. The complainant had said “I won’t be on the rota from July”, so this was why she was not put on the rota after the phone call. The GP Coordinator said that she did not use the words “let go” and it was clear that the complainant did not want to sign the contract. A named doctor was not taken on to replace the complainant and he was providing cover.

Evidence of the HR Manager

The HR Manager outlined that there was a national directive to cease all services using agency staff, as a cost containment measure. The GP Coordinator emailed to ask if the complainant could continue as an agency worker. There was a delay in appointing two temporary staff so there was time to agree this extension. Eight doctors signed the temporary contract in July and a further two in August. The complainant would not be able to continue as an agency worker after the end of the nine-month period. The HR Manager was surprised that the complainant did not avail of the contract. The HR Manager became aware of the conversation with the receptionist at the end of June and this receptionist is under her line management.

The HR Manager said that from a HR perspective, the public body classed as an employee someone paid through their pay roll. They verified all new employees and it is the Agency’s responsibility to screen locums. The public body indemnified its employees and the HR Manager was surprised of the lack of clarity regarding the complainant’s insurance. The doctor who replaced the complainant was an agency worker who had converted. He would have appeared on rosters before and had been provided with 30.4 hours of agency work.

In questioning, the HR Manager accepted that it was irregular for the complainant to have been recruited directly and locally. She did not know whether the complainant was registered with the Agency. A named doctor had been on leave for two years, and later resigned. The HR Manager allocated a locum to replace the sessions worked by this doctor. She did not know whose shifts the complainant was covering as she was not the GP coordinator. She provided the agreed contract to the GP Coordinator, who in turn gave it to the complainant. It was put to the HR Manager that while this is a template, there would have been one prepared for each doctor and there was no contract given to the complainant; she replied that the complainant was given the template contract and they never proceeded to draft a contract in her name as the complainant had communicated that she would not sign it. It was put to the HR Manager that no formal offer was made to the complainant; she replied that she did not issue the contract as she was advised that the complainant was not accepting it. The others had agreed to the contract.

In closing comments, the respondent public body denied that the complainant was its employee or that she had been dismissed. Their evidence was that a contract was offered to the complainant, which was not accepted. The complainant left and requested to be taken off the rota. The public body was required to get locums via the agency.

The complainant worked as a locum GP at a respondent health centre, seeing patients in addiction services. She was received pay of €60 per hour. She worked between 12-18 hours per week. According to the timesheets provided by the respondent, her post was “General Practitioner (Addiction Services)”. The timesheets were prepared on a weekly basis. The complainant invoiced for her services. The exhibited invoices refer to “Fees for services rendered by [the complainant] as detailed below.” They refer to the respondent as the client and the post as “General Practitioner”. The invoice is issued by the Company, care of the Agency (the invoice cites the Agency’s address, rather than its own registered address). The invoice charges VAT at 23%. The complainant exhibits correspondence where Revenue, in 2010, stated their opinion that “locums working in GP Practices are employees of the practice and not self-employed” (the letter raises a PAYE and PRSI liability for 2007 and 2008).

These complaints are made pursuant to five statutes. They have in common that the claimant must have a contract of service with the employer (or an agency in the context of the UD claim). None of the statutes contain the broader category of “an individual [who] agrees with another person personally to execute any work or service for that person” as provided by the Employment Equality Act or the Road Transport Working Time Regulations (SI 36/2012).

The complainant asserts that she was an employee of the respondent. Relying on the Code of Practice for Determining Employment or Self-Employment Status of Individuals, the complainant referred to her continuity of employment (two years 10 months); her taking instruction from the GP Coordinator; her being paid a fixed hourly rate and supplying only her labour. She worked the hours set out in the roster and could not delegate the work. She did not provide her own equipment or premises. She was not exposed to financial risk. She had to book time off. She could be assigned to other clinics and was paid for additional hours worked, i.e. over-time. The complainant states that these are hallmarks of her employment status; the respondent did not dispute these facts although disputed they meant that she was an employee.

There was a factual dispute whether the complainant was insured under the respondent Group Insurance Policy. The complainant asserted that she was so insured; the respondent did not accept this and said it was a matter for the Agency to check that the complainant had her own insurance.

The complainant relied on Henry Denny & Sons (Ireland) v Minister for Social Welfare [1988] 1 IR 34, where the Supreme Court held:

“It is, accordingly, clear that, while each case must be determined in the light of its particular facts and circumstances, in general a person will be regarded as providing his or her services under a contract of service and not as an independent contractor where he or she is performing those services for another person and not for himself or herself. The degree of control exercised over how the work is to be performed, although a factor to be taken into account, is not decisive. The inference that the person is engaged in business on his or her own account can be more readily drawn where he or she provides the necessary premises or equipment or some other form of investment, where he or she employs others to assist in the business and where the profit which he or she derives from the business is dependent on the efficiency with which it is conducted by him or her.”

As things stand, the Revenue Commissioners, the SCOPE section of the Department of Employment Affairs and Social Protection and the Workplace Relations Commission have their own jurisdiction to determine whether a person is an employee. Where one body has determined this question per their jurisdiction, this is “persuasive authority”. If another body reaches a different conclusion on the employment status question, it must “explain the basis on which they come to a conclusion which differs” from the first determination (see National Museum of Ireland v Minister for Social Protection [2016] IEHC 135). I note that there is no other determination of the complainant’s status while a locum of the respondent, although I note Revenue’s statement regarding other locum work.

There are authoritative texts setting out the legal principles and tests to be applied in assessing whether a person is an employee (see Maeve Regan ‘The Contract and Relationship of Employment’ in Murphy & Regan ‘Employment Law’ and Chapter 3 Desmond Ryan, ‘Redmond on Dismissal Law’). I note the following when applying these legal tests and principles to the evidence in this case.

Control test

As submitted by the complainant, the respondent exercised considerable control over her work. It rostered the complainant and assigned her a place of work. She delivered medical services to patients of the respondent in the same way as employee doctors provided this service. The complainant had the same level of autonomy as an employee doctor. She was subject to the direction of the GP Coordinator, i.e. a position of subordination. The control test is indicative that the complainant’s status was that of an employee.

Integration test

The complainant was integrated into the respondent service. She was rostered along with sessional employees and they attended weekly clinical briefings. The GP Coordinator directed their work, irrespective of whether they were sessional employees or locums. A patient availing of the service would not know whether the doctor providing the service was an employee or a locum. I find that the complainant was integrated into the service rather than being ancillary to it.

Enterprise test

The evidence suggests that the complainant had very little opportunity to increase income from how she delivered the service. She was assigned when and where to work. She could not arrange for a substitute to stand in for her. She worked in the offices of the respondent and used their equipment. The complainant charged VAT for her services and PAYE/PRSI were not deducted at source. This is indicative that the complainant was an independent contractor (see McGinley v Bord Gais Éireann FTD091). While it may be indicative, it is not determinative (see Nowacki v Moyne Veterinary Clinic EDA198 and O’Hanlon v Ulster Bank Ireland UD1096/2014).

Mutuality of obligation

The evidence is indicative that there was mutuality of obligation between the parties, in that the respondent provided work to the complainant, which she was required to personally perform and for which she received remuneration. This is the essential feature of the work/wage bargain at the centre of the employment relationship.

Other issues

The complainant submitted invoices through the Company and the Agency to be paid by the respondent. The evidence suggests that this arrangement was one of convenience. I note, for example, that the complainant’s invoice cited the Company care-of the Agency. The complainant was not a director of the Company. The Agency did not assign the complainant to work for the respondent. She took on the role after direct contact with the respondent and was asked to invoice through the Agency. While there is complexity to the arrangement, it is not one that negates there being an employment relationship.

I note that this case is different from the circumstances in Football Association of Ireland v Hand (FTD143), where the Court emphasised representations made to Revenue by the claimant’s accountant that the claimant was in business on his own account. In the instant case, the complainant invoiced through the Agency because she was asked to by the respondent. This is not evidence of the complainant being in business on her own account.

As set out by the Supreme Court in Henry Denny, each case must be determined according to the relevant facts and circumstances. I note, for example, two Labour Court determinations involving the Department of Agriculture, Food and Rural Development (v O’Reilly in DWT0232 and v Maher DWT0222). Both related to veterinarians engaged by the Department as Temporary Veterinary Inspectors. One (Maher) was held to be an employee within the ambit of the Organisation of Working Time Act and the other (O’Reilly) was not. Both determinations were made in 2002 by the same division of the Labour Court. In Maher, the Court took account of the level of control exercised by the Department and the claimant’s lack of economic independence. By contrast, in O’Reilly, the Court took account of that claimant’s economic independence to choose how he did the work for the Department or to schedule other work.

In applying the above legal tests and principles to this case, I find that, on balance, there was a contractual employment relationship between the complainant and the respondent. The control, integration and entreprise tests are strongly indicative of this relationship. There was mutuality of obligation in that the respondent provided work which the complainant was obliged to perform. While the facts of charging VAT and PAYE/PRSI not being deducted at source are indicators of there not being an employment relationship, this is not an automatic outcome. On balance, the high level of control and integration and the complainant’s lack of “economic independence” point to her being an employee.

CA-00013388-001

This is a complaint pursuant to the Terms of Employment (Information) Act. I have found that the complainant was an employee of the respondent. A statement of the terms of her employment was not provided, as required by section 3 of the Act. This is a subsisting breach throughout her employment. Taking account of the circumstances, I award redress that is just and equitable in the amount of €4,000.

CA-00013388-002

This is a complaint pursuant to the Minimum Notice and Terms of Employment Act. I have found that the complainant was an employee of the respondent. The parties disputed the circumstances around the ending of her employment. The complainant states that her name was removed from the roster. The respondent outlines that the complainant asked a receptionist that she no longer be rostered. This was overheard by the GP Coordinator. It is unsatisfactory that neither the complainant nor the GP Coordinator followed up to clarify the situation. Separately, I have found that the complainant was unfairly dismissal and had not resigned. The complainant is, therefore, entitled to notice pay. She was entitled to a minimum of two weeks of notice. I award redress of €2,160.

CA-00013388-003

This is a complaint pursuant to the Organisation of Working Time Act. The provision of paid annual leave is a health and safety measure for the benefit of workers. It emanates from EU law and the Working Time Directive (2003/88/EC). The complainant was not paid for annual leave. This is a contravention of the Organisation of Working Time Act. I award redress of €4,000.

CA-00013388-004

This is a complaint pursuant to the Unfair Dismissals Act. I have found that the complainant was an employee of the respondent. The parties disputed the circumstances around the ending of the complainant’s employment. The complainant states that her name was removed from the roster. The respondent outlines that the complainant asked a receptionist that she no longer be rostered. This conversation was overheard by the GP Coordinator. It is unsatisfactory that neither the complainant nor the GP Coordinator followed up to clarify the situation.

The respondent witnesses gave a cogent account of preparing new contracts for the locum doctors to sign. While one was not prepared in the complainant’s name, I accept the evidence that a template was given to the complainant and a contract would have been drawn up, had she indicated her willingness to sign the document. For the sake of completeness, I do not accept that the GP Coordinator made any negative reference to the complainant’s age or said that the new contract was ‘age sensitive’.

In discussing ‘resignation’, the Labour Court held in Shinkwin v Millett EED044:

“A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation. Where adequate notice is given, the contract is generally terminated in accordance with its terms and since there is no repudiation the acceptance of the resignation by the employer is not required in order to determine the contract.”

Assessing the evidence, I find that the complainant did not resign, i.e. did not unilaterally act to end the employment relationship. Even if the telephone call was as recounted to the GP Coordinator by the receptionist, this was not an unambiguous and unconditional termination of the employment relationship.

There was an employment relationship and it came to an end. Because of the finding that there was no resignation, it falls on the respondent to discharge the statutory presumption that the dismissal was unfair. I find that it has not provided substantial grounds to justify the dismissal, which occurred when the complainant was no longer rostered hours.  The complaint of unfair dismissal is, therefore, well-founded. In assessing redress, I note that the complainant did not provide great detail of her efforts to find alternative employment. The evidence was that other locum work was available and there was the offer of the new contract from the respondent. I award redress that is just and equitable of €2,000.

CA000016739-001 and CA-00016739-002

These complaints are made pursuant to the Protection of Employees (Fixed-Term Work) Act. While the complainant was an employee of the respondent, she did not fall within the ambit of the Fixed Term Work Act. This provides protection to ‘fixed term employees’, i.e. those ‘having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition.’ The complainant was employed to provide addiction services to patients of the respondent. There was no objective condition pertaining to this employment. The complainant cannot avail of the protection of the Fixed Term Work Act. I also find that the complainant has not shown she was penalised for invoking any right under this Act. Both complaints are not well founded.

CA-00013388-001

I find that the complaint pursuant to the Terms of Employment (Information) Act is well founded and the respondent shall pay to the complainant redress of €4,000.

CA-00013388-002

I find that the complaint pursuant to the Minimum Notice and Terms of Employment Act is well founded and the respondent shall pay to the complainant redress of €2,160.

CA-00013388-003

I find that the complaint pursuant to the Organisation of Working Time Act is well founded and the respondent shall pay to the complainant redress of €4,000.

CA-00013388-004

I find that the complaint pursuant to the Unfair Dismissals Act is well founded and the respondent shall pay to the complainant redress of €2,000.

CA-00016739-001

I find that the complaint pursuant to the Protection of Employees (Fixed-Term Work) Act is not well founded.

CA-00016739-002

I find that the complaint pursuant to the Protection of Employees (Fixed-Term Work) Act is not well founded.

Employment status 

Henry Denny & Sons (Ireland) v Minister for Social Welfare [1988] 1 IR 34

Nowacki v Moyne Veterinary Clinic EDA198

Maher v Department of Agriculture, Food and Rural Development DWT0222