Complainant

Respondent

Anonymised Parties

A Complainant (7)

A Health Provider

Representatives

Reddy Charlton Solicitors

Tom Mallon B.L. instructed by Philip Lee, solicitors

Act

Complaint 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-00004331-001

10/05/2016

The complainant is a medical practitioner in private practice who also undertakes work for the respondent.

In making this claim for a statement of her statutory terms of employment the complainant seeks to establish initially that she qualifies as ‘an employee’ under the Act to be given that statement, which status is disputed by the respondent.

This is one of a number of complaints (approximately forty-eight) by colleagues of the complainant who say they are in the same or a similar position, and which will all be heard separate from this.

Decisions have already in similar cases and where appropriate here on the particular facts of the case I have followed my reasoning in that case (ADJ 19368) and later cases.

Since those decisions there has been an appeal to the Labour Court (Determination No TED 1918) involving an appeal against ADJ 16102 which found in favour of a member of the cohort and overturned a decision of another Adjudication Officer.

It issued after my earlier (and first) decision in ADJ 19368 and others and has a bearing on the complaint and it is considered in greater detail below.

The complainant commenced working with the respondent in 1997 as an acting Assistant Programme Director in its training programme and confirmed in the role in 1998. She received a contract of employment dated December 7th, 2001 which specifically provided for annual leave, sick pay and maternity leave.

On January 24th, 2002 she was appointed to the role as Acting Programme Director on the basis of three sessions per week and received a contract in respect of this role on that same sate. Again, it provided for leave and other arrangements as per the earlier contract.

She was confirmed as Programme Director on July 3rd 2002 for five sessions per week which increased to eight over time.

She remains in that role to date.

She first sought an updated statement of her terms of employment on November 13th and December 15th, 2015 which was acknowledged on February 29th 2016 saying that the matter was being considered but nothing further was heard. She has made other requests for an updated statement of her terms of employment.

The complainant says that the employment relationship meets the criteria that define a contract of service.

She must undertake the work set out for she and may not make herself unavailable for work without sanction or repercussion, there is a continuing obligation on the respondent to make work available to her and there is a mutuality of obligation in the employment relationship.

She is on the respondent ‘s payroll system and while she has requested admission to the pension scheme this has not been agreed. She does, however pay the pension levy.

Deductions are made for tax and related matters.

The complainant has no discretion in relation to how she conducts the respondent‘s business, including when and how to perform any particular assignment. She is subject to fixed hours of work and may not determine when she performs the service provided.

She may not delegate or outsource her functions and she is fully integrated into the respondent’s business for that part of her work, notably in respect of where she carries out her work, although the timing of when she delivers the work may vary depending on the availability of premises.

The complainant makes returns in respect of her self-employment arising from her private practice but her income from the respondent is fully taxed at source.

She receives holiday and sick pay and has availed of paid maternity leave in 2005 and 2007.

She does not supply any equipment or materials; all of which are supplied by the respondent.

In respect of the respondent submission regarding the application of revised time limits the complainant relies on the decision in ADJ-00009820 in which it was held that the failure to provide a statement of the terms of employment is a subsisting contravention and where the statutory statement is not provided there is a continuing breach.

The complainant says she meets the criteria to be classified as being on a contract of service and therefore entitled to a statutory statement of her Terms of Employment.

The respondent replies initially that the complaints fall outside the time limits for making a complaint.

The Workplace Relations Act 2015 amended the Terms of Employment (Information) Act, 1994 in a way that is significant for this complaint.

Under the original provisions of the Act a complainant could make a complaint at any time following the alleged breach and up to six months after the termination of their employment.

However, section 41 of the Act of 2015 provides at subsection (6) that 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.

Therefore, the complaint has not been made within those statutory time limits.

The respondent also says that the document given to the complainant when she commenced in 2002 complies in almost all respects with the requirements of the Terms of Employment (Information) Act.

This renders it unnecessary to make a decision on the complainant’s employment status if there has been de facto compliance with its requirements and she is fully aware what they are.

Without prejudice to that submission, the respondent says that the complainant does not have a contract of service and is engaged on a contract for services.

The respondent made submissions on the various legal tests to be applied in determining employment status, noting that, as held in Minister for Agriculture and Food v Barry & others [2009] 1 IR 215 no single test is definitive, and the various tests are potential aids to identifying the nature of the working relationship; a view endorsed in the Supreme Court.

This approach is underscored by the emergence of the ‘multi-factorial’ test applied in O’Coindealbhain v Inspector of Taxes v Mooney [1990] 1 IR 442 and other cases.

The respondent says that the complainant is not an employee. The role undertaken with the respondent is no more than an extension of her role as a private practitioner and self-employed person.

Therefore, the complainant is not an employee of the respondent when performing the functions giving rise to the complaint. It is notable that as a GP in private practice and in receipt of significant income from the respondent, no question of her being an employee arises.

The respondent submits that the manner in which the information required by Section 3 of the Terms of Employment (Information) Act 1994 should be supplied is not specified in that Act, nor is it required in any specific format.

It says that there has, in any event been substantial compliance with the Act and that the complainant is aware of her duties and what is expected of her in that regard.

Turning specifically to the decision of the Labour Court in Determination No TED 1918 the respondent says that it has a direct bearing on the complaint and the approach taken in that case must be followed by an Adjudication Officer.

The respondent also argued that the Court commented approvingly on its submission that the complaint was a misuse of process, as the motivation for the complaint arose for a wish on the part of the complainant (in that case)   to have her status clarified for the purpose of a separate dispute, and this is the matter referred to in the first sentence of the extract from the Court’s decision which follows.

The Court said in its conclusion;

It is not the function of the Court to interfere in a dispute which is not before it. Rather, the role of the Court in a complaint under the Acts is to determine if the provision of the Acts have been complied with.

Having examined the Contract for Service documents supplied to the Court, the Court notes that the details of her contractual relationship with the respondent, outline in writing the terms and conditions of her engagement and concurs with Counsel’s view that they substantially comply with the provisions of Section 3 of the Acts.

The Court notes that the Complainant is anxious to receive written details of the changes which have taken place in her terms of engagement and seeks to have updated written details supplied to her. Mr Mallon gave a commitment to the Court that such details will be supplied in writing to the complainant with immediate effect.

In its determination it stated;

The Court finds that the respondent was not in breach of the Acts, the appeal succeeds, and the Adjudication Officer’s decision is overturned.

There are two key findings in the decision; one is that where there has been substantial compliance the de minimis rule applies, and secondly that the case was a misuse of process.

The respondent says that the complaint should be dismissed.

As noted above this is one of a number of cases (just under fifty) which have primarily turned on the complainant’s seeking to establish their right to a statement of their terms of employment, but which required a preliminary decision on their legal status to be given such a statement.

The complainants in those other cases have asserted that they met the criteria to be defined as employees on a contract of service, while the respondent has submitted that their employment status is that of a contract for services, and that therefore no such entitlement arises.

This case differs from the others heard to date in that the complainant appears to have been appointed on the basis of a contract of service in July 2001 (initially for a fixed term of five years) and this has continued.

In the documentation submitted to the hearing the second page of three outlining the job offer was missing but it did appear to set out an offer of employment that bore the hallmarks of a contract of service.

This is supported by the fact that the missing page was in evidence in an earlier letter of offer on December 7th 2001 and dealt with such matters as remuneration, hours of attendance, duties, annual leave and public holidays, sick pay, maternity leave, notice and grievance and disciplinary procedures. It seems a reasonable assumption that the later of the two letters did likewise.

This seems to clearly define the complainant’s contract as a contract of service and in that regard the position is less contentions than that of other complainants, although the respondent’s submission took no account of this.

The respondent pointed out that the complaint submitted to the WRC related to the failure to provide the initial statement, and was not a complaint regarding the failure to update it.

For the avoidance of any doubt I address both of the preliminary issues that arose in the case; whether the complaint was made within the time limits and the contractual status of the complainant.

Preliminary Issue; Time limits.

The decision in ADJ-00009820 sets out an interpretation of the legal position in relation specifically to the Terms of Employment (Information) Act 1994. It has not been appealed to the Labour Court and has been followed by this Adjudicator and others as a correct statement of the law.

The following appears in that Decision.

Section 3(1) of the Terms of Employment (Information) Act is clear that an employer shall provide the employee with a statement within two months of the start of the employment relationship.

Where this is not provided, the employee has recourse to the Workplace Relations Commission where section 7(2) enables the adjudication officer to take steps to amend or add to a statement, to require a statement be provided or to award financial redress.

The multiplicity of interventions allowed by section 7(2) shows that the contravention of section 3 is a subsisting contravention that endures so long after the initial two-month period the employee remains an employee not in possession of a statement. If the respondent’s submission was correct, the Oireachtas would have clearly stipulated that the interventions permitted by section 7(2) may only be made for a contravention arising on a single day after the end of the initial two-month period of employment.

 If the respondent’s submission is correct, section 7(1) is superfluous.

This provision prevents an adjudication officer from hearing a complaint where the employer has complied with a previous direction or determination. This section would not be necessary if there could only be one contravention of section 3 arising on a single day. Instead, section 7(1) presents the contravention as a subsisting breach and prevents an employee from submitting a fresh complaint where the employer has complied with the outcome of a previous complaint.

 While the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, is clear, in my view, that a breach of section 3 is a subsisting breach, this conclusion is fortified by the application of EU law.

First, the Terms of Employment (Information) Act, as amended, does not provide that the only date of contravention is the day after the end of the initial two-month period.

Applying a conforming interpretation to section 3 does not, therefore, require an impermissible contra legem interpretation of the section.

Article 2 of the Directive requires that a statement be provided by the employer to the employee and does not limit this requirement to any time period within the employment relationship. Reading section 3(1) of the Terms of Employment (Information) Act in conformity with Article 2 of the Directive leads to the conclusion that the obligation to provide the statement subsists throughout the employment relationship.

Article 8 of the Directive requires that employees have recourse where there is a breach and this requires section 41 of the Workplace Relations Act to be read as referring to the failure to provide a statement as a subsisting breach.

 For these reasons, 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.

The contravention of section 3 is a subsisting contravention.

If no statement is provided at any stage during the employment relationship and this comes to an end, the employee may refer a complaint within six months of the last day of contravention, i.e. the last day of their employment.

Accordingly, I adopt and apply this to the current complaint and I find that an alleged breach of this Act is a subsisting and continuing breach and the complaint is within jurisdiction from the point of view of time limits.

Turning to the substantive matter, and initially the submission by the respondent that, as the letters of appointment given to the complainant in January 2002 and July 2002 largely comply with the requirements of the Act it is unnecessary to make a finding in relation to the employment status for the purposes of the complaint. As already noted this fails to take account of the 2002 letters of appointment which contain no trace of being a contract for service, and which shifts this complaint into a different category.

The respondent relied on the Labour Court Determination referred to above in support of this case HSE v O’Kelly (TED 1918.)

Adjudication Officers may only make a decision on a complaint that is validly before them and within their jurisdiction.

If a person does not have legal status to bring a complaint in the first place, then by definition it is not possible to make a decision (that is to say a formal ‘Decision’ under the Workplace Relations Act, or other legislation) that there has been compliance with its provisions, which, after all derives only from the legal standing of a complainant to make that complaint.

I have carefully considered the Labour Court decision.

That was an appeal against GP Trainer v A Health Provider (ADJ-00016102) in which the Adjudication Officer had made three key findings;

1. That the complainant worked under a contract of service,
2. That she was entitled to a statement of her Terms of Employment under the Act
3. And that she should be paid compensation of €4,000 for the failure to do so (and that she should be given the statutory statement of her terms of employment.)

As will be seen above, the Labour Court overturned the award of compensation on being given undertakings by Counsel for the respondent that any deficits in the statement would be made good.

In my earlier decisions, where the submission on this point was also made, it seemed to have been done so on the basis that, if there was some sort of approximate, or substantial (as the respondent submitted) compliance with the intentions of the Terms of Employment (Information) Act then an issue did not really arise under that Act, and especially the issue as to whether it was necessary to adjudicate on the employment status of the complainant as an employee.

I rejected that argument (on the basis of the point made above that an Adjudicator must still determine whether a complaint is within jurisdiction at all) and found that it did remain necessary to make a decision on the nature of the contract.

I also stated that if, having decided that issue, and activated a complainant’s right to make a complaint under the Act, the extent of any breach of the Act then becomes an issue again for the purposes of assessing compensation.

However, the two issues of an employee’s legal right to the statement and then the entitlement to compensation for any breach are separate matters which are considered below.

This is precisely what the Labour Court concluded in TED 1918 as will be seen in the extract above which is reproduced for convenience.

Rather, the role of the Court in a complaint under the Acts is to determine if the provision of the Acts have been complied with.

Underlining has been added for emphasis as this is the nub of the matter; it must be a complaint under the Act.

As the provisions of the Acts are only activated in respect of a complainant who has locus standi, in this case one who is ‘an employee’ the finding that the respondent was not in breach of the Acts can only be interpreted as a reference to the degree of non-compliance found by the Court in its assessment of the compensation awarded by the Adjudication Officer.

It is not an endorsement of the approximate or accidental compliance notion submitted by the respondent as, in the Courts words there must be ‘a complaint under the Acts’.

The Court determined on appeal that no award was due.

This is a matter which falls to be determined on the facts of each case, as the degree of compliance or non-compliance falls to be assessed initially at adjudication and, on appeal by the Labour Court.

The Act provides at Section 7 (2) d) that an Adjudicator may;

‘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’.

This was considered in detail by the Labour Court in Irish Water and Patrick Hall TED 161.

This was a case when the only issue before the court was the claim for compensation for a failure to communicate changes in the statement of Terms and Conditions of Employment.

The Rights Commissioner/Adjudication Officer had found that there had been a ‘technical breach’ of the Act and directed the employer to furnish the complainant with a revised statement containing the amended particulars.

By the time the matter came before the Labour Court the revised document had been issued. The complainant had signed and returned the document without comment, despite being invited to make contact if she needed to discuss it or seek clarification on the revised terms.

The Court concluded that the complaints were ‘wholly devoid of any substantive merit’ and expressed strong criticism of the waste of public resources (and others) in the hearing which it described as;

‘grossly disproportionate to any value that could have accrued to the complainant if the technical infringements of which she complains had not occurred’.

The Court concluded that an award of compensation;

‘can only arise where the complaints made are well founded. Moreover, it should be emphasised that compensation, if any, must be within the bounds of what is fair and equitable having regard to the circumstances’.

In the case of Beechfield Private Homecare and Ms Megan Hays Kelly (TED 1919) issued some three weeks after Hall (TED 1918) the Labour Court assessed as appropriate ‘the maximum [compensation] permitted under the Act’; four weeks.

As noted above, the level of compensation that will represent what is ‘just and equitable having regard to all the circumstances’ will vary according to those circumstances, and this is illustrated by the decisions of the Labour Court referred to above and many others.

Arising from the decision in HSE v O’Kelly the respondent also sought to construe the decision as support for its contention that the motivation of the complainant in bringing a complaint is relevant and that the Court’s reference to the separate dispute supported this.

The Labour Court provides no such support; the Court merely quotes the submission of Counsel without giving any indication of such a view on that point (that the motivation of a complainant is a relevant factor in making a complaint under employment rights statutes).

The Court is merely stating that the dispute in question is not before it.

There is no legal basis, in general, for examining the motivation of a complainant submitting a complaint to the WRC which must be dealt with on its merits.

Accordingly, I find there is nothing in the decision of the Labour Court in HSE v O’Kelly TED 1918 to alter the approach taken in earlier decisions to the central principle in the complaint, although I do take account of it, and the submissions of the parties in my consideration of any award of compensation.

As noted above the letters of appointment in January and July 2002 make no reference to a contract for services and the nature of the employment being offered has all the appearances of a contract of service, albeit on a fixed term basis.

As outlined above those letters contained information on various aspects of the employment; the duration of employment, remuneration, hours of attendance, duties, sick leave arrangements, annual leave and public holidays, maternity leave, notice, grievance and discipline, confidentiality and collective agreements. The name and address of the employer were on the headed paper.

So, these could be said to go a long way to meeting the requirements of the Act.

The Contractual Status

In other decisions I have had to go into considerable detail on the tests determining the contractual status.

I consider it unnecessary to do so in this case given the basis on which the complainant was appointed to the various positions in 2002 and the fact that those terms persist. Those letters of appointment remove the contention as to the complainant’s employment status.

For the avoidance of any doubt I find and confirm that the complainant is employed on a contract of service on the basis of those letters of appointment and the nature of her work with the respondent.

Each of the above indicators can be answered in the affirmative in respect of the complainant.

She received a fixed payment based on the contracted shifts and nothing she could do would alter her earnings. The respondent supplied all the necessary materials.

The complainant in this case presents regularly at the place of work, in circumstances generally controlled by the respondent although she has some flexibility in this, in rather the way a university lecturer might.

In respect of the integration test it is clear that the complainant is fully integrated into the respondent’s activity; indeed she is indispensable to, and central in the delivery of all of its core activities of teaching, mentoring, supervision and much of the administration.

Conversely, the indicators in the Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173 case which go to define a contract for services are all conspicuously inapplicable, while the tests set out by the Revenue Commissioners are met comfortably.

I have no hesitation in concluding that the complainant meets the criteria for the former; a contract of service and falls within the jurisdiction of the Terms of Employment) Information) Act 1994.

Accordingly, I uphold the complaint and find that the complainant works under a contract of service and is entitled to be given an updated statement of her terms of employment that complies with the requirements of the Terms of Employment (Information) Act 1994.

I note the respondent’s submission that the complaint related to the initial statement only, rather than any update but the complaint form is not so strictly binding that a complainant may not, within reason vary their complaint at a hearing. However, the breach of the Act in this case is a minor one relating only to the failure of the respondent to update the statement since 2002.

Therefore, following the position of the Labour Court in O’Kelly in this case I do not consider there are ‘just and equitable’ grounds to apply an award of compensation and, therefore I do not do so arising from my findings.

I find that complaint CA-00004329-001 is well founded on the basis of my preliminary findings that the complaint is properly made within the time limits specified and my confirmation that the complainant’s employment status is that of a contract of service.

On the basis of Section 7(2) (c) of the Terms of Employment (Information) Act, 1994 I direct only that the respondent should provide the complainant with an updated statement of terms and conditions of employment containing the particulars specified in Section 3(1) of the Act.

Terms of Employment (Information), employment status