Complainant

Respondent

Anonymised Parties

An Employee

A Government Department.

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00023511-001

25/11/2018

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

CA-00023511-002

25/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998

CA-00023511-003

25/11/2018

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

CA-00023511-004

25/11/2018

The complainant is a supervisor with unbroken service since 1993. She is now in her 26th year of service however she still does not have a permanent contract of employment or an occupational pension. The complainant states that she has been forced to take this case to the WRC because nobody will take responsibility for her contract or occupational pension.

The sponsors of the scheme by the very rules of the respondent are obstructed from providing her with a permanent contract and an occupational pension.

The respondent will not take responsibility because it states that it has no role in relation to the employment as a supervisor on the scheme.

The complainant has provided substantial documentary evidence which she states proves that the respondent is in fact in full control of her employment, of the terms and conditions of her employment, of the day to day activities of her employment and of the regular monitoring of her employment. The documentation submitted proves that the respondent has an employer-employee relationship with the complainant and has had so for the last 25 years. Furthermore, the complainant daily tasks are exactly the same as the those of the respondent. On that basis she is equal to the respondent’s permanent staff and should be treated the same as them. She believes that she is being treated less favourably to these comparable staff and should have the same entitlements to an occupational pension as they do. The only difference between the complainant and the other staff is that they are in house civil servants and the complainant works externally.

The respondent in their submissions states that the department has no role in relation to the employment of a supervisor on the scheme as provided for in the contract agreement between the department and the scheme’s sponsoring body. The scheme’s employers are at all times an independent contractor for all purposes and all persons recruited by the sponsors are their responsibility. The complainant states that that statement from the department is incorrect and that the respondent has taken control and responsibility for and monitors everything that she does in her employment and has done so for the last 26 years.

The terms of work that were given to the complainant state that supervisors in pursuit of participants are excluded from Section 9 provisions of the protection of employees fixed-term workers Act 2003 as they are employees with a contract of employment which has been concluded within the framework of a specific public or publicly supported training integration or vocational training programme. Under section 2 of this act this means that scheme contracts for supervisors cannot be of indefinite duration.

The complainant has been given a few contracts of employment, but they are only given to her as a box ticking exercise when an inspector is coming down to check compliance with all employment statutory applications.

The respondent pays the complainant’s wages and deducts the various statutory revenue payments.

The complainant submitted 812 direct emails she has received from the respondent over a 6 year period giving her instruction in relation to her employment.

The complainant is subjected to regular work performance appraisals and these are carried out by the respondent.

The complainant is given an individual learner plan for every single person who comes onto the scheme. That plan is a very comprehensive document, that is issued by the respondent and is given to the complainant by the respondent. The complainant is obliged to adhere to the content of that particular plan.

The complainant submitted a XXX partners user’s manual for the 2018 scheme. This is the user manual specifically in relation to the ITU system that the complainant uses. This is a system developed and controlled by the respondent. The complainant is required to import data in relation to every aspect of her role and the respondent uses the system to monitor everything that she does.

The complainant submitted into evidence a document entitled ‘guidelines and procedures for interview panels”. This document is specifically in relation to the relevant supervisor’s job specification. All of the required training and development provisions and specifications set out in that document are set out by the respondent. The complainant is obliged to adhere to all of the guidelines set out in the document. Furthermore, in the respondent’s operations manual at 3.3.5 it specifically states XX reserve the right to be involved at all stages of the appointment of a supervisor.

The respondent requires the complainant to fill out an attendance sheet so that they can monitor her hours of work. On the attendance sheets submitted into evidence at 0.38 it states “supervisors should notify their xxx officer said respondent when taking annual leave. In addition to the attendance sheet the complainant is required to fill out a work schedule 4 weeks in advance and submit it to the respondent.

The complainant is regularly subject to instructions from a member of the respondent’s department. She is actually going to have one of those inspections tomorrow and submitted the form that needs to be filled out by the inspector to ensure that each and every aspect of her job is being done on time and correctly.

The respondent is in control of the computer system used by the complainant. Each and every program or document that she has access to is determined by the respondent. The respondent set up the system and gave the complainant a password so that she could gain access to the respondent’s files which are necessary to carry out her role.

No Appearance for or on behalf of the respondent.

The complainant withdrew CA 00023511-002 as it was identical to CA 00023511-001.

CA-00023511-001.

The first issue to be determined is, is the complainant working as an independent contractor or is she employed by the scheme employer or as an employee of the named respondent.

The respondent, who did not appear at the hearing of the matter, in their submissions states that the department has no role in relation to the employment of a supervisor on the scheme as provided for in the contract agreement between the department and the scheme’s sponsoring body. The scheme employers are at all times an independent contractor for all purposes and all persons recruited by the sponsors are their responsibility. The complainant states that that statement from the department is incorrect and that the respondent has taken control and responsibility for and monitors everything that she does in her employment and done so over the last 26 years.

It is settled law that the question of whether a contract is one of services or for services is dependent on the particular facts, rather than a straightforward application of a clear test. However, it is submitted that there is one critical question that the courts always turn to, namely, whether the individual is in business on his or her own account and has an opportunity to make a profit or gain by the manner in which the work is executed.   In Market Investigations v Minister for Social Security   Cooke J stated:

“the fundamental test to be applied is this; if the person has engaged himself to perform these services performing them as a person in business on his own account’

If the answer to that question is ‘yes’, then the contract is a contract for service. If the answer is ‘no’ then the contract is a contract of service.

In Autoclenz Limited v Belcher and Ors   the Court focused heavily on the test to establish whether a contract of service exists set out by McKenna J in Ready Mixed Concrete (SE) Limited v Minister of Pensions and National Insurance where he stated;

“I must now consider what is meant by a contract of service. A contract of service exists if these three conditions are fulfilled.

(a)       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.

(b)       He agrees, expressly or implicitly, 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.

(c)     The other provisions of the contract are consistent with it being a contract of service”.

McKenna J further states

Condition (c) is sometimes called an “enterprise test” and it focuses on the typical characteristics of an entrepreneur ‘that is a person who is in business on his own account’. Per Cooke J in Market Investigations:

“factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether or how far he has an opportunity of profiting from sound management in the performance of his task”.

The Supreme Court in Autoclenz added to those propositions the following:-

i.             That there must be a irreducible minimum of obligation on each side to create a contract of  service

ii.            That a genuine right of substitution will negate an obligation to perform work personally and    is inconsistent with employee status; and

iii.        If a contractual right, as for example the right to substitute exits, it does not matter that it is not used.

The complainant has clearly established at that she is not in business on her own account. She is paid a salary determined by the respondent. There is no opportunity to make a profit, or a loss for that matter. All of her working conditions are determined by the Respondent. The respondent monitors everything that she does on their I.T. systems. That system is controlled by them and the complainant is given a password by the respondent to assess the system.

In the seminal case of Henry Denny & Sons (Ireland) Limited v Minister for Social Keane J,   cites the Irish case of Graham v Minister for Industry and Commerce that the Supreme Court “…had also made it clear that the essential test was whether the person alleged to be a servant” was in fact working for himself or for another person.

Keane J, at page 50, goes on to say:

“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”.

Everything the complainant uses to carry out her employment is provided by the respondent. The computer systems are provided by the respondent. The work e-mail address is given to the complainant by the respondent. Standard operating procedures and guidelines, procedures manuals, the individual learner plan, the Partners user’s manual, training manuals etc are all provided by the respondent and must be adhered to. In that regard the respondent carries out regular monitoring and review in relation to compliance and in relation to her performance. In addition, the complainant must provide details of hours worked to the respondent and must schedule annual leave with the respondent. The moneys used to pay the complainant’s wages come from the respondent.  

In all of the circumstances, I am satisfied that the named respondent is the complainant’s employer.

The respondent’s legal obligations in relation to renewal of fixed terms contracts are set out in Section 8 of that act as follows:

S8.—(1) Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is—

(a) arriving at a specific date,

(b) completing a specific task, or

(c) the occurrence of a specific event.

(2) Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.

(3) A written statement under subsection (1) or (2) is admissible as evidence in any proceedings under this Act.

(4) If it appears to a rights commissioner or the Labour Court in any proceedings under this Act—

(a) that an employer omitted to provide a written statement, or

(b) that a written statement is evasive or equivocal,

the rights commissioner or the Labour Court may draw any inference he or she or it consider just and equitable in the circumstances.

Based on the complainant’s uncontested evidence I find that Section 8(1) of the act was breached in that the complainant was not given a contact at all on the commencement of her role. All of the other contracts were given on an ad hoc basis over the years specifically to demonstrate compliance to the inspectorate. On that basis, I find that Section 8 (2) of the Act was breached and the complainant was entitled to a contract of infinite duration.

CA-00023511-004 (Terms of Employment)

Section 3—(1) 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, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963 ),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(g) the rate or method of calculation of the employee's remuneration,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave)

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, an

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

The complainant stated that she was given contracts periodically over the years however that was only done as a “box ticking exercise” for the benefit of the inspectorate.

Based on the complainant’s uncontested evidence I am satisfied that the respondent was in breach of its obligations pursuant to Section 3 of the Act. Accordingly, I find that the claim succeeds.

I award the complainant € 3,000.00.

CA-00023511-003

No evidence was adduced in relation to this particular claim. On that basis I find that complaint fails.

CA 00023511-001 The complaint succeeds. The complainant is entitled to a contract of indefinite duration as against the named respondent.

CA 00023511-002 The complaint was withdrawn.

CA 00023511-003 The complaint fails.

CA 00023511-004 I award the complainant €3,000.00