Complainant

Respondent

Anonymised Parties

IT Consultant/Administrator

Health Equipment Supplier

Representatives

Donal Keigher Donal Keigher & Co Solicitors

Terry Mac Namara IBEC North West

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00012204-001

29/06/2017

The claimant’s representative described the claimant as a computer professional “who carried on under the name of X Systems until such time as he ceased to trade“. It was submitted that the claimant was recruited by the respondent company‘s predecessor as their main and central IT person. It was advanced that the relationship developed with continuous employment and that by 2002 the job turned into full time employment. It was submitted that the claimant formed an integral part of the business; that he worked 40-60hours per week, including overtime to meet the demands of the business and that from 2003 the claimant worked exclusively for the business and did not take on any of the consultancy work. The business was sold to the respondent in 2013 and the former staff were kept on under TUPE Regulations. It was submitted that from commencement in 1998 up until Aug. 2016, the claimant was never furnished with a contract either by the respondent or its predecessor. The claimant was presented with a contract on the 29.07.16 for consideration. On the 18.08.16 the claimant was informed that he was no longer employed as a consultant and that the contract was rescinded. When the claimant subsequently applied for redundancy he was informed that he was not eligible as he was a supplier /service provider. The claimant fell ill and was hospitalised in Jan. 2017.

It was submitted that the claimant met the test for employee status under the Code of Practise for Determining Employment or Self Employment Status of Individuals. It was submitted that the claimant was paid regularly on the basis of a 40-60 hr. week; that he presented for work each day and signed in and out at reception; time sheets were submitted to the Company ; the claimant was an integral part of the enterprise and acted on behalf of the company with third parties including Eircom and ATS; the claimant took holidays one week at a time and was frequently contacted whilst on holidays ; the claimant took Christmas holidays the same as the rest of the workforce along with work breaks; the claimant attended the annual dinner dance and received a drinks voucher in common with other staff; that the claimant was provided with fitted out office space to carry out IT functions.

It was submitted that the test to determine a contract of or for service was a question of fact and degree. The provisions of Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare [1998]1 I.R. 34 were invoked in support of the claimant’s contention that he was engaged on a contract of service. It was contended that the claimant gave all of his working time to the respondent and its predecessor; that the claimant had a designated IT area and was described as a key IT person; the claimant provided no business premises or investment and the claimant made no profit from the company.

It was submitted that X Systems remained an incorporated Company for the purpose of facilitating the purchase of equipment exclusively for the respondent and that this was not indicative of being an agent or subcontractor given “that the sole income related to his job with the respondent and their predecessors. It was submitted that an individual who is paid by commission or atypically can still be regarded as an employee and that the fact that an individual has registered for self assessment or VAT under the principles of self assessment does not automatically mean that the person is self employed.The claimant’s registration for VAT did not extend to anything other than the products supplied to the respondent / predecessor. It was further submitted that in making a decision to pay the claimant Job Seekers Allowance, Social Welfare had classified the claimant as an employee.

It was submitted that the claimant operated under the control of Mr.C and Mr.B. The Company asked the claimant to provide equipment and he did so at cost price. He held a contract for labour and a contract for equipment that was not for profit .It was submitted that the claimant received a fixed hourly wage – a rate that was set and agreed and he worked from 8.30-5.00p.m. The claimant stated that he remained on after 5 on many occasions – he submitted it was not classified as overtime and he would bill for 3 hours - he only charged for this if he had to stay back.

It was submitted that the claimant did not subcontract work to anyone else – he did provide on site cover on one occasion via Mr.AF and asserted that the arrangement had to be approved by his manager. The claimant dealt with problems himself while on holidays and on one occasion had to cancel his holiday. The claimant submitted that when materials were identified as being needed he would purchase them for the company. In his direct evidence the claimant stated that the materials and equipment were supplied by him solely to the respondent. He stated that the company provided the claimant with a laptop because of security concerns. The claimant stated that he never invoiced the company for his mobile phone charges – the provision of a company mobile had been considered but in the end it did not happen.

The claimant asserted that he gave up all other clients in 2002/2003 and submitted that signing in arrangements changed from 2015 onwards. The claimant had never been faced with any complaints about his attendance because “they knew I was there for them”.

The claimant stated that he was offered a new contract before he left but it was withdrawn within a short period of time. He insisted that he worked under the direction of Mr.C. His invoices were for labour. When materials were needed he would advise Mr.C – he would purchase them through his own company at trade prices and added 5% for conveyancing. The claimant submitted into evidence copies of travel documentation for a training course in Paris in 2015 and evidence of having the costs reimbursed by the respondent. The claimant also submitted a copy of a Project Contract document in which the claimant is named as the IT contact for the laboratory with his company email address.

The claimant stated that Mr.MD would mostly sit in on the Team Meetings and he would appraise the claimant – he said there was no point in 2 of them sitting in listening to the same issues. The claimant said he reported directly to Mr.C. The claimant said when he took on the respondent exclusively in 2003, he never thought about why he was not taken on as an employee – he was the only IT person. He said he could not understand it and did not question the company for fear of losing work. The claimant set out the background to the setting up of and registration of X Systems. The claimant asserted that VAT was a requirement of Mr.C to reduce costs. The claimant asserted that he was fully integrated into the company; that everyone knew him; he was called ……….; had access to the canteen and social events. The claimant described the backdrop to his attendance at a training course in Paris in March 2015 – the company had purchased 8 additional items for the lab and he attended for training and was fully reimbursed for his costs. The claimant described the layout of his office and stated that if he had to prioritise work he would refer to Mr.CC.

The claimant said that after integration with the new company in 2015, he did not purchase any equipment; he continued on his hourly rate; he received a company lap top post integration; the claimant asserted he did not in any way profit from the business.

It was submitted that there was reasonable cause for the delay in making the complaint – the claimant was in poor health from August 2016 – January 2017 and that the claimant had numerous medical appointments during that period – it was contended that all of this happened within the 6 month time frame for lodging the complaint and the claimant was incapable of addressing his employment law matters during this time and for a significant period thereafter. The claimant was hospitalised in Jan. 2017 and July 2017. It was contended that the claimant was hospitalised during the relevant statutory 6 month time limit and was subject to ailing health thereafter.

It was contended that had the claimant got the time and capacity to visit his advisers he would have done so but thus did not happen because the claimant got sick.

The claimant invoked the provisions of Murphy -v- Citizen’s Information Call Centre UD 59/2005 in support of the claim for an extension of time – it was submitted that the claimant was medically unable to complete the application form during the 6 months after the dismissal. It was submitted that the claimant was in poor health from the 18th April 2016 – January 2017; that the claimant had a significant medical condition and was hospitalised in Jan and July 2017. He was on 39 tablets per day. The claimant’s significant medical problems arose when the claimant was hospitalised in Jan 2017 and he was unable to lodge the complaint on the 18th Feb. 2017 – it was submitted that this was supported by the medical reports/certs that would be submitted following the hearing. The claimant objected to the introduction of private emails received from the claimant’s adviser in relation to initiating a complaint to the WRC and obtaining a determination from DSP on his employment status by the respondent - he suggested it was a breach of data protection and stated that he had nothing to hide. In his direct evidence the claimant stated that he had been having frequent medical appointments since June 2016, had stents fitted in Jan 2017 and his health was his primary concern. The claimant stated that his mind was purely on his own health and he did not know if he was going to be around - he suggested that on this basis the WRC had allowed his claim to proceed. In response to questions from IBEC the claimant clarified that he did not seek a determination on his employment status as had been recommended   by his adviser and he did not contact HR. The claimant stated when he contacted Social Welfare following termination in August 2016, he learned he was entitled to very little as he was classified as self employed. He got €103 per week from Jan 2017 with no arrears as Social Welfare determined he was still in receipt of €1,000 per week. He was then changed to disability allowance and received €198 per week. It was submitted that arising from this Social Welfare had decided the claimant was an employee and this should be taken as persuasive evidential value.

The respondent submitted that the claimant was engaged with them on a contract for service to provide IT services and that he was not an employee of theirs. The respondent submitted into evidence samples of invoices from X Systems and that the invoices were for services provided by the claimant and for equipment purchased by the claimant on behalf of the respondent. It was submitted that if the claimant had been an employee he would not have purchased equipment worth €500 and the purchase would have been undertaken by the respondent. It was advanced that if the claimant was an employee he would not have to declare his own tax as it would have been deduced at source by the respondent.

It was further submitted that the claimant did not have a contract of employment or a job description and that the claimant was registered with CRO as X Systems with a fixed place of business where materials could be stored. It was contended that X Systems was registered for VAT; that the claimant did not appear on the company’s P35; that the claimant was never issued with a P60 or P45; that the claimant had no entitlement to annual leave; that the claimant provided the same service to more than one person or business at the time; that the claimant used his own mobile phone and his own laptop until he was issued with a company lap top owing to IT policy on Network Security; that the claimant did not attend Team meetings; that he signed a visitor book and that while he had a swipe card he had a different profile to other employees. It was asserted that the claimant never once claimed to the respondent that he was an employee. The provisions of UD 762/2010 Grezegorz Sulek-v-David Lloyd Riverview Ltd; UD 648/2009 Catherine McAllister -v- Frank Brannigan & La Spa Therapie and UD 1895/2010 were invoked in support of the respondent’s assertion that the claimant was not an employee.

It was submitted that the claimant had clarified that the higher hourly rate paid to him factored in travel time and that employees are not entitled to pay for travel to work. It was submitted that the cover provided by the claimant via Mr.AF was not the action of an employee and that the fact that Mr.AF was never called in was irrelevant. It was submitted that the receipts submitted in evidence were indicative of a business to business arrangement. It was submitted that the claimant used his own mobile phone and that he had used his own lap top most of the time and that while the company issued mobile phones to employees they would not be provided for independent contractors. As regards risk in relation to the business, it was contended that the claimant was responsible for investments in company hardware and it was submitted that the claimant made his own tax returns. It was submitted that nobody in the company directed the claimant to start at a certain time and unlike the TMS system for employees, the claimant signed in as X Systems in the visitors book as did other contractors. It was not accepted that there was a change in the signing in procedure in 2015. It was submitted that the claimant was satisfied with the relationship between the parties, that he had never sought a determination on his employment status from DSP and that the claimant only questioned the relationship when it came to an end. It was submitted that this was a business to business relationship – that specific pieces of work were invoiced and that there was no employer/employee relationship. It was submitted that the claimant objected to taking a company mobile phone as he wanted to retain his own personal details on his phone.

Mr.COS gave evidence on behalf of the respondent and submitted that current IT employees of the company engaged on similar type work to the claimant earned €35,000--€40,000. They had nobody else invoicing for a service or who was registered for VAT. He advised that the dept. had an Infrastructure Manager and Systems Administrator who supported the Desk Team Leaders – the infrastructure team was dispersed and they conference called on a weekly basis. He advised that the claimant sporadically sat in “rarely”.

It was submitted that if the respondent was employing the claimant directly it would have been at half the price; there was a substantial business arrangement between the parties and details of equipment purchased between 2013 and 2015 was presented. While the respondent was the claimant’s only client, this was a commercial decision taken by the claimant. The claimant determined his own hours of work; invoiced for whatever work he did. If the respondent was the only client then that was a decision made by the claimant to put all his eggs in one basket – it was submitted that this was a commercial decision made by him. It was contended that the claimant determined his own hours of work and invoiced for same. His access to the site was different to the other employees and he signed in under X Systems – a registered business operated by a sole trader – the claimant. It was submitted that Revenue had determined that the claimant was a contractor – the respondent did not look after the claimant’s accounts, deduct PAYE or issue P60/P45s. The claimant had no annual leave entitlement and could have provided a service to more than one business if he had wanted to. He did not invoice the company for his mobile phone.

It was submitted that the claim was out of time as the claimant had waited over 10 months to lodge his complaint to the WRC. While the claimant had argued that he was hospitalised from Jan2017, it was submitted that the claimant had 4 months prior to that to submit his complaint and failed to do so. It was submitted that during that period the claimant had lodged a claim for redundancy and the respondent had replied in the negative making it very clear that the claimant was never an employee of the company.

It was submitted that the Labour Court set the test that should be applied for reasonable cause in DWT0338 Cementation Skanska Ltd. V Tom Carroll. It was submitted that the claimant’s reliance on being unaware of the 6 month time limit was not an adequate defence and more cogent reasons were required to explain waiting to the end of June 2017 to lodge the complaint. It was advanced that the burden of proof rests with the claimant to demonstrate that their explanation is reasonable, that it makes sense and is not absurd or irrational. It was submitted that the WRC must be satisfied that “had those circumstances not been present he would have initiated the complaint in time”.

The respondent did not accept that the claimant was ill throughout the period at issue and contended that while the contract was terminated on the 18thn August 2016 the claimant did not apply for redundancy until December of 2016. While the respondent was not disputing the hospital stays, it was contended that the claimant was receiving advice around the time the contract ceased in August 2016 and had 4 months to lodge the complaint with the WRC before he was hospitalised. It was submitted that the claimant had failed to explain the duration of the delay in making the complaint as had been highlighted in Cementation Skansa.