FULL RECOMMENDATION
SECTION 15 (1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : DEPARTMENT OF EMPLOYMENT AFFAIRS AND SOCIAL PROTECTION (REPRESENTED BY DAVID DODD, B.L., INSTRUCTED BY CSSO) - AND - MS COLETTE KENNEDY DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No. ADJ-00018309,CA-00023511-001.
This is an appeal by Department of Employment Affairs & Social Protection against the decision of an Adjudication Officer ADJ-00018309, CA-00023511-001 in a claim by Ms Collette Kennedy that her employer failed to provide her with a contract of indefinite duration pursuant to Section 9(3) of the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). The Adjudication Officer found her claim to be well founded. In the interest of efficiency of process, the Court proposed to consider this issue as a preliminary matter, as it had the potential to be determinative of the appeal in its entirety. The parties agreed to proceed accordingly. The Court proceeded to hear the extensive submissions presented by both sides on this matter. Mr Dodd said that the Respondent is not the employer of the Complainant and does not employ anyone on the Community Employment (CE) projects. He said that it is a function of the Respondent to promote and fund Community Employment Schemes, and as such is responsible for ensuring proper governance, monitoring the deployment of public funds and promoting the purposes of the scheme itself. In support of its contention, the Respondent cited the High Court case ofMartin v. Minister for Social Protection[2017] IEHC 361. This case also concerned a community employment funded by the Respondent. InMartin, Binchy J. refused an application to judicially review theMinisterarising from the dismissal of the applicant by Tolka Area Partnership Ltd. The High Court found thatall mattersrelating to the applicant's employment were between the applicant and the Partnership, not the Department, and were matters of private law. Binchy J. stated at para. 40 "The applicant has undoubtedly made out a case that her dismissal from her employment by the Partnership was effected in a manner that is contrary to fair procedures, although because the Partnership is not a party to these proceedings (and nor could it be, it being a private body) the Court does not have the benefit of knowing what the Partnership would have to say in response to the allegations of the applicant. But in any case, those are matters between the applicant and the Partnership, and not between the applicant and the respondent. It is abundantly clear that all matters relating to the employment of the applicant by the Partnership were matters of private law as between those parties, and that the decision to dismiss the applicant from her employment was one taken by the Partnership, and not by the respondent. As such...any complaint that the applicant has arising out of her dismissal is a complaint that should be directed to the Partnership. and not the respondent. As a matter of law, it is not possible to deem the decision of the Partnership to be a decision of the respondent, and for this simple reason it is not possible to grant the applicant the relief which she seeks by these proceedings." At paragraph 43 the High Court was clear that theMinisterwas not the employer of the applicant "While the respondent established and funded the Scheme, the responsibility for the administration of the Scheme, insofar as it concerns matters relating to the employment of the applicant, rested entirely with the Partnership and not with the respondent. That is clear both from the terms of the T�s implementation agreement, and the T�s community workplace initiative, conditions and rules. The applicant's employment was governed by the contract of employment which she entered into with the Partnership and not the respondent.While it is true that she was obliged to enter into this contract of employment in order to maintain her entitlement to Jobseeker's Allowance, that does not in any way alter the fact that her contract was with the Partnership.”
tend her interview, provided trained for the job, control wages with a clear directive of no extra pay by Sponsor, control hours of work, control holiday pay, control sick pay and sick leave, control and monitor attendance using their own forms, performance manage her work as Supervisor through evaluation and monitoring, regularly communicate with her to lead, advise and control the work, decide if the scheme should “rollover” i.e. whether she keeps her job or not. She said that while “official” correspondence will always be sent to the Sponsor, over the past 6 years alone there have been over 1000 emails between her and local DEASP staff. The Complainant said that her work for the DEASP is involved in the activation of the unemployed into employment, which is done under the control of the DEASP, whereas the Sponsor is contracted to provide work experience and support the Participant Development Programme. She said that Cases Officers, employees of the DEASP, are similarly involved in activation of the unemployed. The Complainant said that the Sponsor has no control over her work and no control over the terms of her employment. In response to theMartincase, the Complainant contended that there were differences in that case and the instant case. She said thatMartinconcerned a T�S programme, whereas her case involves a CE scheme. She argued that the general operation of the CE scheme is under the “aegis” of the Minister whereas the T�S programme is under the aegis of the Partnership Companies. With reference toBoylethe Complainant disputed the relevance as she maintained that whileBoylefound that theMinisterhad no entitlement to direct the type of work that Mrs Boyle was employed to do and had limited control in connection with the financial terms and conditions of her contract of employment, she submitted that in her case the DEASP had total control over the terms and conditions of employment and over the direction of her work. Findings of the Court There is no dispute that the Complainant is on a contract of service, i.e. she is an employee. The question before the Court as a preliminary issue is whether the Respondent impleaded in this case is indeed the correct respondent. The Complainant urges this Court to find that the correct respondent for the purposes of the within proceedings is the DEASP. The Adjudication Officer found, at first instance, that the correct respondent was the DEASP. The named Respondent denies that it is the employer of the Complainant. The Court indicated to the parties that it would issue a decision on this preliminary matter before proceeding, if necessary, to deal with the substantive claims under the 2003 Act. When questioned by the Court as to the existence or otherwise of a contract of employment, the Complainant presented the Court with a sample contract which she said was given to her by FÁS in 1998/1999 and she was instructed to complete it. The body of the contract is in typed form, and in handwriting it is entitled“Sample Contract Supervisor, (Sponsor Letter Head)”and at the endName[of the]CE Scheme Supervisor, Name[of the]Chairman. The outstanding detail has not been filled in and it is not signed. It is clear that the Complainant has no express contract of employment with the Respondent, however, she contended that there exists an implied contractual employment relationship between her and the Respondent. In that regard, she places heavy reliance on the assertion that the Respondent, as distinct from the Sponsor, has total control over her work. The Respondent denies the existence of a contract of employment with the Complainant and submits that the Sponsor is her employer. The Court has given careful consideration to the written and oral submissions of the parties. Furthermore, in reaching its conclusion the Court has taken account of the statutory base for Community Employment Schemes, has examined the CE Procedures Manual which was devised to assist DEASP Officers and Sponsor organisations in the management of Community Employment and has inspected the Agreement between DEASP and South East Community Service Wexford Limited. Section 359A of the Social Welfare Consolidation Act 2005 as amended provides:- Functions of Minister in relation to employment schemes and related schemes and programmes
(b)the programme commonly known as work placement programme referred to in section 142B(4); (c)the scheme known as the Jobs Initiative Scheme referred to in section 234.
(4) the Minister shall not be, or be deemed to be, an employer, within the meaning of the Terms of Employment (Information) Acts 1994 and 2001 by reason only of the provision of funding by him or her to a person pursuant to a scheme or programme provided under this section. It is clear from the provisions of section 359A of the 2005 Act that the Minister of the Department of Employment Affairs and Social Protection may provide for community employment schemes previously provided by FÁS and that the Minister is not the employer for the purposes of those schemes. This is also made clear by the terms of the“Community Employment Procedures Manual”. This is a very detailed document, amounting to almost 100 pages. It outlines in great detail,inter alia:- The Role of the Sponsor “The role of the Sponsor of a Community Employment project is to provide a meaningful work programme and training plan for each participant. The Sponsor is required to facilitate the participants in undertaking training and development, appropriate to their progression and employment goals. The Sponsor will; Incorporate as a legal entity and remain incorporated for the full duration of the project. The Sponsor must form a Company Limited by Guarantee (CLG) with no share capital, or as a co-operative…” “Be fully responsible for the management and the administration of the project” “Comply with all the relevant statutory and legal obligations of a Sponsor/employer” “Comply with the terms and conditions laid down in the Agreement with DEASP” “Co-operate fully with DEASP requirements” Paragraph 1.6 deals with“The Role of DEASP” “DEASP will provide advice and grant aid to the approved project for a period of 52 weeks towards; Wages for project participants Wages for full-time supervision where applicable DEASP will conduct project monitoring visits on the implementation of the Individual Learner Plan and work programme. DEASP will also conduct financial monitoring of the project.” Chapter 3 of the Procedures Manual is entitled“The Workforce”and gives details of the steps to be taken in recruiting/appointing the project participants and the project supervisor and the terms and conditions of work applicable to both. Paragraph 3.3covers“Recruiting the Supervisor”.Paragraph 3.3.1. is entitled:- “The quality of the Supervisor can be the single most important factor in the success or failure of Community Employment Project.” “No offer of appointment should be made until DEASP has been informed of the proposed appointee, and has agreed in writing to funding the post and the starting salary point.”
“The Sponsor organisation is the legal employer of the CE Supervisor and the participants. As the employer, the Sponsor should be fully aware of all relevant legislation and be committed to fully implementing its spirit and letter at all times.”
at clause 15 of the Agreement states:- “It is agreed and understood that in no way shall the participants or Supervisors be employees of the Department of Employment Affairs and Social Protection.” It seems clear to the Court from the statutory base for the establishment of CE Schemes; from the express provision of both the Procedure Manual and from the Agreement between the DEASP and the Sponsor that it was never intended that the Supervisor of the Scheme would be an employee of the DEASP. This fact has been confirmed by the High Court inMartin. The Complainant drew a distinction betweenMartinand the instant case as the former concerned a T�S programme rather than a CE Scheme. Having studied the description of the T�S programme inMartin, the Court is satisfied that the implementation agreement referred to is similar to the Agreement in place between the DEASP and the Sponsor in the instant case. Paragraph 23 in Binchy J’s judgement is a description given by the applicant of the T�S programme:- "2.2.6 Each implementing Body is responsible for its own employment policies and compliance with statutory requirements in respect of its employees. Accordingly, the Department has no function in respect of any employment matters other than to require that all practices meet general good practice norms..” And by the respondent at paragraph 32:- "7. The implementing body shall at all times be an independent contractor for all purposes and all persons recruited by the implementing body shall be their sole responsibility. It is agreed and understood that in no way shall any person or employee of the implementing body, in any capacity whatsoever, in relation to Tus, be considered to be an employee of the department or its agents. The Complainant was adamant that she has been controlled by the Respondent to such an extent that there existed an employer/employee relationship present. While the Sponsor did not participate in the hearing before the Court, it seems clear to the Court that the Complainant has been carrying out the work of the Scheme, single handed for many years. While she is required by her job description to report to the Chairperson of the Sponsoring Management Committee, she told the Court that she liaises with the DEASP whenever she required assistance rather than with the Sponsor, as she said they were simply volunteers in the community. The Court notes that the preface of the CE Procedures Manual states :- “The purpose of this combined DEASP Officer and Sponsor manual is to facilitate ease of cross-reference between the Sponsor and the DEASP Officer and to ensure a consistent approach by DEASP staff in responding to queries or giving advice.” Therefore, the Court finds it not unreasonable that the Complainant would liaise with the DEASP rather than the Sponsor whenever she required advice or assistance on the Scheme. He said that when it was run by FÁS, CE Schemes became mired in well-publicised allegations concerning wasted public expenditure and allegations of fraud, therefore the need for internal and external accountability was paramount. The DESAP has a duty and responsibility for the governance and operation of all CE Schemes to ensure compliance. This Court is clearly bound by the judgment of the High Court inMartin, where Binchy J. held:- “matters relating to the employment of the applicant, rested entirely with the Partnership and not with the respondent” While the applicant in that case was a participant on a CE Scheme, it is clear from the Court’s findings above that it was made explicitly clear and understood that neither participants nor Supervisors were to be regarded as employees of the DEASP.Applying the reasoning of theMartinjudgment, the Court is satisfied that the Respondent is not the employer of the Complainant in this case. Determination
NOTE Enquiries concerning this Determination should be addressed to Noel Jordan, Court Secretary. |
