Complainant

Respondent

Anonymised Parties

A Warehouse Manager

A Toy Retailer

Representatives

Stephen Brady

Daniel Kelleher BL instructed by Felton McKnight Solicitors

Act

Complaint/Dispute 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-00029427-001

02/07/2019

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

CA-00029427-002

02/07/2019

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

CA-00029427-003

02/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00029427-004

02/07/2019

The complainant was a warehouse manager from October 2015 until 31 May 2019.  The complaint relates to alleged Unfair Dismissal and breaches under the Terms of Employments (Information) Act.

Preliminary Issue – Employment Status

The respondent raised a preliminary point that the complainant was not an employee of the respondent and on that basis I did not have jurisdiction in relation to the complaints made.

The respondent stated that the complainant was self-employed and that no employee/employer relationship existed between the parties. The respondent outlined that the complainant was a part-time casual contractor who invoiced them for his services on a monthly basis. He was not made redundant but informed his services would no longer be required. He was paid for an extra weeks. The respondent considered that was a “gracious parting of the waves”

Preliminary Issue – Employment Status

The complainant contends that he was not self-employed but was employed by the respondent. In this respect he had no control over the work he performed and he could not arrange for someone to work in his place.

Preliminary Issue – Employment Status

Before I can consider the claims made by the complainant I have to decide if he was an employee. I note the case of Henry Denny and Sons (Ireland) Ltd v Minister for Social Welfare [1998] 1 IR 34 which states as follows:

“an Adjudicating body must not confine itself to the contract documents when determining this issue or to the labels that the parties ascribe to themselves and that each case must be looked at in light of its own particular facts and circumstances having regard to what the real arrangement was on a day to day basis as well as having regard to the general principles developed by the Courts.”

In recognising the essence of the Denny case I have to consider the particular circumstances of this case by reference to the following tests:

Mutuality of Obligation

I have to consider if there was a mutual obligation between the parties; which is the obligation on the respondent to provide work for the complainant and on the complainant to carry out the work for the respondent.

In Minister for Agriculture v Barry [2009] 1 IR 215 the mutuality of obligation test is considered as follows:

“the mutuality of obligation test provides an important filter [...] if there is no mutuality of obligation it is not necessary to go further: whatever the relationship is, it cannot amount to a contract of service. However, if mutuality of obligation is found to exist, the mere fact of its existence is not, of itself determinative of the relationship and it is necessary to examine the relationship further”.

In the instant case, the number of days the complainant worked changed, over a period of time, from 5, to 4, to 3 and then to 2. This reflected the work in the warehouse and the change in days appeared to have been at the behest of the respondent. I do not find the respondent was obliged to secure work for the complainant, therefore I do not find that a Mutuality of Obligation existed between the parties.

Enterprise

I have to consider if the complainant was in business on his own account or if he was doing the work as an employee for the Respondent. The principals of this are set down in the English decision of Market Investigations v Minister of Social Security [1969] 2 Q.B 173 where Cooke J held as follows:

“The fundamental test to be applied is this: ‘Is the person who 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 services. If the answer is ’no’ then the contract is a contract of service’’.

This test was endorsed by the High Court in O ’Coindealbhain (Inspector of Taxes) v Mooney [1990] IR 422and by the Supreme Court in Denny. It has been since applied by the High Court and the Supreme Court in many cases to establish whether a person was an employee or an independent contractor.

The main questions to answer are:

a)             Did the Complainant have the opportunity to supply services to others during his contract of engagement with the Respondent?

In the instant case the complainant did not work for anyone else but, when he went part-time there would have been no obstacles to him doing so.

b)             Was the Complainant permitted to employ assistants or subcontract his work?

He did not employ assistants or sub-contract his work and would probably not have      been permitted to do so. However, there was no evidence that he had any need to do so.

c)             Did the Complainant have the opportunity to maximise his profit from sound management in the performance of his tasks?

The complainant had no opportunity to maximise profit. He was paid a daily rate and that was it.

d)      Did the Complainant provide equipment or some form of investment?

 The complainant provided no equipment or any other form of equipment.

On this issue, I find on balance that it was more likely that the complainant was an employee of the respondent.

Integration

The complainant was an integral part of the respondent’s operation when he started. However, that reduced over time as most of the warehouse functions were outsourced. I conclude that after the outsourcing his services were no longer needed by the respondent and, as such, he was not an integral part of the respondent

Control

This test relates to the degree of control that an employer has over how the work is carried out. As in the “Denny” case it is “a factor to be taken into account” but is not determinative of the issue. The respondent only worked for the respondent and his work was in the warehouse.

Intention

In reaching my conclusion in relation to the employment status of the complainant and in addition to the tests mentioned above, it is necessary to consider what the intentions of the parties were at the material time.

The EAT in McCotter v Quinn Insurance Limited (In Administration) UD242/2011 stated:

 “whether a worker is an employee or self-employed depends on a large number of factors. The Tribunal wishes to stress that the issue is not determined by adding up the number of factors pointing towards employment and comparing that result with the number pointing towards self-employment. It is the matter of the overall effect which is not necessarily the same as the sum total of all individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another. When the detailed facts have been established the right approach is to stand back and look at the picture as a whole, to see if the overall effect is that of a person working in a self-employed capacity or a person working as an employee in somebody else’s business. If the evidence is evenly balanced, the intention of the parties may then decide the issue.”

In looking at the picture as a whole is my understanding that the working arrangement suited both parties. The respondent had someone in the warehouse they could trust and the complainant had a regular income.

My conclusion is that the complainant was not an employee and was self-employed.

CA-00029247-001

Having considered the submissions of both parties, I am satisfied that the complainant was not an employee of the respondent. As the complainant was self-employed, I find that the provisions of the Terms of Employment (Information) Act do not apply to him. Accordingly, I declare that the complaint is not well founded.

CA-00029247-002

Having considered the submissions of both parties, I am satisfied that the complainant was not an employee of the respondent. As the complainant was self-employed, I find that the provisions of the Terms of Employment (Information) Act do not apply to him. Accordingly, I declare that the complaint is not well founded.

CA-00029247-003

Having considered the submissions of both parties, I am satisfied that the complainant was not an employee of the respondent. As the complainant was self-employed, I find that the provisions of the Unfair Dismissals Act, 1977-2015 do not apply to him. Accordingly, I declare that the complaint is not well founded.

CA-00029247-004

Having considered the submissions of both parties, I am satisfied that the complainant was not an employee of the respondent. As the complainant was self-employed, I find that the provisions of the Terms of Employment (Information) Act do not apply to him. Accordingly, I declare that the complaint is not well founded.