FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : LIMERICK PUBLIC PARTICIPATION NETWORK OPERATIONS CLG (REPRESENTED BY LEAHY REIDY SOLICITORS) - AND - VICTORIA WARD DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No. ADJ-00013241 CA-00017378-001 This is an appeal by Ms Victoria Ward (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00013241; CA-00017324-003, dated 20 September 2018) under the Unfair Dismissals Act 1977 (‘the Act’). The Court heard the appeal in a virtual courtroom on 6 November 2020. The Factual Matrix It is common case that the Complainant had worked – ostensibly as a self-employed independent contractor - in the role of Project Co-Ordinator for Limerick Public Participation Network Operations (‘LPPNO’), an unincorporated entity, during the entire calendar year of 2017. LPPNO is one of a number of Public Participation Networks (‘PPNs’) that were established throughout the country as collaborations between Local Authorities and local voluntary organisations pursuant to the Local Government Act 2014. Funding for PPNs is provided primarily by the Department of Housing Planning & Local Government and is administered through Local Authorities. The Complainant referred the issue of her employment status with LPPNO throughout 2017 to the SCOPE Section of the Department of Employment Affairs and Social Protection. By decision dated 21 May 2018, the Deciding Officer notified the Complainant that her employment with LPPNO between 1 February and 31 December 2017 was “insurable under the Social Welfare Acts for all benefits and pensions at PRSI Class A …”. A copy of the of the Deciding Officer’s decision in this regard was not furnished to the Court in the course of this appeal. The Complainant also submits that she had been employed through a third party to fulfil essentially the same role for LPPNO for six months between 1 August 2017 and 31 December 2017. LPPNO was incorporated as Limerick Public Participation Network Operations Company Limited by Guarantee on 9 August 2017. The incorporated entity is the Respondent in the within proceedings. The Complainant’s Submission Throughout 2017, the Complainant submits that she, inter alia, facilitated the incorporation of LPPNO and the registration of the incorporated entity with both the Revenue Commissioners and the Charities Regulator. In December 2017, the Complainant was offered and accepted the position of Project Coordinator with the Respondent to commence on 1 January 2018. After the Complainant had accepted the offer of employment, an issue arose between LPPNO and the sponsoring Local Authority, Limerick City & County Council (‘the Council’) about future funding. The Council, it appears, advised LPPNO not to enter into any new contracts. LPPNO agreed to this but advised the Council of its pre-existing contractual commitments, including the employment contract agreed in principle with the Complainant. The Council indicated that it was unwilling to transfer the necessary funds to meet the LPPNO’s contractual commitment to the Complainant. However, the LPPNO did not accept this and continued to maintain with the Council that that it had entered into a binding contractual arrangement with the Complainant. The Complainant remained in position and performed her duties as she had been assured by the Respondent’s Directors that her salary would be paid in arrears once the necessary funding had been secured. The Complainant was informed by telephone on 31 January 2018 that she was been placed on a four-week lay-off. This was confirmed in writing the following day. On 9 February 2018, the Complainant received one week’s written notice of termination to commence on 12 February 2018. The Respondent’s Position The Respondent submits that the Complainant does not have standing to pursue the within claim under the Act as she had not accrued the required minimum period of continuous employment under a contract of service of one year prior to the termination of her employment. The Respondent’s submission places particular emphasis on the following aspects of the employment relationship between the Complainant and the Respondent: (a) The Complainant freely entered into a contract for services on 1 February 2017 and committed in that context to deal with all Revenue obligations as an independent contractor; (b) The Complainant did not request or receive holiday pay for the period during which her contract for services continued; (c) The Complainant submitted her request for payment via invoice on a regular basis during 2017; (d) The draft contract of service issued by the Respondent to the Complainant in December 2017 contains several provisions that indicate the markedly different nature of the employment relationship the Parties had agreed to enter into thereafter (i.e. one ‘of service’) compared to the relationship that had been in place up that point in time (i.e. a contract ‘for services’). In particular, the Respondent highlights the express inclusion in the draft contract of service of a prohibition on double employment and points out the no such exclusion applied to the previous contract for services such that the Complainant was, at least in principle, not restricted from engaging in work elsewhere under that earlier contract. Determination The Court acknowledges that the issue of employment status can often be a difficult issue to determine. This fact is reflected in the decision of the Employment Status Group to publish a Code of Practice for Determining Employment or Self-Employment Status of Individuals rather than recommend that the Oireachtas legislate in this area. However, the Court was very struck by the Complainant’s own admission to the Court to the effect that she fully understood the implications of the arrangement she entered into in February 2017 when she accepted the Respondent’s predecessor’s offer of a contract for services. In the circumstances, therefore, and having regard to the Complainant’s evidence in this regard, it is not open to the Court to permit the Complainant to resile from the arrangement she entered into at that time with full knowledge and understanding. The appeal, therefore, does not succeed. The decision of the Adjudication Officer is affirmed. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary. |
