FULL RECOMMENDATION
REDUNDANCY PAYMENTS ACTS, 1967 TO 2014 PARTIES : ST JOHN OF GOD COMMUNITY SERVICE CLG (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) AND FIDELMA MULLIGAN (REPRESENTED BY MS M.P. GUINNESS, B.L., INSTRUCTED BY MARCUS LYNCH SOLICITORS) DIVISION :
SUBJECT: 1.An appeal of an Adjudication Officer's Decision No. ADJ-00024495. Ms. Mulligan, ‘the Complainant’ was employed by the Respondent organisation as a social care worker in January 1996. Her contract of employment was lost subsequently in a fire. The Complainant then undertook studies to qualify as a drama therapist. The parties are not in agreement as to the date but it is common case between the parties that she was offered and she accepted a role as a drama therapist. This either commenced in September 2000 or in May 2002. The Complainant believes that she remained as an employee of the Respondent organisation. It is the Respondent’s contention that the Complainant became an independent contractor when she took up this new role. On 10 April 2019, the Complainant received a letter from the Respondent advising that her drama classes were being ceased from 3 May 2019. The Complainant brought a claim for redundancy payment under the Acts to the Workplace Relations Commission. The claim was upheld by the Adjudication Officer. The Respondent appealed to this Court. Summary of Respondent arguments The Complainant has not been an employee of the Respondent since taking up her teaching role in May 2002. She submitted invoices for her work to the Respondent, she arranged her own tax affairs as a self-employed taxpayer, arranged her annual leave with service users and not the Respondent and had the ability to cancel and backfill hours. She also had to have her own equipment and set her own role responsibilities. The Respondent terminated the Complainant’s services due to the cessation of externally sourced drama classes. The Complainant has not been included on any of the company’s HR systems, including payroll since September 2001. In the intervening period, the Complainant never queried her status. All employees of the company are covered under the company’s insurance. The Complainant was required to have her own insurance. The Complainant was not required to comply with the employee absentee policy and no sick pay was paid in respect of sick leave nor was it ever requested. The Complainant only ever billed the Respondent for actual hours worked. Billable time documents reflect work done in any given month and are not standard amounts. Hours to be worked were negotiated prior to the work year. It is believed that the Complainant undertook other work of a similar nature with other organisations. It was up to the Complainant to ensure that there was not a conflict of hours of work. The service users contributed to the services provided by the Complainant by payment of a fee. The Respondent has many other independent contractors providing services on similar arrangements to those of the Complainant. With reference to the case of Henry Denny and Sons (Ireland) Ltd. v.Minister for Social Welfare (1998) 1 IR34 and the tests set out by Keane J. in the case, the Respondent did not control the manner and method by which the Complainant conducted her business; she provided her own investment and equipment; the Respondent had no objection to the engagement of others in the utilisation of the Complainant’s business and it is clear that she profited significantly from her operation of the business. None of the terms to determine if an individual is an employee in the relevant Code of Practice are applicable to the Complainant. s.5.1 of the Acts,( believed to refer to s.4.1) makes clear that they cover only employees in insurable employment. This was not the case with the Complainant. Summary of Complainant arguments When the Complainant took on her new role, there was never any discussion about a change in her status. When she received her first payment, she queried the amount and was told that it was an overall package that included her holidays but that the Respondent would cover her insurance. She was never advised to take legal advice. The Complainant’s hours were set by the Respondent and class content was also set by the Respondent in consultation with the Complainant. The services were run in semesters and the Complainant always took her leave during periods of closure. She had to ask for time off and any change in hours had to be approved by managers. The Complainant did not provide equipment. This was provided to the Respondent by a company called Recreate. The Complainant did not charge fees to service users. The Respondent carried all insurance. The Complainant believed herself to be an employee and was treated as such. When the Complainant realised that she had to pay income tax on her earnings she thought that this was part of the arrangement to make sure she had good earnings. When the Respondent branched out, the Complainant was given no choice but to expand her work with them. The Complainant expanded her skills and began inputting into different aspects of the Respondent’s work. In this regard, she was asked to develop the QQI level 1 course in drama. Her expanded workload was subject to timetables set by managers. There is no clear test to determine the question of contract of service or one for services, it is dependent on particular facts. However, a critical question is whether the individual is in business on her own account and has an opportunity to make a profit or gain by the manner in which the work is executed, see the case of Market Investigations v. Minister for Social Welfare (1969) 2QB 173. As a teacher, the Complainant’s hours were fixed by the Respondent. She had to inform her employer if she was sick. The Respondent provided equipment and the Complainant had no opportunity to profit or gain by the manner in which she executed her work, see Autoclenz v. Belcher and ors. (2011) 1 ICR 1157. The Complainant did not provide premises or other investment. She was never asked to provide her own insurance. She never employed sub contractors and would have had real difficulties in doing so due to the need for Garda vetting. The Complainant played a full part in the company’s activities, including attendance at Christmas parties. She had a staff access card and parking. She had an email address on the Respondent’s system and an office telephone. The Respondent has little or no documentary evidence to support their assertions. The applicable law Redundancy Payments Acts 1967-2014 Classes of persons to which this Act applies. 4.— (1) Subject to this section and to section 47, this Act applies to —
At the very least, it can be said that the arrangements between the parties in this case were very loose. There is no formal contract at all of any type. There is even a dispute between the parties as to which of them was responsible for insurance cover, which, given the nature of the Respondent’s business, is quite an extraordinary situation. It would suggest that, whatever about her employment status, the Complainant may not have had the necessary insurance while carrying out her duties. The issue for the Court is to determine, in the absence of the sort of documentation that might reasonably be expected to exist, if the Complainant’s status was that of an employee in insurable employment as required by s. 4 (1) of the Acts, in order that she might qualify for a payment under the Acts. Many of the tests that might be applied ordinarily to determine if the Complainant was engaged on an employee’s contract, (a contract of service), or as an independent contractor, (a contract for services), are themselves the subject of dispute between the parties. It is disputed as to whether the Complainant was under the control of the Respondent; it is disputed as to whether she supplied her own materials; whether she was free to sub contract work; whether she was free to contract with others; whether she worked set hours; whether she was at personal financial risk. These tests were developed as the result of previous case law, some of which was argued to the Court. However, in the absence of clear documentary proof, the tests are of no great value to the Court in assessing the Complainant’s status, in circumstances where the parties contest each other’s assertions. Therefore, the Court has to look to other indicators, none of which, on their own, might be regarded as decisive. The absence of clarity regarding the Complainant’s insurance is a possible indicator in favour of her argument. It might reasonably be expected that the Respondent would require an annual assurance, backed up with documentary proof, that any independent contractor working for them had taken out all the insurances necessary. That the Respondent did not do so might be explicable if the Complainant was covered under their insurance or at least assumed to be so. Likewise, the inclusion of the Complainant on the Respondent’s email and the provision of a work telephone would appear to favour her position. However, the Complainant not only made her own tax declarations, she was classified as ‘self employed’ for both tax and social welfare purposes. Also, she invoiced the Respondent for her services and she was not paid the same amount on a weekly or monthly basis, payments to her were based on hours worked. In addition, the Complainant was not on the Respondent’s payroll system and was not paid for sick leave or annual leave, both of which are payable to employees. The Complainant was not in the Respondent’s pension scheme. After working for the Respondent for so many years, no doubt the Complainant believes herself to have been treated callously. However, that is not a matter on which the Court can provide either comfort or assistance. The Court has to make a judgement on the balance of probability as to the Complainant’s status. The Court is satisfied that the weight of available evidence points to the Complainant having been an independent contractor since taking up the teaching role with the Respondent. As a consequence, the Court cannot determine that she is entitled to a redundancy payment and the claim must fail. The decision of the Adjudication Officer is overturned.
NOTE Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary. |
