ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00027423
Parties:
| Complainant | Respondent |
Anonymised Parties | A Trainer | A Training Company |
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Representatives | Self-Represented | Director |
Complaints:
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-00035075-001 | 05/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00035075-002 | 05/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00035075-003 | 05/03/2020 |
Date of Adjudication Hearing: 18/12/2020
Workplace Relations Commission Adjudication Officer: Úna Glazier-Farmer
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
It is the Complainant’s case that he was employed by the Respondent who failed to provide him with a contract of employment and unfairly dismissed him without notice. The Complainant commenced with the Respondent 11 February 2018.
The complaint was received on 5 March 2020 with the date of dismissal being 23 November 2019.
The parties confirmed that the rate of pay was €200 per session. He has gained alternative employment since the date of dismissal.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
Both parties were given amble opportunity to set out their case and ask questions of each other at the hearing. |
Summary of Complainant’s Case:
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00035075-001 It is the Complainant’s case that he was not provided with a contract of employment or any statement of employment from the Respondent. Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00035075-002 The Complainant outlined a number of events which took place between April 2018 and November 2019 which included complaints about the manner in which the Complainant taught, the style of teaching, the number and time of break times students received. moving training location, mileage requests, processing of certificates for attendees including a question over whether a student had attended his session or not. The Complainant was instructed by the Respondent to attend particular training sessions on 18 April 2018 to “see how training should be delivered.” The Complainant stated that the Respondent ‘s Director never called him to discuss his work or any issues. The emails were submitted in evidence. He stated there was no privacy with other colleagues having visibility over availability with emails openly exchanged. At the hearing the Complainant confirmed he used his own laptop but was provided with a projector by the Respondent together with training manuals. The hotel rooms where the training was held was organised and paid for by the Respondent. He confirmed he never received payslips or invoice references even after requested to allow him to manage his accounts. He confirmed he did not receive PRSI contributions, no enhanced payment for Sunday work. He states that the Director of the Respondent clearly outlined that he had to give a commitment of 3 days availability per week to the company. An email of 23 November 2019 was presented by the Complainant wherein the Respondent’s Director stating the following: “Unfortunately it has come to our attention that you are delivering Driver CPC Training for [Competitor] and and (sic) you are encouraging other [Respondent Company] trainers to train for [Competitor]. There have also been a preponderance of issues with your training and with our office. Therefore we can no longer offer you training days with our company. We are extremely disappointed with this situation as we have invested a lot of time and money in liaising with you (whilst you were based in [location]) to initially approve you with the [Authority] and we have constantly given you every support. Please drop your projector and any materials belonging to [Respondent] into the [location] and let us know when they are there” A further email was sent from the Respondent to the Complainant on 2 December 2019: - “despite numerous attempts by our company to contact you to return our property we have received no communication from you.” A further email on 12 December 2019 was sent to another company by the Respondent’s Director requesting that the Complainant return its “equipment and materials belonging to our company” The Complainant stated the Director of the Respondent has called other companies to complain about him after the Respondent received notification of this WRC claim. An email was sent from 27 May 2019 from the Director of the Respondent to the Complainant enclosing an audit of his delivery of the course, method of delivery, training facilities’, etc. The audit was carried out by a third party on behalf of the Respondent. He states the lack of work has had an impact on himself and his family and he felt bullied and harassed. He further stated that the Respondent’s Director called other training companies to advise that the Complainant had taken this case, and this effected his work and his reputation. The Complainant provided emails to support his submission. Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00035075-003 The Complainant submitted that he was not provided with notice of the termination of his employment by the Respondent. |
Summary of Respondent’s Case:
It is noted that the Respondent sent a large volume of emails containing allegations and assertions that are not relevant to the complaints before me. Consequently, they have not been considered as part of this decision. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00035075-001 It is the Respondent’s case that as the Complainant was not an employee it was therefore, not obliged to provide a contract of employment to him. No such contracts were provided to any of its trainers as it did not have any such employees. Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00035075-002 It was submitted on behalf of the Respondent that all Trainers had contract for services and therefore, were self-employed and as was the Complainant. Consequently, he could not be dismissed under the Unfair Dismissals legislation. A copy of the regulatory handbook was presented which the Respondent submitted clearly states that all Trainers in this area are self-employed. It was submitted that the Complainant was at all times aware of this having received a copy of the handbook from itself and the Authority. The Complainant invoiced the Respondent and he was paid via credit transfer. It was submitted that he looked after his own tax affairs including offsetting any expenses. The Respondent submitted that he was not paid for annual leave. Copies of invoices were submitted as evidence. The Respondent stated the Complainant communicated his availability to deliver training to the Respondent to which email evidence was presented. He did accept upon investigation that he organised training for the Trainers occasional. Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00035075-003 It is the Respondent’s case that as the Complainant was not an employee it was therefore, not obliged to give him notice of termination of his services. |
Findings and Conclusions:
Preliminary Issue – Contract for Services vs Contract of Services In order to properly assess the complaints before me it is first necessary to determine whether the Complainant was engaged in a contract for services or a contract of services as there is a dispute as to the evidence. My jurisdiction is limited to deciding such complaints should the Complainant be found to hold a contract of service, i.e. an employee. The burden of proof rests with the Complainant in such circumstances. In Brightwater Selection (Ireland) Ltd v Minister for Social and Family Affairs [2011] IEHC 510; Gilligan J. referring to the need for mutuality of obligation stated; “[m]utuality of obligation exists where there is an obligation on a body to provide work to an individual, and a corresponding obligation on the individual to perform the work”. The extent and degree of control was referred to by Walsh J in Roche v P. Kelly & Co Limited [1969] I.R. 100. “While many ingredients may be present in the relationship of master and servant, it is undoubtedly true that the principal one, and almost invariably the determining one, is the fact of the master’s right to direct the servant not merely as to what is to be done but as to how it is to be done. The fact that the master does not exercise that right, as distinct from possessing it, is of no weight if he has the right.” In Tierney v An Post [2000] I.R. 536 the Supreme Court discussed what has been referred to as the enterprise test. The test provides where an individual who performs his own duties as a person in his own right falls within the definition of a contract for services. The Court looked at whether the individual bears the financial risk, works from their own premises and whether he can profit from effective performance of the job. Denning L.J. in Stevenson Jordan and Harrison Ltd v MacDonald [1952] 1 T.L.R. 101 at 111 referred to integration as being a key concept: “One feature which seems to run through the instances is that, under a contract of service, a man is employed as part of the business and his work is done as an integral part of the business whereas under a contract for services, his work, although done for the business is not integrated into it but is only accessory to it.” This was reiterated by the High Court in In Re Sunday Tribune Ltd [1984] IR 505 where it identified the extent to which a person was integrated into the business as another factor to be considered. In Henry Denny & Sons (Ireland) Ltd t/a Kerry Foods v Minister for Social Welfare [1998] E.L.R. 36, the Supreme Court considered the difference between a contract of service and a contract for services. Meenan, Employment Law, Roundhall, 1st Ed. 2015 (Supplement)at 2-10 summaries the approach taken by the Keane J. where he “stated that “each case must be considered in the light of its particular facts”. He also considered “the extent and degree of control” but considered that this test did not always provide satisfactory guidance. Relying on Cooke J. in Market Investigations v Minister for Social Security, [1969] 2 Q.B. 173 at 184. Keane J. suggested that 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. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task. The assessment of this case must focus on how the arrangement operates in practice. Such an approach was reiterated as the correct approach by the Supreme Court in Castleisland Cattle Breeding Society Ltd –v- Minister for Social and Family Affairs (2004) 4 IR 50 when Geoghan J cited, with approval, the judgement of that Court in Denny. The following facts have been found: - · Both parties confirmed there was no written agreement or contract between the parties.
· The Respondent presented evidence of the official state authority handbook (2nd ed) which describes Trainers as being “self-employed”. Whereas in fact the handbook states under the heading at 2.1.2 CPC Trainer working hours: -
“The CPC Training Industry in Ireland consists mainly of self-employed trainers and small training organisations which employ trainers as staff or on contract. There are also some larger organisations, some of which provide in hours CPC Training, some of which serve the general market, and some of which do both.
Most CPC Trainers are self-employed and so, to an extent, they can choose the hours they work.”
· This cannot be accepted as conclusive as the Respondent engaged the Complainant and not the third-party official state authority. This handbook was presented to the Complainant at the outset of the relationship.
· The Complainant confirmed he did was responsible for his own tax affairs and furnished the Respondent with invoices which were discharged. Again, the Respondent provided evidence of these invoices which were not disputed by the Complainant. With the exception of the time on 17 April 2017, when he was asked to travel from Dublin to the Midlands, the Complainant stated he was responsible for his own travel expenses.
· The Complainant did not receive holiday pay from the Respondent.
· The Complainant was paid a set daily rate regardless of the class size with no opportunity to increase the daily rate.
· The Respondent took issue with the Complainant working for another company which resulted in the Complainant no longer been offered work from the Respondent as per email of 23 November 2019.
· The Respondent accepted in email of 23 November 2019 that it invested time and money in the Complainant and offered him constant support.
· There was no fixed place of work with training sessions being held around the country in hotels paid for and organised by the Respondent.
· The Respondent organised for students to attend the course, the Complainant had no input or investment into this.
· The Complainant did say that he used his own laptop but was provided with a projector, manuals and materials by the Respondent who repeatedly requested to be returned.
· The Complainant had to give a commitment of 3 days availability per week to the Respondent however the email evidence suggests that he was not always available for this number of days. There is also email evidence where the Respondent offers dates of work available to the Complainant.
· The Complainant did not dispute the evidence presented by the Respondent of his emails setting out his work availability and periods in which he was unavailable. The Respondent would assign work based on the Complainant’s availability. If he was unavailable the Respondent would assign it to another certified Trainer. The Complainant could not substitute a trainer. Trainers must be certificated by the official state authority.
· The Complainant did not have any control or input into the materials presented at the course, they were provided by the Respondent. The content of the training sessions was an approved syllabus assigned by the official state authority provided through the Respondent.
· The Complainant stated that he was disappointed in the breakdown in the relationship between him and the Respondent and it was expected he would have been treated better by it and this was the reason for submitting the complaints to the Workplace Relations Commission. Having carefully considered the fact of this particular case in light of the caselaw it can be concluded the nature of the master servant relationship as set out in Roche v P. Kelly & Co Limited and again in Denny. The Respondent had significant control over the students, classes, course location, syllabus, course materials and equipment and manner in which the Complainant was to deliver the course, when breaks were to be taken, the absence of a business in his own risk, financial risk or investment. The Complainant simply supplied the labour to Respondent. The Complainant was subject to the Respondent’s control in respect of the performance of the course as can be seen from the emails of April 2018 and the performance audit. The key point in this case is the email of 23 November 2019 where the Respondent’s Director made it very clear the reason the Complainant was not being offered any more work was due to his work with another course provider. Thereby the Respondent controlled who the Complainant worked and consequently, can be found to have been his employer for the purposes of the complaints before me. This is a case where the Respondent has sought deny the Complainant the protections and benefits of employment law by incorrectly classifying him as engaging in a contract for service. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00035075-001 The obligation on an employer to an employee to provide a statement is provided for in section 3 (1) of the Act as: - “An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing…” The Complainant was not provided with a contract of employment. Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00035075-002 The Complainant claims he was dismissed from his job. The Respondent’s submission was limited to the statement that the Complainant was not an employee and therefore, not entitled to redress for his complaints. The Complainant had the required 12 months of continuous services in order to benefit from the legislation, commencing employment on 11 February 2018 and it being terminated on 23 November 2019. Where an employee is found to have been dismissed from his employment there is an obligation on the employer to comply with the principles of natural justice to ensure that dismissal is procedurally fair and secondly that the reason for dismissal is fair as prescribed by s. 6 of the Unfair Dismissal Acts 1977- 2015: - “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.” Noonan J. in Bank of Ireland –v- O’Reilly [2015] 26 E.L.R. 229 held: “…the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned …. “. In the circumstances, where the Respondent terminated the Complainant’s employment by email dated 23 November 2019, I find that the Complainant was dismissed from his employment by the Respondent. The Respondent’s actions are entirely void of fair procedures. Furthermore, I find that there is no reasonable or justifiable reason for dismissing the Complainant nor were any of the principles of natural justice or the procedure laid out in the contract of employment followed. Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00035075-003 4.— (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section. (2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be— (a) if the employee has been in the continuous service of his employer for less than two years, one week, The Respondent’s submission was limited to the statement that the Complainant was not an employee and therefore, not entitled to redress for his complaints. The Complainant had a period of 21 months service. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
and
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00035075-001 Section 7 (2) (d) of the 1994 Act allows: “(d) order the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 4 weeks remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act, 1977” In the circumstances where no contract has been provided, I find the complaint is well founded. I award the Complainant €2,400 being four weeks wages based on three days a week in compensation for the breach of the 1994 Act. Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00035075-002 I find the Complainant was unfairly dismissed by the Respondent within the meaning of s. 6 of the Unfair Dismissal Acts 1977- 2015. Accordingly, I find his complaint is well founded and make an award in the sum of €3,600 being 6 weeks remuneration based on three days a week where the Complainant had sourced alternative employment and consequently, his financial loss was limited. Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00035075-003 I find that the Act was contravened. He is entitled to a period of one weeks’ notice which is based on three days per week amounting to a total of €600. |
Dated: April 22nd 2021
Workplace Relations Commission Adjudication Officer: Úna Glazier-Farmer
Key Words:
Unfairly dismissed – contract for services – contract of service – independent contractor – minimum notice – contract of employment – employee – jurisdiction |