Complainant

Respondent

Anonymised Parties

Photographer

Media Organisation

Representatives

Cathy McGrady BL instructed by Denis McSweeney Solicitors

John Doyle Solicitor of Dillon Eustace Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00034880-001

27/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00034880-002

27/02/2020

The complainant is a photographer. He commenced work with the respondent in October 2003. He was paid a daily rate of €260, upon submission of invoices. In 2009 the respondent informed the complainant that future invoices would have to be submitted through a limited company.   The complainant set up a limited company as required and effective 01 January 2010 he submitted his invoices to the respondent through the limited company. I will refer to this company as the XYZ company. In July 2019 the complainant was informed of a proposed reduction in working hours, effective 30 September 2019. The contract between the limited company XYZ and the respondent was terminated by the respondent. The complainant claims he was unfairly dismissed from employment or in the alternative dismissed by reason of redundancy. The respondent submits there was no contract of service (relationship of employer/employee) between the complainant and the respondent and therefore the Workplace Relations Commission has no jurisdiction to hear these claims.

The complainant started working for the respondent in October 2003 as a press photographer. He was paid a daily rate upon submission of invoices.

In 2009 the complainant, and some other photographers, were instructed to set up limited companies for the purpose of submitting their invoices through the said companies.   Although they objected to this proposed arrangement they eventually agreed as they were informed that they would lose their jobs if they did not comply.

The complainant and four of his colleagues established individual limited liability companies.   Effective 01 January 2010 the complainant submitted his invoices through the XYZ limited company. He was paid an additional €10 per day, purportedly towards the costs associated with operating the company.

In or around 2013 the respondent began trading under a new business name.

In March / April 2019 some staff of the respondent were offered a voluntary redundancy scheme.   The redundancy payment offered was statutory entitlement plus four weeks’ pay per year of service. This voluntary redundancy scheme was not offered to the complainant.

In July 2019 the complainant was advised by the Group Editor of the respondent that his hours of work would be reduced by 45% effective from 30 September 2019. The complainant objected to this reduction but agreed to consider the matter and revert. However, at a meeting with the Group Editor and by letter of 27 September 2019 the complainant was advised that the contract with the limited liability company would be terminated with immediate effect. When the complainant took issue with the termination of the contract he was told he was not an employee.

Employment Status

The complainant submits that he was an employee of the respondent. He accepts that he established a limited company through which he submitted his invoices for payment and that he looked after his own tax affairs. However, he claims that the requirement to set up a limited company, the method and rate of payment and the written agreement between the parties were imposed upon him by the respondent. The complainant states that he was informed in 2009 that if he did not comply and set up a limited company he would lose his job.

The complainant was required to establish a limited company and enter into an agreement that did not reflect the reality of the relationship between the parties.

The complainant was not a free-lance photographer. He did not sell his photographs to the respondent. The complainant was paid a daily rate of €260 and an allowance for working away from home of €110. He was also paid for evening overtime. His annual earnings were approximately €65,095.00. He was paid expenses for meals, mileage, parking, accommodation and his phone bill was paid. When travelling his flights and accommodation were generally booked by the respondent.

The complainant was required to carry out personal services for the respondent and he was not entitled to substitute another photographer for himself. His work and that of other photographers was closely co-ordinated and rostered by the respondent. The respondent was the complainant’s sole employer. The complainant was not able to work for any other employer due to the hours he worked for the respondent.   He worked Monday to Friday and every second Sunday for the respondent.

The complainant’s work was controlled by the picture desk and the news desk of the respondent.   He received a Sunday roster and was directed on a daily or weekly basis to cover stories or events as required by the respondent its servants or agents. In 2012 he was required to spend 69 days abroad. All the costs of that trip, flights, accommodation, meals and telephone costs were paid by the respondent. In addition, he was paid €130 per day for working away from home.

The complainant was at times identified as a photographer of the respondent’s publication.

The complainant was required to retain all photographs for the respondent’s use and these were stored on the respondent’s system. The complainant states that the respondent syndicates the photographs and profited therefrom. The complainant was not paid for such use of his photographs. The complainant states that the respondent used some of his photographs after his employment was terminated.

The complainant supplied his own camera equipment, but other equipment was supplied by the respondent. The respondent supplied a drone and required the complainant to attend a two-day drone safety course, which was paid for by the respondent.

Holidays had to be requested in advance from the picture editor. In May 2015 and July 2017, the complainant was given paid paternity leave.   The complainant did not have an office at the respondent’s premises, but he frequently attended at the premises and used the photography studio. He had an access code for the premises and he was forwarded staff e-mails by the picture desk. The complainant was included in staff events.

The respondent never requested the complainant to provide insurance cover.

Legal Submission

The complainant submits that the totality of the relationship between the parties and the characteristics of the complainant’s employment overwhelmingly demonstrates that the he was employed on a contract of service. Therefore, as an employee is entitled to maintain these claims.

The complainant relies on the decision in In Re Sunday Tribune [1984] IR 505 to support the submission that the deduction of PAYE is not a determining factor of employment status. Further that the realities of the situation must be looked at to determine whether the relationship of employer and employee in fact exists. It was submitted that applying the control test the complainant establishes his status as an employee on a contract of service.

It is submitted that there are several well-established tests applied in determining the distinction between a contract of service and a contract for service. The complainant relies on the decision of the Labour Court in Western People Newspaper v A Worker EDA047 in which the Court considered the following tests, mutuality of obligation, control of the work, integration of the person as part of the business, entrepreneurial, and the method of payment. The complainant submits that applying these tests to the facts of this case can only lead to the conclusion that the complainant was employed by the respondent on a contract of service.

The complainant also relied on the following decision, Dublin Bus Ghost Bus v Mills UDD1634, Hassett v Udaras Na Gaeltachta UD659/2012. It is submitted that in applying the case law to the facts as presented, including the respondent’s control over the complainant’s work, the respondent’s use of the photographs taken by the complainant, the hours of work, the requirement for personal service and integration with the company, there can be no question but that there was mutuality of obligation and that the complainant was an employee of the respondent.

Unfair Dismissal

The complainant submits that he has established that he was employed by the respondent on a contract of service. He claims that he was unfairly dismissed from his employment as his employment was terminated without good reason and without any process or procedure. The conduct of the respondent was entirely unreasonable. It is for the respondent to prove that the dismissal was not an unfair dismissal.  

If, which is not accepted, the complainant’s dismissal arose by reason of redundancy, the complainant relies upon Section 6(3) of the Unfair Dismissals Act and submits that the respondent had in place an established redundancy procedure. It is submitted that the complainant was dismissed contrary to this procedure.

Redundancy Payments Acts

Without prejudice to the complainant’s claim under the Unfair Dismissals Acts, if it is held that the complainant was fairly dismissed by reason of redundancy, which is denied, he is entitled to a redundancy payment, which was denied to him.

Summary

It is submitted that the complainant was employed by the respondent on a contract of service.   He was required by the respondent to establish a limited liability company to give the appearance of being an independent contractor. The relationship between the parties was that of employee and employer.

Further, the complainant was unfairly dismissed on 27 September 2019 when his employment was terminated without any process or procedure. The conduct of the respondent was entirely unreasonable.

Without prejudice and in the alternative to the forgoing, if the complainant was dismissed by reason of redundancy he is entitled to a redundancy payment.

The respondent submits that there was no contract of service between the complainant and the respondent and therefore the Workplace Relations Commission has no jurisdiction to hear the claims of the complainant.

Without prejudice to the above submission the respondent submitted the following:

The respondent had a contractual relationship with a corporate entity (named) XYZ by virtue of a consultancy agreement, dated 01 January 2010. The complainant was not dismissed by the respondent, either unfairly, by reason of redundancy or at all. The respondent terminated the consultancy agreement in accordance with the terms of the agreement. As the respondent was not the complainant’s employer it is not the appropriate respondent.

The complainant was not an employee of the respondent and therefore did not have terms and conditions which are typically given to the respondent’s employees. He was not entitled to any benefit under nor was he subject to the terms of the respondent’s employee handbook. The complainant did not have an employee e-mail address and he was not included on the “all staff” e-mail communication list.  

The complainant did not get sick leave or annual leave. He did not have a security pass to access the respondent’s premises.

The respondent has no knowledge of any other work carried out by the complainant for other parties or on his own personal account through the limited liability company XYZ.   The complainant was free to carry out other work so long as that did not conflict with work done for the respondent.

The limited company XYZ invoiced the respondent for its services and charged VAT at 23%. As the complainant was not an employee the respondent does not have payslips for him. The respondent has no knowledge of the terms and conditions of employment of the complainant with the limited company XYZ.

The limited company XYZ retained the copyright and other intellectual property rights in all the material (i.e. photographs) supplied by it to the respondent. The respondent was merely licenced by the limited company to use the photographs.   The limited company XYZ agreed not to sell the photographs supplied to the respondent to a third party without obtaining the respondent’s permission, for the duration of the contract. The respondent could not unreasonably withhold permission under the terms of the agreement.

The limited company ZYX or the complainant supplied all the photographic equipment required.   They did not avail of any studio premises or materials or resources of the respondent. The limited company XYZ was required to provide the respondent with any insurance considered necessary by the respondent to facilitate the provision of the photography services.

Other than the work performed for the respondent, the limited company XYZ or the complainant had the potential to earn income from other photographic activities, about which the respondent has no information.

The complainant was not an employee of the respondent. The consultancy agreement dates from 2010 and the complainant never, before 2019 asserted that he was an employee.

CA-00034880-001

Claim under Section 8 of the Unfair Dismissals Act, 1977.

Respondent

The solicitor for the respondent presented a submission and a copy of a consultancy agreement made on 01 January 2010 was provided. He referred to clause 5 of the agreement which states that the relationship between the consultant (limited company XYZ) and the company (respondent) is that of a contract for services. Further, nothing in the agreement shall render the consultant (limited company), the individual (complainant), or any other individual employed or engaged by the consultant, an employee, agent or partner of the company.   The agreement was not with the complainant in this case but rather was between the limited company XYZ and the respondent. Therefore, the complainant was not an employee of the respondent.

He referred to clause 10 of the agreement which covers Copyright/Intellectual Property Rights and noted that the copyright and intellectual property rights in all the material supplied by the consultant company XYZ remained vested in the XYZ company.

He stated that the complainant had not asserted that he was an employee of the respondent prior to 2019, the time when the consultancy agreement was terminated. Earlier that year, 2019, the respondent had to implement a redundancy programme. The complainant did not at that time claim to be an employee and did not apply for redundancy.

The solicitor for the respondent also noted that it was an express term of the agreement that the complainant was free to work for others. The agreement provided that all invoices from the limited company XYZ would include VAT at the current rate. The respondent had no knowledge of the complainant’s arrangement with Revenue, but payment was made by the respondent to the limited company XYZ on foot of their invoices.

The said agreement was terminated by giving three months’ notice, as provided for in clause 11 of the agreement. It was the termination of a commercial contract for services.

Complainant

Counsel for the complainant presented a submission. She stated that the facts were in dispute and that while there was a limited company established by the complainant in 2010 it was had been established on the instruction of the respondent. Between 2003 and 2009 the complainant had submitted invoices for his work. In late 2009 the then Managing Director of the respondent had instructed him to set up a limited company for the purpose of submitting future invoices. While he, and other photographers, had objected to this arrangement they were told that they would lose their jobs if they did not comply.

Counsel noted that photographs taken by the complainant had been used by the respondent after September 2019. This indicated that the complainant did not own the copyright in the photographs.   Some equipment had been provided by the respondent and studio space had been provided. The respondent had also paid for the complainant to attend a course on the safe use of drones.

Counsel further noted that the complainant had received payment while on sick leave and holidays.   She submitted that the facts supported that the complainant was engaged as an employee and he was not in business on his own account.

Counsel, relying on the cases set out in her written submission, submitted that the complainant was at all times an employee until he was unfairly dismissed on 27 September 2019, or alternatively was dismissed by reason of redundancy on that date.

Complainant’s Evidence

The complainant gave evidence. He stated that he commenced working as a photographer for the respondent in 2003.   He did work for the picture and news desk and the fashion editor. Several photographers did similar work. He submitted invoices for his work and was paid a daily rate.

He stated that in late 2009 he and the other photographers were told by the Managing Director that they were to set up limited companies and if they submitted invoices that were not from a limited company they would not get paid. They objected to the proposed arrangement, but they did eventually comply, and each set up a company. He set up the limited company XYZ which was party to the consultancy agreement with the respondent effective 01 January 2010.

He stated that he worked Monday to Friday each week for the respondent and was paid a daily rate of €260.00. He also worked on several Sundays throughout the year. He was required to do all the work himself. He had worked outside the country for the respondent for a total of 69 days in 2012 on one assignment. All his expenses, accommodation, and flights had been paid for and arranged by the respondent.

He stated that he had been paid paternity leave in 2015 and 2017 following the birth of his children.   He had been paid while on sick leave in 2004 and was paid double for Christmas day. He had attended training courses which were paid for by the respondent. He had been included in social events arranged by the respondent.

In July 2019 the Group Editor told him that his hours of work were to be cut by 45% from 30 September 2019. He did not accept this but agreed to consider the matter. On 27 September 2019 the Group Editor gave him a letter terminating the agreement with the limited company XYZ with immediate effect.  

In response to questions from the solicitor for the respondent the complainant confirmed that the paternity leave periods in 2015 and 2017 were invoiced as photographic services. He stated that the picture desk had arranged for him to have the time off.

In response to a question about the consultancy agreement the complainant stated that it had been drafted by the company and he felt forced to sign it as otherwise he would have lost his job. The agreement, he understood, was for tax purposes, but he did not know what the advantage to the company was. This had changed a lot for him and involved extra cost as he had to set up the company and use an accountant to do tax returns. However, his day to day work as a photographer for the respondent had not changed. He stated that he had to agree to set up the company as otherwise he would have lost his job in 2009 and he was never going to be staff. He had no choice. He stated his sole income was from the respondent.

Since he lost his work with the respondent he has now established himself as a freelance photographer. The complainant stated that because of losing his employment he had to move out of Dublin, let his house and establish himself in his home county.   A statement of loss was submitted.   This document included copies of letters from Revenue in respect of the tax years ending 31 December 2017 and 2018. In response to questions the complainant agreed that the amount of income or profits shown in the letters was the same for each year.

Summary

Counsel for the complainant submitted that the reality was the complainant was an employee who had been unfairly dismissed. There had been no fair procedure prior to his dismissal. In the alternative, he was dismissed by reason of redundancy and if a redundancy situation existed, the complainant as an employee was entitled to a fair selection process, statutory redundancy and the applicable ex-gratia provided to other employees.

The solicitor for the respondent submitted the complainant was not an employee. There was a commercial agreement between limited company XYZ and the respondent which was terminated in line with clause 11 of the said agreement. The limited was paid in full for the notice period of three months.

Finding

The Unfair Dismissals Act, 1977 at Section 6 provides:

6.— (1) 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.

To have the protection of the Act a complainant must be an employee. The Act at Section 1 defines an employee as follows:

“employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and, in relation to redress for a dismissal under this Act, includes, in the case of the death of the employee concerned at any time following the dismissal, his personal representative;

Contract of employment is defined in Section 1 of the Act as follows:

“contract of employment” means a contract of service or of apprenticeship, whether

it is express or implied and (if it is express) whether it is oral or in writing

The respondent has submitted that there was no contract of service between the complainant and the respondent and consequently the Workplace Relations Commission has no jurisdiction to hear this claim. I must decide if the complainant was an employee who worked for the respondent under a contract of employment, as defined in the Act.

Counsel for the complainant accepted that the complainant had, in 2010, established a limited company through which he submitted his invoices for payment and that he looked after his own tax affairs. However, she submitted the requirement to set up a limited company, the rate of payment and the written agreement between the parties was imposed upon the complainant by the respondent.

Counsel for the complainant relied on the cases, set out above, to support the claim that the complainant was an employee of the respondent. The Labour Court decision in Western People Newspaper v A Worker EDA047 was relied upon as encompassing all the relevant tests utilised in deciding the difference between a contract of service and a contract for service. The following paragraph from that decision was quoted:

“The process of determining if a person works under a contract of employment or is self-employed must be approached in two stages. The first stage requires the Court to decide if the alleged employer is contractually obliged to provide the person claiming to be an employee with work which that person is then required to perform. This mutuality of obligations has often been referred to as the irreducible minimum requirement which must be present before a contract of employment can be held to exist.”

Mutuality of Obligation

Therefore, I must consider if there was mutuality of obligation between the complainant and the respondent. For a contract of service to exist there must be a mutual obligation on the employer to provide work for the employee and on the employee to perform work for the employer. It was accepted that the complainant established a limited company through which invoices for payment were submitted. A copy of the consultancy agreement was provided to me.   It is an agreement between the respondent, then trading under a different name, and a limited company.   The limited company is the company XYZ established by the complainant.

The consultancy agreement provides that “the Company” (respondent) wishes to engage “the Consultant” (limited company XZY) to provide an individual to provide services in relation to photography requirements and “the Consultant” agreed to accept the engagement on the terms set out. The individual named in Schedule 3 of the agreement is the complainant. There was no other individual named in Schedule 3, so the complainant was the only person providing a service on behalf of the XYZ company. The services to be provided are set out in Schedule 1 of the agreement and are “Provision of photographic services as and when requested by the Photographic Editor.” There are no details of hours or days to be provided set out in the agreement. The service to be provided was to be “as and when requested by the Photographic Editor”. On the evidence of the complainant, which was not disputed by the respondent, the complainant worked Monday to Friday most weeks and every second Sunday.   However, this is an agreement between the respondent and the limited company XYZ which does not specify anything other than an “as and when requested” service.

I note the following from the decision of Edwards J in Barry & Others v Minister for Agriculture [2011] IEHC 43 commenting on the mutuality of obligation test: “The requirement of mutuality of obligation is the requirement that there must mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer. If such mutuality is not present, then either there is no contract at all or whatever contract there is must be a contract for services or something else, but not a contract of service.” This use of the mutuality of obligation test was further considered in McKayed v Forbidden City Limited, trading as Translations.ie [2016] IEHC 722. I note the following from Redmond on Dismissal Law at paragraph 3.24 “Ni Raifeartaigh J engaged in a detailed analysis of the case law on point and concluded that the use of the mutuality of obligation as a fundamental requirement for the existence of a contract of service was established as a matter of Irish law.”

I find, on the balance of probabilities, that there was no mutuality of obligation between the complainant and the respondent and that the consultancy agreement was a commercial contract between the respondent and the limited company XYZ. This case may be distinguished from the cases relied on as here the complainant agreed to set up a limited company that would provide services to the respondent on specific terms. Although there are elements of the working arrangements that are consistent with there being an employer/employee relationship, such as the complainant being the only individual named in Schedule 3 of the consultancy agreement, that does not convert the legal commercial agreement between the respondent and a limited company from a contract for service into a contract of service between the complainant and the respondent.

However, I will examine the totality of the relationship between the parties and consider the evidence under the series of tests as set out in previous court cases that have dealt with the issue of contract of service or contract for service. The said tests are detailed in Western People Newspaper v A Worker EDA047 relied on by counsel for the complainant.  

Control

One of the earliest tests used was the control test, arising from the relationship of master and servant and applied in Minister for Industry and Commerce v Healy [1941] IR 545. This test has reduced in significance over time as employer/employee relationships have developed. In Roche v Kelly [1969] IR 100 Walsh J held “It is the right to control the work rather than the actual exercise of that right that matters. Ordinarily, the greater level of skill required for the performance of the work in question, the less significant is control in determining whether the person performing the work is an employee.” In this case the complainant is a skilled photographer. He received direction from the photographic editor about what stories / events were to be covered but how he actually carried out the assignments and the photographs he submitted were a matter of his skill, experience and initiative in performing his work. The complainant was not required to attend the respondent’s premises to carry out his assignments, although he did so on a regular basis. He did not have an office or assigned work space at the respondent’s premises. While the respondent, through its Photographic Editor exercised some control over the duties assigned to the complainant I am satisfied that this is not conclusive evidence of the complainant being employed on a contract of service.

Integration

This test was used in Re Sunday Tribune Ltd. [1984] IR 505 in considering if the work performed was an integral part of the business, or whether it was only an accessory to the business. In that case Carroll J held that the core business of the respondent was the production of a newspaper and the preparation and production of a regular column by the complainant could not be said to constitute an activity ancillary to the main business of the respondent. The complainant here provided photographs of stories / events as directed by the Photographic Editor and he usually worked Monday to Friday. Other photographers carried out similar work for the respondent. Under the terms of the consultancy agreement between the respondent and the XYZ company the complainant was free to carry out other work. Photographs are part of the publications produced by the respondent and they obtained those photographs from several sources. While I am satisfied that there was a long-established working relationship between the complainant and the respondent I am not satisfied that determines there was an employee/employer relationship.

Entrepreneurial Test

This test is intended to assist in deciding if a person is in business on their own account. The complainant acknowledged that he established a limited company in 2010.   He states that he was required to do so by the respondent and to enter into a consultancy agreement that did not reflect the reality of the relationship between the parties.

While contractual documentation that is not consistent with the day-to-day reality of the working relationship cannot determine the employment status, such documents need careful consideration.   I note the decision of Moriarty J in Murphy v Grand Circle Travel [2014] IEHC 337 where he held that the complainant, who was now claiming to be employed on a contract of service, was aware of the nature of the engagement to which she was signifying her commitment when she entered into an “Independent Contractor’s Agreement”. The complainant here acknowledges he established a limited company. The consultancy agreement between the limited company and the respondent operated for nine years without change. During that time the complainant claims that he received paid sick leave and parental leave. However, under cross examination the complainant accepted that the invoices supplied to the respondent by the limited company did not indicate that they were for either sick leave or parental leave. I am satisfied that the respondent did not grant parental leave, which is a statutory entitlement for employees, to the complainant.

I note that e-mail correspondence from the respondent was sent to the complainant’s company e-mail (nameltd@gmail.com) and not to a personal e-mail or an e-mail provided for staff by the respondent.   The complainant was not issued with a staff number, identity/access card, was not on the respondent’s payroll and there were no employee records maintained by the respondent. Payments for services and photographs were made on foot of invoices from the limited company ZYX to the respondent.

The consultancy agreement between the limited company XYZ and the respondent specifically provides for the payment of expenses reasonably incurred in the provision of the services provided. The consultancy agreement also provides that the copyright and other intellectual property rights in all material supplied by the limited company will remain vested in the limited company. During the period the contract was in existence the limited company granted a licence to the respondent to use the said material.   The complainant claims that the respondent has used some material without permission. The respondent acknowledged this happened on a small number of occasions following the termination of the consultancy agreement but that this was an error which was corrected.

The complainant supplied his own camera equipment. He was sent on a drone safety course, paid for by the respondent, and he did use a drone supplied by the respondent from time to time. However, most of the equipment used by the complainant on a regular basis was supplied by him.

Under cross examination the complainant acknowledged that he agreed to establish a limited company as he knew he was never going to be staff. I am satisfied, on the balance of probabilities, that the complainant was fully aware when he agreed to establish the limited company that he was not entering into a contract of service and that he was in business on his own account.

Tax and VAT

The complainant used an accountant to manage the tax and VAT affairs of his limited company. Invoices for the services provided were submitted to the respondent.   While it is well established that a complainant’s tax status may not be the determining factor in deciding if an employer/employee relationship exists, see Henry Denny & Sons (Ireland) Ltd. V Minister for Social Welfare [1998] 1 IR 34and Re Sunday Tribune [1984] IR 505, the statement of loss submitted by the complainant is relevant. From that document I note that the complainant’s income declared to the Revenue was the same in the tax year 2017 and 2018.   The invoices issued by the XYZ company to the respondent varied each year as they included claims for payment for overtime. I am satisfied, based on the documents submitted, that the complainant was paid a fixed amount each year from the limited company he set up in 2010. This indicates that the complainant was in business on his own account and was not an employee of the respondent.

Conclusion

Having carefully considered the submissions, the evidence presented at the hearing, the legal authorities relied upon and the totality of the relationship between the complainant and the respondent, I find, on the balance of probabilities, that the complainant was not an employee who worked under a contract of employment. There was a commercial contract for services between the respondent and a limited company and that cannot be ignored or converted into another type of contract. As there was no contract of employment between the complainant and the respondent I do not have jurisdiction to hear a claim under the Unfair Dismissals Act, 1977.

CA-00034880-002

Claim under Section 39 of the Redundancy Payments Act, 1967.

Section 4 of the Act provides:

4.—F13[(1) Subject to this section and to section 47, this Act applies to—

(a) employees employed in employment which is insurable for all benefits under

the Social Welfare Consolidation Act 2005,

Employee is defined in Section 1 as:

‘employee’ means a person of 16 years and upwards who has entered into or works

under (or, where the employment has ceased, entered into or worked under) a contract

of employment…

Contract of employment is defined in Section 1 as:

‘contract of employment’ means—

(a) a contract of service or apprenticeship, and

(b) ...

The complainant’s claim under the Redundancy Payments Act was brought without prejudice to his claim under the Unfair Dismissals Act, in the event it was held that he was fairly dismissed by reason of redundancy.   For the reasons set out above in complaint CA-00034880-001 I am satisfied that the complainant was not an employee of the respondent working under a contract of employment and therefore I do not have jurisdiction to hear this complaint.

CA-00034880-001 Claim under Section 8 of the Unfair Dismissals Act, 1977 - 2015.

Having carefully considered the submissions, the evidence presented at the hearing, the legal authorities relied upon and the totality of the relationship between the complainant and the respondent, I find, on the balance of probabilities, that the complainant was not an employee who worked under a contract of employment. There was a commercial contract for service between the respondent and a limited company and that cannot be ignored or converted into another type of contract. As there was no contract of employment between the complainant and the respondent I do not have jurisdiction to hear a claim under the Unfair Dismissals Act, 1977.

CA-00034880-002 Claim under Section 39 of the Redundancy Payments Act, 1967- 2012.

I find, on the balance of probabilities, that the complainant was not an employee who worked under a contract of employment. As there was no contract of employment between the complainant and the respondent I do not have jurisdiction to hear a claim under the Redundancy Payments Act.

Contract of Employment

Contract of Service

Contract for Service

Unfair Dismissal

Redundancy