Complainant

Respondent

Anonymised Parties

A Worker

A Third Level University

Representatives

Dermot G O'Donovan

Sinead Mullins

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00033232-001

18/12/2019

The complainant was engaged on a sessional basis by the respondent from January 1990 to a current date.She works 16 hours per week and earns €56.07 per hour.Arising from an investigation by SCOPE into the complainant’s employment status , it was determined that the claimant was an insurable employee from January 1990.Negotiations ensued on the provision of a contract of employment and a dispute arose in relation to the complainant’s rate of pay. The claimant is seeking to retain her sessional rate of €56.07 per hour while   the respondent is seeking to assimilate the claimant onto the public sector rate of pay of HSE Senior Physiotherapist scale   of €62.493(Max point) pa on a pro rata basis.This is unacceptable to the claimant as it involves a loss of €9,000 per year and she contends the respondent’s offer constitutes a breach of the Payment of Wages Act 1991.

In her complaint form the claimant submitted as follows :

I have worked in the student health centre in the university on a part time basis as a physiotherapist for the past 30 yrs.I was paid per hr {56.07} by submitting a monthly invoice for hours worked.

As of July 2019 on foot of a decision by scope I am deemed an insurable employee from 1990 to date. I returned to work in September and submitted an invoice for hours worked as per normal practice, this was rejected on the basis that I was now considered an insurable employee of the university and therefore not entitled to be issuing invoices to the university. I have not been paid to date for work done over the past 4 months. I have had a few meetings with Mr X from HR to try to sort out payment. His solution was to offer me a contract at a rate far below what I had been paid for the past 10 years .

Sept '18-May '19 salary€ 27,362.16 Sept'19-May '20 proposed salary inclusive of holidays€ 18,748. This is a drop of €9,000 or more excluding holiday pay. Nothing else has changed as regards my working conditions. In Mr.X’s last email 16/12/19 he stated that the university required me to send back a signed copy of the contract sent to me in order for them to pay me. This I have not done. I feel I am being coerced into agreeing to what has been offered as I find the whole process very stressful and would like to bring it to an end. However this would not I feel be in my best interests considering the drop in salary as I have no support I am hoping you will provide guidance.”

The claimant submitted that she had been trying to negotiate with the respondent from Sept. 2019 – Jan2020 but the university “remained steadfast” in their position and remained fixed on the HSE Senior Physio rate of pay. She asserted that she felt every month that she was being pressured into agreeing to accept the university’s offer in order to meet the payroll deadline – she submitted copies of the emails exchanged between the parties which she contended supported her position that she was being pressurised by the university. The complainant submitted that she was seeking to retain the sessional rate of €56 per hour .She asked that her rights and entitlements as an employee be recognised retrospectively to January 1990 and tht she be treated in line with other colleagues (Counsellors) in the university who had successfully sought recognition as employees. The complainant chronicled the entitlements that she said she had been denied for a period of over 30 years by virtue of her non employee status.

It was submitted by the claimant’s representative that the respondent could have paid the claimant if they wanted to without requiring her to sign the disputed contract as they were aware of her BIC and IBAN details. It was submitted that the university’s proposal reduced the complainant’s rate of pay by 30% and that she was entitled to retain the rate of €56.per hour into the future. It was advanced that the university could have sought appropriate comparators in the private sector but had failed to do so. It was submitted that following her initial engagements with HR the complainant left believing she would retain her existing salary but soon found herself back to square 1.It was submitted that the complainant found the whole process stressful and that it had adversely affected her health.It was advanced that the claimant had not declined mediation and it was submitted that the claimant’s colleagues who were employed as counsellors were being treated differently to her.It was submitted that the respondent was arguing about angels on a pin and that they expected the claimant to be grateful for what she was entitled to – it was submitted that the 33.3% reduction in her pay was a deduction .

In a post hearing submission on the matter of jurisdiction the claimant’s representative submitted as follows:

“Physiotherapy was an integral feature of student services   and that the service “ is a service offered by the respondent to its students .The service does not come from an independent contract but rather from the respondent directly”.

It was further submitted by way of illustration “in the event that a claim for negligence resulting in personal injury damages , the litigation ensuing would have included the university as a co-defendant as well as the claimant. The high probability would be in these circumstances , that the University would solely have been the Defendant. This example is illustrated to demonstrate the clear perception that the claimant was an employee of the respondent and as such worked under the authority and control of the respondent”. It was submitted that the character and nature of the relationship between the two parties is beyond argument , namely that the complainant is an employee and it was contended that in these circumstances it is neither justified or appropriate to force new terms of employment with reference to what she might earn with a health service employer. It was contended that such a significant reduction in salary as proposed by the respondent effectively terminates the complainant’s employment .

It was submitted that the complainant was prompted to refer her case to SCOPE as a consequence of learning that the university planned to contract out its medical centre. ”When the complainant made enquiries she was informed that that the entire set up was to be the subject of public tendering. When she further enquired she would be permitted to tender in respect of her work , she was informed that this was not possible and in the circumstances she was fearful that her employment was at risk and in jeopardy….”It was submitted that Section 1 “which is the interpretation section of the Payment of Wages Act , 1991 , provides the criteria to hold that the claimant was , is   and remains an insurable employee who enjoyed a salary scale which cannot now be interfered with”.

The respondent set out the tests on which   the claimant relied upon to argue that she was on a contract of service from commencement .It was submitted that it was clear that “It is on the question of jurisdiction. Simply put, the point we were making was a simple one,namely, that despite whatever the Contract which the Complainant, signed on the occasion of her first employment, the reality of her situation was that of a CONTRACT OF SERVICE and was not a CONTRACT FOR SERVICE.The incontrovertible facts confirm this position.”

It was submitted that the claimant worked at a designated location with equipment provided to her by her employer for a fixed remuneration. “She was not working in her own right for profit. Her services and hours of provision were as dictated to her by the employer. She was and is part of the health centre established by the employer providing health and associated services to the student body.As each Contract has to be examined individually to determine the nature of the employment, it is obvious that her Contract was one of service and thus, as recognized by the Department of Social Welfare, she should have been an insurable person from commencement.On the basis that that is the correct position then her salary cannot be interfered with without her permission or consent.

This submission echoes the precedent both from the Law Courts and the WRC (and its

predecessors). If necessary, a Schedule of Authorities can be produced, but it is respectfully

submitted that the distinction between a Contract Of Service with a Contract For Service is

now well accepted.If it is deemed to be a Contract Of Service, then the question of jurisdiction to deal with her complaint is clear cut and must be decided in her favour”.

The following further submission was received by the WRC on the 27th.Nov. 2020:

“ It is my respectful submission that the fundamental primary question of fact is whether, the applicant was engaged by the University under a contract of services or a contract for service.

I do not believe it is necessary to rehearse the arguments of fact that I have already made in this respect. Clearly the very nature of limitations of the complainant’s ’s work conditions confirm that this was, almost indisputability, a contract of service. It is my respectful view that an adjudication must be made on this initial point before the matter can progress.

The Respondents argument essentially ignores this, putting forward that an Adjudication Officer is not bound by the decision of the deciding officer following a Scope Investigation. Without re-joining that argument, I again strongly maintain that the undisputed facts, the history of this matter, confirm that the claimant was  employed under a Contract of Service.

Unfortunately, I have not been given a copy of her original contract and have at all times worked under the assumption that the respondent maintains that whatever the written contract was, it was nothing other than a Contract for Services. I believe that IBEC strongly maintain that this is the position and as such the question of your jurisdiction is challenged.

No doubt you are familiar with the Judgement of the Supreme Court in the case of Denny& Sons (Ireland) Ltd T/A Kerry Foods v Minister for Social Welfare [1998] 1IR 34.It was clearly stated by Judge Murphy in the Judgement that:

“whether Mrs Mahon was retained under a Contract of Service depends

essentially on the totality of the contractual relationship express or applied

between her and the Appellant and not upon any statement as to the

consequences of the bargain”

“It follows despite whatever the parties choose to call themselves or to apply

the relationship by way of a label or title as to the contract, it should not be

relied upon. What is to be relied upon are the factors which determine “the

totality of the contractual relationship”

The claimant’s submission echoes this Judgement. It is a matter of fact or perhaps a series of facts which determine the nature of the contract between the contracting parties and what each of them choose to call it essentially is irrelevant.

A number of reported decisions illustrate the distinction and at the same time underline the nature of the cogent facts which determine the distinction.

For instance in the case of O’Coindealbhain v Mooney [1990] 1 IR 422, the test applied by the Court was to find that the manager of an office was not an employee where the facts disclose that he provided the premises and administrative personnel staff himself. He was

paid according to the number of persons on the register, and he was allowed to hire and remove staff. In the Judges summary, considerable importance was placed on the fact that

“the lower his expenses the greater his profits”.

Following that, a further case of McAuliffe v Minister For Social Welfare [1995] 2 IR 238 in which the same test was applied and thus it was found that the owner of vans, who distributed newspapers and was paid per run and at the same time permitted to delegate who carried out the work for other contractors, was in fact running a business on his own account.

The Applicant’s case clearly demonstrates the fact that she was working set hours, at a set place with furniture and equipment provided, and for a set salary. There was no question of external profit or a discretion on her part which she could exercise to determine when, where and how she worked.

The position was crystallised in the case of Denny & Sons (Ireland) Ltd T/A Kerry Foods v Minister for Social Welfare [1998] 1 TR 34 and this case concerned a demonstrator whoperformed services for Henry Denny at various locations. It was found because of thenature of control and lack of personal profit etc that she was a direct employee.

Similarly, in the case of ESB v Minister For Social, Community And Family Affairs an unreported decision of the High Court of the 21st of February, 2006, a finding was made that many meter readers were in fact ESB employees despite attempts by ESB to have them declared otherwise.

In this case Judge Gilligan stated very clearly in his judgement the following:

“In the circumstances the fact that the written document describes meter readers as “Independent Contractors” cannot be regarded as determinative. Such a term purports to express the conclusion of law as to the consequences of law.

This reaffirms and echoes the views of the Supreme Court in the Denny Case. In that case, Judge Murphy stated again “Whether Ms. Mahon was retained under a contract of service depends essentially on the totality of the contractual relationship express or implied between her and the Appellant and not upon any statement as to the consequences of the bargain”. Essentially therefore the claimant’s  submission emphasises that before the distinction between the two contract elements is made, regard must be given to the exact nature of her relationship with the University. The label which the University may have placed on their relationship at the beginning cannot be relied upon.

What must be relied upon is the nature of the work she did, wherein the factors which determine the totality of the contractual relationship recognised and then a fair judgement become obvious.

There is the Control Test. As the claimant is a highly experienced qualified professional the employer would not normally exercise control over the manner in which she performs her everyday, routine tasks.

Her contract required her to work set times on set days at a designated location provided by the employer. Administrative staff to assist in the administration of office routines etc. was supplied by the respondent . She had no other work outside this contract and therefore the matter of control as exercised by the employer in the given circumstances is undeniable.

The further test being the so called “Entrepreneur Test” clearly demonstrates that she wasnot self employed. The contract specified the elements of command and control. The Courts have categorised a self-employed person by reference to whether or not he or she owned the assets or was paid a pre-determined wage. She did not own the assets and was   paid a pre-determined sum demonstrates that she did not work for profit nor the risk of loss confirming that she did not have control over costs.

Again with further reference to the Denny Case the fact that the individual worker

submitted an invoice in respect of services provided and was paid on production of the invoice was not regarded by the Court as a disenabling factor in the determination that the central issue was in fact a contract of service.

The claimant was paid on production of a regular invoice.

The Supreme Court supported the finding of the Social Welfare Appeals Officer that the demonstrators were in fact employees of Denny’s. The Court’s reasoning in the case ran as follows:

“In general a person will be regarded as providing his or her services under a contract of employment and not as an independent contractor where he or she is performing those services for another person and not for himself or herself. The degree of control exercised over the work is to be performed, although a factor to be taken into account is not decisive.

The inference that the person is engaged in business, on his or her own account can be more readily drawn where he or she provides the necessary premises or equipment or some other form of investment, where he or she employs others to assist in the business and where the profit which he or she derives from the business is dependent on the efficiency with which it is conducted by him or her.”

The decision in the Denny Case which is now regarded as the seminal decision was applied by the Equality Tribunal in the case of Byrne v Association of Irish Racecourses(Dec – E – 2008 – 008). In this case the finding was made by an Equality Officer resulting in a favourable verdict for a worker complaining of discrimination. The basis of the finding as that she was an employee not an independent contractor.

FINALLY, reliance is placed in the case of “The Minister for Agriculture and Food -v- John Barry, Conor O’Brien, Mary O’Connor, Michael Spratt and Kieran Doolan (2008) IEHC 216. This was an appeal from an EAT decision which held that the Respondents wereemployed under a contract of service by the Appellant and as such were employees.Despite the fact that ultimately the cohort of Veterinary Surgeons lost; an importantstatement in the Judgement (Obiter) is:

“the important thing to remember, however, is that every case must be

considered in the light of its particular facts and it is for the Court or Tribunal

considering those facts to draw the appropriate inferences from them by

applying the appropriate principles which the Courts have developed. That

requires the exercise of judgement and analytical skill. In my view, it is simply

not possible to arrive at the correct result by “testing” the facts of the case in

some rigid formulaic way, and I do not believe that the Supreme Court ever

envisaged or intended to suggest that it could be”

Following this, in the case of Neenan Travel Ltd v Minister for Social and Family Affairs.[2011] IEHC 458. Judge Laffoy noted that “each case must be considered on its own factsin accordance with the general principle which the Courts have developed as Keane Jstated in the Henry Denny Case.

Again in the Case of “An Employee V An Employer” (UD512/2011) of the Employment Appeals Tribunal made reference to all of the various tests concluded “each case must be determined in the light of its particular facts and circumstances.

There was clear “MUTUALITY OF OBLIGATION” between the claimant and the respondent in that the contract provided the obligation to provide work for the individual with acorresponding obligation of the individual to perform that work. This dictum of Judge Gilligan was made with reference to the principle of “MUTUALITY OF OBLIGATION” in the case of “Brightwater Selection (Ireland) Ltd v the Minister for Social and Family Affairs”

Record No High Court 2010/459 SP.

With reference to the points made in the letter of the 23rd of November, 2020 from the respondent’s representative , it is accepted that you as the Adjudicating Officer is not bound by the decision of the Deciding Office following the Scope Investigation in the sense that this finding alone would force you to a decision in favour of the applicant that she was employee as opposed to a contractor. The jurisprudence is clear. Each case is considered on its own facts and recognised principles and tests are applied. It is these that should guide and persuade the adjudication. The Deciding Officer’s decision although conclusive with reference to the Social Welfare Acts, is not being put forward as a sole determinant factor but nevertheless, it is persuasive.

The Claimant does not seek to approbate and reprobate. Which expression seems to imply that the Claimant can choose what is favourable and disregard what is unfavourable. She does neither. Puts forward the simple proposition, that despite her employer’s disagreement, she was from the beginning given all the circumstances, a fully disclosed, employee and not an independent contractor.

She does not deny the existence of a contract. She accepts the existence of a contract, but the contract is of a different nature and a misnomer to that being argued by her employer. The statement that the respondent’s representative makes to the effect that it is clear that the fee set out in the Contract for Services are reflective of risks and obligations arising out of an in dependent contractual relationship and the level of loyalty and responsibility which exists in such arrangement, when compared to that of the employment relationship and what

would have been paid to the Claimant as a direct employee. Her comment that to argue otherwise is an absurdity is just that, precisely that, a comment.

Debating that the Respondent does not have a discretion to act outside public pay policy and must therefore abide its obligations arising under the Universities Act, 1997 is not in the context of this dispute relevant. Of course, the University must adhere to its obligations under the Universities Act, 1997. This, however, is not in conflict with its obligations. This is not a new contract. This is merely an independent adjudication which if found in favour of the Claimant merely reaffirms the existing contract and of course, the rates structure.

That rates structure will now be reassessed to bring the payments in line with the direct relationship of employer and employee. Salary will be paid without imposition of retention tax, but it will be subject to PAYE and any other statutory deductions together with any further deduction that may be the subject of agreement between the parties.

Were this a new contract the absence of discretion might have some argumentative validity, but this is not a new contract.

.

Any decision issued by the WRC has always the potential to effect the conversion of independent contractors to direct employees but only in cases where independent contractors were truly independent contractors and not in cases such as this, which quite clearly the facts are determinative of the Claimant not being an independent contractor. An Adjudicating Officer, must, and I say this with respect be cognisance only of the rights and obligations created by this individual contract and the reality is, that there is now clearly a trail of jurisprudence highlighting the fact that so called independent contractors, by virtue of the nature and conditions of their employment, where never in reality independent at all but at all times were employees.

In conclusion, if the contract is adjudicated as a Contract of Service if follows that the wage structure cannot be interferred with.

The respondent submitted that the claim was primarily based upon the claimant’s contention that she did not receive her previous independent contractor’s rate of pay in her capacity as a directly engaged employee of the university.It was submitted that the claimant was seeking an investigation into matters beyond the remit and time limits of the Payment of Wages Act   and the following preliminary matters were raised –

As the complaint was made on the 18th.Dec. 2019 , the time frame was limited to 6 months prior to that date and does not capture any alleged breaches occurring after the 18th.Dec. 2019.

As the complainant states that the alleged breach occurred on the 4th.Oct. 2019 , the period for consideration is from that date to the 17th.Dec2019.

The respondent invoked the provisions of Brannigan v The Equality Tribunal and County Louth VEC [2016]IESC which it was argued precluded adding to or enlarging jurisdiction and that consequently the other issues raised by the claimant including contractual terms , matters arising from the SCOPE decision , annual leave and comparisons with other colleagues were outside the remit of the complaint.

It was submitted that the University at all times viewed the claimant as an independent contractor until SCOPE issued its decision on the 10th.July 2019.It was submitted that the college then sought to regularise the claimant’s employment status at a number of meetings but that the claimant declined to provide the necessary information to allow the processing of her pay on the payroll system .It was advanced that the respondent had assured the claimant that the processing of such a payment would be without prejudice to the claimant’s right to take her case to the WRC. It was further contended that the claimant declined to participate in mediation in circumstances where matters outside the remit of the Act could have been considered.

It was submitted that the contract for service agreements were agreed on an annual basis and the claimant was paid a sessional rate of €56 per hour. It was submitted that this was a comprehensive rate “ reflective of an independent contractor having obligations which an employee would not including but not limited to overheads , tax , insurance , purchase of equipment /product , administration time, regulatory compliance , CPD and annual leave/public holiday”. It was submitted that the hourly rate for a direct employee was less , even at the highest point of the scale.

The respondent’s representative set out a chronology of the ensuing exchanges between the parties following the issuing of the SCOPE decision on the 10th.July 2019

It was submitted that ultimately the university sought to place the claimant on an employment footing as per the SCOPE decision and compliant with the Universities Act 1997 and Public Pay Policy. It was determined that the appropriate comparator role was a Senior Physiotherapist in the HSE. It was advised to the claimant that her contractor rate was not applicable because as a direct employee of the university , the claimant would benefit from an enhanced suite of benefits not available to contractors. While numerous meetings took place , no agreement could be reached on the level of pay .The proposed contract was issued to the claimant in December 2019 following which various clarifications were sought by the claimant. It was submitted that Mr.D advised the claimant on the 16th.Dec. 2019 and the 22nd.January 2020 that as no payment had been made to date , he was willing to make a payment without prejudice to any future agreement .It was advanced that on the 27th.Jan 2020 , the claimant advised the respondent that she was referring the matter to the WRC , that she was declining the request for mediation and that she would not take up Mr.D’s offer for payment. It was submitted that Mr.D made a further offer of payment to the claimant but it was declined by the claimant..

It was submitted that the complaint was limited to the time limits of the Act and the provisions of Section 5 in relation to unlawful deductions.

It was contended that as the contractual terms could not be agreed with the claimant , there was no agreement on what wages or sums were payable to the employee by the employer in connection with her employment and therefore no lawful deduction could have taken place in the absence of an agreement on wages or sums payable between the parties.

It was submitted that the respondent was prohibited from making a payment without the claimant’s PPS and bank details.”Consequently a deduction cannot occur in circumstances where the claimant prohibits payment in the first instance”.

It was submitted that if the respondent had paid the claimant in line with public sector pay as per The Universities Act of 1997 , “the action had it occurred could only be considered a reduction rather than a deduction – the provisions of McKenzie and another v.Minister of Finance and Others [2010] IEHC461 were invoked in support of the respondent’s assertion that the High Court had distinguished between deductions from wages and reductions in wages and stated that the Act had no application to reductions in wages.

Without prejudice to the foregoing it ws submitted that the claimant’s contract for service agreement allowed for a reduction in pay and included an implicit term which allows for a deduction in line with public sector pay policy.

It was submitted that the terms of the contract for service expired at the end of the academic term in May 2019.

It was argued that the SCOPE decision was limited to confirming only the claimant’s employment status as insurable under the Social Welfare Acts for all the benefits and pensions at PRSI Class A. It was submitted that the decision does not give rise “ to an entitlement to the expired contractor terms in the subsequent creation of an employment contract or contract of service. Rather it could be argued that the SCOPE decision confers that an employment relationship existed since 1990 and the claimant should have been treated as such. Meaning that she should have been placed on the appropriate scale in 1990 , which in turn would have meant she would have ultimately ended up on the Senior Physiotherapist scale , and the terms of engagement previously relied upon are void”.

It was submitted that the respondent had been fair and reasonable in their treatment of the claimant .It was submitted that no breach of the Act occurred in the absence of agreement on what wages are owing. It was submitted that the respondent was following public pay policy by placing the claimant on an appropriate comparator pay scale. It was submitted that the claimant must accept the consequences of the SCOPE decision and that it was incredible that the claimant was seeking to have her employment status deemed insurable and at the same time seek to retain the terms of her contractor agreement.

It was reiterated that the contractor rate was a comprehensive rate reflective of status and obligations that do not arise for the an employee. It was submitted that concession of the contractor rate would amount to the claimant seeking a scale 68% higher that an appropriate comparator.

It was submitted that the claimant was failing to take into account the value of the benefits that would accrue to her as an employee including pension, sick pay , annual leave , public holiday benefit , statutory leave and education policy. It was submitted that the claimant was a valued colleague but the university could not accede to a demand which would be in conflict with the respondent’s obligations under the Universities Acts.

In response to a request from the Adjudicator on the matter of jurisdiction as well as the post hearing submissions furnished by the claimant’s representative , the respondents representative submitted as follows :

“ I refer to the above and your correspondence of 5 November 2020, seeking response to a jurisdiction issue arising in relation to the definition of employee under the Act.

However, I am unclear as to its relevance and I would appreciate if you could expand on same so I may respond appropriately.

The Respondent did not raise any jurisdictional issue on the Claimant’s employment status, rather it has been accepted that she is an employee for the purposes of the Act.

The jurisdiction issues the Respondent raised pertained to time limits as per Section 41(6) of the Workplace Relations Act 2015 and the scope of Section 6 of the Payment of Wages Act 1991. “

It was further submitted that

“An Adjudicating Officer or the Labour Court are not bound by a decision of a Deciding Officer following a SCOPE investigation which is made only in the context of the application or otherwise of the Social Welfare Acts.

The Respondent refers to the case of Limerick Public Participation Network Operations CLG

and A Worker, LCR22142, wherein the Court explicitly states same.

The Claimant is attempting to argue that the Deciding Officer’s decision gives rise to a conversion of her contract for service, which had in fact expired at the time of the SCOPE decision, to that of a contract of employment when clearly such a decision does not give rise to such an outcome.

The Deciding Officer’s decision is limited only to the application or otherwise of various SocialWelfare Acts as set out in the Social Welfare Consolidated Act 2005.

An Adjudicating Officer may not enforce the terms of an expired contract for service in the context of a contract of service under the provisions of the Payment of Wages Act.

The Claimant cannot on the one hand seek to rely on the terms of her now expired independent contractor agreement and simultaneously argue that the same contract was unsound. The Respondent refers to the maxim of ‘approbate and reprobate’ which reflects the principle whereby a person cannot both approve and reject an instrument.

I wish to draw the Adjudicating Officer’s attention to the case of Superwood Holdings plc v Sun Alliance & London Insurance plc [1995] 3 I.R. 303 wherein Blayney J quoted with approval the following passage from the decision of Budd J. in Coen v Employer's Liability Assurance Corporation[1962] I.R. 314: -

“….the repudiating party cannot be allowed to approbate and reprobate. He cannot thus be

allowed to say: ‘I deny the existence of the contract which you say exists between us, but I also rely on a term of that contract ….”

It was advanced that it “ is clear that the fees set out in the contract for services are reflective of risks and obligations arising out of an independent contractor relationship and the level of loyalty and responsibilitywhich exists in such an arrangement, when compared to that of the employment relationship and what would have been paid to the Claimant as a direct employee. This is a well-established principle and to now argue that the same terms should apply in the context of an employment relationship is absurd.

In any case, the Respondent does not have any discretion to act outside of public pay policy and must abide by its obligations arising under the Universities Act 1997.

It is axiomatic that any decision issued by the WRC has the potential to affect the conversion of independent contractors to direct employee in both the public and private sector and the

Adjudicating Officer must, therefore, be cognizant of the potential unintended consequences of any decision in this regard”.

At the hearing it was submitted that it was well established that the Payment of Wages Act 1991 was limited to matters arising within a 6 month time frame from the date of receipt of the referral of the complaint.It was advanced that the respondent had offered to pay the claimant without prejudice to the WRC referral and that it had been communicated to the claimant that there was no requirement on her to sign the contract and this was more than reasonable.It was asserted that the claimant had rejected the offer of mediation. It was submitted that the higher sessional rate paid to the claimant was not associated with a suite of benefits which she could derive from employee status. It was submitted that the scale offered to the claimant was based on her management and leadership responsibilities and that there was no basis for looking at private scales when the respondent was bound by public sector pay provisions. It was submitted that much of the arguments being made by respondent were outside the jurisdiction of the Adjudicator .It was submitted that the offer to the claimant did not constitute a deduction .It was submitted that the characterisation of the respondent’s actions as deceitful was   unfounded .

In response to the claimant’s representative submission of the 27th.November , the respondent’s representative submitted that the matter before the AO was whether there was agreed valid contractual terms in place at the time the claimant alleged a breach of the Act and if so was there a breach of the Act .It was submitted that it was evident that there were no agreed contractual terms in place at the time of the alleged breach and that consequently no breach could have occurred.”Irrespective of the findings of the AO on the matter of the employment relationship , no contractual terms existed between the parties at the time of the alleged breach as the contract that was in place expired in May 2019.The AO can only make a determination whether there has been a breach of the Act where valid contractual terms exist.In the absence of terms , no such breach could have occurred”.

It was further advanced that none of the case law invoked by the claimant’s representative in the submission of the 27th.Nov. 2020 supported the position being adopted by the claimant .”That is , that where there is a finding of a contract of service , that there is then in turn a right to the associated contract for service terms in any subsequent employment relationship.

I have reviewed the evidence presented at the hearing and the voluminous submissons made by the parties.The respondent has confirmed to the WRC s that the claimant has employee status for the purposes of the Act.

The Act defines an employee and contract of employment as set out below

The claimant’s complaint was received by the WRC on the 18.12.2019 – the time frame for consideration of the alleged breach is the 19.06.2019 to the 18.12.2019.The claimant asserted in her complaint form that the date of the alleged breach of the Act was the 4th.Oct. 2019. The claimant’s representative has made extensive submissions on the claimant’s employment status and has argued that she was effectively an employee from the commencement of her engagement with the college in 1990 to a current date and that it flows from that the discontinuation of the higher sessional rate of pay constitutes a breach of the Act. For their part the respondent in clarifying their position on the matter of jurisdiction   submitted that the “Respondent did not raise any jurisdictional issue on the Claimant’s employment status, rather it has been accepted that she is an employee for the purposes of the Act”.

At the same time the respondent has contended that that no contractual terms existed between the parties during the time frame covered by the Act as the contract for service with the claimant had expired in May 2019 and that a determination can only be made where valid contractual terms exist.I have taken account of the compelling arguments made by the claimant’s representative with respect to her employee status – and note that the respondent has accepted that the claimant is an employee for the purposes   of the Act .

I find that the provisions of the Act require that to have locus standi , a claimant must demonstrate that they are an employee – this has not been disputed by the parties. However there is a further requirement to demonstrate that the claimant entered into or works under a contract of employment. The definition of contract of employment is set out above and requires that “an individual agrees with another person to do or perform personally any work or service for a third person for a third person………”It is evident from the litany of correspondence submitted into evidence by the claimant that at the time of the alleged breach of the Act there was no agreed contract of employment in place as it was a matter of ongoing dispute between the parties. I don’t accept that it was ever intended that the Payment of Wages Act could be invoked as a vehicle to resolve fundamental grievances on rates of pay . Additionally I cannot accept the respondent’s contention that the Act confirms any entitlement to retain more favourable pay terms in the instant circumstances where a contract for service is being negotiated upon with a view to it being morphed into a contract of service – the fundamental terms of which remain a matter of dispute between the parties. Accordingly I accept the merits in the respondent’s assertion there was no agreement on contractual terms at the time of the alleged breach and consequently no breach of the Act could have occurred.

I note that many of the remedies and terms being sought by the claimant are of an industrial   relations nature and are not comprehended by the narrow constraints of the Payment of Wages Act.

I declare the complaint is not well founded and that there has been no breach of the Payment of Wages Act.