Complainant

Respondent

Anonymised Parties

An Adjudicator (1)

A Statutory Body

Representatives

Mr. Myles Gilvarry, Solicitor, Gilvarry & Associates

Mr. Desmond Ryan BL on the instructions of the Respondent’s inhouse Solicitor

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00026532-001

26/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00026532-002

26/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00026532-003

26/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00026532-004

26/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00026532-005

26/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00026532-006

26/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00026532-007

26/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00026532-008

26/02/2019

The Respondent is a statutory body which was established in 2015. The Complainant was appointed as an Adjudicator by the Minister under statute on establishment of the Respondent to adjudicate upon complaints and disputes that fall within the remit of this body. The Complainant also worked as an Adjudicator for the Respondent’s predecessor body from August, 2003 until October, 2015. The Complainant’s appointment as an Adjudicator with the Respondent was revoked by the Minister on 25 October, 2018.

The Complainant claims that he was treated less favourably than other comparable full-time workers in relation to his conditions of employment contrary to Section 9(1) of the Protection of Employees (Part-Time Work) Act, 2001.

The Complainant claims that he was treated less favourably than other comparable permanent workers in relation to his conditions of employment contrary to Section 6(1) of the Protection of Employees (Fixed-Term Work) Act, 2003. The Complainant claims that he was employed on multiple fixed term contracts for 15 years without being offered a contract of indefinite duration and therefore the Respondent has contravened the provisions of Section 9(2) of the Protection of Employees (Fixed-Term Work) Act, 2003 in relation to his employment. The Complainant claims that the Respondent contravened the provisions of Section 8(2) of the Protection of Employees (Fixed-Term Work) Act, 2003 by failing to offer a written statement setting out the objective grounds justifying the renewal of a fixed-term contract and the failure to offer a contract of indefinite duration.

The Complainant claims that the Respondent has contravened the following provisions of the Organisation of Working Time Act, 1997 in relation to his employment, namely Section 19 in relation to his holiday entitlements and Section 21 in relation to his public holiday entitlements.

The Respondent disputes all of the abovementioned claims under the respective enactments in question.

Procedural issues in relation to the conduct of the inquiry into the complaints

Prior to the initial hearing on 14 October, 2020, the Respondent raised a preliminary issue in relation to the jurisdiction of the Adjudication Officer to inquire into the within complaints under the enactments in question. The Respondent submitted that it had been incorrectly named as a Respondent in these proceedings and that no employment relationship existed, or could have ever existed, between the Complainant and the Respondent. The Respondent further submitted in correspondence that the existence of any employment relationship between the parties was a legal impossibility since the Complainant was never paid any salary by it and that his appointment to the office of Adjudicator was made by the Minister under the relevant statutory provisions. The Respondent submitted on the basis of the foregoing that the Minister was the appropriate Respondent to these proceedings.

The Respondent’s representative wrote to the Complainant’s solicitor on 4 September, 2020 to outline its position on the issue of jurisdiction and indicated that the Director General lacked the statutory power to progress the instant complaints until such time as an indication was received from the Complainant relating to any application that the Complainant might wish to make pursuant to Section 39(4) of the Organisation of Working Time Act 1997 to name the correct Respondent. The Respondent’s representative sought the Complainant’s consent to approach the Minister to seek confirmation that he would agree to be named as the correct Respondent so as to participate in the case.

The Complainant’s solicitor replied to the Respondent on 30 September, 2020 and indicated that the Complainant consented to the sharing of the relevant papers with the Minister in relation to this matter, but entirely without prejudice to the claim against the Respondent, which was being maintained. The relevant papers in this matter were forwarded to the Minister on the consent of the Complainant.

The Minister subsequently indicated by letter dated 9 October, 2020, that it was his view, that he, as the person who appoints Adjudicators pursuant to the relevant statutory provisions, was the appropriate respondent to the instant complaints. The Minister also confirmed in this letter that he would consent to any application which the Complainant may wish to make under Section 39(4) of the Organisation of Working Time Act 1997 for leave to institute proceedings against him in relation to this matter. However, the Minister confirmed that such consent was without prejudice to any and all defences on which he might rely in meeting the complaints, once joined.

The aformentioned correspondence from the Minister and the Respondent’s representative was brought to my attention as part of my inquiry into these complaints. I wrote to both parties on 12 October, 2020 and informed them that I would deal with the issue of jurisdiction concerning the correct respondent to these proceedings as a preliminary issue at the oral hearing on 14 October, 2020. I also informed the parties that I had requested a representative on behalf of the Minister be available to attend the hearing in the event that the Complainant wished to make an application to have the Minister joined as a Respondent in these proceedings. The Minister was represented by an official from his Department and Counsel at the oral hearing on this date.

Prior to the hearing on 14 October, 2020, the Complainant’s solicitor also raised an objection to my appointment as the Adjudication Officer to inquire into these complaints and requested that I should recuse myself from the proceedings on the grounds of objective bias. I informed the Complainant’s solicitor in my letter dated 12 October, 2020 that I would also address this objection as a preliminary issue at the oral hearing on 14 October, 2020.

The hearing proceeded on 14 October, 2020 and the parties and the Minister were afforded the opportunity to address the following jurisdictional issues, as appropriate, by way of oral submissions, namely:

·       The Complainant’s objection to my appointment as the Adjudication Officer to inquire into the above complaints and the request that I should recuse myself from this matter on the grounds of objective bias.

·       The identity of the correct Respondent in the instant proceedings.

·       The Complainant’s application for leave to institute proceedings against the Minister as a co-respondent to the proceedings in accordance with the provisions of Section 39(4) of the Organisation of Working Time Act, 1997, and

·       The Complainant’s application to amend the instant proceedings to add the as a co-respondent to the proceedings.

The hearing was adjourned on 14 October, 2020 and I informed the parties that I would subsequently revert to them with a direction in relation to the manner in which I intended to proceed with my inquiry into the complaints following consideration of their respective oral and written submissions on the aformentioned matters. The parties were also afforded the opportunity to provide further written submissions on the abovementioned issues following the oral hearing on 14 October, 2020. Written submissions were subsequently received from the Complainant and the Minister.

Having considered the written and oral submissions from the parties and the Minister in relation to these matters, I issued a direction by letter dated 20 November, 2020 to outline the manner in which I intended to proceed with my inquiry into the instant complaints from a procedural perspective. The following points were outlined in this written direction, namely:

·       I confirmed that I did not intend to accede to the Complainant’s request for recusal on the basis that I was satisfied the relevant test for objective bias had not been established in the circumstances of this case. I also confirmed that I would set out in further detail the precise reasons for my decision on this matter in my written decision following the conclusion of my inquiry into the complaints (this matter has been addressed fully hereunder).

·       I informed the parties that, in my view, the preliminary issue of jurisdiction concerning whether or not the Respondent had been incorrectly named as the respondent in these proceedings was inextricably linked to the question as to whether or not there existed any employment relationship between the parties. I confirmed to the parties that it would be necessary to resolve this issue in order to establish if the Complainant had the necessary locus standi to pursue the instant complaints against the Respondent under the respective enactments in question. I informed the parties, that in the circumstances, I had decided to reconvene the hearing to allow them to address this issue of jurisdiction in greater detail and to afford them the opportunity to adduce any evidence which was relevant to this issue of jurisdiction.

·       I informed the parties that it would, in my view, be premature to make any decision in relation to the application pursuant to section 39(4) of the Organisation of Working Time Act, 1997 and the separate application to join the Minister as a co-respondent to the instant proceedings until such time as I had concluded my inquiry into, and determined, the question of whether or not there was an employment relationship between the named Respondent and the Complainant in the context of the instant complaints. I informed the parties that I would address the former issues either by way of further direction or in my written decision, as appropriate, following the conclusion of my inquiry into the aforementioned jurisdictional issue in relation to the instant complaints.

The hearing in this matter was reconvened on 28 January, 2020 by remote means to address the aformentioned issues of jurisdiction.

The Complainant was in attendance and was represented by his solicitor. The Respondent was also in attendance and was represented by Counsel. The Complainant gave evidence in relation to the jurisdictional issue and did not call any witnesses to adduce evidence. The Respondent called the following witnesses to adduce evidence, namely Mr. A (former Manager of the Post Registration Unit) and Ms. B (Principal Officer in the relevant Government Department).

The Complainant in the within proceedings was one of four former Adjudicators of the Respondent who had referred complaints to the WRC under the abovementioned enactments. Given the similarity of these complaints, it was agreed that the hearing in relation to the jurisdictional matters involving all Complainants would be conducted together. The decisions in relation to the other Complainants are referenced under the complaint numbers ADJ-00020185, ADJ-00020187 and ADJ-00020191.

The respective positions of the parties in relation to the abovementioned issues of jurisdiction are set out hereunder.

Request for Recusal by the Complainant

The Complainant raised a preliminary issue in relation to my appointment as the Adjudication Officer in this matter. The Complainant submits that I have previously served as an Equality Officer in the Equality Tribunal and as an Assistant Principal Officer in the relevant Department, both of which are named as comparators for the purpose of the within complaints. The Complainant contends that this fact could give rise to a perception of a conflict of interest and therefore the Adjudication Officer should recuse himself from inquiring into the within complaints on the grounds of objective bias.

The Complainant referred to the test for objective bias which was outlined by Fehilly J in O’Callaghan v Mahon [2008] 2IR 514 where he stated: “Objective bias is established if a reasonable and fair-minded person, who is not unduly sensitive, but who is in possession of all the relevant facts, reasonably apprehends that there is a risk the decision maker will not be fair and impartial”.

The Complainant submits that while there is no suggestion of personal favour or personal interest being made against me, it is clear that this is a situation where as stated by the Supreme Court in Dublin Wellwoman Centre v Ireland [1995] 1 ILRM 408 there is a clear issue “as to whether a person in the position of the appellant in this case, being a reasonable person, should apprehend that his chance of a fair and independent hearing of the question at issue does not exist by reason of the previous non-judicial position, statements and actions of the learned High Court judge on issues which are at the kernel of this case”.

The Complainant submits that the state of the law on the issue of objective bias was considered by Kelly J in the case of Ryanair Limited –v- Terravision London Finance Limited [2011] IEHC 244 where he reviewed the law in relation to the matter and quoted approvingly the decision of the English Court of Appeal in Drury v British Broadcasting Corporation (2007 CA605) which stated: “if another Judge can be found so that the case can proceed immediately, without increased cost or inconvenience to the parties, it seems to me that the Court can properly and should arrange that substitution so as to avoid any question of dissatisfaction or for future complaint“. In this case, the Supreme Court has ruled that despite the Oath taken by a High Court Judge, they should recuse themselves to avoid any appearance of bias.

The Complainant submits that the test for objective bias as set out in the case-law above that “a reasonable and fair-minded objective observer was not unduly sensitive but who was in possession of all the relevant facts, reasonably apprehends there is a risk the decision maker will not be fair and impartial”, applies to me in the within case, especially as the application to join another party is against the Department in which I have served.

The Complainant requested that I should recuse myself from proceeding with the statutory functions which have been conferred on me by the Director General under Section 41 of the Workplace Relations Act, 2015 on the grounds of objective bias.

The Respondent confirmed that it did not wish to make any submissions in response to the Complainant’s objection to my appointment as Adjudication Officer in this matter and the request that I should recuse myself on the grounds of objective bias.

Position of Adjudication Officer on Request for Recusal

Having carefully considered the objection raised by the Complainant, I decided that there was no basis upon which I should accede to the request for recusal in relation to this matter. I have set out in detail hereunder the reasons upon which I have relied to refuse this request.

At the outset, it may be useful to set out the relevant legislative provisions which govern the establishment of the Respondent and the appointment of Adjudicators for the purposes of the legislation. The Respondent was established as a statutory body under the Workplace Relations Act, 2015 and Section 40 of this enactment sets out the provisions which govern the appointment of Adjudicators for the purposes of the legislation. The said Section 40 provided that existing Equality Officers and Rights Commissioners would stand appointed as Adjudicators on establishment of the Respondent. The existing cadre of Adjudicators also consists of a panel of Adjudicators who were appointed by the Minister following a competition which was conducted for that purpose. The Respondent is the relevant statutory body within the State that has been tasked with the responsibility for the adjudication, at first instance, of disputes and complaints under employment rights and equality legislation. Therefore, having regard to the legislative regime which has been put in place by the Oireachtas to adjudicate upon such matters, it is clear that the within complaints must, by necessity, be heard by the Respondent.

In this regard, I note that the Irish courts have recognised the legal doctrine of the rule of necessity which is a judicial doctrine that permits a judge or administrative decision maker to decide a case even in circumstances where he or she might ordinarily be disqualified due to bias or prejudice. It is stated in Hogan, Morgan and Daly, Administrative Law in Ireland 5th Ed. 2019 (at para 14-88) that: “Throughout the common law world, the “no bias” rule gives way to necessity inasmuch as the disqualification of the adjudicator will not readily be permitted to destroy the only tribunal with power to decide”. Under Irish law the doctrine of necessity has been applied by the High Court and the Supreme Court in O’Byrne v Minister for Finance [1959] IR 1 where it was held that judges were obliged, as a matter of necessity, to pass judgement on the constitutionality of legislation rendering liable to income tax on their salaries.

I also note that the ratio in O’Byrne was followed by the High Court in Flynn v Allen and The Honorable Society of King’s Inns, Unreported (High Court, Lynch J), 2 May, 1988 where the applicant sought the recusal of the presiding judge on the basis that he and every judge of the High Court, and of the Court of Appeal and Supreme Court is a bencher of the Honorable Society of King’s Inns. In this case the Court applied the rule of necessity and held that: “I am, of course, as is every other High Court judge and judge of the Supreme Court a Bencher of the King’s Inns and I am conscious of the fact that in one sense I myself could be said to be a defendant in these matters. Be that as it may, the matter has to come to be decided by some Judge of the High Court and it has come before me and I must not shirk my duty in dealing with it. I have been referred to the decisions of the High Court and the Supreme Court in the case of O’Byrne v. Minister for Finance and the Attorney General [1959] 1 I.R. 1 and of course the difficulty that arises here arose there. The necessity for proceeding notwithstanding that unfortunate difficulty was emphasised and I accept that is so and that I should and must deal with the matter”.

In applying this jurisprudence to the facts in the instant case, it is clear that the within complaints must be heard by one of the existing cadre of Adjudicators who has been appointed for this purpose under the relevant legislation. In this regard, I have been appointed to the role of Adjudicator by the Minister under the abovementioned legislative provisions having held the position of Equality Officer on establishment of the Respondent. Like all Adjudicators who have been appointed to this position by the Minister, the legislation requires that I am obliged to be independent in the discharge of my functions in this role. I am satisfied that, as an established civil servant, I do not have any material interest in the outcome of the proceedings in the within complaints.

The test for objective bias which is applied by the Irish Superior Courts is well settled in law and requires consideration as to whether a reasonable person in the position of the complainant would reasonably apprehend bias on the part of the adjudicator. This test was succinctly stated by the Supreme Court in the case of Goode Concrete v CRH [2015] 3 IR 493 where it was held by Denham CJ at paragraph 54 in the judgement that: “The test to be applied when considering the issue of perceived bias is objective. It is whether a reasonable person, in all the circumstances of the case, would have a reasonable apprehension that there would not be a fair trial from an impartial judge. As it is an objective test, it does not invoke the apprehension of a judge, or any party; it invokes the reasonable apprehension of a reasonable person, who is in possession of all the relevant facts”.

I have also taken note of the High Court judgement in the case of Anne O’Ceallaigh -v- An Bord Altranais [2009] IEHC 470 where Hedigan J held at paragraph 30 that: “It is true that the employment background or history of the adjudicator cannot of itself normally raise a suspicion of objective bias…“.

Having carefully considered the objection, and in applying the test enunciated by Denham CJ in the above judgement, I am satisfied that the Complainant has failed to establish that a reasonable person, in all the circumstances of the case, would have a reasonable apprehension that they would not be afforded a fair and impartial hearing in the event that I was to proceed with my investigation of these complaints. In the circumstances, I am satisfied that the Complainant has not met the test for objective bias in relation to this matter. Having regard to the foregoing, I decided that there was no basis upon which I should accede to the Complainant’s request for recusal in relation to this matter.

Jurisdictional Issue – Identity of Correct Respondent/Employer

The Complainant submits that he was employed by the Respondent and that there was an employer/employee relationship between the parties within the meaning of those terms as provided for in the relevant enactments at issue in the within proceedings.

The Complainant’s submissions on this issue of jurisdiction can be summarised as follows:

·       The Complainant contends that employment under a contract of services is not a condition precedent to locus standi under the enactments in question in the within case. The Acts apply to a person engaged under a contract of employment. It is clear that that term is given a much broader meaning than contract of service. The definition brings within its ambit a person employed on “any other contract” which can include a person employed on a contract for services provided that the person provides services personally.

·       The key legal principles to be applied in determining employment status can found in a number of sources including the Code of Practice for Determining Employment or Self-Employment Status of Individuals which was prepared by the Employment Status Group. This Code of Practice states that the overriding consideration or test will always be whether the person performing the work does so “as a person in business on their own account”. The work which the Complainant was performing was not being carried out as a person in business on his own account or as a free agent with an economic independence of the entity engaging the service.

·       The Code of Practice refers to a number of tests or factors which should be taken into consideration when determining employment status including the “control” test. The Complainant was clearly under the “control” of the Respondent for the purposes of this test as it had complete control and direction in relation to the manner in which the work was carried out.  

·       The Complainant also satisfies the other criteria outlined in the Code of Practice for determining whether an individual is an employee including that he supplied labour only; received a set rate of pay based on the number of days worked; he could not sub-contract the work; he did not supply any materials or equipment for the job; he was not exposed to personal financial risk in carrying out the work; he was required to work set hours per week/month; he worked for one person or entity i.e. the Respondent.

·       The only matter on which the Complainant could be said to be independent and not under the control of the Respondent was in relation to the decisions/recommendations arising from adjudications and this is equally true of the Complainant’s comparators, namely civil or public servant adjudicators, who are employees of the Respondent.

·       The Complainant does not satisfy any of the criteria outlined in the Code of Practice which are used to determine whether an individual is self-employed.

·       The Complainant was subject to a pay reduction under the FEMPI legislation as part of public sector cost saving measures. This pay reduction was only applied to employees in the Public Sector and an entirely different arrangement applied to those providing services to the Public Sector.

·       The Complainant disputes the Respondent’s contention that if any employment relationship was to have existed in the circumstances of the instant complaints, that any such relationship was with the relevant Minister. The Complainant states that he was employed by the Respondent, being an independent body, and was not an office holder employed by the State or Government within the meaning of the term “employee” as defined within the relevant enactments in question.

·       The Complainant disputes the Respondent’s contention that the legislation which governs the establishment of the Respondent does not allow for the existence of an employment relationship between the parties.

·       The Complainant notes that in the case of Henry Denny & Sons (Ireland) Limited t/a Kerry Foods v Minister for Social Welfare [1998] 1 IR 34 the High Court held that when determining the employment status of an individual both the contractual terms and the surrounding practical circumstances of the relationship should be considered. The Complainant satisfies all of the relevant tests for determining employment status which were set out by the High Court in the Denny case, namely the control test, the integration test, the economic reality test and the entrepreneurial test.

·       There was a strong mutuality of obligation between the Complainant and the Respondent which was evidenced by the requirements outlined in the aforementioned warrant of appointment. The Respondent was obliged to provide the Complainant with work and corresponding pay, and he was obliged to perform that work as directed by Respondent. The reality of the relationship was that the Respondent was obliged to provide and schedule the Complainant for work, and he was obliged to perform that work.

·       The Complainant referred to the case of Ready Mixed Concrete Ltd (South East) v Minister of Pensions [1968] 2 QB 497 where the Court outlined the conditions which must be fulfilled for a contract of service to exist.  The Complainant contends that his contract with the Respondent meets these conditions i.e. he agreed that in consideration for a wage or other remuneration, he would provide his own work and skill in the performance of some service for his master. Further he agreed, expressly or impliedly, that in the performance of that service, he would be subject to the other’s control in a sufficient degree to that other master and the other provisions are consistent with its being a contract of service. Further the Respondent decided the thing to be done, the way in which it should be done, the means to be employed in doing it, the time and the place where it should be done.

·       The term “worker” is defined for the purposes of the Industrial Relations Acts, 1946 to 1976 as "'Worker' means any person aged 15 years or more who has entered into or works under a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be express or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or of a contract personally to execute any work or labour…". This definition was considered by the High Court in Building and Allied Trades and Valentine Scott v The Labour Court and The Construction Industry Federation and Gerry Fleming, Unreported, 15th April 2005. In that case Murphy J interpreted the term “worker” as including, for the purposes of the Agreement, a sub-contractor providing services personally under a contract for services.

·       The Complainant contends that this broad definition of employee was echoed in the definition of a “worker” by the CJEU in Dita Danosa v LKB Lizings SIA C-232/09 where it held that the essential feature of an employment relationship is that, for a certain period of time, a person performs services for and under the direction of another person, in return for which he receives remuneration. In Danosa, the complainant was directed to perform duties personally by certain weekly deadlines.

·       In O’Brien v Ministry of Justice C-393/10, the CJEU ruled that National Courts could apply EU law in finding the status of a worker if framework rights were being interfered with. All the elements of the claimants work for the respondent indicates that the Respondent is their employer and should remedy the breaches complained of.

·       In Mayo Perceival-Price & others v Department of Economic and Social Services and Her Majesty’s Attorney General for Northern Ireland (Northern Ireland Court of Appeal, 12 April, 2000) the applicants were current or past members of Industrial Tribunals carrying out duties analogous to the complainant herein, and/or of similar decision making bodies. In the initial Industrial Tribunal, the respondents/State succeeded on the basis that they were not “workers” or “employed” within the meaning of European Law and Directives and could therefore not maintain their claims. In argument analogous to the Respondent’s in this case they also maintained that as the category of applicants was of one holding “statutory office” they were excluded from claiming under provisions excluding those in public service who were not regarded as being employed under a contract of service. However, these arguments were not accepted by the Northern Ireland Court of Appeal which overturned the decision of the Industrial Tribunal and held: “[T]heir office accordingly partakes of some of the characteristics of employment, as servants of the State, even though as Office holders they do not come within the definition of employment in domestic law”.

·       In UX -v- Governo Della Repubblica Italiana Case C-658/18 the ECJ dealt with a similar exclusion of Italian Magistrates. The Court rejected the Italian arguments that they could distinguish between the permanently employed Judges and these magistrates, as being in breach of the Framework Directive.

Summary of the Complainant’s oral evidence

The Complainant stated that he was appointed as an Adjudicator to the Respondent’s predecessor body in August, 2003 and continued to work in this position until 2015 when this body was amalgamated with a number of other related statutory bodies. The Complainant was appointed as an Adjudicator to the Respondent upon its establishment in October, 2015 and worked in this capacity until 2018 when his warrant of appointment was revoked by the Minister. The Complainant stated that he had considered himself at all material times an employee of the Respondent (and its predecessor body) and that his work was conducted under the control of both of these bodies.

The Complainant stated that the Respondent exerted a large degree of control in relation to the manner in which the work was conducted and he was required to comply with certain procedural guidelines such as procedures for the postponement/adjournment of cases and standard templates for the drafting of decisions. He stated that the only aspect of the role where he exercised any degree of autonomy or independence related to the decision-making process involving adjudications.

The Complainant stated that the Respondent provided all of the necessary equipment which was required to carry out the work including computers, laptop, mobile phone, stationery, subscriptions to relevant online resources and office space at the Respondent’s headquarters. The Complainant stated that he was provided with secretarial support during the early years of his appointment with the Respondent’s predecessor body. However, this secretarial support was gradually withdrawn in latter years following the reductions in public service numbers in the early years of the last decade.

The Complainant stated that the Respondent was responsible for making the scheduling arrangements in relation to the cases which he was assigned for adjudication, both from a logistical and administrative perspective. The Complainant stated that he was required to provide advance confirmation of availability to adjudicate on cases on a six-week rolling basis and he was also required to provide eight weeks advance notice in respect of any periods of holidays.

The Complainant stated that his only interaction with the Minister/Department related to his warrant of appointment and the occasional request to provide input and observations in relation to certain policy matters which were relevant to the work. He stated that any application for a renewal of his warrant of appointment was made via the Principal Officer in the Respondent. The Complainant stated that the Respondent had responsibility for all aspects relating to the management of his work including the processing of travel/expenses claims, performance management, payment of adjudication fees and the provision of human resources functions.  

Application under Section 39(4) of the Organisation of Working Time Act, 1997

The Complainant made an application in accordance with the provisions of Section 39(4) of the Organisation of Working Time Act, 1997 to join the Minister as a co-respondent to the within proceedings.

The Complainant referred to the Respondent’s letter dated 4 September, 2020 which sought his consent for the Respondent to approach the Minister to seek his agreement to be joined to proceedings as the “correct Respondent”. The Complainant submits that by way of reply on 30 September 2020, he expressed his consent to join the Minister as a co-respondent. The Complainant submits that no consent to the substitution of the Minister has been given by the Complainant in relation to this matter. The Complainant submits that he wishes to proceed with the instant complaints against both the Respondent and the Minister.

The Complainant submits that the statutory body which employed him has been named as the Respondent to the complaints presented under the Organisation of Working Time Act, 1997, Protection of Employees (Part-Time Work) Act, 2001 and the Protection of Employees (Fixed-Term Work) Act, 2003. All three Acts fall within Table 2 of Section 39. The Complainant submits that it is therefore permissible to initiate new proceedings under subsection (4) of Section 39 to join the Minister as a co-respondent to the instant proceedings.

The Complainant submits that he is seeking to keep the instant complaints against the Respondent in place, and to join the Minister rather than substituting him for the Respondent, or to keep the current complaints in place and allow separate but linked complaints to be made against the Minister. The Complainant submits that this will protect his claims in the circumstances that the Respondent carried out all the roles and duties of an employer apart from the issuing of warrants of appointment. The Complainant submits that the consent of the Minister, along with his agreement that no injustice will be suffered by him in the event that he is joined to proceedings and further agreement to waive any objection in relation to the expiry of time limits, deals with any issue of time limits or possible prejudice to him.

It was submitted that the inadvertence as per Section 39(4) of the Act was in not naming both the statutory body and the Minister, and that nothing in the Act precludes his joinder.

Application to join the Minister as a co-respondent

The Complainant submits that the Adjudication Officer also has the jurisdiction to join or add a new party to proceedings outside of the parameters of Section 39(4) of the Organisation of Working Time Act, 1997. The Complainant contends that the Adjudication Officer has jurisdiction to join the Minister on the authority of the High Court in County Louth VEC v Equality Tribunal [2009] IEHC 370, especially as the Minister has in open correspondence admitted that no prejudice will be caused to him and is volunteering to become a respondent in the claims.

The Complainant disputes the Respondent’s contention that the Adjudication Officer has no power to add the Minister to the proceedings without first dismissing the claim as against it. The Complainant submits that this contention seems to presume that no claim can be brought against more than one respondent. It was submitted that the Respondent and its predecessor bodies have taken on board cases against more than one named respondent under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 and under the Unfair Dismissals Acts where a question of TUPE transfer was present.

The Complainant submits that the question of the identity of an employer can be difficult to resolve, and natural justice requires that he has the right to pursue complaints against both the Respondent and the Minister. The Complainant contends that there are situations where a person may be entitled to claim against different respondents under the various employment rights and equality enactments. The Complainant submits that no caselaw has been cited by the Respondent/Minister preventing the Adjudication Officer from adding the Minister to the complaint. He submits that all the case law relied upon by the Respondent/Minister on this point refers to situations where it became crystal clear who was in fact the employer.

Jurisdictional Issue – Identity of the Correct Respondent/Employer

The Respondent submits that the Complainant lacks the required locus standi to maintain the within proceedings and therefore the Adjudication Officer does not have the jurisdiction to inquire into the complaints under the enactments in question. The Respondent submits that the Complainant was not engaged by it under a contract of employment and that no relationship of employment ever existed or was capable of existing between the parties.

The Respondent made the following submissions in support of its position on this matter:

·       It is necessary to consider the definition of the terms “employer” and “employee” under each of the relevant pieces of legislation at issue in these proceedings. These definitions must also be considered in conjunction with the provisions of Section 3 of the Workplace Relations Act 2015 which makes provision for the manner in which the aformentioned terms should be construed in relation to a complaint which is referred to the Director General for adjudication under Section 41 of that legislation. It is clear that those definitions do not envisage a relationship of employment between the parties such as that which the Complainant is contending for in the instant case. The Respondent relies upon the decision of the High Court in the case of Murphy v The Minister for Social Welfare [1987] IR 295 and related case law which clearly provides that persons such as Complainant are office-holders and therefore not employees.

·       It is clear from the legislation which established the Respondent as a statutory body that an employment relationship as envisaged by the Complainant could not exist between the parties. This legislation provides that the Minister has the power to appoint staff to the body, to determine their terms and conditions and to pay their remuneration.

·       This legislation clearly envisage that the Respondent is subsumed within the parent Department as presided over by the Minister. Any payments accrued by the Respondent are from the Department’s vote and account, which the Department does through the National Shared Service Office for pay. The Secretary General of the relevant Government Department is the Accounting Officer for the Respondent’s budget. The Department has responsibility for any personnel or HR matters relating to the Respondent.

·       The Complainant was appointed by the Minister to the position of Adjudicator with the Respondent body under the relevant legislation and his warrant of appointment was issued by the Minister’s Department. The Complainant’s appointment to the position of Adjudicator with the Respondent’s predecessor body was also made by the Minister by way of statute (the relevant provisions of this enactment have now been repealed). It is evident from the foregoing that the statutory regimes applicable to the appointment of the Complainant manifestly do not envisage any possibility of the Complainant being an employee of the Respondent.

·       The Respondent accepts that the question of whether a relationship of employment exists is a matter to be determined on a case-by-case basis. The key legal principles to be applied in determining employment status can be found in the very substantial body of case law on point, as well as in sources such as, for example, the Revenue’s Code of Practice for Determining Employment or Self-Employment Status of Individuals.

·       The leading Irish case on this issue is Henry Denny & Sons (Ireland) Limited t/a Kerry Foods v Minister for Social Welfare [1998] 1 IR 34 where the Supreme Court held that when determining the status of an individual both the contractual terms and the surrounding practical circumstances of the relationship should be considered. The relevant tests to be applied in determining the status of an individual were summarised by the Court in the Denny case as the control test, the integration test, the economic reality test and the entrepreneurial test. The Supreme Court recognised in this case that the extent and degree of control exercised by one party over the other is not always decisive in determining employment status. The Respondent also referred to the leading English case on this issue Ready Mixed Concrete Ltd (South East) v Minister of Pensions [1968] 2 QB 497 in support of its position that there was no employment relationship between the parties.

·       The Courts have consistently held that the concept of “mutuality of obligation” is a crucial initial filter for determining employment status (as per Cotswold Developments Construction Ltd v Williams [2006] IRLR 181 (EAT) and Wilson v Circular Distributions Ltd [2006] IRLR 38). The Irish courts have upheld this principle in the case of Minister for Agriculture v Barry [2009] 1 IR 215 where the High Court held that “The requirement of mutuality of obligation is the requirement that there must be 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”.

·       The Complainant can never surmount the formidable hurdle posed by the question of mutuality of obligation, since there was never any obligation or indeed any power on behalf of the Respondent to provide work to the Complainants, whose appointment (and revocation) is controlled and decided by the Minister. When one goes beyond mutuality of obligation, it is submitted that the Complainant was in no real way integrated into the business of the Respondent and he retained autonomy and independence as a decision-maker, as is necessary in accordance with the importance of the role.

·       The question of any employment relationship being enjoyed by the Complainant in the circumstances of the instant complaints is one which can only be meaningfully addressed in relation to the Minister.

·       The Complainants cannot establish locus standi as against the Respondent and accordingly no complaints should be permitted to proceed as against the Respondent.

Evidence of Ms. B (Principal Officer)

Ms. B, who is a Principal Officer in the relevant Government Department, stated that she has responsibility for the liaison functions between the Department and the Respondent. Ms. B stated that the Respondent is an independent statutory body and is an office which falls under the auspices of the relevant Government Department. Ms. B stated that there is a Memo of Understanding between the Department and the Respondent which is renewed on an annual basis and sets out the relationship between these bodies. The said Memo provides that personnel and financial matters relating to the Respondent are dealt with by the Department. Ms. B stated that the Respondent does not employ any staff and that all personnel working for the Respondent are employed by the Department/Minister and assigned to the Respondent.

Ms. B provided a comprehensive description in relation to the procedures which applied to the Complainant’s respective appointments to both his current position as an Adjudicator with the Respondent and to his previous position as an Adjudicator with the Respondent’s predecessor body. Ms. B stated that both appointments were made by the Minister in accordance with the relevant statutory provisions which govern appointments to such positions. Ms. B stated that the Complainant’s warrant of appointment was issued by the Minister and that the HR Unit in the Department had overall responsibility for dealing with any HR matters arising from the Complainant’s appointment.

Ms. B stated that the Minister takes the view that the named Respondent is not the correct party to the complaints and therefore, any relationship arising from his appointment to the office of Adjudicator rests with the Minister not the Respondent.

Evidence of Mr. A (former Manager within the Respondent)

Mr. A is a former Assistant Principal Officer and has recently retired from his position as Manager of the Respondent’s Adjudication Services Unit. Mr. A stated that he had held this position since the establishment of the Respondent in 2015 and had extensive knowledge and experience in relation to the operation of the Respondent’s adjudication structures.

Mr. A stated that the Respondent does not have any autonomy in relation to the appointment of staff members who are all assigned to the body by the parent Department. Mr. A stated that the cadre of Adjudicators who are engaged by the Respondent consists of a mixture of civil servants (at Assistant Principal Officer level), former Adjudicators from the Respondent’s predecessor bodies (which included the Complainant) and a panel of external Adjudicators who were appointed by the Minister. Mr. A stated that Adjudicators who had served in the Respondent’s predecessor bodies were appointed to the role of Adjudicator with the Respondent under the relevant legislation which established the latter as a statutory body in October, 2015. Mr. A stated that Adjudicators who had served with the Respondent’s predecessor body also retained their statutory appointments in this role following the establishment of the Respondent in order to deal with pre-existing cases.

Mr. A provided a comprehensive outline in relation to the manner in which the scheduling of adjudication work is conducted both from an administrative and a technical perspective. Mr. A stated that Adjudicators were requested to provide advance confirmation of their availability to facilitate the scheduling of cases for adjudication. He stated that the Respondent would endeavour to schedule the Adjudicators for work on any dates upon which they were available, but this was dependent on a number of factors such as the availability of sufficient cases for adjudication, geographic considerations and the availability of hearing facilities.

Mr. A stated that Adjudicators had the opportunity to maximise their income by increasing their level of availability for adjudication work. Mr. A stated that the Respondent was not obliged to provide or guarantee a minimum or specific number of days work to Adjudicators in any given period and there was no sanction or penalties applied in respect of periods of unavailability.

Mr. A stated that there was no prohibition on Adjudicator’s carrying out work outside of their role with the Respondent and they weren’t required to obtain permission for periods of unavailability or for annual leave. Mr. A stated that Adjudicators were paid a set fee on a per diem basis for their work and these fees were validated by the Respondent but were paid from the Department’s budgetary allocation. Mr. A stated that the Respondent did not have any control of the rate of fees paid to Adjudicators and that any increase or changes to the rate were within the remit of the parent Department and Department of Public Expenditure.

Mr. A stated that the Respondent convened meetings for Adjudicators on a biannual basis for training/development purposes but there was no compulsion on them to attend or any sanction applied for non-attendance.

Mr. A stated that all HR matters relating to Adjudicators were dealt with by the parent Department and that the Respondent did not have any functions or responsibilities relating to such matters. Mr. A stated that Adjudicators (with the exception of the civil servant Adjudicators) were not subjected to the civil service performance management or appraisal systems.

Respondent’s position on application under Section 39(4) of the OWTA 1997

The Respondent submits that it wishes to co-operate fully with the Complainant to progress his complaints provided that this is done against the appropriate entity, namely the Minister.

The Respondent submits that the Adjudication Officer enjoys a wide jurisdiction under Section 39(4) of the Organisation of Working Time Act, 1997 and should exercise the said jurisdiction in this case so grant leave to the Complainant to initiate proceedings in respect of these matters against the Minister.

The Respondent submits that the Adjudication Officer should accede to the application made by the Complainant under Section 39(4) of the Organisation of Working Time Act 1997 and having done so, decline jurisdiction to hear any complaints as against it, for the reasons already set out above.

The Respondent submits that the Adjudication Officer has clearly been conferred with authority under Section 39(4) to make an order allowing the Complainant to pursue his complaints against the Minister, and that all of the criteria in subsection (4) have been met on the facts of the within complaints.

The Respondent submits that Section 39(4) does not permit the joinder of the Minister as a co-respondent to the within complaints.

Minister’s position on application to join him as co-respondent to the instant proceedings

The Minister submits that he is the correct respondent in law to the instant proceedings on the basis that he is the person who appointed the Complainant to the position of Adjudicator pursuant to the relevant statute.

The Minister submits that contrary to the assertion on the part of the Complainant, the same complaints cannot be made against two respondents. It is a matter for the Complainant to nominate who he says his employer is for the purposes of the complaints he wishes to make under each enactment he relies upon. To date, the Complainant has only pursued the Respondent.

The Minister submits that as a matter of law it has been pointed out to the Complainant that the Respondent has been incorrectly named as respondent to these complaints and the Minister has accepted that he is the appropriate respondent to the complaints that have been made. In this case, the Complainant is obliged to make his complaint against his employer, with reference to how “employer” is defined in the various enactments he relies upon and to pursue that party. It is not appropriate that a number of respondents be named with a view that at some point in the future, a decision will be made against one of those respondents. This is an abuse of process.

The Minister submits that the Adjudication Officer has no jurisdiction to join him as a co-respondent to the instant proceedings. If the Complainant wishes to proceed against the Minister, he would be required to issue complaints against the Minister, which complaints are now statute barred, save where leave has been granted pursuant to Section 39(4) of the 1997 Act.

The Minister submits that the Complainant is not seeking an amendment to the name of the Respondent, nor a substitution of one Respondent for another but rather is seeking to join another respondent to the instant proceedings in circumstances where he failed to proceed in time or at all against that other party, the Minister. The Adjudication Officer has no jurisdiction to simply join a respondent against whom a complaint has not been made by the Complainant.

The Minister submits that this is not a situation where the Complainant made a typographical error in the name of the Respondent. The circumstances in the instant case are entirely different to the situation that pertained in Sandy Lane Hotel Limited v Times Newspapers Limited [2014] 3 IR 369 or O’Higgins v UCD [2013] IEHC 508 in which the applicants sought to correct the name of a respondent.

The Minister submits that while he has consented to an application under Section 39(4), no consent has been provided to the joinder of the Minister as a co-respondent to the proceedings by way of an amendment of the nature claimed by the Complainant, and for which the Adjudication Officer has no jurisdiction.

Minister’s position on application under Section 39(4) of the OWTA, 1997

The Minister confirmed that he agrees with the Respondent’s position that it is not the appropriate respondent to these proceedings and therefore has consented to an application by the Complainant under Section 39(4) in those circumstances. The Minister further confirmed that no claim of injustice is being made on his part in relation to the application under Section 39(4).

The Minister made the following points in relation to the Complainant’s application under Section 39(4), namely:

·       The procedure under Section 39(4) is a stand-alone procedure to issue fresh complaints against a new respondent and does not provide for the substitution of a respondent. Nor does it provide for the joinder of a respondent as suggested by the Complainant. The Minister relies upon the Labour Court decision in Auto Depot Limited v Vasile Mateiu DWT1922 in support of its position on this point.

·       As an application has been made by the Complainant under Section 39(4), it is a matter for the Adjudication Officer to determine whether the Respondent was incorrectly named on the Complaint Form, as provided for in Section 39(4).

·       If the Adjudication Officer determines that the Respondent was incorrectly named on the Complaint Form and is otherwise satisfied that the requirements of Section 39(4) have been met, he is entitled to grant the Complainant leave to issue complaints against the Minister. The Complainant would then be entitled to issue a WRC Complaint form against the Minister in respect of the within complaints.

·       If leave is so granted, the consequence of that finding is that the Adjudication Officer does not have jurisdiction to investigate the instant complaints under the statutes relied, as against the Respondent. This is the natural consequence of an application under Section 39(4) and can been seen from the decision of the WRC in A General Operative v A Restaurant ADJ-00012656.

·       The Adjudication Officer has no jurisdiction to join the Minister to the within complaints and an application under Section 39(4) cannot result in the joinder of a new party to the complaints.

Jurisdictional Issue – Identity of correct Respondent/Employer

The first issue that I must decide relates to the jurisdictional issue as to whether the Complainant has impleaded the correct entity as the Respondent/Employer in these proceedings. The Respondent submits that it has been incorrectly named as the respondent in relation to these complaints and that no relationship of employment ever existed, or was capable of existing, between the parties. The Respondent submits that the Complainant lacks the necessary locus standi to maintain the within proceedings. The Respondent contends that the Minister is the correct respondent, but that the Complainant is now statute barred from amending or adding this entity as a party to the within proceedings.

The Complainant disputes the Respondent’s contention that the incorrect respondent has been impleaded in the within proceedings. The Complainant contends that he was employed by the Respondent in the role of an Adjudicator following its establishment as a statutory body in October, 2015 after having been previously been employed as an Adjudicator since 2003 by the Respondent’s predecessor body. The Complainant submits that his relationship with the Respondent satisfies all the relevant tests which have been established by the courts when determining the employment status of an individual as an employee. The Complainant submits that the question of the identity of an employer can be difficult to resolve and he contends that there is no statutory prohibition on him pursuing more than one respondent in relation to these complaints. The Complainant has therefore sought to join the Minister as a co-respondent to the within proceedings.

Therefore, the key issue to be considered at the outset of my deliberations on this matter is whether the Complainant was engaged on a contract of employment by the named Respondent during the material period in question in the within proceedings. If, as contended by the Respondent, there was no employment relationship between the parties within the meaning of the specific enactments in question, he therefore lacks the necessary locus standi to pursue a claim under these Acts.

The relevant legislative provisions within the specific enactments in question are set out hereunder.

Section 3 of the Protection of Employees (Part-Time Work) Act 2001 contains the following definitions of “contract of employment”, “employee” and “employer”:

“contract of employment” means—

(a) a contract of service or apprenticeship, and

(b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971, and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract),

whether the contract is express or implied and, if express, whether it is oral or in writing;

“employee” means a person of any age who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purposes of this Act, a person holding office under, or in the service of, the State (including a civil servant within the meaning of the Civil Service Regulation Act 1956) shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority for the purposes of the [Local Government Act 2001 (as amended by the Local Government Reform Act 2014)], a harbour authority, [the Health Service Executive] or [a member of staff of an education and training board] shall be deemed to be an employee employed by the authority, [Executive] or [board], as the case may be;

“employer” means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment, subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer;

Section 2 of the Protection of Employees (Fixed-Term Work) Act 2003 contains the following definitions of “contract of employment”, “employee” and “employer”:

““contract of employment” means a contract of service whether express or implied and, if express, whether oral or in writing but shall not include a contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract);”

“employee” means a person of any age, who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer and, for the purposes of this Act, a person holding office under, or in the service of, the State (including a civil servant within the meaning of the Civil Service Regulation Act 1956) shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority, a harbour authority, the [Health Service Executive] or [a member of staff of an education and training board] shall be deemed to be an employee employed by the authority, [Executive] or [board], as the case may be;

“employer” means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;”

Section 2 of the Organisation of Working Time Act, 1997 contains the following definitions of “contract of employment”, “employee” and “employer”:

““contract of employment” means

(a) a contract of service or apprenticeship, and

(b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971, and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract),

whether the contract is express or implied and if express, whether it is oral or in writing;

“employee” means a person of any age, who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purposes of this Act [and the Activities of Doctors in Training Regulations], a person holding office under, or in the service of, the State (including a civil servant within the meaning of the Civil Service Regulation Act 1956) shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority for the purposes of the [Local Government Act 2001 (as amended by the Local Government Reform Act 2014)], or of a harbour authority, [the Health Service Executive] or [a member of staff of an education and training board] shall be deemed to be an employee employed by the authority, [the Executive] or [board], as the case may be;

“employer” means in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment, subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual's employer;”

It is clear from these provisions that a person must be employed under a contract of employment within the meaning of the legislation in order to maintain a complaint against his/her employer under the abovementioned Acts.

The relevant starting point when determining the nature of the relationship that existed between the parties is to examine the statutory framework under which the Complainant was appointed to the role of Adjudicator with the Respondent. It was not in dispute that the Complainant had held the position of Adjudicator with the Respondent’s predecessor body since 2003 and that this appointment was promulgated by the Minister in accordance with the relevant statutory provisions.  The Complainant’s warrant of appointment in relation to this role was renewed by the Minister on a number of occasions thereafter and he continued to work in this role until 2015. The Complainant was not retained under a written contract during his period of appointment as an Adjudicator with the Respondent’s predecessor body. The statutory body which had responsibility for the operation of the adjudication functions being discharged by the Complainant at that juncture was merged with a number of other similar bodies in October, 2015. This merger resulted in the establishment of the Respondent as a statutory body on 1 October, 2015. The Complainant was appointed by the Minister to the role of Adjudicator with the Respondent with effect from this date in accordance with the relevant statutory provisions. The Complainant’s warrant of appointment in the role of Adjudicator with the Respondent was revoked by the Minister on 25 October, 2018. The Complainant also retained his appointment as an Adjudicator with the Respondent’s predecessor body following the establishment of the new body to deal with legacy cases that remained in process on 1 October, 2015. The Complainant’s warrant of appointment in this role expired on 30 September, 2018.

The law has for some time recognised the distinct position of office-holders who hold their appointment at the pleasure of the government, or a Minister of the government as opposed to those who are engaged on a contract of employment in the conventional sense. I note that the characteristic features of an office-holder were defined by Kenny J in the case of Glover -v- BLN Ltd (1973) IR 388 where it was held that: “[an office] is created by Act of the National Parliament, charter, statutory regulation, articles of association of a company or of a body corporate formed under the authority of a statute, deed of trust, grant or by prescription; and that the holder of it may be removed if the instrument creating the office authorises this”.

The issue concerning the employment status of an office holder was also considered by the High Court in the case of Murphy -v- The Minister for Social Welfare [1987] IR 295.In this case the applicant who had been appointed as an ordinary member of the Labour Court, sought an order that he was in insurable employment for the purposes of the Social Welfare (Consolidation) Act 1981. Blaney J. held that: "I reject the applicant's first submission. I do not agree that he was employed under a contract of service. His counsel conceded that he was the holder of an office, and I think there is no doubt that he was. The provisions of s. 10 of the Industrial Relations Act, 1946, which set up the Labour Court, make this quite clear……. It seems to me that Glover's Case [1973] I.R. 388 is no authority for the proposition that the applicant appears to be putting forward, namely, that if he can establish that in addition to holding an office he also has a contract with the Minister, this would result in his employment being under a contract of service…… even if the applicant could establish some contract with the Minister, this would not in any way alter the fact that the origin of his employment was his appointment to a statutory office and not his entering into any contract of service”.

In the instant case, notwithstanding the fact that the Complainant was engaged as an Adjudicator of the Respondent, which is a statutory legal entity, it is clear from the statutory framework which governs the Respondent that the power to make appointments to the position of Adjudicator, to remove Adjudicators and to extend their terms of appointment are all vested in the Minister. It is also clear that the Complainant was not retained pursuant to a contract of employment with the Respondent but rather he was appointed to the position of Adjudicator by way of a warrant which was promulgated by the Minister under the relevant statutory provisions. The Complainant was also paid a set fee on a per diem basis by the Minister in relation to the work that he conducted in his role as an Adjudicator. Having regard to the foregoing, I am satisfied that the Complainant’s appointment to the role of Adjudicator contained all of the characteristic features of a statutory office. In the circumstances, I find that he was an office holder for the duration of the period that he held the position of Adjudicator.

It is clear from the definitions of the terms “employee” and “employer” as provided for in the enactments in question in these proceedings that an office holder is not precluded from protection under the legislation. However, to qualify for such protection under the legislation, an office holder must be engaged under a “contract of employment” with the employer in question. The term “contract of employment” is further defined in the Acts as meaning “a contract of service or apprenticeship” which can be either express or implied between the parties. Furthermore, the definition of “employee” explicitly states that an office holder who is engaged under a contract of employment in the service of the State shall be deemed to be an employee employed by the State or Government.

Having regard to the nature and manner of the Complainant’s appointment (as outlined above), I am satisfied that he was not engaged under a contract of employment with the Respondent but rather he was appointed by the Minister as an office holder to the position of Adjudicator. In applying the abovementioned legislative provisions to the circumstances of the within case, I find that the establishment of any possible employment relationship arising from his appointment as an Adjudicator in the context of the relevant enactments in question in these proceedings could only have existed between him and the Minister and not the Respondent.

I note that the Complainant has relied upon a number of cases from other jurisdictions, including Mayo Perceval-Price & Others -v- Department of Economic Development and UX -v- Governo Della Repubblica Italiana as authorities in support of his contention that he was employed under a contract of employment with the Respondent. In the Mayo-Perceval case, the applicant was a member of the Fair Employment Tribunal in Northern Ireland and the subject of the court proceedings related to the question of whether she had the locus standi (as a statutory office holder) to bring claims in relation to equal pay and sex discrimination to an Industrial Tribunal under the Equal Pay Act (Northern Ireland) 1970 and the Sex Discrimination (NI) Order 1976. In the UX case, the applicant was an Italian magistrate, and the Italian Government sought a ruling from the Court of Justice of the European Union on the question of whether magistrates (as statutory office holders) were deemed to be “workers” for the purposes of the EU Working Time Directive. 

It is noteworthy that in both of these cases, the legal actions in the respective jurisdictions which gave rise to the actual proceedings were initiated by the applicants against the relevant Ministry or Government Department which had appointed them to their respective statutory offices. In Mayo-Perceval, the legal action was pursued against the Department of Economic Development and in UX, the legal action was pursued against the Italian Ministry of Justice. It is clear from the rationale in these cases that it was the relevant Government Ministry/Department that was deemed to be the correct respondent for the purpose of the legal proceeding rather than the actual Tribunal or statutory body within which the applicants discharged the duties associated to their statutory office. Having regard to the foregoing, I am satisfied that these cases do not support the Complainant’s position on this matter but rather they significantly undermine his contention that the Respondent was the correct respondent/employer in the circumstances of the instant complaints.

Having regard to the foregoing, I find that there was no employer/employee relationship between the Complainant and the Respondent within the meaning of those terms as provided for in the enactments in question in the within complaints. Accordingly, I find that the Complainant has impleaded the incorrect respondent/employer in the within complaints and therefore does not have the required locus standi to maintain the within proceedings against the Respondent.

I note that the Complainant has also contended that his status with the Respondent is clearly that of an employee when this relationship is considered in the context of the various tests which have been established by the courts and the guidance set out in the Code of Practice when determining the employment status of an individual. Having regard to my findings above that the Respondent is not the correct respondent/employer in the within proceedings, I find that any consideration of the relationship between the Respondent and Complainant in the context of the relevant tests for determining employment status as laid down by the courts is moot in the circumstances of the within complaints and is a matter that would properly fall for consideration in terms of any proceedings against the Minister under the enactments in question.

Application to add the Minister as co-respondent to the within complaints

The next issue that I must address relates to the Complainant’s application to amend the within proceedings by adding the Minister as a co-respondent to the complaints under the enactments in question. It is important to note that the Complainant is not seeking to amend the name of the Respondent which was impleaded on the Complainant Referral Form or to substitute one Respondent for another but rather has sought to join the Minister as a co-respondent to the within proceedings. The named Respondent has objected to the Complainant’s application to join the Minister as a co-respondent to the within proceedings.

It is clear that there is no statutory mechanism which the Complainant can invoke in the circumstances of the instant case in order to facilitate the amendment of the within proceedings in order to add another party as co-respondent. However, it is well established from several recent authorities that statutory tribunals such as the WRC should operate with a minimum degree of informality and should not apply procedures that are more rigid or stringent than the ordinary courts. This proposition is subject, of course, to the overriding principle that statutory tribunals are obliged to ensure adherence to fair procedures in the discharge of their functions.

In this regard, I note that the seminal case on the question of when proceedings before a statutory tribunal can be amended is County Louth VEC -v- Equality Tribunal [2009] IEHC 370 where the High Court held that: “If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then, a fortiori, it should also be permissible to amend a claim as set out in a form such as an originating document before a statutory tribunal, so long as the general nature of the complaint remains the same.”

This view was reinforced by the Labour Court in Travelodge Management Limited -v- Sylwia Wach EDA1511 where it was stated that: “It could cogently be argued that in keeping with the decision in County Louth VEC v Equality Tribunal, and by application of the principle of equivalence, the Court should not adopt a more stringent stance in relation to the substitution of parties that is available in the High Court pursuant to that rule.”

It was also stated by the Labour Court in the Wach case that whilst there are divergent views on the circumstances in which the substitution or addition of a party in proceedings should be allowed” the preponderance of authority is that the Superior Courts will not add or substitute a party to proceedings where the limitation period in the action has expired as against that party”. In this case the Labour Court held that it was not permissible to add or substitute a party to proceedings where the statutory limitation period has expired as against that party.

In applying this jurisprudence to the facts of the instant case, it is clear that the application to add the Minister as a co-respondent has not been made within the applicable time limits that govern the referral of complaints under the respective enactments in question (namely, Section 41(6) of the Workplace Relation Act, 2015). The Complainant’s warrant of appointment as an Adjudicator was revoked by the Minister on 31 August, 2018, and therefore, the alleged contraventions under the enactments in question in the within complaints could not have occurred any later than that date. I note that the application to amend the within proceedings by joining the Minister as a co-respondent was not made by the Complainant until the date of the initial hearing on 14 October, 2020, and therefore, was clearly made outside of the statutory time limits which govern the referral of complaints under these enactments. In the circumstances, I find that I do not have jurisdiction to allow the Complainant to amend the within proceedings by joining the Minister as a co-respondent to the complaints.

Application pursuant to Section 39(4) of the Organisation of Working Time Act, 1997

The next issue that I must consider turns to the Complainant’s application pursuant to Section 39(4) of the Organisation of Working Time Act 1997 for leave to institute proceedings against the Minister in relation to the matters which are the subject of the instant complaints. The Complainant has sought to rely upon the provisions of Section 39(4) in order to join the Minister as a co-respondent to the within proceedings.

Section 39(4) of the Organisation of Working Time Act, 1997 provides: -

“(4) If an employee wishes to pursue against a person a claim for relief in respect of any matter under an enactment or statutory instrument referred to in subsection (2), or the Table thereto, and has already instituted proceedings under that enactment or statutory instrument in respect of that matter, being proceedings in which the said person has not been given an opportunity to be heard and—

(a) the fact of the said person not having been given an opportunity to be heard in those proceedings was due to the respondent’s name in those proceedings or any other particular necessary to identify the respondent having been incorrectly stated in the notice or other process by which the proceedings were instituted, and

(b) the said misstatement was due to inadvertence,

then the employee may apply to whichever relevant authority would hear such proceedings in the first instance for leave to institute proceedings against the said person (“the proposed respondent”) in respect of the matter concerned under the said enactment or statutory instrument and that relevant authority may grant such leave to the employee notwithstanding that the time specified under the said enactment or statutory instrument within which such proceedings may be instituted has expired:

Provided that that relevant authority shall not grant such leave to that employee if it is of opinion that to do so would result in an injustice being done to the proposed respondent.”

In the case of Auto Depot Limited v Vasile Mateiu UDD1954, the Labour Court provided clarification in relation to the circumstances in which an application under Section 39(4) can be properly invoked within the meaning of that provision. The Labour Court held that: “As is clear from the wording of subsection (4), these provisions are intended to provide a mechanism by which fresh proceedings can be instituted against an employer which was incorrectly identified in an original complaint. This subsection does not deal with the amendment of either proceedings or a decision. Nor does it allow for the substitution of one respondent for another. This subsection applies to situations in which a complaint is initiated against a wrong party as respondent and the complainant wishes to initiate a fresh complaint concerning the same matter against the correct respondent. What this subsection provides is that, in these circumstances, the complainant may apply to the tribunal of first instance, an Adjudication Officer in this case, for leave to re-initiate proceedings against the correct respondent. That is a stand-alone process and if leave is granted, the Complainant can re-submit his or her complaint afresh. In order to grant leave to an employee to invoke these provisions, the Adjudication Officer will have to be satisfied that the conditions specified in the subsection are met. The Court must therefore respectfully disagree with Ms. Sheehan’s characterisation of the Section 39(4) process. It is not a process for amending proceedings or substituting parties. It is a process whereby a tribunal at first instance, being satisfied that certain conditions have been met, can grant a Complainant leave to initiate a fresh complaint against the correct respondent without falling foul of applicable limitation periods.”

It is clear from the Labour Court’s interpretation of Section 39(4) that this provision can only be invoked in circumstances where a complaint has initially been initiated against the wrong party as respondent and that in such circumstances, the Complainant can seek leave to initiate fresh proceedings in relation to the same complaints against the correct respondent. It is also clear that this procedure is only relevant if the time limit for initiating the complaint has elapsed. If the claim is still in time, there is no need to invoke this provision since there is no impediment to bringing a fresh complaint against a different entity than that against which the first complaint was initiated. It is, in effect, analogous to the granting of an extension to bring a case outside the time limit but without an outer limit as to the length of the extension available.

Having regard to the foregoing, I am satisfied that the Complainant has fundamentally misinterpreted the true import of the provisions of Section 39(4) and that contrary to his assertion, this provision cannot legitimately be invoked to join the Minister as a co-respondent to the within proceedings. 

I am satisfied that to grant leave to an employee to invoke these provisions, an Adjudication Officer must be satisfied that the conditions specified in the subsection are met, namely: -

(a)    That a complaint was previously initiated in respect of the same matter against an incorrectly named or described party,

(b)    The proposed Respondent has been afforded an opportunity to be heard in relation to the application,

(c)     That the error in naming or describing the employer in the original case was due to inadvertence, and

(d)    That the proposed new Respondent would not suffer an injustice if leave is granted.

In applying the above tests to the instant case, I am satisfied that the conditions outlined at (a) to (d) above have been satisfied in the context of the within application under Section 39(4). In relation to (a), having regard to my findings above I am satisfied that the Complainant has already initiated proceedings in respect of these matters against an incorrect Respondent. In relation to (b), the proposed respondent i.e. the Minister has been afforded the opportunity to be heard in relation to the application under Section 39(4). In relation to (d) I note that the Minister has consented to the within application under Section 39(4) and has confirmed that no claim of injustice is being made on his part in relation to this matter.

Having regard to the foregoing, I am prepared to grant leave to the Complainant pursuant to Section 39(4) of the Organisation of Working Time Act 1997 to initiate proceedings against the relevant Minister in relation to the complaints under the Protection of Employees (Part-Time Work) Act, 2001, the Protection of Employees (Fixed-Term Work) Act, 2003 and the Organisation of Working Time Act 1997.

For the sake of clarity from a procedural perspective and having regard to the fact that the provisions of Section 39(4) do not provide for the substitution of one respondent with another in a claim already in being, in circumstances where leave is granted pursuant to Section 39(4), the Complainant must then initiate his or her claim afresh against the correct party through the established procedures of the WRC by completing the normal initiating form.

I find that the Complainant has pursued the incorrect Respondent and that he was not engaged on a contract of employment by the named Respondent within the meaning of the specific enactments in question in the within proceedings. Accordingly, I find that the Complainant does not have the required locus standi to maintain the within proceedings against the Respondent, and therefore, I do not have jurisdiction to inquire into the complaints under the Protection of Employees (Part-Time Work) Act, 2001, the Protection of Employees (Fixed-Term Work) Act, 2003 and/or the Organisation of Working Time Act 1997.

I grant leave to the Complainant pursuant to Section 39(4) of the Organisation of Working Time Act 1997 to initiate proceedings against the relevant Minister in relation to the complaints under the Protection of Employees (Part-Time Work) Act, 2001, the Protection of Employees (Fixed-Term Work) Act, 2003 and the Organisation of Working Time Act 1997.

Protection of Employees (Part-Time Work) Act, 2001 - Protection of Employees (Fixed-Term Work) Act, 2003 - Organisation of Working Time Act 1997 - Incorrect Respondent/Employer – No Jurisdiction – Section 39(4) – Application to initiate fresh proceedings against correct Respondent/Employer – Leave Granted