Complainant

Respondent

Parties

Mary Elizabeth Fitzgerald

Recovery Self Help Method Ireland (Company Limited by Guarantee)

Representatives

Act

Complaint Reference No.

Date of Receipt

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

CA-00043120-001

18/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00043120-002

18/03/2021

The complainant states that she started working for the respondent in or around 2008/2009. She submits that her initial contract was renewed for an indefinite period in July 2012. The complainant states that her contract ended on 31 January 2021 after she was given notice in or around 31 October 2020. The complainant maintains that her main role was to assist the company with PR and Marketing for the Charity. The complainant submits that she was in effect on an indefinite contract of employment until 31 January 2021. The complainant states that her payment for the work she carried out was initially €1000 monthly which was subsequently reduced to €500 per month following the financial crash in 2008/2009. The complainant states that in September 2018 there were some changes to Personnel in the Charity and Mr. K was appointed new Area Leader following another person stepping down. The complainant alleges that she was subjected to bullying by Mr. K. The complainant made a complaint regarding the alleged bullying behaviour to the Board of Directors of the Charity and also reported the matter to the CEO based in the USA as it provides the licence for the respondent to provide mental health services in Ireland. However, the complainant states that she got no adequate response on the matter.

The complainant states that she was penalised under section 28 of the Safety, Health and Welfare at Work Act for making an official complaint against Mr. K. The complainant claims that she was unfairly dismissed pursuant to the provisions of the Unfair Dismissals Act, 1977.    

The respondent submitted that it is a small charity which was established for the promotion of mental health and well-being by providing self-help programs based on the cognitive behavioural training system. The respondent states that its services are provided by unpaid volunteers throughout Ireland. The respondent submits that prior to the Covid -19 pandemic, its volunteers had held 26 weekly meetings around the country. However following the government directives as a result of the pandemic, the respondent had to shut down all its weekly in person meetings. The respondent asserts that its income plummeted at this time. It is only now that they have been able to re-open some of the physical weekly meetings. It states that 6 out of the 26 meetings have been re-opened on a trial basis. The respondent states that its office remains closed and its total income from the weekly meetings currently amounts to circa €200 per month. The respondent submits that it is being run by unpaid volunteers and all of the Board members are also unpaid volunteers. The respondent states that since at least 2010, the charity has adhered to a policy of it having no employees.

The respondent maintains that the WRC is precluded from hearing this complaint as the complainant does not have locus standi to pursue a complaint as she is not an employee within the meaning of the definition in the legislation. It states that the complainant has never been employed by the respondent under a contract of employment i.e. under a “contract of service” and accordingly the provisions of the Unfair Dismissals Act do not apply. The respondent states that the complainant was a self-employed individual. It states that it is evident from her WRC complaint form that the complainant has stated that she was a “self employed” individual. The respondent submits that attached to the WRC complaint form, she has included a copy of a signed contract for PR services dated 24 July 2012. The respondent states that this was not a contract of employment i.e. “of service”. The respondent states that the first sentence of the contract states that it is a “Contract for PR Services”. The respondent submits that the complainant is an independent contractor and could not therefore have been an employee under the Act.

The respondent submits that the complainant’s contract stipulated that she would be paid €1000 plus VAT at 23% - this figure was later reduced by agreement to €500 plus VAT (as a consequence of the effects of the financial crash in 2008). The respondent states that these monthly figures were paid gross in response to an invoice presented by the complainant and without deduction of tax. No provision was made or required in the contract for the deductions of PAYE/PRSI or USC. The respondent further states that no PAYE documentation was issued to the complainant at any time such as a monthly pay-slip, annual P60 forms or a P45 form on her termination. The respondent reiterates the point that the lack of these legally required Revenue PAYE/PRSI forms clearly point to the complainant not having been an employee. The respondent further states that the complainant would have been legally obliged to account for the VAT charged with regard to the Revenue in the bi-monthly VAT returns she made in her main PR Consultancy firm. The respondent states that there was no provision for paid holiday leave and the complainant had to provide a “Tax Clearance” certificate to the respondent which points clearly to and confirms the complainant’s status as a self employed individual.

The respondent states that the complainant is owner/principal of her own separate PR Consultancy Services firm and submitted documentation taken from her business website. It states that the latter pages of said documentation set out the range of services provided by her on a consultancy basis to a range of several client categories, one of which was the respondent. The respondent restates its position that the complainant does not have locus standi to bring a complaint as she is not an employee within the meaning of the definition in the Unfair Dismissals Act.     

The matter for me to consider and examine is the working relationship between the complainant and the respondent in order to ascertain whether or not the complainant was working as an independent contractor or as an employee of the respondent.   In doing so I am guided by the finding in Castleisland Cattle Breeding Society v Minister for Social and Family Affairs [1]  where the Supreme Court held that, notwithstanding the requirement to examine the terms of the written contract, in determining whether a contract was one of service, or for services, an appeals officer was bound to examine and have regard to what was the real arrangement, on a day-to-day basis, between the parties. A statement in a contract to the effect that a person was an ‘‘independent contractor’’ was not a contractual obligation but merely a statement which might or might not be reflective of the actual legal relationship between the parties. In that case, the Court found that, apart from matters of minor detail, the written contract, which was consistent with the worker being an independent contractor, seemed to have been the contract that was actually worked.

The first issue I have to consider is whether the WRC has jurisdiction to investigate and decide on the complainant’s case.  The question is whether the contract between the complainant and the respondent constitutes a contract of employment and therefore, whether the complainant was an  employee  for the purposes of the Unfair Dismissals Acts.  In reaching my decision, I have taken into account all of the evidence, written and oral, submitted by the parties.      It follows therefore that the complainant must have been employed under a contract of service if she is to pursue the within claims.

The question of whether a particular employment is to be regarded as a contract of service or a contract for services has been the subject of a number of decisions by the Courts in this jurisdiction.   The main test, under Irish law, for assessing this matter, was set out by Keane J in Henry Denny & Sons (Ireland) Ltd v. The Minister for Social Welfare[2].  The Supreme Court held that it was appropriate not only to examine the entire contractual agreement between the parties, but also the particular conditions under which work was performed.   In that judgment Murphy J stated that the question of whether the claimant “was retained under a contract of service depends essentially on the totality of the contractual relationship express or implied between her and the appellant…”.   

In the same judgement, Keane J noted that whilst the extent and degree of control which was exercised by one party over another, in the performance of the work, had been regarded as decisive in the past, later authorities demonstrated that the control test did not always provide satisfactory guidance. He then went on to hold that:       “It is accordingly clear that while each case must be determined in the light of its particular facts and circumstances, in general a person will be regarded as providing his or her services on a contract of service 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 how the work is to be performed, although a factor to be taken into account, is not decisive.  The inference that a person is engaged in business on his or her own account is 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.”

              I am also mindful of the High Court decision in the case of The Minister for Agriculture and Food v Barry and Others [3] which contains a detailed analysis of the tests which should be considered in deciding whether a person is working under a Contract for Service or a Contract of Service.  In his finding Mr. Justice Edwards stipulated that a Court or a Tribunal should not confine its examination to the “so called enterprise test” and added that “Like the question of enterprise, questions of control and integration may also provide a court or tribunal with valuable assistance in drawing the appropriate inferences”.  This finding also addressed the question of ‘mutuality of obligation’ on an employer to provide work for the employee and on the employee to perform that work personally for the employer.  Thus, having regard to the above it is clear that the Courts in these situations, in addition to the aforementioned ‘enterprise test’ have also been guided by the level of control exercised over how the work is to be performed and the level of integration into the business as a whole as well as the question of ‘mutuality of obligation’ between the parties. 

 With regard to the within claim, I note from the complainant’s WRC complaint form that she has stated that she was a “self employed” individual. Furthermore, she has attached to the form a copy of a signed contract for PR services dated 24 July 2012. It is evident from said form that this was not a contract of employment i.e. “of service”. I note that the first sentence of the contract states that it is a “Contract for PR Services”. I am satisfied based on the evidence heard that the complainant is an independent contractor and could not therefore have been an employee under the Act. I note that the complainant was free to work for other companies.   The complainant acknowledged that she did not receive payment for annual leave or sick leave.   At the hearing both parties agreed that the complainant submitted invoices seeking payment on a monthly basis.  The complainant was required to produce a Tax Clearance Certificate to the respondent.  

Taking into consideration all of the evidence both written and oral in conjunction with my examination/comments in the preceding paragraphs, I find that the complainant has not established that she was engaged by the respondent under a contract of service such as to qualify her to bring a complaint of unfair dismissal under the Act.

I find that the complainant does not have locus standi under the Acts and accordingly I have no jurisdiction to investigate the complaints.

Contract for service, locus standi