FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : HEALTH SERVICE EXECUTIVE DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision NoADJ-00010315; CA-00013388-004 This is an appeal by Dr Sheila O’Meehan (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00010315; CA-00013388-004, dated 9 May 2019) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer decided the complaint under the Act was well-founded and awarded compensation of €2,000.00. Notice of Appeal was received by the Court on 4 June 2019. The Complainant is an experienced General Practitioner (‘GP’). She worked on a part-time basis, for almost three years – between 1 September 2014 and 30 June 2017 –principally at an addiction clinic in Crumlin within the remit of the Health Service Executive (‘the Respondent’). The Complainant occasionally also provided GP cover at clinics in other locations during that period. Preliminary Issue The Respondent submits that the Complainant’s status was, at all material times, that of an independent contractor. It further submits that she was not engaged by it on a contract of service or as an agency worker and, therefore, does not havelocus standiunder the Act. The burden of proof is on the Complainant to demonstrate that she is entitled to pursue a complaint under the Act. The Complainant told the Court that she was a PAYE employee of Winton Medical Limited up until March 2017 when she incorporated Vita Medical Limited. It appears Winton Medical Limited was incorporated by a firm of accountants to facilitate payments to a number of locum GPs. The firm retained 5% of the GPs’ income. While working for the Respondent, the Complainant was paid €60.00 plus VAT per hour. She told the Court that she worked between eighteen and twenty-four hours per week for the Respondent during the period in question. She submitted copies of Revenue documents showing her self-assessment balancing statements for the tax years 2015 to 2018 which show that she earned €49,017.00 in 2015, €57,700.00 in 2016, €32,844.00 in 2017 and €16,644.00 in 2018. Under cross-examination, the Complainant accepted that she submitted weekly invoices to an employment agency – Locumlink – between September 2014 and June 2017 in respect of the hours she had worked for the Respondent during that period. She further accepted that she was not employed by the agency at any time but had an arrangement with the agency in order to facilitate payment to her from the Respondent. In response to questions from the Court, the Complainant accepted that she had never made an application to Revenue or to the SCOPE section of the Department of Social Protection seeking a determination of her employment status. She also confirmed that she was not restricted from taking on other work in addition to the hours she worked for the Respondent during the period in question. She said she hadn’t done so because she didn’t have the energy to do so. She confirmed to the Court that she was not subject to supervision when conducting clinics on behalf of the Respondent and that she had a high degree of clinical autonomy. Dr Margaret Bourke gave evidence on behalf of the Respondent. Dr Bourke is the GP Co-Ordinator for HSE addiction services in the area which includes the clinics in which the Complainant worked in at the relevant time. She briefly outlined the staffing arrangements for GPs in addiction services managed by her. Those GPs who have been in the service for many years are engaged under full-time permanent contracts of employment. Others have temporary sessional contracts. In or around the time the Complainant was engaged, eleven other locum GPs were engaged as agency staff via Locumlink. The Complainant had been recommended to the witness by one of the full-time GPs in the service. When the witness approached the Complainant she advised her that she would have to be engaged through the approved agency. The Respondent told the Court that she prepared monthly rosters for the part-time GPs in her service. She also said that when other GPs were absent through illness or on leave she occasionally asked the Complainant to work additional hours. The witness told the Court that any GP in her service, including the Complainant, could take annual leave whenever they wished to do so. There was no requirement to give six weeks’ advance notice as alleged by the Complainant. The witness also said it was perfectly acceptable for part-time locum GPs in the service to work elsewhere in addition to their hours with the service. Dr Bourke confirmed that the Complainant, similarly to her colleagues, had clinical autonomy when delivering their clinics. There was a weekly clinical team meeting, often but not exclusively, chaired by Dr Bourke for the purpose of ensuring that practitioners in the team were aware of the treatment patients were receiving. Dr Bourke also told the Court that all locum GPs provided their own professional indemnity insurance as they were not covered by the Respondent’s policy. Dr Bourke went on to tell the Court that the Respondent came under considerable pressure, for industrial relations reasons, in early 2017 to reduce the number of agency staff engaged by it. Sanction was, therefore, given to her to offer temporary contracts of employment to the GPs (including the Complainant) engaged in her service as locums. The other eleven locum GPs engaged at around the time the Complainant was recruited accepted direct employment on a fixed-term contract basis. According to Dr Bourke, the Complainant initially declined to accept a contract of employment ‘for tax reasons’. She said the Complainant approached her after her initial refusal of the offer and said that she might agree to such a contract for a short period of about nine months. Dr Bourke’s recollection is that she gave the Complainant a copy of the proposed contract at that stage. Although Dr Bourke had sought and been given approval by the Respondent to engage the Complainant on a nine-month contract of employment, the Complainant came back shortly afterwards to decline the offer as she had incorporated a company and did not wish to earn more than €37,000.00 per annum. Dr Bourke said that 1 July 2017 was the commencement date for the new employment contracts which had been accepted by all of the locum GPs in her service other than the Complainant. On some date in late June, the witness was entering her office when she overheard part of a telephone conversation between the Complainant and her (Dr Bourke’s) administrative assistant. Dr Bourke’s evidence was that she heard the Complainant telling the assistant that she did not wish to be placed on the roster for hours in July. Dr Bourke said she understood this to mean that the Complainant no longer wished to work for the service. She, therefore, made contact with the Complainant and requested her to confirm that in writing. Although, she did not deny that that was the case she did not confirm the position in writing to Dr Bourke. Discussion and Decision Having regard to the evidence before it, the Court finds that the Complainant was neither engaged by the Respondent on a contract of service nor as an agency worker at the material time or at all. The Complainant, by her own evidence, had knowingly structured her employment affairs with the intention of minimising her exposure to income tax and other statutory deductions. Between September 2014 and approximately March 2017, the Complainant utilised a limited company – Winton Medical Limited – to receive payment for her services to the Respondent. She invoiced the Respondent for those services via Locumlink although she was not employed by that agency and it appears that Locumlink remitted payment (inclusive of VAT) to Winton Medical Limited. It would appear that the Complainant then incorporated her own company – Vita Medical Limited – in early March 2017 and utilised that company in place of Winton Medical Limited for the period March to end of June 2017 to facilitate receipt of her remittances from Locumlink without incurring the fees charged by Winton Medical Limited. The Court found Dr Bourke to be a very credible, reliable and honest witness. The Court found the Complainant to be unforthcoming and evasive in her evidence. The Court accepts as accurate, Dr Bourke’s evidence in relation to circumstances in which she came to make two offers of direct fixed-term employment to the Complainant in 2017 and the Complainant’s decision to reject both of those offers ‘for tax reasons’. The Court also accepts Dr Bourke’s evidence in relation to key features of the working arrangements that applied to the Complainant and her locum colleagues: they were free to decline hours for which they had been rostered; they enjoyed full clinical autonomy and were not subject to supervision while conducting their clinics; there was no impediment preventing them working elsewhere as GPs in addition to the hours they worked for the Respondent; they were responsible for securing their own professional indemnity cover and they could avail themselves of leave whenever they wished and on short notice. Finally, the Court notes that the Complainant has never taken the opportunity to seek a determination of her employment status from either Revenue or the SCOPE section of the Department of Social Protection. For the reasons set out above, the Court concludes that the Complainant lacks locus standi under the Act. Her appeal, therefore, fails and the decision of the Adjudication Officer is set aside. The Court so determines.
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