ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00030495

Parties:

Complaint(s):

Date of Adjudication Hearing:  29/07/2021

Workplace Relations Commission Adjudication Officer:  Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 39 of the Redundancy Payments Acts 1967 - 2014 , Section 27 of the Organisation of Working Time Act, 1997 and  Section 12 of the Minimum Notice & Terms of Employment Act, 1973 and the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th April 2021 the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath would be required, and full cross examination of all witnesses would be provided for.

The required Oath/Affirmation was administered to all witnesses.

 Claims being considered

It was agreed that as CA-00040356-004 was a duplicate of CA-00040356-003 it could be dispensed with.

Background

1:        Preliminary Legal Issues:

(1)      Status of Complainant / Employee / Independent Contractor

(2)      Statutory Time limits for Complaint

(3)      Date of Ending of Employment.

1:1      Status of Complainant

1:1         Complainant Arguments:

The Complainant argued that he was effectively a “employee” on a Contract of Service as defined by the Minimum Notice and Terms of information Act,1973, Section 1, Interpretation

“employee” means an individual 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 expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or otherwise, and cognate expressions shall be construed accordingly;

He paidPAYE and PRSI at source and was for all matters an employee as defined.

1:2         Respondent Arguments

The Respondent pointed to numerous examples of correspondence where the Complainant resolutely maintained that he was not an employee and paid Tax and PRSI at source simply based on a special Revenue direction regarding the Education Sector. This PAYE ruling did not confer an automatic Employee status.

The Respondent argued that the Complainant was effectively an independent Contractor, provided Contracts for Service outside of the standard remit of Employment Law. His claim has to be dismissed as it had no proper statutory foundation.

1:3         Adjudication decision.

The Revenue Commissioners, in Tax Manual 5.1.11 Taxation of Part Time Lecturers/Teachers/Trainers who perform regular work not “once off” lectures are engaged under a Contract of Service and are as such employees. The High Court case of Barcroft V Minister for Health and Social Welfare of 1986 is cited as the appropriate Authority as are a number of prominent English cases. In the case in hand the Complainant worked for between 15 to 18 hours per week.

As such the Adjudication decision has to follow that the Complainant was an employee and covered by the relevant Acts cited in his claim. The Complaints can proceed.

1: (2) Statutory Time limits for Complaint

1:2:1     Section 41 (6) of the Workplace Relations Act, 2015 provides for

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

In this case the Complainants were received in the WRC on the 9th October 2020. The last working day of the Complainant was stated in correspondence to be the 5th April 2020. This time period is clearly outside of the 6th month time limit in the Act.

However, Section 41 (8) allows

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

Case law on what constitutes Reasonable cause has been developed by the Labour Court. It has to be “exceptional” circumstances.

In the case in hand the Complainant was a Third Level lecturer in Management Accountancy. He could not be described as a novice to rules and regulations covering matters of statute.

1:2:2     Adjudication Decision.

Granting an extension for a further six months would not be justified and on this basis the Complaints are out of time from a possible end of employment date of the 5th April 2020.

However, this then raises the key question as to when the employment actually ended if it ever did.

1:(3)  Date of Ending of Employment.

1:3:1     The business of the Respondent is to provide face to face Third Level Professional courses. The business had to go into suspension in March 2020 and the Complainant was effectively laid off from the 5th April 2020. There was no letter of dismissal or resignation until the Complainant claimed Redundancy in a letter of the 23rd September 2020. In Oral evidence he stated that he had heard from another lecturer that his work in Management Accountancy would not be resumed by the College and he had lodged a redundancy request. The Respondent had replied suggesting changes in the working patterns and had stated on the 28th September 2020 to the Complainant

“This is not a case of Redundancy, and we expected to have work for you once the economy improves.”

In reality the Respondent still regarded the Complainant as available for work albeit in a Contract for Services/ Independent Contractor capacity. In his reply to the above on the 1st October 2020 the Complainant is also unclear and states that he will rely on the WRC to determine what his exact employment position is.

1:3:2     Adjudicator decision.

Looking at all the evidence a key fact is apparent. There was no dismissal or resignation. Making a request for a Redundancy settlement is not the same as a formal resignation.  In point of fact the employment relationship continues albeit on a long term lay off basis largely due to the exceptional Covid 19 situation. There is no end date to the employment as it never legally or practically ended before the date of the referral of the case – the 9th October 2020.

Background:

2:        Summary of Complainant’s Case:

3:        Summary of Respondent’s Case:

4:        Findings and Conclusions:

5:        Decision:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 39 of the Redundancy Payments Acts 1967 - 2014, Section 27 of the Organisation of the Working Time Act, 1997 and Section 12 of the Minimum Notice & Terms of Employment Act, 1973 which require that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.

Full discussions and reasoning for these findings is as set out above in Section 4 of this Adjudication finding.

5:1       Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997, CA-00040356-001

The complaint is deemed to be Well Founded and 52.48 hours Annual leave is awarded to the Complainant.

5:2      Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00040356-002

The complaint is deemed to be Well Founded. A written statement of terms of employment as set out in the Act is to be provided to the Complainant and a Compensation sum of €100 is to be paid to the Complainant.

5:3          Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 CA - 00040356-003

As no Redundancy was deemed to have taken place and the employment was never ended, by the date of the referral of the Complaint (9th October 2020), this complaint is deemed to Not Well Founded

 5:4      Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00040356-005

As the employment had not ended at the date of the referral of the Complaint (9th October 2020) no question of minimum notice arose. This Complaint CA-00040356-005 is deemed to Not Well Founded.

Dated:   5th October 2021

Workplace Relations Commission Adjudication Officer:  Michael McEntee

Key Words: