Complainant

Respondent

Parties

An Employee

An Employer

Representatives

Valerie Kearins Valerie Kearins Solicitors

Terry MacNamara, IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00036356-001

26/05/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00036356-002

26/05/2020

The claimant worked for the respondent from 2000 – 2019 when the company closed. The claimant contends that he was dismissed by reason of redundancy and is entitled to redundancy payment while the respondent has contended that the claimant was engaged on a contract of service and consequently had no entitlement to redundancy. The claimant complained that the  respondent was in breach of the Terms of Employment (Information) Act 1994 for failing to furnish him  with a written statement of his terms and conditions of employment – the respondent submits that there was no employer/employee relationship in the claimant’s delivery of service to the respondent.

The complainant’s representative set out a chronology of the complainant’s career history with the respondent – he asserted the claimant was never furnished with written terms and conditions of employment and that terms were arrived at by oral agreement or implied terms. The representative set out the historical background to the respondent’s business interests in the Northwest and advised that the claimant’s last day of work was the 20.12. 2019. The closure of the plant constituted a collective redundancy and involved consultation with the employees. The outcome of negotiations was a package amounting to 6 weeks per year of service – it was not extended to the claimant who did not get share options like other employees and did not have a pension. It was submitted that the complainant suffered significant loss by not having employee status.

It was submitted that the complainant received gross sums from the respondent and made his own tax returns with the assistance of an accountant- it was submitted that this “is one of the few factors which points to a contract for service”.

It was submitted that the claimant generally worked set hours and normally worked a 5 day week with the exception of 2019 when he worked a 3 day week. The complainant was paid an hourly rat- he invoiced monthly and the rate increased on occasion e.g. 2014 following discussion with the Supervisor or General Manager. It was submitted that the claimant engaged in employee and compliance training with the company and while engaged had no other sources of income or work with other companies. It was advanced that the claimant used Company equipment including welding plant, grinders and drills and that the complainant did not have control over the amount of work he did. He never delegated or subcontracted the work. It was contended that the claimant reported to his supervisor and that he had a phone paid for by the Company for work related issues. While he had no paid annual leave he would engage with managers to obtain advance approval for time off – he was told where and when to report for work. The majority of Company workers were employees. The complainant attended staff meetings in the canteen and was kept abreast of negotiations about the redundancy package. The claimant had a company email address.

The complainant lodged a claim for redundancy in April 2020 – it was rejected by the company on the grounds that he was not an employee. The redundancy entitlement was estimated at €23,676.

It was submitted that the claimant was a de facto employee and should have been furnished with terms and conditions of employment in accordance with Section 3 of the Terms of Employment (information) Act 1994.

The claimant’s representative invoked the following authorities in support of their contention that the claimant was employed on a contract of service – “Ready Mixed Concrete(South East) Ltd v Minister of Pensions and National Insurance 1968 1 ER 433; Minister for Agriculture and Food vBarry [2009]1 IR 215 and the Sunday Tribune [1984] IR 505 where Carroll J pointed out that “journalists whose employment status was in question , the fact that income tax was not deducted in accordance with the PAYE system was not the determining factor”.

In response to the company presentation it was submitted that the fact that the claimant attended the meetings about the closure of the plant indicated the claimant was treated the same way as employees.  It was argued that the Service Level Agreement being relied upon by the company was introduced at the tail end of a 20 year working period, that it was inaccurate with respect to the claimant’s title, that it was an attempt to alter contractual arrangements and on that basis the complainant would have to obtain legal advice for it to be valid.

It was submitted that the payments made to the payment were regular and uniform with the exception of 2019 when a lot of repair work was required. It was advanced that “the Company should state whether the SLA was introduced because of tax advice given, in which case there was clearly worry from the Company that the existing arrangement was vulnerable”.

It was submitted that arrangements with respect to the recruitment and payment of Mr. MB was exceptional and that he was neither an employee nor a subcontractor of the complainant.

It was contended that the claimant did not have insurance and was not required to have insurance for 15 of the 20 years with the respondent.

The claimant’s representative disputed the company claim that he was paid twice the average for an Engineer or craftsman in the area and contended that the complainant was very skilled and experienced with the Company machinery and this distinguished the instant case from ADJ-00019782 which was being relied upon by the respondent.

In response to the documentation submitted by the respondent after the hearing, the complainant’s representative argued that the respondents side accepted that the claimant had used company equipment. It was submitted that the excel sheets indicated a consistent and regular billing for monthly fabrication services with project work fluctuating and that the figures had to be examined in their totality. It was argued that the fact that the monthly fabrications services bill differed somewhat did not negate an employment relationship with many people on a contract of service working for an hourly rate. It was advanced that the training records for contractors highlighted by the company showed a minority but that the majority were not contractor specific - indicating an employment relationship. It was submitted that the list included courses that would normally pertain exclusively to employees.

In his direct evidence the claimant said his employment status hit home when he learned of the details of the redundancy package – 6 years per year of service. It was submitted that the claimant did what was asked of him and combined maintenance work with special project work. The claimant confirmed that he worked Mon-Fri from 9.00am-6.00p.m. and that if he was away for a day he would come in another day to get through the schedule of work. He stated he repaired machines modified machines and did plumbing work. The complainant said he was given the work by his supervisor. He said he would estimate the time to do the work and then cost it and advise his supervisor how long it would take- he had worked 5 days a week for 15 years. The complainant said he was given a cordless phone like a 2 way radio. He was given an email address – he wasn’t sure why he was given an email address but it may have been for training. The complainant said he did not pursue the matter of his employment status as he was afraid he would lose his position. He said he didn’t have any muscle and stated that he did not have a limited company – he differentiated between maintenance and project work for which he submitted special invoices – the work involved replacement and new fit as opposed to fixing a machine. Invoices were based on time spent on work and payment issued afterwards. He recorded the time in his little book. For special projects records were kept in his diary. The claimant said he had a good working relationship with the company – he attended the townhall meetings but would not have been aware who was and was not an employee. The complainant stated that he acquired insurance in 2015 – he had to get it as it was required by the computer system.

Under cross examination the complainant was questioned about an invoice for €96,475 – he confirmed this was for project work – he said he would give the figures and do an estimate / calculate how much it would cost. The complainant said he was advised the phone was for site only use and he did not take it off site. It was put to the claimant that if the SLA did not capture the relationship between the parties, why did he not question it – the claimant confirmed he did not question it or seek to obtain advice on the document. The complainant was asked if he was submitting invoices did he think he was an employee -he replied that everyone thought he was – he did not raise his employment status at a meeting and did not raise it in a formal capacity. The complainant stated that 90% of his work was Mon-Fri.

The claimant confirmed he did not clock in and signed in manually in the workshop. He stated that overtime was paid on a flat rate and there was a different rate for weekend work. The complainant would take 3-4 weeks off when it was quiet and was never paid for holidays or public holidays.

The claimant stated he mostly billed after work was done. The claimant confirmed that guests to the plant also signed in. The amount he billed the company for was based on time it took to do the work.

The claimant’s representative asserted that the non use of the respondent’s clocking in system was not a determining factor in establishing his contractual status. He said because there were no witnesses, matters of conflict should be resolved in favour of the claimant. The claimant did not get legal advice on the SLA and did not pay insurance for a 15 year period. The complainant attended town hall meetings and the invoices captured the hours worked and the rate of pay. He suggested that it could be determined that the claimant was on a contract for service for the project work as opposed to the ongoing maintenance work. It was advanced that this had been a long and continuing relationship between the parties and that the claimant was engaged on a contract of service.

The respondent’s representative submitted as follows:

The case concerns a complaint under the Redundancy Payments Acts 1967 to 2015 and the Terms of Employment (Information) Act 1994 brought the Claimant against the Respondent. The Respondent strongly argues that the Adjudicator does not have the jurisdiction to hear this complaint as the Claimant was not an employee of Respondent.

1.0  The Claimant’s Employment Status

1.1.   The Claimant was engaged as a contractor in relation to Engineering, Facilities Maintenance and Projects in October 2000 to provide a managed service in respect of the Respondent’s engineering needs. The nature of the works to be conducted were described in a standard Service Level Agreement between the Respondent and the Claimant the most recent copy being signed by the Claimant on 25 April 2019.  Copy received as Appendix 1. As the site at was being closed by Company G the Claimant’s service to the Respondent was no longer required from December 2019. He was duly notified of same within the terms of the service level agreement and his service provision to the Respondent ceased as of mid-December 2019. The Claimant was aware of the site closure from August 2018 and was involved in monthly wind down meetings / briefings relating to site closure and timelines which was carried out with all Engineering site employees and external contractors. It is the Respondent’s position that the Claimant was engaged with them on a contract for services to provide Engineering, Facilities Maintenance and Project services and was not an employee of theirs at any time.

1.2.   As can be seen from Appendix 1the Claimant signed off on the Service Level Agreement as ‘Mr.A Limited ‘’ a company providing Engineering, Facilities Maintenance and Project services to the Respondent, the nature of which is described in the agreement. This is the same company that the Respondent engaged the Claimant through, and which invoiced the Respondent for the services the Claimant provided to them. Appendix 2 shows a sample of periodic invoices issued from the Claimant to the Respondent for his services.  Such invoices were not only for the engineering and maintenance services provided to the Respondent but also for the pricing and conduct of special projects samples of which can be seen in Appendix 3. If the Claimant were an employee of the Respondent, he would certainly not have entered into a service level agreement with the Respondent invoicing the Respondent in this manner.

1.3.   Furthermore, it is the Respondent’s position that Revenue were aware of the Claimant’s status as a self-employed business owner as the Claimant was responsible for managing his own tax affairs as an independent contractor. If the Claimant were an employee of the Respondent, he would not have to declare his own tax in the first place as it would be deducted directly at payroll by the Respondent. 

1.4.   Further examples of how the Claimant was clearly self-employed rather than an employee of the Respondent are set out below:

a)       The Claimant did not have a contract of employment as he was not an employee of the Respondent although he has submitted a complaint under the Terms of Employment (Information) Act 1994 on 26 May 2020, some 5 months after his contractor’s agreement came to an end.  The Respondent submit that the Claimant never suggested he was entitled to a contract of employment as opposed to a Service Level Agreement during his time as an independent contractor.

b)       As a Contractor the Claimant had, on occasion, employed other personnel working for him onsite, supervising their work and delegating their duties. The Service Level Agreement under section 4, signed by the Claimant on 25 April 2019, allows for the Claimant to subcontract the work to another party.  The same document under Attachment #1 refers to “The schedule of services will be agreed with Mr. A Ltd personnel on site who will then allocate the resources to carry out the work”

c)        The Claimant determined his own hours of work and had freedom in carrying out that work.

d)       As a Contractor the Claimant invoiced the Respondent through the online Tungsten supplier portal similar to the Respondent’s other external suppliers submitting his invoices for processing against relevant Purchase Orders as raised by the Respondent’s Engineering Shopper.  These invoices included standard opex fabrication services submitted on a monthly basis for ‘Fabrication Services’ and additional invoices for specific project services carried out by the Claimant.  Copy of sample invoices attached at Appendix 2 and 3.  Copy of sample Purchase Oder raised at Appendix 4.

e)       The Claimant was registered for VAT and charged VAT at 13.5% on all invoices.

f)        Having signed off the Service Level Agreement Mr. A  Ltd it is assumed that the claimant was registered with the Companies Registration Office (CRO) as a business.

g)        the Respondent did not look after paying Tax or PRSI for the Claimant and the Claimant had his own Tax Registration number as per invoices issued to the Respondent.

h)       The Claimant did not appear on the Respondent’s P35

i)         The Respondent never issued a P60 to the Claimant nor was a P45 issued on termination of the commercial contract.

j)         The Claimant did not have an entitlement to annual leave or sick pay, nor did he seek payment for any such time off.  The Claimant was not provided with mileage, subsistence or expenses from the site in his role as an independent contractor.  He only invoiced the Respondent for any hours that he provided a service to them and for any specific other projects.

k)       The Claimant could provide the same services to more than one person or business at the same time.

l)         The claimant did provide some tools and materials to conduct his role.

m)     The Claimant provided his own insurance to cover Public Liability Indemnity of €6.5M, Product Liability Indemnity of €6.5M and Employers Liability Indemnity of €13M.  In the attached Insurance Schedule example from 2016 the Claimant’s occupation is listed as ‘Plumbing and heating ventilation engineers - Property maintenance’.  An employee would not have to provide indemnity insurance to their employer.  Copy attached at Appendix 5.

n)       The Claimant as a self-employed person would have paid PRSI contributions at Class S as opposed to Class A for direct employees.  To the Respondent’s knowledge, the Claimant has not referred the issue of his employment status to the SCOPE Section of the Department of Employment Affairs and Social Protection for clarification.

o)       The Claimant fully understood the implications of the arrangement he entered into in October 2000 when he accepted the Respondent’s predecessor’s offer of a contract for services and never questioned the matter in the intervening period. it is the Respondent’s position that it is not open to the WRC to permit the Claimant to resile from the arrangement he entered into at that time with full knowledge and understanding.

1.5.   In addition to the above, it should be known that the Claimant never once claimed to the Respondent that he was an employee rather than a contractor.  Both parties understood that he was operating as an independent contractor to the Respondent until this service was no longer required.

2.0  Legal Argument and Case Law

2.1  In the first instance the Adjudicator is precluded from hearing this case, as the statutory preconditions necessary for the Claimant to seek relief under this statute are not satisfied. Specifically, the claimant has never been employed by the respondent under a contract of employment.

2.2  The Redundancy Payments Acts 1967 to 2015 sets out under section 4 the “classes of persons to which the Act applies as being:-

(1) Subject to this section and to section 47, this Act applies to—

(a) employees employed in employment which is insurable for all benefits under the Social Welfare Consolidation Act 2005,

(b) employees who were so employed in such employment in the period of four years ending on the date of termination of employment, and

(c) employees who have attained the age of 66 years and are in employment that would be insurable for all benefits under the Social Welfare Consolidation Act 2005 but for—

(i) their attainment of that age, or

(ii) the fact that the employment concerned is excepted employment by reason of paragraph 2, 4 or 5 of Part 2 of Schedule 1 to that Act”.

(2)       This Act shall apply to an employee employed in employment which would be insurable for all benefits under the Social Welfare (Consolidation) Act 1993 but for the fact that the employment concerned is an excepted employment by virtue of paragraph 2, 4 or 5 of Part II of the First Schedule to that Act.

2.3      Section 2 of the Act states that an “‘employee’ means a person of 16 years and upwards 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 Eastern Regional Health Authority, the Northern Area Health Board, the East Coast Area Health Board or the South-Western Area Health Board, a health board or education and training board] shall be deemed to be an employee employed by the authority, health board or education and training board, as the case may be;

Section 2 of the Act further states that an “‘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;”

The Acts specify that claims under the Acts may only be presented to an Adjudication Officer by an “employee” against his or her “employer” within the definitions detailed above. It is the Respondent’s position that in accordance with the above Acts:

·      The Claimant was not an “employee” of the company

·      A “contract of employment” did not exist

·      The Respondent was not an “employer” within the aforementioned definition

·     The claimant was not insurable for all benefits under the Social Welfare Consolidation Act 2005,

·      As such, no jurisdiction exists for this claim to be heard.

2.4         The Respondent would draw the Adjudicators attention to the Determination of Employment Appeals Tribunal in the cases of  

Eamonn McCotter v Quinn Insurance Limited, UD242/2011; RP290/2011 where the Tribunal found that

“Whether a worker is an employee or self-employed depends on a large number of factors. The Tribunal wishes to stress that the issue is not determined by adding up the numbers of factors pointing towards employment and comparing that result with the number pointing towards self-employment. It is the matter of the overall effect which is not necessarily the same as the sum total of all individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another. When the detailed facts have been established the right approach is to stand back and look at the picture as a whole, to see if the overall effect is that of a person working in a self-employed capacity or aperson working as an employee in somebody else's business. If the evidence is evenly balanced, the intention of the parties may then decide the issue. In summary there is no single test. Each case must be considered in the light of its own particular facts.

Standing back and looking at the picture as a whole and being mindful of the legal principles set out in Minister for Agriculture and Food v Barry [2008] IEHC 216; [2009] 1 I.R. 215and the other cases referred to above, the Tribunal determines that the working relationship between the claimant and the respondent was one of a contract for services and that the claimant was working as an independent contractor. The tribunal therefore does not have jurisdiction to hear the claim under the Unfair Dismissals Acts, 1977 to 2007 or the Redundancy Payments Acts 1967 to 2007”.

Copy attached at Appendix 6.

2.5         Keane J. in Denny v the Minister for Social Welfare [1998] I IR 34 stated that “each case must be considered in the light of its particular facts”.

He also considered “the extent and degree of control” but considered that this test did not always provide satisfactory guidance. Relying on Cooke J. in Market Investigations v Minister for Social Security, [1969] 2 Q.B. 173 at 184 Keane J. suggested that the fundamental test to be applied is this:

“‘Is the person who has engaged himself to perform these services performing them as a person in business on his own account?’. If the answer to that question is ‘yes’, then the contract is a contract for services. If the answer is ‘no’, then the contract is a contract of service. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task.”

The Respondent submit that it is clear from the documentation provided that the Claimant was “a person in business on his own account”.

2.6         The Claimant invoiced the Respondent in 2019 for a total of €41,160 for repairs and maintenance works and for €36,593.90 for special projects, amounting to a total sum of €77,753.90.  This amount equates to double the average rate of pay for a Maintenance Engineer or Craftsman in the manufacturing sector in the North West region which ranges from €32K to €45K per annum.  Copies of total invoice summaries for 2019 were provided as Appendix 7.

In the case of ADJ-00019782 A Maintenance Engineer/Fitter V A Printing & Packaging Company a similar long-term contract for services was deemed to exist where the Adjudicator found in terms of the quantum of the overall fees paid that it “could never be suggested that these two figures are the Wage or Remuneration of a Maintenance Fitter, as commonly understood, possibly or hypothetically employed by the Respondent no matter how the employment was characterised”. Copy provided as Appendix 8.

3.0  Terms of Employment (Information) Act 1994

3.1  Section 1(1) of the ‘Act’ defines anemployee as being  “a person 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 member of the Garda Síochána or the Defence Forces) or otherwise as 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, a health board or an education and training board shall be deemed to be an employee employed by the authority or board, as the case may be”;

Section 1(1) of the ‘Act’ defines an  “employer”, in relation to an employee, as being “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”;

3.2             Fore the reason cited in section 2 above a relationship of employer and employee did not exist in the Claimants delivery of services to the Respondent under a contract for services and the Respondent did not have any obligation to issue a statement in writing containing the particulars as laid out in section 3 of the Act. 

Conclusion

For the detailed reasons set out above, the Respondent respectfully submits that the Adjudication Officer does not have the jurisdiction to hear these complaints and as such must determine that the complaints cannot proceed.

The following additional documents were submitted after the hearing by the respondent’s representative:

Excel Spreadsheet of payments made to the claimant between 2004-2019

Copies of Training Records

It was submitted that the payments record indicated that payments were irregular and fluctuated considerably and that this was evidence of a contractor/customer relationship and did not represent a normal wage salary progression expected in a contract of service arrangement.

It was submitted that the training records showed training initiatives specifically targeted at contractors dating back to 2001.It was advanced that an employee would not undergo contract oriented training programmes.

The respondent’s representative stated that the claimant enjoyed an income which was double that paid to maintenance engineers in the region who earned between €32,000- €45,000 per annum. Payment for project work for the year 2017 amounted to €100,000. It was asserted that the site was now closed but that Mr. JC would deny the claimant’s version of the exchange about signing the SLA. It was submitted that the claimant had insurance for a continuous period from 2015. It was submitted that there were several contractors on site with variations between some projects being priced and some paid on an hourly rate. It was submitted that the work carried out by Mr. FM constituted an arrangement between 2 contractors on fire proofing work. It was contended that the claimant carried on his own business and did not have annual leave. Other contractors on the site included a nurse as well as workers undertaking non integrated works such as catering and cleaning. It was clarified that the plant was not unionised and the claimant did attend townhall meetings. The respondent questioned why the claimant waited 4 months to lodge his complaint. It was submitted that the claimant did not have a company phone but was furnished with a hand held device to communicate on site only.

The respondent stated that the complainant did not use the respondent’s clocking in system.

He contended that the totality of the relationship had to be looked at – he stated the extent of integration was significantly different to that of an employee and the claimant’s terms and conditions varied significantly from those of employees at the plant. There was a different signing in arrangement – fees were paid following generation of invoices by the complainant. These arrangements were consistent with those examined in ADJ-00009295 and FTD091 where it was determined that employee status did not apply. In submitting the records of payments made to the claimant from 2004 onwards, the respondent’s representative highlighted that the claimant was paid a total of €79,601.10 for ‘Project Work’ between 2017 -2019 and stated that the figures included VAT applicable from Nov.7 2016 as “the respondent lost Section 56 Authorisation on VAT exemption status then”. It was submitted that the spreadsheets submitted by the respondent indicated that payments were far from regular as invoices were submitted in bulk with significant gaps in between. It was contended that the pattern of submission and payment of invoices in bulk reflected the relationship of a contractor and customer as opposed to an employer and employee where regular weekly/monthly wage payments would be made. He submitted that “the schedule of payments from 2004 to 2019 showed significant fluctuations both up and down over the years in line with the demand for the use of services”. It was advanced that this did not represent a normal wage salary progression expected in an employer/employee relationship. It was asserted that an employee with the respondent would not undergo contractor – oriented training initiatives and that some training was contractor specific only. The respondent argues that:

“a. If there were a normal employer / employee relationship, there would be a gradual increasing progression of payments made in terms of salary based on annualised pay increases as opposed to increasing and decreasing sums annually reflecting the level of work carried out both on a fixed service provision and special project works.

b. In terms of an employer/employee relationship wages or salary would be payable on fixed periods either weekly or monthly dependent on the role. This was not the case in this instance where invoices were grouped together and submitted at varying intervals by the claimant. For example, payments made based on invoices submitted for the year of 2018 were made on four occasions on 21 May, 12 September, 13 September, and 05 December”.

I have reviewed the evidence presented at the hearing and noted the respective position of the parties. I have considered the authorities relied upon as well as the Code of Practise in determining Employment Status. As each employment situation differs, each case has to be dealt with on the basis of its particular merits having regard to existing case law. As set out by both representatives, a number of tests have evolved to determine the true status of the employment relationship.

I note that the claimant from the outset invoiced the company for hours worked. I note that the claimant operated from the workshop on site and used company equipment. It was not disputed that the claimant did not clock in as employees did but rather signed in at the workshop. The claimant made arrangements for his own tax returns but I accept that this is not necessarily conclusive as averted to in the Code of Practise. There was no contract of employment between the parties but there was a Service Level Agreement introduced in April 2019.

On the basis of his own evidence the claimant exercised considerable discretion in relation to the pricing of his work. This I consider to be of particular significance in the context of the ‘control ‘ test.

I consider it of significance also that there was considerable fluctuation in the annual payments made to the claimant as set out in the post hearing submission from the respondent and I find the respondent’s arguments that the pattern of invoicing and payment was more akin to a contractor rather than an employer/employee relationship to be persuasive. I note that VAT was applicable from 2016 and that the claimant paid insurance from 2015 onwards. The claimant accepted that he did not, at any stage raised the matter of employment rights with the respondent. He asserted that he was afraid it would impact on his position but at the same time characterised his relationship with the respondent as good. Like Denny, the claimant was paid on foot of an invoice without deductions for PAYE or PRSI. The claimant had no entitlement to paid holidays.

Having reviewed the entirety of the evidence, I have concluded that while some elements of the claimant’s relationship with the respondent are consistent with an employer/employee relationship, on balance , the operational day to day practise was  consistent with a contract for service when one considers in particular, 1) the amount of control the claimant exercised in determining the duration and price of work, 2) the level of fluctuating payments made to the claimant,  3) the VAT and Revenue arrangements  4) the fact that the claimant paid insurance from 2015 and 5) the non payment of overtime rates (bar weekend arrangements). I believe my conclusions are consistent with the principals set out by the Labour Court in FTD091. Accordingly, I must conclude that the claimant does not have locus standi under the Redundancy Payments Acts or the Terms of Employment (Information) Act 1994 Act and consequently I have no jurisdiction to investigate his complaints.

Contract of /Contract for service