Complainant

Respondent

Parties

Marie  Wilgaard Kelly

Design & Crafts Council Ireland

Representatives

  Self

Alastair Purdy Alastair Purdy & Co. Solicitors

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-00044656-002

16/06/2021

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

CA-00044656-003

16/06/2021

Through a tendering process the Complainant submitted a tender to provide services to the Council to train students on a jewelry and goldsmithing skills and design course that first began in 2015. Based on the national framework for third level courses the programme is assessed as a level 8 course.

After seeking independent legal advice, the Complainant signed her first independent contractor agreement for two academic terms:

·       12th of January 2015 to the 7th of August 2015

·       14th of September 2015 to the 5th of August 2016

An addendum agreement was drawn up and signed on or about August 2016 for a further two years to run from September 2016 to August 2017 and for the year September 2018 to August 2019.

During 2018 the Council decided to advertise the role of jewelry and ceramic technician and the Complainant was successful when applying for this position.

The position was put up for tender on the Respondent’s website and on eTenders. The Claimant was successful in winning the tender. She could provide a substitute to fulfill the contract.

The Complainant in addition to working for the Council was free to work with other organisations or to work privately.

On the 19th of April 2021 the Complainant contacted the Council raising the issue of her status and querying if it should be one of contract of service or an employee rather than a contract for services.

The Respondent on or about 12th of May 2021 informed the Complainant that her status as an Independent Contractor was correct. She was also informed that the programme would not be running after her contract ended in July 2021. The tender process may open again in 2022 when the Complainant could then apply.

On the 17th of May 2021 the Complainant’s Solicitor wrote to the Council requesting that his client’s status be recognized as an employee. The Council stated through their Solicitor that this was not the right classification as the factual matrix supported their view that she was an independent contractor.

On the 9th of December 2021 the SCOPE section of the Department of Social Protection determined that the Claimant’s employment status should be classed as PRSI A. This is a class for those who are employed under a contract of service and who are employees. That decision is being appealed by the Respondent.

The Complainant argued that a mutuality of obligation did in fact arise. She stated that the contract required her to perform a training/demonstrator role on a practical skills-based course so that students on that course would meet the standard of assessment as defined under the National Framework. The Council were obligated to provide her with work like an employee who would be training during their relevant college/training terms. Her work was overseen by a manager of the Council who she reported to. While a discretion did exist to take up other work, that could only arise outside the hours and periods as set down in the contract. That commitment was renewed on successive contracts from 2015 and ran to 2021. The Complainant stated that she worked fixed hours and received a set payment like a salary.

The Respondent stated that the test to be applied was that of mutuality of obligation and in this case there was none. In this case the Complainant could have substituted and placed another technician in the role to fulfil the tender. The Complainant had entered a business contract to provide services. It was not a contract of service. The Complainant did work for other parties and was free to do so. The nature of the contract was appropriately fee based. The Complainant prior to entering the contract had sought independent legal advice and signed her contract knowing that in substance it was a contractor role and was not a position for employment.

The Respondent opened several key documents:

·       The Independent Contractor’s Agreement dated and signed on the 13th of February 2015.

·       The initial Job Specification.

·       The Addendum signed by Complainant on 29th of August 2016.

·       The Independent Contractor’s signed by Complainant on 1st of November 2018.

·       E Tender notice for tender dated 20th of August 2019.

·       Independent Contractor’s Agreement signed by Complainant on the 4th of November 2019.

·       Addendum to Independent Contractor’s Agreement signed by Complainant on 3rd of November 2020.

And reference to a SCOPE decision finding that the Complainant was on a contract of service.

Under cross examination and while giving her own evidence, the Complainant accepted that prior to signing her first contract she did seek independent legal advice and based on that advice signed the independent contractor’s contract.

The determination of the Department of Social Protection does not bind this tribunal.

Section 16 of the Protection of Employees (Part-Time Work) Act 2001 as amended states:

16. A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 9 or 15 shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment

The Respondent stated that as the Complainant is an independent contractor, she has no standing to bring a claim under the Act.

Section 9 of the Act states:

9.— (1) Subject to subsection (2) and (4) and section 11(2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.

(2) Without prejudice to section 11(2), if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

(3) Nothing in subsection (2) shall be construed as affecting the application of a relevant enactment, by virtue of section 8, to a part-time employee.

(4) Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a part-time employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable full-time employee.

(5) For the avoidance of doubt, the reference in this section to a comparable full-time employee is a reference to such an employee either of the opposite sex to the part-time employee concerned or of the same sex as him or her.

In the alternative the Respondent stated that no comparator has been identified and no claim has been particularised so that the Respondent would know what conditions are being claimed to be less favourable than a comparable full-time employee.

The Respondent stated that the Unfair Dismissals Act 1977(UD Act) as amended does not apply as the Complainant is not an employee.

The UD Act defines an employee as at Section 1:

“employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and, in relation to redress for a dismissal under this Act, includes, in the case of the death of the employee concerned at any time following the dismissal, his personal representative.

The Respondent stated that the Complainant was on a contract for service and therefore the UD Act does not apply.

The first question that arises is what is the status of the Complainant?

The Respondent relies on Minister for Agriculture v Barry [2008] IEHC 216 at paragraph 47 where Edwards J stated where there is no mutuality of obligation ‘it cannot amount to a contract of service’. Also, the Respondent opened Karshan (Midlands) Limited t/a Domino’s Pizza v the Revenue Commissioners [2022] IECA 124 where the Court on appeal determined that the delivery drivers were under a contract for service as there was no mutuality of obligation.

Each case must be distinguished on its own facts.

I note that in Karshan the reason for overturning the decision was that the High Court erred when applying the mutuality of obligation test:

At para. 50, the trial judge said that he: -

“is not persuaded that mutuality of obligations always requires an obligation to provide work and to complete that work on an ongoing basis in the manner contended by the appeallant.”

The Court of Appeal stated that Irish Authorities on mutuality of obligation are unambiguous in requiring an ongoing reciprocal commitment to provide and perform work on the part of the employer and the employee respectively.

The first Independent Contract signed in 2015 refers to Appendix A and that document details what are the primary contract deliverables:

·       To assist the day to day running of the workshop

·       To provide technician services for 17 hours each week for the duration of the course with a week prior to the course start in September and week after the course closure in July.

·       To directly assist with the running of the workshop

·       To assist with tool and machine maintenance

·       To prepare teaching materials for project and examination work

·       To ensure adequate levels of materials and equipment are held within the department at any given time and monitor stocks held.

·       To unpack deliveries and maintain order in the store cupboards.

·       To help maintain departmental inventory.

·       To oversee workshop clean up, while ensuring compliance with policies and safety procedures

·       To assist with the workshop as a technical demonstrator

·       To be able to effectively communicate with a diverse student cohort on workshop practices and health and safety requirements

·       To assist in maintaining a safe environment in the workshop and to liaise with the Course Manager

·       To undertake appropriate training about techniques, health, and safety

·       Reporting Mechanisms:

Regular Review Meetings

Summary Report

Overtime her responsibilities expanded to include to teaching core modules on the programme.

The Complainant stated that she received a monthly payment of €1666.00 and worked 17 hours per week for 46 weeks of the year.

What is a mutuality of obligation?

In Karshan (Midlands) Limited t/a Domino’s Pizza v the Revenue Commissioners [2022] IECA 124 the term is explained with reference to Minister for Agriculture v Barry [2008] IEHC 216:

“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 there is no contract at all or whatever contract there must be a contract for services or something else, but not a contract of service. … Accordingly, the mutuality of obligation test provides an important filter. While one party to a work relationship contends that the relationship amounts to a contract of service, it is appropriate that the court or tribunal seized with that issue should in the first instance examine the relation in question to determine if mutuality of obligation is a feature of it. If there is no mutuality of obligation, it is not necessary to go further; whatever the relationship is, it cannot amount to a contract of service.” 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 there is no contract at all or whatever contract there must be a contract for services or something else, but not a contract of service. … Accordingly, the mutuality of obligation test provides an important filter. While one party to a work relationship contends that the relationship amounts to a contract of service, it is appropriate that the court or tribunal seized with that issue should in the first instance examine the relation in question to determine if mutuality of obligation is a feature of it. If there is no mutuality of obligation, it is not necessary to go further; whatever the relationship is, it cannot amount to a contract of service.”

The Respondent denies that the employer has an obligation to provide work to the Complainant and that the Complainant has no obligation to carry out that work. That position is not credible based on the nature of the contract between the parties as specified at Appendix A of the contract and the reality of any third party observing this relationship. The nature of this contract is based on a mutuality of obligation in so far as the Respondent is obligated to provide work to the Complainant and the Complainant is obligated to carry out that work under the control of the Respondent.

In the absence of any written contract a third-party observer would conclude that the Complainant was fulfilling an ongoing contract for the Council. The observer would note that she is required to work 17 hours per week on an ongoing basis for 46 weeks of the year. The observer would see that she is responsible for her students and how they progress. That she manages a classroom in a workshop environment. That she prepares teaching materials. That she is responsible for ongoing assessment and tuition of her students. That she has ongoing health and safety responsibilities in the workshops. That these duties are prescribed to be carried out by the Respondent.

 In all respects it reflects a technical trainer employment contract where the Complainant has direct teaching/training hours that are specified in some detail and to be achieved to a standard as set out in a detailed role specification. The reality also is that there is a reporting relationship to a manager. The hours worked remain constant, those hours are worked over 2 terms every year. There is a reciprocal relationship where work is provided by the Employer, and it is required to be worked by the Complainant and in return every month payment is made as set out in the contract of the order of €1666 monthly.

 There is an ongoing relationship between the Council and the Complainant where she is required to work set hours and to carry out work as prescribed by the Respondent in some detail to meet the training needs of her students and the requirements of the curriculum that they must follow to comply with the National Framework level 8 standards. That work continues and is ongoing for the entire year apart from a summer break of the order of 6 weeks.

One must ask if it is a technical training/demonstrator employment role, why the elaborate process of E Tenders and Independent Contract Provisions with recurring contracts over many years? Ultimately the Respondent can only answer that question. In this case they have denied that the contract is an employment contract. However, on the facts it is a contract of service and not of service.

In Karshan (Midlands) Limited t/a Domino’s Pizza v the Revenue Commissioners [2022] IECA 124, the law is set out, where to maintain that a contract is one of service, a mutuality of obligation must exist, and in Irish Law that relationship is characterised by an ongoing mutuality of obligation. The characteristics of this relationship based on the evidence and documents opened at the hearing meet that test. There is a mutuality of obligation, and that obligation is ongoing and not episodic. This is an ongoing relationship like that which exists in other education/training organisations that are engaged in teaching and training students in applied skills and crafts. This relationship commenced in 2015 and the Complainant has worked for the Respondent for 46 weeks of the year fulfilling the contract of service as specified by the Respondent in some detail and under their control.

The Respondent also relied upon Henry Denny & Son (Ireland) Ltd v Minister for Social Welfare [1997] IESC 9 where Keane J stated that each case should be considered on its own facts and the general principles developed by the courts.

The Respondent stated that the Employer had limited control over the Complainant’s work. At Clause 3.5 in the contract, it stated that she could work for other agencies. It is also represented that 3.5 gives the Complainant the right to “assign, transfer or sub-contract all or any of the Services” with the Respondent’s agreement. However, what the contract stated is as follows:

“3.5 The Contractor may not assign, transfer or sub-contract all or any of the Services employed in the delivery of this contract without prior agreement with the Chief Executive, DCCoI”

This clause is very restrictive and gives a very high-level of control to the Respondent concerning any sub-contracting with the agreement required from the Chief Executive. The Respondent is exercising a high level of control on how this contract can be fulfilled.

I also note at clause 3.4 while other work can be taken on for other parties; other work is subject to:

“3.4…However it is a condition of this Contract that such additional work will not impede the delivery terms of this contract in any way”

This clause and 3.5 amount to clauses that are very similar in employment contracts where a high level of control is exercised by the employer so that the employee must commit to fulfilling the terms and tasks of the role and that means prioritising this work over any other work commitment. It cannot be maintained that the Council had a low level of control over the Respondent’s ongoing requirement to meet detailed specified tasks over the training year.

The Respondent argued that the Complainant was not integrated into the business and is accessory. The Complainant is highly qualified and for that reason is retained to work with students so that they can become skilled craft workers. This training role is not an accessory one, rather is stated to be a primary objective of the Council. This work is about training students in design and craft skills an area identified by the Council as a core part of its role and purpose.

The Respondent stated that a determinative factor can be whether the individual is in business for their own account and that this relationship has all those characteristics. I find that the practice of invoicing was a practice set by Respondent so that the Complainant could be paid. That does not mean that the relationship is like a bookkeeper who provides services to a firm and is paid a fee. The factual matrix must be considered, and the factual matrix of this case does not lend support to this argument.

The Respondent also relied on the importance of considering what the intention of the parties was and that it was most definitely that of an independent contractor. In Limerick Public Participation Network Operations Clg v Victoria Ward UDD2035 where the court noted that it is not open to it to permit the Complainant to set aside the arrangements that she freely agreed with full knowledge and understanding. The Respondent argued that is clearly the case here based on the independent legal advice that the Complainant received when she signed the contract. The factual matrix in this case does not lend itself to that interpretation and has arisen due to the power imbalance in this arrangement.

The power balance in any relationship must be considered. In this case the employer insisted on how the relationship must work. The Complainant while highly skilled, works in a market where opportunities to provide her skills and craft as a technician and trainer are few and far between. The reality is she had no choice but to accept those terms as set out in the contract and to sign the contracts. However, that does not mean that the contract is a contract for service as that determination can only be made based on the entire factual matrix.

 I also note McDonagh v Iarnrod Eireann UD33/2013 and it is argued that on facts like this case where the Court determined that based on what the Complainant did, such as raising invoices; was entitled to subcontract and furnished a tax clearance, rejected the claim that the Complainant was an employee and unfairly dismissed. As previously stated, that right to subcontract in this case was severely limited and restricted. On the facts in this case and as set out by Keane J in Denny that each case must be considered on its own facts, the Complainant has very limited right to subcontract, and a high level of control was exercised by the Respondent.

I find that the Complainant’s contract was a contract of service. There is an ongoing mutuality of obligation between the parties where the Respondent will provide work and the Complainant is obligated to perform that work for a payment akin to a salary. The Respondent maintains a high level of control over the work of the Complainant. That control is maintained through a detailed role specification that is supervised by a manager. The work undertaken is central to the work of the Council. The Complainant has worked for 46 weeks of the year for 17 hours per week at times and dates required by the Respondent and to fulfil specific role responsibilities as set out by the Respondent and supervised by a manager. The factual matrix is probative of a contract of service, and I determine that the Complainant is an employee.

The next question that arises relates to jurisdiction and the Unfair Dismissals Act 1977 as amended. The employee has been on several contracts since 2015.

The Complainant was engaged on a contract with the Respondent until 2021. However, the Respondent denies that those contracts were employment contracts. The Complainant was told on or about May 2021 that her contract would not be renewed. The workshop/training programme was affected during Covid lockdown. The Complainant was informed that she could apply again for the contract when the tender was published as she had done previously.

The Unfair Dismissals Act 1977 as amended requires that an employee has:

2.— (1) Except in so far as any provision of this Act otherwise provides This Act shall not apply in relation to any of the following persons:

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him,

There have been breaks in service during summer periods and at point in May 2021 the employee was informed that her contract would not be renewed. In the contracts and addendums, the contract would for 46 weeks with a natural break in July for the summer break. The last contract was to run to July 2021 when the summer break would take place for about 2 months. The Complainant stated she worked for 46 weeks a year and on or about the end of term about the 7th of July she would go on leave.

And section 2 of the Unfair Dismissals Act states:

(2A) Where, following dismissal consisting only of the expiry of the term of a contract of employment of a kind mentioned in subsection (2) (‘the prior contract’) without the term being renewed under the contract or the cesser of the purpose of the contract—

(a) the employee concerned is re-employed by the employer concerned within 3 months of the dismissal under a contract of employment of that kind made between the employer and the employee (‘the subsequent contract’) and the nature of the employment is the same as or similar to that of the employment under the prior contract,

(b) the employee is dismissed from the employment,

(c) the dismissal consisted only of the expiry of the term of the subsequent contract without the term being renewed under the contract or the cesser of the purpose of the contract, and

(d) in the opinion of the adjudication officer or the Labour Court, as the case may be, the entry by the employer into the subsequent contract was wholly or partly for, or was connected with, the purpose of the avoidance of liability under this Act,

then—

(i) this Act shall, subject to its other provisions, apply to the dismissal, and

(ii) the term of the prior contract and of any antecedent contracts shall be added to that of the subsequent contract for the purpose of the ascertainment under this Act of the period of service of the employee with the employer and the period so ascertained shall be deemed for those purposes to be one of continuous service.

(2B) In subsection (2A), ‘antecedent contract’, in relation to a prior contract, means—

(a) a contract of employment of the kind mentioned in subsection (2) the term of which expired not more than 3 months before the commencement of the prior contract, or

(b) each of a series of contracts the term of the last of which expired not more than 3 months before the commencement of that of the prior contract and the term of the other or of each of the other contracts in the series expired not more than 3 months before the commencement of that of the other, or the next, contract in the series, being a contract or contracts made between the employer and the employee who were parties to the prior contract and the nature of the employment under which was the same as or similar to that of the employment under the prior contract.

I have formed an opinion that the successive contracts provided to the Complainant were to avoid partly or wholly liability under the Unfair Dismissal Acts 1977 as amended. The Complainant has 12 months continuous service at the time of the dismissal on or about the 7th of July 2021.

The Complainant stated that she was dismissed on 25th of March 2021; however, on the facts the Complainant was informed by her employer in May 2021 that her contract would end in July 2021. I find that the date of dismissal was therefore on or about the 7th of July 2021 based on the facts of this case as the contract is not specific on the actual date of termination and only refers to the month.

In that regard the lodging of the complaint at the WRC prior to the actual date of termination in June 2021 does not compromise the complaint as clarified by the High Court as she was on notice of her imminent termination.

I note Redmond on Dismissal Law [3rd Ed Bloomsbury], where Ryan summarises the law concerning the premature lodging of an Unfair Dismissal Claim:

(5) Clarification of correct legal position where claimant lodges claim prematurely

[22.74]

For many years, confusion surrounded the correct legal position concerning premature lodging of an unfair dismissal claim prior to the date of dismissal. Determinations of the Employment Appeals Tribunal on this question lacked consistency. For example, in Barry v Newbridge Silverware Ltd, 93 the respondent contended in a preliminary application to the EAT that the claimant’s unfair dismissal claim was pre-emptive as it was lodged prior to the date of dismissal. The claimant had been informed that her employment was being terminated for gross misconduct on 10 September 2012. The termination letter stated that the payroll department had been instructed to pay eight weeks’ basic salary from the date of the letter. The respondent argued that since payment was made in lieu of the claimant’s statutory notice period, the actual date of termination was 12 November 2012; the date of expiry of the notice period for which the claimant was being paid in lieu.

The claimant sought to refute this argument by claiming that as she was summarily dismissed for gross misconduct, the payment of eight weeks basic salary constituted a ‘goodwill gesture of some sort’ and contended that the date of dismissal was 10 September 2012. The EAT held that ‘it is long recognised … and is prescriptively imposed by the legislation that the date of dismissal will be the date on which notice expires (whether notice is imposed by contract or statute)’. The EAT interpreted the payment of eight weeks’ basic salary as ‘an intention to dispose of obligations arising under the Minimum Notice and Terms of Employment Act 1973’ and held that the date of termination of employment was 12 November 2012.

The EAT concluded, therefore, that the unfair dismissal claim was lodged too early and ‘in the course of her ongoing employment’. In these circumstances, the Tribunal did not have jurisdiction to hear the claim.

[22.75]

Confusingly, a contrasting approach was adopted by the EAT in Matthews v Sandisk International Ltd. 94 In that case, the Tribunal similarly held that the filing of a notice prior to the date of termination of employment constitutes the giving of notice for the purposes of s 8(2) of the Acts. The EAT found that by lodging a claim prior to the commencement of the prescribed time period, the claim was with the Tribunal at the commencement of, and throughout the prescribed period.

[22.76]

This approach, however, must be considered afresh in light of the clarification brought about by the 2014 High Court decision in Brady v Employment Appeals Tribunal and Bohemian Football Club. 95 The claimant was employed as a bar manager of the second respondent. On 16 December 2011, he was dismissed by reason of redundancy. After being informed of his dismissal, the claimant asked when his dismissal was effective, and was informed ‘Now’. The employer did not provide a notice of dismissal nor did a P45 issue. The claimant lodged an unfair dismissal claim on 23 December 2011 and cited his date of redundancy as 16 December 2011. When the matter came before the Tribunal, the employer claimed that the claimant’s claim had not been validly brought in time, contending that the claim was lodged before the expiration of the two-week redundancy notice period and hence, before the dismissal took effect. The Tribunal accepted this argument and held that as the claimant filed his claim before the date of dismissal, it did not have jurisdiction to hear the claim. The claimant instituted proceedings by way of judicial review of the EAT’s decision.

[22.77]

The High Court (Barrett J) quashed the decision of the EAT and held that it did indeed have jurisdiction to hear the claim. Barrett J emphasised that the EAT had notice of the claim at the commencement of, and throughout, the six-month period post-dismissal within which the claimant was permitted to institute the proceedings. The High Court stated that it would be absurd to find that a claimant should be denied the opportunity to bring a claim for unfair dismissal simply because the adjudicating body had notice of the claim immediately prior to the applicable six-month period. Barrett J drew support for this conclusion from the equitable principle that ‘Equity aids the vigilant, not the indolent’. 96

[22.78]

Barrett J was further satisfied that this conclusion was in keeping with the language of s 8(2) of the Unfair Dismissals Acts which provides that notice must be given within six months ‘beginning from the date of the relevant dismissal’. The High Court held that in circumstances such as those in this case, giving notice to the Tribunal on one date such that it has notice on another date complies with the requirements of the Acts. The High Court noted that prescribed time periods are typically intended to ‘thwart the tardy, not punish the prompt’ 97 and held that the Tribunal did have jurisdiction to hear the claimant’s claim. The High Court directed that a different division of the Tribunal hear the claim. The decision of the High Court in Brady thus provides a welcome and pragmatic clarification of this area of Irish dismissal law and the WRC now has clear guidance from the High Court on this question.

In this case the form was lodged with the WRC on the 16th of June 2021 and the contract was to expire in July 2021. However, her Council direct report, a manager did inform her on or about May 2021 that the contract would end, and the programme would at the earliest commence in Septermber 2022.

I determine that the complaint is properly before me; although, on the facts the form was lodged in June 2021 just a weeks before the date of termination; as clarified by the High Court in Brady v Bohemians, as the Complainant was on notice that the contract would be ending in weeks it would be unjust to deprive her of her right to pursue the complaint having regard to the facts in this case and notice of termination was given at the time of lodging the complaint.

The Unfair Dismissals Act 1977 states:

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Counsel for the Respondent has stated that there was no work for the Complainant and in these circumstances in the alternative the dismissal is not unfair.

Section 7 of the Act states:

[(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court], as the case may be, considers it appropriate to do so

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal,

On the balance of probabilities, I find that the Council was using successive independent contracts to evade their responsibilities placed on the employer by the Unfair Dismissals Act. As I have formed that view based on the facts of this case and that an ongoing obligation of mutuality did exist between the parties, the conduct of the employer was both unreasonable and a fundamental breach of contract rights. There is no evidence of the employer reviewing alternatives or engaging in any form of consultation with the employee prior to deciding to dismiss her.

The Complainant has stated that she wished to be employed by the Council. The Respondent stated that this is impossible as there is no work for the Complainant. The Complainant stated that there was other administrative support that she could provide and assist her manager with such as project work that was required pending the resumption of the training programme. Having regard to all the circumstances of this case I find that the conduct of the employer was unreasonable, and she was unfairly dismissed.

On the facts the Council envisaged the training to possibly resume in September 2022. In the circumstances of the employer evading their legal responsibilities and the programme may run in 2022; I determine in these circumstances it would not be appropriate to compensate the Complainant as this dismissal entirely arises from the unreasonable conduct of the employer. At section 7 the Act provides that:

7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances,

As the Complainant was not engaged on terms that reflected an employment contract in those circumstances, I have determined that re-engagement should apply on the terms specified in my decision.

The Complainant also brings a complaint under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001.

Section 9 of the Act states:

9.— (1) Subject to subsection (2) and (4) and section 11(2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.

(2) Without prejudice to section 11(2), if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

(3) Nothing in subsection (2) shall be construed as affecting the application of a relevant enactment, by virtue of section 8, to a part-time employee.

(4) Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a part-time employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable full-time employee.

(5) For the avoidance of doubt, the reference in this section to a comparable full-time employee is a reference to such an employee either of the opposite sex to the part-time employee concerned or of the same sex as him or her.

At section 7(2) of the Act comparable full-time employee is defined as:

relevant part-time employee” shall be construed in accordance with subsection (2).

(2) For the purposes of this Part, an employee is a comparable employee in relation to the employee firstly mentioned in the definition of “part-time employee” in this section (the “relevant part-time employee”) if—

(a) the employee and the relevant part-time employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,

(b) in case paragraph (a) does not apply (including a case where the relevant part-time employee is the sole employee of the employer), the employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant part-time employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable employee in relation to the relevant part-time employee, or

(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant part-time employee is employed in and one of the conditions referred to in subsection (3) is satisfied in respect of those employees, and references in this Part to a comparable full-time employee in relation to a part-time employee shall be construed accordingly.

And

and references in this Part to a comparable full-time employee in relation to a part-time employee shall be construed accordingly.

(3) The following are the conditions mentioned in subsection (2)—

(a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,

(b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and

(c) the work performed by the relevant part-time employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions

The Complainant has not made out case as prescribed by the Act in so far as no fulltime comparator has been identified. I determine that the complaint is not well founded.

CA-00044656-002 Protection of Employees (Part-Time Work) Act, 2001:

The Complainant has not made out case as prescribed by the Act in so far as no fulltime comparator has been identified. I determine that the complaint is not well founded.

CA-00044656-003 Unfair Dismissals Act 1977 as amended:

I find that the Complainant was unfairly dismissed.

The Respondent on or about 12th of May 2021 informed the Complainant that her status as an Independent Contractor was correct. She was also informed that the programme would not be running after her contract ended in July 2021. The tender process may open again in 2022 when the Complainant could then apply. No date was provided and the contract while it references July 2021 as the end date of the contract details no calendar date. However, the Complainant stated that she worked 46 weeks a year and she would take her break at the end of class term in July. On that basis I determine that the termination took place on or about the 7th of July 2021.

On the balance of probabilities, I find that the Council was using successive independent contracts to evade their responsibilities under obligations placed on the employer by the Unfair Dismissals Act. I have determined that a mutuality of obligation did exist between the parties and the contract is a contract of service.

The Complainant has stated that she wished to be employed by the Council. The Respondent stated that this is impossible as there is no work for the Complainant. The Complainant stated that there was other administrative support that she could provide and assist her manager in that regard.

On the facts the Council had plans to resume the training in 2022. In the circumstances of the employer evading their legal responsibilities and the programme may run in 2022, I determine in these circumstances it would not be appropriate to compensate the Complainant as this dismissal entirely arises from the unreasonable conduct of the employer. No consultation whatsoever has occurred with the employee and no alternatives other than termination was considered.

 At section 7 the Act provides that:

7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court], as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances,

As I have determined that the Complainant was on a contract of service and statutory  rights that should have been paid were not as she was wrongly classed as an independent contractor; I determine that the complainant be re-engaged effective the 7th of July 2021 based on the hourly rate of €25.50 per hour, for 17 hours per week as agreed between the parties, and on terms and conditions as required by statute and that the contract be deemed to have continued and be classed as a contract of indefinite duration without any break in service since commencing with the Respondent employer since 2015. A written statement of her terms and conditions to be provided to the Complainant detailing her statutory rights within one month of the date of issuing of this decision.

Independent Contractor-Contract of Indefinite Duration-Mutuality of Obligation