Complainant

Respondent

Anonymised Parties

A Manager

A Public Body

Representatives

Dave Curran SIPTU

Sarah Faulkner Arthur Cox

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00041300-001

29/11/2020

The Complainant worked with the Respondent as a self-employed contractor from 1991 until 2006. Since 2006 he has been an employee of the Respondent.

The Complainant seeks the period of time from 1991 to 2006 when he worked with the Respondent as a contractor is recognised for his length of service. In 1993 he was directed to work through various employment agencies. He worked for another employer in 2000 for six months, but the rest of the time for the Respondent.

He submitted a grievance to the Respondent on the issue which was not upheld in 2020. He submits that he was always an employee of the Respondent during the period, and relies on Revenue Guide to Determining Employed or Self-Employed Status, Henry Denny and Sons (Ireland) Ltd vs Minister for Social Welfare [1996] 7 ELR 43, K Ltd t/a Dominos Pizza Vs Revenue Commissioner and Re the Sunday Tribune (In Liquidation) [1984] IR 505.

The Complainant says he was under the direct control of a manager during his working day, he supplied only his own labour, and no tools or machinery. He could not subcontract the work, and he worked the same regular hours each week (8am – 4pm, Monday-Friday).

He did not have any opportunity to profit from “sound economic management”. He was not free to hire people. He was integrated into the management structure of the organisation.

He was not free to provide his services to other employers during his normal working hours.

He managed permanent employees. He was the recipient of numerous “long service awards” which recognised his “service” as going back to 1993. He had to get agreement for time off from management.

He says there were no other full-time permanent positions available for him until 2006 and disputes suitable roles were advertised. His contractor rates when annual leave was factored in was less than a permanent member of staff. He was reliant on the company for 95% of his income and did not negotiate his rates which were fixed.

The Respondent says the Complainant was employed as an independent contractor from 1991 to 1993 when he invoiced the Respondent directly. From 1993 to 2000, the Complainant was contracted with an employment agency and provided services to the Respondent. For a period of six months in 2000, the Complainant was employed elsewhere. The Complainant was then contracted to another employment agency that provided services to the Respondent from 2000 until 2006 when he successfully applied for a permanent role.

The Complainant was self-employed throughout the period until 2006. He invoiced the employment agency, paid his tax and held his own insurance. He filed returns, had his own office and worked for other clients. The Complainant negotiated his financial terms with the employment agencies. He advertised his services in the golden pages. Given the time that has passed there is little documentation available on these issues. The Complainant only applied for a permanent role in 2006.

In 2014 the Complainant appealed his Esop allocation and sought that his service as a contractor be recognised which was refused. He withdrew his appeal, and accepted he was not an employee. In 2020 the Complainant submitted a grievance seeking recognition for his service as a contractor from 1991 to 2006. The grievance and appeal were unsuccessful.

The Respondent relies on the decision in Henry Denny and Sons (Ireland) Ltd vs Minister for Social Welfare [1996] 7 ELR 43, Minister for Agriculture and Food v Barry & Ors [2008] IEHC 216, and Castleisland Breeding Society Limited v Minister for Social and Family Affairs [2004] IESC 40.

I heard and considered the submissions of the parties.

The Complainant’s application for recognition of prior service goes back 30 years to 1991.

From 1991 the Complainant was directly employed by the Respondent until 1993 as a design draughtsman. He then operated a company which was contracted with a recruitment agency to provide services to the Respondent as a design draughtsman until 2000. After a period of employment elsewhere, his company was contracted by another recruitment agency to provide services as a deputy drawing up manager to the Respondent from 2000 until 2006. During this time, he was assessed as self-employed for tax purposes and paid his own insurance. He operated an office until 1996. He was on a slightly higher rate as a contractor. He had no obligation to take work. He could not use a substitute to provide services to the Respondent. He worked for other businesses as there was no guarantee his contract would be renewed, although 95% of his work was for the Respondent.

S1(b) of the Payment of Wages Act 1991 provides where there is a contract whereby an individual agrees with another person to do or perform personally any work or service for a third person, the person who is liable to pay the wages of the individual in respect of the work or service shall be deemed to be his employer. The complainant’s employers from 1993 to 2000, and (following six months elsewhere) from 2000 to 2006 as design draughtsman and deputy drawing up manager was the two recruitment agencies. It was only in 2006 the Complainant was successful in an application for a permanent position of drawing up manager with the Respondent.

Given the passing of time, the terms of the contracts between the recruitment agencies and the Complainant are unavailable. There are a number of different tests applied by the Courts in examining whether a relationship is truly self-employment or not. Mutuality of obligation is an irreducible minimum for a contract of employment to exist. Mr. Justice Edwards in the Minister for Agriculture and Food v Barry [2008] IEHC 216 said if there is no mutuality of obligation;

“it is not necessary to go any further. Whatever the relationship is, it cannot amount to a contract of service. “

There is no evidence of mutuality of obligation for the Respondent to provide work and the Complainant to accept work from the Respondent during the period up to 2006. In the circumstances, I make no recommendation in relation to the complaint.

I make no recommendation in relation to the complaint.

Self-employment, mutuality of obligation, recruitment agencies