Complainant

Respondent

Parties

Aaron  Hunter

Maynooth University

Representatives

Frank Jones, Irish Federation of University Teachers

Ailbhe Moloney, Arthur Cox

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00040492-001

20/10/2020

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

CA-00040492-002

20/10/2020

The Complainant is a university lecturer. He commenced employment in October 2015 on an occasional basis. In October 2016 the Complainant was issued with a Fixed Term contract. Beyond a small amount of wrap up examination work relating to the programmes taught by him as part of his Fixed Term Contract, the Complainant has not worked for the University since the conclusion of the Fixed Term Contract I.e. May 2020.

This complaint was received by the Workplace Relations Commission on 20th October 2020.

Introduction.

By way of Workplace Relations Commission (“WRC”) Complaint Form filed on 20October 2020, Dr Aaron Hunter (“Dr Hunter”), lodged a complaint against MaynoothUniversity (the “University”) under the Unfair Dismissals Acts 1977 to 2015 and theTermsofEmployment(Information)Act1994to2014.

The University is satisfied that Dr Hunter was employed on a fixed term basis between 17 September 2019 and 8 May 2020 and he had a signed contract of employment that specifically exempted the application of the Unfair Dismissals Acts 1977 to 2015 in circumstances where his contract came to an end at the end of the fixed term. For these  reasons, and the further reasons set out below, Dr Hunter’s claim should be dismissed.

Background.

Dr Hunter was first employed by the University in October 2015 on an occasional basis. This was a casual arrangement whereby he submitted time sheets and was paid for the hours worked. A formal contract was not issued at this time.

In October 2016 Dr Hunter entered into a fixed term contract of employment with the University as a temporary Postdoctoral Research Fellow in the Department of Media Studies. The term of this employment was between 1 October 2016 and 30 September 2018.

On23April2018DrHunterwrotetotheUniversitytoconfirmwhethertheMastersinWriting for Screen Media would be running and whether he would be working on it.ThisclearlyindicatesthatDrHunterwasawareofthefinitenatureofhisposition.

On 30 August 2018 the University wrote to Dr Hunter and confirmed that his contract would terminate on 30 September 2018 in accordance with the terms of the contract and that Dr Hunter was entitled to a redundancy payment.

Laterthesamemonth,theUniversitycontactedDrHunterinrelationtohisredundancy  options.DrHunteroptedforone oftheredundancyoptionsviaemail.Apaymentof €5,394.24 of statutory redundancy and ex-gratia payments was made to Dr Hunter on28October2018.

Following the redundancy, Dr Hunter was again employed by the University on a casual basis to meet the University’s short term and transient needs. This work was separate and distinct from the work he had been engaged in under the externally funded Fixed Term contract.  Dr Hunter worked a total of 282 hours between October 2018 and September 2019 as follows:

Dr Hunter also corrected exams during this time. Exam Correction is not an hourly rate. It is based on the number of scripts to be corrected with the rate dependent on the  length of the exam.

In September 2019 Dr Hunter was offered a post as an Occasional Staff Memberbetween17September2019and8May2020.Thewrittentermsandconditionsofthis  contractof employmentwere set out inafixed term contract(the“Fixed TermContract”).Dr Hunter agreed to these terms and conditions and affixed his signatureon 11 September 2019.

Beyond a small amount of wrap up examination work relating to the programmes taught by him as part of his Fixed Term Contract, Dr Hunter has not worked for the University since the conclusion of the Fixed Term Contract.

Following discussions between the University and IFUT on behalf of Dr Hunter, Dr Hunter met with his IFUT representative in September 2020 to discuss the possibility of taking on a role as an external module lecturer for Semester 1 2020/21. Reference to  this meeting is captured in the correspondence between Mr Frank Jones of IFUT on behalf of Dr Hunter and Mr Neil Coogan, the Employee Relations Manager with the University. Dr Hunter subsequently refused this offer of work.

The Law.

The relevant contract for these proceedings is the Fixed Term Contract.

Dr Hunter makes two claims, one under the Unfair Dismissals Acts 1977 to 2015 (“UDA”) and the other under the Terms of Employment (Information) Act 1994 to 2014 (“TOEI”).

It is notable that Dr Hunter does not make a claim under the Protection of Employees (Fixed-Term Work) Act 2003 or a claim for a contract of indefinite duration thereunder. Therefore, any such determination is not a matter for these proceedings. Had any such claim been brought it would have been rigorously defended by the University. We note that Dr Hunter’s last employment with the University ended on 8 May 2020, therefore, any application for such a claim is now statute barred.

Unfair Dismissals Acts 1977 to 2015

Section 2(2)(b) of the UDA explicitly states:

“…this Act shall not apply in relation to…

(b) dismissal where the employment was under a contract of employment for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment) and the dismissal consisted only of the expiry of the term without its being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid.”

Clause 13 of the Fixed Term Contract specifically states:

“The Unfair Dismissals Acts 1977 to 2007 shall not apply to the termination of this contract where such termination is by reason only of the expiry of the fixed term or where relevant the ending of a specified purpose.”

In his WRC Complaint Form Dr Hunter states: “I was informed in Mid-August that there was no work for me in the academic year 2020/2021 and my employment was ended. I am seeking reinstatement.”

Dr Hunter’s claim must fail as the Fixed Term Contract falls within the exclusions of the UDA. The University had no obligation to provide Dr Hunter with any work following the conclusion of the Fixed Term Contract.

Terms of Employment (Information) Act 1994 to 2014

Section 3(1) of the TOEI states:

“An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment”

In his WRC Complaint Form Dr Hunter states: “I have been engaged by the university     without a contract of employment since September 2018.”

Dr Hunter was provided the Fixed Term Contract on 9 September 2019 and signed it on 11 September 2019. Therefore, Dr Hunter’s claim is simply untrue.

The University therefore fulfilled its obligations under TOEI and Dr Hunter’s claim must fail in this regard.

If Dr Hunter were to argue that there was an omission or defect in the terms and conditions of the Fixed Term Contract, which is not conceded, the De Minimis rule would be relied upon as per Labour Court case of Irish Water v Patrick Hall (TED 161) wherein the Court noted: “It is an established principle of the common law that a Court should not squander its resources in dealing with claims that are without substance because the contraventions complained of had no practical consequence for the plaintiff.”

Conclusion.

For the reasons outlined above, Dr Hunter’s claims should be rejected.

Introduction

 This case concerns a claim by Dr Aaron Hunter, IFUT member, that Maynooth University (hereinafter “the respondent”) dismissed him from his employment in order to avoid ‘formalising’ and ‘regularising’ his employment and/or providing him with a contract of indefinite duration.

The complainant is grounding his claim under the Unfair Dismissals Act 1977-2015 and alleging dismissal contrary to s 6(1) of the 1977 Act.

The complainant is alleging that the respondent is in contravention of section 3 of the Terms of Employment (Information) Act 1994.

Background

The complainant was employed continuously in the respondent university from September 2015 until June 2020 on a series of contracts.

During this time the complainant lectured in the Department of Media Studies and taught and designed a variety of courses at BA and MA levels. The complainant has presented at national and international conferences and published journal articles and book chapters.

The complainant also arranged and hosted an international symposium and international conference and is a sought after public speaker.

In October 2016 the complainant was offered (and accepted) a two year ‘Fixed Term Contract of Employment in the Department of Media Studies’.

At the end of this fixed term contract (September 2018), the complainant accepted a lower rate redundancy payment in the belief that he would remain an employee of the respondent. He chose an option, offered by the respondent, which would allow him to remain in the public service. “If you select option 1 you can be re-engaged in the Public Sector and there is no exclusion period.”

The complainant’s clear understanding and intention when he accepted the redundancy payment was that he would be able to continue working in the respondent university. This proved to be the case. The complainant continued employment and teaching in the respondent university.

For the avoidance of doubt, the complainant was continuously engaged/employed by the respondent university from 2015-2020. There was no break in employment.

In September 2019 and again in November 2019 the respondent wrote to the complainant outlining that his service profile ‘…indicates that your engagement …may more properly be defined and regularised in contractual terms’. The letter went on to assure the complainant that the university’s ongoing investigation into precarious work ‘…will formalise your engagement and provide certainty regarding your employment in the University’. 

In May 2020 and August 2020, the complainant made a number of representations to HR to request and update on his employment status as he had been employed at the respondent university for 5 years. The complainant fully anticipated and reasonably expected the offer of a contract of indefinite duration as he had met the criteria under the legislation and, more importantly, the courses he developed and taught are required into the future.  In addition, he had been assured, in writing on two occasions, that his engagement would be ‘formalised’ and that his terms of employment would not be reduced.

Despite the previous commitments given by the respondent and without discussion or reasonable explanation, the complainant was dismissed on 15th August 2020.

IFUT contacted the respondent on 24th August 2020. The correspondence focused on commitments the respondent gave to the complainant in September and November 2019. IFUT requested that the respondent regularise the complainant’s employment and ‘that he is afforded a contract of employment providing him with employment for the upcoming semester in line with the assurances made and the expectations arising from these assurances.

HR responded to IFUT on the 25th of August stating, inter alia, ‘that his occasional engagement is not going to be renewed this coming academic term’ and seeking clarification from IFUT as to what the union was seeking.  A response was sent from IFUT.

On 31st August 2020, 16 days after the complainant was dismissed the respondent suggested to the IFUT representative that: ‘There may be the possibility of some work this term on a specified purpose basis’. 

Again, the complainant reasonably expected to receive a contract of indefinite duration from the respondent. The work offered turned out to be one module for semester one only – an offer of precarious employment which could not in any way sustain even the most meagre livelihood.

A meeting was held (remotely) on the 16th of September between IFUT and Mr Neil Coogan of MU HR.  Following the meeting IFUT wrote to HR on the 17th of September once again setting out the case in detail as to why Dr Hunter should secure a CID.  Finally, on the 12th of October 2020 Mr Coogan responded by mail to state that ‘the University’s position is that Dr Hunter is not entitled to a CID and as such, rejects IFUT’s claim in this instance.’  The matter was then referred to the WRC by IFUT.

Legal Submission

It was submitted that the dismissal of the complainant was unfair and in contravention of the Unfair Dismissal Acts 1977-2015. Section 6 (2) and (3) of the 1977 Act deems every dismissal unfair for the purposes of the Act ‘unless having regard to all the circumstances there are substantive grounds justifying the dismissal.’

The factual matrix of this case must be considered in light of well-established principles relating to a disputed fact of unfair dismissal. Fairness enters dismissal law at every point.

The complainant will rely on Section 6(7) of the Act wherein it is submitted that the respondent, its servants or agents acted in an unreasonable manner at every stage of a process which eventually led to the complainant’s dismissal.

The complainant worked for 5 years in the Media Studies Department. In two separate letters/emails from the respondent, the complainant received assurances that his employment would be regularised. In good faith, the complainant relied on these assurances.

On these two separate occasions – 25th September and November 2019 – a senior HR official of the respondent university stated that the complainant’s employment status would be formalised and regularised in contractual terms.  The first of these communications came from the HR official a week after the Statement of Terms of Engagement was issued.  Dr Hunter had a reasonable expectation that the mail that he received from the HR official, Mr Coogan the Employee Relations Manager superseded the Statement that he had received one week earlier.  This expectation was further enforced as a result of the exchange of correspondence between Dr Hunter and Mr Coogan and indeed further reinforced by the follow up mail sent to Dr Hunter on the 27th of November, 2019 which assured Dr Hunter that his terms and conditions of employment would not be reduced and that he would receive ‘certainty’ about his future engagement ‘in a number of weeks’.

The conduct of the respondent.

The conduct of the respondent goes to the heart of the injustice and unfairness of the dismissal. As mentioned above, on the 25th September 2019, a senior HR member wrote to the complainant in relation to his employment status and unambiguously stated:

Dear Aaron,

“This project has identified three broad categories of occasional staff, namely, Graduate Teaching Assistants, Occasional Hourly Paid Staff and External Modular Lecturers. The University has now put into policy the terms of engagement for these cohorts of occasional staff into the future.

An initial review of your service profile to date indicates that your engagement does not align to these three categories and may more properly be defined and regularised in contractual terms.

… Be assured, this process will not in any way reduce your existing terms and conditions, rather, it will formalise your engagement and provide certainty regarding your employment in the University.” [emphasis added by complainant rep]

The complainant heard nothing further for a period of two months. On the 27th November the complainant again emailed the respondent for an update. The respondent sent a brief reply and again unequivocally stated the intention of the respondent university to formalise the complainant’s engagement and provide certainty:

27 November 2019:

Dear Aaron,

“…as set out in my previous email, this process will not in any way reduce your existing terms and conditions, rather, it will formalise your engagement and provide certainty regarding your employment in the University.”

Following these emails from a senior member of staff, and in the knowledge his service entitled him to a CID, the complainant reasonably expected that his employment status would be formalised in the coming months. Again, as there was no further contact from the respondent, the complainant again emailed the respondent on 5 April 2020:

5 April 2020:

“I have now been employed by the department of Media Studies at Maynooth in a lecturing capacity for the past five years (this term included), and I would like to know what my options are going forward.”

The complaint did not receive a response to the email. The complainant was not updated on the investigation/project.

On the 29th May 2020 the complainant again emailed the respondent for an update and confirmation of his employment status.

“… I lecture in the department of Media Studies at Maynooth.

I am writing to inquire about my contract status and whether I am eligible for a contract of indefinite duration.”

“I have been employed by the department since autumn of 2015. From Oct 2016-Oct 2018, I was based in the department as an Irish Research Council postdoctoral fellow; however, during that time, I continued to be employed as a lecturer in the department.

I would appreciate any information or advisement you could provide about my status going forward.”

Shockingly, instead of being offered a contract of indefinite duration, or at the very least a new contract as was reasonably anticipated and expected – the complainant was dismissed. On the 17th August 2020 the complainant was utterly shocked to hear (informally) at local level (and without input from HR) that he was going to be dismissed. The complainant again emailed HR:

“I am writing to follow up on below message (also pasted below), which I sent to you on 29 May of this year. … I have been in the department of Media Studies in one capacity or another (temporary) since the autumn term of 2015.

I have been trying to discern my status in regard to a Contract of Indefinite Duration, but so far nobody has been in touch with me.

Today I was informed by my department that, after five years of service and dedication, they will not be asking me back because of my contract status.

Could somebody please respond to my query soon as I am quite distraught over this.”

Following a request from the complainant, IFUT contacted the respondent on 24th August 2020:

“IFUT are requesting that you use your good offices to ensure that, as a matter of priority, Dr Hunter’s employment is regularised and that he is afforded a contract of employment providing him with employment for the upcoming semester in line with the assurances made and the expectations arising from these assurances.  I await your confirmation that this matter will be addressed.”

The complainant’s employment status and entitlement to a contract of indefinite duration

The ‘justification’ for the dismissal contained in the respondent’s letter of 18th November 2020 to the WRC, makes no reference to the ‘investigation’ undertaken by the employer.

Tellingly, the respondent makes no reference whatsoever to the fact that on two separate occasions a senior HR official assured the complainant that the process would ‘…not in any way reduce your existing terms and conditions, rather, it will formalise your engagement and provide certainty regarding your employment in the University.’ [emphasis added by complainant rep].

There was no attempt to have a meaningful discussion with the complainant or keep him in anyway informed of the ‘investigation/project’ or indeed any reference to the ‘investigation/project’. The respondent’s statement does not address the fact that the complainant did not fit any of the university’s three broad categories of occasional staff - ‘Graduate Teaching Assistants, Occasional Hourly Paid Staff and External Modular Lecturers.’ The respondent does not address the fact that the ‘initial review of [the complainant’s] service profile to date indicates that [the complainant’s] engagement does not align to these three categories and may more properly be defined and regularised in contractual terms.

No explanation or information is given. Instead, the respondent remorselessly pursues its own interests in refusing to provide the complainant with a contract of indefinite duration.

This remorseless pursuit is further revealed when the respondent offered the complainant (after his dismissal) one module to teach, for one semester. An offer clearly impossible for the complainant to take up and be in a position to sustain any decent and acceptable standard of living. The conduct of the employer and the ‘justification’ posed for the dismissal of the complainant does not stand up to even the most superficial scrutiny and would not be deemed fair by any reasonable employer.

It is submitted that the actions of the respondent in first dismissing the complainant and later offering employment on one ‘module’, is a clear attempt to avoid liability. It is a disingenuous and self-serving act to further sustain the practice casualisation and precarious employment. 

To be clear, in the context of the ‘investigation’ and correspondence sent to the complainant it was never indicated, at any material time, that the possibility of his dismissal existed. The complainant’s focus and reasonable expectation at all material times was that his employment status and service of 5 years would be regularised and that he was entitled to a contract of indefinite duration.

Conclusion

Fairness enters dismissal law at every point and a breach of a fundamental tenet of natural justice cannot be condoned. It is therefore submitted that the respondent, its servants or agents unfairly dismissed the complainant in terms of the Unfair Dismissals Act, 1977-2015. The unfair dismissal of the complainant has had a significant effect and impact on his life.

The Complainant was dismissed from his longstanding employment and an order of reinstatement should be made.

Summary of evidence

The complainant in this matter will provide the Adjudicator with evidence of his unfair dismissal imposed by the respondent, its servants or agents. The complainant will provide the Adjudicator with viva voce evidence in support of the background facts and evidence which has been produced throughout this submission. 

The complainant is seeking re-instatement in line with section 7(1)(a) of the 1977 Act.

The Terms of Employment (Information) Act 1994)

Section 3 of the Act imposes an obligation on employers to provide their employees with a written statement of terms and conditions relating to their employment within two months of commencing employment.  The ‘Terms of Engagement’ is not the same as the ‘Contract of Employment’.

A contract of employment is defined in the 1977 Act as ‘a contract of service or an apprenticeship, whether it is express or implied and (if it is express) whether it is oral or in writing’.

Section 3 of that Act provides:

3.— (1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(g) the rate or method of calculation of the employee's remuneration,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

No such statement was provided to Dr Hunter, Section 7(2) of the Act empowers the Adjudicator to determine the appropriate redress in cases where the employer contravenes Section 3 of the Act.  The ‘Statement of Terms of Engagement’ appendixed in the employer’s submission was, as outlined earlier in this submission, clearly not valid as it had been superseded by the communication referred to earlier between the Employee Relations Manager and Dr Hunter that took place during the months after the ‘Statement’ was issued.

Adjudicator, as the case before you involves the dismissal of our member we are respectfully requesting, that in this case, you recommend, in line with Section 7(2) (c) of the Act that:

require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the commissioner,

We are respectfully requesting that the particulars in that contract reflect the terms of Dr Hunter’s engagement, recognising his service and entitlement to a contract of indefinite duration.

Dr Hunter was first employed by the University in October 2015 on an occasional basis. This was a casual arrangement whereby he submitted time sheets and was paid for the  hours worked. A formal contract was not issued at this time.

In October 2016 Dr Hunter entered into a fixed term contract of employment with the University as a temporary Postdoctoral Research Fellow in the Department of Media Studies. The term of this employment was between 1 October 2016 and 30 September 2018.

This fixed term contract contained a clause at 1.3 which states:

The Unfair Dismissals Acts 1977 – 2007 shall not apply to the termination of this contract by reason only of the expiry of the fixed term without its being renewed under this contract.

On23April2018DrHunterwrotetotheUniversitytoconfirmwhethertheMastersinWriting for Screen Media would be running and whether he would be working on it.ThisclearlyindicatesthatDrHunterwasawareofthefinitenatureofhisposition.

On 30 August 2018 the University wrote to Dr Hunter and confirmed that his contract would terminate on 30 September 2018 in accordance with the terms of the contract and that Dr Hunter was entitled to a redundancy payment.

Laterthesamemonth,theUniversitycontactedDrHunterinrelationtohisredundancy  options.DrHunteroptedforone oftheredundancyoptionsviaemail.Apaymentof €5,394.24 of statutory redundancy and ex-gratia payments was made to Dr Hunter on28October2018.

Following the redundancy, Dr Hunter was again employed by the University on a casual basis to meet the University’s short term and transient needs. This work was separate and distinct from the work he had been engaged in under the externally funded  Fixed Term contract.

Dr Hunter then accepted an “Occasional Staff Appointment” contract that ran from 9th September 2019 until 8th May 2020. Contained within this contract under the heading of “Statement of terms of engagement” was the following “please study the attached document carefully to ensure you fully understand the basis upon which employment is being offered”.

Under section D, point 2 the following is stated:

“You are engaged as an occasional member of staff. Whilst this appointment may result in you being offered work by the University from time to time, please be aware that it does not infer any obligation on you to accept work from the University nor does it require the University to offer you any work”

Mutuality of Obligation.

Questions arise regarding the employment relationship. To address these I have borrowed the following text from Redmond on Dismissal Law, third edition by Desmond Ryan BL, chapter 3.

[3.15] A leading example of articulation of the relevant legal principles in the jurisdiction by the Superior Courts is to be found in one of the High Court judgments in the long running case of Minister for Agriculture v Barry [2011] IEHC 43.  Because of the importance of this case, and the emphasis it places on the requirement of mutuality of obligation to be shown in order for an employment relationship to exist, it is necessary to outline the significant elements of Barry in some detail.

[3.16]The case first came before the High Court by way of an appeal from the Employment Appeals Tribunal which had ruled that veterinary surgeons who worked as Temporary Veterinary Inspectors (TVIs) at the Galtee Meats Plant in cork were employed under a contract of service and were employees.  The TVIs were private veterinary surgeons who were also in business on their own account and they could (and mostly did) continue in private practice alongside undertaking TVI work for the Department.  They were paid by the Department on an hourly fee basis at rates fixed at intervals.  The TVIs were placed on panels which operated on the basis of seniority, availability and suitability.  Their function was to assist the permanent veterinary staff at meat plants.  Each TVI was provided with the required protective clothing and the necessary equipment.  There was a minimum roster period for the TVIs and if one was unavailable to attend a specific shift he had to notify the veterinary inspector who would appoint the next most senior member of the panel to perform the shift.  The TVIs were required to carry out the work personally and they occasionally swapped shifts.

[3.17]The Employment Appeals Tribunal had originally found that there was an employment relationship on the basis of what it identified as a “mutuality of obligation”, but on appeal to the High Court, Edwards J found that the Employment Appeals Tribunal had misunderstood the Supreme Court decision in the Denny case, and that the Employment Appeals Tribunal had misdirected itself in law and had failed to correctly apply the law to the facts of the case.  There was a further Employment Appeals Tribunal hearing and a further High Court appeal (before Hedigan J), the effect of which was to find that these individuals were not employees but instead engaged on contracts for services, but that second High Court judgment was the subject of a Supreme Court Appeal which caused the matter to be remitted back to the Employment Appeals Tribunal.  In a very important passage of the main judgment of the High Court (Edwards J) the Court stated the following in relation to mutuality of obligation as being an essential component of an employment relationship:

“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 either there is no contract at all or whatever contract there is must be a contract for services or something else, but not a contract of service.  It was characterised in Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612 p 632 as the “one sine qua non which can firmly be identified as an essential of the existence of a contract of service.”  Moreover, in Carmichael v National Power plc [1999] ICR 1226 at p 1230 it was referred to as “that irreducible minimum of mutual obligation necessary to create a contract of service”.  Accordingly the mutuality of obligation test provides an important filter.  Where one party to a work relationship contends that that relationship amounts to a contract of service, it is appropriate that the court or tribunal seized of that issue should in the first instance examine the relationship 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.  However, if mutuality of obligation is found to exist, the mere fact of its existence is not, of itself, determinative of the nature of the relationship and it is necessary to examine the relationship further”.

[3.18] It is significant to note that, having made the above statement of principle in the Barry case, the High Court went on to deem the TVI workers in that case to be independent contractors as distinct from employees.  In so doing, the High Court placed particular emphasis on the fact that the TVI workers were entitled to decline to work at the very least 16% of the shifts offered to them without that refusal having any consequences for their contracts.  Edwards J was unambiguous in stressing the importance of mutuality of obligation stating:

“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”.

In the instant case, through section D, clause 2, where it is possible for the Respondent not to offer any work and it is open for the Complainant to decline to do any work offered, there is no mutuality of obligation and therefore the Complainant had no contract of service and consequently he could not be considered to be an employee. I have no alternative but to find the complaint as presented not well founded.

CA-00040492-002 – complaint submitted under section 7 of the Terms of Employment (Information) Act, 1994.

The Complainant was issued with a statement containing the particulars of his employment. This complaint is not well founded.

CA – 00040492 – 001

Through section D, clause 2, where it is possible for the Respondent not to offer any work and it is open for the Complainant to decline to do any work offered, there is no mutuality of obligation and therefore the Complainant had no contract of service and consequently he could not be considered to be an employee. I have no alternative but to find the complaint as presented not well founded.

CA – 00040492 – 002

The Complainant was issued with a statement containing the particulars of his employment. This complaint is not well founded.

Unfair Dismissals Act, 1997

Terms of Employment (Information) Act 1994.