Complainant

Respondent

Parties

David  Iredale

Minister for Enterprise Trade and Employment

Representatives

Myles Gilvarry of Gilvarry & Associates

Cathy Smith B.L., instructed by the Chief State Solicitor’s Office

Act

Complaint/Dispute 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-00043630-001

16/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00043630-002

16/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00043630-003

16/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00043630-004

16/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00043630-005

16/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00043630-006

16/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00043630-008

16/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00043630-009

16/04/2021

The complainant referred these complaints against the Minister for Enterprise Trade and Employment on 16 April 2021. He had previously referred the same complainants on 26 February 2019 against the Workplace Relations Commission. There was a hearing into those complaints on 14 October 2020 and 28 January 2021. The Adjudication Officer found that the complainant had impleaded the incorrect respondent/employer and therefore did “not have the required locus standi to maintain the within proceedings against the respondent”. The Adjudication Officer did grant leave to the complainant under Section 39(4) of the Organisation of Working Time Act 1997 to initiate proceedings against the “relevant Minister” in relation to the complaints under the Protection of Employees (Part-Time Work) Act, 2001, the Protection of Employees (Fixed-Term Work) Act, 2003, the Organisation of Working Time Act 1997 and Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012, S.I. No. 36-2012. I therefore take the referral date of the claims before me to be the date the original claims were made against the Workplace Relations Commission, which was 26 February 2019.

The complainant worked as a Right’s Commissioner in the Labour Relations Commission (LRC) from 1 September 2003 and became an external Adjudication Officer with the Workplace Relations Commission (WRC) from its’ establishment on 1 October 2015. He continued as a Right’s Commissioner until he stopped work on 31 August 2018. His appointment was made by back-to-back warrants issued by the relevant Minister.

RESPONDENT’S SUBMISSION

The respondent raised a preliminary jurisdictional issue. They submit that the complainant is an office holder and is not engaged pursuant to a contract of employment. They cited Murphy v Minister for Social Welfare [1987] IR 295 where Blayney J. held that the employment of an ordinary member of the Labour Court was not pursuant to a contract of service but that he was employed in the Civil Service of the State. And in Keith v Department of Justice and Equality, 163/2014 a decision of the Employment Appeals Tribunal (EAT), the EAT determination, in the context of the Unfair Dismissals legislation was that the claimant was an office holder. The fact that he had a contract governing the terms and conditions of his appointment did not change the underlying nature of the position as an office holder. The respondent submits the complainant is in an analogous position and I am bound by the decision in Murphy v Minister for Social Welfare.

The respondent submits the complainant was appointed on a series of fixed-term warrants. As an external Adjudication Officer, the complainant was requested to indicate his availability to carry out investigations. He could not be instructed to be available at a given time or in a given location. The complainant was contracted to carry out his functions independently, with no management of his attendance, other than to ensure he turned up to a scheduled hearing. If a hearing did not proceed the complainant was not expected to remain on the premises for the working day, unlike internal Adjudication Officers, who are Civil Servants on a contract of employment. He could refuse an allocated hearing location. He could take time off for any purpose by simply not providing his availability in the scheduling tool.

At the time of the establishment of the WRC the Right’s Commissioners received a per diem rate of €408.66. Other external Adjudication Officers received €380. The rate for all external Adjudicators, was increased in 2016 to €495. And further increased in 2019 to €525. These rated are determined by the Department of Public Expenditure and Reform and reflect the service provided. The practice of originally paying travel and subsistence to the Rights Commissioners on the same basis as Assistant Principals in the Civil Service ceased on the instructions of the Revenue Commissioners, who considered the Rights Commissioners, as office holders, not to be Civil Servants for travel and subsistence purposes.

The complainant resigned from his positions as an external Adjudication Officer and a Right’s Commissioner in October 2018.

The respondent submits the complainant’s status must be considered in the light of the provisions of the legislation under which the complaints are made. The Protection of Employees (Part Time Work Act, 2001 and the Protection of Employees (Fixed Term Work) Act, 2003, the Organisation of Working Time Act, 1997, Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012, S.I. No. 36-2012  state an employee, within the meaning of the Act is a person who entered into or works under a contract of employment.

COMPLAINANT’S SUBMISSION

The complainant submits that because he was an appointed office holder this does not preclude him from also having a contract of employment or from benefitting from the provisions in the legislation under which he has made his complaints. Employment status is determined by the work performed, whether mutuality of obligation is present, the circumstances of the work and the extent of control exercised by the employer.

The complainant was appointed as a Right’s Commissioner and an Adjudication Officer and issued with warrants of appointment setting down their jurisdiction, the fixed-term duration of the appointment and the terms and conditions of the appointment. With the exception of the change in name from LRC to WRC the warrants remained unchanged for the duration of the complainant’s employment as a Right’s Commissioner and Adjudication Officer. He commenced work full-time from Monday to Friday, as required by the respondent.

Right’s Commissioners were required to give priority to cases scheduled by the LRC and were told they should not engage in other work that would be inconsistent with the need to conduct investigations in an impartial manner. This show that mutuality of obligation clearly applied. The complainant quotes the Supreme Court in considering contracts “of” service in the case of Henry Denny & Sons (Ireland) Ltd. V Minister for Social Welfare [1997] IESC 9, held “while each case must be determined in the light of its particular facts and circumstances, in general a person will be regarded as providing his or her services under a contract of services and not as an independent contractor where he or she is performing those services for another person and not for himself or herself. The degree of control exercised over how the work is to be performed, although a factor to be taken into account, is not decisive. The inference that the person is engaged in business on his or her own account can be more readily drawn where he or she provides the necessary premises or equipment or some other form of investment, where he or she employs others to assist in the business and where the profit which he or she derives from the business is dependent on the efficiency with which it is conducted by him or her.”

The complainant also quotes from the Code of Practice produced by the Employment Status Group set up under the Programme for Prosperity and Fairness. The Code states that the overriding consideration or test will always be whether the person performing the work does so “as a person in business on their own account”. Is the person a free agent with an economic independence of the person engaging the service. When working as a Right’s Commissioner or external Adjudication Officer the complainant was clearly not doing so as a person in business on their account, nor was he working a free agent with the economic independence of the entity engaging the service.

The Code states that while all may not apply an individual would be an employee if s/he:

Is under the control of another person who directs how, when and where the work is to be carried out; the complainant submits the LRC and WRC completely controlled and directed when, where and how the work was to be carried out, including date, time and location of hearings and time allocated to each hearing.

Supplies labour only: this was the case with complainant

Receives a fixed hourly/weekly/monthly wage: the complainant was paid fortnightly based on the number of days worked.

Does not supply materials or equipment for the job: the complainant did not supply materials or equipment. The complainant was provided with a secretary, office, desk, filing cabinet, PC, mobile phone, printer, Dictaphone, law books, periodicals, postage expenses, stationary and some limited training.

Is not exposed to personal financial rick in carrying out the work: the complainant was not exposed to personal financial risk.

Does not assume responsibility for investment and management in the business: the complainant had no such responsibility.

Does not have the opportunity to profit from sound management in the scheduling of engagements or in the performance of tasks arising from the engagement: the complainant had no opportunity to profit.

Works set hours or a given number of hours per week or month: the complainant was paid a daily rate linked to the PO scale.

Works for one person or business: the complainant was required to give priority to the work of the LRC and WRC.

Receives expenses payments to cover subsistence and/or travel expenses: the complainant was paid subsistence and travel expenses until it was unilaterally removed by the WRC. It was specifically provided for in the warrants issued.

Is entitled to extra pay of time off for overtime: when the work expanded the complainant needed to work extra hours but was not paid for these extra hours.

The complainant also submit they were integrated into the LRC and WRC with regular meetings with the Chief Executive of the LRC.

The complainant submits that the EU Directives giving effect to the Organisation of Working Time Act, the Protection of Employees (Fixed-Term Work Act 2003 and the Protection of Employees (Part-Time Work) Act 2001 give protection to workers providing remunerated employment under a contract of employment or under an “employment relationship”. The complainant submits there can be no doubt that the issuing of warrants by the respondent and the acceptance of these warrants by the complainant created an “employment relationship”.

CONCLUSIONS

The complainant was appointed as a Right’s Commissioner under the provisions of section 13 of the Industrial Relations Act, 1969, which states:

“(1) The Minister may from time to time appoint a person who shall be known as and is in this Act referred to as a rights commissioner to carry out the functions assigned to him by this section.

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

(b) A rights commissioner shall not investigate a trade dispute—

(i) if the Court has made a recommendation in relation to the dispute, or

(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.

(4) A rights commissioner shall hold office for such period as the Minister may determine and shall be paid such fees and expenses as the Minister, with the consent of the Minister for Finance, may determine from time to time and shall hold office upon and subject to such other terms and conditions as the Minister may determine from time to time.

(5) (a) A rights commissioner may be removed from office by the Minister for stated reasons.

(b) Neither the Civil Service Commissioners Act, 1956, nor the Civil Service Regulation Acts, 1956 and 1958 , shall apply to the office of rights commissioner.

(6) A rights commissioner may provide for the regulation of proceedings before him in relation to an investigation under this section and may provide for the cases in which persons may appear before him by counsel or solicitor and, except as so provided, no person shall be entitled to appear by counsel or solicitor before him.

(7) The Minister, if he so thinks fit, may appoint more than one rights commissioner at the same time or appoint a rights commissioner at a time when one or more than one rights commissioner stands or stand appointed.

(8) An investigation by a rights commissioner shall be conducted in private.”

Section 40 (3)(a) of the Workplace Relations Act, 2015 confirms the appointment of all those who were Right’s Commissioners at the time of the establishment of the Workplace Relations Commission as an Adjudication Officer. No changes to the terms and conditions of their appointment, which effect the within claims, were made by the Workplace Relations Act.

The complainant carried out his duties as a Right’s Commissioner, an external Equality Officer and an external Adjudication Officer under Warrants of Appointment for set periods of time and was paid a per diem rate. It was clearly the intention of the Industrial Relations Act, 1969 that the complainant, and all others issued with warrants of appointment, was not an employee but an office holder to carry out specific duties (albeit duties which changed over time; as legislation was amended and new legislation implemented, which included provision for Right’s Commissioners or Adjudication Officers to have a role in investigating complaints). His original appointment came when he was nominated by IBEC. He was considered suitable for the post because of his experience. Internal Equality Officers and internal Adjudication Officer are civil servants and recruited through competitions held by the Public Appointments Service.

I must consider if the complainant’s appointment as a Right’s Commissioner gave him terms and conditions that meant he should have been given a contract of employment or if the terms and conditions changed over time such that he should have been given a contract of employment at a particular point in time. The complainant’s evidence was not presented in such a way that indicated a point in time when he should have been given a contract of employment. There were discussions between the Right’s Commissioners and the CEO of the LRC about their status which were inconclusive. The complainant and the other Right’s Commissioners did accrue increased facilities during their time in the LRC but it is my view that the fundamental nature of the complainant’s working terms and conditions did not change.

The complainant has put forward many of the tests that apply in assessing whether an individual should be considered an employee or as self-employed. These include the provision of office premises, equipment and secretarial support, particularly during the time of the LRC.  On face value they satisfy a number of the tests to be an employee. However, I have to take account that these guidelines apply more closely to a business and, as far as I can see, to a commercial business. That is very different to the respondent, which is a Government Department that established the WRC to carry out a range of employment rights and information functions. The vast majority of WRC workers are civil servants. The WRC has no income other than a Government budget, which is approved through the respondent by the Department of Public Expenditure and Reform. It does not charge fees for anyone to avail of its services; although the Workplace Relations Act, 2015 does give the WRC the option of charging of fees for “any such service a fee for defraying the cost of the provision of that service” but no fees have yet been implemented by the WRC. The LRC charged no fees for its’ services.

The complainant made himself available for a number of days per week, he was not told when to make himself available, therefore, he did not receive a fixed weekly or monthly wage, he received a per diem rate and was paid according to the number of days he worked, his hours were not fixed and he was able to carry out other work if he chose.

There are some factors which I will look at:

Mutuality of Obligation: if the number of cases being referred for adjudication reduced then the hearings scheduled would reduce accordingly. This would lead to the number of hearings scheduled for the complainant, and the other external Adjudication Officers, being reduced and the number of per diem rates he could claim would also reduce. Alternatively, the internal Adjudication Officers would continue to be paid, according to their contract of employment and, if necessary, alternative work would be found for them. This shows the mutuality of obligation between the complainant and the respondent is limited.

Substitution: the complainant cannot send a substitute if he was unable to carry out his work. The WRC would make the necessary arrangements for the hearing to re-scheduled or re-assigned.

Enterprise Test: this test is relevant for a commercial business and does not apply to the complainant.

Integration: the complainant has pointed out a number of elements, particularly around the provision of office premises, equipment and secretarial support, and the holding of regular group meetings with the Chief Executive of the LRC, which he considers show he was integrated into the LRC and the WRC. However, there are other factors I must look at. The complainant was not part of the civil service and the HR staff structures and appraisals which apply to civil servants. The complainant was independent, not just in the carrying out of his adjudicative function but also within the structure and decision making of the WRC. For instance, if a review of the adjudication services of the WRC was undertaken the complainant and the other external Adjudication Officers may well be asked for their views but they would not be part of the decision making. That is the role of the civil service managers of the WRC.

Control: the complainant and all the external Adjudication Officers make themselves available to carry out hearings. There is an expected level of availability but, outside of that, the complainant is able to choose his availability. I accept the LRC initially expected the Right’s Commissioners to be available on a full-time basis. Then there was a period when the cases reduced and work was limited. The WRC does not expect external Adjudication Officers to make themselves available full time, currently the expectation is an availability of at least an average of 2 days per week. The complainant was able to take leave and other absences when it suited him. When the cases are assigned the complainant is independent in his function and fully responsible for how the hearing is carried out.

I have considered all the evidence put to me by both parties. I conclude the complainant was at all times an office holder. At no time was he employed under a contract of employment and I further conclude there was no reason why he should have been employed under an employment contract. I therefore find that he does not have the locus standi to pursue the complaints he has referred and I do not have the jurisdiction to investigate the complaints.

CA-00043630-001: Protection of Employees (Part-Time Work) Act, 2001. For the reasons given above I find the complainant was an office holder and did not work under a contract of employment and I, therefore, do not have jurisdiction to investigate this complaint.

CA-00043630-002: Protection of Employees (Fixed-Term Work) Act, 2003. For the reasons given above I find the complainant was an office holder and did not work under a contract of employment and I, therefore, do not have jurisdiction to investigate this complaint.

CA-00043630-003: Protection of Employees (Fixed-Term Work) Act, 2003. For the reasons given above I find the complainant was an office holder and did not work under a contract of employment and I, therefore, do not have jurisdiction to investigate this complaint.

CA-00043630-004: Organisation of Working Act, 1997. For the reasons given above I find the complainant was an office holder and did not work under a contract of employment and I, therefore, do not have jurisdiction to investigate this complaint

CA-00043630-005: Organisation of Working Act, 1997. For the reasons given above I find the complainant was an office holder and did not work under a contract of employment and I, therefore, do not have jurisdiction to investigate this complaint.

CA-00043630-006: Organisation of Working Act, 1997. For the reasons given above I find the complainant was an office holder and did not work under a contract of employment and I, therefore, do not have jurisdiction to investigate this complaint.

CA-00043630-007: Organisation of Working Act, 1997. For the reasons given above I find the complainant was an office holder and did not work under a contract of employment and I, therefore, do not have jurisdiction to investigate this complaint.

CA-00043630-008: Regulation 18 of the European Communities (Road Transport) (Organisation of Working of Persons Performing Mobile Road Transport Activities) Regulations 2012 – S.I. No. 36/2012. For the reasons given above I find the complainant was an office holder and did not work under a contract of employment and I, therefore, do not have jurisdiction to investigate this complaint.

CA-00043630-009: Organisation of Working Act, 1997. For the reasons given above I find the complainant was an office holder and did not work under a contract of employment and I, therefore, do not have jurisdiction to investigate this complaint.

Office Holder – no contract of employment