Complainant

Respondent

Parties

Michael  Cowhey

Formpress Publishing Limited

Representatives

Constantine McMahon BL instructed by MHP Sellors Solicitors LLP

 Flynn O'Driscoll LLP

Act

Complaint Reference No.

Date of Receipt

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

CA-00048888-001

01/03/2022

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

CA-00048888-002

01/03/2022

The complainant worked as a photographer with The Limerick Leader newspaper.

The complainant was let go in March 2020 due to Covid-19.

The complainant’s case is that he was temporarily laid-off in March 2020 and summarily dismissed on 1 March 2022 in circumstances where the respondent failed to take him back to work and provide clarification as to his employment status.

The respondent maintained its objection that the complainant had impleaded the incorrect respondent and raised jurisdictional issues regarding the time limits for referral of a claim and the status of the complainant as a freelance photographer.

The complainant worked for the respondent as an independent contractor up until around January 2008 when he was employed on a permanent full-time basis as chief photographer in The Limerick Leader.  He was let go on a temporary basis due to Covid-19 in March 2020. 

The complainant was told in a telephone call from the newspaper’s assistant editor on 16 March 2020 that he was being let go due to the Covid-19 pandemic.  The complainant subsequently requested, but did not receive, a letter to confirm that he was no longer employed by the respondent. 

In or around December 2021, the complainant’s solicitors sought clarification as to the complainant’s status in employment.  No response was received.

The respondent’s failure to take the complainant back to work and to provide clarification as to his employment status constituted the summary dismissal of the complainant on 1 March 2022.

The respondent’s dismissal of the complainant was not reasonable in the circumstances and there was a breach of his right to fair procedures.

The complainant’s representative outlined the various tests for determining the employment status of an individual and the relevant case law in the area.

Submissions were also made on the fact of dismissal and case law was referred to in this regard.  The complainant was temporarily laid-off in March 2020 and there were no communications from the respondent thereafter.  It was reasonable for the complainant to consider himself dismissed on 1 March 2022.

Summary of complainant’s sworn evidence

The complainant recalled the assistant editor of The Limerick Leader contacting him on 16 March 2020 and saying that she was sorry but that his name had come up again and that he was being let go.  The complainant thought it would be 2/3 weeks before he would return to work and that it would all be over within a few weeks.  He told the assistant editor that he would work out the month, but she told him not to and that he wouldn’t be paid for any photographs taken after the 16 March. 

The complainant was in receipt of a pension at the time, and he needed a letter from the respondent to apply for a Covid-19 payment.

The complainant engaged a solicitor in December 2021.  Prior to that he was with the union and there were meetings with the union regarding employment status. 

The complainant was working as a freelance photographer in Limerick; he did a lot of work for The Limerick Leader.  His freelance work continued after 2008.  In 2008, he was asked by the editor and general manager whether he would take over the running of The Limerick Leader’s photography department as chief photographer. There were 3 more junior photographers.  Steady money was offered that would give him approximately the equivalent of what he had earned working for the newspaper the previous year. The complainant started this in-house role responsible for the running of the photography department in January 2008. 

His work included managing the digital diary; the newspaper’s reporters put the markings in the diary and the complainant distributed the work that needed to be covered to the photographers.  He was responsible for delegating work to the staff members in the photography department and he organised the holiday arrangements of these staff members.  He attended all Monday morning editorial meetings to plan for the newspaper’s publication on Thursday; from this he could identify what photographs were required and he would delegate them to the photographers. 

The complainant’s salary was €40,000 per annum.  This was reduced to €35,000 per annum and the complainant was told by the newspaper editor to reduce his workload accordingly but the complainant continued to work full-time.  He invoiced the newspaper for a fixed amount every month.  He paid all his own tax and PRSI in respect of the payments received.   He was paid for all his holidays.

The complainant worked regular hours, 8.30am – 5.30pm, five days per week but he was also on call as this was part of freelance work.  The complainant had his own computer, email address and office at the newspaper’s premises.   He used his own photography equipment, and the newspaper purchased all the memory sticks and flash parts for his camera.

The complainant continued working like this for the respondent until Covid-19 in March 2020. 

After March 2020, the complainant heard nothing of substance from the respondent regarding his status.

The complainant went to a number of union chapel meetings from April 2020 onwards but could never get any clarity on his employment status.

The complainant recalled contact with the respondent’s area manager regarding the complainant coming back to do freelance work.  The complainant could not recall when exactly this was but thought it was sometime in 2021.

Under cross-examination, the complainant accepted that it was Mr McCooey and not the Group Head of Digital News he contacted about being owed money in March 2020.

When asked about the invoice he submitted each month, the complainant confirmed that the invoice was on notepaper which detailed his home address, mobile telephone number and personal email address and website.  He confirmed that the invoice was his fee for freelance work.  The complainant did not dispute that he had submitted an annual tax return to the Revenue Commissioners which referred being self-employed and detailed his sales or turnover from various sources, including The Limerick Leader.  The complainant said that he did work for other people / organisations and was completely free to do this work.  He had worked in a freelance capacity since 1970.  The complainant accepted that he claimed mileage and other expenses in respect of his sales/turnover.  He advised that he didn’t get mileage from The Limerick Leader because he was freelance.  He treated The Limerick Leader as an addition to his income. 

The complainant attended meetings in relation to the transfer of undertaking in 2014.  He did not get a letter saying his employment was transferring to the current owner and was not part of the respondent’s pension scheme.

The complainant said that he was not claiming to be staff.  He acknowledged that he was doing freelance work at the time and that he had a good deal with The Limerick Leader.  The complainant said that he organised the freelance photographers in the newspaper.  The newspaper held an account with a local photography supplies shop and a staff photographer with the newspaper signed the account on behalf of the newspaper for photography supplies.

The complaints to the Workplace Relations Commission were referred against an incorrect respondent.

Notwithstanding, the respondent disputed the complaints and raised various preliminary issues, including that the complaints were statute-barred and that the complainant did not have locus standi to pursue the complaints as he had been employed by way of a contract of service.

In March 2020, the complainant’s freelance contract was terminated, and the complainant was advised accordingly.

The respondent submitted copies of the complainant’s monthly invoices, including a final invoice for services up to 21 March 2020, along with an email from the complainant dated 24 March 2020 which referred to the complainant having been let go. 

Summary of Mr McCooey’s evidence

This witness is financial controller with the respondent. 

The respondent acquired The Limerick Leader in 2014 and at the time the witness received a letter informing him of the transfer of undertaking.

The witness confirmed that the complainant submitted monthly invoices and that these were discharged by the respondent.

The newspaper’s staff were members of a pension scheme.  The complainant was not a member of the pension scheme.

Complainant’s application

At the hearing on 27 September 2022, the complainant applied to amend the respondent to its unfair dismissal claim.  It was submitted on behalf of the complainant that it was unaware of any issue regarding the respondent it had detailed in the complaint form until it received a submission on behalf of Iconic Newspapers Limited on 23 September 2022.  The legal representative for Iconic Newspapers Limited objected to an amendment or substitution and requested that the matter of the named respondent be addressed as a preliminary issue.  The parties confirmed that they were in a position to address the date of dismissal and time limits issue and the complainant gave evidence.  I adjourned the hearing so that I could consider the issues raised and determine how best to proceed.

By correspondence dated 25 October 2022, I advised the parties that I was allowing the complainant’s application to amend and substitute the respondent detailed in the complaint form, Iconic Newspapers Limited, for Formpress Publishing Limited. 

The relevant part of my correspondence was as follows:-

“ …

Having carefully considered the submissions of the parties and reflected on the Complainant’s evidence, I am of the view that the issue concerning the named Respondent and the Complainant’s application in that regard needs to be resolved at this juncture.

Complainant’s application

The Complainant’s application is to amend the respondent to the complaint before me by substitution of Iconic Newspapers Limited for Formpress Publishing Limited. Iconic Newspapers Limited is not consenting to the application.

Having regard to the nature of the application and the submissions made to me, and in the absence of any evidence to the contrary, I must accept that Iconic Newspapers Limited has been incorrectly impleaded by the Complainant as Respondent in these proceedings.

Mr McMahon acknowledged that there is no specific statutory mechanism for the WRC dealing with substitution of an incorrectly named respondent for another respondent.

I note however that there are a number of Superior Court decisions and Labour Court determinations on the matter of amendment and substitution. Relevant legal principles to the within matter include:-

- statutory tribunals such as the Workplace Relations Commission should operate with the minimum degree of procedural formality consistent with the requirements of natural justice and should not apply procedures that are more rigid or stringent than the ordinary courts;

- a court will not add or substitute a party to proceedings if the action against that party is clearly statute barred;

- rendering proceedings void by reason of a technical error, where there is no prejudice caused, would amount to a grossly disproportionate response and deprive a litigant of its constitutional right of access to the courts.

By reference to the submissions and evidence heard on 27th September last, I consider the following to be relevant having regard to the abovementioned legal principles:-

(i)                  the notification from the WRC of the Complainant’s complaint was sent to Iconic Newspapers Limited at its registered address of 30 Hatch Lane, Dublin 2 on 15 March 2022;

(ii)                the complaint form refers to the Complainant seeking redress in respect of his position as Head of Photography;

(iii)               Iconic Newspapers Limited is the holding company of Formpress Publishing Limited;

(iv)               Formpress Publishing Limited has its registered address at 30 Hatch Lane, Dublin 2;

(v)                 Mr McCooey, a director of Iconic Newspapers Ltd, attended at the hearing on 27 September last;

(vi)               Mr McCooey also holds the position of Finance Director with Formpress Publishing Limited;

(vii)             the email communication of 24 March 2020 from the Complainant to Mr McCooey, opened at the hearing, was sent to Mr McCooey at an email address ending “@iconicnews.ie”;

(viii)           a letter from Sellors LLP to Iconic Newspapers Limited dated 13 December 2021, prior to the institution of proceedings before the Workplace Relations Commission, refers to the Complainant’s employment with the Limerick Leader and seeks confirmation with respect to the Complainant’s status as an employee;

(ix)               there was no response from Iconic Newspapers Limited to the letter referred to at (viii) above;

(x)                 the WRC issued notification to Iconic Newspapers Limited at 30 Hatch Lane, Dublin 2 of the complaints received by way of correspondence dated 15 March 2022 and of the hearing arrangements for 27 September 2022 by way of correspondence dated 28 July 2022;

(xi)               there was no communication from or engagement by / on behalf of Iconic Newspapers Limited with the WRC until correspondence from Flynn O’Driscoll LLP dated 22 September 2022 advising the WRC it had been instructed by Iconic Newspapers Ltd in relation to the claim;

(xii)             the above-mentioned correspondence included a submission on behalf of Iconic Newspapers Ltd which raised for the first time since the claim was referred to the WRC that the Complainant had not proceeded with his complaints against the correct respondent;

(xiii)            the aforementioned submission also made a preliminary objection on the claim having been submitted out of time by the Complainant and further that the Complainant was not an employee within the meaning of the Acts under which he claims;

(xiv)            there was no evidence before me of the Complainant having received any documentation bearing the name Formpress Publishing Limited in connection with the work he did at/for the Limerick Leader;

(xv)             the Complainant’s research on CRO established Iconic Newspapers Limited as the body corporate owning the Limerick Leader business name;

(xvi)            based on the submissions and evidence from the hearing, it is clear that the matters of ‘dismissal’, ‘date of dismissal’ and the related time limits issue are in dispute. In my view, the foregoing are not capable of being resolved without hearing further evidence, including on the matter of the Complainant’s status as contractor/employee and the substantive issues.

Having carefully considered this matter, I am of the view that Formpress Publishing Limited was on notice of the Complainant’s complaints to the WRC in March 2022 and what those complaints related to. I am of the view that it is appropriate to accede to the Complainant’s application to amend and substitute the Respondent in the above referenced ADJ with Formpress Publishing Limited so that the issues arising in the case can be properly ventilated and adjudicated upon.

For the sake of clarity, I have not made any decision on matters of a dismissal, date of dismissal, related time limits or any other issues in this case as I believe it is not possible to do so without hearing further and fully from the relevant parties.

…”

By correspondence dated 28 October 2022, the Commission formally notified Formpress Publishing Limited (hereinafter the “respondent”) of the within proceedings.

The complainant and respondent made comprehensive submissions and presented evidence in relation to the unfair dismissal claim at a hearing on 25 April 2023.  I have carefully considered and given due weight to the evidence presented.

Preliminary issue

The respondent in the first instance submitted that that the claim had been referred to the Workplace Relations Commission out of time.

The time limits for referral of a claim of unfair dismissal to the Workplace Relations Commission are set out in section 8(2) of the Unfair Dismissals Acts 1977-2015 (the “Acts”):-

‘(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General —

(a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause, and a copy of the notice shall be given by the Director General to the employer concerned as soon as may be after the receipt of the notice by the Director General.’

Dismissal is defined in section 1 of the Acts as follows:-

“(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer; or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract 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), the cesser of the purpose;”

This claim for redress was initiated on the Commission’s receipt of the complaint form on 1 March 2022.

The complaint form details the date of dismissal as being the 1 March 2022. 

The respondent maintained that it terminated the complainant’s contract in March 2020.

By reference to the submissions and evidence of the parties, the fact and date of dismissal are crucial issues in dispute and are material to this case.  In the circumstances, it is for the complainant to establish on the balance of probabilities that he was dismissed within the meaning of section 1 of the Acts.  The complainant’s case was not one of constructive dismissal but rather that the respondent’s actions amounted to a dismissal of the complainant. 

It was submitted on behalf of the complainant that he was temporarily laid-off in March 2020 and summarily dismissed on 1 March 2022.  It is worth recalling that the 1 March 2022 was the date the complaint was received by the Workplace Relations Commission. 

I note the following detail provided in the complaint form:-

“The complainant continues to be laid off and has been offered no explanation or information regarding his return to employment.”

and the correspondence from the complainant’s solicitors dated 13 December 2021 which referred to the “de facto termination” of employment presented to the complainant.  

I find these aspects to be inconsistent and counterintuitive given the nature of the claim, and to undermine the submission that there was a dismissal of the complainant on 1 March 2022. 

As there was no evidence of the employer having unambiguously terminated a contract on 1 March 2022, I must consider whether it was reasonable for the complainant to have understood himself dismissed on that date or in the cognisable period before 1 March 2022.

I am not satisfied that the circumstances relied on by the complainant, namely the respondent’s failure to take the complainant back to work and to respond to a solicitor’s letter in December 2021, can be reasonably considered to have constituted the summary dismissal of the complainant on 1 March 2022.  The circumstances must be objectively assessed and in the context in which they arose, otherwise a dismissal could be constructed to occur on any given date.  The complainant’s evidence was that he was let go in March 2020.  The complainant emailed the respondent’s financial controller on 24 March 2020 and stated “I have been let go.  I will need a letter saying I no longer have work and the reason why.”  The complainant did not receive any response to his request.  The complainant attended union chapel meetings after March 2020.  The last payment the complainant received from the respondent was in respect of work done in March 2020.  The complainant was aware that others had returned to work at The Limerick Leader.  There were no communications from the respondent after March 2020 about the complainant returning to work at The Limerick Leader.  The respondent contacted the complainant about doing freelance work at some stage in 2021, although this did not materialise.  It was submitted on behalf of the complainant that he had been temporarily laid-off however I am not satisfied that the evidence supported this submission.  The complainant’s evidence did not attribute his expectation that he would be back working with The Limerick Leader to anything the respondent had said or done, or any assurance given by the respondent in this regard.   The complainant sought legal advice and there was a communication from his solicitors regarding his employment and its termination in December 2021.   The unfair dismissal claim was submitted on 1 March 2022. 

I find the 1 March 2022 date significant only because it was the date the claim was lodged with the Workplace Relations Commission and that the complainant’s reliance on this date as the date of dismissal is for the sole purpose of bringing the referral of the claim within the time limits expressed in section 8(2) of the Acts. 

I am not satisfied on the evidence before me that the complainant was laid-off in March 2020 and dismissed on 1 March 2022.   I also consider the submission on behalf of the complainant that there was no clarity about what happened in March 2020 and that the complainant eventually sought legal advice in December 2021 instructive and indicative of a delay in referring the within claim.

Having considered all the evidence and submissions in this case, I find that the complainant has not established a dismissal within the meaning of section 1 of the Acts within the time limits set out in section 8(2) of the Acts. 

Accordingly, I find that I do not have jurisdiction to decide the claim pursuant to the Acts and the claim is dismissed.

CA-00048888-001

I do not have jurisdiction to decide the claim pursuant to the Unfair Dismissals Acts for the reasons set out above.

Accordingly, my decision is to dismiss the claim.

CA-00048888-002

This appeal was withdrawn at the outset of the hearing on 27 September 2022.  My decision therefore is to disallow the appeal.

Unfair dismissal - Application to amend respondent – Time limits – Fact of dismissal in dispute