Complainant

Respondent

Parties

Barbara  Czopek

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Complainant

Respondent

Anonymised Parties

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Representatives

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-00052860-001

16/09/2022

The Complainant submits on her Complaint Form to the WRC that she commenced employment with the Respondent on 28 January 2021, received her notice on 4 May 2022 and that her employment ended on 9 May 2022. These dates are not accepted as correct by the Respondent. The Complainant’s gross rate of pay when working with the Respondent was €409.50, working a 39-hour week.

The Respondent provided a written submission by way of an email to the WRC, dated 25 October 2023.

In the email the Respondent submits that the Complainant did not commence employment with the Respondent until 20 September 2021, as per a Contract of Employment provided by the Respondent.

The Respondent submits that the Complainant commenced working in the Respondent’s finishing department, on a casual basis, as required from 27 January 2021. Close to the end of April 2021 the Complainant informed the Respondent that she would no longer be available for work as she had taken up a job elsewhere.

The Respondent submits that in May the Complainant contacted the Respondent’s Scheduling Manager asking if she could talk to her as the job she had taken elsewhere was not working out and she would like to do some work for the Respondent. The Scheduling Manager informed the Complainant that the only work available at the time was some casual contractor work; the Complainant agreed to come back on that basis.

Some four months of casual contractor work the Respondent offered the Complainant a full-time position with the company with a six-month probationary period.  The Respondent supplied a copy of this contract. This was, the Respondent submits, the Complainant’s only contract as a permanent employee with the Respondent company; the Complainant was fully aware that this was her start date in employment with the Respondent company.

The Respondent submits that following a very quiet period following Christmas 2021 and through the early months of 2022, the company was forced to let the Complainant go on 4 May 2022, following a week’s notice. In addition to the Complainant other employees were also let go around this time.

The Respondent submits that the Complainant was a self-employed contractor who worked on a casual basis from time to time as needs arose and who subsequently invoiced the company for hours she had worked. The Complainant was working in this manner from January 2021 until April 2021, when she left of her own accord to take up employment elsewhere.  She returned to the Respondent company in June 2021 on the same basis as above until she was taken on as an employee on 20 September 2021.  The Respondent was not paying PRSI or deducting tax for the Complainant during the period when they say she was a casual contractor; the Complainant was liable for the declaration of and payment of relevant income tax, USC and PRSI on her invoiced contractor income. The Respondent submits sample copies of the Complainant’s worksheets and corresponding invoices from her and redacted bank statements, which show that the full amount of the invoice was paid directly to the Complainant. The Respondent submits that the company paid all taxes, USC and PRSI contributions in relation to the Complainant after her commencement as an employee on 20 September 2012.

The Managing Director (MD) of the Respondent company, Mr Tom Moriarty, gave evidence on Affirmation at the hearing.  The MD stated that the Complainant had approached her Supervisor in April 2021, to tell him she would not be able work with the company any more as she was taking a up a job elsewhere. In May 2021, the Complainant contacted the company’s Scheduling Manager, to say the other job had not worked out and she wished to return to work with the Respondent, on a casual basis, on an hourly piece rate. She was told the only work available was on a casual basis and there was no guarantee of work being available, and that she should invoice the company for the hours she worked.  When she came back, she was doing about 40 hours per week.

The MD stated that during this period the Complainant invoiced the company for her work and these invoices were paid directly into her bank account. The company did not pay PRSI or PAYE tax for the Complainant.

In September 2021, the Respondent offered the Complainant a permanent full-time position.  The Complainant was asked to sign a contract of employment, but she did not sign it until the following February.  In September 2021, the Complainant was added to the clock-in system (she had not been on the system before this). Her employment was registered with Revenue in September 2021 and she was paid fortnightly for that time getting a payslip showing all statutory deductions.

The MD stated that the business hit a downturn due to the second Covid lockdown in early 2022. Cutbacks were required and four employees, including the Complainant were let go around this time. She was issued with a letter of notice on 4 May 2022 and paid one week’s pay in lieu of notice.

Ms Tracy Dodd, Chief Operations Officer (COO), at the Respondent company gave evidence on Affirmation at the hearing.

The witness stated that the business can fluctuate and be seasonal requiring casual workers from time to time. The witness stated that the Complainant never asked her for a contract of employment prior to the offer of employment made in September 2021.

In cross examination, the witness stated that the Complainant was asked to sign two sheets; one was for the hours she had worked and the second was for the overtime hours she had worked.

In conclusion, the MD stated that the full extent of the Complainant’s employment was from 20 September 2021 to 4 May 2022, therefore she does not have the service required to make a claim under the Act.

The Complainant gave evidence on Oath at the hearing.

The Complainant stated that she commenced employment with the Respondent on 29 January 2021, as a “physical person”. After a few weeks she requested an “agreement,” but her supervisor told her that she was too busy to sort this out for her. The Complainant looked for a contract multiple times, she was working 39 hours per week and lots of overtime.

The Complainant stated that her supervisor brought her paper to sign for overtime; however, it was sometime before the Complainant discovered that these papers were invoices. The Complainant stated that the invoice provided by the Respondent at the hearing was a forgery. The Complainant wondered why, if she was self-employed, she would only seek pay at minimum wage level.

The Complainant stated that on 17 March 2023 she went to Poland and on 19 March 2023, while still in Poland she had an accident which required two operations. After the first operation, around the end of March 2023, she came back to Dublin and then went on sick-leave for six months (she was in a wheelchair). The Complainant stated that she was dismissed in May 2022. Following this she found out she was not entitled to Social Welfare payments as she did not have enough contributions made.

The Complainant asserts that she was not self-employed and that she attended work the same as other employees. She resents the Respondent for issuing invoices on her behalf. She trusted her manger but was let down by her.  Regarding the job she worked in for another entity the Complainant stated that she only worked there for one day and was then asked by the Respondent’s Supervisor to come back to the Respondent company.

In answers put to her in cross examination, the Complainant stated that she did not have an offer of employment in January 2021, but she was accepted as a “physical person” and she did ask her supervisor, orally only, for a contract as she was forbidden from contacting management. She stated that she worked elsewhere for two days in April 2021.

When asked if she when she came back in May 2022, was she offered a contract of employment, the Complainant replied by saying, no, that she could take time off “when I liked when I had no contract, as I had built up time like anyone else with no contract”.

A witness for the Complainant, Ms Monica Rozek, gave evidence on Oath at the hearing.

Ms Rozek stated that the Complainant had looked for a contract from January 2021.  The Complainant was not informed that she had to pay her own contributions as she did not have a contract. The witness stated that the Complainant’s Supervisor brought the invoice sheets to the Complainant to sign, these looked like overtime sheets, something was wrong.

In cross examination Ms Rozek stated that when she commenced permanent employment with the Respondent, she was given a contract of employment and that all her deductions were made correctly.

The Complainant stated that she had taken up work in February 2023.  She had been unable to work from May 2022 to February 2023 because she was still on sick leave.  When asked whether she had been available to work during this period the Complainant stated that she had not been as she was on sick leave.

The kernel of this case is whether the Complainant was employed by the Respondent from January 2021 until the termination of her employment in April 2022.  The Complainant asserts that she was an employee for this 15-month period and is therefore covered by the Act.  The Respondent asserts that the Complainant only became an employee in September 2021 and therefore only has only some 7 month’s service with the Respondent and so the Act does not apply to her. The Respondent asserts that the Complainant was a self-employed contractor, under a contract of service rather than a contract for service up to September 2021.

From the evidence adduced I find the Complainant did not become an employee of the Respondent until September 2021 and therefore the Act does not apply to her in relation to the termination of her employment which took place in April 2022.

Evidence was given that the Complainant either provided or signed off on time sheets confirming the hours she had worked in a period. I accept the bona fides of the Respondent in this matter and I reject the Complainant’s allegation that the documents provided at the hearing were forgeries.The  timesheets, invoice and bank statement submitted by the Respondent indicate that the Complainant was indeed submitting an invoice for the hours she worked and was paid in full for those hours without any deductions being made.  I accept the Complainant was responsible for looking after her own tax affairs until September 2021.

I accept the evidence of the Respondent that their work is seasonal and activity can fluctuate necessitating the use of casual workers.  I find that the Complainant in this case, was, until September 2021, a casual worker. 

A witness for the Complainant stated that she was issued with a contract when she was taken on as an employee and the COO gave evidence that this was the norm in the company. There is a conflict of evidence between the Complainant and the Respondent relating to the Complainant’s assertion that she was unable to approach management regarding the creation of a contract.  If the Complainant felt so strongly about this matter surely, she would have put her request in writing to a member of management; she never did.

The Respondent provided a copy of a Contract of Employment for the Complainant dated 20 September 2021, signed by her on 2 February 2022. If the Complainant had really believed she had been an employee for the period between January 2021 and September 2021, why did she sign this contract, surely then was the time to raise any objections and argue about the period from January 2021 to September 2021 and her employment status during the period.

Having considered all the evidence adduced very carefully, I find, on the balance of probabilities, that the Complainant does not have one year’s continuous service with the Respondent.

As the complainant has less than one year's continuous service with the respondent the Unfair Dismissals Act 1977 does not apply.

The complaint is not upheld.

Continuous service, contract of employment