ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00039382
Parties:
| Complainant | Respondent |
Parties | Monika Nagle | Forbidden City Ltd. Trading as Translation.ie |
Representatives | Karen Tess Mannix & Co. LLP Solicitors | Karen Talbot HR Service Provider |
Complaint:
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-00050993-001
| 03/06/2022 |
Date of Adjudication Hearing: 18/01/2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015. In particular, the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
Generally, where the fact of dismissal is not in issue, the evidential burden of truth rests with the Respondent. Per Section 6 (6) of the 1977 Act, in determining for the purposes of the Acts whether or not a dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal.
An Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 6(7)).
In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed from her place of employment wherein she had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 3rd of June 2022) issued within six months of his dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter.
Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the financial/ remunerative loss (which includes actual loss as well as estimated prospective loss).
An issue concerning the Complainant’s entitlement to claim redress under the Unfair Dismissals Act has arisen and as the issue goes to my jurisdiction to hear this complaint, I must deal with it as a preliminary issue. To seek the redress previously referenced, the Complainant must establish that she is an “employee” – which is defined in Section 1 of the Act as – “an individual who has entered into or works under… a contract of employment”.
Background:
This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing. I additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and where it is clear that there is a serious and direct conflict in evidence between the parties to a complaint, then an oath or an affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence. |
Summary of Complainant’s Case:
The Complainant was fully represented. At the outset, the Complainant was happy to make an Affirmation to tell the truth. I was provided with a comprehensive submission dated the 9th day of January 2023. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form. I was also provided with supplemental documentary evidence in support of the Complainant’s case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative. The Complainant alleges that she was an individual who had entered into or worked under a contract of employment with the employer and she was then summarily and unexpectedly dismissed after 8 years of service in December of 2021. |
Summary of Respondent’s Case:
The Respondent had representation at this hearing by way of an HR Service provider. The Respondent entity was represented by a witness who is the CEO (WH). The CEO gave evidence following an Affirmation. The Respondent rejects that there has been an Unfair Dismissal and challenges the Complainant’s right to call herself the Respondent’s employee in circumstances where the Respondent maintains the Complainant was ever and always engaged under a Contract for Service. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully considered the oral evidence and lengthy submissions made by both sides of the within complaint. The Complainant is a European Languages Interpreter and resides in Kerry. The Complainant has provided highly professional interpretive services since 2009.The Complainant confirms that in 2009 she was initially engaged by the Respondent on a freelance basis. In May of 2013 the Complainant gave evidence that she was contacted by a Mr. P who was a Director of the Respondent company. The Complainant categorically states that she was advised by Mr. P in the course of the conversation they had at that time, that her employment status was to change to that of employee. There is no evidence as to why this decision might have been taken at this time though the Complainant had no difficulty with the proposed change to her status. I understand that she did confirm with Mr P that she was not providing Interpretive services to any other business at that time. I understand that the Complainant started to receive Employment slips from this time on. The Complainant did not receive a Contract of Employment, despite requesting one be sent to her on the 25th of May 2013. This request for a Contract of Employment was never acknowledged either way and certainly the Complainant was not told that she was misguided in seeking one. I was brought through the paperwork contained in the Complainant’s submissions. These were all presented as supporting the case that the Complainant was, indeed, an employee of the Respondent company from 2013. The Complainant was provided with P60s for 2013 and each of the years thereafter through to the end of her employment. The Complainant provided examples of her Payslips from the Respondent company. On the face of it, the documentation all tends to show that the Complainant is engaged under a Contract of Service. Indeed, the Complainant was even paid annual leave based on the hours of service she worked with the Employer. TAX and USC was collected at source. The Complainant is described as Class A employee which is defined as a person operating under a Contract of Service and as a Class AO there is the further understanding that the weekly reckonable earnings are between €38 and €352 per week (consistent with the Complainant’s circumstances). The Complainant in those circumstances is not liable to pay PRSI but the Respondent did pay PRSI as would be appropriate if the Complainant is an Employee engaged under a Contract of Service. This is what consistently happened in the years following the 2013 conversation. I understand that in December of 2021 (eight years later), the Complainant was written to by a Ms. Li (a Company Director) and told that the system then operating was ending and the Complainant was to be paid Gross on receipt of valid invoices. The communication it is noted starts out: “As you may be aware, Revenue recently updated their guidance notes regarding the tax treatment of self-employed contractors. As a result, we now have clarity on how payments to you, as a self-employed translator are to be treated” The Complainant makes the case that the Respondent was wrong to suggest that she was (in December of 2021) a self-employed Translator. She was, she says, an employed Translator. It is noted that from December 2021 the Complainant was obliged to operate as a self-employed Translator. Her claim for Unfair Dismissals stems from the fact that the Complainant was, she says, summarily dismissed – without either Notice or Redundancy - by Ms. Li’s letter in December of 2021. The Complainant was, she says, very upset at the way she was treated, her job security was removed without discussion, without appeal and without consent. In her evidence the Complainant stated that she felt disregarded and deceived. I note that the Employment Summary obtained from the Department for the year ending 2021 gives a start date of May 2013 (consistent with the Complainant’s evidence) and an end date of December 2021 which is the date from which the Respondent company advised the status had changed. The Respondent absolutely rejects the proposition that the Complainant was anything other than a self-employed language Interpreter between 2013 and 2021. The Respondent says it opted to run the Complainant through their payroll system so as to meet its obligation to withhold a portion of the Complainant’s tax at Revenue Direction. This the Respondent says is a reasonably normal practice when engaging certain classes of employee on a Contract for Service basis. Ms WH gave evidence on behalf of the Respondent company stating that Revenue imposed the obligation to withhold a certain portion of tax on those persons (and Interpreters in particular) who were annually earning €3,000.00 or more. The most effective way of doing this is to run the employment through Payroll and that, says the Respondent, is the only reason that payslips were generated i.e. it was specifically done to meet this Revenue obligation. Ms. WH gave evidence that the Complainant was run through Payroll for the 8 years between 2013 to 2021 as a self-employed individual albeit with certain deductions made at source. The Respondent showed me correspondence from Revenue concerning the tax year for 2011 wherein the Respondent made a tax contribution on the Complainant’s behalf. A further letter dated September 24th 2021 from Revenue to the Respondent appears to disoblige the Respondent from collecting withholding tax from Interpreters engaged on a Contract for Services basis. It has to be noted that the Respondent was not in position to refute the Complainant’s understanding of what she was told by Mr. P in 2013. The Complainant has asked that I give weight to the Complainant looking for her Contract of Employment back in 2013 as evidence of her understanding of the change in relationship from that time. On balance, I am inclined to accept that the Complainant believed that she was an employee of the Respondent company from 2013. The question for me is whether this was a mistaken understanding of what was intended or if it was, in fact, intended (by Mr. P) at that time? The Respondent has provided me with a book of authorities which I was asked to consider as being relevant to determine whether the Complainant was operating as an employee under a Contract of Service between 2013 and 2021. The Respondent asserts that in determining the nature of the relationship I must first determine whether a mutuality of obligation existed as between the parties. That is to say the Employer was obliged to provide work for the employee who, in turn, was obliged to perform the work. The Respondent asked me to consider the case law in this area starting with the older case of Denny and Sons Ireland Limited -v- Minister for Social Welfare {1998 IR} where Keane J in the Supreme Court ultimately found: “It is, accordingly, clear that 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 service 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 over how the work is to be performed, although a factor to be taken into account, is not decisive.” This somewhat general approach was scaled back in Minister for Agriculture and Food -v- Barry and Ors {2009 IR} in which case Edwards J (in the High Court) sets up the proposition that a sine qua non of a Contract of Service is the concept of a “mutuality of obligation”. That is to say that the Employer was obliged to provide work for the employee who, in turn, was obliged to perform the work. He stated: “Accordingly, the mutuality of obligation test provides an important filter. If there is no mutuality of obligation it is not necessary to go further..” per Edwards J In the more recent case of Monnie McKayed -v- Forbidden City T/A Translations.ie {Judgement of Ms. Justice Ni Raifeartaigh 16th November 2016} The Judge found the approach identified in Barry to be appropriate and that the “mutuality of obligation” test should be used as a filtering mechanism to identify clear cases of a relationship other than an employment relationship. Clearly this last case is significant to the one I am considering not least because the Respondent is one and the same as the Respondent before me and the employment under consideration in McKayed is that of a translator. It is worth noting that the legal complaint in the McKayed case was initiated in 2011 which is some 11 years before the complaint triggered by the Complainant in the matter before me. What is most surprising is the fact that the Respondent herein has in the intervening years not found an unambiguous formula for allowing persons it engages to know whether they are or are not employees. The Respondent representative has suggested that I am bound to follow the findings of the Honourable Judge in McKayed but it seems to me that the Complainant in that case and the Complainant herein are setting up somewhat different cases. Certainly, neither party has shown me the mutually signed documents which the Judge in McKayed appears to study at length. In fact, the Complainant herein has instead provided me with a great deal of paperwork which appears on the face of to identify the complainant as an Employee (tax status, right to Annual Leave, PRSI etc). The Complainant herself gave unique evidence of the differences between working under a Contract for Service as against a Contract of Service. She knew when and in what circumstances the relationship changed. The Employer was not able to contradict her evidence in this regard. I am, of course, obliged in the first instance to look at the issue of the “mutuality of obligation”. And I should note that the Respondent also opened up the more recent case of Karshan trading as Dominos Pizzaz -v- The Revenue Commisisioner {2022 IECA 124} which also adopted the “mutuality of obligation” test. My understanding from the evidence that she provided to me is is that the Complainant herein was very busy with the work she was called on to perform over the years. I think she might have been the only interpreter in her language on the Respondent’s books throughout County Kerry and possibly into Cork. The Complainant was constantly in the Courthouses, Hospitals and Gardai Stations performing interpretive services. I understand that as the work was sought by third parties, the Complainant was contacted by the Respondent through email and/or text to confirm her availability. It is true that sometimes the Complainant was not available and did not attend but the evidence seems to show that the Complainant went where she was told most of the time, and her unavailability was certainly not because she had other alternative work to perform. To my mind the mutuality of obligation is in fact satisfied. The Respondent has not been able to displace the Complainant’s evidence that Mr. P made her an Employee in 2013. Whether this arrangement was unique to her is not clear or, indeed, relevant. The Complainant has presented her case and in finding her to be an employee I am also finding that she was unfairly dismissed. In assessing loss, I have to be mindful of the fact that the Complainant continued to work at the same rate of pay as a self-employed Translator in the immediate aftermath of the termination and she opted to leave the employment thereafter being dissatisfied with her treatment. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00050993-001 – The Complainant was Unfairly Dismissed, and I award Redress in the Amount of €2,000.00 |
Dated: 17th February 2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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