Complainant

Respondent

Parties

Tomas  Koczur

Forbidden City Ltd Translation.ie

Complainant

Respondent

Representatives

  Self- represented

 Karen Talbot, HR Support

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00051026-001

06/06/2022

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

CA-00051026-002

06/06/2022

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

CA-00051026-003

06/06/2022

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

CA-00051026-004

06/06/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00051026-005

06/06/2022

The complainant has presented a complaint under the section 24 of the National Minimum Wage Act, 2000, a complaint under Section 8 of the Unfair Dismissals Act, 1977, a complaint under Section 39 of the Redundancy Payments Act, 1967 a complaint under section 7 of the Terms of Employment (Information) Act, 1994 and a complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

The complainant worked with the respondent as a Czech, Slovak and Hungarian translator until his employment with the respondent terminated on 17/12/2021.

His hourly, gross wage was €18. He worked variable hours.

He submitted his complaint to the WRC on 6/6/2022.

The respondent contends that the WRC has no jurisdiction to hear the complaints scheduled for this hearing as the complainant is not and never was an employee of the respondent. Therefore, none of the provisions of the Acts which he claims were breached by the employer apply to him.

If the evidence of the MD who is currently ill becomes determinative, the respondent’s representative asks that the hearing be adjourned for a further day so as to enable the MD to give evidence. The adjudicator agreed to this request.

The complainant was at all times engaged by the respondent as a freelance interpreter. The nature of the relationship is that of a contract for services. While for a period of time, on the instruction of Revenue, PAYE taxes were deducted and returned to Revenue, this did not render the contract a contract of employment. In due course, this matter was resolved with Revenue, and the company implemented a revised tax treatment mechanism, as approved by Revenue. The complainant appears to interpret the change in tax treatment to be determinative of the contractual relationship. This is strongly disputed by the respondent.

 At all times, the contractual relationship between the complainant and respondent was that of a contract for services and bore no relationship to a contract of service.

Evidence of respondent CEO given under affirmation.

The complainant started providing translation services for them in 2010.

The respondent was under no obligation to provide him with work. There was never any requirement for the complainant to accept any assignment. He could refuse an assignment and frequently did..

Revenue required the respondent to deduct Voluntary Withholding Tax from the complainant. The respondent was obliged to deduct tax when the complainant’s income exceeded €3000 and this they did in 2009-2010. His income did not exceed €3000 in 2010-2011 and so tax was not deducted. Again in 2012-2021, they deducted Voluntary Withholding Tax because his income exceeded €3000.

From 2010-to date the complainant was a self-employed interpreter

Legal Arguments.

The respondent relies on Monnie MCKayed and Forbidden City Ltd t/a Translations.ie (2016) IEHC 722, a claim taken under the Unfair Dismissals Act, 1977. The defendant company provided translators to the Gardai and the Courts for suspects arrested, or persons seeking asylum. In that case, the Court turned its attention, in the first instance, to the employment status of the plaintiff. In doing so they considered the arguments of the defendant’s Counsel that the plaintiff’s situation was governed by the findings in Minister for Agriculture v Barry, (2009) 1 I.R.215.  In the latter case, the respondents were veterinary surgeons who worked for the Minister as temporary veterinary inspectors at meat plants in County Cork.  Following closure of the plants, the respondents claimed to be entitled to redundancy payments.  These were contingent on them having been employees who were employed at all material times by the Minister under a contract of service. The first task, therefore, was to identify whether mutuality of obligation, considered a sine qua non of a contract of services, existed between the parties. In Barry, mutuality of obligation was held to be a firm and reciprocal commitment on the part of the employer to provide work and a commitment of the part of the employee to undertake the work; it was found to be absent.   

In examining if mutuality of obligation existed between the parties In McKayed, Ní Raifeartaigh J found that mutuality of obligation was lacking where the respondent had no control over the amount of interpreting hours it might secure  as a result of suspects being arrested or the number of  persons seeking asylum, and had not in any regard guaranteed any particular number of hours to the complainant, or even that there would be hours available on an ongoing basis. The court found that the applicant, a freelance translator, occupying the same role as the complainant in the instant case with the respondent, did not have a contract of services but rather a contract for services and was unable, therefore, to claim the protection of the Unfair Dismissals Act, 1977.

The respondent in extending their examination as to the existence or otherwise of mutuality of obligation in the instant case opened Karshan (Midland Ltd) trading as Domino’s Pizza v The Revenue Commissioners, IECA 124, Par 56. This case upheld an appeal against the High Court’s decision that the Revenue commissioners had been correct in classifying the pizza delivery drivers as employees in possession of a contact of service. The Court of Appeal in Domino’s Pizza in examining if mutuality of obligation existed as between the plaintiff and the defendant, looked to the decision of the Minister for Agriculture v Barry,( 2009 ) 1 I.R.215 .  Costello J in Domino’s Pizza    repeated the test set out by Edwards J in Barry at par 47.

 “        

         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 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] I.C.R. 612 at 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”.

Applying the authorities to the circumstances of the instant complaints, the respondent states that there were no adverse consequences for the complainant when he refused work as he repeatedly did. He was employed elsewhere.

Conclusion

The complainant was never an employee. It is correct that a tax change occurred but that is not determinative of a contract of service. Holidays and Bank holidays were paid as a good will gesture and are not any acknowledgement that he is an employee. The contract offered in 2017 is not indicative of his status as an employee. In terms of the complainant stating he was required for example to be at a Garda Station at, say, 7pm, that is because the client, the Gardai, required him to be there at that time. The suggestion of resigning was an offer which he could take up if he so wished as it was difficult to get him to take on assignments.

The decision of the Court of Appeal in Domino’s Pizza must be applied. 

 The complainant cannot avail of the provisions of the Acts referred to in his claim as he has never been an employee of the Respondent. In any event, he was not dismissed, nor was the contractual arrangement between him and the respondent terminated by the respondent.

The respondent requests that the complainant’s claims be rejected as he is not, and never was an employee of the Respondent.

The complainant contests the respondent’s assertion that he was employed under a contract for services. He is employed under a contract of services. He therefore has jurisdiction to have his complaints heard under the Acts cited in his complaint form.

The complainant gave evidence under affirmation.

The complainant states that he was self-employed from 2010-2011.

On the 1/1/2012 the respondent Managing Director told him that he must become an employee, because legislation had changed which meant that the employer had to deduct tax as he was earning in excess of €3000 per annum.

He never signed a contract. He was told that he had to accept all assignments.

He was on call from 1/1/2012 to 2015 on a 24/7 basis. In 2015 the company changed his terms and conditions; pay and mileage rates were reduced. From that time onwards, he could not do translation work for the courts service, because he would have been at a loss. He told the respondent that he would do the Court translation work for the same pre--2015 rates.

He was offered a further contract, a contract for services in 2017 which he did not sign

Complainant’s case that mutuality of obligation exists in his contractual relationship with the respondent.

The complainant contends that he had an oral contract which was a contract of service in that the respondent controlled his time and specified which language assignments he should undertake.

 He argues that mutuality of obligation which is fundamental to a contract of service existed between himself and the respondent. The respondent had a contract with state agencies such as the Courts Service, the Garda, the HSE, but they did not give the respondent a guarantee of work. The requests for his translation services were coming to the respondent from these state agencies. He did not need a guarantee of work because the company had plenty of work to give him as was the case for the previous years. The respondent never told him that he was not an employee. They would often change his assignment from say the Courts Service to an assignment in the HSE.

He provided 24/7 on call until they reduced his rates in 2015. He was not allowed engage a substitute if he could not do the translation assignment.

The complainant twice declined the opportunity for time out from the hearing to read the High Court decision of MCKayed and Forbidden City Ltd t/a Translations.ie (2016) IEHC 722, a copy of which had been submitted by the respondent at the hearing. The complainant stated that it did not apply to him as mutuality of obligation, found to be absent in that case, exists in his contractual relationship with the respondent. The complainant states that unlike in McKayed, he was an employee. He also objected to the late submission of the decision and stated that it should be inadmissible.

After the release of McKayed decision, the MD sometimes referred to him as an employee and sometimes not.

In addition to having a contract characterised by mutuality of obligation, the complainant referred to a number of the oft -used tests of substitution, control and integration to demonstrate that he was employed under a contract of service. He was not allowed engage a substitute if he could not do the translation assignment. The respondent controlled that situation.

Control.

The company paid for his services. But they were in control of his time and pay rates were unchanging. They decided which assignments to offer and on which days and at what time.

Tools.

He did not use company tools, nor a company laptop, He did not need tools.

Integration.

In terms of Integration into the company, he went into the office frequently and went to Christmas parties and engaged in training.

Financial benefit.

He could not earn any benefit outside of his pay rate. The rates of pay were fixed.

Additionally, the following features of his employment signify that he was employed on a contact of service:

The company trained him from 2010-2012. He in turn provided training to new interpreters for no extra pay.

The respondent offered him a contract for services on 28/3/2017. The complainant contends that this shows that up until 2017 he was an employee, otherwise why give him this new contract. Hence it is safe to conclude that he was on a different contract until then. He provided a copy of the contract.

Later on in 2017 when he did not sign this contract, the respondent asked him and all contractors to hand in their notice and sign the contract for services. The complainant told the respondent that he was an employee and to fire him if she wished. She did not.

He continued working thereafter until 20/12/21.

In April 2022 he noticed no pay slips for previous 4 months.

The complainant submitted a document received from Revenue stating that his employment ceased on 17/12/2021. This is the basis for concluding that he had been dismissed. He received no termination letter or notice of dismissal

In support of his position that he is an employee, he refers to an email dated 2/5/2022, from the respondent payroll executive in which she states that from late 2021 he has “moved” to self-employed status.

He was paid annual leave as evidenced in his pay slip of the 31/12/2020 which has holiday leave calculated at €370.80. As an employee he was entitled to annual leave. The same pay slip shows that the employer was deducted PRSI to the amount of €83.85 for him.

He refers to a text message dated 2/5/2018, a copy of which was submitted in evidence from the MD who refers to him as an employee and who refers to the fact that they have to beg him to take on work and goes on to state that they can accept his resignation by post if he does not wish to accept offers of work. If he has a contract for services, he cannot resign. After release of McKayed decision, the MD sometimes referred to him as an employee and sometimes not.

Cross examination of Complainant

He confirmed that translation assignments work was offered to him via text message or email.

He stated that sometimes he declined the offer as there were no details around the assignment. He confirmed that he could say yes or no to the offer of a translation assignment. From 2012- 16, if he said no, he had to give a reason as the office expected one. There has been no change since 2017 in how he is offered work and the opportunity to refuse it.

He confirmed that he worked for other companies.

 When asked what were the repercussions if he declined work, the complainant stated that he was asked 5 times if he wished to hand in his notice.

I must decide if the complainant has jurisdiction based on his status as an employee to have his complaints heard under the statutes listed in the complaint form and set out below.

The courts have established a number of criteria to determine the nature of the employment relationship and it has been accepted that there is no ‘one size fits all’ and that each decision must be based on the facts of the particular case.

Both the complainant and the respondent acknowledge the primacy of mutuality of obligation in a contract of service. In addition, the complainant asks that I accept he is employed on a contract of service based on tests used by adjudicative bodies and courts in determining an employee’s status

Legal Authorities.

Mutuality of obligation as a determinative factor in establishing if a contract of service exists.?

This matter has been addressed in a number of authorities.

Para.47 of Edwards J.’s judgment in Barry states: -

“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 there is no contract at all or whatever contract there must be a contract for services or something else, but not a contract of service. … Accordingly, the mutuality of obligation test provides an important filter. While one party to a work relationship contends that the relationship amounts to a contract of service, it is appropriate that the court or tribunal seized with that issue should in the first instance examine the relation 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.”

In Domino’s Pizza the Court of Appeal held (Whelan J dissenting) that the requirement of mutuality of obligation was absent from the delivery arrangements for the drivers. Costello J remarking that:

“Irish authorities on mutuality of obligation are unambiguous in requiring an ongoing reciprocal commitment to provide and perform work on the part of the employer and the employee respectively”

Therefore, it was not necessary to consider whether the further tests of a contract of service were satisfied.

In McKayed, Ni Raifeartaigh J found that the absence of an obligation to furnish the complainant with a particular amount of work into the future meant that the requisite mutuality of obligation was absent. She stated

“The fact that work had been given to him regularly is not determinative of the fact that one party had a legal obligation to provide the other party with work. If this was the case none of the previous authorities could have reached any conclusion other than the individual in question  were employees, be they  veterinary inspectors ( Barry), shop demonstrators( Denny), casual hotel workers or home workers for a  clothes company, as they had all carried out work on a regular basis  for a period of time; but that is not how these cases were decided by the various courts which examined them”

Application of above authorities to the instant complaints.

The complainant states that the fact that there was a steady requirement for translators of Hungarian, Czech and Slovak in the courts, in Garda stations and in HSE settings, and that he was consistently offered such work is indicative of the fact that mutuality of obligation existed between himself and the respondent. He states that because of these factors he did not require nor was he offered a guarantee of work. The ongoing commitment to offer him translation work was evident in the course of his dealings with the respondent. McKayed, however, found that a previous, consistent offer of work in the absence of an obligation on the respondent’s part to provide work was not determinative of a contract of service.

It was accepted that the complainant was free to refuse work without any adverse repercussions as work continued to be offered to him. The complainant was also free to and did work with other translation services. Copies of text messages supplied at the hearing indicate the complainant refusing work without any adverse repercussions impacting on him. He was offered a job translating in Slovak on 17 May 2019 to which he replied that he was away and unavailable to which the reply was how long will you be away- signifying it was his call as to how long his absence would last.

Therefore, in keeping with the authorities, I find that mutuality of obligation was absent in the contractual relationship between the complainant and the respondent and hence the complainant was not employed on a contract of service. Nor am I required to further examine the additional factors which can signify the existence a contract of service.

I find that any entitlement to the protections and rights claimed under the various statutes listed in the complainant’s complaints are contingent on the complainant having been employed by the respondent under a contract of service. As I find that the complainant was not in possession of such a contract, his complaints cannot be upheld.

CA-00051026-001 Complaint under section 24 of the National Minimum Wage Act, 2000.

I find that I do not have jurisdiction to hear this complaint.

CA-00051026-002. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

 I find that I do not have jurisdiction to hear this complaint.

CA-00051026-003.Complaint under Section 39 of the Redundancy Payments Act, 1967.

I find that I do not have jurisdiction to hear this claim.

CA-00051026-004. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

I find that I do not have jurisdiction to hear this complaint.

CA-00051026-005. Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

I find that I do not have jurisdiction to hear this complaint.

Contract of Service