FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES: MR IAN LAWLOR AND NEWGRANGE ENERGY LIMITED (REPRESENTED BY MICHAEL DEVITT BL, INSTRUCTED BY KIERAN QUIGLEY & CO SOLICITORS) - AND - MS CLARA FARRELL (REPRESENTED BY BEIBHINN MURPHY BL, INSTRUCTED BY O’HANRAHAN LALLY D’ALTON LLP, SOLICITORS) DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No(S)ADJ- 00035410 ADJ-00035343 CA-00046513-002 CA-00046514-002 This is an appeal by Ms Ciara Farrell (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00035410 & ADJ-00035343 dated 2 December 2022) under the Employment Equality Act 1998 (‘the Act’). The Complainant alleges she was discriminated against on the disability ground and that her former employer failed to make reasonable accommodation for her. The Adjudication Officer decided that the complaints were not well-founded as the Complainant had impleaded the incorrect Respondent. Notice of Appeal was received in the Court on 6 January 2023. The Court heard the appeal in Dublin 11 April 2023. The Factual Matrix It is common case that the Complainant resumed working for Robert Lynch Heating at the Energy Centre in Duleek Business Park in February 2019. She was assigned to assist with the administration of a specific project in the ‘Climote’ department. At that time Mr Ian Lawlor was employed as the Office Manager in the Energy Centre. It is also common case that Mr Lawlor collaborated with his then employer in the development of a separate business venture involving the sale and installation of solar panels. This led to the incorporation of a separate company in January 2020 called Newgrange Energy Limited T/A Green Electric (‘Green Electric’) of which Mr Lawlor is a director and in which Mr Lawlor and Mr Robert Lynch hold an equal shareholding. Green Electric registered with Revenue for VAT and corporation tax purposes shortly after incorporation but not for PAYE purposes until April or May 2021. Mr Lawlor was made redundant from his position with Robert Lynch Heating in mid-2022 and assumed a full-time position with Green Electric. In or around February 2020, the Climote side of the business at Robert Lynch Heating was being wound down. A number of the Complainant’s colleagues were left go or redeployed. The Complainant was asked by the HR Manager in Robert Lynch Heating to take on administrative work on behalf of Green Electric. She agreed to do this while also initially completing outstanding Climote-related work. She did this work for a number of weeks at the premises of Robert Lynch Heating and then from home during the pandemic. She was in receipt of the PUP up until approximately July 2020 when she then moved to Green Electric’s dedicated offices and worked exclusively for Green Electric. At all times, she furnished her timesheets to Ms Walsh at Robert Lynch Heating and was paid through that entity’s payroll. She was not furnished with a contract of employment by Mr Lawlor with Green Electric. It appears a number of issues occurred in relation to the Complainant’s attendance at the offices of Green Electric in or around June 2021 that caused Mr Lawlor to suspend the Complainant’s employment. The Complainant was sent home from work on 11 June 2021. She was subsequently dismissed by letter dated 21 June 2021 on Energy Centre headed notepaper and signed by Mr Robert Lynch. Submissions The Respondents submit that the Complainant was at all material times an employee of Robert Lynch T/A Robert Lynch Heating/The Energy Centre. The further submit that the Complainant and others – including electricians, roofers and fitters – engaged in work on behalf of Green Electric were sub-contracted from Robert Lynch who invoiced Green Electric for their time. The Respondents also state that the Complainant furnished her time sheets to Robert Lynch Heating/the Energy Centre at all material times, that no written contract of employment issued from Green Electric to the Complainant and that she was dismissed by Mr Lynch. The Complaint submits that she was offered and accepted a managerial position with Green Electric by Mr Lawlor to whom she reported and worked closely with up until her suspension by him on 11 June 2021. She says she did request a written contract of employment from Green Electric but it was never given to her. She accepts that she sent her time sheets to Robert Lynch Heating/the Energy Centre and was paid at all times via its payroll but submits that this was due to the fact that Green Electric had no payroll system in place at the time and both businesses were closely interlinked. Finally, the Complainant submits that the facts as outlined to the Court bring her employment relationship with Green Electric within the terms of the definition of contract of employment in the Act. The Law For the purposes of the Act, ‘contract of employment’ is ascribed the following meaning in section 2:
Discussion and Decision It is clear that when enacting the Act, the Oireachtas – by ascribing a very broad interpretation to ‘contract of employment’ for the purposes of the Act - intended the Act to have a wider application than many other employment enactments. The facts herein are consistent with a finding that the Complainant entered into an agreement with Newgrange Energy Limited T/A as Green Electric to personally execute work on its behalf. She performed this work exclusively between August 2020 and her dismissal in June 2021. The Court, therefore, concludes that the Complainant had a ‘contract of employment’ - within the meaning of the Act – with Newgrange Energy Limited T/A Green Electric at all times material to her claim under the Act. The Court therefore remits the Complainant’s substantive claim under the Act to the Workplace Relations Commission for adjudication. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary. |
